Propensity and Relationship Evidence in WA

The Law Reform Commission of Western Australia’s Final Report for ‘Project 112: Admissibility of Propensity and Relationship Evidence in WA’ was tabled in the Western Australian Parliament on 17 August 2022.

The Attorney General asked the Commission to respond to this question: ‘Having regard to section 31A of the Evidence Act 1906 (WA) and the more recently introduced section 97A of the Model Uniform Evidence Bill, what rules should apply to determine the admissibility of propensity and relationship evidence, and other evidence of discreditable conduct, so that all relevant evidence is available to West Australian courts, while also ensuring the right to a fair trial?’

This inquiry took place in the context of Western Australia’s likely adoption of the Uniform Evidence Law in the future. The Uniform Evidence Law has been enacted in the Commonwealth jurisdiction, as well as in Victoria, New South Wales, Tasmania, the Australian Capital Territory, and the Norther Territory. As set out in the Final Report: ‘it is a matter of public knowledge that new evidence legislation is currently being drafted to replace the Evidence Act. The new Act will adopt the UEL but will retain any Western Australian evidentiary provisions that are deemed sound’ (at page 5).

Ultimately, the Commission recommended that: ‘If the Uniform Evidence Law is enacted in Western Australia, it should adopt the Uniform Evidence Law’s approach to tendency and coincidence evidence, rather than inserting a reformulated version of section 31A of the Evidence Act’ (recommendation 1).

The Commission reached this view for a number of reasons. First, it noted the conceptual issue in that s 31A currently operates on the premise that propensity and relationship evidence is inadmissible unless it meets the requirements of s 31A. However, the Uniform Law makes all relevant evidence admissible unless otherwise provided (with the tendency and coincidence provisions then operating to render certain relevant evidence inadmissible). The Commission noted that the benefits of adopting the uniform provisions ultimately justified adopting the uniform approach rather than reformulating s 31A to work in the conceptually distinct Uniform Law context. Those benefits include a more uniform approach to the admission of propensity and relationship evidence throughout Australia; the utility of the body of case law concerning the uniform provisions from those jurisdictions; and that the uniform provisions are ‘easier to understand and apply than the s 31A test’ (at pages 8–10).

The Commission further recommended that:

‘The tendency and coincidence provisions should be available to assist in proving all offences, whether they are of a sexual nature or otherwise’ (recommendation 2);

‘A version of section 97A of the Uniform Evidence Law, which contains rebuttable presumptions concerning the admissibility of tendency evidence in criminal proceedings concerning child sexual offence, should be enacted. That provision should only apply to child sexual offences. It should make it clear that a child sexual offence includes an attempted child sexual offence. The provision should not apply to coincidence evidence’ (recommendation 3);

‘Parties should be required to provide notice of their intention to adduce tendency or coincidence evidence. The nature of the details that should be included in the notice, and the time within which the notice must be given, should be determined by the rules of court’ (recommendation 4); and

‘A version of section 101 of the Uniform Evidence Law that is currently in operation in the ACT, NSW and the NT, should be enacted so that tendency and coincidence evidence about the accused cannot be used against the accused unless the probative value of the evidence outweighs the danger of prejudice to the accused’ (recommendation 5).

You can access the Commission’s Final Report here.

MNA v The State of Western Australia [2020] WASCA 84

In brief:
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 ([29]-[34]). 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’ ([38]).

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’ ([53]). 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)’ ([70]). Their honours clarified that the touching itself would have to be independently established by other evidence ([76]). 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 ([89]). 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’ ([89]). At trial there was no such direction, and this gave rise to a miscarriage of justice ([92]). 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 ([170]-[196], [206]-[208]). 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:
The judgment was delivered on 29 May 2020. You can access it here. See especially the paragraphs cited above.