The State of Western Australia v WCM - [2014] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: GERALDTON

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WCM [2014] WADC 120

CORAM: STAUDE DCJ

HEARD: 2 SEPTEMBER 2014

DELIVERED : 2 SEPTEMBER 2014

FILE NO/S: GER IND 38 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
WCM

Catchwords:

Criminal procedure - Joinder of multiple counts of sexual offences against children - Application for separate trials - Previous consideration by Court of Appeal - Whether discontinuance of some counts affects probative value of propensity evidence - Significance to be given to continuity of alleged offending

Legislation:

Criminal Procedure Act 2004 s 133(3)

Result:

Application for separate trials dismissed

Representation:

Counsel:

The State of Western Australia : Mr L Hobson
Accused: Mr A E Monisse

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Andrew Monisse

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

APC v State of Western Australia [2012] WASCA 159
The State of Western Australia v WCM [2014] WASCA 38

STAUDE DCJ: [Judgment delivered extemporaneously on 2 September 2014 and edited from the transcript.]
The accused has been ordered to stand trial on an indictment dated 18 December 2012, which alleged 34 sexual offences involving six complainants.
At the callover yesterday the prosecution handed up a discontinuance of the indictment and a fresh indictment, dated 27 August 2014, charging the accused with 19 counts of sexual offending against five complainants over a period from 1977 to 1995 and one count of doing an indecent act in public at a time between 1991 and 1993.
In consequence of the discontinuance an application has been made by the defence pursuant to s 133(3) of the Criminal Procedure Act 2004 for a separate trial of counts 16 to 20.
There is no issue that all counts on the indictment are properly joined by reason of the fact that they are of a similar nature. The question is whether a separate trial is required in the interests of justice. A court may order separate trials if it is satisfied that the accused would be prejudiced because the indictment contains two or more charges.
The discontinuance to which I have referred effectively deletes 13 counts involving one complainant and one count of doing an indecent act in public. The alleged offences were said to have been committed in a period from 1993 to 1987.
The new indictment contains a number of groups of offences. In my description of the offences I will use the expression 'indecent dealing' to include inciting or encouraging another to indecent deal with the complainant, and also to include inciting the complainant to indecently deal with another. The precise details of the alleged offences are not significant and it is enough for present purposes to describe them broadly.
Counts 1 to 3 are alleged offences of indecent dealing between 31 December 1976 and 27 May 1978. They involve the female complainant VSC. She was then aged 4 or 5 years. The accused was then 13 or 14, having been born in 1993. The alleged offences involve genital touching.
Counts 3 and 4 are alleged offences of indecent dealing between 31 December 1976 and 27 May 1978. They involve the female complainant, MJK, who was then 4 or 5 years old. These charges also allege genital touching.
Counts 6, 7 and 8 involve a period between 31 December 1976 and 1 January 1979. They concern the female complainant SRC and consist of one count of genital touching and two of penile penetration of the mouth of the complainant. The complainant would have been aged between 3 and 5 years.
Counts 9 to 15 are six alleged offences of indecent dealing and one of carnal knowledge, said to have occurred between 31 December 1977 and 7 June 1984. The male complainant, AGC would have been aged 6 or 7 in the period of the first alleged offence and nine in the period of the last. The overall period of offending in respect of this complainant is five and a half years.
Count 16 is one of doing an indecent act in a public place, said to have been witnessed by the complainant DJC on a date between 31 December 1991 and 1 January 1993; effectively, during 1992.
Counts 17 to 20 are three counts of indecent dealing and one of sexual penetration over a period from 1 June 1993 to 31 December 1995. The complainant DJC was aged between 10 and 12 years. The accused was, at that time, 30 to 31.
The significance given by the defence to the discontinuance is that the deletion of 13 charges alleged in respect of one MJS, between the time period of the charges said to have been committed by the accused when he was 13 to 20 years of age and the time of those alleged to have been committed by him when he was 30 to 31 years of age interrupts the continuity of alleged offending on which the prosecution relied to resist the earlier severance application and which the Court of Appeal found to be a reason for overturning an earlier order that there be a separate trial in respect of counts 1 to 8, being those involving the female children, allegedly committed when the accused was 13 to 15 years of age.
In that decision, The State of Western Australia v WCM [2014] WASCA 38, McLure P (Buss JA) said [25] ‑ [27]:
In summary, the evidence in support of each charge, in isolation and together, is capable of demonstrating a tendency on the part of the respondent to be sexually attracted to children; to offend in a sexual manner against children in his extended family group; and to do this regularly throughout the course of his teenage years and adult life. Against that background little, if any significance can be attached to the fact that the respondent commenced his alleged offending against young girls and, at the age of 14 or 15 turned his attention to young boys. The evidence in each of counts 1 to 8 is of significant probative value in respect of counts 9 to 34 and vice versa.
Moreover, there is no reasonable foundation for the primary judge's conclusion that there was a risk of an unfair trial because of the revulsion a jury would be likely to feel in relation to counts 1 to 8. Although the complainants were younger than the complainants in the other counts, the respondent was also a child. Further, the first eight counts did not involve alleged acts of masturbating the complainants or penile‑anal penetration, unlike some later counts. The risk of an unfair trial is very small and readily guarded against by appropriate directions.
As the evidence in respect of counts 1 to 8 is admissible in counts 9 to 34 and vice versa, the condition enlivening the discretion in section 133(3) is not satisfied, there being no unfair or impermissible prejudice occasioned by its admission.
Mazza JA said [53] ‑ [55]:
What differentiates the present case from APC is that in this case, unlike APC, the evidence to be adduced by the State is capable of showing that from the age of 14 and on a regular and consistent basis until he was 31, the respondent had a sexual interest in young children who were part of his extended family group and that he acted on that interest. As such it is significantly probative in the proof of counts 9 to 34 and vice versa.
Further, in my opinion, 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. This is because it is important that the jury see the respondent's offending conduct as a whole in the context that it is part of a pattern of sexual behaviour, which started in his teenage years and continued well into adulthood.
It is relevant that the jury will be directed that it must not act illogically and find the accused guilty merely because he has committed counts 1 to 8. The nature of the allegations in counts 1 to 8 is not such as would overwhelm a jury and cause it to reason illogically despite a direction to the contrary.
Mr Monisse submits that the decision of the Court of Appeal, given the reasons of McLure P and Mazza JA to which I have referred, can be seen to be based on the evidence of the charges which are now discontinued showing continuity of sexual interest in children throughout teenage years and adult life. It is submitted that the interruption should therefore be viewed as affording grounds to revisit the question of separate trials.
The Court of Appeal was clearly of the view that the evidence of the early alleged offences is relevant to the later ones. On my reading of the decision, although there was reference in both sets of reasons to continuity through teenage years, the Court of Appeal did not go so far as to make the continuity a requirement for cross‑admissibility; it was simply a feature of the evidence. The decision of the Court of Appeal, in my view, is not dependant on a chronological continuity of alleged offending.
The circumstances alleged in respect of counts 1 to 8 in the previous indictment have features that the Court of Appeal did not think made it necessary to try those counts separately.
As my summary of the new indictment shows, the only period in which no offending against individual complainants is alleged is June 1984 to June 1993, being from when the accused was 20 until he was 30. That is not to overlook the offence charged in count 16 of doing an indecent act in public between 31 December 1991 and 1 January 1993.
In my view, the Court of Appeal was emphatic in pronouncing the error of the previous order for separate trials. Both McLure P and Mazza JA spoke of the evidence of the charges as a whole as demonstrating a sexual interest in children throughout the accused's teenage and adult years. Neither differentiated between alleged offences involving girls aged 3 ‑ 5 years when the accused was aged 13 to 14, and those allegedly committed against boys when he was aged 14 to 20. Nor was there any differentiation made between the teenage and young adult offences alleged on the one hand and the offences alleged to have been committed at age 30 and over.
Nothing in their Honours' descriptions of the alleged offending behaviour indicates that a different view would have been taken if the indictment had been in its present form. Moreover, I note that Mazza JA, while holding to what he said in APC v State of Western Australia [2012] WASCA 159, found no material difference in the nature of the attraction demonstrated in the first eight counts and the remainder.
The Court of Appeal also made it clear that the fair-minded people test was satisfied in this case, as a jury could be given appropriate instructions as to the use to which the evidence of the other charges could be put in relation to the charge that they were considering.
In all the circumstances I am not persuaded that if no order for separate trials were made the accused would be prejudiced, that is to say unfairly disadvantaged forensically, should the trial of all counts proceed. For these reasons I would dismiss the application for a separate trial in respect of counts 16 to 20.