The State of Western Australia v Te
[2023] WADC 86
•18 MARCH 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TE [2023] WADC 86
CORAM: TROY DCJ
HEARD: 2 & 13 JUNE 2023
DELIVERED : 23 JUNE 2023
PUBLISHED : 18 MARCH 2024
FILE NO/S: IND BRO 5 of 2022
IND BRO 4 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
TE
Catchwords:
Cross-admissibility where issue is consent - Tendency - Significant probative value - Application to join counts granted
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Cross-admissibility established
Application for joint indictment granted
Representation:
Counsel:
| The State of Western Australia | : | Ms D E Aldous |
| Accused | : | Mr D Robinson |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Albert Wolff Chambers |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196
Glen Jacobs (a pseudonym) v The Queen [2017] VSCA 309
Hughes v The Queen (2017) 263 CLR 338
LFG v The State of Western Australia [2015] WASCA 88; (2015) 250 A Crim R 252
Phillips v The Queen (2006) 225 CLR 303
PRS v The State of Western Australia [2023] WASCA 106
RMD v The State of Western Australia [2017] WASCA 70
Stubley v The State of Western Australia (2011) 242 CLR 374
The State of Western Australia v ATM [2022] WADC 78
The State of Western Australia v JHN [2021] WASCA 225
The State of Western Australia v Osborne [2007] WASCA 183
TROY DCJ:
Introduction
These are the reasons for the decision I announced on 23 June 2023. The accused, TE presently faces an indictment which contains one count. The State have applied to amend the indictment by adding a second count. At the time of the hearing before me on 13 June 2023 the matter had not yet been listed for trial or trials but that occurred on 27 June 2023. Each of the proposed counts allege a sexual offence. Each of the counts involve a separate complainant. The defence on each count is consent.
In applying, on 23 March 2023, to amend the indictment by adding a second count, the State filed a formal application seeking orders that the evidence relating to each proposed count on the indictment is cross‑admissible, applying s 31A of the Evidence Act1906 (WA) (Evidence Act).
The defence opposed the application.
I was assisted by the respective written submissions, augmented by oral argument on 13 June 2023 together with further written submissions on what might be termed the 'Phillips issue'.
Section 31A of the Evidence Act
Section 31A of the Evidence Act provides:
31APropensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The relevant principles
In a decision I published last year, The State of Western Australia v ATM [2022] WADC 78, I dealt with the issue of cross‑admissibility where the issue was consent. I endeavoured to identify the applicable principles at [6] - [10] and [86] - [94] and I apply them again without repetition.
The alleged facts
On proposed count 1, the complainant SM states that she had been a boarder at the accused's house for eight months prior to the alleged incident. He is a family friend that she had known her whole life. She was 28 at the time. He was 66.
She described that on 8 September 2021 she drank a considerable amount of alcohol with friends, not including the accused. She was really drunk.
She went back to the house where the accused was still awake.
She laid down on a couch in the living room and fell asleep: pars 12 and 14 of her witness statement.
She states at pars 15 - 19 that:
15Next thing I knew I could feel something touching my vagina. It felt like fingers touching my vagina.
16I could feel that there was at least one finger up inside my vagina and it was moving in and out.
17I open my eyes and looked up.
18[The accused] was sitting on the couch next to my legs and I could see his hand going up my shorts.
19I screamed out 'Fuck off' and I hit him in the head with my right hand.
Given that the defence is consent, these assertions are bound to be disputed.
SM immediately called 000.
Police arrived under priority two conditions at 4.30 am.
On proposed count 2, (which is said to have occurred one year and eight days later) RE, in contrast to SM, was a visitor for the first time to the accused's house, as opposed to a lodger. She arrived on a Thursday morning to attend a funeral. The accused picked her up from a bus stop, she had a shower, dropped her things at his house and immediately went out drinking through to the Friday morning. The accused picked her up and took her home and nothing untoward happened at that stage.
On the following afternoon the complainant RE and the accused were drinking together. They drank all night. She became very drunk. There was only one bedroom at the accused's home which he went to. RE prepared to go to sleep on a mattress which had been set up in the lounge room.
RE states at pars 22 - 24 and 26 of her witness statement:
22The next thing I am waking up and [the accused] is laying me and is touching my chest to tell me 'it's okay, he'll be coming on the bus soon'. I was screaming out for a dream I was having for [my] partner. …
23When I woke up, [for a second time] I am lying on my back and [the accused] is on my side, next to me, he's on the right side of me, he's wearing his clothes then, same clothes he's wearing when the police came there to that house. …
24I'm in pain that was not there before. The pain is in my vagina, like when you have been poked in the vagina, that sort of paining.
…
26I went to the toilet in the house and when I went to wipe my vagina with the paper there is blood there and it is wet.
Given that the defence on this count is also consent, RE's assertions as set out at [17] are also bound to be disputed. RE immediately called the police who arrived at about 4.45 am.
The Phillips issue
In its original written submissions, the defence opposed the application for cross‑admissibility because the proposed propensity evidence sought to be adduced lacked significant probative value and the proposed tendency evidence had too high a level of generality. The suggested modus operandi revealed by the two counts was not as singular as the State claim. What is said to link the two counts, namely that both women were in their 20s, both were staying with the accused and both alleged that the accused sexually penetrated them, is too general and imprecise.
At the hearing before me on 13 June 2023, Mr Robinson, on behalf of TE, cited the High Court authorities of Phillips v The Queen (2006) 225 CLR 303 (Phillips) and Stubley v The State of Western Australia (2011) 242 CLR 374 (Stubley) in support of the proposition that because the issue is whether or not the sexual activity in each count was consensual, the evidence in respect of one count cannot (my emphasis) have any probative value with respect to the other count.
I indicated that I did not think the position could be stated in such absolutist terms. I drew counsel's attention to the Victorian decision of Glen Jacobs (a pseudonym) v The Queen [2017] VSCA 309 (Jacobs) and requested further written submissions from each party.
In further written submissions, Mr Robinson submitted that the analysis in Jacobs of Phillips left open the possibility that evidence of the kind sought to be adduced by the State might (my emphasis) be cross‑admissible in proof of an accused's state of mind. There may well be scope to adduce tendency evidence relating to the accused's state of mind in cases where consent is the primary issue at trial but this is not a case that falls within that orbit. Whilst the Victorian Court of Appeal have made comments about the Phillips decision, the law in this State is not yet settled on the issue. There is limited clarity of the precise circumstances when evidence of this kind ought to be adduced, particularly in this jurisdiction.
It was further submitted that it would be dangerous to allow the two counts to be heard together. The consequences of a joint trial for TE are drastic.
Mr Robinson conceded that it is apparent that neither Phillips or Stubley constitute authority for a blanket rule that similar fact evidence or tendency evidence can never have significant probative value in a case where the core issue for the jury to grapple with is consent.
Mr Robinson contended, however, that it would be dangerous to allow the application given that there is no clear authority in relation to the scope for the State to adduce this kind of evidence in Western Australia. Jacobs makes reference to the possibility of evidence of this kind, but the reality is the law in Western Australia is not well settled on this issue. To apply this potential concept to the current factual matrix, involving two complainants over a year apart in time, is fraught with risk.
The repeated references to 'danger' and 'risk' seem to me to go beyond the potential risk of an unfair trial if one is considering s 31(2)(b) of the Evidence Act and involves a submission that it would be dangerous to find that there was significant probative value, because this case is essentially uncharted territory and if such a finding is erroneous, any subsequent conviction would inevitably be quashed.
Of course, as the Court of Appeal has previously commented in DKA v The State of Western Australia [2017] WASCA 44 at [69]:
… the statutory test for the admission of propensity evidence … significant probative value - is innately open‑textured. As a result, there is room for reasonable minds to differ on whether proposed propensity evidence would have significant probative value. If, after such evidence is admitted at trial, the view is taken on appeal that it does not have significant probative value, the result will generally, if not always, be the setting aside of any conviction and an order for a retrial. Given the open‑textured character of the test for admission, the risk that on appeal an adverse view is taken is a matter to be taken into account by the prosecution in determining whether it proposes to rely on propensity evidence.
(footnote omitted)
Their Honours also noted at [64] that the respondent conceded that if the evidence was wrongly admitted, there is no room for the application of the proviso. This will often be the case where it is found that evidence was wrongly admitted under s 31A of the Evidence Act.
Further, I do not consider this to be uncharted territory. The decision of Phillips was handed down on 1 March 2006. The decision of Stubley was handed down on 30 March 2011. In between those two decisions there is the case of The State of Western Australia v Osborne [2007] WASCA 183 (Osborne) where the lead judgment was given by Wheeler JA, with whom Pullin JA and Miller JA agreed.
I need to correct one aspect of the State's supplementary written submissions at pars 10 and 11. The State referred to the High Court's analysis of Osborne in Stubley at [15] but suggested that the quoted passage relates to the holding of Wheeler JA in Osborne. In fact, at that point, the majority were scrutinising the decision of the trial judge in Stubley, Johnson J.
The majority judges held that Johnson J was conscious of the High Court's decision in Phillips. Their Honours noted at [15] that in applying Osborne, Johnson J held that:
where there is an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addresses lack of consent does not make it inadmissible.
The majority did not express criticism of Osborne or in Johnson J applying Osborne. Rather, the problem lay in Johnson J not explaining how, in light of the indication that JG's and CL's (the two complainants) evidence that the appellant engaged in sexual intercourse with them in the course of consultations was not disputed, evidence of his conduct before or after intercourse was not probative of any issue in the trial. There was no identification of the asserted tendency or feature of the conduct of the appellant which the evidence of LB, MM and AW (the propensity witnesses) was admitted to prove.
I am quite satisfied that if Wheeler JA's analysis of Phillips in Osborne was flawed the majority judges would have taken the opportunity in Stubley to correct it. They did not do so.
Accordingly, I will consider and, where appropriate, apply the reasoning of the court in Osborne.
The analysis in The State of Western Australia v Osborne
Osborne was 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. It is necessary to set out the decision of Wheeler JA in considerable detail.
In the count involving L, the complainant went to bed, having consumed five cans of beer and being unaffected by alcohol, leaving the respondent sitting outside drinking with the complainant's wife. Sometime 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.
So far as M is concerned, the respondent came to the complainant's house with 'a few drinks'. The respondent, the complainant, the complainant's housemate and the housemate's girlfriend all chatted and drank for a time. The respondent asked if he could stay because it was too cold to walk home. 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 told his housemate what had happened, and his housemate told the respondent to leave.
The defence with respect to the count involving M was that the respondent and the complainant went to bed and engaged in some consensual sexual contact: Osborne [5]. So far as the complainant L was concerned, the respondent's account of what occurred with him is somewhat less clear: Osborne [6].
As Wheeler JA noted at [7] in Osborne:
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
•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.
The primary judge held that the evidence of one count was inadmissible in relation to the other, pursuant to s 31A of the Evidence Act. The State appealed.
Wheeler JA considered at [16] that:
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; …
That is potentially an issue here.
Also, as was the case in Osborne, whether either of the complainants were in fact asleep at the time at which the respondent performed a sexual act upon them is squarely in issue here.
Whether the respondent believed that either of the complainants were consenting to a sexual act of some kind. That is in issue here if lack of consent is proved beyond reasonable doubt.
Whether the pain felt by M was attributable to sexual penetration or to some other cause. That is in issue here in respect of RE.
And, of course, whether certain facts recounted by the complainants occurred at all. That is in issue here.
Her Honour then continued at [16]:
… In those circumstances, were either complainant to be 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.
Her Honour then observed at [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 logically consider that it was perhaps possible that the respondent had been mistaken (that the relevant complainant consented) on one occasion, but certainly not both. …
Wheeler JA concluded at [19] 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 (as is the case here) means that the probative force is not as strong as might otherwise have been the case … that the possibility of coincidence cannot be entirely excluded. 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'.
Her Honour then considered if Phillips, decided as it was the previous year, constituted an obstacle to that conclusion:[1]
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.' …
[1] Osborne [21] (Wheeler JA).
Her Honour then noted:
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.[2]
The respondent also submits that there is no underlying unity or pattern in the allegations. Again, certain observations in Phillips are relied upon as applicable by analogy.[3]
[2] Osborne [22].
[3] Osborne [23].
Her Honour then stated:
As I understand it, it is sought to draw from those passages (from Phillips as set out at [25]) 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.[4]
[4] Osborne [26].
Her Honour continued:
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 High 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.[5]
[5] Osborne [27].
Her Honour stated:
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.[6]
[6] Osborne [28].
Her Honour continued:
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 encountered five young women (here the position involves two 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.[7]
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.[8]
[7] In the present case each complainant says she was asleep when the sexual penetration began.
[8] Osborne [29].
Her Honour then stated:
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' (my emphasis).[9]
[9] Osborne [30].
Her Honour then noted:
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.[10]
[10] Osborne [31].
As her Honour explained at [32] and in the following paragraphs, the High Court in Phillips applied the more stringent 'common law similar fact' test, not the 'significant probative value' test under s 31A of the Evidence Act.
Her Honour concluded:[11]
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.
[11] Osborne [36].
The analysis of Phillips in Osborne is consistent with the analysis in Jacobs, in particular at [48] where it was said that 'modus operandi' similarities will often be highly relevant to prove identity, or disputed conduct relevant to consent' (my emphasis).
Is the evidence propensity evidence?
As the State have indicated at pars 17 and 19 of its supplementary submissions, the evidence relied upon is the circumstances surrounding one count and whether that has significant probative value in relation to the circumstances surrounding the other count.
In my view, the suggested further basis at par 20 involves impermissible propensity reasoning and I disregard that.
I also disregard the alternative basis for cross‑admissibility as set out at pars 26 - 35 largely for the reasons identified by the defence in its supplementary submissions.
The disputed conduct of the accused which I have identified at [11] and [17] is plainly evidence of the conduct of the accused person and is therefore propensity evidence on that basis. Is it also similar fact evidence and/or evidence of a tendency that the accused person has or had?
In its written submissions, the prosecution asserts that there is an underlying unity or pattern to the evidence on each count such that it amounts to similar fact evidence and that, further or alternatively, the evidence on each count amounts to a tendency on the part of the accused to sexually penetrate a person who is unconscious or asleep.
The words 'a tendency', in this context, refer to 'a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had'.
The tendency as encapsulated at par 62 of the State's original written submissions is to permit a young woman (between 38 years to 43 years younger than him) to stay overnight at his house without anyone else present, to be aware that the woman had consumed a large quantity of alcohol and then after the woman had either passed out or fallen asleep to sexually penetrate her whilst she was unconscious.
As to the suggested underlying unity or tendency the potential common factors, together with my view as to the significance of a particular similarity, are as follows:
Factor Accused Count 1 Count 2 Similarity Age 66 or 67 28 24 Yes Accused's prior knowledge of complainant Family friend and had known him her entire life Refers to accused as uncle in a cultural sense Yes Lodging with the accused at the time of the offence Had been lodging there for eight months at the time Was staying there that night as part of a stay of approximately two days because of the need to attend a funeral To an extent but some differences Alone with him in house at time Yes Yes Yes, but not that singular No prior intimate relationship Yes Yes Yes, but not that singular On each occasion the complainant had consumed alcohol to a large extent Yes Yes Yes, but not that singular Location of alleged offence Lounge room Lounge room Yes Complainant asleep Yes Yes Yes Complainant becomes immediately distressed and calls police Yes Yes Yes
I am satisfied that the proposed evidence is propensity evidence not merely because it is evidence of TE's conduct, but also because it is similar fact evidence and evidence of the tendency contended for.
I fully accept that a tendency might more readily be discerned where the alleged victim is a child as opposed to a fellow adult, but even allowing for that I remain of the view that the tendency here is expressed with a relatively high degree of particularity.
Does the evidence have significant probative value?
Mr Robinson appropriately reminded me that when multiple complainants are involved, there must ordinarily be some feature about the offending which links the offences together. The mere fact that an accused has committed an offence against one complainant is not ordinarily significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true.
In the High Court decision of Hughes v The Queen (2017) 263 CLR 338 the accused was alleged to have offended against many different complainants in a variety of different ways and circumstances. The feature which linked the offending together was the high risk of detection involved in offences against female children under 16 years of age. Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised.
In the present case, the facts in issue to which the evidence sought to be adduced and is said to be relevant are, in respect of count 1, whether while the complainant was asleep having drunk to excess, she awoke to find the accused in the act of digitally penetrating her so that she immediately swore at him and struck him to the head before calling the police.
If those circumstances are established then plainly the complainant did not consent to the act of sexual penetration and there would be no basis for the accused to have honestly, albeit mistakenly, believed that she did.
In respect of count 2, the facts in issue to which the evidence sought to be adduced is said to be relevant are whether while the complainant was asleep having drunk to excess, she was penetrated to her vagina by an unknown object so as to cause her pain and bleeding. And, that although she anticipated that the accused would be in his bedroom she woke at one stage to find him touching her chest. And, that she immediately called the police using '000'.
If those circumstances are established, then plainly the complainant did not consent to the act of sexual penetration and there would be no basis for the accused to have honestly, albeit mistakenly, believed that she did.
In my view, the propensity evidence is clearly relevant to those facts in issue. I am quite satisfied that there are common features of or about TE's alleged offending which demonstrates a tendency to act in a particular way.
In my view, and borrowing the phraseology of Wheeler JA in Osborne at [17], the work that the evidence does is:
•Enable the jury to assess if it is a startling coincidence that two females who are seemingly not known to each other, but who each are at least 38 years younger than the accused, consider it safe to sleep on the couch in the accused's one bedroomed house and then wake to find the accused in the act of penetrating her vagina with his finger, or wake to discover that she has all the physical signs of having been somewhat violently sexually penetrated by the accused and that each female is so distressed that she immediately uses 000 to call the police.
•The jury might logically consider that it was perhaps possible that the accused had been mistaken (that the complainant consented) on one occasion, but certainly not both. That is particularly so in the event that the jury proceed chronologically and consider count (1) first.
•Enable the jury to assess if the accused is unlucky to an extraordinary degree, or is the victim of a most improbable combination of two mistaken, hysterical or vindictive young women, in that despite his having had sexual encounters with two females that he knew very well, each of them of a consensual kind, each of the two females alleged that he had had a sexual encounter with her in circumstances where he must have known that they did not consent. Or alternatively, the improbability of similar lies was such that each complainant must have been truthful.
•Proof of the accused's tendency to engage in sexual activity with an unconscious female guest opportunistically, notwithstanding the evident risk, (that the complainant might wake) is capable of removing a doubt which the brazenness of the accused's conduct might otherwise have raised.
As was the case in Osborne, the evidence here does not go to an issue of consent, rather than an issue of the accused's knowledge and understanding of a lack of consent, or, put another way, the accused's willingness to engage in sexual penetration in the clear absence of consent.
The similarity alleged is a similarity of fact, rather than of mental state; that is, that each of the complainants were 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.
This evidence has the requisite significant probative value.
The fair-minded person test
In considering whether fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, I bear in mind my finding that the evidence on each count is of significant probative value in respect of the other count.
I apply the principles set out in DKA v The State of Western Australia [2017] WASCA 44 at [31] and reiterated in RMD v The State of Western Australia [2017] WASCA 70 at [51] (Buss P).[12]
[12] And re-affirmed in PRS v The State of Western Australia [2023] WASCA 106 [85] - [88].
In this case the State will seek to prove the accused's alleged tendency by evidence to be adduced at the joint trial of the counts, as distinct from adducing evidence of facts underpinning prior convictions. In The State of Western Australia v JHN [2021] WASCA 225 [136] that was held to be a factor that supports its admissibility under the 'fair‑minded person' test.
I am entitled to assume that the trial judge will direct the jury in similar terms to that outlined in The State of Western Australia v JHN at [133].
There is nothing about the evidence that carries with it such prejudice that there is an overwhelming risk of the accused not having a fair trial. Any unfairness to the accused can be sufficiently mitigated by appropriate directions to the jury.
Although, as I have noted, counsel submits that the consequences of a joint trial for TE are drastic, in LFG v The State of Western Australia [2015] WASCA 88; (2015) 250 A Crim R 252, Martin CJ stated at [165]:
Because of the significant probative value of the evidence of the appellant's prior convictions, its admission no doubt increased the likelihood of the appellant's conviction and, to that extent, was prejudicial to his interests. However, that is not the prejudice to which s 31A is directed. Rather, the section is directed to the possible prejudice to a fair trial, because of the risk that a jury might reason impermissibly in the ways enunciated in Dair. The risk of such impermissible reasoning can, of course, be mitigated by appropriate directions to a jury. …
(footnote omitted)
Those observations apply equally to a determination that propensity evidence of significant probative value establishes cross‑admissibility.
This is not such a case (as contemplated by Steytler P in Dair v The State of Western Australia [2008] WASCA 72 [63]) where the proposed propensity evidence would risk a jury condemning the accused for past uncharged conduct or would confuse or distract the jury from determining the central issue.
In comparing the probative value of the evidence to the risk of an unfair trial I am satisfied that any fair-minded person would find the public interest is in favour of admitting the evidence.
Conclusion
Each of the two counts is cross‑admissible vis‑à‑vis the other count.
Having concluded that the evidence is cross‑admissible, I allowed the State's application to amend the present indictment to add the allegation relating to RE as count 2. For the sake of completion, applying what was said in Donaldson v The State of Western Australia [2005] WASCA 196 at [101], I add that no prejudice could flow from the joinder and accordingly there can be no order for separate trials.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ES
Associate to His Honour Judge Troy
7 AUGUST 2023
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