The State of Western Australia v JMB - [2021] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JMB [2021] WADC 9
CORAM:   BOWDEN DCJ
HEARD:   21 JANUARY 2021
DELIVERED          :   9 FEBRUARY 2021
FILE NO/S:   IND 1171 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JMB
AND
LMB

Catchwords:

Section 31A Evidence Act 1906 (WA) - Admissibility of propensity evidence - Prior sexual offences committed whilst a juvenile - Possessing or accessing child exploitation material - Sexualised comments - Evidence not of significant probative value

Legislation:

Evidence Act 1906 (WA)

Result:

Evidence ruled inadmissible

Representation:

Counsel:

The State of Western Australia	:	Ms K A Gregory
First Accused	:	Mr P Dixon
Second Accused	:	Mr P Dixon

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	Paul Dixon
Second Accused	:	Paul Dixon

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

APC v The State of Western Australia [2012] WASCA 159
DKA v The State of Western Australia [2019] WASCA 123
Hughes v The Queen [2017] HCA 20
Mansell v The State of Western Australia [2009] WASCA 140
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
R v Hess [2008] QCA 48
RMD v The State of Western Australia [2017] WASCA 70
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v WCM [2014] WASCA 38

BOWDEN DCJ:

The accused is charged with 21 sexual offences allegedly committed against his four daughters between March 2012 and March 2018.
Counts 1 to 13 were allegedly committed against SB, Counts 14 to 16 against RB, counts 17 to 20 against EB, and count 21 against AB.
At the time of the alleged offending his daughters were between 2 and 3 years of age to 8 or 9 years of age and Mr JMB was between 24 and 29 years of age.
Count 1 alleges that when Mr JMB was 24 years of age and SB was 4 years of age he rubbed her buttocks and rubbed the outside of her vagina (count 2) and then licked her vagina (count 3).
Count 4 alleges that when Mr JMB was 25 years of age and SB was 6 years of age, she reported to her mother that she had been sexually abused. Mr JMB denied the sexual abuse and after SB's mother left the premises, told SB to suck his penis which she did, and reprimanded her by saying 'you shouldn't have told our secret'.
Count 5 alleges that when Mr JMB was 28 to 29 years of age and SB was between 8 and 9 years of age, Mr JMB took her to the bedroom, threw her on the bed and told her to suck his 'doodle' or he would slap her. He forced her head up and down on his penis forcing her to perform fellatio.
Count 6 alleges when Mr JMB was 28 years of age and SB was 9 years of age they were in SB's bedroom with EB when Mr JMB told SB to touch his penis whereupon she rubbed his penis.
Count 7 is alleged to have occurred when SB was 8 to 9 years of age and Mr JMB was 28 to 29 years of age and they were in the shower with EB and RB. Mr JMB told SB to suck his 'doodle' and she did so whilst he forced her head up and down on his penis saying 'yes do it, do it.'
Count 8 alleges that Mr JMB was with SB in the backyard when he told her to suck his penis, she refused whereupon Mr JMB forced her head up and down on his penis saying 'do it, do it keep doing it'.
Count 9 alleges that when SB was 8 or 9 years of age and Mr JMB was 28 or 29 years of age they were in the bathroom when he pulled her pants down. SB told him to stop but Mr JMB did not so she slapped him. Mr JMB then rubbed the outside of SB's vagina with his hand, rubbed her buttocks (count 10), squeezed her breasts (count 11), squeezed her buttocks again (count 12), licked her vagina and performed cunnilingus on her (count 13).
Count 14 alleges that when RB was 4 years of age and Mr JMB was 26 years of age they were in AB's bedroom with EB. Mr JMB told RB to suck his penis which she did and then he made EB who was 4 years of age suck his penis which is the allegation in count 17.
Count 15 alleges that just before RB's 6th birthday, Mr JMB, then 26 years of age, RB and EB were in the garage and he told RB to suck his penis. She initially refused but he forced her to do so by pulling her hair and using his hand to push her head down onto his penis. Mr JMB then forced EB who was 5 years of age to suck his penis (Count 19) and made the two girls take turns sucking his penis.
Count 16 alleges that Mr JMB, who was 28 or 29 years of age, was with RB, EB, SB and AB in the shower and he told RB to suck his penis and forced her to do so and then made each of the other girls suck his penis. Count 20 relates to EB who was 6 years of age sucking his penis. Count 21 relates to AB who was 2 or 3 years of age sucking his penis.
Count 18 alleges that when EB was 6 years of age and Mr JMB was 28 years of age, the two of them were with SB and RB in SB's bedroom. Mr JMB told EB to touch his penis and she rubbed his penis. SB and RB then took turns rubbing Mr JMB's penis with their hands.
As can be seen eight of the counts allege an indecent dealing with a child who was a lineal relative and 13 counts allege knowingly sexually penetrating a child who is a lineal relative.

The evidence the State seek to lead

The State seek to lead three categories of evidence.
Firstly, prior convictions of Mr JMB. Secondly, Mr JMB's alleged possession of child exploitation material and, thirdly, his alleged sexualised comments about teenage girls in school uniforms.
As to the first category, the State seek to lead evidence of both the fact of conviction and the facts behind the conviction of Mr JMB on two counts of knowingly sexual penetrating a child under the age of 16 who was his lineal relative.
The victim in that offending was his sister, T. The first offence occurred between March 2001 and March 2002 when Mr JMB was aged between 12 years 4 months and 13 years 4 months. His sister was 10 or 11 years of age. Mr JMB and his sister, T, were in the bathroom, another sister KV was present and Mr JMB told T that if she sucked his dick he would give her bubblegum. T then performed fellatio.
The second offence occurred between 1 November 2004 and 1 November 2005 when Mr JMB was aged between 15 years 11 months to 16 years 11 months and his sister, T, was aged 14 or 15 years of age. This relates to T performing fellatio on Mr JMB in the shed.
As to the second category of evidence, the possession of the child exploitation material, the State wish to lead evidence from Mr H who is an acquaintance of Mr JMB who says he borrowed a laptop from Mr JMB and his wife Mrs LMB.
Mr H said that the laptop had a folder called 'new movies'. That folder contained hundreds of images of men with naked children, girls and boys, between 4 to 9 years of age being orally, vaginally and anally penetrated by adult men. After he saw these images he rang Mrs LMB and abused her. About an hour later Mr JMB and Mrs LMB came to his house where he confronted them about the laptop and 'they said that the laptop belonged to Mr JMB's father'.
The third category of evidence the State wish to lead is evidence from Mr H that he remembered an occasion when Mr JMB made some inappropriate comments about teenage girls that were walking home in their school uniform and said he would like to take them home and have sex with them. Mr H does not say when these comments were made.

Section 31A Evidence Act

Section 31A of the Evidence Act 1906 (WA) reads:
(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.

Is the proposed evidence propensity evidence?

Propensity evidence has a broad connotation. It includes evidence of the conduct of the accused person and evidence of a tendency that the accused person has or had.
The word 'conduct' refers to the manner in which an accused person behaves or had behaved. The word 'tendency' refers to an inclination or disposition or a pre‑disposition an accused has.
Each of the three categories of evidence sought to be led is propensity evidence, at the very least, as all three categories are evidence of the conduct of Mr JMB. The proposed evidence also qualifies as relationship evidence as it is evidence of the attitude or conduct of Mr JMB towards a class of persons (adolescent females) over a period of time.

Significant probative value

The principles relating to whether proposed evidence has significant probative value were recently summarised in RMD v The State of Western Australia [2017] WASCA 70.
Briefly, they can be summarised as follows:
1.The evidence is to be taken at its highest from the prosecution's point of view.
2.The evidence is not to be considered in isolation but to be considered with other evidence.
3.To have significant probative value the court must reach a conclusion 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.
4.Significant in this context means evidence of importance or of consequence.
5.Whether the probative value of the proposed propensity evidence is significant depends upon the nature of the fact in issue to which it is relevant and the significance or importance to which the proposed propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
6.If the proposed propensity evidence is at a high level of generality, that 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 proposed propensity evidence will have significant probative value.
7.The nature and extent of any similarity between the conduct the subject of the proposed propensity evidence and the conduct the subject of the offences on the indictment, is relevant to whether the evidence has significant probative value.
8.In making an assessment of the probative value of the proposed propensity evidence, the court must determine the extent to which the evidence is capable of proving the propensity and whether the proof of that propensity increases the likelihood of the commission of the offence which, in turn, requires the identification of the purpose for which the proposed propensity evidence is admitted.
9.Even where propensity evidence is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail to determine whether, by itself or having regard to other evidence, it still can properly be characterised as having significant probative value.

The first category – Mr JMB's prior sexual conduct with his sister

The State's submissions

The State says the live issue at trial is likely to be whether each of the charged offences actually occurred.
The State says that the prior sexual conduct of Mr JMB with his sister shows he has a propensity and tendency to sexually penetrate, by fellatio, young girls who are related to him.
The State acknowledged that APC v The State of Western Australia [2012] WASCA 159 is a case factually similar that resulted in evidence of a similar nature being excluded as it was not considered to have significant probative value.
The State says that Mr JMB's prior sexual conduct with his sister shows a longstanding abnormal sexual interest in young children in his own family and a preparedness to act on that propensity.
The State says that APC can be distinguished because the type of offending against Mr JMB's sister is the same as 11 of the 21 counts currently before the court, whereas in APC the offending involved in the propensity evidence was different to the charged offences. The State says that there is striking similarities as 11 of the counts (4, 5, 7, 8, 14, 15, 16, 17, 19, 20 and 21) relate to fellatio and the prior sexual conduct with Mr JMB's sister involved fellatio.
Further, the State submits that APC involved a case of sexual impropriety against both male and female family members whereas Mr JMB is only accused of sexually assaulting young girls in his family. The State say this shows that Mr JMB is very specific about the alleged victims and not as varied in his choice of victim as in APC.
In addition, the State say that the lapse of time between Mr JMB offending against his sister and the charged offences is not as large as the lapse of time in APC. In APC the lapse of time between the alleged propensity evidence and the charged offences was between 13 to 18 years, in this case the lapse of time is between 7 and 12 years.
The State also refer to The State of Western Australia v WCM [2014] WASCA 38. In that case the evidence adduced by the State was found to be capable of showing that from the age of 14, and on a regular and consistent basis until he was 34, WCM had a sexual interest in young girls that were part of his extended family group and he acted on that interest. Mazza JA said that was significantly probative of the charges which were offences of indecently dealing, carnal knowledge, gross indecency and sexual penetration committed against children.

The defence submissions

The defence say the factual similarities between this case and APC are so similar that APCis authority for the proposition that the evidence should be ruled inadmissible. The defence say that the matters relied upon by the State as distinguishing factual features between APC and this case are not of such importance as to be capable of distinguishing APC.
The defence say that Mr JMB's case bears far more similarities with APC than with WCM's case.
The defence point out that at the time of committing the offences against his sister there was no significant age disparity between Mr JMB and his sister. Mr JMB being aged from 12 years and 4 months to 16 years and 11 months and his sister was 2 years younger. Whereas at the time of the alleged offending, Mr JMB was between 24 and 29 years of age and the victims were aged between 2 and 9 years of age.

Conclusion on admissibility of the evidence of Mr JMB's prior sexual conduct with his sister

APC was charged with 28 counts of mainly sexual offending against three of his natural children and a de facto child. The offending related to approximately 16 instances over a total of 8 years. The victims were aged between 7 and 15 years of age.
Two of APC's younger siblings gave evidence of sexual acts committed by APC against them.
P, APC's younger sister by three years, gave evidence of incidents of penile/vaginal sex, mutual touching of a sexual nature and of an occasion when APC asked her for sex.
APC's brother M, who is 7 years younger than APC, gave evidence that he had been anally raped by APC on a number of occasions.
The State led the evidence of P and M to show that APC had a sexual interest in young children with whom he had a familiar relationship.
Martin CJ agreed with Mazza JA in finding that P and M's evidence did not have significant probative value and was inadmissible.
Mazza JA noted that at the time of the first incident involving P, APC was 10 nearly 11 years of age. The last incident occurred when he was 16 years of age. The incidents relating to M allegedly occurred when APC was around 14 years of age.
Mazza JA accepted that the evidence showed that APC had a sexual attraction towards children in his own family. His Honour concluded that the evidence was inadmissible as it lacked significant probative value. His Honour stated:
There is a material difference between a sexual interest directed towards a person's sibling when a child and a sexual interest in that person's own children or stepchildren as an adult. While it might be tempting as an intuitive exercise, to reason that a person is more likely to have a sexual interest in his own children or stepchildren if that same person had, as a child, a sexual interest in their sibling it is not something which a jury can judge from its own experience. Nor was there any evidence, expert or otherwise, to enable the jury to conclude that sexual activity between adolescent siblings is a common or significant characteristic of the antecedent of those who, as adults, sexually abuse their own children. Evidence of that kind will be necessary before a jury could reasonably conclude that the evidence of P and M made it more likely that the appellant was guilty of sexually abusing his children. In the absence of evidence of that kind it can't be concluded that the evidence of P and M was probative of the appellant's guilt let alone significantly probative of that guilt.
A child aged in the range between 10 and 16 years most significantly at the younger end of that range, cannot be expected to have developed the same sense of moral responsibility as an adult. Decisions and actions made as a child are ordinarily viewed, in a moral sense, differently from those made by an adult of 29 years as the appellant was when he allegedly committed the offending the subject matter of the appeal.
Whilst I accept that there are some factual differences between APC and the case before me, the whole reason the State are endeavouring to adduce this evidence is to encourage the jury to reason that Mr JMB is more likely to have a sexual interest in his own children because he had, as a child, a sexual interest in his siblings.
APC is authority for the proposition that this is not something that a jury can judge from its own experience. As in APC there is no evidence, expert or otherwise, that would enable a jury to conclude that sexual activity between adolescent siblings is a common or significant characteristic of the antecedence of those who, as adults, sexually abuse their own children. In APC it was clearly recognised that evidence of that kind would be necessary before a jury could reasonably conclude that the evidence of acts against T make it more likely that Mr JMB was guilty of sexually abusing his children as charged.
In The State of Western Australia vWCM the appeal court was dealing with the issue of whether the indictment should have been severed. WCM was charged with 34 counts of sexual offending. The evidence showed that WCM had a continuous sexual interest in young children from when he was aged 14 to the age of 31. It was alleged he had committed sexual offences against children virtually continuously over that period.
Mazza JA stated at [53]:
I hold to what I said in APC. What differentiates the present case from APC is that in this case, unlike APC, the evidence to be adduced by the State is capable of showing that, from the age of 14 and on a regular and consistent basis until he was 31, the respondent had a sexual interest in young children who were part of his extended family group and that he acted on that interest. As such, it is significantly probative in the proof of counts 9 to 34 and vice versa.

The gap between APC's alleged offending as a juvenile and recommencing the offending as an adult was approximately 13 years. In WCM the gap was approximately 18 months. In the case at hand it is approximately 8 to 9 years.
I agree with the submission from Mr Dixon that Mr JMB's case is more similar to APC than WCM's.
In my view, in the absence of evidence of that kind referred to by Mazza JA in APC, it cannot be concluded that the evidence relating to Mr JMB's sexual conduct with his sister T was significantly probative of Mr JMB's guilt.
At the very highest for the State the evidence has probative value however, in the absence of expert or other evidence referred to in APC, the evidence would not have significant probative value either alone or in conjunction with other admissible evidence and I would therefore rule it inadmissible.

The second category - child exploitation material

The State's submissions

The State say that Mr JMB's possession of child exploitation material which portrayed children the same age as his daughters engaged in fellatio with adult males shows that he has a propensity or interest to engage in fellatio with young girls, and the evidence therefore is significantly probative.

The defence submissions

The defence say that Mr H's statement is incapable of proving Mr JMB possessed child exploitation material. They say that Mr H's statement does not establish that Mr JMB had sole use of the laptop, nor that he had any knowledge of the child exploitation material that may have been stored on the laptop. Therefore the defence says the probative value of his evidence is low because it does not appear capable of establishing that the accused possessed the child exploitation material.

Conclusion on admissibility of the evidence of child exploitation material

To prove the propensity the State seek to establish the evidence of Mr H ,taken at its highest , must be such that an inference can be drawn that Mr JMB either solely or jointly possessed or accessed the computer knowing or believing that there was a significant or real chance that it contained child exploitation material .
If Mr JMB was totally unaware of the existence of the material, he could not be in possession of child exploitation material or be said to have accessed a computer containing child exploitation material.
At its very highest the evidence establishes that Mr H asked Mr JMB and his wife to borrow their computer and they delivered a computer to him. Mr H says that the computer contained child exploitation material. Mr H notified Mr JMB and his wife. They came and collected the computer.
At its highest Mr H’s evidence would enable an inference to be drawn that the laptop computer was in Mr JMB's joint possession and that it in fact had child exploitation material on it. As a matter of law those primary facts do not enable an inference to be drawn that Mr JMB knew or believed that there was a significant or real chance that the computer contained child exploitation material.
There is no evidence that Mr JMB did anything other than deliver and collect the computer. No forensic evidence or other evidence shows he ever used the computer for any purpose.
In the absence of any evidence showing that Mr JMB used or accessed the computer, be that forensic evidence or otherwise, the evidence of Mr H is not capable of establishing that Mr JMB was aware or believed there was a significant or real chance that the computer contained child exploitation material . Therefore it cannot form the basis from which the propensity can be drawn and the evidence is inadmissible.
If I am wrong in this conclusion and Mr H's evidence is capable of establishing that Mr JMB possessed child exploitation material or had access to a computer containing the child exploitation material with the appropriate knowledge or believe I will address the question of whether the child exploitation material would be admissible.
Of importance in considering the admissibility of the child exploitation material is that eight counts allege that Mr JMB indecently dealt with a child complainant. Counts 1, 10 and 12 relate to an indecent dealing by touching the buttocks, counts 2 and 9 by touching the vagina, counts 6 and 18 by procuring the victim to masturbate himself and count 11 by touching of the breasts.
In this regard it must be noted that one of the elements the State must prove on the indecent dealing charges involving an actual touching is that there was a deliberate touching and that the deliberate touching has a sexual character. In this regard the intended purpose of the touching is a factor to be considered in deciding whether it has a sexual character. Therefore, Mr JMB's state of mind at the time of the alleged touching is relevant.
Significantly no admissions have been made by Mr JMB. The State are entitled to treat the question of whether any touching may have been innocent or accidental rather than deliberate and sexually motivated as a live issue.
If formal admissions as to the 'indecency' of any touching proven by the State to have occurred are later made the issue may have to be revisited however at this stage no formal admissions have been made and indecency is an issue.
The admissibility, as propensity evidence, of child exploitation material in trials involving offences alleging actual sexual physical contact with complainants has been the subject of a number of recent appeal court decisions.
In TheState of Western Australia v Jackson [2019] WASCA 118, Mr Jackson was charged with indecently dealing with two 12‑year‑old girls he did not know by touching their buttocks as he past them in a supermarket aisle. He was also charged on the same indictment with possessing child pornography, being pictures of prepubescent girls posing in bathers or underwear.
The appeal court was dealing with an appeal against the decision to order separate trials and was required to determine whether the evidence of the child pornography charges was admissible under s 31A on the indecent dealing charges.
Applying the rational of the High Court decision in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 the court held that the child pornography evidence did not have significant probative value for the purpose of proving that the accused in fact touched the girls on the buttocks in the supermarket aisle, but did have significant probative value for the purpose of proving that any independently established touching was deliberately and sexually motivated and thus, indecent.
In MNA v The State of Western Australia [2020] WASCA 84, MNA was charged with four counts of indecently dealing against two female complainants. He was convicted on two counts and acquitted of another two.
At the trial evidence of MNA's prior conviction for using an electronic communications with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity, was admitted as s 31A propensity evidence. On two occasions MNA chatted on social media sites with a person purporting to be a 13 year old girl who was, in fact, a police officer. In the course of those conversations MNA asked questions about the child's underwear, vagina and breasts and her sexual experiences.
The appeal court noted that the issue was open as to whether some inadvertent touching of the vagina, which was not sexually motivated, may have accidently occurred in the course of horseplay. The indecent character of the touching was an issue in relation to both charges the subject of the appeal.
As in The State of Western Australia vJackson, the appeal court held that if actual contact was proved by other admissible evidence MNA's sexual interest in children, as shown by the conversations, made it more likely to a significant extent that if contact occurred it was deliberate and sexually motivated as opposed to innocent or accidental. Thus, the evidence had significant probative value and was admissible for the purpose of evaluating whether that contact was deliberate and sexually motivated as opposed to innocent or accidental.
MNA followed Jackson in ruling that the evidence was not admissible for the purpose of proving the alleged physical contact occurred.
I have also considered the suppressed judgment of [2020] WASCA 121. In the following 10 paragraphs, which I suppress from publication until that judgment is published, I distinguish that case, for the reasons herein stated.
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[2020] WASCA 121, suppressed, does not alter my conclusion that the possession of the fellatio images shows that Mr JMB has a sexual interest in young females but that does not establish a tendency to engage in fellatio or other sex acts with his daughters. The fellatio images lacks significant probative value in establishing that the offending occurred.
In this case the charged offending involves actual physical sexual acts against the accused's daughters. Some of the child exploitation material involves the children being anally or vaginal penetration some of the material shows images of fellatio. It involves persons other than the complainants. Mr JMB's possession or access to child exploitation material did not involve touching any child, nor did it involve the level of brazenness as demonstrated by the indecent dealing and sexual penetrations, the subject of the charges, many of which allegedly occurred in the presence of other children.
There is a lack of similarity between the conduct in possessing or having access to child exploitation material even though some of it contains images of fellatio and the conduct, the subject of the charged acts, all of which involve physical interaction with his children either by sexual penetration or indecent dealing with them.
The significant difference in the nature of the acts distinguish the child exploitation material from the charged offences. The images of anal and vaginal penetration completely lack relevance and cannot support the tendency the state seek to establish.
The fact that some of the child exploitation material involved photographs of fellatio (the fellatio images) with young girls, and Mr JMB is charged with acts of actual fellatio with his young daughters, certainly means that those images has probative value in relation to the charged offences involving fellatio.
The fellatio images are capable of establishing that Mr JMB has a sexual interest in persons of the same class as the complainant's and is also capable of establishing that he has a sexual interest in fellatio being performed on persons of the same class as the complainants however that does not establish a tendency to engage in fellatio or other sex acts with his daughters. It is not of significant probative value in determining whether the complainants' account of the accused's conduct occurred whether it related to fellatio or otherwise and lacks significant probative value in establishing that the offending occurred.
As Jackson and MNA establish the mere fact that an accused has a sexual interest in persons of the same class as a complainant, is not usually of significant probative value in determining whether a complainant's account of the accused's conduct is true. As McPhillamy v The Queen and Hughes v The Queen [2017] HCA 20 demonstrate it is the accused's sexual interest in children, together with the accused's tendency to act on that interest, which generally provide the significant probative value.
Where 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 alleged offending which serves to link the two together.
The propensity the State seek to establish in this case is that Mr JMB has a tendency to sexually penetrate young girls especially by forcing them to engage in fellatio with him. The possession of child exploitation material showing acts of fellatio on unknown children does not provide a sufficient link to a tendency to actually physically engaging in fellatio with his own children and therefore lacks significant probative value. The linking or common feature between the fellatio images and the offending, as required by R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846; Jackson is not established.
The difference between the act of possessing, accessing or viewing the fellatio images is fundamentally different from the act of physically penetrating, by fellatio, or touching children. This deprives the evidence of significant probative value. The possession or access of fellatio images does not establish a tendency to engage in fellatio or other sexual acts with young girls let alone his own daughters.
The fellatio images would not therefore have significant probative value on the issue of whether Mr JMB performed fellatio on or otherwise sexually penetrated or dealt with the complainants, as alleged.
However, if the jury were satisfied that he did physically deal with the complainants as alleged, then the propensity evidence has significant probative value in relation to whether the touching or dealing may have been innocent or accidental rather than deliberate and sexually motivated, and therefore has relevance in relation to the counts of indecent dealing.
The fellatio images would still have no relevance in relation to the counts of sexual penetration because, once satisfied beyond reasonable doubt that the penetration occurred, the offence is established and no question of the accused's state of mind is involved, whereas in the counts relating to indecent dealing the accused's state of mind can be relevant to the question of indecency.
As in Jackson and MNA the child exploitation material is not able to be considered by the jury in relation to determining whether the touching, as alleged in the indecent dealings occurred, or whether the sexual penetrations occurred.
However if the jury were satisfied by other evidence that Mr JMB did physically deal with the complainants as alleged, and satisfied that the child exploitation material establishes that he had a sexual interest in young girls and that interest existed at a time contemporaneous with the count then being considered, that sexual interest could be taken into account in determining whether the touchings were deliberate and indecent.
For reasons previously expressed I rule that Mr H evidence relating to the child exploitation material is inadmissible.

The third category - Do the sexual comments have significant probative value?

The State's submissions

The State says that this evidence establishes that the accused has a propensity and tendency to sexually penetrate young girls especially by forcing them to engage in fellatio with him. In a more generalised way they say the evidence demonstrates the accused has a sexual predilection towards young girls.
In particular the State rely on the fact that the girls being talked about were dressed in school uniform, and Mr JMB's alleged remark that 'he would like to have sex with them'.

The defence submissions

The defence say that the charges relate to sexual offending against his pre‑teen daughters who were aged from 2 to 9 at the time of the offence and taking the State's case at its highest, the conversations about teenage girls in school uniforms which could include girls aged 16 years or older who are capable of having consensual sexual activity.
The defence say the evidence is not probative of any issue in the trial.

Conclusion as to the sexualised comments

In my view the evidence is inadmissible.
Firstly, Mr JMB's alleged comment about teenage girls that were walking home in their school uniform and his desire to have sex with them does not show any propensity or tendency to sexually penetrate young girls by forcing them to engage in fellatio or any other sexual acts with him.
The alleged conduct sought to be adduced in evidence was a verbal interaction relating to teenage school girls who were unknown to him. The conduct did not involve any physical activity such as indecent dealing or sexual penetration of any child. The girls the accused is alleged to have sexually offended against were between 2 and 9 years of age and were his daughters.
The evidence lacks any probative value R v Hess [2008] QCA 48. Even if the comments had some relevance, they would not reach the point of being significantly probative of whether any touching or penetration of the complainants occurred.
In relation to the more generalised submission that evidence demonstrates he has a sexual predilection towards young girls. The authority of Jackson, MNA and McPhillamy shows that the mere fact that an accused has a sexual interest in persons in the same class as a complainant is not usually of significant probative value in determining whether a complainant's account of the accused's conduct is true. It is the tendency to act on that interest which generally provides the significant probative value.
The evidence taken either alone or in combination with other evidence does not have any probative value, let alone significant probative value, in relation to whether or not the touching or sexual penetrations of Mr JMB's daughters occurred or whether, if the touching are shown by independent evidence to have occurred, the touching had a sexual character and I therefore rule the evidence inadmissible.

The fair-minded test

I have found that all three categories of evidence lacks significant probative value. In relation to the second category I concluded that if I am wrong in my conclusion, the second category of evidence only has significant probative value in relation to the fellatio images and in relation to the indecent dealing charges.
It is necessary therefore to consider the fair‑minded test in relation to that conclusion and in case I be in error in relation to my other rulings.
Fair‑minded people are reasonable members of the general community who are not lawyers, however it must be assumed that such people have informed themselves of at least the most basic consideration relevant to arriving at a conclusion founded on a fair understanding of all the relevant facts.
It is recognised that the weighing process is a difficult one as it requires weighing things that are incommensurable in the framework of the construct of a hypothetical or fair‑minded person.
In DKA v The State of Western Australia [2019] WASCA 123 reference was made to a number of facts as being relevant to the fair‑minded test.
Firstly, the court is required to assess the degree of risk of unfairness at trial that would be occasioned by the admission of the evidence in question.
Secondly, when assessing the risk the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice and the likely effect on the jury.
Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair‑minded people would draw from the comparison of the issues.
In this case the defence say there is a danger that the jury will be side‑tracked in determining whether the accused was in possession or had access to a computer that contained the child exploitation material and be distracted from the task of deciding whether Mr JMB is guilty of the charges on the indictment. I reject that submission.
The defence are also concerned that there is a danger that as the child exploitation material shows images of fellatio occurring with young girls, and the accused is charged with acts of fellatio against his young daughters of an approximate of the girls shown in the child exploitation material, the jury may think that the evidence is admissible as to whether or not the acts of fellatio occurred. The jury would be directed not to reason this way.
As both Jackson and MNA show such evidence can be admissible to showing the sexual interest of the accused and his state of mind after other independent evidence establishes that the physical act occurred.

The risk that the proposed evidence will be misused is generally that a jury may have a strong tendency to believe that the accused is guilty of some or all of the charged offences because they will reason that he is the person likely to do such acts because of the evidence that he possessed or had access to a computer containing images of young girls performing fellatio.
There is also a risk that the jury could become confused or distracted as a result of the child exploitation material and convict Mr JMB because the jury disapproved of his conduct in possessing or accessing the child exploitation material.
The jury can be instructed in the proper use of the evidence and the risk of evidence misuse could be overcome by jury direction about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39]; Jackson; MNA.
It is accepted that the jury will accept and faithfully apply the directions of a trial judge: Mansell v The State of Western Australia [2009] WASCA 140 [49].
In the event that the evidence had significant probative value, to not lead the evidence would mean the jury would be considering the issue of innocent or accidental touching of the complainants in a vacuum.
Fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority of the risk of an unfair trial.
For the above reasons I rule that the three categories of evidence are inadmissible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
9 FEBRUARY 2021