The State of Western Australia v Jackson - [2019] WASCA 118

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JACKSON [2019] WASCA 118
CORAM:   BUSS P
MITCHELL JA
BEECH JA

HEARD:   8 AUGUST 2019
DELIVERED          :   14 AUGUST 2019
FILE NO/S:   CACR 108 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
PAUL RAYMOND JACKSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
Citation: THE STATE OF WESTERN AUSTRALIA -v- JACKSON [2019] WADC 91
File Number             :   IND 1778 of 2018

Catchwords:

Criminal law and procedure - Application to sever indictment - Whether evidence on counts 3 and 4 cross‑admissible on counts 1 and 2 - Whether evidence has significant probative value

Evidence - Propensity evidence - Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) - Whether evidence revealing a sexual interest of adult male accused in pre-adolescent females is significantly probative of whether accused was sexually motivated in touching buttocks of 12-year-old complainant(s) - Whether such evidence is significantly probative of whether accused touched a complainant's buttocks

Words and phrases - 'Significant probative value'

Legislation:

Criminal Procedure Act 2004 (WA), s 133
Evidence Act 1906 (WA), s 31A

Result:

Appeal allowed
Order for separate trials of counts 3 and 4 set aside

Category: A

Representation:

Counsel:

Appellant	:	L M Fox
Respondent	:	S Vandongen SC

Solicitors:

Appellant	:	The Director Of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Asplin v The State of Western Australia [2013] WASCA 72
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
DKA v The State of Western Australia [2017] WASCA 44
Drago v The Queen (1992) 8 WAR 488
Flessas v The State of Western Australia [2018] WASCA 210
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
HTD v The State of Western Australia [No 2] [2019] WASCA 39
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
JAW v The State of Western Australia [2016] WASCA 40
La Bianca v The State of Western Australia [2019] WASCA 105
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

JUDGMENT OF THE COURT:

Introduction

The respondent is charged on an indictment containing four counts. The State appeals against the primary judge's decision to order that counts 3 and 4 of the indictment be tried separately from counts 1 and 2. Counts 1 and 2 each allege, in respect of different complainants, that, on 18 April 2018, the respondent indecently dealt with a girl under the age of 13 years, by touching her on the buttocks. Count 3 is a charge that, on 23 April 2018, the respondent possessed child exploitation material. Count 4 alleges that, on 23 April 2018, the respondent used a carriage service to access child pornography material.
On appeal, as at first instance, the parties agree that the exercise of the discretion to sever counts 3 and 4 from counts 1 and 2 depends on whether the evidence on counts 3 and 4 is admissible, as propensity evidence under s 31A of the Evidence Act 1906 (WA), in the trial of counts 1 and 2. Consequently, this appeal turns on the question of cross‑admissibility, under s 31A, of the evidence on counts 3 and 4. It is common ground that the evidence will be cross-admissible if it has significant probative value in the trial on counts 1 and 2 on the indictment.
For the reasons that follow, in our opinion, the evidence on counts 3 and 4 does not have significant probative value for the purpose of proving that the respondent in fact touched the complainants on the buttocks. However, in our view, that evidence does have significant probative value for the purposes of proving that any independently established touching was deliberate and sexually motivated, and thus indecent. Consequently, the evidence on counts 3 and 4 has significant probative value in the trial on counts 1 and 2, and the appeal must be allowed.

The State case

The primary judge set out the State case in relation to counts 1 - 4 as follows:[1]
[1] The State of Western Australia v Jackson [2019] WADC 91 [7] - [16] (primary reasons).
Brief summary of the State's case in relation to counts 1 and 2
The State's case in relation to counts 1 and 2 is that the 12-year-old female triplets JW, SW and LW were at a shopping centre.
The accused was shopping at a supermarket in that centre.
The triplets entered the supermarket intending to purchase lollies. The accused was walking up and down the aisle. As he walked past the girls it is alleged he touched SW on the buttocks with the back of his hand. He then walked up and down the aisle again and as he passed the girls he touched JW on the buttocks with the back of his hand and then left the aisle.
A short time later the State alleged that the accused returned to the shopping aisle and walked past the girls whilst looking at LW. The girls faced their backs towards the outside of the aisle and SW and JW stood around LW to form a protective barrier around her.
The girls then left the aisle, went to the self-service checkout and subsequently reported the incident to their mother.
When spoken to by police the accused admitted he saw the girls at the supermarket but denied that he had any physical contact with them.
Brief summary of the State's case in relation to counts 3 and 4
Five days after the alleged incident the subject of counts 1 and 2 the police arrested the accused and searched his residence. They located an Apple iPad and an Apple iPhone 4.
On the iPad was one image known as category 1 … showing a female child around about 10 to 12 years of age wearing a bikini and posing for the camera (count 3).
Count 4 relates to accessing eight images, again said to be category 1 child exploitation material depicting female children aged between 8 and 13 years of age. The images depict the female children wearing underwear or bikini bathers in a posing type photographs [sic].
When spoken to by police the accused admitted using the iPad to access pornography and going to a site containing various images, including images of young girls. He admitted he had accessed images of young girls in bikinis in 'provocative poses'. He said he found the images intriguing, but denied having a sexual interest in children. He admitted deliberately accessing four of the eight images the subject of count 4 saying the other four images came up by accident. At the time the police seized his iPad, those four images were open in his 'Safari' browser.
On appeal, the parties do not take issue with the primary judge's summary of the State case, except to the extent that the State submits that (1) the images the subject of count 4 were located in an open Safari web browser on the iPad which was seized during the course of the search of the respondent's home and (2) count 3 concerned an image found on the iPhone rather than the iPad.[2] The respondent does not dispute these matters.[3]
[2] Appellant's submissions [2], fn 2.
[3] Respondent's submissions [1].

The respondent's severance application

On 8 May 2019, the respondent applied, pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA), for an order that counts 1 and 2 on the indictment be tried separately from counts 3 and 4 on the indictment.[4]
[4] Application by WA Criminal Law on behalf of Paul Raymond Jackson dated 8 May 2019.

The decision of the primary judge

On 5 July 2019, the primary judge delivered his decision, granting the severance application and ordering that counts 1 and 2 be tried separately from counts 3 and 4.[5]
[5] Primary reasons [62]; ts 52.
As already noted, the State accepted that if the evidence in relation to counts 3 and 4 was not admissible in relation to counts 1 and 2, the severance application should be granted because there would be a real risk of impermissible prejudice to the respondent if the four counts were tried together.[6] Similarly, the respondent accepted that if the evidence in relation to counts 3 and 4 was admissible in relation to counts 1 and 2, the severance application should be dismissed and the counts tried together.[7] These concessions are maintained on appeal.[8]
[6] Primary reasons [5].
[7] Primary reasons [6].
[8] Appellant's submissions [4], [29]; respondent's submissions [6].
After setting out the State case and the provisions of s 31A of the Evidence Act relating to propensity and relationship evidence, the primary judge identified, and then proceeded to consider, the following three questions:
(1)Is the proposed evidence propensity evidence of the respondent's conduct in relation to counts 3 and 4?
(2)Does the evidence have significant probative value?
(3)Is the probative value such that fair-minded people would think that the public interest in adducing the evidence must have priority over the risk of an unfair trial?
As to the first question, the primary judge found that the conduct alleged in counts 3 and 4 was clearly evidence of the conduct of the respondent and therefore propensity evidence. In addition, his Honour considered that it was evidence of an attitude or conduct of the respondent towards a class of persons, namely pre-adolescent girls, over a period of time.[9]
[9] Primary reasons [19].
The second question was, on the primary judge's analysis, the determinative issue. The primary judge detailed the submissions of the respondent and the State before setting out his conclusions on this question. While his Honour considered that there was clearly a temporal connection between the possession and accessing of the images the subject of counts 3 and 4 and the offending the subject of counts 1 and 2,[10] his Honour emphasised that all of the facts and circumstances had to be considered in assessing whether the evidence had significant probative value.[11] Relevant matters included:
(a)the nature, quality, extent and duration of the conduct the subject of the propensity evidence and the nature, quality, extent and duration of the conduct the subject of the charged offences in counts 1 and 2; and
(b)the extent of the rational connection between the conduct the subject of the propensity evidence and the conduct the subject of the charged offences in counts 1 and 2.[12]
[10] Primary reasons [39].
[11] Primary reasons [40].
[12] Primary reasons [41] - [42].
Given that, on appeal, the State submits that the error in the primary reasons lies in paragraphs [43] - [47],[13] it is convenient to set out those paragraphs in full:[14]
[43]In McPhillamy it establishes that generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. However two matters must be examined. Firstly, does the proposed evidence establish the tendency the State allege[s] and secondly, is the tendency evidence significantly probative in the proof of the charged offence.
[44]The tendency the State allege[s] in the propensity evidence shows the propensity of the accused to have a particular state of mind, that is, a sexual interest in pre-adolescent girls, as opposed to a tendency to act in a particular way, that is, touching the pre-adolescent girls.
[45]The possession of the images the subject of counts 3 and 4 [is] capable of demonstrating the accused has a sexual interest in pre-adolescent girls aged between the ages of 8 and 13 years.
[46]The next issue is whether either alone or in combination with other evidence the propensity evidence is significantly probative in the proof of the charged offence[s]. I consider that the nature of possessing and viewing child exploitation images through a computer in the privacy of the accused['s] own home is quite different to the act of physically touching young girls in a public shopping centre. The nature of the acts are so different that it lacks significant probative value.
[47]Showing the accused has a state of mind, namely a sexual interest in pre-adolescent girls, is not significantly probative of whether the touching occurred, whether it was the accused who did the touching, whether it was deliberate or accidental or whether it was indecent. (emphasis added)
[13] Appellant's submissions [6].
[14] Primary reasons [43] - [47].
Having concluded that the evidence the subject of counts 3 and 4 was not of significant probative value in assessing whether the respondent was guilty of counts 1 and 2, the primary judge observed that it was not necessary for him to consider the third question.[15] Nevertheless, his Honour went on to consider the third question.
[15] Primary reasons [48].
In relation to the third question, the primary judge stated that, if the evidence the subject of counts 3 and 4 was of significant probative value, the jury would be considering the potential of an innocent or accidental touching in a vacuum.[16] His Honour considered that, if the evidence was of significant probative value, he would have found that fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. In those circumstances, his Honour would have ruled that the evidence on counts 3 and 4 was admissible in relation to counts 1 and 2 and there would have been no basis to sever the indictment.[17] On appeal, the respondent does not challenge this conclusion.
[16] Primary reasons [59].
[17] Primary reasons [60].
However, given his finding that the evidence in relation to counts 3 and 4 did not have significant probative value in relation to counts 1 and 2, the primary judge considered that the parties properly accepted that there would be a real risk of impermissible prejudice to the respondent if the four counts were tried together.[18] Consequently, his Honour ordered that counts 1 and 2 be tried together but separately from counts 3 and 4.[19]
[18] Primary reasons [61].
[19] Primary reasons [62].

Ground of appeal

The State appeals on a single ground of appeal, which is in the following terms:
The learned primary judge erred in the exercise of his discretion under s 133(3)(a) of the Criminal Procedure Act 2004 by ordering that counts 3 and 4 of the indictment be tried separately from counts 1 and 2.
Particulars
(a)The primary judge erroneously concluded that the evidence the subject of counts 3 and 4 was not admissible as propensity or relationship evidence, in accordance with s 31A of the Evidence Act 1906, in the trial of counts 1 and 2;
(b)the primary judge ought to have found that the evidence the subject of counts 3 and 4 was admissible as propensity or relationship evidence, in accordance with s 31A of the Evidence Act 1906, in the trial of counts 1 and 2; and
(c)had the primary judge correctly found in accordance with particular (b), then it would not have been reasonably open to the primary judge to have concluded that the respondent was likely to be prejudiced in the trial of the indictment.

Legal principles

Section 31A of the Evidence Act provides:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A of the Evidence Act were summarised in RMD v The State of Western Australia as follows:[20]
[20] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also RMD [50] - [52]; La Bianca v The State of Western Australia [2019] WASCA 105 [24] - [26], [144].
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.
(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
Four further points should be made.
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.[21]
[21] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26], [34]; Flessas v The State of Western Australia [2018] WASCA 210 [46]; La Bianca [145].

Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'.[22] For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
[22] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [23].
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.[23]
[23] DKA v The State of Western Australia [2017] WASCA 44[43]; La Bianca [26](f).

McPhillamy

The primary decision and the submissions of both parties rely heavily on the High Court's decision in McPhillamy. It is therefore convenient to set out, in some detail, what was said in that decision, before outlining the parties' submissions.
In McPhillamy, the appellant was charged with six counts of sexual offences against the complainant, A. At trial, A gave evidence that, on two separate occasions in or around 1995 while he was an altar boy under the supervision of the appellant, who was an acolyte, the appellant followed him into a toilet and committed various sexual offences against him. Over objection from defence counsel, the trial judge permitted the prosecution to adduce tendency evidence from B and C. B and C gave evidence that, in 1985, the appellant committed various sexual offences against them when they were boarders at the college where the appellant was an assistant housemaster. The conduct alleged to have been committed against A, B and C was clearly sexual in nature.
The High Court held that B and C's evidence was not admissible as tendency evidence under s 97(1) of the Evidence Act 1995 (NSW) because it was not of significant probative value in assessing whether the appellant was guilty of the alleged sexual offences against A. Kiefel CJ, Bell, Keane and Nettle JJ reasoned as follows:[24]
[24] McPhillamy [26] - [27], [30] - [32].
[26]As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of 'B' and 'C' was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
[27]Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to 'B''s and 'C''s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against 'A'.
…
[30]… It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with 'B' and 'C' is relevant to proof that he committed the offences alleged by 'A', but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
[31]Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A''s account that the appellant followed him into a public toilet and molested him.
[32]'B''s and 'C''s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against 'A' to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' 10 years before, in different circumstances, and without any evidence other than 'A''s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. (footnotes omitted, italics in original, underlining added)
Edelman J agreed with the reasons of Kiefel CJ, Bell, Keane and Nettle JJ and made some additional observations. After referring to the two matters identified in [21] above, his Honour said as follows:[25]
As to the first matter – the extent to which the evidence supports the tendency – the jury were directed that the alleged tendency of the appellant was to act in a particular way that demonstrated 'a sexual interest in male children in their early teenage years who were under his supervision'. The evidence of 'B' and 'C' provided some support for the appellant having that tendency at the time of trial. It assisted to establish that the appellant had a state of mind involving a sexual interest in early teenage male children under his supervision and a willingness to act upon that state of mind. But that support was not strong. Unlike in Hughes, where the tendency evidence was also expressed in reasonably general terms, the evidence in this case was given only by two witnesses. Their evidence involved two incidents that occurred a decade before the date of the alleged offences against 'A'.
As to the second matter – the extent to which the tendency makes more likely the facts making up the charged offence – the tendency was expressed at a high level of generality. The reference to supervision was as a matter of context: it was not alleged that the appellant had a tendency to abuse his authority over children in any particular way, such as taking advantage of the homesickness of 'B' and 'C', in order to facilitate acts of the nature of the alleged offending. Nor was it alleged that the appellant had a tendency to act impulsively with a risk of detection. Nor was it alleged that the acts, or their circumstances, bore any similarity to the alleged offences, other than as demonstrating a sexual interest in early teenage boys. The tendency was described no more specifically than 'acting' upon the appellant's sexual interest in early teenage male children under his supervision.
[25] McPhillamy [35] ‑ [36].

The State's submissions

The State submits that the error in the primary judge's reasons lies in paragraphs [43] to [47] of the judgment.[26] It submits that it is apparent from those paragraphs, particularly [43], that the reasons of the plurality in McPhillamy are at the core of his Honour's reasoning as to why the evidence did not possess significant probative value. However, the State submits that the primary judge's reasoning reflects a misapprehension or misapplication of what was said in McPhillamy.[27]
[26] Appellant's submissions [6]. Those paragraphs are set out at [12] above.
[27] Appellant's submissions [7].
The State points to the primary judge's statement in [43] that '[g]enerally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value'. It says that although this is a correct reproduction of an aspect of the plurality's reasoning in McPhillamy (specifically, [27] of McPhillamy), it is cited in a manner that is 'devoid of relevant context'.[28] Specifically, the State submits that the earlier offending in McPhillamy lacked significant probative value because of a combination of at least three features of that case: (1) the prior offending had occurred a decade before the alleged index offending; (2) the alleged index offending was the only evidence to suggest that the appellant in McPhillamy had offended again; and (3) the facts and circumstances of the prior offending and the alleged index offending were different.[29]
[28] Appellant's submissions [8].
[29] Appellant's submissions [9] - [10], relying on McPhillamy [27] - [32].
The State points to the following facts and circumstances as being of significance in assessing whether the evidence on counts 3 and 4 possesses significant probative value in relation to counts 1 and 2:
(1)As the primary judge found, there was 'clearly a temporal connection', only five days, between the possession and accessing of the images the subjects of counts 3 and 4 and the offending the subject of counts 1 and 2.[30]
(2)Count 4 alleges that the respondent accessed child pornography on or around five days after the indecent dealing incidents; it is not as if the respondent's possession of this material was stale in the sense that he possessed, but had not recently accessed, the child exploitation material.[31]
(3)As the primary judge found, the evidence is 'capable of demonstrating that the accused has a sexual interest in pre-adolescent girls aged between the ages of 8 and 13 years'. Further, the possession of child exploitation material is capable of establishing that this sexual interest was manifest at the time when the indecent dealing offences are alleged to have occurred.[32]
[30] Appellant's submissions [12].
[31] Appellant's submissions [13].
[32] Appellant's submissions [14].
The State submits, in effect, that the primary judge erred in stating at [46] of his reasons that the evidence on counts 3 and 4 lacked significant probative value because the nature of viewing child exploitation material was 'quite different to the act of physically touching young girls in a public shopping centre'.[33]
[33] Appellant's submissions [15].
The State submits that there is an important textual distinction between s 97 of the Uniform Evidence Acts and s 31A of the Evidence Act.[34] It submits that the definition of propensity evidence under s 31A of the Evidence Act is very broad,[35] and significantly broader in scope than the more confined provisions of the 'tendency rule' which appear in s 97 of the various Uniform Evidence Act jurisdictions the subject of recent High Court authority.[36] Section 97 deals with the use of propensity evidence for the purpose of proving that the accused has a tendency to act in a particular way, or to have a particular state of mind. The State contends that the purposes for which propensity evidence may be used under s 31A are not so confined. It suggests that the comments of the High Court in McPhillamy and other cases dealing with s 97 might be distinguished on this basis.[37] It submits that the text of s 31A of the Evidence Act does not require proof of a tendency (let alone proof of acting on a tendency) as a necessary precondition of a finding that propensity evidence has significant probative value.[38]
[34] Appeal ts 11.
[35] Appellant's submissions [16].
[36] Appellant's submissions [17], referring to IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Hughes; R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846; McPhillamy.
[37] Appeal ts 5, 11 - 12, 19, 20.
[38] Appellant's submissions [17].
Instead, the State submits that it is the respondent's sexual interest in pre-adolescent girls which is relevant. That the acts which established that sexual interest are fundamentally different in nature is not to the point because it is the interest which possesses significant probative value. The State says that, taken to its logical conclusion, the primary judge's reasoning is such that possession of child exploitation material could never possess significant probative value simply because the nature of those acts is different when the allegation is one of physical contact with a child victim.[39]
[39] Appellant's submissions [18].
The State submits that the limited authority in this court as to the admissibility of child exploitation material in such cases does not support this aspect of the primary judge's line of reasoning. It points to JAW v The State of Western Australia,[40] in which, it submits, evidence that the appellant possessed a relatively small amount of child pornography (two images of naked girls) was said to be 'plainly relevant' to an assessment of the likelihood of whether the appellant in that case committed offences of indecently dealing with or sexually penetrating a child under the age of 13 years.[41] The State submits that the significance of the probative value of that evidence was not conditional upon proof of acting upon a defined tendency.[42] The State also points to Asplin v The State of Western Australia[43] to make good this submission.[44]
[40] JAW v The State of Western Australia [2016] WASCA 40.
[41] Appellant's submissions [19]; appeal ts 10 - 11, citing JAW [86].
[42] Appellant's submissions [19]; appeal ts 11.
[43] Asplin v The State of Western Australia [2013] WASCA 72.
[44] Appeal ts 17 - 19.
The State submits that the child exploitation material evidence in the present case establishes, at a time proximate to the commission of the offending, a tendency for the respondent to act upon his sexual interest.[45] Even if the mere possession of or access to child exploitation material is not 'acting' upon a relevant tendency in the sense in which that concept is described in McPhillamy, the temporal proximity of the interest is what gives the evidence its significant probative value.[46] The State submits that, unlike McPhillamy, this is not a case of an old tendency which lay dormant until the commission of the index offending. Rather, the tendency manifested itself, in the sense that the respondent acted upon his tendency, by accessing child exploitation material, at a time very proximate to the alleged commission of counts 1 and 2.[47]
[45] Appellants' submissions [20].
[46] Appellant's submissions [20].
[47] Appellant's submissions [21].
The State submits that the propensity evidence has significant probative value in relation to the following elements of counts 1 and 2:
(1)whether the complainants were in fact touched in the manner alleged;
(2)if one or both complainants were touched in the manner alleged, whether the touching was deliberate as opposed to accidental or unwilled; and
(3)if one or both of the complainants were deliberately touched, whether the act of touching was indecent.[48]
[48] Appellant's submissions [22]. In written submissions, the State also asserted that the propensity evidence was relevant to the issue of identity, but in oral submissions that contention was abandoned: appeal ts 9 - 10.
In relation to whether the complainants were in fact touched, the State says that propensity evidence that the respondent had, at a time proximate to the incident, a sexual interest in pre-adolescent girls is capable of resolving doubts that the jury may have about how the respondent could be so brazen as to touch two young girls on their buttocks in a public place in circumstances where he might easily be observed by members of the public or supermarket staff. In resolving such doubts, the State says the evidence possesses significant probative value.[49]
[49] Appellant's submissions [25].
In relation to whether the touching was deliberate, the State says that propensity evidence that the respondent possessed a sexual interest in pre-adolescent girls at the time is significantly probative in that it is capable of rebutting any argument by the respondent at trial that contact with the girls was inadvertent, for example due to the narrowness of the supermarket aisle, rather than deliberate.[50]
[50] Appellant's submissions [26].
In relation to whether the touching was indecent, the State says the respondent's sexual interest in pre-adolescent girls is significantly probative of his state of mind in that it tends to indicate that the motive or purpose of the respondent's actions was a sexual one.[51]
[51] Appellant's submissions [27].
Consequently, the State submits that the primary judge was in error in ruling that the evidence on counts 3 and 4 had no significant probative value in the trial of counts 1 and 2. Given that the parties agreed at first instance and on appeal that there could be no basis for severing the indictment in the event that the evidence was so admissible, the State says that the appeal should be allowed and the order of the primary judge severing the indictment set aside.[52]
[52] Appellant's submissions [29].

The respondent's submissions

Like the State, the respondent submits that the only issue that arises on appeal is whether the evidence on counts 3 and 4 has significant probative value for the purposes of s 31A(2)(a) of the Evidence Act in the trial of counts 1 and 2.[53]
[53] Respondent's submissions [7].
The respondent accepts that the evidence on counts 3 and 4 is capable of establishing that: (1) he had a sexual interest in young girls; and (2) he had an interest in, and acted by, possessing and accessing a certain type of child exploitation material. He submits that, while either or both of these interests might satisfy the 'basal test of relevance', the more stringent test of significant probative value is not satisfied.[54]
[54] Respondent's submissions [10] - [11]; appeal ts 26, 32.
The respondent does not accept the State's contention that the statement at [27] of McPhillamy that '[g]enerally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value' was an observation limited by the particular facts of McPhillamy. Rather, the respondent submits that what was said by the plurality in McPhillamy was a statement of principle of general application, or at least a very authoritative observation about what is generally required to establish that tendency evidence has significant probative value in sexual cases.[55] He submits that the evidence on counts 3 and 4 does not have significant probative value because, in accordance with the observation in McPhillamy, it does not establish that the respondent had a tendency to act on a sexual interest. Rather, it only establishes that the respondent had a sexual interest.[56]
[55] Respondent's submissions [12] - [19]; appeal ts 35.
[56] Respondent's submissions [20] - [21].

The respondent submits that the State's characterisation of the potential issues to which the evidence on counts 3 and 4 may be relevant, outlined at [36] above, does not enhance the probative value of the evidence.[57] He further submits that the State's case as to the relevance of the propensity evidence to each of these issues cannot, by 'linguistic gymnastics', avoid its critical premise, or essential element, that the respondent acted on his sexual interest in young girls in committing the offences the subject of counts 1 and 2.[58] That being so, the absence of the respondent having acted on any sexual interest in pre-adolescent girls established by the evidence on counts 3 and 4 is fatal to its having significant probative value.[59]
[57] Respondent's submissions [22].
[58] Appeal ts 26 - 27, 28, 30 - 31, 32, 36.
[59] Appeal ts 26, 28 - 29.
As to the State's submission that the respondent's acts of possessing and accessing child exploitation material were capable of establishing that the respondent had a tendency to act on his sexual interest, the respondent submits that it is plain that the plurality in McPhillamy was referring to a tendency to act on a sexual interest in children in the sense of actually engaging in sexual conduct with a child, not some other act falling short of such conduct.[60] Evidence that establishes that the respondent had a tendency to possess and access child exploitation material would not establish the existence of a further and different tendency to engage in sexual behaviour with children, at least not to the extent that it could properly be concluded that it was significantly probative of the facts in issue in relation to counts 1 and 2.[61]
[60] Respondent's submissions [23].
[61] Respondent's submissions [24].
Further, the respondent submits that the State has not attempted to identify any feature of the conduct sought to be proved by the evidence on counts 3 and 4 and the alleged offences the subject of counts 1 and 2 'which serves to link the two together', in the sense described in McPhillamy at [31].[62] The respondent says that the only potential linking feature is that the children depicted in the alleged child exploitation material are said to be females between the ages of 8 and 13 years. However, (1) those children are alleged to be depicted in underwear or bikini bathers, not fully clothed or in surroundings similar to a public shopping centre; and (2) there is no suggestion that the images show any of the children being touched by an adult in any way.[63] The respondent submits that the absence of any linking feature adds considerable force to the conclusion that the evidence on counts 3 and 4 does not have significant probative value.[64]
[62] Respondent's submissions [25]; appeal ts 38.
[63] Respondent's submissions [26]; appeal ts 38.
[64] Respondent's submissions [27].
The respondent also points to the high level of generality at which the alleged tendency is framed.[65]
[65] Appeal ts 38.

Disposition

In many cases, an appellate court considers the admission of evidence, under s 31A of the Evidence Act in the context of an appeal against conviction, following its admission in the trial. In that context, the determination of whether the trial miscarried in consequence of the admission of the evidence is concerned with the use made of the evidence at the trial.[66]
[66] McPhillamy [11]; Bauer [61].
However, in other cases, of which this is an example, the question of the admissibility of evidence under s 31A falls to be determined in advance of the trial. When that is so, the admissibility of the evidence is to be evaluated in the framework of the accusatorial nature of a criminal trial. Under our system of criminal justice, subject to express statutory provision to the contrary, it is for the prosecution to prove each element of the offence, and to do so without the defence being required to disclose its answer(s) to the charge.[67] In doing so, the prosecution must present the whole of its case foreseeing, so far as it reasonably can, any issue which the accused might raise, for the prosecution will not, generally speaking, be permitted to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.[68]
[67] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [101]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [36].
[68] Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 108.
The admissibility of the evidence on counts 3 and 4 in proof of counts 1 and 2 must be determined in this framework.
In our view, for the reasons below, the evidence on counts 3 and 4 has significant probative value in proving counts 1 and 2, in some but not all of the respects alleged by the State.
The inquiry as to whether propensity evidence has significant probative value begins with the identification of the fact(s) in issue to which the propensity evidence is said to be relevant.[69] Whether propensity evidence has significant probative value will depend upon the nature of the fact in issue to which it is said to be relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.[70] If propensity evidence is said to be relevant to more than one fact in issue, the evaluation of the probative value of that evidence must be conducted separately in relation to each fact in issue to which the propensity evidence is said to be relevant. That is illustrated by this court's approach in the recent decision of La Bianca, in which the extent of the probative value of the propensity evidence was separately analysed for each fact in issue to which it was said to be relevant and, by majority, the conclusion reached that it had significant probative value in relation to some facts in issue but not others.[71]
[69] Noto [23]; DKA [37].
[70] DKA [30](d); RMD [50](d); [185](2).
[71] La Bianca [38] - [41]; see also [150] - [155], in which Mitchell JA undertook a separate analysis of the kind referred to.
Thus, to state the obvious, the probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to consider the different value of propensity evidence in relation to different facts in issue when deciding whether, having regard to the nature and significance of those facts, the evidence has significant probative value, either generally or for a specific or limited purpose, in the proceedings for the relevant offence.
As we have mentioned, the term 'propensity evidence' is defined in s 31A(1) to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. For example, if an adult accused person is sexually interested in children, that interest will constitute 'a tendency' that the person has within the definition of 'propensity evidence' in s 31A(1). Evidence of the adult accused person's 'tendency' (that is, his or her sexual interest in children) will have significant probative value if that evidence (either by itself or having regard to other evidence adduced or to be adduced) could rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
One element of counts 1 and 2 is that the respondent touched the relevant complainant on her buttocks with the back of his hand. However, proof of that fact alone will not establish guilt.
Another element of each of counts 1 and 2 is that the dealing, by touching on the buttocks, was indecent. It is established, in this context, that 'indecent' connotes conduct of a sexual character.[72]
[72] Drago v The Queen (1992) 8 WAR 488, 492; HTD v The State of Western Australia [No 2] [2019] WASCA 39 [19].
Some conduct may be regarded as so offensive to common standards of decency that it should be regarded as indecent of itself, regardless of the motivation for the conduct.[73] However, brushing another person's buttocks with the back of the hand is not conduct of that character.
[73] Drago (503)
As Murray J noted in Drago:[74]
But where the act in question was capable of being regarded as indecent, but was not necessarily to be so regarded in itself, the motivation of the actor might operate in one of two ways. It might of course confer the quality of indecency upon an act which might, differently explained, be held not to be so. On the other hand, the motive of the actor might render innocent an act which otherwise, without explanation, might be regarded as indecent.
[74] Drago (503).
Proving the indecency of the particular conduct in which the respondent is alleged by the State to have engaged in counts 1 and 2 will require the State to prove that the contact was deliberate. If the respondent inadvertently brushed the back of his hand across one or both of the complainants' buttocks, then his conduct could not amount to indecent dealing. Further, if the State establishes that the conduct was deliberate, the respondent's motive for that conduct will bear significantly upon whether it was indecent.[75] In the particular circumstances alleged by the State, it is difficult to see how the jury could be satisfied that the touching was indecent without being satisfied that it was sexually motivated. Counsel for the State accepted before this court that, in this case, the jury would need to be satisfied that the touching was deliberate and sexually motivated in order to find that it was indecent.[76]
[75] Drago (503); HTD [23], [84].
[76] Appeal ts 16.
The State will, no doubt, invite the jury to infer that the contact was deliberate and sexually motivated from the circumstances which it will seek to establish (including that, on two separate occasions, the respondent allegedly touched a complainant's buttocks as he passed her). However, the State also points to the evidence on counts 3 and 4, which we will refer to as the propensity evidence, in support of the inference that the contact was deliberate and sexually motivated.
The propensity evidence is cogent evidence that, at a time substantially contemporaneous with counts 1 and 2, the respondent had a sexual interest in pre-adolescent girls. The fact that the respondent had a sexual interest in pre-adolescent girls, manifested by viewing images at about the time of the contact, makes it more likely, to a significant extent, that in the objective circumstances in which the contact allegedly occurred, his contact with the buttocks of one or both of the complainants (who were pre-adolescent girls) was deliberate and sexually motivated. Jurors are told that, in evaluating evidence and in making findings, they should use their common sense and their experience of life. Whether or not invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour.[77] In our view, the same is true of a jury's assessment of the inferences to be drawn as to a person's state of mind when acting in a particular manner. In evaluating whether they are satisfied as to a sexual motivation, the jury would, absent the propensity evidence, proceed on the assumption, based on common experience, that the vast majority of adult men do not have a sexual interest in pre-adolescent girls. Applying that assumption to the facts of the touching, as the jury found them to be, may leave the jury in doubt as to whether the touching was sexually motivated. The propensity evidence, if accepted, would replace this assumption with a finding that the respondent had, at a time substantially contemporaneous with the touching, a sexual interest in pre-adolescent girls. In this manner, the propensity evidence may well resolve any doubts the jury might have as to whether the respondent's touching of each complainant's buttocks with the back of his hand was deliberate, sexually motivated, conduct. Further, the jury may well think it an unlikely coincidence that an adult man engaging in this conduct with a 12‑year‑old girl inadvertently or for reasons which are not sexual would happen to have a sexual interest in girls of that age manifested in the manner alleged by counts 3 and 4.
[77] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6].
Thus, the propensity evidence is highly influential in fact‑finding concerning the element of indecency. In the circumstances alleged by the State, the probative value of the evidence of the respondent's sexual interest in pre-adolescent girls, as revealed by the evidence on counts 3 and 4, and having regard to the other evidence to be adduced by the State in relation to counts 1 and 2, is significant in determining whether the touching of each complainant's buttocks, if independently established, was deliberate and sexually motivated.
In our view, nothing said in McPhillamy supports a contrary conclusion. The general observation in [27] of the plurality's reasons, that '[g]enerally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value', should not be read in isolation from its context. As already noted, in determining the significant probative value enquiry, it is critically important to identify the work that propensity evidence is tendered to do, and thus the reasoning in which the jury is invited to engage. In our view, there is an important distinction between the use of propensity evidence contemplated in cases such as McPhillamy, and the use of propensity evidence to infer the state of mind with which the respondent engaged in the alleged conduct in this case. In McPhillamy, evidence of the tendency - to act on a sexual interest in young teenage boys in certain circumstances - was tendered to prove that it was more likely that the accused had acted in a like manner on the occasions the subject of the charges. The propensity evidence was used to support a conclusion that the accused had engaged in conduct which, if it occurred, was undoubtedly sexual. That is the context in which the court's observation was made. In that context, significant probative value arises from the capacity of the evidence to demonstrate the tendency of the accused to engage in the charged conduct. In that context, the mere fact that the accused has a motivation to engage in the conduct does not have significant probative value in proving that they did in fact engage in the conduct on the occasion the subject of the charge(s). Thus, as the court observed in McPhillamy, it is generally the tendency to act on a sexual interest that has significant probative value in showing that an accused has acted in a certain way on the charged occasion(s). In our view, what is said in HML,[78] upon which the respondent also relies,[79] was said in the same context and is to be understood in the same manner.
[78] HML [103], [277]; see also [493], a passage cited with approval in Bauer [49].
[79] Appeal ts 29, 34.
In the present case, in relying on the propensity evidence in relation to the issue of indecency, the State invites reasoning of a fundamentally different character. In this case, if the jury is satisfied, independently of the propensity evidence, that the respondent acted in the manner alleged, the question becomes whether the respondent engaged in that conduct deliberately and with a sexual motive. Only at this point can the propensity evidence be used. At this point, the propensity evidence is not being used to prove that the respondent engaged in conduct; it is being used for a purpose which did not arise in cases such as McPhillamy. Rather than being used to support a conclusion that the respondent engaged in conduct, it is being used to support a conclusion as to the deliberateness and motivation of the respondent's actions as established by other evidence. The critical question is then concerned with the respondent's state of mind in relation to his acts, rather than with proof of his acts. As explained in [61] above, the respondent's sexual interest in girls of about the complainants' age (if established), and having regard to the other evidence to be adduced by the State in relation to counts 1 and 2, significantly increases the probability that his conduct of touching one or both of the complainants' buttocks (which must be established by other evidence) was deliberate and sexually motivated.
In summary, the reasoning under consideration in McPhillamy and like cases is, in essence, that the accused acted in a certain manner on a previous occasion, thereby making it more likely that he acted as alleged on the occasion the subject of the charge(s). By contrast, the reasoning invited in the present case arises only if the jury is first independently satisfied that the respondent engaged in the conduct alleged. If they are so satisfied, they are invited to reason that the existence of a sexual interest in pre-adolescent girls at a time very close to the touching the subject of counts 1 and 2 makes it more likely, to a significant extent, in the objective circumstances in which the contact allegedly occurred, that in touching a complainant, the respondent acted deliberately and with a sexual motive.
That is not to say that evidence of a sexual interest will have significant probative value in all cases where indecency is an element of the offence. It is necessary to consider the question of significant probative value having regard to the detail of the evidence and the allegations made in the particular case. For example, if an adult male accused was charged with indecently assaulting an adult female, evidence that he had pictures of adult women in bikinis adopting sexually provocative poses is unlikely to have significant probative value. The difference between that hypothetical case and the present case turns on the very unusual nature of the respondent's sexual interest, as revealed by the propensity evidence. As we have noted, it is likely to be a working assumption of a reasonable juror, as a matter of common experience, that the vast majority of adult men are not sexually attracted to 12‑year‑old girls. The same cannot be said of an adult male's sexual attraction to adult females. The significant probative value of the respondent's sexual attraction to girls of about the complainants' age lies in the rebuttal of that assumption which would reasonably be applied in the absence of evidence to the contrary, which then bears significantly, in the manner already explained, on the jury's evaluation of the state of mind with which the respondent acted in touching a complainant's buttocks, if independently established. The temporal proximity of the expression of the respondent's sexual interest to the alleged indecent dealing is also of importance in this case, as is the necessity of proving that the alleged conduct was deliberate and sexually motivated in order to establish that the dealing was indecent.
Contrary to the respondent's submission, to use the propensity evidence in the manner outlined at [61] and [64] does not involve a premise, or have as an element of the reasoning, that, in committing the offences the subject of counts 1 and 2, the respondent acted on his sexual interest in pre-adolescent girls. If the jury is satisfied, independently of the propensity evidence, that a touching of the buttocks occurred, the issue of the indecency of that touching arises. As already explained, deliberateness and sexual motivation are, in this case, essential to any conclusion of indecency. In deciding whether they are satisfied beyond reasonable doubt as to deliberateness and sexual motive, the jury will take into account the circumstances of the respondent's conduct as they find those circumstances to be. If they accept the evidence concerning counts 3 and 4, the jury can also take into account the respondent's sexual interest in pre-adolescent girls, if the jury is satisfied that the interest is established by that evidence. If, and only if, taking into account all of the evidence on counts 1 and 2 and the propensity evidence, the jury were satisfied beyond reasonable doubt as to deliberateness and sexual motive, and thus as to indecency, they would convict the respondent of counts 1 and 2. So to reason involves no premise, or element, that the respondent had acted on his sexual interest. Rather, the respondent's sexual interest at a proximate time is one of the circumstances informing the inference as to the state of mind with which he acted in touching a complainant's buttocks. That the respondent had acted on his sexual interest in pre-adolescent girls is the ultimate conclusion in the jury making a finding of indecency by reasoning in the manner just explained; it is not a premise of, or a step in, the jury's reasoning to that conclusion.

That is, there is a material difference between:
(1) applying a premise that the respondent has acted on his sexual interest; and
(2) engaging in the following process of reasoning:
(a)first, finding that the respondent has touched the relevant complainant's buttocks (without reference to the propensity evidence);
(b)then finding that the respondent has a sexual interest in pre-adolescent girls (by reference to the propensity evidence); and
(c)then determining, by reference to the circumstances in which the touching occurred and the existence of the sexual interest, whether the act of touching was deliberate and sexually motivated.
In the second case, it may follow from the ultimate conclusion that the respondent has acted on his sexual interest in pre-adolescent girls. However, in the second case, it is neither a premise nor an element of the process of reasoning to the ultimate conclusion that the respondent has acted on his sexual interest in pre-adolescent girls. Recognising that the respondent, a person with a sexual interest in a class of people, may, in touching a member of that class, have been acting on his sexual interest is not to reason or assume that the respondent has acted on his sexual interest.
As we will explain, the absence of features serving to link the conduct the subject of counts 3 and 4 to the alleged offences the subject of counts 1 and 2 is important in deciding whether the propensity evidence may be used to prove that the respondent engaged in the conduct the subject of counts 1 and 2. However, as already explained, on the analysis we have undertaken the propensity evidence is being used for a different purpose. Given its purpose in bearing upon deliberateness and sexual motivation, the absence of features linking the propensity evidence to the offences the subject of counts 1 and 2 does not deny or derogate from its significant probative value in proof of the mental element of those counts. For corresponding reasons, the level of generality at which the propensity is framed does not deny or derogate from the significant probative value of the propensity evidence in proof of the mental element.
To identify the facts in issue and to evaluate the extent of the probative value separately in relation to each fact in issue is not to engage in 'linguistic gymnastics', as contended by the respondent. To the contrary, it reflects proper analysis.
The respondent also submits that, when account is taken of the whole of the State case, it is unlikely that any issue as to deliberateness or sexual motivation will arise at the trial.[80] In our view, in circumstances where the admissibility ruling is made in advance of the trial and bearing in mind the accusatorial nature of a criminal trial as explained in [49] above, this submission cannot be accepted. This court, like the primary judge in making the ruling, cannot speculate as to the likely conduct of the defence case. Moreover, it is, of course, open to the jury to accept some, but not all, of the evidence on which the State relies. For example, the jury may be satisfied beyond reasonable doubt as to the occurrence of one of the touchings, but not as to the other. Consequently, the respondent's submission - that any defence of non‑deliberateness is unlikely in circumstances where the State alleges that two girls were touched by a stranger, who is an adult male, in a shopping centre - cannot be accepted.
[80] Appeal ts 24 - 25, 28, 33.
For these reasons, we are satisfied that the evidence on counts 3 and 4 has significant probative value in relation to whether any independently proven contact by the respondent with a complainant's buttocks was deliberate and sexually motivated, and thus indecent. As noted above, the State accepts that it must prove that the respondent acted deliberately and with sexual motivation in order to establish his guilt on counts 1 and 2. The significance of those facts to proof of the respondent's guilt, combined with the significance of the propensity evidence and having regard to the other evidence to be adduced by the State in relation to counts 1 and 2 in proving those facts, is such that the propensity evidence has significant probative value in the trial on counts 1 and 2.
However, we do not consider that the evidence on counts 3 and 4 has significant probative value in determining whether the respondent made the contact alleged by counts 1 and 2. The mere fact that an accused has a sexual interest in persons in the same class as the complainant is not usually of significant probative value in determining whether the complainant's account of the accused's conduct is true. That is so even where the sexual interest is manifested in offending against multiple complainants, where something more, a linking or common feature between the offending, is required. As noted in the unanimous judgment of the High Court in Bauer:[81]
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. (footnotes omitted)
[81] Bauer [58]; see also McPhillamy [27], [31].
A common feature linking offending involving the possessing and accessing of child exploitation material and offending involving physical contact with children is difficult to discern in the present case.
The State submits that:[82]
(1)The evidence on counts 3 and 4 reveals that the respondent had a sexual interest in girls aged in the region of 8 ‑ 13 years at a time proximate to the offences the subject of counts 1 and 2.
(2)The honesty and reliability of the evidence of the complainants are of critical significance to the jury's evaluation of the respondent's guilt on counts 1 and 2.
(3)In evaluating the honesty and reliability of the complainants' evidence, the jury is entitled to have regard to the improbability of the apparent coincidence that the respondent had a sexual interest as described above at a time when, on the complainants' evidence, the respondent acted in the manner alleged in counts 1 and 2.
[82] Appeal ts 2 - 3, 5, 8.
These submissions do not persuade us that the evidence relating to counts 3 and 4 has significant probative value in determining whether the respondent engaged in the conduct alleged in counts 1 and 2. That is so for two reasons. First, to our minds, the contention in [75](3) does not carry sufficient weight to sustain a conclusion that the probative value of the propensity evidence to establish that the respondent engaged in contact is properly described as significant. Secondly, in our view, such reasoning, if permissible, could equally be invited in any case where the alleged propensity evidence consisted of one or more earlier acts of inappropriate sexual contact with a different victim in a class (such as young girls) to which the complainant also belongs. However, in such a context, to so reason would seem to us to be contrary to what was said by the High Court in Bauer and in McPhillamy, which requires more than the existence of a sexual interest in persons of a class of which the complainant is a member to be significantly probative of sexual misconduct against a complainant. See [63] and [73] above.
We do not accept the State's submission, summarised at [34] above, that this court's decisions in JAW and Asplin support the approach it invites. First, both of those cases involved particular factual circumstances not mirrored in this case. In JAW, the appellant possessed images of child pornography in a briefcase which also contained documents of importance to him including several photographs of the complainant. The appellant had retained the images of child pornography and the photographs of the complainant for a lengthy period.[83] In Asplin, the question for the jury was whether the appellant was, out of two possible people, the one who committed the sexual assault on the 6-year-old complainant. Evidence of the appellant's sexual interest in young children had significant probative value in relation to that question.[84] Secondly and in any event, as already noted, in our view, the approach invited by the State is not consistent with what has been said more recently by the High Court in Bauer and in McPhillamy.
[83] JAW [86] - [87].
[84] Asplin [33] - [34].
We also do not accept the State's submissions, summarised at [32] above, that the textual differences between s 97 of the Uniform Evidence Acts and s 31A of the Evidence Act provide a basis for distinguishing Bauer and McPhillamy from this case. Whether those textual differences would give rise to different results in other cases need not be determined. So far as the State contends that the propensity evidence makes it more likely that the respondent engaged in the conduct charged in counts 1 and 2, it does seek to use the evidence to prove that the respondent had a tendency to act in a particular way. That is, that purpose for which the State seeks to use the propensity evidence in this case is the purpose for which the propensity evidence was sought to be used in the cases under s 97 of the Uniform Evidence Acts.
For these reasons, in our view:
(1)the evidence on counts 3 and 4, taken at its highest, is cogent evidence that, at a time closely proximate to the alleged commission of counts 1 and 2, the respondent had a sexual interest in pre-adolescent girls;
(2)the existence of such a sexual interest, having regard to the other evidence to be adduced by the State in relation to counts 1 and 2, makes it more likely, to a significant extent, that the contact, if it is established independently, occurred deliberately and with a sexual motive, and was thus indecent; and
(3)in this manner, the evidence on counts 3 and 4 has significant probative value in relation to the issue of whether any touching by the respondent of one or both of the complainants' buttocks, if otherwise proved, was indecent.
However, we are not satisfied that the evidence has significant probative value in relation to the question of whether any contact in fact occurred between the respondent and either complainant's buttocks. While we accept the relevance of evidence of the respondent's sexual interest in pre-adolescent girls to whether the alleged contact occurred, we are not persuaded that, having regard to the other evidence to be adduced by the State, its effect on the assessment of the probability of its occurrence is properly characterised as significant.
The trial judge will need to direct the jury as to the manner in which they may, and may not, use the evidence on counts 3 and 4 in their consideration of counts 1 and 2. That direction will need to include the following elements:
(1)In determining, on each of counts 1 and 2, whether the respondent touched the relevant complainant on her buttocks, the jury must not have any regard to the evidence relating to counts 3 and 4.
(2)If the jury is satisfied beyond reasonable doubt that the respondent touched a complainant on the buttocks, they must then determine whether they are satisfied beyond reasonable doubt that the touching was indecent. In the circumstances of this case, the jury could only be satisfied that the touching was indecent if satisfied beyond reasonable doubt that it was deliberate and sexually motivated.
(3)It is open to the jury, should they so decide, to find that the evidence on counts 3 and 4, if they accept it, is evidence that the respondent had a sexual interest in pre-adolescent girls at a time close to the alleged commission of counts 1 and 2.
(4)Should the jury so find, it is open to the jury to take into account the existence of the sexual interest together with all other relevant evidence which the jury accepts, in deciding whether they are satisfied beyond reasonable doubt that the touching of the complainant's buttocks by the respondent occurred deliberately and with a sexual motive, and was therefore indecent.

Conclusion

For these reasons, in our respectful opinion, the primary judge erred in finding that the evidence on counts 3 and 4 had no significant probative value in relation to counts 1 and 2. The respondent does not challenge the judge's conclusion, with which we agree, that if the propensity evidence has significant probative value, it is properly admitted at the trial of counts 1 and 2.[85] Consequently, as explained above, the judge erred in ordering separate trials. The appeal must be allowed and the judge's order for separate trials must be set aside.
[85] Respondent's submissions [7]; appeal ts 38 - 39.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech
14 AUGUST 2019