The State of Western Australia v Keo (pseudonym initials) - [2024] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- KEO (pseudonym initials) [2024] WADC 49
CORAM:   PALMER DCJ
HEARD:   1 - 2 FEBRUARY, 5 MARCH & 16 MAY 2024
DELIVERED          :   13 JUNE 2024
PUBLISHED           :   10 DECEMBER 2024
FILE NO/S:   IND 660 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
KEO (pseudonym initials)

Catchwords:

Evidence - Admissions to police operative - Requirement of recording - Criminal Investigation Act 2006 (WA), s 118, s 155 - Evidence - Section 31A Evidence Act 1906 (WA) - Propensity evidence - Admissibility of prior conviction

Legislation:

Criminal Investigation Act 2006 (WA)
Evidence Act 1906 (WA)

Result:

Rulings made

Representation:

Counsel:

Applicant	:	Ms R J Mitchell (1 - 2 February 2024) & Mr M G Nicol (5 March & 16 May 2024)
Accused	:	Mr A Murad

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Murad Criminal Law

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

Butera v Director of Public Prosecutions (1987) 164 CLR 180
Christos v The Queen [2013] VSCA 202
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Director of Public Prosecutions v Debs and Roberts (Ruling No 4) [2021] VSC 778
Director of Public Prosecutions v Debs and Roberts (Ruling No 5) [2002] VSC 386
DKA v The State of Western Australia [2017] WASCA 44
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
R v Robson [1972] 1 WLR 651
RMD v The State of Western Australia [2017] WASCA 70
Smith v The King [2022] VSCA 268
Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v JHN [2021] WASCA 225
TL v The King [2022] HCA 35; (2022) 275 CLR 83
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

PALMER DCJ:

Introduction

The accused has been charged by indictment of one count of aggravated robbery, one count of indecent assault, two counts of unlawfully impeding normal breathing and one count of sexual penetration.
The State's case against the accused is circumstantial. Identification is likely to be a key issue at trial. This judgement concerns two applications that have been made for pre-trial rulings about the admissibility of evidence that the State intends to tender.
The accused has applied for a ruling about the admissibility of covert audio recordings of the accused made by the police which the State says constitute admissions (the Admissions Admissibility Application).
By way of an application dated 12 June 2023 (the Propensity Evidence Application), the State applies for an order that it be permitted to lead evidence of the conduct of the accused relating to offences to which the accused pleaded guilty and was sentenced in the Perth Children's Court on 26 March 2018. The State submits that this evidence is admissible pursuant to s 31A of the Evidence Act 1906 (WA) (the Evidence Act).

The State's case against the accused

The circumstances of the robbery and sexual assault

The accused is charged with the robbery and sexual assault of a young woman in Charles Treasure Park in Cannington on 23 December 2021. The Amended Statement of Material Facts dated 14 June 2023 sets out the following details in relation to that offence:
(a)in December 2021, the complainant worked at a mini‑golf and ten pin bowling centre at the Carousel Shopping Centre in Cannington;
(b)on the evening of 23 December 2021, she finished work at about 10.45 pm. She was anticipating a ride home from her sister, who often picked her up but her sister was not at the car park. Her phone battery had run out before she finished work;
(c)the complainant decided to walk home. She took the most direct route back to her house, which involved walking down nearby streets until walking through Charles Treasure Park, a park that connects George Way to Mallard Way;
(d)as she reached Charles Treasure Park, she saw someone behind her. She initially thought it was a woman, so she continued walking. She then sensed that the person was walking faster, so she turned around again and noticed that it was in fact a man and that he was running towards her;
(e)the complainant began to run away in fear but the man ran after her and caught her up. He pulled her down by her hair and demanded money from her. She said she was not carrying any;
(f)the man told her to turn out her pockets, which she did. Her iPhone was in her pocket and she gave it to him, pointing out that the battery was flat. At his request, she gave him the phone's PIN;
(g)the man then began to punch the complainant repeatedly in the face while demanding her bag and wallet. She handed him her bag, which did not have much in it;
(h)the man demanded the complainant's earrings, so she took them off to give to him. He began yelling and punching her again, so she also offered him her gold necklace in the hope that it would satisfy him;
(i)while she was struggling with the clasp on the necklace, the man told her she was cute. He then began to grope her breasts on the outside of her jacket;
(j)the complainant - who could not get the clasp open - ripped the chain from her neck in order to quickly give it to the man, but he became angry that she had broken it and punched her to the face again;
(k)the man then reached his hand inside her shirt and under her bra and began to touch her breasts;
(l)the complainant screamed and tried to fight her attacker off and he pulled her head down by the hair and kneed her with full force in the face;
(m)the man got the complainant in a headlock and held her around the neck so tightly that she was struggling to breathe;
(n)she managed to break free from the man and tried to run away but the accused tripped her and she fell down. He then pushed his hand into the rear of her underwear and pushed a finger into the complainant's anus. The complainant continued to try to fight him off;
(o)the man continued to fiddle in the complainant's underwear with his hand as she struggled to get away. She is not sure if he penetrated her vagina;
(p)she felt faint from all the blows to her head but continued to try to escape, crying out in the direction of houses that backed on to the park. The man took hold of the complainant's foot and dragged her towards the lake in the park as she lay on her stomach screaming for help;
(q)as she was being dragged, she managed to roll onto her back and used her free foot to kick the man as hard as she could. She got up and tried to run but once again the man tripped her and she fell. He got on top of her and put his hands around her neck, strangling her and causing her to struggle for breath;
(r)at some point after this, the complainant was able to get up, grab her jacket and a shopping bag she had with her and leave the park. Her handbag was missing and she had lost one of her shoes, which came off while she was kicking the man; and
(s)the complainant managed to get to her home, which was nearby and her sister called the police. Police and ambulance arrived at the complainant's home and she was taken to the Armadale Hospital where she received treatment for her injuries and undertook forensic testing. Her clothing was also seized and sent for testing.

The complainant's description of her assailant

The Prosecution Brief includes a statement that the complainant made to police in which she described the man who attacked her. She described him as indigenous but lighter skinned, under 6‑foot with slim build and longer wavy hair. She said his hair appeared as though it had not been cut in a while and was 'very grown out'.[1] She described at first thinking her assailant was a woman because of her long hair. [2] She did not recall him having facial hair but said that he had bushy eyebrows, long eyelashes and thin lips.[3]
[1] Complainant's statement, par 16.
[2] Complainant's statement, par 13.
[3] Complainant's statement, par 21.
In the same statement, the complainant said that she did not initially remember what he was wearing but said that she was now able to describe his clothing. She described her assailant's shoes as white sneakers or shoes. She said that they were not like 'Van' type shoes, they were more of a runner shoe. She said that they had laces and were large in size.[4]
[4] Complainant's statement, par 17.
The complainant described the pants her assailant was wearing as dark pants, either trousers or jeans that were not super fitted as he was able to move around in them.[5]
[5] Complainant's statement, par 18.
The complainant said that her assailant was wearing a hooded jacket or jumper. She did not recall it having a zip. She recalled that there was a design on the front of his jacket but she did not recall if it was writing, or a picture but she recognised it standing out from the jacket. She said that the arms were a different colour to the rest of the jacket. She said that they were lighter in colour, maybe a light blue. She said, however, that she was not sure if the sleeves or arms were a different colour to the jacket or if the man had put a t-shirt over the top of his jacket making them a different colour. She said that it was dark and everything happened quickly.[6]
[6] Complainant's statement, par 19.
The complainant said that she thought she would recognise the man if she saw him again.[7]
[7] Complainant's statement, par 20.
A composite image of the assailant described by the complainant was prepared.[8]
[8] Prosecution Brief, page 83.
There is nothing in the Prosecution Brief that suggests that the complainant has subsequently been able to identify the accused.

The CCTV footage

The accused was identified by the police from CCTV as being in the area of the incident at the time. He was interviewed on 25 January 2022, and confirmed he was the person depicted in some of the footage, but denied having been in Charles Treasure Park, or having interacted with the complainant.
I have been provided with a copy of CCTV footage obtained by the police which was played during a directions hearing.
The State's case is that this footage shows the accused at the Carousel Shopping Centre as the complainant leaves the centre; looking towards her, and then walking in her direction. The State says the footage records him crossing Cecil Avenue and walking down Pattie Street behind her, approximately one minute behind.[9]
[9] State's Outline of Supplementary Submissions in Relation to Admissibility of Propensity Evidence dated 28 February 2024 (State's Supplementary Propensity Submissions), par 9.
In his record of interview with the police, the accused did not admit to being on Pattie Street.[10] However, the person who can be seen in the CCTV footage appears to be wearing the same clothing as the accused.
[10] Prosecution Brief, page 144.
Pattie Street is about a block away from Charles Treasure Park where the complainant was assaulted. Pattie Street ends on Wharf Street. Wharf Street runs parallel with George Way. There is a block between Wharf Street and George Way. Charles Treasure Park is in the block between George Way and the street that runs parallel with George Way: Mallard Way.
There is a path which runs through the block between Wharf Street and George Way. This path runs through an open grassed area. The path continues on the other side of George Way through to Charles Treasure Park, after crossing George Way.
When the complainant left Pattie Street she seems likely to have turned right onto Wharf Street and then left onto the path I mentioned. She would then have walked through the block between Wharf Street and George Way, crossed George Way and then followed that path to Charles Treasure Park.
There is no footage of the complainant walking on Wharf Street or walking down the path between Wharf Street and George Way, or crossing George Way to get onto the path to Charles Treasure Park.[11]
[11] Complainant's statement, par 10.
The State's case is that later footage shows the accused on Wharf Street outside Anzac House half an hour later (approximately five minutes after the complainant is seen emerging from Charles Treasure Park following the alleged incident) changing into shorts (or at least removing his pants, which appeared to be stained, under which he was already wearing shorts) before walking off in the direction of the Queens Park train station.[12]
[12] State's Supplementary Propensity Submissions, par 10.
The State says that this places the accused in close vicinity of the complainant on the night, consistent with following her and certainly walking in the same direction as her, very shortly before the incident in which she was attacked and then changing out of an apparently stained pair of pants in a nearby location shortly after the incident occurred.[13]

The accused's appearance in the CCTV footage

[13] State's Supplementary Propensity Submissions, par 12.

The CCTV footage includes images taken while the accused was travelling on a train. In these images the accused can be seen quite clearly. While the accused might be described as a lighter skinned indigenous man of slim build, there are a number of respects in which his appearance is different in the CCTV footage to the description given by the complainant.
The accused did not have 'very grown out' longer wavy hair that appeared as though it had not been cut in a while as the complainant described. He had short hair, shaved on the side of the head.
The accused was wearing a black hooded long sleeve top, colloquially known as a 'hoodie'. While the complainant described her assailant as wearing a hooded jacket or jumper, she described that jacket or jumper as having writing or a picture on it and arms of a different lighter colour. The arms of the accused's hoodie did not have different colour arms and no writing or picture could be seen on the front of the jacket or jumper on the train CCTV footage (even though the train was well lit, unlike the park in which the complainant was robbed and assaulted).
The accused was not wearing white sneakers or shoes as the complaint described. His footwear was dark or black.
The accused was not wearing loose dark trousers or jeans. He was wearing light coloured tracksuit pants. They were not tight fitting but they were also not particularly baggy.
The accused was wearing a surgical mask. The accused did not mention the man who attacked her wearing a mask.
The part of the description given which is consistent with the accused's appearance is of a lighter skinned indigenous man of slim build wearing a hoodie. This is a generic description. There may be a significant number of people who might meet this description.
The State acknowledges that some aspects of the complainant's description of the accused are not consistent with his appearance in the CCTV footage. The State says that such inconsistencies could be readily explained on the basis of the highly stressful nature of the incident and do not undermine the State's case on identity.[14]

DNA evidence

[14] State's Supplementary Propensity Submissions, pars 14 - 16.

The State also relies on DNA evidence. The State characterises that evidence as 'limited DNA evidence' which 'linked the accused's DNA profile to two areas of the complainant's jeans'.[15]
[15] State's Outline of Submissions in Relation to Admissibility of Propensity Evidence dated 9 January 2024 (State's Propensity Submissions), par 7.
The State has not yet received the final DNA trial report. The State and accused have agreed to rely on the Forensic Biology Summary of Laboratory Findings (DNA Findings Summary) for the purposes of this application.[16]
[16] Prosecution Brief, pages 55 - 76. State's Supplementary Propensity Submissions, par 17.
The State says that the DNA Findings Summary contains the following results that are probative on the State's case:
(a)on the outside back waistband surfaces of the complainant's jeans:
(i)a mixed DNA profile, which is assumed to have originated from three individuals, was recovered;
(ii)the complainant is an assumed contributor within the mixed profile;
(iii)the DNA evidence is 60 times more likely if the complainant, the accused, and an unknown individual are contributors;
(b)on the outside crotch region of the complainant's jeans:
(i) a mixed DNA profile, which is assumed to have originated from four individuals, was recovered;
(ii) the complainant is an assumed contributor within the mixed profile; and
(iii) the DNA evidence is two times more likely if the complainant, the accused and two other unknown people are contributors.[17]
[17] State's Supplementary Propensity Submissions, par 18.
The State says that the DNA Findings Summary properly observes that statistics in this range have been shown to be associated with non‑contributors and true contributors and therefore the evidentiary value of this finding in isolation is considered to be limited. The State submits that while the findings in isolation may be limited, in a circumstantial case on identity those findings are not to be considered in isolation but rather as part of the overall facts from which the inference of identity is sought to be drawn.[18]
[18] State's Supplementary Propensity Submissions, pars 19 - 20.
The State also acknowledges that the DNA Findings Summary includes another DNA result (from one of the complainant's shoes) which returned a mixed profile consistent that was 40 times more likely for another person (not the accused) to be a contributor and the evidence more likely if the accused were not a contributor to that particular mixed profile.[19]

The accused's conviction in the Children's Court in 2018

[19] State's Supplementary Propensity Submissions, par 21.

On 26 March 2018, the accused pleaded guilty and was sentenced in the Perth Children's Court for a series of offences that he perpetrated on 13 October 2017.
Those offences were three counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent, one count of aggravated indecent assault, one count of aggravated assault with intent to rob, one count of aggravated home burglary and commit offence, and one count of aggravated assault occasioning bodily harm.
I have been provided with a copy of the transcript of the accused's sentencing in the Children's Court. The State summarised[20] the offences as follows:
(a)just before 5.00 am on 13 October 2017, the accused (who was then approximately 15 ½ years old) smashed a window in the living room of the complainant's home and entered. The complainant was an 83-year‑old woman who was not known to the accused;
(b)the accused demanded money from her and when she said she did not have any, he held her down on a futon and then hit her to the head and ears;
(c)the accused pushed his penis into the complainant's mouth before throwing her to the ground. He then pulled off her lower clothing and tried to penetrate her vagina with his penis. When that did not work, he ripped her blouse open and grabbed her breasts. He then dragged her to a bathroom where he ultimately managed to penetrate her vagina with his penis for several minutes. He then put his penis back in her mouth and ejaculated in her mouth; and
(d)the accused then used the showerhead to wash out the complainant's mouth and vagina in an attempt to remove any DNA evidence. He threatened to come back with a knife if she went to the police, before leaving the premises with the complainant's handbag which contained money and personal items. The accused was subsequently identified from his semen which the complainant had spat out onto her bra.
[20] State's Outline of Submissions in Relation to Admissibility of Propensity Evidence dated 9 January 2024, par 12.

The accused was sentence to a total term of 6 years and 4 months' detention backdated to 25 November 2017 and made eligible for parole.

The audio recordings

As part of its case the State will seek to lead evidence that the accused made statements to two undercover police operatives.
There are two sets of recordings. The first concern a conversation that occurred when the accused was in the police lockup on the morning of 25 January 2022 before he was interviewed by police that afternoon. Two police operatives who had been placed into the cell engaged the accused to elicit admissions. The accused had not been charged at this stage.
During that conversation the transcript records the following exchange occurred:[21]
[21] Prosecution Brief, pages 101 - 102.
[ACCUSED]:GBH is grievous bodily harm?
UCO 937:Yeah.
[ACCUSED]:That's what I did.
UCO 937:That's what you did?
[ACCUSED]:Yeah, I did that.
UCO 937:Oh---
[ACCUSED]:1 did bodily harm on - on [indistinct]
UCO 937:Yeah.
[ACCUSED]:The girl---
UCO 937:Yeah.
[ACCUSED]: - - - she's in my way.
UCO 937:Ye - yeah.
[ACCUSED]: But I only pushed her.
UCO 937:Yeah, yeah.
[ACCUSED]: Like, I pushed - I only pushed - I only pushed her on her breasts, like, you know - - -
UCO 937:Yeah, yeah, yeah, yeah .
[ACCUSED]: - - - and she - she targeted me for - like, was trying to target [indistinct] sexual assault shit [indistinct]
UCO 937:Yeah, right, yeah.
UCO 938:[indistinct].
UCO 937:Yeah.
UCO 938:[indistinct].
[ACCUSED]:Yeah, that's [indistinct]
UCO 938:[indistinct] sexual assault [indistinct]
[ACCUSED]:Yeah.
UCO 937:Oh, bro - - -
[ACCUSED]:Yeah, the girl [indistinct]
UCO 937:Oh - - -
[ACCUSED]:- - - because she needed breath.
UCO 937:Oh, mate - - -
[ACCUSED]:[indistinct] like I pushed [indistinct]
UCO 938:You pushed [indistinct]
[ACCUSED]:[indistinct] my mother - - -
UCO 937:Yeah.
[ACCUSED]:[indistinct] the other day.
UCO 937:Yeah.
[ACCUSED]:We were [indistinct] and - - -
UCO 937:Yeah.
[ACCUSED]:- - - we pushed - I pushed her leg and pushed her [indistinct]
UCO 937:Yeah.
[ACCUSED]:[indistinct]
UCO 938:What, in somebody's house?
[ACCUSED]:Yeah, but I did - I didn't do nothing other than [indistinct]
UCO 937:Yeah.
[ACCUSED]:[indistinct] you know.
UCO 938:And she - she started [indistinct]
[ACCUSED]:I just - I pushed her in the wrong spot.
(emphasis added)
Shortly after this exchange the transcript records there was some indistinct conversation including a conversation about makes of cars. Then the transcript records the following conversation:[22]
[22] Prosecution Brief, pages 104 - 105.
UCO 938:How did it turn into GBH?
[ACCUSED]:'Cause she - I pushed her, and then, like - and she [indistinct] and then pushed [indistinct]
UCO 938:But that's it?
[ACCUSED]:Yeah.
…
[ACCUSED]:I just, like, pushed her and that, legit, or she's just playing this bluff.
UCO 937:Yeah.
UCO 938:What happened, she was at - she was just at a house and [indistinct]
[ACCUSED]:They were [indistinct] house, and then that's when [indistinct] like, swearing [indistinct] all the dogs were [indistinct] the car anyway, but that's all [indistinct]
UCO 937:Yeah, yeah.
[ACCUSED]:Yeah, and boom, next minute, that there all happened, and boom - and I pushed her, and I just went to the car, and then she - we left.
(emphasis added)
The transcript records the accused as mentioning hurting the arms of the person he was referring to.[23] The transcript records him as describing her as white and as 20 or 30.[24] He seemed to refer to the female hitting him and trying to grab him and pushing her out of his way.[25]
[23] Prosecution Brief, page 105.
[24] Prosecution Brief, page 107.
[25] Prosecution Brief, page 107.
The transcript records the accused being asked whether he burned the car and he said no.[26] The accused mentions an 18 carat gold chain and some rings.[27]
[26] Prosecution Brief, page 109.
[27] Prosecution Brief, page 110.
The second recording is of a conversation that occurred on 31 January 2022. The accused had been charged by this date. The same two police operatives intercepted the accused in Fremantle and offered him a lift home and the operatives again engaged him in conversation.
The State says that during that trip the accused made a statement about pushing the complainant that was an admission. The State says that the accused said:[28]
But I just, you know, pushed her, yeah.
[28] State's Supplementary Propensity Submissions, par 22.
No such statement is clearly recorded in the transcript of the relevant recordings.
Initially, the State said that this statement was recorded in part of the recording where the transcript reads as follows:
UNIDENTIFIED MALE 1:     Did you get out that night? Or - - -
[ACCUSED]: They [indistinct]
UNIDENTIFIED MALE 1:     No - no, uh, the other night.
[ACCUSED]: Oh, I got out the next, um, next da - da - next day, I think, yeah.
UNIDENTIFIED MALE 1:     Do you have to go to court or anything?
[ACCUSED]: No, I didn't go to court. They just, um, done an interview on me.
UNIDENTIFIED MALE 1:     Oh, they had fuck all then?
[ACCUSED]: Yeah, they had nothing.
UNIDENTIFIED MALE 1:     Oh, good man.
[ACCUSED]: That's - yeah.
UNIDENTIFIED MALE 2:     What did they say to you interview? They - - -
[ACCUSED]: They just asked me all these questions. They're trying to - they - they - they're trying to put it on me. But then they had nothing. I knew they had nothing. Then they tried to, um, they're trying to say, oh, is it, um, my brother? But now they're trying to put it on him.
UNIDENTIFIED MALE 2:     Yeah.
UNIDENTIFIED MALE 1:     Yeah.
[ACCUSED]: The offence. And then, yeah, just [indistinct] they had nothing.
UNIDENTIFIED MALE 2:     Did they tell you what the chick said?
[ACCUSED]: What?
UNIDENTIFIED MALE 2:     Did they tell you what the chick said?
[ACCUSED]: [indistinct] they trying to say that we, um, she's trying to say, no, she trying to do that to her. But they try to, you know?
UNIDENTIFIED MALE 2:     Like for what - yeah.
[ACCUSED]:No, they [indistinct] they trying to say that [indistinct] tried to do that to her.
UNIDENTIFIED MALE 2:     Oh, fuck, bro.
[ACCUSED]: [indistinct] I pushed her [indistinct]
UNIDENTIFIED MALE 2:     Yeah - yeah - yeah - yeah - yeah.
UNIDENTIFIED MALE 1:     Oh, bro, like I said, man, if they got - if they're - at least you now know what they've got on you anyway. So if she, like - - -
UNIDENTIFIED MALE 2:     Did they tell you how bad the injuries were?
[ACCUSED]: Nah.
UNIDENTIFIED MALE 2:     Or how bad she reckons they are?
[ACCUSED]: No, that's just, um, that's just a, um - - -
UNIDENTIFIED MALE 2:     Yeah.
UNIDENTIFIED MALE 1:     Yeah, it's fuck all, bro.
(emphasis added)
It was the words that are recorded as '[indistinct] I pushed her [indistinct]' that the State initially said were the relevant admission (Statement 1).
I have listened to this part of the recording of the conversation repeatedly. The recording is hard to hear because the undercover officers are talking over the accused. What the accused says is indistinct but to the best of my hearing what he seems to say is:
Well maybe, you know, just pushed her… [indistinct].
Significantly, I cannot hear the word 'I' that is recorded in the transcript.
When I raised with the parties that the relevant part of the transcript was indistinct, the State indicated that it also relied on another part of the recording where it said that the accused made the relevant statement.[29] This part of the transcript reads as follows:[30]
[29] ts 173.
[30] Prosecution Brief, page 124.
UNIDENTIFIED MALE 2:     Oh, we - we thought you were talking shit.
[ACCUSED]: What?
UNIDENTIFIED MALE 2:     We thought you were talking shit in the cell.
[ACCUSED]: What [indistinct]
UNIDENTIFIED MALE 2:     Nah.
UNIDENTIFIED MALE 1:     Nah - nah - nah.
UNIDENTIFIED MALE 2:     Nah, when you said, 'Fuck all happened'. Like, you know like they made it sound serious [indistinct]
[ACCUSED]: Yeah, they made it sound that bad.
UNIDENTIFIED MALE 2:     We thought you might have been talking shit.
[ACCUSED]: No.
UNIDENTIFIED MALE 1:     Was she trying to say that you fucked her? Or was she just saying that you fingered her?
[ACCUSED]: No, she's trying to say that I was, you know, trying to get on her. Like, you know, I was trying to say [indistinct]
UNIDENTIFIED MALE 1:     Yeah - yeah - yeah - yeah.
[ACCUSED]:But, nah [indistinct]
UNIDENTIFIED MALE 1:     Yeah. Fucking oath, bro….
(emphasis added)
It is the words that are recorded in the transcript as 'But, nah [indistinct]' which the State now says are also the words 'All I did was pushed her' (Statement 2).[31]
[31] ts 173.
This part of the recording is also difficult to hear but it is of a better quality than the earlier part of the recording. I have also listened to this part of the recording repeatedly and I can hear something similar to the words that the State says are spoken.
The State has indicated that if the recordings were inadmissible because they were ruled too inaudible to be put to the jury (see further below), then it would seek to lead evidence from the undercover police officers for them to say what they could recall the accused saying.
The Prosecution Brief contains a witness statement from one of the officers in which the officer says:[32]
23.He stated that he had been charged for 'fingering the girl and trying to get on top of her' in relation to the sexual assault offences he had spoken to me about in the cell.
24.The accused state that he had only pushed her.
[32] Prosecution Brief, page 48.
The Prosecution Brief contains a witness statement from the other officer in which the officer says:
27.[The accused] explained he had been charged for the offences he initially told us about when we met him at the Watch House.
28.[The accused] denied any sexual offences, stating that he just pushed the victim.

Whether the audio recordings are of a sufficient quality to be understood

The poor quality of the audio recordings

The audio recordings in this case were poor. This is illustrated by the fact that the person who prepared the transcript of the recordings transcribed the parts of the recording that the State now seek to rely upon as being largely indistinct. The poor quality of the recordings raises for consideration whether the recordings are of sufficient quality to go to the jury at all.
Where there are aspects of a recording which are indistinct so as not to yield the full content of the conversation, so that it may need to be played over repeatedly before the conversation can be accurately understood, the court may receive a transcript of the conversation, not as evidence of the conversation, but rather as a means of assisting in the understanding of it. In such a case, the jury must be directed that the purpose of the transcript is not to provide independent evidence of the conversation, but rather to assist the jury to follow and understand it.[33]
[33] Butera v Director of Public Prosecutions (1987) 164 CLR 180, 187 - 188; Director of Public Prosecutions v Debs and Roberts (Ruling No 4) [2021] VSC 778 [5(2)] ‑ [5(3)].
If the quality of the recording is so poor that the jury could not make a fair and reliable assessment of the conversation, or if there is a real risk that the jury might misconstrue the words contained in the recording in a manner that would be unfairly prejudicial to the accused, the recording should not be admitted in evidence.[34] In such a case, it may be necessary to exclude the recording of a conversation where the inaudible parts of it might unfairly affect the meaning attributed to the parts of the recording that are audible.[35]
[34] R v Robson [1972] 1 WLR 651, 656 (Shaw J) (Robson); Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434, 450 ‑ 451 (Young CJ, Crockett & Southwell JJ) (Smith, Ashford & Schevella); Director of Public Prosecutions v Debs andRoberts (Ruling No 5) [2002] VSC 386 [15] ‑ [19] (Cummins J); Christos v The Queen [2013] VSCA 202 [10] (Nettle AJA); Director of Public Prosecutions v Debs and Roberts (Ruling No 4) [5(4)].
[35] Director of Public Prosecutions v Debs and Roberts (Ruling No 5) [19] (Cummins J); Director of Public Prosecutions v Debs and Roberts (Ruling No 4) [5(4)].
In Director of Public Prosecutions v Debs and Roberts (Ruling No 5) Cummins J explained the position in relation to indistinct audio recordings as follows:
12The courts have regularly admitted into evidence recordings which are in part inaudible. Enhancement is now routinely permitted as a court procedure: R v Taylor and R v O'Neill, unreported, 14 December 2001. There the Court of Appeal admitted into evidence a tape recording three quarters of which was said to be unintelligible. Ormiston JA. in paragraph 5 of his judgment said that upon a repeated second or third playing, the recording was 'far more intelligible and more importantly much of the part of the tape which contained the critical admissions or statements .. became relatively easy to pick up.' In other jurisdictions, a similar resolution of initial inaudibility has been adopted. In R v Menzies that was so. Likewise R v Taylor that I have referred to, R v Dellapatrona and Duffield, Krakouer v R and Eastman v R.
13 In R v Smith, Ashford and Schevella the court held at 451 that the question for the trial judge was to decide whether the quality of the tapes was so poor that the jury could not form a fair and reliable assessment of the conversations or that there was a real risk the jury might misconstrue the conversations in a manner which would be unfairly prejudicial to the accused. In that case the court, on the facts before it, concluded that it was open to the trial judge to conclude that the tapes were of sufficient quality to be admitted in evidence.
14 The test for admissibility adopted in Smith, Ashford and Schevella derived from R v Robson and Harris in which Shaw J at 456 stated:
During the course of the evidence and argument on the issue of the admissibility of the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence, their quality was at the least adequate to enable the jury to form a fair and reliable assessment of the conversations which were recorded and that with an appropriate warning, the jury would not be led into an interpretation unjustifiably adverse to the accused.
15 I conclude from the review of that authority that it is a proper function of the trial judge to exclude material which is of insufficient provenance that a jury, properly instructed, could lawfully act upon it in proof of guilt of the crime charged. That is, after all, a basal principle of admissibility of evidence which, in this instance, applies to this material. That is a function that I have exercised in this case.
(footnotes omitted)
I respectfully agree with and adopt Cummins J's observations.

Statement 1

Having listened to the recording of Statement 1 repeatedly, I am not satisfied that the quality of that recording would permit the jury to make a fair and reliable assessment of what was said. What the accused says is very hard to hear. I cannot hear the words that the State says are spoken by the accused. Nor could the person who prepared the transcript.
The quality of the recording is so poor that there is a real risk that the jury might misconstrue the words in a manner that would be unfairly prejudicial to the accused.
It is also significant that the words spoken were spoken in response to a question asking the accused to explain what the complainant had alleged he had done, not what the accused said he did. This context makes it seem less likely that he would have made an admission about what he did and it makes it particularly important that the words spoken are clearly audible to permit them to be properly assessed.
In my view, Statement 1 is too inaudible to be admissible to prove that the accused admitted that he pushed the complainant. As Statement 1 is inaudible, this should not prevent the entire recording being played to the jury to provide context to Statement 2, if required.

Statement 2

I am satisfied that the recording of Statement 2 is sufficiently audible that it might be left to the jury to decide what was said.
While the person who prepared the transcript was unable to hear the words that the State say the accused spoke, I have listened to the tape and I consider that what the accused says is sufficiently audible to fairly go to the jury.
For the purposes of what follows, I have proceeded on the basis that the admission that the State might rely upon is Statement 2.

The Admissions Admissibility Application

The Criminal Investigation Act

The accused objects to the admissibility of the recordings because they were not audiovisually recorded as required by the Criminal Investigation Act 2006 (WA) (Criminal Investigation Act).
Section 118(3) of the Criminal Investigation Act provides that:
On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
Section 118(1) of the Criminal Investigation Act contains the following relevant definitions:
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
…
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
The definition of 'reasonable excuse' is not in terms or effect exclusive. There may be a reasonable excuse that does not fall within any of the paragraphs of the definition.[36]
[36] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [55] (McLure P); [147] (Blaxell J).
Section 155 of the Criminal Investigation Act provides as follows:
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.

The Accused's Submissions

The accused says that the absence of an audiovisual recording means that any admissions are prima facie inadmissible pursuant to s 118(3) of the Criminal Investigation Act. He says that the State has not proven on the balance of probabilities that there is a reasonable excuse for the absence of a recording. Further, the accused contends that the evidence should not be admitted under s 154 of the Criminal Investigation Act.[37]
[37] Defence Submissions on the Admissibility of Non-Audiovisually Recorded Admissions dated 10 January 2024 (Defence Admissions Submissions) par 5; ts 28 - ts 33.

The accused submitted that the discussion that the accused had about pushing someone in the first set of recordings concerned an unrelated incident. The accused said that in context it could be seen that the second set of recordings was a continuation of that discussion in which he was repeating what he said in the first conversation.[38]
[38] ts 28 - ts 29.
The accused submitted that it would be unfair and artificial for the State to rely on only the second set of recordings (as the State was proposing to do). He said that they were in effect a single conversation.[39]
[39] ts 28 - ts 29.
The accused also submitted that if the first set of recordings were to be admitted, there was a risk that the jury might rely on that evidence in an impermissible way to conclude that he was guilty of the offence of which he has been charged because of what he said about these earlier incidents.[40]
[40] ts 29.
The accused said that the fact that the police might use undercover operatives did not excuse the State's failure to audiovisually record the conversations with the accused.[41] He said that any impracticality arose out of the officer's own conduct.[42]
[41] ts 29 - ts 31.
[42] ts 32.
With regard to the provisions of s 155 of the Criminal Investigation Act, the accused said that the 'admissions' have little probative value, particularly when it is understood that they are a repetition of the earlier conversation.[43]

The State's submissions

[43] ts 35.

The State accepted that the statements made by the accused in the first set of admissions were so clearly different to the offending in this case that they cannot be considered an admission to the alleged offending.[44] The State submitted that the second set of recordings contained admissions that the accused made in the context of talking about the specific allegations that were put to him in his record of interview.[45]
[44] State's Supplementary Outline of Submissions in Relation to Admissibility of Admissions to Undercover Police Operatives dated 28 February 2024 (State's Supplementary Admissions Admissibility Submissions), pars 12 - 13.
[45] State's Supplementary Admissions Admissibility Submissions, par 14.
As I have mentioned, the State says that the accused said that 'But I just, you know, pushed her, yeah'. The State submits that the only reasonable inference is that the admission to pushing 'her' is an admission to pushing the complainant, given the context in which the admission was made.[46]
[46] State's Supplementary Admissions Admissibility Submissions, par 14.
The State's primary position was that it did not consider the first recording relevant and did not propose to put it into evidence but would not oppose the accused relying on that evidence if they wished.[47]
[47] State's Supplementary Admissions Admissibility Submissions, pars 52 - 59; ts 93.
With regard to the submissions that the State made that playing the conversation in the lockup might add a layer of unfairness, the State submitted that this could be cured by routine and straightforward directions to the jury regarding the use that can be made of that evidence. It was submitted that this was not a basis to exclude the evidence.[48]
[48] State's Supplementary Admissions Admissibility Submissions, par 59.
The State acknowledged that the suggestions made in the first set of recordings that the accused had been involved in a different offence carried with them a degree of prejudice. The State said, however, that that offence was less serious than the offence for which the accused was to stand trial. It was said that the jury would already hear significant allegations that would carry with them a significant risk of prejudice.[49]
[49] ts 119.
The State submitted that while the conduct of the operatives in impersonating civilians and seeking to ascertain whether the accused would make admissions to them could be described as subterfuge or deceit, there is no legal impediment to police engaging in such conduct and the admissibility of admissions obtained by such conduct have been upheld including at the highest appellate level.[50]
[50] State's Outline of Submissions in Relation to Admissibility of Admissions dated 25 January 2024 (State's Admissions Admissibility Submissions), par 28.
The State submitted that the admission was made when it was not practicable to make an audiovisual recording of it. It was said that the police were operating covertly in an attempt to convince the accused that they were criminals. It was contended that it would not have been practicable in those circumstances for the police to make a satisfactory audiovisual recording, as such a device would have placed their disguise at risk and potentially rendered the entire point of the operation void if the accused were to have seen a camera device.[51]
[51] State's Supplementary Outline of Submissions in Relation to Admissibility of Admissions to Undercover Police Operatives dated 28 February 2024, pars 32 - 33 (State's Supplementary Admissions Admissibility Submissions).
The State relied upon the evidence of Detective Senior Sergeant Horne (see below) and submitted that the court should be satisfied on the balance of probabilities that there is a reasonable excuse for the admissions not being audiovisually recorded. The State submitted that Detective Senior Sergeant Horne established that it was not practicable to make an audiovisual recording and that even if a recording could have been made, there were sound operational reasons why a recording was not made on this occasion.[52]
[52] State's Supplementary Admissions Admissibility Submissions, par 38; ts 100 - ts 108.
The State submitted that if the court was not satisfied that there is a reasonable excuse for the admissions not being audiovisually recorded the court should exercise the discretion under s 155 of the Criminal Investigation Act to admit the admission into evidence.[53]
[53] State's Supplementary Admissions Admissibility Submissions, par 39.
The State submitted that while the admission was not video recorded, it arose in circumstances where:
(a)the seriousness of the contravention of the Criminal Investigation Act in obtaining the evidence was not particularly serious as an audio recording was made of the relevant admission;
(b)the offences in this case that the admission relates to are serious;
(c)although the decision to not audiovisually record was intentional, it was made because of the practical difficulties with use of a video camera in those circumstances. It was said that it was not done to circumvent any fundamental rights of the accused;
(d)the accused had voluntarily spoken with police during his electronically recorded interview conducted on 25 January 2022. The use of the police on 31 January 2022 was therefore not done in order to obtain admissions from an accused who had exercised their right to remain silent; and
(e)the probative value of the evidence was high, where the admission relates to the accused being the person who had a physical altercation with the complainant on the night in question, contrary to his comments to police in his record of interview, that he had not had any contact with a female on the night in question. It was submitted that the evidence of the accused's admission forms an important part of the State case in rebutting the contention that the accused had no contact with the complainant.[54]
[54] State's Supplementary Admissions Admissibility Submissions, par 40.
The State also submitted that it was relevant that the statements made by the accused were voluntary and that there were no public policy reasons to prohibit covert police investigations of the type that occurred here.[55]

The evidence of Detective Senior Sergeant Horne

[55] State's Supplementary Admissions Admissibility Submissions, pars 42 - 75.

As I have mentioned, the State relied upon the evidence of Detective Senior Sergeant Horne regarding whether it was practicable to make an audiovisual recording.
Detective Senior Sergeant Horne is the Officer in Charge of the Undercover Police Unit and has held that position since August 2021.[56] In that role, his duties and responsibilities include, sourcing technical equipment, ensuring a safe workplace for officers, protecting the identity of officers and protecting methodology and technology used in undercover operations.[57]
[56] Statement of Detective Senior Sergeant Horne dated 27 February 2024, par 2 (Horne Statement).
[57] Horne Statement, par 5.
Detective Senior Sergeant Horne says that there are numerous types of covert recording devices available for use ranging from only audio recording capability, some have visual recording capability only and others have both.[58] He says that devices can be concealed on the person, be portable or installed in a vehicle or location. He says that the type of device used will depend on the circumstances of the deployment and is chosen to ensure effective evidence capture but more importantly officer safety and to avoid detection by the suspect.[59]
[58] Horne Statement, par 8.
[59] Horne Statement, pars 10 - 11.
Detective Senior Sergeant Horne says that if the suspect became aware of a covert recording device at the time of deployment it would likely be compromised and the operative placed at risk. He says that the audio devices used by the UPU are easier to conceal than audiovisual devices available and this makes them less susceptible to compromise. He says that audiovisual devices are generally larger than audio devices.[60]
[60] Horne Statement, pars 12 - 14.
Detective Senior Sergeant Horne says that the operative has a significant input into the devices they utilise when deploying. He says that prior to each deployment they conduct a risk assessment around their personal safety, including the devices they use and it is ultimately their decision to deploy or not.[61]
[61] Horne Statement, par 15.
Detective Senior Sergeant Horne says that the disclosure of evidentiary material obtained from a covert audiovisual device will clearly display to others where the device was concealed, either on the operative or another location. He says that the ongoing disclosure of this material will enable covert methodology to become well known and place operatives at risk when deploying. He says that this plays a considerable role in the risk assessment around devices used.[62]
[62] Horne Statement, pars 16 - 18.
Detective Senior Sergeant Horne says that it remains relatively rare for an operative attached to the Western Australian Police Force to deploy with a covert audiovisual device due to fear of compromise.[63] He said that during 2022 audiovisual recording equipment was not routinely installed in covert vehicles for a number of reasons, including, frequency of vehicle replacement, cost of installation, reliability of the devices, risk of compromise to the operative, identifying covert methodology should the material be disclosed and legislative considerations. He said that there are portable covert audiovisual recording devices that can be used in deployments. He said that the use will come done to the specific circumstances of the deployment and a risk assessment around safety of the operative.[64]
[63] Horne Statement, par 19.
[64] Horne Statement, pars 21 - 22.
Detective Senior Sergeant Horne said that he was not physically involved with the deployments of the undercover police in this case.[65]
[65] Horne Statement, par 25.

Whether the Criminal Investigation Act rendered the recordings inadmissible

Whether the State has proved that there was a reasonable excuse

Section 118(3) of the Criminal Investigation Act would only render recordings inadmissible if the State has not proved, on the balance of probabilities, that there is a reasonable excuse for the absence an audiovisual recording.[66]
[66] s 118(3)(b).
The State sought to rely on Detective Senior Sergeant Horne's evidence to prove that there was a reasonable excuse by proving that that it was not practicable to make an audiovisual recording. The definition of reasonable excuse in s 118(1) defines the term to include where it was not practicable to make an audiovisual recording.
The word 'practicable' is relevantly defined in fifth edition of the Shorter Oxford English Dictionary[67] as:
Able to be put into practice; able to be effected, accomplished, or done; feasible.
[67] Shorter Oxford English Dictionary (5^th ed).
Thus, it will not be 'practicable' to make an audiovisual recording where the police are not able to make an audiovisual recording, or it is not feasible to do so.
Detective Senior Sergeant Horne's evidence seemed to be that the police are able to make an audiovisual recordings of covert operations. He said that there are portable covert audiovisual recording devices that can be used in deployments[68] but that the use of such devices remains 'relatively rare'.[69] Even if the use of devices is rare, the fact that the police have used them on the occasions reveals that the police are able to use those devices to audiovisually record covert operations.
[68] Horne Statement, pars 21 - 22.
[69] Horne Statement, par 19.
Counsel for the State drew attention to the fact that the word 'practicable' imports notions of whether or not something is 'feasible'.[70] Counsel for the State submitted that it might be inferred from Detective Senior Sergeant Horne's evidence that it was more likely than not that it was not feasible to record the conversations.[71]
[70] ts 102.
[71] ts 106.
Detective Senior Sergeant Horne gave evidence about the risks to officer safety of using recording equipment (which tends to be larger) and the risk of revealing methodology if the equipment is regularly used.[72] In relation to the use of audiovisual recording equipment in cars, he said that audiovisual recording equipment was not routinely installed in vehicles for a number of reasons, including frequency of vehicle replacement, cost of installation, reliability of the devices, risk of compromise to the operative, identifying covert methodology should the material be disclosed and legislative considerations.[73]
[72] Horne Statement, pars 12 - 18.
[73] Horne Statement, pars 21 - 22.
I am not prepared to infer from Detective Senior Sergeant Horne's evidence that it was not feasible to make an audiovisual recording, however.
Detective Senior Sergeant Horne's evidence did not go as far as saying that the police were never able to audiovisually record covert operations, or that they were unable to do so on this occasion. As I have already said, on the contrary, his reference to the fact that the police have used such equipment covertly previously (even if rarely) reveals that it can be done.
Significantly, it was Detective Senior Sergeant Horne's evidence that the decision about whether to use the equipment was made by the officers involved.[74] No evidence was given by those officers about why audiovisual equipment was not used in the particular circumstances of this case.
[74] Horne Statement, par 15.
Detective Senior Sergeant Horne did not say that he was involved in that decision, or otherwise say that he had personal knowledge of why they made their decision. While his statement mentioned the deployment of the officers in this case, he also said that he was not 'physically involved' with the deployments.[75]
[75] Horne Statement, par 25.
Ultimately, I did not consider that Detective Senior Sergeant Horne's evidence provided a proper basis to draw an inference about why the officers made the decision they did. I was not prepared to assume that they would have followed the same process of reasoning as the Detective Senior Sergeant.
I have also considered whether the matters relied upon by the State might establish a reasonable excuse on the balance of probabilities, even if they do not establish that it was not practicable to make an audiovisual recording. I did not consider that this resulted in any different conclusion about whether there was a reasonable excuse.
This was principally because of the high level of generality at which Detective Senior Sergeant Horne's evidence was expressed. It seemed to me that a more detailed explanation was required to permit me to determine whether the practices adopted by the police provided a reasonable excuse.
I was not satisfied on the evidence that the decision made by the officers in this case was influenced by the considerations identified by Detective Senior Sergeant Horne.
I was also not satisfied that the evidence established that all of the considerations that Detective Senior Sergeant Horne identified as relevant to deciding whether to install audiovisual equipment were reasonable. For example, the Detective Senior Sergeant said that the decision not to install audiovisual equipment in covert vehicles was partly made because of the frequency of vehicle replacement, the cost of installation and the reliability of devices.[76] It seemed to me that the evidence provided did not permit me to properly assess whether these considerations were reasonable.
[76] Horne Statement, par 21.
In all the circumstances, I am not satisfied that the State has proven that it is more likely than not that there is a reasonable excuse for the absence of an audiovisual recording. Therefore, the recording will be inadmissible unless the court decides to admit the evidence under s 155 of the Criminal Investigation Act.

Whether the recordings should be admitted under s 155

Section 155(a) – objection by the accused

Section 155(a) requires me to take into account any objection made by the accused. The accused has objected to the admissibility of the recordings.

Section 155(b) – the seriousness of the offence

Section 155(b) requires me to take into account the seriousness of the offence. The State submits that the offences that the accused is alleged to have committed are serious. I accept this submission.

Section 155(c) – the seriousness of the contravention of the Act

Section 155(c) requires me to take into account the seriousness of the contravention of the Criminal Investigation Act. The State submits that the contravention in this case was not serious because there was an audio recording. I accept this submission.

Section 155(d) – whether the contravention was intentional or mistaken

Section 155(d) requires me to take into account whether the contravention was intentional or mistaken. The State accepted that the decision to not use audiovisual equipment was intentional and not mistaken.

Section 155(e) – the probative value of the evidence

Section 155(e) requires me to take into account the probative value of the evidence. The State submitted that the probative value of the evidence was high because it rebuts the contention that the accused had no contact with the complainant.
I agree that the evidence will have significant probative value.
Identity will be a key issue at trial. While the State's CCTV footage places the accused in the general vicinity of the crime, it does not show the complainant's journey after she left Pattie Street. The footage leaves open the possibility that the complainant encountered someone else after she left Pattie Street, walked down Wharf Street and followed the path across the block between Wharf Street and George Way and into Charles Treasure Park.
That said, the State will be able to rely on the CCTV footage showing the accused on Wharf Street removing his trousers. The jury will need to consider why the accused would have been removing his trousers.
The State has some DNA evidence but it is of limited probative value.
The fact that the attack occurred late at night might suggest that the number of people on the street might be less than during the daytime and make it less likely that the complainant would have met someone else. The absence of witnesses, however, gave someone who was prepared to commit such a crime the opportunity to do so. That could have been someone other than the accused.

Two matters add substance to the possibility that the complainant met someone else. First, there is no evidence that the complainant has been able to identify the accused despite saying that she thought she would be able to do so. Secondly, the description the complainant gave of her assailant differs to the accused appearance on the night in many significant respects.
In this context, evidence that the accused pushed the complainant is highly probative as it would establish that the accused interacted with the complainant sometime after the CCTV footage ceases and before the complainant is seen removing his trousers. The jury might reasonably conclude that this increases the likelihood that the accused was the offender.

Section 155(f) – any other matter the court thinks fit

Section 155(f) requires me to take into account any other matter I consider fit.
As I have mentioned, the accused disputes making any admission. He says that if he made any statement about pushing a woman in the car from Fremantle, such a statement can be seen to be a reference back to the incident he described in the police lockup. Both the accused and the State accept that the incident that the accused described in the police lockup was a different incident.
The State says that the only reasonable inference is that the reference to pushing 'her' in the car from Fremantle is an admission to pushing the complainant. It says that this is so because by the time the accused made the statement in the car from Fremantle, he knew that the offence he was alleged to have committed was the assault on the complainant, not the different offence that the accused described in the police lockup.
Ultimately, it will be a matter for the jury to decide whether anything that was said was an admission or not.
At first, I understood the State's position to be that it would only play the jury the recording in the car from Fremantle and not the recording from the police lockup. Such an approach would deprive the jury of the context necessary to permit it to properly assess whether the statement made by the accused was an admission or not. Unless the jury heard the recording in the police lockup, they would not know that the accused had initially mentioned pushing a woman in the context of describing what the State accepts was a different offence. They would then be deprived of an opportunity to consider whether the accused was referring to that other offence in the car from Fremantle.
If the State had maintained the position that it would only play the jury the recording in the car from Fremantle, then I would have considered that this would have been a factor that made it undesirable to admit the evidence. It seemed to me that it would be undesirable for the evidence of what occurred in the car from Fremantle to be presented to the jury without the jury also being provided with the proper context to assess that evidence (assuming the accused wished the recordings from the police lockup to be played).
I understood the State's position to develop, however, into being that it would play the entire recording if the accused wished. Thus, if the accused wished the recordings from the police lockup to be played, the jury would be provided with the context necessary to properly assess the meaning of what was said in the car from Fremantle.
Although the accused submitted that it was unfair and artificial to play only one set of recordings, he also submitted that if the recording from the police lockup were admitted, there was a risk that the jury might rely on that evidence in an impermissible way to conclude that he was guilty of the present offence because of what he said about the earlier incident.
The State submitted that this could be cured by routine and straightforward directions to the jury regarding the use that can be made of that evidence.
That the accused's comments in the police lockup seem to be an admission of another offence makes it less desirable to admit the evidence. I have taken this into account. As the State submits, it seems to me that the risk of impermissible reasoning could be addressed by an appropriate direction.

Conclusion

Ultimately, having considered all of the relevant matters, it seems to me that the desirability of admitting the evidence outweighs the undesirability of doing so.
The offence with which the accused has been charged is undoubtably serious. The likely custodial sentence that could be imposed if the accused was convicted suggests that there is a public interest in ensuring that the Criminal Investigation Act is complied with during any investigation. On the other hand, the seriousness of the offence also suggests that there is a public interest in all the evidence being put before the jury (provided this can be done fairly).
In this case, even though the contravention of the Criminal Investigation Act was deliberate and not mistaken, the contravention was not serious. The evidence has significant probative value. It does not seem to me that there would be any unfairness in admitting the evidence which could not be addressed by an appropriate direction.

Other issues concerning the admissions

The evidence before me initially suggested that the accused made the first set of statements in the lockup before he was cautioned. [77] This called into question whether the accused had been afforded his rights under the Criminal Investigation Act. It subsequently became apparent, however, that the accused was cautioned when he was arrested and afforded his rights under the Criminal Investigation Act.[78]
[77] ts 14, ts 17.
[78] ts 89 - ts 90.
The submissions made by the prosecution addressed the voluntariness of the admissions made. Counsel for the accused submitted that the accused’s application concerned s 118 of the Criminal Investigation Act, not the voluntariness of the admissions.[79] In such circumstances I do not propose to address the voluntariness of the admissions.
[79] ts 98.

Section 31A of the Evidence Act

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;
…
(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.

Whether the evidence has significant probative value

The relevant principles

The established principles relevant to the determination of whether tendency evidence has significant probative value were summarised by Beech J (as he then was) in RMD v The State of Western Australia[80] as follows:
[80] RMD v The State of Western Australia [2017] WASCA 70 [185]. This summary was drawn from a joint judgment of the Court of Appeal in DKA v The State of Western Australia [2017] WASCA 44.
(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 a 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)
In The State of Western Australia v Jackson,[81] the Court of Appeal made four additional points:
[81] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] - [23].
20First, 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.
21Secondly, 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.
22Thirdly, 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'. 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.
23Fourthly, 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.
(footnotes omitted)
The accused referred to the decision of Steytler P in Dair v The State of Western Australia.[82] That case has some similarities to the present case. Identity was in issue in Dair. Four witnesses had given differing descriptions of the offender and none of them had been able to positively identify the offender.[83] In addition to evidence from these witnesses, the State had relied upon statements said to be admissions[84] and evidence of the accused convictions for similar offences.[85]
[82] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 (Dair).
[83] Dair [7].
[84] Dair [15] - [21], [30] - [33].
[85] Dair [22] - [23].
The trial judge in Dair admitted evidence of the accused's prior convictions for similar offences as propensity evidence. One of the reasons that that evidence had been said to be relevant was because it lent support to the proposition that the person identified by witnesses as being 'similar' to the offender was in fact the offender. It was contended that because the accused had a tendency to steal cars and violently resist arrest, this placed him in a class of people who are more likely than others to have committed an offence of the kind charged. It was said that this added strength to the tentative identification of him by a number of witnesses.[86]
[86] Dair [68].
Steytler P said that while it was not in dispute that the prior conviction evidence might be relevant for this purpose, whether such evidence had 'significant probative value', was a more difficult question.[87] He observed that:[88]
Had the evidence stood on its own, I very much doubt that it could, to any significant extent, rationally have affected the assessment of the probability that the appellant was the man who had broken into Mr Yap's car and subsequently stabbed Constable Giocas. Experience reveals that there are many criminals who steal cars and subsequently attempt to evade arrest, if pursued. The fact that the appellant was one of these (and it is not suggested that there is anything unique about his modus operandi) did little to establish that he committed the present offence. As I have said, what it did was include him in a class of persons who were more likely than others to have committed an offence of this kind. However, given that the class very probably encompasses a large number of people, that, of itself, could not carry a great deal of weight.
The fact that the appellant, when challenged, had a tendency to resort to violence made it more likely that he was the offender. However, the class of car thieves who are prepared to use violence to evade arrest, while smaller than the first class to which I have referred, may nonetheless consist of a sufficient number of people to render that evidence, taken on its own, of limited value. Importantly, the violent means used by the appellant had never encompassed a stabbing, or even the infliction of grievous bodily harm, and, although he had previously brandished a knife, this had happened on only one occasion.
Nevertheless, it was significant, in the context of this case, that the witnesses had picked out (albeit tentatively) a man who belonged to the smaller class to which I have referred. The fact that the appellant was a member of this class made it more likely that these witnesses had picked out the right man. It seems to me that the propensity evidence consequently had significant probative value.
[87] Dair [69].
[88] Dair [70] - [72].
In Hughes v The Queen[89] Kiefel CJ, Bell, Keane and Edelman JJ suggested that where identity is in issue the probative value of tendency evidence may depend upon whether there is close similarity between the conduct evidencing the tendency and the offence. They said:
The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
[89] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [39] (Hughes).
In TL v The King[90] Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ said that the remarks in Hughes concerned the situation where there is little or no evidence of identity. They said:
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of 'significant probative value'. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.
The majority's observation in Hughes as to the general requirement for 'close similarity' where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is 'at large'. In this case, there was important evidence of identity, including the evidence that the appellant was one of only three persons who had the opportunity to inflict the fatal injuries and the evidence pointing against the likelihood that either the mother or the nephew was the perpetrator. In the face of this important evidence, it could not be assumed that 'close similarity' between the conduct evidencing the tendency and the offence was required to meet the threshold of significant probative value.
(footnotes omitted, emphasis added)
[90] TL v The King [2022] HCA 35; (2022) 275 CLR 83 [29] - [30].
This aspect of the High Court's reasoning in TL v The King was applied by the Court of Appeal of the Supreme Court of Victoria in Smith v The King.[91] In that case the Court of Appeal considered that evidence that placed the accused in the vicinity of the place where the offences occurred was 'compelling evidence of identity' so that a 'close similarity' was not required.[92]

The State's submissions

[91] Smith v The King [2022] VSCA 268.

[92] Smith v The King [47].

The State says that the evidence of the accused's prior conviction is capable of establishing a tendency on the part of the accused to:
(a)demand property from a vulnerable, lone woman (who is a stranger to him) in the hours of darkness;
(b)then punch that woman in the head;
(c)then sexually-assault that woman (including to grab her breasts and to sexually penetrate her) in a sustained manner involving ongoing violence to the woman during the sexual assault and immediately thereafter; and
(d)then leave with her property.[93]
[93] State's Propensity Submissions, par 22.
The State submits that the propensity has strong factual parallels to the allegations made against the accused in the current prosecution.[94] It says that the propensity is unusual (in the sense that a reasonable jury might properly conclude that relatively few people in the community would be prepared to engage in conduct of such a nature) and specific (in the sense that the features of the tendency are clearly, and not broadly, defined).[95]
[94] State's Propensity Submissions, par 23.
[95] State's Propensity Submissions, par 24.
The State acknowledges that there are differences between the conduct the subject of the prior convictions and the conduct the subject of the current indictment but maintains that those differences do not undermine the probative value of the alleged tendency.[96] The State submits that those differences could readily be explained by the fact that the incident the subject of the current charges occurred in a public area, where the alleged perpetrator could have been disturbed at any time.[97]
[96] State's Propensity Submissions, par 25.
[97] State's Propensity Submissions, par 26.

The State says that the probative force of the propensity evidence is also not reduced by the four-year time period between the prior convictions and the current allegations. It draws attention to the fact that the accused was serving a custodial sentence for more than three of those years.[98]
[98] State's Propensity Submissions, par 27.
The State contends that the differing ages between the two complainants is an irrelevant factor. It says that there is no evidence that the accused intentionally targeted the complainant in the matter for which he was convicted because of her age. It submits that both the matter for which the accused was convicted and the present charges were crimes of opportunity.[99]
[99] State's Propensity Submissions, par 28.
The State contends that the propensity evidence would have strong probative value in two ways.[100]
[100] State's Propensity Submissions, pars 29, 32.
First, the State says that the propensity evidence would be relevant to the question of identity. The State submits that this evidence (together with the other evidence relied upon by the State) would permit a jury to consider that it would be highly unlikely for there to be two unrelated people in the close vicinity of the complainant at the time of the incident who were prepared to behave in a manner consistent with the accused's tendency.[101]
[101] State's Propensity Submissions, par 30.
Secondly, the State says that the evidence would be relevant to the question of whether the alleged conduct occurred. It was submitted that if the jury was satisfied that the alleged perpetrator was the accused, then his proven tendency to engage in conduct of a very similar nature to that which is alleged would be highly relevant to a jury's assessment of whether he had indeed acted in the way described by the present complainant.[102]

The Accused's submissions

[102] State's Propensity Submissions, par 31.

The accused submits that the State has very little evidence to establish the identity of the attacker. It says that any DNA evidence linking the accused's DNA profile to the complainant's jeans can be explained by way of adventitious or coincidental inclusion.[103]
[103] Defence Submissions on the Admissibility of Propensity Evidence dated 24 January 2024 (Defence Propensity Submissions), par 5.
The accused submits that given that there is little evidence to establish the identity of the accused the State must establish a close similarity between the prior conduct and the charged conduct. The accused submits that such a close similarity is absent here.[104]
[104] Defence Propensity Submissions, par 8.
The accused contends that the prior conduct involved a string of home burglaries (committed when the accused was a juvenile) involving an attack on an elderly victim including continuous penile penetration of her mouth and vagina which resulted in ejaculation. The accused draws attention to the fact that the prior conduct also involved persistent efforts by him to remove any evidence that may help establish his identity.[105]
[105] Defence Propensity Submissions, par 8.
The accused says that the current charges involve an attack on a much younger woman in a public setting and does not involve any penile penetration, notwithstanding that it was a prolonged attack.[106]
[106] Defence Propensity Submissions, par 9.
The accused acknowledges that both attacks were on women and involved violent and sexual offending but contends that there was no unique modus operandi that would distinguish either attack from other similar violent and sexual attacks on women. The accused says that similar cases are regularly before the courts.[107]
[107] Defence Propensity Submissions, par 10.
The accused accepts that the propensity evidence might have some probative value but submits that it falls short of having significant probative value.[108] The accused contends that the tendency the prior conduct is said to prove is a tendency to rob and sexually assault women. It is submitted that there a large number of people who might have such a propensity, so the propensity lacks probative value.[109]

Whether the evidence is capable of proving the alleged propensity

[108] Defence Propensity Submissions, pars 11 - 12.

[109] Defence Propensity Submissions, par 13.

First, it is necessary for me to consider whether the evidence is capable of proving the alleged propensity.
I am satisfied that the evidence of the accused's prior conviction is capable of proving this tendency. The sentencing remarks provided to me establish that the accused has been convicted of a prior offence which had each of the features that the State says in combination are the relevant propensity.

Whether there is substantial probative value

Next, it is necessary for me to consider whether proof of the propensity increases the likelihood of the commission of the offences so that it has significant probative value.
The State says the tendency evidence would have significant probative value in relation to the question of identity and whether the offences occurred. I will consider each in turn.

Identity

The State's case that the accused was the perpetrator is circumstantial. It relies on a number of pieces of evidence that it alleges are sufficient in combination to establish the accused's identity beyond reasonable doubt: the CCTV footage, the alleged admission, the complainant's description of the offender and the DNA evidence.
The accused's propensity is an additional piece of evidence that the jury might rationally take into account in considering whether the accused was the perpetrator. As the State submits, the jury might reasonably conclude that the accused was one of relatively few people in the community who would be prepared to perpetrate the crime with which the accused has been charged. That the accused is a member of such a class is a matter that might rationally affect the jury's consideration of whether the accused was the offender.
The accused accepts that the propensity evidence might have some probative value but submits that that probative value falls short of being significant. He contends that the tendency the prior conduct is said to prove is really a tendency to rob and sexually assault women and there are a large number of people who might have such a propensity. The accused submits this is not a case in which the propensity evidence establishes that the accused has a particular modus operandi.
It is true that although the tendency relied upon is expressed reasonably specifically, the tendency revealed is one that might be exhibited by many people in the class of people who would be prepared to commit the crime of which the accused has been charged. That there may be other members of that class, however, does not rob the propensity evidence of its probative value.
The significance of the probative value of the propensity evidence needs to be assessed in the context of the State's circumstantial case on identity. The accused meets some of the aspects of the description given by the complainant. The CCTV footage places the accused in the vicinity and shows him removing his trousers at a time after the complainant was assaulted by someone. The State will rely on the statement made by the accused about pushing someone which the State will say was the complainant. The State will also rely on the DNA evidence.
That the complainant was in the class of people who would be prepared to commit the crime with which the accused has been charged, is an additional matter that could rationally lead the jury to more readily be satisfied that the matters I have already mentioned established that the accused was the perpetrator beyond reasonable doubt. It seems to me that in this context, the propensity evidence has significant probative value in relation to the issue of identity.

Whether the offences occurred

The State also says that the evidence would be relevant to the question of whether the alleged conduct occurred. The State contended that if the jury were satisfied that the alleged perpetrator was the accused, then his proven tendency to engage in conduct of a very similar nature to that which is alleged would be highly relevant to a jury's assessment of whether he had indeed acted in the way described by the present complainant.
In some cases propensity evidence can have significant probative value to the assessment of whether the offences occurred. This is particularly so where the complainant is a child.
It is not apparent to me that this is such a case, however. While the propensity evidence might have some probative value in establishing that the offences occurred, it does not seem to me that that probative value would be significant.
The State will need to prove that the offences occurred beyond reasonable doubt and will need to rely on the complainant's evidence to prove this. This will involve the jury needing to assess the complainant's credibility.
It is not apparent to me why the jury would be likely to doubt that the offences occurred as the complainant described. There is no suggestion that the complainant had a diminished capacity to appreciate the events that occurred, or to recall those events. Nor is her evidence inherently implausible, or unbelievable.
Given that identity is in issue, it seems unlikely that the accused will give evidence that he was in Charles Treasure Park. It therefore seems unlikely that the jury will be presented with conflicting accounts of what transpired.
Nor is this a case in which the propensity evidence reveals a unique modus operandi which might meaningfully corroborate the complainant's account.
In this context, it does not seem to me that the propensity evidence would have significant probative value to the jury in assessment whether the offence occurred.

Whether fair-minded people would think the admission of the evidence is in the public interest

The relevant principles

In The State of Western Australia v JHN[110] the Court of Appeal endorsed the following observations made by Steytler P in Dair[111] regarding the operation of s 31A(2)(b) of the Evidence Act:
… First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their 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 a comparison of these issues. Although fair minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson.
In Dair [63], Steytler P accepted the statement by G Flatman QC and Dr M Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 ALJ 190, 199, that possible sources of prejudice that might be occasioned by the admission of propensity evidence at a criminal trial include:
(a)the jury might believe that the accused is guilty merely because he was a person likely to do the charged acts;
(b)the jury might tend to condemn the accused, not because he or she is guilty of the charged offence, but because the accused has escaped punishment for other offences; and
(c)the jury might become confused or distracted from deciding whether the accused is guilty of the charged offence because of the jury's concentration upon resolving whether the accused committed the acts the subject of the propensity evidence.
[110] The State of Western Australia v JHN [2021] WASCA 225 [119] - [120].
[111] Dair [59].
In Dair Steytler P explained why the admission of the evidence regarding the accused's prior convictions had a high prejudicial value as follows:[112]
That brings me to the degree of risk of an unfair trial. There is no doubt that the evidence of the commission of other offences by the appellant had a high prejudicial value. Although admissible for propensity purposes, there was a risk that the jury would over-estimate the value of the evidence and reason that, because the appellant had committed offences of a somewhat similar kind in the past, he must have been the person who committed the present offence, more especially in circumstances in which there was evidence that he looked like the offender. Alternatively, they may have thought that, because the appellant, who looked like the offender, was a member of a class of persons likely to commit crimes of this kind, they were relieved of their obligation to closely examine the other evidence against him. Further, the evidence of other criminal conduct may have caused them to be biased against the appellant.
[112] Dair [73].
With regard to comparing the probative value of the evidence with the risk of unfairness, Steytler P thought that:[113]
Although I accept that the propensity evidence lent significant support to the evidence of those who had been unable to make any positive identification of the appellant, I am unable to accept that it lent substantial support to that evidence. Even though the witnesses had tentatively identified the appellant as having a similar appearance or similar characteristics to the offender, that fact (weakened by the inaccurate and inconsistent descriptions given by the witnesses), taken together with his membership of the smaller class to which I have referred, fell well short of establishing his guilt. The witnesses still could not say that he was the man that they had seen. There may well have been others in the class, or a new member of the class, who looked like the offender.
[113] Dair [75].
Steytler P did not consider the prior conviction evidence leant any substantial support to the evidence of the witness who said that the accused had made admissions. He reasoned that if that witness's evidence was accepted the prior conviction evidence was unnecessary and if the witness's evidence was rejected, the propensity evidence was insufficient to establish the accused's guilt when considered with all of the other evidence.[114] He did not consider that this could be guarded against by a direction.[115]

The State's submissions

[114] Dair [78].

[115] Dair [79].

The State accepts that evidence of the prior convictions would involve the potential risk of some prejudice against the accused amongst members of the jury, given that those prior convictions involved significant and serious violent and sexual offending against a vulnerable woman. It says, however, that the nature of the current allegations, involve a number of the same potentially-prejudicial features. It is contended that the additional risk of prejudice from the prior convictions is relatively small.[116]
[116] State's Propensity Submissions, pars 33 - 34.
The State submits that there is no reason to think that a jury would be so overcome by the prior convictions that they would be unable to apply a routine direction as to the use to which the evidence could be put, or be unable to judge the case objectively and dispassionately.[117]

The Accused's submissions

[117] State's Propensity Submissions, par 35.

The accused submits that even if it were to be accepted that the propensity evidence is of significant probative value, the evidence does not pass the fair-minded people test and the prejudicial effect of the evidence cannot be cured by any direction to the jury.[118]
[118] Defence Propensity Submissions, par 14.
The accused submits that the facts of the prior convictions of the accused are very serious and disturbing and that they are, arguably, more serious than the facts of the current case in that they involved an attack on an elderly woman in the privacy of her own home.[119] He contends that there is a real risk that the jury will conclude that he must be guilty of the current allegations as he is a person likely to commit such acts or as punishment for his previous conduct.[120] The accused says that the jury is likely to uncritically overvalue the probative effect of the evidence and conclude that the accused must have committed the offences charged as he is a person who has previously committed arguably more serious, but similar offences.[121]
[119] Defence Propensity Submissions, par 16.
[120] Defence Propensity Submissions, pars 17 - 18.
[121] Defence Propensity Submissions, par 19.
The accused accepts that the trial judge will direct the jury as to the permissible and impermissible use of the prior conviction evidence, but it is contended that this is unlikely to temper, to any meaningful degree, the prejudicial effect of the evidence.[122]
[122] Defence Propensity Submissions, par 20.
The accused submits that in a case such as this; where there is little evidence establishing the identity of the accused, fair-minded people would conclude that the public interest in adducing the evidence of the accused's prior convictions should not have priority over the risk of an unfair trial.[123]

Consideration

[123] Defence Propensity Submissions, par 21.

The starting point in the exercise that I must undertake for the purposes of s 31A(2)(a) is for me to consider the probative value of the evidence.
As I have said, the probative value of the evidence is that the class of people with the accused's tendency is sufficiently small to make membership of that class have some probative value. That the accused is a member of such a class is a matter that might rationally affect the jury's consideration of whether the State's circumstantial case was sufficient to establish beyond reasonable doubt that the accused was the person who committed the offence.
Next, it is necessary to identify the relevant risk of an unfair trial.
The details of the accused's previous conviction for sexually assaulting an elderly lady are confronting. As the accused submits, there is a real risk that if the jury are informed of all of those details, they might take an adverse view of the accused and conclude that he must be guilty of the current allegations either because he is a person likely to commit such acts, or that he should receive further punishment for his prior offence.
The State indicated that if it were given leave to rely upon the propensity evidence, it would work in good faith to agree the details that would be put before the jury with the accused lawyers. The State has indicated that the fact that the woman was assaulted was elderly is not part of its case and it would not press for the jury to be told this.[124]
[124] ts 145 - ts 146.
It seems to me that the prejudicial effect of the propensity evidence would be lessened if the details of the offending were limited to those essential to the State's propensity case.
Even if this was done however, there would remain a risk that the jury might employ a method of reasoning that a fair-minded person would consider unfair.
As in Dair, these risks are accentuated by the fact that evidence of other criminal conduct may cause the jury to be biased against the accused.[125]
[125] Dair [73].
The question is then whether any potential unfairness could adequately be guarded against by a direction. Fair-minded people would conclude that the public interest in adducing evidence should not have priority over the risk of unfairness unless the potential unfairness could adequately be guarded against by a direction from the trial judge.[126]
[126] Dair [78].
Provided that the details of the offending were limited to those essential to the State's propensity case, it seems to me that the prejudicial value of the propensity evidence is not so great that it could not be addressed by an appropriate direction.

The jury could be directed that they cannot reason that the accused must have been the person who committed the present offence because he had committed offences of a somewhat similar kind in the past. They could also be directed that they could not reason that because the accused looked like the offender and was a member of a class of persons likely to commit crimes of this kind, they were relieved of their obligation to closely examine the other evidence against him.
Although Steytler P reached a different conclusion in Dair, the probative value of the propensity evidence in this case is different to that case. The State's circumstantial case in this case is stronger than in Dair. In Dair, the State relied on weak identification evidence to place the accused in the vicinity. In this case the State can rely on CCTV footage.
When the probative value of the of propensity evidence is understood in the context of the State's circumstantial case, it seems to me that a fair‑minded person would conclude that the risk that the jury might employ and unfair process of reasoning is not so high that it could not be managed by a direction.
It therefore seems to me that in this case 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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
11 JUNE 2024