The State of Western Australia v TKR

[2017] WADC 66

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TKR [2017] WADC 66

CORAM:   TROY DCJ

HEARD:   3 MAY 2017

DELIVERED          :   19 MAY 2017

FILE NO/S:   IND 59 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

TKR

Catchwords:

Evidence - Alleged sexual offences against child lineal relative - Application under s 31A of the Evidence Act 1906 (WA) - Uncharged acts as common law relationship evidence

Legislation:

Criminal Code (WA)
Evidence (National Uniform Legislation) Act (NT)
Evidence Act 1906 (WA)

Result:

Application allowed

Representation:

Counsel:

The State of Western Australia  :    Ms T J McArthur

Accused:    Mr S W O'Sullivan

Solicitors:

The State of Western Australia  :    State Director of Public Prosecutions

Accused:    Patrick Legal

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

APC v State of Western Australia [2012] WASCA 159

Ashley v The Queen [2016] VSCA 246

Asplin v The State of Western Australia [2013] WASCA 72

Dair v The State of Western Australia (2008) 36 WAR 413

Director of Public Prosecutions v Martin (A Pseudonym) [2016] VSCA 219

DKA v The State of Western Australia [2017] WASCA 44

Hall v The State of Western Australia (2013) 232 A Crim R 107

IMM v The Queen (2016) 257 CLR 300

KMB v The State of Western Australia [2010] WASCA 212

LFG v The State of Western Australia (2015) 48 WAR 178

MB v The State of Western Australia [2016] WASCA 160

Noto v The State of Western Australia [2006] WASCA 278

PIM v The State of Western Australia (2009) 196 A Crim R 516

Preston v The State of Western Australia [2012] WASCA 64

R v Best [1998] 4 VR 603

RMD v The State of Western Australia [2017] WASCA 70

Roach v The Queen (2011) 242 CLR 610

SJX v The State of Western Australia [2010] WASCA 243

TROY DCJ: 

Introduction

1. The State have brought an application dated 3 April 2017, with supportive written submissions dated 4 April 2017, for permission to lead in support of their case against the accused, the following three forms of evidence.

2. Firstly, common law relationship evidence in relation to uncharged sexual acts alleged by the complainant when she was 5 and living in New Zealand, as well as a number of uncharged sexual acts alleged to have occurred when she was aged between 8 and 10 and living in Western Australia.

3. I use the term, 'uncharged sexual acts' as a convenient short-hand expression, but with the understanding that if the application succeeded this is an inappropriate term to use before a jury.

4. The second form of evidence are uncharged sexual acts said to have been committed by the accused upon the complainant's two oldest stepsisters, as relationship and propensity evidence under s 31A of the Evidence Act 1906 (WA) (the Act).

5. The third form of evidence is the accused's 1976 conviction in New Zealand for a sexual act committed on the third oldest stepsister as relationship and propensity evidence under s 31A.

6. All these forms of evidence are in support of the State's case on indictment dated 21 March 2017. The indictment contains four counts alleging that on a single date between 31 July 1986 and 1 October 1988, in four particular ways, the accused unlawfully and indecently dealt with his daughter, the complainant.

7. The complainant would have been aged either 8, 9 or 10 when the alleged events on the indictment occurred.

8. The matter is listed for trial on 18 September 2017.

9. The application is opposed by the accused. On behalf of the accused written submissions were filed on 1 May 2017. I heard oral argument on 3 May 2017 and reserved my decision.

Uncharged Acts

1. I deal first with the application to adduce common law relationship evidence in relation to the uncharged sexual acts alleged by the complainant. 

2. The relevant chronology of alleged events is as follows:

   •The accused is alleged to have, on a number of occasions, sexually touched the complainant when she was aged 5 or so. This would have been in about 1982, when they were living in New Zealand;

   •As I have noted the period specified in the indictment is a single date between 31 July 1986 and 1 October 1988;

   •The second group of uncharged acts are alleged to have occurred during the same period as specified on the indictment.

Relationship evidence generally

1. In KMB v The State of Western Australia [2010] WASCA 212 Buss JA (with whom Pullin JA & Mazza J agreed) observed [46]:

   The term 'relationship evidence' refers to evidence relating to the accused and the complainant which will often be admissible because it tends to prove how or why the conduct the subject of the pending criminal proceedings arose, or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged.

2. Buss JA referred at [47] to R v Best [1998] 4 VR 603, 606 where Callaway JA (Phillips CJ & Buchanan JA agreeing) said:

   The two main divisions of propensity evidence are similar fact evidence and relationship evidence. Similar fact evidence usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible.

3. His Honour was, in KMB, repeating his observations from a year earlier in PIM v The State of Western Australia (2009) 196 A Crim R 516 [237] ‑ [238].

Only source is complainant - 'bootstraps argument'

1. On behalf of the accused objection is taken, both because of a lack of specificity and also by referring to 'this sort of "bootstrapping" evidence': par 8 of the written submissions.

2. In the case of IMM v The Queen (2016) 257 CLR 300 the High Court discussed the issues that arise when the prosecution seek to adduce evidence of uncharged acts when the only source of such evidence is the complainant.

3. In IMM after a trial in the Supreme Court of the Northern Territory, the appellant was found guilty of two counts of indecent dealing and one count of sexual intercourse with his step-granddaughter. The complainant's evidence was the only direct evidence of the commission of the offences. Over objection from the defence, the prosecution was relevantly permitted to adduce certain 'tendency evidence' under the Evidence (National Uniform Legislation) Act (NT).

4. The tendency evidence was given by the complainant and was that while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant's leg.  The trial judge considered that the evidence was capable of showing that the appellant had a sexual interest in the complainant, and that there was a strong temporal nexus between this incident and the charged acts.

5. As the majority, French CJ, Kiefel, Bell & Keane JJ, noted at [61] ‑ [62]:

   It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.

   In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

6. In a similar vein, Gageler J said [107]:

   The difficulty of concluding that the complainant's testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated. Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue. There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offences charged. There was no rational basis for the jury to accept one part of the complainant's testimony but to reject the other. The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant's testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury's assessment of that probability based on its consideration of that part of the complainant's testimony which constituted direct testimony about what the appellant in fact did on the occasions of the offences. The probative value of the tendency evidence could not be regarded as significant.

7. In considering those holdings in IMM Buss P observed in RMD v The State of Western Australia [2017] WASCA 70 [52(h)]:

   So, in the case of an uncharged incident, where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.  However, it is not correct to say that a complainant's unsupported evidence of an uncharged incident can never have significant probative value.  There may be some 'special features of a complainant's account' of an uncharged incident which give it significant probative value but, without more, a complainant's account of an uncharged incident will not, at least ordinarily, have the requisite degree of probative value.

8. I immediately note that in this case the evidence is not led to show that the accused had a sexual interest in his daughter, nor that the evidence of the uncharged acts by the complainant has significant probative value. Rather, it is to be adduced as background and contextual evidence for the reasons set out by the State at par 30 of their written submissions.

9. There are innumerable cases where contextual or relationship evidence has been admitted notwithstanding the fact that the only source is the complainant. See for example the directions given at trial in KMB as set out at [64(d)] and [74(a)].

10. In the Victorian case of Ashley v The Queen [2016] VSCA 246 the prosecution led evidence of 'uncharged acts' in order to provide 'context' to the charges on the indictment. The evidence of a series of unspecified acts of sexual misconduct that were not directly associated with the nine incidents giving rise to the charges laid indicated that the applicant offended on a regular basis, entirely separate from the charged incidents. The trial judge ruled that such evidence could be led as context evidence: [73].

11. As is the case in the present matter (ts 20 and 23), in Ashley defence counsel argued that there were insufficient particulars given in relation to when and where the uncharged acts took place. It was submitted that this lack of adequate specificity caused unfair prejudice to the accused: [74].

12. The court noted at [80] that in Director of Public Prosecutions v Martin (A Pseudonym) [2016] VSCA 219 the Supreme Court of Victoria - Court of Appeal set out some of the principles that it considered governed this topic. Those principles were repeated in Ashley at [81] in some detail:

    The Court said: it is necessary to consider, albeit briefly, the current state of the law regarding so-called 'context evidence', particularly with regard to sexual offences.

    The High Court addressed that issue in HML v R (2008) 235 CLR 334. The case concerned three separate, unrelated trials in the District Court of South Australia in which three men were convicted of sexual offences, all of them involving a female relative who was at the time a minor. In each case the complainant gave evidence of previous acts of the accused against her which were additional to the acts with which he was charged.

    In the first of the three cases, HML, the question was whether 'relationship evidence' could be admissible to provide 'context', and/or to support 'propensity reasoning'.  There appeared to be broad agreement amongst members of the Court that evidence of uncharged sexual offences could be received and then used as evidence of one or other, or both, context or propensity.

    Three members of the Court, Gleeson CJ, Crennan and Kiefel JJ, held that insofar as the evidence explained and rendered intelligible the complainant's account of the charged acts, or showed that she was not purporting to describe an isolated event in circumstances where, otherwise, her account might appear implausible, it was admissible subject to the general principles concerning probative value and prejudicial effect.

    Three other members of the Court, Gummow, Kirby and Hayne JJ, took a different view. They said that the only relevant basis for admitting such evidence was to show that the accused had a sexual interest in the complainant, and that he had given effect to that desire by action.

    Justice Heydon concluded that the evidence of uncharged acts was admissible similar fact evidence. In those circumstances, it was unnecessary to decide whether the tender of that evidence could have been supported on any other basis, had that been the only basis relied upon. In the circumstances the appeal in HML was dismissed.

    In the second of the three cases, SB, the trial judge had specifically directed the jury that the evidence of uncharged acts was potentially helpful in evaluating the complainant's evidence of the charged acts which 'may otherwise appear to be unreal or not fully comprehensible'. He had warned the jury against using the evidence to establish propensity. In that case, the appeal was dismissed.

    In OAE, the third of the three cases before the Court, the trial judge permitted the evidence of uncharged acts to be led as being relevant to show the nature of the relationship between the accused and the complainant, and to show that the alleged rape 'did not happen out of the blue'. He warned the jury against using the evidence to establish propensity. However, he did not give a direction about the standard of proof required of the evidence of other conduct.

    It has been suggested that, as a result of HML, it remains unclear whether or not relationship evidence can avoid the propensity exclusionary rule by being treated as context evidence.

    Viewed in the way that some members of the Court in HML described, relationship evidence arising out of what were characterised as 'uncharged acts' serves as a form of credibility bolstering. No doubt that incidental effect is open, as well, where the evidence is also admissible for a propensity purpose. The problem that arises is what happens when, as in the present case, propensity reasoning is eschewed, and the evidence is sought to be led as context only? …

    In Sadler v R following the High Court decision in HML. The Court (Nettle, Redlich and Dodds-Streeton JJA) said: With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed.

    In Roach v R, the High Court in both the plurality judgment and the judgment of Heydon J briefly considered HML. In Roach, the trial judge directed the jury that the evidence of uncharged acts was led solely for the purpose of providing 'a true and proper context' to enable the jury to 'properly understand' the events that were the subject of the count of assault on which the accused was presented. The plurality judgment stated that, in these circumstances, it was neither necessary nor appropriate for the trial judge to give the jury any direction about the standard of proof to be applied to the evidence of uncharged acts.

13. I note that both Ashley and Martin considered IMM where the High Court upheld the appeal. In doing so, the High Court did not refer to its earlier judgment in HML.

14. In their joint judgment, French CJ, Kiefel, Bell & Keane JJ made the observation I have referred to at [19] which the court in Martin said at [104], is not easily reconciled with HML.

15. Their Honours (Redlich, Weinberg & McLeish JJA) in Martin observed [105]:

    On a literal interpretation of what their Honours said, evidence of other sexual misconduct involving the same complainant, led as to context, would rarely be admissible. Such evidence, led to support the credibility of a complainant's account, will seldom itself be bolstered by evidence from a source independent of the complainant. Sexual offending against children normally takes places in circumstances of secrecy. As regards the possibility that there may be 'some special features' of a complainant's account of an uncharged incident that give it 'significant probative value', the difficulty is in understanding what precisely the members of the Court had in mind in that regard.

16. Whilst acknowledging the potential difficulties articulated in reconciling aspects of IMM with HML, I remind myself that the State are not seeking to lead this evidence as propensity evidence nor to demonstrate a sexual interest in the complainant.

17. In my view all of the uncharged acts alleged by the complainant in her witness statement are clearly relevant.

18. The evidence explains why the accused had the confidence to engage as alleged on this particular occasion, against his daughter then aged either 8, 9 or 10, at a time when he was still married and living with the complainant's mother, given that the complainant had not complained to her mother on the earlier occasions.

19. It negates any suggestion that the charged acts occurred 'out of the blue' as an isolated incident and are therefore inexplicable. It allows the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury: HML (502) [513] (Kiefel J) cited in Roach v The Queen (2011) 242 CLR 610 [42].

20. It explains why the complainant is unclear about the precise dates of the offences charged. If the day of the charged events was the only occasion upon which the accused sexually interfered with the complainant it would be a remarkable event. A jury would be entitled to reason that it would be bound to stand out in the complainant's mind so that, if it truly happened, even looking back to events as a child, she should be capable of far greater precision than she is, as revealed by the wide period stipulated in the indictment.

21. On the other hand if the charged acts are merely one example of a number of such activities conducted by the accused over a number of years both in New Zealand and Western Australia such lack of precision might be more explicable.

22. The evidence of the uncharged acts also explains why a more timely complaint was not made and also why the complainant did not resist. If the charged acts were the one and only occasion when any such event occurred, a jury might reason that a complaint to some adult, in particular the mother would be expected. Conversely if the complainant was habituated to sexual interference by her father, which had commenced at a very young age of four or five, the lack of complaint in respect of the charged acts, together with the apparent passivity, might again be more understandable.

23. There is nothing expressly said in IMM, or decisions of intermediate appellate cases that have considered  IMM, that suggests that the position that hitherto applied in relation to relationship evidence at common law, given solely by the complainant, is now changed.

24. Whilst in some instances the uncharged acts described by the complainant lack specificity, for example at [20] that is not particularly unusual in cases of this nature.

1. In other instances, such as at [43] the alleged conduct is described in considerable detail although the complainant is not precise as to times, save that the conduct frequently occurred on weekends when they were living at a particular address. 

2. In my view the uncharged acts described by the complainant at [13] ‑ [20] and [41] ‑ [43] are relevant and admissible as relationship evidence at common law and the State are permitted to lead evidence concerning them.

The uncharged sexual acts upon the complainant's two stepsisters and the proven conduct upon a third stepsister

1. As I have noted, the State wish to adduce, as relationship and propensity evidence pursuant to s 31A, evidence of uncharged sexual acts said to have been committed by the accused upon the complainant's two stepsisters many years earlier and proven sexual misconduct upon a third stepsister, again many years earlier.

The legislation - s 31A Evidence Act 1906 (WA)

(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.

1. The most recent appellate consideration of s 31A are the cases DKA v The State of Western Australia [2017] WASCA 44 (Buss P, Mazza JA & Beech J) and RMD v The State of Western Australia.  In the latter case separate judgments were delivered by Buss P and by Beech J (with whom Mazza JA agreed).

Suggested nature of evidence

1. The State submit that the evidence of the complainant's oldest two stepsisters and the proven conduct in respect of the third stepsister is both propensity and relationship evidence as defined by s 31A.

2. In RMD Buss P observed at [44] that the categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

3. The definition of propensity evidence has been described as being extraordinarily wide: Preston v The State of Western Australia [2012] WASCA 64 [36] and Asplin v The State of Western Australia [2013] WASCA 72 [30].

4. In my view the evidence the State wishes to lead constitutes both propensity and relationship evidence.

Facts in issue

1. The admissibility of s 31A evidence such as this will always depend on the purpose for which it is being used. It must be at least relevant with regard to the fact(s) in issue, although mere relevance does not suffice. If it is not relevant it is inadmissible per se.  It is necessary to identify the 'work' the propensity or relationship evidence is tendered to do: per McLure JA in Noto v The State of Western Australia (2006) 168 A Crim R 457 [23].

2. In the present case the facts in issue are firstly, did the accused have a sexual interest in the complainant as a child? Secondly, as confirmed by counsel for the accused (ts 19), whether the events alleged by counts 1 ‑ 4 ever happened. This is unsurprising.

Description of propensity/relationship evidence

1. The evidence relied upon by the State is as follows. SS, the accused's oldest stepdaughter, recalls that when she was about 10 1/2 years old and her mother was in hospital giving birth to her brother, the accused pinned her down on his bed and she felt something, either a penis or a finger, inside her vagina. This would have been in January 1967.

2. When SS was about 13 years old, in about 1969, she was in the accused’s bed alone with the accused. The accused touched her on the vagina with his hand. He got on top of her and put either his finger or penis inside her vagina.

3. No complaint was made at the time and these allegations were formally raised for the first time in a statement dated 14 April 2016.  They were brought to the attention of the accused on 4 May 2016 some 47 ‑ 49 years after they are alleged to have occurred.

4. CS, the accused's second stepdaughter, recalls that in about 1970 when she was about 11 years old she was sleeping in bed initially in between her mother and the accused.

5. In the morning, after her mother had left for work, CS woke up to the accused touching her on the vagina, which felt like he was trying to part her labia. CS also felt the accused's penis between her legs. The tip of his penis was touching the outside of her vagina.

6. No complaint was made at the time and these allegations are formally raised for the first time in a statement dated 16 April 2014.  They were brought to the attention of the accused on 4 May 2016 some 46 years after they are alleged to have occurred.

7. In respect of SS and CS, I remind myself that notwithstanding the fact that if this evidence was admitted it would need, at trial, to be the subject of the type of rigorous Longman warning identified in MB v The State of Western Australia [2016] WASCA 160, at this stage the nature and quality of the evidence to be adduced will need to be considered accepting it at its highest in favour of the prosecution: IMM [44]; DKA [35]; RMD [52(b)].

8. In respect of the third stepdaughter, RR, I have had regard to an affidavit sworn by a constable of the New Zealand police, Shannon Barnett on 9 May 2017.

9. The affidavit reveals that the conviction is for an offence of sexual intercourse with a girl under the accused's care contrary to s 131 of the Crimes Act 1961 (NZ).

10. This offence is relevantly committed if a person has or attempts to have sexual intercourse with his stepdaughter if she is aged under 20.  It is no defence that the girl consented. The maximum penalty for such an offence was seven years imprisonment.

11. The offence was committed on 25 February 1976.  The accused entered a guilty plea to the offence in the Magistrates Court in Papakura New Zealand on 17 May 1976 and was sentenced on that day.

12. RR was 15 years old in May 1976.  RR has not provided a statement but the State are in a position to call to give evidence her mother, the accused's then wife, to testify that she walked in on the accused having sexual intercourse with RR.

13. The New Zealand police offence report, Annexure B to Constable Barnett's affidavit, refers to a complaint by RR that indecent assaults and then sexual intercourse had been occurring since the age of 10. However, in the absence of any statement from RR I rely only upon the fact of the conviction for a single offence on 25 February 1976, coupled with the evidence of RR's mother as to what she observed on that occasion.

14. The State rely on the following answers in the accused's record of interview dated 4 May 2016, which they submit constitute admissions against interest in respect of the unproven conduct against SS and CS.

15. At page 61 of the interview, the accused made a reference to the complainant wanting money. He then made a reference to going to court previous to her. He said it happened to one of the other girls (page 62).

16. Although on the material before me the accused only faced a court in respect of his conduct against RR, at page 63 he referred to the fact he went to court for all of them, that is SS, CS and RR.

17. He referred, at page 64, to the fact that most of the time they would jump in the bath with him and he would, 'just nod off in there'.

18. He said it was, 'mostly fondling' and appeared to agree with the proposition that this was with all three of his stepdaughters, but then seemed to restrict it to CS and RR. He described the fondling as being on their breasts and their vaginas. He said after the case it was, 'all over' and he did not do it after that. He admitted to fondling the breasts and the vagina of the three stepdaughters (page 65).

19. He asserted at page 70 that he derived no sexual gratification from that.

20. In my view the answers by the accused, viewed in their entirety, are too equivocal and too disparate from SS and CS's actual allegations to take them into account at this stage, when assessing the probative value of the propensity evidence of SS and CS.

21. I do not make any finding as to whether those portions of the accused's answers in interview are admissible at trial.

Significant probative value

1. The State submit that the evidence of SS and CS of sexual offending by their then stepfather, the accused, and the proven sexual offending upon RR, the third stepdaughter of the accused, independently shows the accused's sexual interest in each of his three stepdaughters. The evidence is relevant to the facts in issue in the present case and is relevant to a degree where it possesses the requisite significant probative value, as defined, either by itself or having regard to other evidence to be adduced.

2. The defence submit that there is no probative, let alone significant probative value in any of the evidence in this case.

Test of significant probative value

1. In the joint judgment in DKA the court held at [30](a) that on the question of whether evidence has significant probative value, it is well established that evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

2. The facts in issue in this case, as noted, being the alleged sexual interest by the accused in his daughter when she was aged 8, 9 or 10 and whether, on a particular occasion, he acted on such interest so as to touch her in the four ways that are alleged.

3. The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue: DKA [30](b).

4. The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence': DKA [30](c).

5. There is no necessary requirement that propensity evidence exhibit a 'striking similarity' or 'underlying unity' with the charged act in order to be admissible.  Those concepts are not to be transplanted from their common law setting and used as glosses on or substitutes for the statutory phrase 'significant probative value'.  But the nature and extent of any similarity is relevant to whether the evidence has significant probative value: DKA [44].

6. I am required to compare the nature, quality, extent and duration of the conduct the subject of the propensity evidence with, respectively, the nature, quality, extent and duration of the four charges on the indictment: DKA [43].

7. In so doing I am required to consider if the evidence to be adduced rationally increases the probability that the accused committed the charged acts, including by the capacity of that evidence to support the credibility of the complainant's account of the charged acts: RMD [52(d)] (Buss P). If it does so it has probative value. The question then becomes does it have significant probative value?

8. I note that in DKA the probative value of the propensity evidence was diminished by the fact that it occurred more than 20 years before the first count on the indictment is alleged to have occurred. The defence in the present case place considerable emphasis on the fact that in respect of SS the gap between the relevant events is between 17 and 21 years, in the case of CS 16 ‑ 18 years and in the case of RR, 10 ‑ 12 years.

9. However, in DKA that significant temporal gap was accorded less weight than the fundamental difference between the nature, quality, extent and duration of the conduct the subject of the propensity evidence and that the subject of the charges: [48].

10. I will return to the lapse of time issue a little later in this judgment.

11. A propensity which is identified at a high level of generality will, ordinarily, be an obstacle to its having significant probative value.  On the other hand, the closer and more particular the similarity between the alleged propensity and the alleged charged acts, generally speaking the greater the likelihood that the proposed propensity evidence will have significant probative value: RMD [52(e)] (Buss P).

Comparing the evidence of SS compared to the alleged charged acts

1. SS was the accused's stepdaughter.  The complainant is his daughter. In each case the mother of the alleged victim was the same and in each case the accused was married to the mother, (albeit in respect of SS he married the mother the month after the first alleged offending in 1967).

2. SS was aged 10 and 12 on the two occasions she describes. The complainant was aged between 8 and 10.

3. In each case the opportunity to offend arose because each alleged victim was in the care of the accused at the time of the sexual misconduct. In each case the offending is alleged to have occurred when the complainant's mother was either not present in the house or, in the second event described by SS, not in the bedroom. In each case the offending is alleged to have occurred in the bedroom shared by the accused and the child's mother.

4. SS states that in each case the accused penetrated her vagina with either his finger or penis. SS does not describe any prelude to this offending other than the accused getting on top of her.

5. The complainant alleges that whilst in her parents' bedroom, the accused kissed her lips with an open mouth, touched her breasts underneath her clothing, pulled her pants down, wet his fingers, rubbed her vagina and then rubbed his penis against her vagina from behind.

Comparing the evidence of CS compared to the alleged charged acts

1. CS was the accused's stepdaughter.  The complainant is his daughter. In each case the mother of the alleged victim was the same and in each case the accused was married to the mother.

2. CS was aged 11. The complainant was aged between 8 and 10.

3. In each case the opportunity to offend arose because each alleged victim was in the care of the accused at the time of the sexual misconduct. In each case the offending is alleged to have occurred when the complainant's mother was not present in the house.

4. CS states that after her mother had left for work, she woke up in bed to the accused touching her on the vagina, which felt like he was trying to part her labia. CS also felt the accused's penis between her legs. The tip of his penis was touching the outside of her vagina.

5. The complainant alleges that whilst in her parents' bedroom the accused kissed her lips with an open mouth, touched her breasts underneath her clothing, pulled her pants down, wet his fingers, rubbed her vagina and then rubbed his penis against her vagina from behind.

Comparing the proven conduct against RR compared to the alleged charged acts

1. RR was the accused's stepdaughter. The complainant is his daughter. In each case the mother of the alleged victim was the same and in each case the accused was married to the mother.

2. RR was aged 15. The complainant was aged between 8 and 10. In the case of RR the accused had sexual intercourse with her.

3. The complainant alleges that whilst in her parents' bedroom the accused kissed her lips with an open mouth, touched her breasts underneath her clothing, pulled her pants down, wet his fingers, rubbed her vagina and then rubbed his penis against her vagina from behind.

Conclusion on significant probative value

1. For the purposes of this application, as I have noted, I am required to take the prosecution case on the propensity evidence at its highest.  Further I must assess the propensity evidence by also having regard to other evidence adduced or to be adduced.

2. I am not required to assess the admissibility of each of the three forms of propensity evidence (SS, CS and RR) individually, as opposed to dealing with the evidence as a whole: LFG v The State of Western Australia (2015) 48 WAR 178 [168] (Martin CJ), with whom Buss JA agreed [298]; Mazza JA agreeing with Buss JA in all respects [423].

3. Viewed collectively the evidence, taken at its highest, demonstrates the following relevant timeline of events:

   January 1967: SS is 10, CS is 7, RR is 6. Accused is about to marry their mother. Accused offends against SS.

   1969:SS is 13, CS is 10, RR is 9. Accused is married to their mother. Accused offends against SS.

   1970:SS is 14, CS is 11, RR is 10. Accused is married to their mother. Accused offends against CS.

   1976:SS has now moved out. CS is 17, RR is 15. Accused is married to their mother. Accused, by his guilty plea, accepts he had sexual intercourse with RR.

   1986 ‑ 1988:    on a single occasion the accused is alleged to have offended as per the indictment. The complainant is aged 8 ‑ 10 and is the only female child in the house. Accused is married to her mother.

4. The issue in the case turns largely upon the credibility of the complainant and the accused.

5. In my view the propensity evidence, viewed both individually and collectively, emphatically demonstrates an ongoing and enduring propensity to engage in sexually offensive behaviour against the female children of the accused's then wife aged between 8 and 15 years of age.

6. Further it has the capability of explaining why the accused had the confidence to offend as he allegedly did, because as of 1986 ‑ 1988 neither SS nor CS had formally complained about his conduct and the mother of the complainant had tolerated, in the sense that the marriage continued, the accused having sex with her third daughter 11 ‑ 13 years earlier.

7. By analogy with the observations of Martin CJ in LFG v The State of Western Australia [163], given the comparative infrequency with which an adult man has a sexual interest in his wife's daughter whether his stepdaughter or natural daughter, the accused's sexual interest in his three stepdaughters, as demonstrated by the evidence of SS and CS and by his prior conviction against RR, significantly increases the likelihood of his commission of the offences alleged.

8. In my view, neither the fact that the complainant is the accused's natural daughter, as opposed to his step daughter, nor the lapse of time between the period 1967 ‑ 1976 and the period 1986 ‑ 1988, significantly diminishes the probative value of the propensity evidence.

9. So far as lapse of time is occurred I have had regard to and applied the principles discussed in Hall v The State of Western Australia (2013) 232 A Crim R 107 where there was a significant gap of time: [39], [45] and [102] and SJX v The State of Western Australia [2010] WASCA 243 where, as can be seen from [10], there was also a significant gap of time.

10. I accept the State's submissions that an older piece of propensity evidence, e.g. the alleged offending against SS in January 1967, may take on greater significance once it is shown to be the beginning of an ongoing course of conduct over many years. In accepting that submission I bear in mind the acknowledged offending against RR in 1976.

11. The propensity evidence, when considered together with the evidence of the charged offences, points to the accused having an established, entrenched and enduring disposition to sexually abuse female members of his family aged between 8 and 15, whether stepdaughters or his natural daughter.

1. Moreover, the opportunity to offend in a like way after 1976 was limited given that SS had moved out in 1974, CS and RR in 1976 and the complainant was not born until late 1977.

2. I reject the defence submission in written submissions and at (ts 28) that proof of an enduring tendency to have a sexual interest in a young female member of one's family at the age of 24, 26, 27, 33 and then 43 ‑ 45 requires expert evidence. It is quintessentially a matter for a jury drawing from their collective life experiences.

3. I do not regard APC v State of Western Australia (2012) 224 A Crim R 59 [97] as authority for the proposition advanced in this case. The issues in that case are readily distinguishable.

4. The evidence of SS and CS and the evidence of the proven conduct against RR has, in my view, significant probative value.

The probative value of the evidence compared to the degree of risk of an unfair trial

1. As noted in DKA the authorities establish the following points as to the comparison required by s 31A(2)(b). First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value.

2. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury.

3. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues.

4. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'.

5. The weighing process required by s 31A(2)(b) is a difficult one, as it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair-minded person.

6. As noted by Martin CJ in LFG [165], because of the significant probative value of the evidence of the alleged and proven conduct against the accused's then stepdaughters, the admission of this evidence would no doubt increase the likelihood of the accused's conviction and, to that extent, is prejudicial to his interests.

7. 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 the seminal case of Dairv The State of Western Australia (2008) 36 WAR 413. The risk of such impermissible reasoning can, of course, be mitigated by appropriate directions to a jury: LFG [165].

8. I conclude that the probative value of the propensity evidence that I have concluded has significant probative value, 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.

9. The risk of an unfair trial referred to in s 31A(2)(b) is, in the context of the present case, that the jury would act illogically and reason that simply because of his past sexual misconduct the accused must have committed the offences charged: Asplin [32].

10. Section 31A(2)(b) makes plain what is well-known about propensity evidence - that its admission will, almost always, give rise to a risk of an unfair trial. The potential risk most relevant to this case is the risk that a jury will act illogically and reason that, merely because the accused engaged in similar criminal conduct in the past, he must be guilty of the offence charged: Preston [40].

11. A factor which must be included in the assessment of the risk of an unfair trial is any direction which could be given to neutralise that risk: Preston [41].

12. When considering if the probative value of the evidence outweighs the risk of an unfair trial, I must take into account the mitigation of that risk by an appropriate direction: LFG [165]. I am entitled to assume that appropriate directions would be given.

13. I conclude that appropriate directions to the jury would mitigate the risk of an unfair trial to acceptable levels, having regard to the significant probative value of the evidence.

14. Accordingly, I allow the State's application for leave to lead evidence of the alleged and the proven conduct against the accused's then stepdaughters under s 31A of the Act.