The State of Western Australia v RJW - [2013] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- RJW [2013] WADC 31

CORAM: BOWDEN DCJ

HEARD: 28 FEBRUARY 2013

DELIVERED : 1 MARCH 2013

FILE NO/S: IND 1165 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
The State of Western Australia
AND
RJW
Accused

Catchwords:

Application for admissibility of propensity evidence - Section 31A of the Evidence Act 1906

Legislation:

Evidence Act 1906

Result:

Application for admission of propensity evidence allowed

Representation:

Counsel:

The State of Western Australia : TBA
Accused: Mr S Freitag

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: D G Price & Co

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

AJ v The State of Western Australia [2007] WASCA 228
APC v State of Western Australia [2012] WASCA 159
Buiks v The State of Western Australia [2008] WASCA 194
CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia (2005) 31 WAR 122
KRM v The Queen (2001) 206 CLR 221
R v Handy [2002] 2 SCR 908
R v MM [2004] NSWCCA 364
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin [No 2] (2011) 213 A Crim R 226
The State of Western Australia v Osborne [2007] WASCA 183
Zammit v The State of Western Australia [2007] WASCA 66

BOWDEN DCJ:

The allegations

The accused is charged with eight offences of indecently dealing with children under the age of 13.
Each offence carries a maximum penalty of 7 years' imprisonment.
It is said that on 8 April 2012 the accused in company with another male and that mans daughter, RS, visited a home in Koondoola. MR and HR were present at that house.
During the course of the evening the accused was drinking and is said to have been intoxicated. Whilst at the residence he commenced to play with RS, MR and HR and, it is said, indecently dealt with the girls.
He is alleged to have indecently dealt with RS by touching her breast on two occasions; with MR by touching her breasts on three occasions and touching her buttocks; and with HR by touching her vagina and her breasts. Each girl is under 13.

The propensity evidence

The State wish to lead, pursuant to s 31A of the Evidence Act 1906, evidence that in May 2010 the accused possessed child pornography.
The accused was convicted of that offence on 3 March 2011 in the District Court following his admission that he possessed multiple sexualised images and videos of children on 28 May 2010. Those images had been acquired over the course of about a month and viewed whilst he was intoxicated and depicted children including females up to the age of 13.
The prosecution do not intend to lead evidence that some of the children were as young as 18 months or the specific detail or content of the material.
The criteria for the admissibility of evidence pursuant to s 31A is that the evidence must be:
(1)relationship and/or propensity evidence;
(2)have significant probative value; and
(3)the probative value of the evidence compared to the degree of risk an unfair trial must be 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.

Is it propensity evidence?

The Evidence Act defines propensity evidence as 'other evidence of the conduct of the accused'.
The proposed evidence is evidence of the conduct of the accused and is propensity evidence.

Is the evidence of significant probative value?

To be of probative value the evidence must be evidence that 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings and explain a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P).
To have significant probative value the evidence must be more than merely relevant.
Significant probative value means something more than merely relevant but something less than a substantial degree of relevance, that is, it has a probative value which is important or of consequences: Dair (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194 (Miller & Buss JJA); Stubley v The State of Western Australia [2011] HCA 7 [11].
The probative value of the evidence may 'lie in the fact that it discloses some feature which raises as a matter of common sense and experience the objective improbability of its bearing any explanation consistent with the accused's innocence'.
It must be evidence that rationally affects, directly or indirectly, the assessment of probability of the relevant fact in issue to a significant extent.
In determining whether the evidence has significant probative value the court must look at the facts in issue and the significance or importance the evidence may have in establishing those facts.
In real terms the questions at trial are likely to be whether the touchings occurred and, if so, was it deliberate and were the touchings indecent.
The accused has made no formal admission in relation to any fact in issue at the trial.
Absent such admission the State is entitled to present its case on the basis that all facts are in dispute.
The State says the possession of the child pornography shows the accused has a sexual interest in children of comparable age and gender to the complainants and that a jury could conclude the accused is prepared to act upon that sexual interest particularly when intoxicated.
They say this has significant probative value because that conclusion could rationally effect to a significant extent the jury's assessment of the probability of the crucial issues of whether the touching happened, whether it was intentional for the purpose of sexual gratification and whether it was the accused who did it.
They say the significant probative value is increased as the accused was intoxicated on the evening the subject of the counts and was also intoxicated when he downloaded and saved the child pornographic images.
The defence do not accept that possessing child pornography automatically demonstrates that person has a sexual interest in children. They say that in many cases it will but argue that there may be other reasons to possess such material for example curiosity or for the thrill or challenge of trying to possess 'forbidden material'.
They argue that because a person possess a movie such as 'Lolita' (depicting child abuse) or 'Trainspotting' (depicting drug use) or the assassination of President Kennedy it does not necessarily mean that person has a sexual interest in children or drugs or in assassinations or tendency to commit such offences.
The defence argue that even if possession of child pornography suggests a person has a sexual interest in children that interest does not necessarily mean a person will commit a sexual offence against children as there is a difference between being willing to possess images of children and being willing to commit sexual offences against them.
They point out that there is no expert evidence establishing a link between viewing child pornography and committing sexual offences against children and that the possession of the child pornography occurred approximately two years before the alleged offences.
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: AJ v The State of Western Australia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482.
The length of time between the possession of the child pornography and the alleged offence is a factor to consider, because there may be such a time difference that the child pornography loses its probative value or can no longer be said to have significant probative value, however that is not the case here.
The defence accept that a person with a sexual interest in children is more likely to offend against children than somebody who does not have such an interest.
They point to a number of differences between the circumstances alleged and the proposed evidence. They point out that the complainants are aged 10 to 13 and the children depicted in child pornography are not confined to that age group; the child pornography is graphic in nature whilst the conduct alleged involves touching over the clothes without nudity or skin on skin contact or penetration; the intoxication whilst viewing the child pornography was as a result of drug usage, whilst the intoxication alleged in this case is alcohol based; the possession of child pornography occurred in private whilst the offences are alleged to have occurred in a social setting with many other people present.
In my opinion these differences are insignificant. Propensity evidence can have significant probative value even though it is not identical with the acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66].
The real issue is whether the accused's possession of child pornography in May 2010 is capable of demonstrating that the accused had a sexual interest in girls aged between 10 and 13 at the date of the commission of the offence.
This is of course a jury question, however the propensity evidence is capable of establishing that the accused has a sexual interest in young females. Whilst I accept that there is nothing in the proposed evidence by itself to establish that the accused would act on that interest by touching young females, a person with such an interest is more likely to behave in the manner alleged by the State.
I do not consider expert evidence, establishing a link between viewing such material and committing sexual offences against children is required before the evidence is admissible. The evidence is not led to establish that the mere fact of possession of child pornography means the accused is guilty of the offence as charged. It is led as circumstantial evidence.
The fact that the accused had in 2010 a sexual interest in young girls is part of the circumstantial case against the accused, it is one strand that the jury can consider with other direct or circumstantial evidence in determining whether they are satisfied that the accused touched the victim of the count they are then considering, did so deliberately and did so for the purpose of sexual gratification as opposed to accidental brushing or contact during the course of playing with the child. It is relevant also, therefore, to rebut the defences of accident or innocent explanation.
The evidence does have probative value because the fact of possession of pornographic images of young girls might make it more probable that the accused would engage in sexual activity with a young girl: R v MM [2004] NSWCCA 364 [61] James J (McClellan AJA & Grove J); Tasmania v Martin[No 2] (2011) 213 A Crim R 226 [59] (Porter J).
Establishing the accused has a sexual interest in young girls at a time relatively temporal but not contemporaneous with the commission of the offence 'can have significant probative value in relation to allegations that the person assaulted a person of that age and gender …': CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486.
In my opinion it has significant probative value in terms of the issues at the trial. It has a probative value which is important or of consequences to the relevant issues.

Is the probative value compared to the degree of risk of an unfair trial such that a fair-minded person would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial?

Section 31A requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial.
The weighing process in s 31A(2)(b) has been described as arguably the most difficult. It requires weighing things which are incommensurable, and making an assessment, of what a hypothetical fair‑minded person would think: APC v State of Western Australia [2012] WASCA 159 [89] (Mazza JA).
Where evidence is otherwise admissible and satisfies the s 31A criteria, it cannot be excluded on the discretionary ground ordinarily available under common law that its admission would be unfair or because its probative value is substantially outweighed by its prejudicial effect: Donaldson v The State of Western Australia (2005) 31 WAR 122 [140] (Roberts‑Smith JA) and Buiks [138] (Murray AJA).
The introduction of propensity/tendency evidence is always likely to involve the risk of an unfair trial: Di Lena.
There is a two‑fold risk attached to propensity evidence being, firstly, that the jury may put more weight than is logically justified on the propensity evidence and, secondly, may convict the accused based on his bad character by reasoning that, because he behaved in the way alleged in the propensity evidence, he is likely to have committed the offences alleged in the indictment: APC v State of Western Australia, Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts‑Smith JA) and Buiks [138] (Murray AJA); R v Handy [2002] 2 SCR 908.
It has been described as the danger that the adverse affect on the perception of an accused by the jury and on their reasoning process creates a risk that the jury will decide the case on improper or irrational basis rather than a logical one connected with the issue: Tasmania v Martin [No 2] [63].
The defence say this danger is magnified as the prosecution case is so weak due to internal inconsistency within each complainant's evidence and inconsistencies between the evidence of the complainants generally.
The State does not intend to adduce the images or the details of them.
The defence say that disclosing to a jury that the accused has been in possession of child pornography will create within the jury such feelings of hostility and revulsion towards the accused that he will automatically be convicted. I reject this submission. The experience of the courts is that juries, properly instructed, are able to put aside prejudice and determine cases based on the evidence presented to them.
It is accepted a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65] (Steytler P); Mansell v The State of Western Australia [2009] WASCA 140 [49] (Martin CJ), and that in almost all cases the risk can be overcome by an appropriate direction to the jury about the basis of admissibility and the manner in which the evidence may be used and the manner in which it may not be: The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA); Mansell.
In Dair Steytler P at [66] considered fair‑minded people were 'members of the public who are not lawyers, who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all relevant circumstances'. Miller JA considered that fair‑minded people were 'reasonable people'.
The probative value of the child pornography evidence is high and goes to the facts in issue that are of fundamental importance.
A demonstrable sexual interest in children of comparable age and gender in the context of a trial involving allegations of sexually interfering with children is important evidence for a jury to consider, along with the other evidence, in determining wether they are satisfied of the accused guilt beyond reasonable doubt on the charge they are then considering.
The evidence may be more compelling when it is accompanied by preparedness to act upon that sexual interest when intoxicated.
Fair‑minded people would, in my opinion, think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I therefore grant leave for the State to lead the proposed evidence in the manner in which they have indicated in pars 48(a) to 48(g) of their written submissions. That does not of course stop counsel from agreeing a more succinct summary for the benefit of the jury.