The State of Western Australia v West - [2013] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WEST [2013] WADC 132

CORAM: O'NEAL DCJ

HEARD: 6 AUGUST 2013

DELIVERED : 16 AUGUST 2013

FILE NO/S: KAL IND 14 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
HARLEY DARREN WEST

Catchwords:

Application to lead propensity evidence - Prior convictions for sexual offences against children - Facts admitted for sentencing purposes after a plea of guilty

Legislation:

Evidence Act 1906

Result:

Application allowed

Representation:

Counsel:

The State of Western Australia : Ms E L O'Donnell
Accused: Ms M R Barone

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Barone Criminal Lawyers

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

State of Western Australia v Osborne [2007] WASCA 183

O'NEAL DCJ: By an application dated 19 July 2013 the State asks for leave pursuant to s 31A of the Evidence Act 1906 to lead evidence at trial of certain conduct of the accused. The conduct relates to a number of offences in respect of which the accused has pleaded guilty. Most of the offences precede the date of the offences now alleged. One offence post‑dates the offences alleged here.
Mr West is now charged with three offences in indictment KAL 14 of 2013. Count 1 alleges that on 5 April 2001 at Warburton the accused unlawfully detained LM. Count 2 alleges that on the same date and place the accused sexually penetrated LM, without her consent, by penetrating her vagina with his penis. Two circumstances of aggravation are alleged. The first is that Mr West was armed with a dangerous weapon, namely a knife. The second circumstance is that LM was of or over the age of 13 years and under the age of 16 years. There is a third count which is an alternative to count 2, and that is that Mr West sexually penetrated a child of or over the age of 13 years, and under the age of 16 years.
No admissions pursuant to s 32 of the Evidence Act have been made or so far as I am aware are contemplated. All of the elements of each of the offences are in issue.
Somewhat uncommonly that includes the element of the age of the complainant. That may be because when she gave a statement in April of 2001 LM said that she was 15 years old, her birthday was August 16, but that she did not know what year she was born. By a statement dated 21 August 2001 LM's mother has said that the complainant was born at the Kalgoorlie Hospital on August 16, 1986 and that she was accordingly 14 years old in April 2001. Further disclosure may resolve the issue. For the purpose of this application I will rely on the mother's statement as to the complainant's age.
Despite the fact that Mr West took part in a record of interview with the police on 8 April 2001 where he made a number of admissions, including having sex with the complainant at the time and place alleged, the State is also to be put to proof on the issue of sexual penetration. That may be because in the course of his interview Mr West described what from his perspective was an unsatisfactory act of sexual intercourse. He refers to some difficulty, including a lack of an erection. He did however give this answer to the question, 'Did you get your, did you get, did you get inside her?‑‑‑Only halfway'. Other answers provided by Mr West rather graphically suggest that there was a sexual penetration of the complainant's vagina. Nonetheless, counsel's instructions at this stage are that the element of sexual penetration is in issue. In fact, as I have said, all elements of each of the offences are in issue.

The application

Mr West has a history of engaging in sexual behaviour with children of the age of the complainant. It is that history which the State wishes to place before a jury at the trial of the charges on this indictment.
The materials provided in support of the State's application include, apart from very comprehensive submissions, a 'Schedule of Prior Convictions' which lists the convictions I have referred to and, in respect of each, a list of what are described as particulars of the offences. These it might be said represent a slightly optimistic high water mark as to the surrounding circumstances of at least some of the offences.
There is also a bundle labelled Booklet of Propensity Materials that includes the indictments in respect of each offence, as well as transcripts of plea and sentencing hearings. That is the source of the evidence of admissions about other offending that I will refer to later in these reasons.
The evidence that the State wishes to rely on arises from events of offending against four adolescent children.
First, in March 1996 Mr West pleaded guilty to four counts of sexually penetrating BLS, a girl between the ages of 13 and 16 years.
These offences involve events of the penetration of the child's vagina with Mr West's penis on three days in July 1995.
The second and third events relate to two offences that Mr West pleaded guilty to in April 2007 before his Honour Judge Martino, as the chief judge then was.
Both offences occurred in October 1995. The first offence was one of indecently dealing with KAS, a boy over the age of 13 years and under the age of 16 years by Mr West attempting to insert his penis into the boy's anus. The second offence was one of sexually penetrating KLS, a girl of over the age of 13 years and under the age of 16 years, by inserting his penis into her vagina.
The last matter is an offence to which Mr West pleaded guilty in 2005. In about April of 2004, Mr West sexually penetrated VF, a girl between the ages of 13 and 16, by inserting his penis into her vagina.

Factual issues and evidence to be adduced at this trial

In her statement to the police in 2001, the complainant said that on Thursday, 5 April 2001, she and her two girlfriends were sitting on the veranda of one friend's house and smoking cannabis. She saw the accused walking up and down the road. He had a large knife in his right hand. The knife she said was in a black cover, presumably some kind of sheath. The accused called out to the girls to go and buy some 'dope', that is, some cannabis, for him. The complainant said that she said, 'give me some money, I'll go buy it'. The accused she said answered by saying to her and another one of the girls, 'come this way then I will give you some money'. When the friend said that she had to go and see her sister, the accused allegedly said, 'no, come on'.
The girl whose house it was went inside. The complainant and the other girl jumped the fence and stood on the road. Then the other girl walked off to go home to see her sister. The accused came up to the complainant and said, 'come on we go this way.' The complainant, thinking that the accused in fact wanted her to buy him cannabis said, 'you got no money' At this point the complainant said the accused said to her, 'come on now come walk with me', and he grabbed her shirt and started pulling her. At this stage the complainant thought that she was going to be raped. She said to the accused, 'let me go I want to go home'. And he said 'nah, just come with me'.
The complainant said that she was pulled some distance along the road and around the corner and then through the front gate of the house she described as 'the pink house'. No‑one lived in the house she said, and the front door was open. The accused she said kept holding onto her shirt while he looked in all of the rooms of the house, checking them. He pulled her through the house to the back yard where there was a broken down car. At this stage the complainant said, the accused put his knife on the roof of the car and said to her, 'lay down'.
The complainant said, 'I lay on my back. I was very scared'. The accused told her to take her clothes off and she removed her shorts and pants. The accused then moved her legs apart and sexually penetrated her vagina with his penis. The complainant said that she couldn't move while this was occurring.
When the accused finished he said 'follow me'. The complainant put her clothes back on and when they walked through the gate of the pink house she ran the other way. She ran straight to her grandmother's house and complained to her grandmother about what the accused had done, saying, 'He raped me'.
The accused was interviewed by the police on 8 April 2001. He admitted that on 5 April he had come upon the complainant and a group of kids, at some point early in the evening. They were walking around and smoking ganja, that is, cannabis. He stood for a time looking at them smoking cannabis. He admitted carrying a knife in a cover because he said, 'I always carry it around in the dark when I walk around. Someone might grab me you know, so I carry it around and walk around': ROI page 43. His description of the knife makes it apparent that it was a very large knife and perhaps a machete. He agreed that he and the complainant went to the pink house. His explanation as to why she accompanied him was not consistent. At one point he suggests that she goes with him to his 'old house' because she was smoking (apparently referring to ganja) 'cause she don't want to give it to someone else': ROI page 11. At another stage he describes the two of them walking away from where he met the complainant,
A.And after she went past we went down to the house.
Q.Okay. Did Liza want to go down or did you, did you …?
A.Ah, she looking back. No. She want to go, go to the girls.
Q.She wanted to go with the girls?
A.Yeah. I said no, we keep walking and we talked.
Q.Alright. And why did, why did she go with you and not with the girls?
A.Cos she was, she was getting a bit frightened.
Q.Okay. And why do you think that was?
A.Mm?
Q.Why do you think that was? Did you say something to her?
A.No. I said, oh, come here then, up, we go up here.
…
A.And she come [indistinct].
Q.Did you have to hold her hand?
A.I never hold her hand.
Q.No?
A.She was frightened of the knife cos I had a knife.
He denied ever holding onto the complainant as they were walking.
With respect to the alleged sexual penetration the accused said that in fact the complainant asked him for sex because she was high or 'stoned'. At one point he says that she wanted the ganja that he had – although he didn't smoke it himself, and that is why the complainant, who was high on cannabis wanted to have sex with him.
He also said that he told the complainant to go over to the house, presumably the pink house. He said, 'and she knew that straight away. I tell her we going to do the sex … he (sic) said hurry, because I want to go back to them girls: ROI pages 59 – 60. He admitted that he thought she was 15 or 16 years old.
He said they had sex quickly. He said that he did not threaten the complainant with a knife although she had seen it. He said that he showed her the knife although he couldn't explain why he did. He agreed as the complainant has said that he put the knife on the roof of the car while he engaged in sex with her. He said she was not frightened by the knife when he put it on the car roof. He said she was only frightened by it when she first saw the knife: ROI pages 63 – 64.
The State case is that the complainant was fearful of the accused, that the carrying of a large knife by the accused helps explain why that would be so, and that any compliance on her part was obtained by the use of force – holding her – in getting her to the pink house, and at least an implied threat of violence.
Putting aside issues of the complainant's age and whether or not there was a sexual penetration as alleged, it appears that the accused's case at trial may be that he never restrained the complainant and that she voluntarily accompanied him, that the knife that he carried was not used for any threatening purpose, and that any sexual contact with the plaintiff was not merely consented to but instigated by her. While the State accepts that the record of interview will require some significant editing, there may yet be a challenge to its admissibility by the accused. The defence may ultimately invite the jury to disbelieve all of the evidence of the admittedly drug affected complainant.

Prior convictions

While the State wishes to rely on the fact of the accused's conviction on his pleas of guilty for other child sex offences, leave is also sought to rely on the material facts referred to at the time of sentencing. I will set those out for each of the four victims.
I have referred to the four offences involving the girl BLS on three occasions in July 1995. At sentencing on 18 March 1996 this is what the prosecutor told the sentencing judge in the presence of the accused and his counsel:
Turning to the facts, during the late evening of 22 July 1995 the prisoner, who at that time was almost exactly 30 years of age, picked up the complainant, who had only just turned 15 at the time. Your Honour will see from the birth certificate that she turned 15 on 15 July 1995, the week before the first offence. He picked her up in a vehicle on the basis that he was taking her home after she had been to a disco in the Warburton community. At that time there was another juvenile in the utility.
The prisoner drove the complainant to a rubbish dump where he got her to remove her pants. There is some dispute between the complainant and the accused as to who actually removed the pants, but it is clear on the Crown case that it was the prisoner who initiated it, whoever actually removed the clothing. The prisoner then placed the complainant in the back of the utility and sexually penetrated her digitally, which is count 1, and with his penis, which is count 2. The prisoner then drove the complainant back to the Warburton community.
Then during the evening of 24 July the complainant again got into the prisoner's vehicle with two other girls. They drove to the Warburton garage where the two girls ran off. The complainant also ran and the accused, the prisoner, chased her. The prisoner threw a rock at her and there is some dispute as to whether he struck her and caused her to fall or whether he missed her and she stopped anyway, but there is no doubt on both his account and hers that he did throw a rock.
The prisoner then had the complainant go into his vehicle and drove her to the rubbish dump. Once there the prisoner placed the complainant on the ground and her pants were removed, either by him or by her. The prisoner removed his own pants and sexually penetrated her with his penis. That is count 3 in the indictment. The prisoner then drove the complainant back to the community once again.
During the morning of 25 July, the third incident that the indictment covers, the complainant was walking to her friend’s house when the prisoner called out to her from his house within the Warburton aboriginal community. The prisoner asked the complainant to return a video for him. When the complainant went to get the video the prisoner pulled her into a bedroom and pushed her onto a bed. The prisoner then removed her pants before removing his own. He lay on top of her and sexually penetrated her with his penis. That is count 4 on the indictment.
The prosecutor then continued to describe the offences in this way,
While the circumstances appear to be that the complainant voluntarily went with the prisoner to one or two places after the first incident, and so there is some real doubt as to the question of consent, as at the last occasion the prisoner does accept at page 22 of the transcript that on the third time she actually said, "no".
The prosecution relied on the girl saying 'no' as an aggravating feature. As the transcript of the record of interview revealed, Mr. West said about the offence that was count 4, 'on the third time I had sex. On the third time she said, "no" '. Mr West was also asked however, did she ever say, 'no,' and tell you to stop?' To this Mr West answered 'Yeah. I leave her alone'.
In trying to deal with this aggravating but somewhat ambiguous circumstance, counsel for Mr West told Wallwork J, 'what we are saying Sir, is that sexual penetration did take place; that she did say, 'no,' but when the sexual penetration took place, either before or after, 'no,' is really up in the air.'
The discussion that followed rather illustrates the potential difficulty occasioned by the failure of counsel to anticipate disputes about factual matters in sentencing. Understandably, defence counsel was asked by his Honour whether Mr West wanted a trial of issues. To this defence counsel said, 'no, I don't Sir. I'm asking the court to accommodate that possibility'. Ultimately defence counsel made clear that it was not being suggested that Mr West had immediately stopped on the word 'no' being said.
Making the best of a difficult situation, his Honour proposed that he would then deal with the matter on the basis that although the victim said 'no,' the sexual penetration continued thereafter, that is, that there had been an initial consent that was withdrawn. Both the prosecution and the defence were apparently content for the matter to be dealt with on this basis.
With respect to the matter of the rock throwing with respect to count 3, that issue was also, in the vernacular, 'fudged' by the prosecution. While it might have been thought to be an aggravating factor in that there was a threat of violence that caused the victim to submit, counsel for Mr West advised that while the rock throwing was admitted it had an innocent connotation that was then explained. Counsel for the prosecution did not challenge what was said in that respect. Ultimately, when his Honour came to sentence Mr West, it is apparent from his Honour's reasons that he did not have regard to the rock throwing as an aggravating circumstance.
The next two offences are in a rather different category.
These are the material facts that were read out by the state prosecutor and accepted by counsel for Mr West on 10 April 2007 in respect of the indecent dealing with the boy named KAS, by Mr West attempting to insert his penis into the boy's anus.
The boy was walking along a road with some other children. Mr West pulled up alongside the group and told the boy to get into his car. The boy tried to walk away but got in the car. There was some inappropriate talk between them and Mr West then started to feel the boy's penis. Mr West told the boy to get out of the car and Mr West got a wheel spanner. He threatened KAS with it and told him to get out, get down and grab a sheet and hurry up, and on the State's case he hit him twice on the arm. On the State's case, at this time, the offender told the boy to take his clothes off and he took them off'. The boy was 13 years old.
Counsel for Mr West told the court that, 'in relation to the facts, the accused doesn't take issue'.
With respect to the other offending that month, the sexual penetration of a girl KLS, these material facts were read out on the same occasion,
Mr. West sent someone to KLS to tell her that he wanted to see her. That occurred. Mr. West put a blanket around KLS to try and disguise her. He walked her into the bush, holding her arm. He then walked her a little way into the bush between Kalgoorlie road and the roadhouse, where it's pitch black. The offender lay a blanket down, laid KLS on the blanket and started pulling her pants off one leg. He then lay on top of KLS and put one hand over her mouth.
The statement of material facts continued,
The offender then pulled his penis out and KLS recalled and said so in her statement that she did not want to have any sort of sexual contact with the offender. The offender then ended up, after having pulled his penis out, putting into KLS's vagina and engaging in sexual intercourse with KLS, of a rough nature, on the State's case. KLS was 14 years old.

Again, counsel for Mr West said that Mr West 'did not take issue with respect to the facts'.
Mr West was again convicted in 2005 on his plea of guilty of the sexual penetration of VF, a 15‑year‑old girl, in about April 2004. Mr West was 38 years old at the time. On his plea of guilty this statement of material facts was read to the sentencing judge:
The offender approached the complainant and another female with the intention of having sex with them. The offender lured the complainant and the other female to a darker location near a vacant house. One of the females was forced to lay down on a blanket that she had been carrying. The offender insisted that both girls lay on the blanket and when one refused, the offender ordered her to sit down and face the other way. The offender pushed the complainant to the ground so she lay on the blanket on her back. The offender knelt down between the complainant's legs and pulled his trousers down exposing his penis. The offender repeatedly told the complainant to take her shorts off and the complainant eventually complied. She pulled her shorts and underwear down to her knees. The offender inserted his penis into the complainant's vagina causing her pain. After a short period of time the offender got off the complainant and put his trousers back on.
The offender threatened the complainant and the other female not to tell anyone or he would bash them.
The state prosecutor also told the sentencing judge about some aspects of Mr West's record of interview. He said, 'The offender maintained that it was the complainant who initiated the sexual activity, saying that she would give him sex if he were to give her petrol.'
In submissions in mitigation defence counsel told the sentencing judge that he should have regard to the fact that, 'no actual violence was used'. Defence counsel referred to what had been said by Mr West in the course of his record of interview, saying 'there was a difference in stories but certainly we are not contesting the facts in any way now…'. Macknay DCJ observed that if Mr West had taken advantage of a teenage girl engaged in petrol sniffing by offering petrol in exchange for sex, that would be as bad as, and perhaps worse, than what was alleged by the prosecution.
To this defence counsel responded, 'All I can say sir is I put to him effectively the prosecution version and he has agreed with me that … I think it stands to his credit that he is not contesting now what the prosecution has said, if there was any degree of concern by the court in that regard … I think it does stand to his credit that he is not disagreeing with her word'.
A submission was made to me by counsel for Mr West that Macknay DCJ had effectively made a finding that the offending had occurred in the manner described by Mr West, and not as set out in the statement of material facts. I do not accept that submission. His Honour obviously viewed Mr West's 'explanation' as potentially showing even greater objective criminality than the version of facts alleged by the State. Nonetheless, it is plain that counsel for Mr West expressly admitted the facts advanced by the State on Mr West's behalf and in Mr West's presence.
It is clear from reading his Honour's sentencing reasons that ultimately his Honour did not conclude that there was any relevant difference in terms of objective criminality between the material facts offered by the State and the version of the offending initially offered by Mr West. His Honour explicitly said that it was not necessary for there to be any hearing to resolve that. What remains however, are the express admissions on behalf of Mr West of the material facts relied upon by the State.

The law

Section 31A of the Evidence Act provides as follows:
(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 proper construction and application of this section has been considered by the Court of Appeal of this state on many occasions – see for example Bennett v The State of Western Australia [2012] WASCA 70 [30], and the cases there cited.
As a starting point I observe that counsel for Mr West properly concedes that evidence of the kind that the State seeks to lead falls within the definition of 'propensity evidence' in accordance with s 31A. It is, at the very least, 'other evidence of the conduct of the accused person', in particular, sexual conduct with young people, indeed with people properly described as children for the purposes of the criminal law. Before me, Ms Barone described it as propensity evidence in the sense of evidence of the tendency of Mr West to commit sexual offences against young adolescents.
It might also properly be described as relationship evidence in the sense of evidence of the conduct of Mr West towards a class of persons, adolescent children, over a period of time.
One of the matters contested by the parties was the extent to which the circumstances surrounding Mr West's other convictions have features which could be described as 'strikingly similar' to the offending that is alleged here. The State argues that the evidence here can be so characterised given the age of the complainants, the places where the offending took place and some aspects of the manner in which 'forceful behaviour and/or alternatively violence' are used in some of the offending.
The submissions advanced on behalf of Mr West, perhaps as a matter of necessity, emphasise the absence of features that could be described as 'strikingly similar' and argue that there is a lack of any underlying unity or pattern to the offending, and significant differences between the circumstances of various of the offences.
While the existence of what might be described as 'strikingly similar' facts or circumstances as between other offending and alleged offending can satisfy the definition of 'propensity evidence' in s 31A(1)(a) and might indeed have significant probative value, that expression does not define the limit of evidence made admissible by s 31A. The whole purpose of the introduction of s 31A was to overcome limitations imposed by the common law on the admission of propensity evidence such as the categorisation of facts as 'strikingly similar' in respect of similar fact evidence. The concession made by counsel for the defence that the evidence relied upon by the State can be categorised as 'propensity evidence' is a proper one.
The submissions made by the parties also seemed to place considerable weight on the identification of the evidence of the past convictions as 'strikingly similar' as bearing on the question of whether that evidence could be described as significantly probative of a matter in issue here. Unless such evidence is properly categorised in the first instance as 'similar fact evidence', that approach has the capacity to distract from the analysis of what is probative and significantly probative. It also rather tends to defeat the purpose of the introduction of s 31A.
However, in addressing the issue of whether admissions made by the accused in pleading guilty to the other offences could be significantly probative of a matter in issue here, the State's submissions are also:
66.An assessment of the accused's criminal history reveals an underlying pattern of consistent behaviour, during the course of a 10 year period whereby the accused has demonstrated a repeated sexual interest in underage adolescent teenagers and a preparedness to act upon that sexual interest by using either forceful behaviour, intimidation, threats and/or violence in order to fulfil his sexual urges and desires with those victims.
67.The evidence of the accused's past behaviour and criminal conduct is significantly probative of a person who has consistently and regularly engaged in sexual behaviour towards adolescents, in particular young teenage girls living in the Warburton community. It also demonstrates a preparedness to use force, intimidation, threats and violence (sometimes with weapons) before, during or immediately after the sexual incidents with these young victims in order to satisfy his sexual interest with these young complainants.
…
Ms Barone emphasised the differences between the offences now alleged and Mr West's other offending to argue that the evidence that the State seeks to lead does not have significant probative value within the meaning of s 31A(2)(a). She also rightly points to the lack of any element of lack of consent in any of the historical offending and submits with respect to some of the aggravating factors admitted in the course of sentencing that the mere fact of absence of consent on the part of victims of the earlier offending cannot be probative as to the state of mind of LM. There is however, more at issue here than merely the issue of consent in the sense of the subjective mental state of the complainant.
It is important to remember here that all elements remain in issue here, including whether for example the respondent even made sexual contact with the complainant. Quite apart from that, it is not to the point in my view, with respect, that in comparing six or seven other sexual encounters between the accused and four other adolescent children that there are some obvious differences in the circumstances of the historical offending as between those events, and as against the alleged offending here.
As Wheeler JA observed in State of Western Australia v Osborne [2007] WASCA 183 [18]:
It is, I think open to us take notice of the fact that when people seek sexual gratification, they do not do so in precisely the same way on every occasion. There is plainly a range of different types of acts which will be engaged in by a person, during a course of sexual encounter, or during the course of a number of sexual encounters.
While in that case her Honour was referring to an act of fellatio involving one complainant and an anal penetration involving another, the point is apt here. Even in respect of the victim of the first offending, BLS, there are differences in the circumstances of the offences just against her. It is only in the last offence where she is subjected to a continuing act of sexual intercourse after she has withdrawn her consent. In the case of the victim KAS there is a rather striking difference in that he is not a 14 or 15‑year‑old girl but a 13‑year‑old boy. It is a relatively simple exercise to find differences between the circumstances of the offending both past and alleged. The real question is, does the material with respect to other offending demonstrate a tendency in the accused or illustrate something about his character which can be said to be significantly probative of a matter or matters in issue here? In my view there is.
By his conduct before and after the alleged offence here the accused has demonstrated that he is a man who has a sexual predilection that includes adolescent children, children half his age or less. His history of offending, both before and after the offences alleged here, shows that he has repeatedly acted on that inclination to engineer situations to isolate children so as to have an opportunity to indulge his sexual inclination. He has demonstrated that he is prepared to use manipulation, coercion, threats, actual and implied, and actual violence to indulge that sexual inclination.
The jury that hears this case it is right to assume will be fair‑minded people who will try these charges according to law. By her own admission, the complainant was under the influence of cannabis. Being representatives of the general community the jury might naturally approach allegations of this kind guided not merely by directions about the presumption of innocence and the burden and standard of proof but with an instinctive resistance to the idea that a mature adult man might take advantage or coerce a drug addled 14‑year‑old girl, some 20 years younger than him and half his size, to engineer an opportunity to sexually abuse that child. They might be disinclined to accept the evidence of that girl, in isolation, that she was in fact so coerced that she unwillingly accompanied the accused, and fearful for what might happen, she took off her shorts and submitted to be sexually penetrated. In assessing the evidence of the complainant to the effect that she was led away by the complainant to a remote spot, sexually penetrated, and indeed coerced to submit to the accused in this way, it is significantly probative in my view that the accused has repeatedly engineered opportunities to sexually abuse adolescent children, and that in satisfying his sexual inclination he has been prepared to use coercion, threats of violence and actual violence.
The last question that I need to resolve is whether the probative value of this 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: s 31A(2)(b). The risk of unfairness arises because of the potential for a jury to reason automatically that because an accused has committed other such offences he therefore must have committed these offences. That at least is how the fear is often expressed. It is common in this court, even in the case of 'true' propensity evidence, particularly in cases of this kind, for the jury to be told of the manner in which they are entitled to use propensity evidence and the limitations of that use. There is no reason to think that a jury would ignore a direction of that kind. In my view the probative value of this evidence significantly outweighs the very limited risk of an unfair trial and the public interest in adducing all relevant evidence of guilt should have priority over that risk.

Conclusion and draft

For these reasons, in my view the admissions made by Mr West in respect of his sexual offending against BLS, KAS, KLS and VF is significantly probative in respect of the allegations of offending against LM. Accordingly, the application is allowed.
It should be apparent from what I said earlier in these reasons that in my view no admission was made by Mr West accepting that the rock throwing incident connected with the victim BLS was an act of violence or a threat of violence to compel sexual submission. That evidence in my view is not admissible. Nor in my view could it assist the jury to be told with respect to BLS that, there is some dispute between the complainant and the accused as to who actually removed the pants. The fact that it was the accused who 'initiated' the pants being removed, is. With respect to the circumstances underlying Mr West's conviction for the offending against VF, in my view, in the course of those proceedings, Mr West admitted the facts put against him by the State and those facts, without Mr West's initial contradiction, are admissible.