VEC v The State of Western Australia
[2025] WASCA 89
•23 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VEC -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 89
CORAM: MAZZA JA
MITCHELL JA
ARCHER JA
HEARD: 24 APRIL 2025
FURTHER SUBMISSIONS FILED 2 & 7 MAY 2025
DELIVERED : 23 JUNE 2025
FILE NO/S: CACR 48 of 2024
BETWEEN: VEC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHEPHERD DCJ
File Number : IND 232 of 2022
Catchwords:
Evidence - Propensity evidence - Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) - Whether evidence revealing the appellant's tendency to behave in an abusive manner towards a daughter is significantly probative of whether the appellant committed offences of violence and cruelty against that daughter - Risk of impermissible reasoning - Thorough and clear directions by trial judge - Whether 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
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal refused
Application for extension of time within which to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S A Auburn |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Sharon Auburn Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chuguna v The State of Western Australia [2024] WASCA 134
Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
GNW v The State of Western Australia [2024] WASCA 164
HTN v The State of Western Australia [No 2] [2022] WASCA 51; (2022) 298 A Crim R 337
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265
Le-Ta v The State of Western Australia [2020] WASCA 14
LNN v The State of Western Australia [2021] WASCA 39
Rictor v The State of Western Australia [2025] WASCA 39
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
JUDGMENT OF THE COURT:
Overview
The appellant was convicted after trial of nine offences against her two daughters, who were both children at the time of the offending. Although the offences were varied, each offence could be broadly characterised as an act of violence or cruelty. The appellant was acquitted of further offences against her daughters and two other child complainants.
During the trial, the prosecution was permitted to lead evidence of other acts of violence and cruelty by the appellant against the children that were not the subject of charges. The learned trial judge had ruled that this evidence was admissible as 'context evidence' under the common law. However, the evidence emerged at trial in such detail that the trial judge concluded it was effectively 'tendency evidence' within the meaning of s 31A of the Evidence Act 1906 (WA), and was admissible on that additional basis.
The appellant now appeals against her convictions. She contends that some of that evidence should not have been admitted into evidence (as context or tendency evidence). She contends that the evidence did not have a high degree of probative force and it was inevitable that, if admitted, the jury would use the evidence impermissibly.
For the reasons that follow, we would dismiss the appeal.
The State case
The appellant stood trial before Shepherd DCJ and a jury from 10 October to 1 November 2023.
The appellant was charged with 13 offences relating to four complainants. Two complainants are the biological daughters of the appellant. The other two complainants were effectively her de facto stepsons at the time of the alleged offending. It is convenient to refer to the children by the pseudonyms Amanda, Belinda, Craig and David.
The State alleged that the appellant had committed serious offences against each of the children. The State's case is summarised below.
Counts 1 and 2: offending against the boys
Craig and David are twins. When they were about 7 or 8 years old, their father was dating the appellant. The boys would go to the appellant's house when their father was at work and there was no one else to look after them. They gave evidence of regular mistreatment by the appellant.
Count 1 alleged that the appellant had held a knife to Craig's penis and said she was going to chop it off. Count 2 alleged that the appellant had done something similar to David.
Counts 3 - 13: offending against her daughters
It was alleged that the appellant had abused her daughters over many years. She was charged with 11 offences in relation to her daughters.
Count 3: removal of Amanda's stitches
When Amanda was 6 years old, she had received stitches for a wound to her leg. Count 3 alleged that the appellant had removed some of the stitches, causing the wound to bleed, and requiring it to be re-stitched.
Counts 4, 7 and 12: object in anus (both daughters)
The State alleged that the appellant had, on numerous occasions, inserted something into her daughters' anuses (perhaps suppositories) when there was no medical reason to do so.
Belinda was able to give details of one such occasion when she was 6 or 7 years old (count 4). Amanda gave details of two. The first was an occasion when she was about 7 or 8 years old (count 7). The second was when Amanda was about 13 years old (count 12).
Counts 5 and 6: having sex in front of her daughters (both daughters)
The State alleged that the appellant had sex with her then partner (GS) in front of her daughters. The appellant dated GS for a period of time when both girls were under 10 years of age. The State alleged that, on regular occasions, the girls would be made to sleep in the same bedroom as the appellant and GS, and that the girls regularly witnessed the two adults having sex. Counts 5 and 6 related to one occasion on which that was alleged to have occurred. Count 5 was in respect of Belinda and count 6 was in respect of Amanda.
Counts 8 and 13: burning Amanda with cigarettes
It was alleged that, on two occasions Amanda could identify specifically, the appellant had burned Amanda by extinguishing a cigarette on her leg. Amanda was about 8 years old on the first occasion she could identify (count 8) and 12 or 13 years old on the second (count 13).
Count 9: gave medication to Belinda with intent to cause grievous bodily harm
The State alleged that the appellant regularly overmedicated her daughters.
Count 9 alleged that, on one occasion, the appellant had given prescription medication to Belinda, knowing that her daughter was allergic to that medication, and intending to cause her grievous bodily harm (count 9).[1] There was evidence that the dose given to Belinda far exceeded a therapeutic dose. Belinda was admitted to hospital, drowsy and vomiting. During her stay, her condition became life‑threatening. She was 8 years old.
Count 10: whipped Belinda with an extension cord, splitting her skin
[1] See also ts 142.
The State alleged that the appellant would whip her daughters with electrical cords. Count 10 alleged that, on an occasion when the appellant was whipping Belinda with a looped extension cord, the cord struck Belinda's hand, splitting her skin down to the fatty layer and requiring hospital treatment. Belinda was about 9 years old.
Count 11: threw a knife at Amanda, slicing open her skin
The State alleged that the appellant threw a knife at Amanda, who put her hand up to try to protect herself. It was alleged that the knife struck Amanda's hand, slicing open the skin, and requiring hospital treatment (count 11). Amanda was about 12 or 13 years old at the time.
Other conduct evidence
The State also alleged that the appellant had engaged in many other acts of violence and cruelty against the children, particularly her daughters, over a long period of time. It is the evidence of this other conduct that is at the heart of this appeal.
The defence case
The defence case at trial was that none of the offences had occurred. The appellant elected to give evidence in the trial and denied having committed any of the offences. The appellant claimed that she loved her daughters.
The other conduct evidence
The admission of the other conduct evidence
As context evidence
Prior to the trial, the prosecution had applied to adduce evidence in the trial of acts of violence and cruelty against the children that were not the subject of charges (other conduct evidence). The prosecution sought to lead that evidence:[2]
(1)to provide the jury with an understanding of the relationship between the appellant and each of the complainants, which might help explain and render credible a complainant's account that might have otherwise been inexplicable and incredible;
(2)to provide the jury with evidence about the context in which each of the charged offences allegedly occurred; and
(3)to demonstrate that the abuse took place so frequently as to normalise the behaviour, explaining why the complainants were unable to give specifics about the charged offences.
[2] ts 147 - 148.
As will be discussed later, when evidence is admitted for purposes such as these, the evidence does not go to establishing the accused's guilt of a charged offence. Rather, it is relevant to the evaluation of other evidence.[3]
[3] KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265 [21].
Such evidence may be referred to as 'relationship evidence' or 'context evidence'. We will use the latter expression.
The appellant opposed the application.[4] The trial judge ruled that the evidence was admissible as context evidence.[5]
As tendency evidence
[4] ts 20, 70 ‑ 89; BGAB 9 ‑ 21 (prosecution's written submissions), 22 ‑ 37 (defence's written submissions).
[5] ts 94.
On 23 October 2023, after the conclusion of the prosecution's case, the trial judge said that the degree of detail in the other conduct evidence adduced from all four complainants meant that it was effectively operating as 'tendency evidence'.[6] As will be discussed later, tendency evidence is evidence of a tendency that an accused person has or had. It may show that the accused was more likely to have committed the alleged offence.
[6] ts 858 ‑ 859.
Having raised the issue, the trial judge asked the parties to consider their positions.[7]
[7] ts 860 - 861.
That evening, defence counsel applied to discharge the jury.
The following day, the trial judge heard defence counsel's application. Defence counsel's submissions were not entirely clear, but she appeared to contend as follows.
First, the other conduct evidence amounted to evidence that the appellant delighted in inflicting cruelty on children and there was a risk that the jury would reason from that tendency that the appellant was more likely to have committed the charged offences.[8] Indeed, she appeared to submit that the other conduct evidence was so highly probative of the alleged offences that it was inevitable that the appellant would be convicted.[9]
[8] ts 863 ‑ 864.
[9] ts 863 - 864, 866, 871 - 880.
Second, if the evidence was not admissible as tendency evidence, it should not have been adduced in evidence at all and the prejudice could only be cured by discharging the jury. Defence counsel did not assert that she would have conducted the trial any differently had she known that the evidence would be admitted as tendency evidence before the trial began. Rather, she asserted that, if the question of its admissibility had been determined before the trial, some of the evidence would have been ruled inadmissible. She appeared to contend that, if the evidence was not admissible as tendency evidence, it would follow that it would be inadmissible for all purposes (including as context evidence).[10]
[10] ts 870.
Third, if the other conduct evidence was properly admitted as tendency evidence (which she disputed), the usual directions would be sufficient.[11]
[11] ts 870 ‑ 871.
The trial judge concluded that, in addition to being admissible as context evidence under the common law, the other conduct evidence was admissible as tendency evidence under s 31A of the Evidence Act.[12] Her Honour accordingly dismissed the application to discharge the jury.
[12] ts 885 - 889; see also ts 1297 ‑ 1300.
In the appeal, the appellant submits that the question of the admissibility of the other conduct evidence as tendency evidence should have been dealt with before the trial. She submits that, had that occurred, she would have been able to present a better argument as to why it was not admissible as tendency evidence and that this would have led to some of the evidence being ruled inadmissible. However, the appellant again does not contend that, if the ruling that the other conduct evidence was admissible as tendency evidence had been made prior to the trial, she would have conducted the case differently in any way.[13]
What was admitted as context and tendency evidence?
[13] Appeal ts 18 - 20.
Relevantly to the counts on which the appellant was convicted, the other conduct evidence was as follows.
In relation to Amanda, evidence that the appellant:[14]
(1)regularly assaulted Amanda, using hands, feet, and implements;
(2)forced Amanda to remove her underwear before school;
(3)verbally abused Amanda;
(4)physically assaulted Amanda during the appellant's relationship with the appellant's then partner GS;
(5)overmedicated Amanda during childhood; and
(6)stripped Amanda naked and left her outside.
(Amanda's other conduct evidence)
[14] ts 1231, 1236; BGAB 91, 97.
In relation to Belinda, evidence that the appellant:[15]
(1)regularly assaulted Belinda, using hands, feet, implements, hot plates and choking, including holding her head underwater in the bath;[16]
(2)spat in Belinda's mouth;
(3)verbally abused Belinda, including by telling her that she was responsible for the death of an unborn twin;[17]
(4)physically assaulted Belinda during the appellant's relationship with GS;
(5)overmedicated Belinda during childhood; and
(6)stripped Belinda naked and left her outside.
(Belinda's other conduct evidence)
[15] ts 1238, 1243 ‑ 1244; BGAB 101, 107.
[16] The 'incident in the bathtub' referred to by the trial judge appears to be the incident described by Belinda at ts 557 ‑ 558.
[17] See ts 621.
The alleged tendency in relation to Amanda was described as a tendency on the part of the appellant to behave in an abusive manner towards Amanda through acts of physical or verbal abuse or acts of degradation and humiliation.[18] The alleged tendency in relation to Belinda was described as a tendency on the part of the appellant to behave in an abusive manner towards Belinda through physical or verbal abuse or to otherwise expose Belinda to harm through the administration of substances.[19]
Directions relating to other conduct evidence
[18] See ts 1233 and BGAB 92.
[19] See ts 1240 and BGAB 102.
At the conclusion of the defence case, the trial judge discussed with counsel the uses that could be made of the other conduct evidence and provided draft directions relating to common law context evidence and s 31A tendency evidence.[20] Defence counsel did not object to her Honour's proposed directions or to the written aids provided to the jury.[21] During the appeal hearing, the appellant accepted that the directions were very clear, very thorough and 'very proper'.[22]
Amanda
[20] ts 950 ‑ 960, 966 ‑ 977.
[21] ts 977 ‑ 978, 1286.
[22] Appeal ts 15.
The trial judge directed the jury that Amanda's other conduct evidence could be used only in relation to the counts on the indictment in which Amanda was the complainant, except for count 6 in relation to which it could not be used at all.[23] Her Honour directed the jury that Amanda's other conduct evidence could not be used in any way in relation to the counts in which Amanda was not the complainant.[24]
[23] ts 1231 ‑ 1232, 1236; BGAB 92, 97.
[24] ts 1231 ‑ 1232, 1236; BGAB 92, 94, 98.
We will refer to the counts in relation to which Amanda's other conduct evidence could be used (being counts 3, 7, 8, 11, 12, and 13) as the 'relevant counts' involving Amanda.
The trial judge gave the following directions as to how the jury could, and could not, use Amanda's other conduct evidence as tendency evidence:
(1)The jury could only use Amanda's other conduct evidence as tendency evidence if they were satisfied that:[25]
[25] ts 1233; BGAB 93.
(a)the evidence given by Amanda was honest, accurate and reliable;
(b)the evidence demonstrated a tendency on the part of the appellant to behave in an abusive manner towards Amanda through acts of physical or verbal abuse, or acts of degradation and humiliation; and
(c)the tendency existed at the time of the acts alleged in the relevant counts involving Amanda.
(2)The jury could not use Amanda's other conduct evidence in substitution for the evidence of the specific acts alleged in the relevant counts involving Amanda.[26]
(3)Any finding the jury made in relation to Amanda's other conduct evidence could not and must not lead automatically to a finding of guilt.[27]
(4)The jury must not reason that, simply because they found the appellant committed the acts the subject of Amanda's other conduct evidence, the appellant was therefore guilty of one or more of the relevant counts involving Amanda.[28]
(5)Just because a person has committed an act on one occasion does not necessarily mean that the person did the same or a similar act on another occasion.[29]
(6)People do not always act in accordance with their tendencies at every opportunity.[30]
(7)The jury could not convict the appellant on any count unless the prosecution had satisfied them beyond reasonable doubt that the appellant committed the specific act alleged against her in that count.[31]
[26] ts 1233; BGAB 93.
[27] ts 1233; BGAB 94.
[28] ts 1233 - 1234; BGAB 94.
[29] ts 1234; BGAB 94.
[30] ts 1234; BGAB 94.
[31] ts 1234 ‑ 1235; BGAB 94 ‑ 95.
The trial judge gave the following directions as to how the jury could, and could not, use Amanda's other conduct evidence as context evidence:
(1)Before the jury could use Amanda's other conduct evidence as context evidence, they had to be satisfied it was honest, accurate and reliable.[32]
[32] ts 1236; BGAB 98.
(2)Amanda's other conduct evidence could not go towards establishing the appellant's guilt of any of the charged offences, but could be relevant to the evaluation of other evidence on which the prosecution relied.[33]
(3)Amanda's other conduct evidence could:
(a)enable Amanda to give a full account so that her evidence of the appellant's alleged conduct in a familial setting would not appear out of the blue and inexplicable on that account;
(b)explain why Amanda was unable to give details of a specific incident which formed part of regular, repeated physical conduct of the appellant; and/or
(c)explain why Amanda thought that the conduct was normal.[34]
(4)The jury had to be satisfied beyond reasonable doubt of the honesty, accuracy and reliability of Amanda's evidence in respect of each count.[35]
Belinda
[33] ts 1237; BGAB 98.
[34] ts 1237; BGAB 98.
[35] ts 1237; BGAB 99.
The trial judge directed the jury that Belinda's other conduct evidence could only be used in relation to the counts on the indictment in which Belinda was the complainant, except for count 5 in relation to which it could not be used at all.[36] Her Honour directed the jury that Belinda's other conduct evidence could not be used in any way in relation to the counts in which Belinda was not the complainant.[37]
[36] ts 1239, 1243; BGAB 102, 107.
[37] ts 1241, 1243; BGAB 104, 107.
We will refer to the counts in relation to which Belinda's other conduct evidence could be used (being counts 4, 9, and 10) as the 'relevant counts' involving Belinda.
The trial judge gave directions about the use of Belinda's other conduct evidence as tendency evidence[38] and context evidence[39] in similar terms to the directions about the use of Amanda's other conduct evidence.
[38] ts 1238 ‑ 1242; BGAB 102 ‑ 105.
[39] ts 1243 ‑ 1245; BGAB 106 ‑ 109.
The outcome of the trial
The jury's verdicts were:[40]
[40] See indictment 232 of 2022 (BGAB 1 ‑ 2) and certificate of final outcome of charge (BGAB 3 ‑ 8).
| Count | Charge | Complainant | Outcome |
| 1 | Threat to harm | Craig | Not guilty |
| 2 | Threat to harm | David | Not guilty |
| 3 | Assault occasioning bodily harm (removal of stitches) | Amanda | Guilty |
| 4 | Sexual penetration, child under 13 (object in anus) | Belinda | Guilty |
| 5 | Indecent dealing by engaging in sexual intercourse in presence of child | Belinda | Not guilty |
| 6 | Indecent dealing by engaging in sexual intercourse in presence of child | Amanda | Not guilty |
| 7 | Sexual penetration, child under 13 (object in anus) | Amanda | Guilty |
| 8 | Assault occasioning bodily harm (cigarette burn) | Amanda | Guilty |
| 9 | Caused dangerous thing to be taken with intent (medicated) | Belinda | Guilty |
| 10 | Unlawful wounding (extension cord split hand) | Belinda | Guilty |
| 11 | Unlawful wounding (threw knife) | Amanda | Guilty |
| 12 | Sexual penetration, child over 13 and under 16 (object in anus) | Amanda | Guilty |
| 13 | Assault occasioning bodily harm (cigarette burn) | Amanda | Guilty |
On 22 February 2024, the trial judge sentenced the appellant to a total effective sentence of 18 years' imprisonment in respect of the nine offences of which she was convicted.[41]
[41] BGAB 8.
Grounds of appeal
There are two grounds of appeal:
1.The learned trial judge erred in law or, alternatively, in the exercise of the discretion in allowing admission of evidence of 'other conduct' on the part of the applicant, which included evidence that the applicant engaged:
(a)In acts of physical violence towards the complainants, and
(b)In acts which degraded and humiliated the complainants, (the 'other conduct evidence')
when the other conduct evidence was either inadmissible or, alternatively, unfairly prejudicial to the fair trial of the applicant, and ought properly to have been excluded at law or in the exercise of the discretion, such that a miscarriage of justice occurred.
2.The learned trial judge erred in law directing the jury that the other conduct evidence was and could be used as evidence of propensity in support of guilt.
During the hearing of the appeal, the appellant said that ground 1 was intended to allege that some of the other conduct evidence should not have been admitted into evidence as context or tendency evidence.[42]
[42] Appeal ts 5 - 12.
The appellant conceded that ground 2 added nothing to ground 1.[43]
[43] Appeal ts 14.
The admissibility of the evidence of other conduct
Context evidence at common law
Evidence of uncharged criminal or discreditable conduct may be relevant to the evaluation of other evidence on which the prosecution relies in relation to a charged offence. Adapting the summary set out in LNN v The State of Western Australia[44] to the present case,[45] such evidence may, among other things:
(1)enable a complainant to give a full account so that their evidence of the accused's conduct on the day of the offence in a familial setting would not appear 'out of the blue' and inexplicable on that account;
(2)explain the complainant's compliance with the offending and his or her failure to complain;
(3)explain why the complainant is unable to give details of a specific incident which formed part of regular, repeated offending by the accused; and
(4)may form an integral part of an account of a connected series of events, and may be necessary to render the complainant's account complete and intelligible.
[44] LNN v The State of Western Australia [2021] WASCA 39 [175].
[45] In LNN, the court summarised the relevance of evidence of uncharged sexual offending against an appellant who had been convicted of four sexual offences against two children.
When evidence is admitted for purposes such as these, the evidence does not go to establishing the accused's guilt of the charged offence. Rather, it is relevant to the evaluation of other evidence.[46]
[46] KHA [21].
Such evidence is ordinarily admissible at common law, subject to the court's discretion to exclude admissible evidence where the probative value is outweighed by its prejudicial effect.[47]
Tendency evidence
[47] KHA [22]. Such evidence may also be admissible as 'relationship evidence' as defined in s 31A(1) of the Evidence Act, if the tests in s 31A(2) are satisfied.
Section 31A of the Evidence Act permits 'relationship evidence' and 'propensity evidence' to be admitted in evidence if certain criteria are met.
'Relationship evidence' is defined to mean evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.[48]
[48] Evidence Act, s 31A(1).
'Propensity evidence' is defined to mean:[49]
(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[.]
[49] Evidence Act, s 31A(1).
'Tendency evidence' is the term used to refer to the second type of propensity evidence. Tendency evidence may show that the accused was more likely to have committed the alleged offence because of the tendency.[50] In simple terms, tendency reasoning is 'he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue'.[51]
[50] HTN v The State of Western Australia [No 2] [2022] WASCA 51; (2022) 298 A Crim R 337 [111] ‑ [114].
[51] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [70] (Gageler J).
Tendency evidence can cause prejudice in numerous ways. For example, when engaging in tendency reasoning, a jury may overestimate the probability of an accused acting consistently with an established tendency. Tendency evidence can also cause prejudice independently of tendency reasoning. For example, a jury may have an emotional response to the evidence that clouds their judgment.[52] For this reason, tendency evidence is only admissible if certain conditions are met. In Western Australia, those conditions are set out in s 31A(2) of the Evidence Act.[53] That subsection provides:
(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.
[52] See, in the context of the Evidence Act 1995 (NSW), Hughes [17] - [18] (Kiefel CJ, Bell, Keane & Edelman JJ). See also [72] - [73] (Gageler J).
[53] LNN [173].
The principles relevant to whether propensity evidence has significant probative value within the meaning of s 31A of the Evidence Act were summarised by Beech J in RMD v The State of Western Australia[54] as follows:
[54] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also GNW v The State of Western Australia [2024] WASCA 164 [55] - [56].
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
In The State of Western Australia v Jackson,[55] the court added four further points:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)
[55] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] ‑ [23].
The recent decision of the High Court in Director of Public Prosecutions (Vic) v Roder (a pseudonym)[56] did not alter these principles.[57]
[56] Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
[57] Chuguna v The State of Western Australia [2024] WASCA 134 [119] (Buss P & Mazza JA), [201] (Mitchell JA).
When tendency evidence is admitted in a trial, the trial judge must direct the jury as to the permissible, and impermissible, uses of such evidence.
What evidence does the appellant contend was inadmissible?
In her written submissions filed prior to the appeal hearing, the appellant did not specify what evidence she contended was inadmissible. During the hearing, the appellant was only able to identify the evidence in broad terms. Accordingly, the appellant was directed to file a note after the hearing specifying the contested evidence.
The appellant filed the note on 2 May 2025. In that note, the appellant identified significantly more types of conduct as having been inadmissible than she had done orally during the hearing.[58] The court will treat the note as identifying the types of conduct, and the evidence of that conduct, to which the appellant now objects.
[58] Appeal ts 8 - 11.
The appellant contends that the following evidence was inadmissible:[59]
[59] Appellant's memorandum filed 2 May 2025.
(1)Each daughter's evidence that the appellant:
(a)used implements and the appellant's hands and feet to harm them (at trial ts 344, 398, 399, 550, 554); and
(b)stripped them naked and locked them outside of the house (at trial ts 506 ‑ 507, 593).
(2)Belinda's evidence that the appellant:
(a)choked her (at trial ts 550);
(b)held her hand on the stove multiple times (at trial ts 554);
(c)held her head underwater in the bath (at trial ts 550, 556 ‑ 558);
(d)spat in her mouth multiple times (at trial ts 550, 552 ‑ 554); and
(e)verbally abused her 'including reference to unborn twin' (at trial ts 553, 555).
The State filed a responsive note identifying numerous other pages of transcript in which evidence of this conduct had been given.
We will refer to all of this evidence as the 'challenged evidence'.
From the appellant's note, it appears that she does not challenge the admissibility of the evidence that she:
(1)overmedicated each daughter;
(2)verbally abused Amanda; and
(3)forced Amanda to remove her underwear before school.
Further, although she challenges the evidence of 'verbal abuse including reference to unborn twin' (our emphasis) in relation to Belinda, the transcript page references are limited to verbal abuse about an unborn twin. Belinda gave evidence of other verbal abuse, including being called a 'whore' and a 'slut'.[60]
[60] ts 553, 620.
The nature of the appeal to this court
The correctness standard of appellate review applies to a decision as to whether evidence is admissible as context evidence under the common law[61] or as tendency evidence under s 31A of the Evidence Act.[62] This court must make its own assessment of those questions.
[61] See Rictor v The State of Western Australia[2025] WASCA 39 [331].
[62] Chuguna [105] (Buss P & Mazza JA), [184] (Mitchell JA).
Was the challenged evidence admissible as context evidence?
The appellant submits that the challenged evidence was not admissible as context evidence under the common law. The appellant submits that the challenged evidence was not significantly probative and, even if it was, the probative force of the challenged evidence did not substantially outweigh the prejudicial effect it might have.[63]
[63] Appeal ts 5, 7.
We disagree.
The other conduct evidence was highly probative. The alleged offences involved acts of serious violence and cruelty. Without the other conduct evidence, it may have seemed unlikely that Amanda and Belinda would not be able to remember details of what would have been, in the absence of the other conduct, memorable events. Further, it may have seemed unlikely that they would not have reported an event that, in the absence of the other conduct, would have been abnormal, to a teacher or when receiving medical treatment for an injury caused by such an event. It may also have seemed unlikely that a mother would commit the alleged offences out of the blue, in the absence of evidence that the mother was abusive on an ongoing basis. In addition, it may have seemed unlikely that the girls would not have resisted or sought to escape the abuse. For example, without the other conduct evidence, it may have seemed unlikely that Amanda would not have resisted her mother putting something into her anus when Amanda was 12 years old.
The other conduct evidence was undoubtedly prejudicial. If accepted, it showed that the appellant had treated her daughters appallingly. However, its prejudicial effect must be assessed in light of all of the evidence adduced in the trial. The allegations contained in the charged offences also showed, if proved, that the appellant had treated her daughters appallingly. In addition, the other conduct evidence to which objection was not taken also showed, if proved, that the appellant had treated her daughters appallingly.
We are well satisfied that the prejudicial effect of the other conduct evidence was outweighed by its probative value.
The other conduct evidence was therefore admissible as context evidence at common law.
Was the challenged evidence admissible as tendency evidence?
The appellant further submits that the challenged evidence was not admissible under s 31A of the Evidence Act as tendency evidence. Again, the appellant submits that the challenged evidence was not significantly probative and, even if it was, the probative force of the challenged evidence did not substantially outweigh the prejudicial effect it might have.[64]
[64] WAB 15 [31] (appellant's submissions); appeal ts 11, 13.
During the hearing, the court sought to understand this contention in light of the criterion in s 31A(2)(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. Ultimately, the appellant agreed that her submissions were to the following effect.[65]
[65] Appeal ts 13, 17 - 18.
The appellant contends that neither limb of s 31A(2) was met: the evidence did not have significant probative value and fair‑minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.[66]
[66] Appeal ts 13 - 14.
As to why the appellant contends that the evidence did not have significant probative value, the appellant contends that the tendency was expressed at such a high level of generality that it could not have significant probative value; that it was too broad.[67] She further contends that the challenged evidence was[68]
not capable of establishing a close temporal connection in relation to the counts. We say it's vague, it's ephemeral, there's no dates, there's [no] times, there's no places, there's no specificity. There's nothing. Nothing. It is so wide, so vague. It lacks particularity.
We don't know where, we don't know when, we have no dates, we have nothing.
[67] Appeal ts 12, 14.
[68] Appeal ts 21.
As to why the appellant contends that fair‑minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, the appellant contends there were two risks that could not be guarded against by a direction.[69]
[69] Appeal ts 17 - 18.
First, the appellant contends that there was a risk that the jury would not look for the tendency and would just think that the appellant was a bad mother, and would reason that that made it more likely that she committed the offences. The appellant submits that a direction could not guard against this line of reasoning.[70]
[70] Appeal ts 17.
Second, the appellant contends that, if the jury were satisfied that the alleged tendency existed, they may not consider the actual evidence of the specific acts alleged in the relevant counts, and may just conclude from the tendency that the appellant must have committed the offences. Although a specific direction was given against reasoning in that way, the appellant submits that it was too complicated for a jury to be able to understand it.[71] The submission that it was too complicated related only to the nature of the task. The appellant accepted that the directions were very clear, very thorough and 'very proper'.[72]
Did the challenged evidence have significant probative value?
[71] Appeal ts 17.
[72] Appeal ts 15, 17.
The challenged evidence was said to be relevant to whether the appellant had done the act alleged in each relevant count.
It is true that the challenged evidence was less detailed than the evidence in relation to the alleged offences. However, there is no requirement that evidence said to establish a tendency must contain the details that would be necessary to support a criminal charge. Its probative force in relation to each charged offence is to be assessed by considering the extent to which it supports the alleged tendency, and the extent to which proof of the alleged tendency increases the likelihood that, in relation to each relevant count, the appellant did the act alleged in that count.
The alleged tendency in relation to Amanda was described as a tendency on the part of the appellant to behave in an abusive manner towards Amanda through acts of physical or verbal abuse or acts of degradation and humiliation. The alleged tendency in relation to Belinda was described as a tendency on the part of the appellant to behave in an abusive manner towards Belinda through physical or verbal abuse or to otherwise expose Belinda to harm through the administration of substances. Each tendency is sufficiently specific in relation to the particular complainant and the acts involving that complainant.
The challenged evidence of each daughter was part of the evidence relied upon by the State to establish the alleged tendencies.
In relation to Amanda, the challenged evidence involved various forms of physical abuse, and the cruelty, degradation and humiliation of stripping Amanda naked and leaving her outside. In our view, the challenged evidence was significantly probative of the alleged tendency in relation to Amanda.
In relation to Belinda, the challenged evidence involved various forms of physical abuse, and the cruelty, degradation and humiliation of spitting in Belinda's mouth, verbal abuse (seemingly limited to the verbal abuse in relation to an unborn twin), and of stripping her naked and leaving her outside. In our view, the challenged evidence was significantly probative of the alleged tendency in relation to Belinda.
In our view, if the appellant had the tendency alleged in relation to one of her daughters, this would make it significantly more likely that the appellant had committed each of the acts alleged in the relevant counts involving that daughter. The tendency tends to contradict an assumption that a jury might have about the way a mother would behave towards her child.
The specificity of each alleged tendency combined with the capacity of the tendency to dispel assumptions about the way in which a mother would ordinarily behave towards her child gave it significant probative value in relation to each of the offences alleged in the relevant counts.
Was there a risk of an unfair trial?
As noted above, the appellant submits that the challenged evidence gave rise to a risk of an unfair trial in two ways.
First, the appellant alleges that there was a risk that the jury would not look for the tendency and would just think that the appellant was a bad mother, and would reason that that made it more likely that she committed the offences.
Second, the appellant alleges that, if the jury were satisfied that the alleged tendency existed, they may not consider the actual evidence of the offences, and may just conclude from the tendency that the appellant must have committed the offences.
The appellant contends that the challenged evidence was so abhorrent, and showed she was so cruel towards her children, that these were real risks.
We accept these were risks. However, the question asked by s 31A(2)(b) is whether 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.
What was the degree of risk?
There is always a risk that, where tendency evidence is adduced, the jury will reason impermissibly. In this case, the challenged evidence did show, if accepted, that the appellant's behaviour towards her daughters had been appalling. However, the allegations contained in the charged offences also showed, if proved, that the appellant's behaviour towards her daughters had been appalling. Further, the other conduct evidence to which objection was not taken also showed, if proved, that the appellant's behaviour towards her daughters had been appalling. In those circumstances, there was little risk that the additional allegations contained in the challenged evidence would have led the jury to find her guilty of the charged offences simply because the challenged evidence showed her to be a bad mother.
Further, the trial judge's directions dealt separately with the permissible and impermissible uses of the other conduct evidence, and separately for each complainant. For each complainant, her Honour identified:
(1)those counts in relation to which the other conduct evidence was admissible and those counts in relation to which it was not admissible;
(2)the permissible and impermissible uses of the other conduct evidence as context evidence; and
(3)the permissible and impermissible uses of the other conduct evidence as tendency evidence.
The appellant accepts that the directions were very clear, very thorough and 'very proper'.[73] However, she asserts, in effect, that there was a risk that the jury would become so overwhelmed by the nature of the challenged evidence that they would convict her without considering the evidence that related to the charged offences, regardless of any direction. She also asserts that the task confronting the jury, of using the challenged evidence only as was permissible, was simply too complicated for a jury to be able to do.[74]
[73] Appeal ts 15, 17.
[74] Appeal ts 17.
We do not accept these assertions.
Although the trial judge's directions were lengthy, this was a function of her Honour's care to ensure that the jury would understand the limits to the use of the evidence. Each direction was given orally, with a handout provided of the contents of the oral direction. Each direction was a 'stand-alone' direction. There was a direction and handout in relation to each complainant as to how the jury could and could not use the other conduct evidence as tendency evidence. There was also a direction and handout in relation to each complainant as to how the jury could and could not use the other conduct evidence as context evidence.
This meant that the jury were not required to trawl through multiple documents to determine how they could use the other conduct evidence when considering each count. It also reinforced that the other conduct evidence of each complainant was only admissible in relation to that complainant. Further, it meant that the jury heard the directions as to how tendency evidence and context evidence could, and could not be, used multiple times. There was no risk that the directions would have become lost in the context of the summing up as a whole.
The jury were directed, among other things, that they:
(1)could not use other conduct evidence in substitution for the evidence of specific acts in the charged counts;
(2)must not reason that simply because they found the appellant committed the acts the subject of other conduct evidence that the appellant was therefore guilty of an offence; and
(3)could not convict the appellant on any charged count unless the prosecution had satisfied them beyond reasonable doubt that the appellant committed the specific act alleged against her in that charged count.
The trial judge's directions were clear and thorough. They were delivered orally and in writing. Both the oral and written directions were expressed in simple and clear language. Our system of justice operates on the assumption that, as a general rule, juries understand and follow instructions that are given to them by trial judges.[75] There is no reason to think that this assumption should not be made in this case.
What would fair-minded people think?
[75] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J).
Evidence is not prejudicial simply because it tends to prove the guilt of the accused. Prejudice arises from the risk of improper use of the evidence.[76] It may be accepted that there was such a risk in this case. However, we are satisfied that the degree of the risk arising from the additional allegations contained in the challenged evidence was substantially reduced by the trial judge's directions. We are well satisfied that the probative value of the challenged 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.
[76] Le-Ta v The State of Western Australia [2020] WASCA 14 [44].
In our view, ground 1 was not reasonably arguable, and we would refuse leave to appeal on this ground.
Ground 2 did not add to the appellant's case
The appellant conceded that ground 2 did not add anything to ground 1.[77] Therefore, as we would refuse leave to appeal on ground 1, we would also refuse leave to appeal on ground 2.
[77] Appeal ts 14.
Application for extension of time
The appellant sought an extension of time within which to appeal. As we would refuse leave to appeal on each ground of appeal, we would dismiss the application for an extension of time.
Orders
We would make the following orders:
1.Leave to appeal is refused.
2.The application for an extension of time within which to appeal is dismissed.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
23 JUNE 2025
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