The appellant was convicted of two counts of indecent dealing against children. The appellant appealed on several bases, including matters relating to recent complaint and propensity evidence. The appellant argued that the trial judge erred by permitting use of the complaint evidence as ‘recent complaints’, by admitting prior convictions as propensity evidence, and by improperly directing the jury about the prior convictions. The Court of Appeal found that the trial judge erred in directing the jury about how they could use the propensity evidence and consequently allowed the appeal. In a joint judgment, Buss P and Mitchell JA decided that no other ground of appeal was established. In a separate judgment, Derrick J regarded the propensity evidence as inadmissible at trial.
In relation to the complaint evidence, Buss P and Mitchell JA found that it was not improperly received in the circumstances given that at trial the appellant’s counsel made a tactical decision not to object to it (-). Their honours also found that the trial judge’s direction was appropriate as it ‘did no more than indicate the jury could consider the complaint evidence in determining the consistency, the believability and the credibility of the complainants… the jury would not have understood the trial judge to be inviting them to regard the complainants’ response to, and complaints in relation to, the alleged assaults as supporting the prosecution case’ ().
The propensity evidence matter concerned the appellant’s previous convictions for ‘using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity’ (). Applying Evidence Act 1906 (WA) s 31A, Buss P and Mitchell JA found that the prior convictions were admissible because they ‘did have significant probative value as to the issue of whether any touching that did occur was deliberate and sexually motivated (so as to be indecent)’ (). Their honours clarified that the touching itself would have to be independently established by other evidence (). Through a process of analysing the similarities and distinguishing features between the prior convictions and the counts at trial, their honours found that the prior convictions could not be significantly probative in respect of establishing that the appellant did in fact touch the complainants as alleged (). Their honours set out that ‘Because the propensity evidence was admissible for a limited purpose, it was incumbent on the trial judge to direct the jury on the permissible limits of the use of the evidence’ (). At trial there was no such direction, and this gave rise to a miscarriage of justice (). The State did not assert that the ‘proviso’ applied, and as such Buss P and Mitchell JA allowed the appeal, set aside the convictions and ordered a new trial.
In a separate judgment, Derrick J found that the prior convictions should not have been admitted at all. His honour regarded the elements of deliberateness and indecency as separate from one another, and whilst the prior convictions could have been admissible to prove indecency, he did not regard indecency as a fact in issue at trial (-, -). Derrick J therefore also found that the appeal should be allowed, that the proviso should not be invoked, and that the convictions should be set aside and a new trial ordered.
The difference in conclusion between the majority and Derrick J on the admissibility of the propensity evidence highlights the importance of first identifying the fact in issue that the evidence is said to be significantly probative of. Though not strictly a matter of evidence law, this in turn demonstrates the importance of precisely understanding the nature of each element to be proved.
The judgment was delivered on 29 May 2020. You can access it here. See especially the paragraphs cited above.