The State of Western Australia v Osborne
[2007] WASCA 183
•5 SEPTEMBER 2007
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | THE STATE OF WESTERN AUSTRALIA -v- OSBORNE [2007] WASCA 183 |
| CORAM | : WHEELER JA |
PULLIN JA MILLER JA
| HEARD | : | 2 MAY 2007 |
| DELIVERED | : | 5 SEPTEMBER 2007 |
| FILE NO/S | : | CACR 4 of 2007 |
| BETWEEN | : | THE STATE OF WESTERN AUSTRALIA Appellant |
| AND | ||
| BRIAN ALBERT OSBORNE Respondent | ||
| ON APPEAL FROM: | ||
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : MULLER DCJ | ||
| File No |
| ||
| Catchwords: |
Criminal law - Criminal procedure - Separate trials - Propensity evidence -
Turns on own facts
[2007] WASCA 183
Legislation:
Criminal Procedure Act 2004 (WA), s 133, cl 7(3) of Sch 1
Evidence Act 1906 (WA), s 31A
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Ms C Barbagallo |
| Respondent | : | Mr S D Freitag |
Solicitors:
| Appellant | : | State Director of Public Prosecutions |
| Respondent | : | Simon Freitag |
Case(s) referred to in judgment(s):
De Jesus v The Queen (1986) 61 ALJR 1
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31
WAR 122
Hoch v The Queen (1988) 165 CLR 292
Pfennig v The Queen (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Lockyer (1996) 89 A Crim R 457
R v O'Keefe [2000] 1 Qd R 564
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
[2007] WASCA 183
WHEELER JA
WHEELER JA: This is a State appeal from a decision of a District Court Judge ordering separate trials in relation to two offences, one concerning an alleged sexual penetration without consent of L, and the other alleging sexual penetration without consent of M.
2 It is necessary to set out briefly the evidence proposed to be given in
relation to each offence. The State case in each case, as I understand it, consists of the evidence of the respective complainants, and a videotaped record of interview with the respondent.
3 So far as L is concerned, he was at the relevant time 47 years of age.
He was married and living in Halls Creek. The respondent, a nurse, was staying in quarters with single rooms, and a communal kitchen and lounge room. The complainant and his wife invited the respondent and another couple for dinner to their house. The other couple left. The complainant went to bed, having consumed five cans of beer and being unaffected by alcohol, leaving the respondent and his wife sitting outside drinking. Some time later, he woke to find the respondent in his bed sucking his penis. He told the respondent to leave, went out to the back patio and found his wife "passed out in a chair". He took her back to bed, the respondent went into the spare room, and there was no further conversation about the incident.
4 So far as M is concerned, he was 44 years of age and living in
Northam. About two weeks after the events described by L, he was sitting on his verandah with the young man with whom he shares a house, when the respondent walked past. The respondent told him that he had just come into town and would be starting work in the next few days at the hospital. During the course of that afternoon and evening, there was some socialising involving the complainant, his housemate, the respondent and another man the respondent had met. The next night, at about 9.30 pm, the respondent came to the house with "a few drinks". He, the complainant, the complainant's housemate and the housemate's girlfriend all chatted for a time, and some alcohol was consumed. The respondent asked if he could stay because it was too cold to walk home. The housemate and his girlfriend were sleeping in the lounge room, and the only remaining room was in the complainant's bedroom, so a mattress was put on the floor for the respondent. Each of the complainant and the respondent went separately to bed, and the complainant said that the next thing he noticed was that he felt a pain in his anus. He ran and told his housemate what had happened and his housemate told the respondent to leave.
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WHEELER JA
5 So far as the complainant M was concerned, the respondent's account
in the videotaped record of interview, although not entirely clear, seems to have been to broadly the following effect. He said that the complainant had indicated to him that he was interested in sex with the respondent, but that they would have to pretend for the sake of his housemate and the housemate's girlfriend, that the respondent was sleeping on the mattress on the floor. The respondent and the complainant went to bed and engaged in some consensual sexual contact. So far as one can tell, the respondent's account was that it did not involve any anal penetration; rather, the complainant sucked the respondent's penis, there was some other contact, neither of them ejaculated and the respondent then fell asleep. When the respondent woke, he found the housemate screaming at him to leave the house. He said that he was very drunk and would not have been able to have an erection for that reason. In relation to the question of whether there had been any digital penetration of the complainant by him, his response initially was, "I don't think so", but shortly thereafter he was adamant that that had not occurred.
6 So far as the complainant L was concerned, the respondent's account
of what occurred with him is somewhat less clear. He asserted a number of times that the complainant had shown him the complainant's genital piercings at a fairly early stage of the evening. He said that later the complainant had gone to bed, affected by alcohol. He had gone to wake the complainant to tell him that the complainant's wife was passed out drunk on the verandah and that the complainant should bring her in. As to what actually occurred, however, the respondent said a number of different things, including: "He was up for it and I went for it and we both went for it"; "The sex happened when I went to wake him up"; "[W]e kissed and then, yeah, little bit more"; and that he and the complainant had "[k]issed and cuddled", but that was all.
7 It can be seen, then, that although the respondent agrees that there
was some sort of sexual encounter between himself and each of the complainants, there are in relation to each of the counts a number of facts in issue, which could be broadly categorised in the following way:
• whether the complainant, in each case, was asleep at the time at which the sexual contact occurred or began; • exactly what form the sexual encounter took - that is, whether as described by the respective complainants, or the fairly mild sexual touching that seems to be the respondent's account; and
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• certain important facts leading up to the sexual encounter, including whether L had shown the respondent any genital piercings, and whether M had had a conversation with him about the mattress of the kind alleged by the respondent. 8 His Honour found that the alleged offences formed part of a series of
offences of similar character, for the purpose of cl 7(3) of Sch 1 of the Criminal Procedure Act 2004 (WA). Although the respondent had put this question in issue before his Honour, he does not assert, in this appeal, that his Honour's conclusion was incorrect.
9 The discretion to sever the indictment pursuant to s 133 of the
Criminal Procedure Act 2004 was based upon his Honour's conclusions in relation to two issues. First, he held that there was a risk of prejudice to the respondent if, on the trial of one count, evidence were admitted of the other. Second, he held that the evidence of one count was inadmissible in relation to the other, pursuant to s 31A of the Evidence Act 1906 (WA). Only the second of these conclusions is in issue.
10 The proper interpretation of s 31A of the Evidence Act 1906 and the associated reforms to s 585 of the Criminal Code (now s 133 Criminal Procedure Act 2004) has been dealt with in this Court on a number of occasions, particularly in the cases of Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 and VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
In summary, the various reforms were, relevantly, designed to alter the existing law by:
• eliminating the principle enunciated in De Jesus v The Queen (1986) 61 ALJR 1 and reaffirmed in Hoch v The Queen (1988) 165 CLR 292 that, if evidence on one count is inadmissible on another, a direction to the jury would not overcome the prejudice to the accused in having the charges heard together, and that they should be tried separately; • altering the principle that in admitting propensity evidence, a judge must ask "whether there is a rational view of the evidence that is consistent with the innocence of the accused" (Pfennig v The Queen (1995) 182 CLR 461 at 483), substituting instead the test formulated by McHugh J in Pfennig at 528. 12 It is accepted, as I understand it, that the evidence in this case is
"propensity evidence", in the sense of being evidence of a tendency which the accused person has or had. The critical question seems to be whether
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the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have "significant probative value". If it has, a question arises of evaluating any possible prejudice to the fair trial of the respondent against the public interest in admitting the evidence.
13 The State, relying on the analysis of the expression "significant
probative value" by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457, submits that "significant" means "important" or "of consequence". That analysis is not challenged by the respondent.
14 It is therefore convenient for present purposes to consider first the
probative value of the evidence, and then the question of what risk is posed by the admission of that evidence. The respondent raises two issues, both of them, as I understand it, arising from Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, in connection with the first of those issues. Before I deal with those matters, however, I analyse the probative value of the evidence by reference to general principle apart from that case, and then turn to consider whether Phillips requires that the task be approached in a different way.
15 The State characterises the relevant facts as being that, within a short
space of time, the respondent committed sexual offences on two men. The two men were in roughly the same age group; were known socially to the respondent (one, however, was known longer than the other); that in each case the respondent and the complainant had been drinking together; in each case the complainants went to bed alone; and in each case the complainants woke to find that the respondent either was or apparently had very recently been sexually assaulting them. It is submitted, and I do not understand it to be contested by the respondent, that because the two complainants lived such vast distances apart and were not known to each other, there was no possibility either of concoction or of any other similar cause which arose from the circumstances of the complainants.
16 In the present case, critical issues which the jury will have to
consider would appear to include whether either or both of the complainants was or were so affected by alcohol as to be mistaken in what he believed to have occurred; whether either of the complainants was in fact asleep at the time at which the respondent performed a sexual act upon him; whether the respondent believed that the complainants, or either of them, was consenting to a sexual act of some kind; whether the pain felt by M was attributable to sexual penetration or to some other cause; and, of course, whether certain facts recounted by the complainants occurred at all. In those circumstances, were either complainant to be
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considered in isolation, a jury might well consider that it was a reasonable possibility that the complainant had, in fact, consented to some sexual encounter, but had untruthfully claimed that he was asleep (and therefore plainly not consenting) out of embarrassment or some other motive. Alternatively, a jury might consider it a reasonable possibility that one complainant, in isolation, was more intoxicated then he alleged, and had mistakenly recalled the events which had occurred. A jury might well have a doubt about the cause of the pain felt by M.
17 However, a jury considering the two accounts together might
consider that it would be a startling coincidence if two men, not known to each other, alleged within a very short space of time that the respondent had, after each complainant had gone to bed, invited himself into the complainant's bed and sexually assaulted that complainant while the complainant was sleeping. The jury might consider it unlikely that both complainants were so intoxicated that they failed to recall accurately what had occurred and they might logically consider that it was perhaps possible that the respondent had been mistaken on one occasion, but certainly not both. The sexual behaviour with L might assist in drawing an inference about the pain M experienced.
18 The respondent submits that the evidence of the complainants is of
such very different acts that the evidence of one can have no conceivable relevance to the question of whether the respondent offended against the other. In that connection, it is submitted that oral sex and anal penetration are different acts, as plainly they are. However, it is, I think, open to us to take notice of the fact that when people seek sexual gratification, they do not do so in precisely the same way on every occasion. There is plainly a range of different types of acts which will be engaged in by a person, during the course of a sexual encounter, or during the course of a number of sexual encounters. It does not seem to me that the two acts alleged are such that one could logically conclude that a person who engaged in one would not engage in the other. Rather, both appear to me to be appropriately characterised as features of the ordinary sexual contact which one might find in a sexual encounter between men.
19 For the reasons which I have outlined, it would be my view that there
is significant probative force in the evidence of one complainant in relation to the offence alleged against the other. The fact that there are only two such complainants means that the probative force is not as strong as might otherwise have been the case. A jury may conclude that the possibility of coincidence cannot be entirely excluded, in the way in which it might be excluded had there been more than two accounts
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WHEELER JA
demonstrating underlying unity of this kind. Nevertheless, the possibility of coincidence seems most unlikely, so that I would conclude that, for the purposes of s 31A(2)(a) of the Evidence Act 1906, the evidence of each has "significant probative value".
20 The question would then arise of making a value judgment about the
probative value of that evidence compared to the degree of risk of an unfair trial. However, before I turn to that, it is convenient to deal with the submissions which arise in relation to the case of Phillips.
21 The basis upon which the learned trial Judge considered that the
evidence of each complainant would not be admissible in relation to the
trial of the other, so that joinder was impermissible, was that:"I readily accept the evidence sought to be led may show a tendency on the part of the accused to take sexual advantage of drunken males while asleep. In that way it is relevant to the alleged modus operandi of the accused in each instance. But this comes very close to the issue of absence of consent. It comes so close as in my view to be inseparable. We know it cannot be admitted for that purpose." (AB 33 - 34)
22 The respondent submits in this connection that the respondent's case
is likely to be that the complainants each consented to some sexual contact and that the State will attempt to rebut this evidence by leading evidence "that each complainant was asleep (ie, evidence about the complainant's state of mind) and did not therefore consent". The respondent cites Phillips as authority for the proposition that evidence of this kind cannot have probative value.
23 The respondent also submits that there is no underlying unity or
pattern in the allegations, since it is not remarkable that a homosexual male might seek sexual contact with other males of a similar age in situations where alcohol has been consumed, and that there is nothing unusual or striking about the acts alleged to have occurred. Again, certain observations in Phillips are relied upon as applicable by analogy.
24 In Phillips the High Court indicated that intermediate and trial courts should continue to apply Pfennig, in preference to the tests which the Queensland Court of Appeal had attempted to derive from Pfennig and had expressed in R v O'Keefe [2000] 1 Qd R 564. I refer to that aspect of the decision, only in order to note that to the extent that Pfennig is concerned with the criterion of admissibility and the role of a trial Judge in relation to propensity evidence, there is an express statutory alteration effected by s 31A of the Evidence Act 1906. The respondent concedes,
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correctly, that there was no Queensland legislation equivalent to s 31A, so
that that aspect of the decision is inapplicable in this State.25 The High Court also, however, considered the question of the
admissibility of similar fact evidence in relation to issues of consent in sexual cases. The respondent seeks to apply those observations directly to the present case. In particular, as I understand it, the respondent's counsel relies upon [46] - [60] of that decision. The substance of them is reflected in these excerpts:
"[46] ... Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count supported by one complainant’s evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to 'the improbability of similar lies' on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.
...[50] In short, as counsel for the appellant submitted, the evidence, tendered as it was on the issue of the consent of each complainant, was irrelevant to that issue. 'Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.' Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent."
26 As I understand it, it is sought to draw from those passages the
proposition that, wherever similar fact evidence is sought to be adduced in relation to a fact which is also relevant to the issue of consent, that similar fact or propensity evidence cannot be admissible. In particular, the observation that, where a count raises the issue of whether a complainant consented, "the issue relates much more to her mental state than his" is said to require that, wherever evidence is relevant to the issue of consent, the evidence relates more to the mental state of the complainant than to that of the accused and is for that reason not probative and inadmissible.
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27 Those observations, however, must be understood against the
background of the way in which the issue arose in Phillips. Before I describe that background, I would note that it is plain that evidence which relates to or which concerns whether an accused person behaved in a particular way may also bear upon the question of consent. To take the example of one of the counts in Phillips, there was evidence that the accused had menaced one of the complainants with a thick chain. If, by way of example, six complainants had said that the accused had menaced each of them with a particular type of chain, using similar words, in similar circumstances, that would be similar fact evidence bearing upon the question of whether he behaved towards them as he said he did. Equally, evidence that a complainant submitted to a sexual encounter after being menaced with a thick chain would be evidence which was relevant to the question of consent. I do not understand the High Court to be saying that, simply because evidence of that kind would bear upon the mental state of a complainant (that is, on the issue of consent), the evidence was incapable of being admissible similar fact evidence. Rather, as I understand it, the Court was concerned with the legally obvious proposition that, merely because one young woman does not consent to a sexual encounter with an accused person, that does nothing to prove whether or not a different young woman, in different circumstances, might have consented.
28 One aspect of the background to the decision in Phillips gives rise to some difficulty in its application. That is, that the evidence in that case was admitted on one basis, and was left to the jury on another and narrower basis, that narrower basis being the unlikelihood of all of the girls having been untruthful about absence of consent. The Court of Appeal in Queensland then, as I understand it, took a slightly different approach from that of the trial Judge. The way in which the matter was argued in the High Court is by no means clear. That history of the various ways in which the prosecution case was understood lead to a difficulty, not of principle, but of fact, in applying Phillips by analogy to any particular case. To elaborate, it may logically be accepted, in relation to the issue of consent, that the fact that one complainant denies that he or she consented does not assist a jury in establishing whether another complainant consented.
29 However, it does seem that it would have been logically possible for
a jury to have considered the evidence in Phillips in a somewhat different way (leaving aside the evidence of the complainant JD, which is somewhat different); that way is, broadly, as follows. As to counts 1 through 7, over a course of approximately 18 months, Phillips
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encountered five young women and had, on his account, consensual encounters of a sexual kind with all of them. Each of them complained that, on seven different occasions between them, he had sexually penetrated them without consent. Each of them alleged that either she was making it plain that she did not consent, by protesting, shouting, or crying, or alternatively that she was in one case unconscious and plainly therefore unable to consent. That is, despite his having had sexual encounters with each of them of a consensual kind, each of the five alleged that he had had a sexual encounter with them in circumstances where he must have known that they did not consent. Either, a jury might reason, he was the unluckiest young man in Australia, the victim of a wildly improbable series of mistaken, or hysterical, or vindictive young women, or alternatively the "improbability of similar lies" was such that all, or most, of the complainants, must have been truthful. It seems to me that it was reasoning of broadly this kind that the trial Judge may have been attempting to leave to the jury, but which his Honour unfortunately mistakenly identified as an issue of consent, rather than an issue of the appellant's knowledge and understanding of a lack of consent, or, put another way, the appellant's willingness to persist with sexual penetration over protest, or in the clear absence of consent.
30 Although that view of the evidence in Phillips seems not to have been considered in the present case, notwithstanding that it is described by the respondent as the question of each of the respective complainants' "mental state", it seems to me that the similarity alleged is a similarity of fact, rather than of mental state; that is, that each of the complainants was physically asleep at the relevant time. The State expressly disclaims any possible relevance of the evidence to the question of either complainant's consent or lack of consent. The decision in Phillips does not appear to preclude such reasoning.
31 The other relevant aspect in Phillips, the respondent submits, relates to the admissibility, or otherwise, of the similar fact evidence in that case in relation to issues other than consent. There was apparently an alternative submission advanced by the Crown in Phillips that there was a common "pattern", or "thread", which meant that the evidence should have been admitted on that basis. Unfortunately, the Crown filed no notice of contention (see [52]), so the way in which this alternative submission was formulated is not clear from the report. The Court considered that the strong degree of probative force necessary for the exceptional reception of evidence of similar facts was not present in Phillips (at [54] - [55], citing Pfennig and cases which preceded it). That proposition was illustrated particularly by reference to count 8, although
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that count was in any event somewhat different from the other counts, in that it occurred some 18 months later than the earlier series of offences, and did not involve any sexual penetration, but rather involved violence which apparently had some sexual purpose or motive.
32 It was not necessary for the purposes of the decision in Phillips, for the Court to determine whether the various similarities alleged lacked any probative force, rather than whether the probative force was not such as to justify admission of the similar fact evidence, having regard to the test of the majority of the Court in Pfennig. That is an issue of importance for this Court, because of the effect of s 31A of the Evidence Act 1906. As I read [54] and [55] of Phillips, it is not there suggested that there were not similarities and, it is not suggested that there was not some probative force. Rather, the Court was of the view that the probative force in that case was not sufficient to justify the reception of the evidence.
33 That the Court was concerned with the exceptional similarity, or
other very high degree of probative force, required for admissibility at common law, rather than asserting as a matter of fact that the evidence was not probative at all, is, in my view, clear from [56]. The Court in that paragraph said:
"The similarities relied on were not merely not 'striking', they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon."
34 It is obviously "unremarkable" in any sense of the word, even in
ordinary usage, that a male teenager might seek sexual activity with girls around his own age, be interested in oral sex, attempt to be alone with girls, and make approaches on social occasions after some had ingested alcohol or other drugs.
35 Paragraph [56], however, also contains a suggestion, implicit in the
words "in the first instance", and explicit in the reference to the "different degrees of violence", that it is "entirely unremarkable" for a teenage boy to force sexual penetration upon young girls whom he knows not to be consenting, despite their protests. Such behaviour is, clearly, "remarkable" in any ordinary usage of the word. Most men will never
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engage in it. Further, counts 6, 7 and 8 involved violence which extended to repeated threats to use a baseball bat (6 and 7) and menacing with a thick chain (8). Behaviour of that kind, while all too commonly seen in the criminal courts, is, nevertheless, very remarkable, unusual, and widely condemned. It is plain, I think, therefore that the Court was, at [51] - [58] inclusive, concerned, in effect, only with questions of "striking similarity" or "signature". That view is reinforced by the use of expressions such as "unusual features" and "system" in [58].
36 It follows from the discussion above, that Phillips is not directly relevant to the present case. It also follows, in my view, that his Honour erred in finding that, because of the close connection between the "alleged modus operandi" of the accused and the issue of consent, the evidence in respect of one count was not admissible in respect of the other. I would set aside his Honour's decision for that reason.
37 The parties were both of the view that it was desirable that this Court
should determine the question of admissibility, if we were of the view that his Honour had erred. The first, with which I have dealt, is whether the evidence in respect of each count, has significant probative force in respect of the other count. The second is whether 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 the evidence must have priority over the risk of an unfair trial.
38 The risk of an unfair trial is a risk that, notwithstanding a warning to
the contrary, a jury might wrongly reason that, because the appellant had committed an offence of a sexual nature on one occasion, it necessarily followed that he had committed an offence of a sexual nature on another occasion. That is not, in my view, a risk of such a nature, in the present case, that the Court should assume that it could not be dealt with adequately by direction, thereby eliminating, or acceptably reducing, the risk of unfair trial relative to the probative value of the evidence.
39 There are a number of reasons for that view. First, it should be
observed that this is not a case where one offence is significantly more serious than another. If, for example, the respondent were charged with one count of offending against an adult male or female, and another count which involved allegations not only of sexual offending, but of sexual offending in circumstances of violence or cruelty, or against a child, one can accept that the prejudice likely to be engendered by the latter might, despite the best efforts of a jury, flow through to affect its objectivity in relation to the former. Here, however, the offending is broadly similar in
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PULLIN JA
nature in each case. Further, even in cases of sexual offending against children, it is accepted that it is possible to guard against erroneous propensity reasoning by an appropriate direction, so that often a series of sexual offences against children in one family may be joined in an indictment. If matters of that kind can be joined, it seems to me that it must follow that it is possible, without undue risk to the fairness of the trial, to join counts of sexual offending against mature men. I would add, that it is the common experience of the Court that, in cases of sexual offences where a number of counts are joined in an indictment, juries will return verdicts of guilty in relation to some, and verdicts of not guilty in relation to others. To that extent, experience teaches that a direction warning against impermissible reasoning is likely to be accepted. It would therefore be my view that it is open to the State to have a joint trial.
I would allow the appeal.
PULLIN JA: The respondent is charged on indictment that:
(1) On or about 18 March 2006 at Halls Creek Brian Albert Osborne sexually penetrated [NEL] without his consent, by introducing the penis of [NEL] into his mouth. (2) On or about 3 April 2006 at Northam Brian Albert Osborne sexually penetrated [EJM] without his consent, by penetrating the anus of [EJM] with a part of his body or an object manipulated by him.
42 The judge ruled that the charges were properly joined pursuant to
cl 7(3) of Sch 1 of the Criminal Procedure Act 2004 (WA) but ruled that, in the exercise of his discretion under s 133 of that Act, the accused should be tried separately in relation to each charge.
Section 133(3) and (5) of the Criminal Procedure Act reads:
(3)
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)
that the accused be tried separately on one or more of the charges; and
(b)
the prosecutor to tell the court the order in which the charges will be tried.
…
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(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; (b) to so decide irrespective of the nature of the offence or offences charged; and (c) to so decide even if - (i) the evidence on one of the charges is inadmissible on another; or
(ii) the evidence against one of the accused is not admissible against another,
as the case requires.
44 In determining whether the respondent was likely to be prejudiced,
the trial judge considered it necessary to consider the admissibility of
evidence under s 31A of the Evidence Act 1906 (WA). His Honour said:It [ie the evidence of what happened in relation to one charge when looking at the other charge] certainly is important to help establish that sexual conduct of some kind took place between the accused and the two complainants. It may show that he had a tendency to behave in this way and in that way to prove that sexual conduct did indeed take place.
45 By this I take the learned trial judge to be saying that the evidence
was probative, but he then went on to express the view that the evidence did not have 'significant probative value'. What his Honour said on this subject was as follows:
But that is not the issue here. The two contacts are admitted; it is the nature of each contact that is in dispute.
It does not help to be told that on one occasion the accused took advantage of a drunken complainant by performing fellatio on him and on another anally penetrated a drunken victim who was asleep. That does not assist in proving that he must have done what each complainant says he did. Whether he did what each says he did will in the end depend on what the jury makes of the evidence of each complainant.
I readily accept the evidence sought to be led may show a tendency on the part of the accused to take sexual advantage of drunken males while asleep. In that way it is relevant to the alleged modus operandi of the accused in each instance. But this comes very close to the issue of absence
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of consent. It comes so close as in my view to be inseparable. We know it
cannot be admitted for that purpose.So in conclusion I am satisfied, firstly, that the charges were properly joined; secondly, that the evidence is propensity evidence within the scope of the definition. However, I am not satisfied that the evidence is of significant probative value in relation to the kind of sexual act which each complainant says took place or the circumstances in which it is said to have taken place.
So, given this finding, it is not necessary for me to make any decision on any remaining matters raised either by schedule 1 to the act or section 31A. The application for severance succeeds on the basis that the evidence is not of significant probative value to enable it to be adduced, so I'm afraid I must exclude it on that basis.
The ground of appeal in this case reads as follows:
The learned Judge erred in the exercise of his discretion under Section 133(3)(a) Criminal Procedure Act 2004 by ordering severance of the indictment.
PARTICULARS
The learned Judge found:
(a) that the indictment was properly joined; (b)
that the evidence (of each alleged offence) was 'propensity evidence' (in relation to the other alleged offence), as defined in section 31A(1), Evidence Act 1906.
Having found (a) and (b) the learned judge erred in;
(c) Finding that the propensity evidence was not admissible because it did not have significant probative value; (d) Determining that as a consequence of finding that the propensity evidence did not have significant probative value, he must sever the indictment.
47 In my opinion the trial judge erred because he seemed to assume, in
effect, there was to be no issue in the case that the respondent made sexual contact with the complainants. With respect, that is not correct. The respondent is pleading not guilty. It is true that during submissions counsel for the respondent referred to the record of interview and contended, by reference to it, that there was no dispute about there having been sexual conduct of some kind. The prosecution must be permitted to prove the case in any way they wish. The prosecution will doubtless rely
[2007] WASCA 183
PULLIN JA MILLER JA
on the video record of interview, but may also rely upon the propensity evidence which shows the respondent's tendency to engage in sexual conduct with men in the circumstances described by Wheeler JA at [15].
48 The trial judge did not consider whether s 31A(2)(b) has been
satisfied. In my opinion it is not necessary for this court to decide whether it was or was not satisfied for these reasons. First I will assume (but not decide) that s 31A(2)(b) was satisfied. If so, the evidence on one count would be admissible on the other count, and the foundation for the respondent's application for different trials would disappear. However, even if s 31A(2)(b) was not satisfied, the court would still have to consider whether any prejudice which might result from the jury hearing the inadmissible evidence could be overcome by a direction to the jury. The court is specifically directed to consider this in s 133(5) of the Criminal Procedure Act. The trial judge concluded that the evidence was not admissible under s 31A(2)(a) of the Evidence Act and then, assuming that his task was complete, allowed the application for separate trials. His Honour failed to complete the task set by s 133 by failing to consider the matters in s 133(5).
49 I agree with Wheeler JA, for the reasons given by her, that a
direction to the jury will be sufficient to overcome any prejudice caused by the jury hearing evidence which the judge may rule is inadmissible. I say 'may rule' inadmissible, because no formal ruling on the admissibility of evidence has yet been made. The reasons given about the inadmissibility of evidence during the course of a ruling on whether there should be separate trials remain expressions of opinion only, and do not amount to the formal ruling which still has to be made if there is objection to the evidence being admitted. Whatever decision is made will not be subject to a right of appeal until after the trial.
50 Finally I refer to Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303. The case does not have to be considered here because it was a case which did not examine the changes made by s 31A. In footnote 2 there is express acknowledgment of the 'wider changes' made by s 31A in this State.
MILLER JA: I agree with Wheeler JA.
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