Criminal law - Serious sexual offences - Evidence - Propensity evidence - Evidence of other witnesses of low level inappropriate conduct of a sexual nature - Whether proposed propensity evidence had significant probative value

Evidence Act 1906 (WA), s 31A

Appellant : D G Price & Co, Barristers & Solicitors

AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242

BP v The Queen [2010] NSWCCA 303

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61

DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hughes v The Queen [2015] NSWCCA 330

Ibrahim v Pham [2007] NSWCCA 215

IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

McCartney v The Queen [2012] VSCA 268; (2012) 226 A Crim R 274

Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347

R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451

Saoud v The Queen [2014] NSWCCA 136; (2014) 87 NSWLR 481

Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374

Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680

Vojneski v The Queen [2016] ACTCA 57

1 On 3 March 2016, the appellant was convicted, after a trial before O'Neal DCJ and a jury, of 17 counts of serious sexual offending against his step-granddaughter (RA) and of one count of threatening to kill his step-grandson (BA). The appellant appeals against both conviction and sentence.

2 The appellant appeals against conviction on the ground that propensity evidence given by two witnesses, admitted pursuant to s 31A of the Evidence Act 1906 (WA), was wrongly admitted, over his objection, or that the admission of that evidence occasioned a miscarriage of justice. For the reasons that follow, we are satisfied that the propensity evidence was not admissible and its admission caused a miscarriage of justice. Consequently, we would uphold the appeal against conviction on the 17 counts to which that evidence related. The judgments of conviction on those 17 counts should be quashed and a retrial should be ordered. The conviction on the count of threatening to kill BA should not be disturbed.

3 In that light, the sentence appeal does not fall to be determined and should be dismissed.

4 Counts 1 - 6 were alleged to have occurred on the same unknown date between 1 January 1999 and 31 May 2000. RA was born on 30 August 1988, so counts 1 - 6 were alleged to have occurred when she was 10 or 11 years old. Counts 1 - 5 alleged indecent dealing with a girl less than 13 years of age. Count 6 alleged sexual penetration of a girl under 13.

5 Counts 1, 2 and 3 alleged that while the appellant and RA were in a bathtub, he rubbed his penis against her stomach and vaginal area (count 1) and against her buttocks and back area (count 2). The appellant then placed RA's hand on his penis and used it to masturbate himself to ejaculation (count 3).

6 Counts 4 - 6 alleged that after the appellant and RA got out of the bathtub, he rubbed her vagina with his hand (count 4), sucked her right breast (count 5) and inserted his thumbs into her vagina (count 6).

7 Count 7 alleged sexual penetration of a girl under 13 in that on an unknown date between 1 August 1999 and 31 December 2000, the appellant went into RA's bedroom and inserted his finger into her vagina.

8 Counts 8 to 17 were all alleged to have occurred on an unknown date between 1 January 2002 and 31 December 2002 when RA was between 13 and 14 years of age.

9 Counts 8 and 9 were alleged to have occurred at the appellant's house in his bedroom. The appellant placed RA's hand on his penis (count 8 - indecent dealing with a girl between 13 and 16 years old) and inserted his penis into her mouth, moving her head up and down until he ejaculated (count 9 - sexual penetration of a girl between 13 and 16 years old).

10 Counts 10 and 11 were also alleged to have occurred when RA was at the appellant's house. After the appellant spilt a hot milk drink onto RA, the appellant removed her clothing, took her to the shower and watched as she showered (count 10 - indecent dealing). He then wrapped her in a dressing gown and took her into his bedroom. There, he forced his penis into her mouth until he ejaculated (count 11 - sexual penetration).

11 Counts 12, 13 and 14 were all offences of sexual penetration and, as before, were alleged to have occurred at the appellant's house in his bedroom. There, the appellant licked RA's vagina (count 12), inserted his fingers into her vagina (count 13) and then inserted a green penis-shaped object into her vagina (count 14).

12 Count 15 is another offence of sexual penetration alleged to have occurred at the appellant's house in his bedroom. Again, the appellant removed RA's pants and underwear and performed cunnilingus on her.

13 Count 16 is an offence of indecent dealing also alleged to have occurred at the appellant's house in his bedroom. The appellant put RA's hand on his penis and used it to masturbate himself to ejaculation.

14 Count 17, a charge of sexual penetration without consent, was alleged to have occurred at a vacant flat, to which the appellant had access. He took RA to the flat. He took with him a singlet, a towel and a tube of K-Y Jelly. He took her clothes off, bound her with cable ties, put the singlet in her mouth and inserted his penis into her vagina, continuing until he ejaculated.

15 There was a directed verdict of acquittal on count 18 because it alleged an offence not known to the law at the time it was said to have occurred.[1]

16 Count 19 alleged that on an unknown date in 2002, the appellant threatened BA with a gun after BA had observed the appellant with RA. At the time, BA was aged between 10 and 12.

17 The prosecution case relied on evidence from the following witnesses:

(b) BA, who gave evidence of observing an incident involving RA and the appellant, and evidence of count 19;

(c) DMA, who gave evidence ruled admissible pursuant to s 31A of the Evidence Act (the admission of which is the subject of ground 1);

(d) TR, who also gave evidence ruled admissible pursuant to s 31A of the Evidence Act (the admission of which is the subject of ground 2);

(e) various other witnesses giving evidence that, in some respects, corroborated elements of RA's version. It is not necessary to detail that other evidence.

18 The appellant did not give evidence at trial. The appellant spoke to police on two occasions: first, in 2004 and then again in 2015. The defence case was that the events the subject of the charges did not occur and were a fabrication.

The evidence to which objection was and is taken

19 The proposed propensity evidence to be given by DMA was that:

(1) The appellant was related to DMA by marriage. She was his niece and called him 'uncle'.

(2) In 1978, when she was 7 and he was about 37, the appellant was staying at her family's house.

(3) On an occasion, he got her attention, either by whistling or calling out to her, while he was standing in the bathroom doorway. He removed his towel with one hand, held his penis in his other hand, and smiled at her. He was only about one and a half metres away from her when this occurred. She ran away to her mother's bedroom and hid.

(4) Soon after this, the appellant made comments, in her presence, that she had 'lovely brown legs' and was 'very pretty'.

20 At trial, DMA gave evidence to that effect.[2]

21 Although at the time of the pre-trial hearing she had not made a statement, TR ultimately provided a statement and gave evidence[3] that:

(b) In 2011 when she was aged 17 years and 6 months, the appellant walked in on her while she was getting changed. The appellant looked at her in a state of undress for between 30 seconds and 1 minute. He left, and came back about 3 to 5 minutes later. He then stood and watched her getting changed, while walking slowly backwards.

(c) Subsequently, he made an inappropriate comment about her backside, once that evening when she was alone and once the next morning in front of other people.

The rulings on admissibility at the pre-trial hearing

22 The evidence the subject of the grounds of appeal was ruled admissible at a pre-trial hearing before Wager DCJ on 21 December 2015. Her Honour's reasons for ruling DMA's evidence to be admissible may be summarised as follows:

(a) The State relies on the evidence of DMA as supporting the conclusion that the appellant had a sexual interest in young girls who were related to him. That made the evidence relevant.

(b) The first question was whether the evidence had significant probative value. In that regard, it should be recognised that the evidence of DMA relates to an incident said to have occurred almost 30 years ago, and of a much less serious type of conduct than was alleged in the indictment. Nevertheless, her Honour was satisfied that the evidence had significant probative value.

(c) Although it occurred 30 years ago, the accused was well into his 30s by the time it occurred. In that respect, it was not analogous to a situation where a young person who had not yet sexually matured did something inappropriate.

(d) Further, based on the account given by DMA, there is little room for interpreting the events as being innocent or accidental.

(e) It did not matter that the incident the subject of the evidence of DMA was not strikingly similar to the allegations on the indictment.

(f) The fair-minded person test was satisfied, in that it was a situation where a fair-minded person would want the jury to know about this in the context of making the decision to be made.[4]

23 At the time of the pre-trial ruling, TR had not provided a statement. TR's mother had provided a statement in which she said that the appellant had said, relevantly, that he had walked in on TR while she was getting dressed and said, of TR, that she had an attractive backside. Wager DCJ ruled that in the absence of a statement from TR, the proposed evidence did not have significant probative value but that, with a statement from TR, depending on the contents, the evidence may have significant probative value.[5] Her Honour clarified her view, in an exchange with the prosecutor, saying that if the statement was 'right on point', then it would have significant probative value and the State could lead it.[6]

24 There was a further directions hearing before the trial judge in the lead up to the trial. By then, TR had provided a witness statement materially in the terms described by her mother. At that directions hearing, there was no objection by the appellant to the evidence of TR of the incident when the appellant walked in while she was getting dressed.

25 On appeal, the respondent submits that the appellant thereby conceded the admissibility of TR's evidence under s 31A.[7] We do not accept that that is so. Defence counsel properly accepted that, in light of the ruling by Wager DCJ, the proposed evidence of TR was admissible.[8] That did not amount to, or involve, a concession.

26 At trial, the appellant was convicted of counts 1 - 17, and 19. As we have said, there was a directed acquittal on count 18. As the appellant makes no complaint about any aspect of the trial judge's charge to the jury, it is not necessary to outline his Honour's summing up.

27 The appellant has two grounds of appeal. The first is that the judge erred in ruling that the evidence of DMA was admissible; alternatively, the admission of that evidence at the trial occasioned a miscarriage of justice. The second ground is that the judge erred in ruling that the evidence of TR was admissible; alternatively, the admission of that evidence at the trial occasioned a miscarriage of justice.

Section 31A of the Evidence Act: general principles

28 Section 31A of the Evidence Act provides as follows:

(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.

29 The appellant accepts that, given the broad definition of propensity evidence, the evidence in question was propensity evidence. The issue is whether the two requirements in pars (a) and (b) of s 31A(2) were satisfied.

30 As to whether evidence has significant probative value, the following is well-established:

(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

(b) 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.

(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.

(d) 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.[9]

31 The authorities establish the following points as to the comparison required by s 31A(2)(b). First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'.[10]

32 The weighing process required by s 31A(2)(b) is a difficult one, as it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair-minded person.[11]

The approach of an appeal court in an appeal against the admission of evidence under s 31A

33 In some appellate decisions of Australian courts, in the context of the Uniform Evidence Act, it has been held that, for some purposes at least, a primary court's decision as to whether particular evidence has significant probative value is of an evaluative character and, on appeal, is only to be interfered with in accordance with the principles in or analogous to House v The King.[12] This was so held by the New South Wales Court of Criminal Appeal in DAO v The Queen[13] and by the Victorian Court of Appeal in KJM v The Queen (No 2),[14] both of which were appeals against interlocutory decisions decided by a five-judge bench. However, both courts[15] expressly recognised that the position may be different in an appeal against conviction after trial.[16]

34 This is an appeal against conviction after trial on the ground (among others) that the admission of the evidence occasioned a miscarriage of justice. The respondent accepts that, in that context, the task of the appellate court is to decide for itself whether the evidence in question has significant probative value, and the principles in or analogous to House v The King have no role to play.[17] That is consistent with the approach taken by the High Court in Stubley v The State of Western Australia[18] and in IMM v The Queen.[19] It is also consistent with the manner in which this court has dealt with appeals against conviction on the ground of the admission of evidence under s 31A of the Evidence Act.[20] That is the approach we will take in determining this appeal.

35 It is for the jury to decide whether evidence is to be accepted and, if so, what weight to give it. So, in assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.[21]

36 In determining whether propensity 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.

37 The enquiry whether propensity evidence has significant probative value begins with the identification of the fact in issue to which the propensity evidence is said to be relevant.

38 The State submits that the evidence of both DMA and TR was relevant and of significant probative value in the following way. The central facts in issue were whether the appellant had committed each or any of the acts the subject of the counts on the indictment, direct evidence of which was given by RA. The evidence of DMA and of TR, of itself or together with other evidence, was capable of establishing that the appellant had a sexual interest in young female relatives. That conclusion would make more probable, to a significant extent, that the appellant committed the acts the subject of counts 1 - 17.[22]

39 The question is whether the evidence of either or both of DMA and TR, of itself or having regard to other evidence adduced or to be adduced, would rationally affect, to a significant degree, the assessment of the probability that the appellant did any or all of the acts alleged in counts 1 - 17.

40 For the reasons that follow, we accept that the evidence of each of DMA and TR was relevant and so of (some) probative value, but we do not accept that their evidence was, either individually or collectively, and having regard to other evidence adduced or to be adduced, of significant probative value.

41 As the trial judge (correctly) directed the jury,[23] before the jury could convict the appellant of counts 1 - 17, it was necessary that it accept RA's evidence as both truthful and reliable. The probative value of DMA and TR's evidence lay in its capacity to support the credibility of RA's account of events.[24] In that context, evidence coming from different, independent witnesses, namely DMA and TR, is to be distinguished from evidence coming from the complainant.[25] We accept that the evidence of DMA and TR was capable of rationally bearing on the assessment of the probability that the acts the subject of the counts occurred as alleged in the evidence of RA. The question is whether that is so to a degree that can be characterised as significant.

42 The propensity relied on by the State in this case is pitched at a high level of generality: the propensity to exhibit a sexual interest in young females to whom the appellant is related. The high level of generality of the alleged propensity can affect the extent of the probative force of the propensity evidence.[26]

43 Further and in any event, the high level of generality of the alleged propensity does not detract from and must not obscure the need to examine the detail of the propensity evidence in determining whether its probative value is properly characterised as significant. As we have said, the facts in issue, relevantly, are whether the appellant did any of the acts the subject of the charges. All the facts and circumstances alleged by other evidence adduced or to be adduced must be considered in assessing whether the evidence would have significant probative value. Among other things, the nature, quality, extent and duration of the conduct the subject of the propensity evidence, the nature, quality, extent and duration of the conduct the subject of the charges, and the extent of any rational connection between the conduct the subject of the propensity evidence and the conduct the subject of the charges all bear on whether the propensity evidence has significant probative value.

44 There is no necessary requirement that propensity evidence exhibit a 'striking similarity' or 'underlying unity' with the charged act in order to be admissible. Those concepts are not to be transplanted from their common law setting and used as glosses on or substitutes for the statutory phrase 'significant probative value'.[27] But the nature and extent of any similarity is relevant to whether the evidence has significant probative value.[28]

45 We begin with the evidence of DMA. In our opinion, when account is taken of the radically different character of the conduct the subject of DMA's evidence, as against the conduct the subject of the charges, and the timing of the incident involving DMA, it cannot properly be concluded that DMA's evidence had or would have significant probative value.

46 The charges against the appellant alleged that he committed very serious sexual offences against RA, involving rubbing his penis on various parts of her body, causing her to masturbate him to ejaculation, digital and penile-vaginal penetration, as well as both forms of oral penetration.

47 By contrast, the incident described by DMA did not involve any physical contact between her and the appellant, or any request for, or suggestion of, any kind of contact, then or at a future time. The appellant's penis was not erect. While the respondent contends that the conduct exhibited an element of grooming that was consistent with the appellant's conduct towards RA,[29] in circumstances where the incident with DMA was a once-off, isolated event, we do not accept this contention. The appellant's comments that DMA, his niece by marriage, was very pretty and had nice brown legs do not support a conclusion of a sexual interest, much less bear in any meaningful way on a sexual interest of a kind acted on in the ways involved in the counts on the indictment.

48 The probative value of DMA's evidence is further diminished by the fact that it occurred more than 20 years before the first count on the indictment is alleged to have occurred. However, in our view, that significant temporal gap is of less weight than the fundamental difference between the nature, quality, extent and duration of the conduct the subject of DMA's evidence and that the subject of the charges.

49 We have, as the respondent emphasises must be done,[30] considered the extent of the probative force of the evidence of DMA, and of TR, in the light of all the other evidence at trial, including:

(a) RA's evidence of other uncharged acts of the same nature as the counts on the indictment;

(b) BA's evidence of seeing, through a gap in the curtains, the appellant lying on top of RA in bed; and

(c) in the case of DMA's evidence, the evidence of TR, and vice versa.

50 Consideration of the evidence of DMA in light of this other evidence does not alter the conclusion that DMA's evidence would not have significant probative value. If anything, it reinforces that conclusion. RA's evidence of uncharged acts related to acts of the same very serious character as the counts on the indictment. BA's evidence was that he saw the appellant lying on top of RA in bed, consistent with and providing some support for RA's evidence. The stark contrast between the character of the conduct in relation to DMA and the character of the conduct the subject of the charges remains.

51 For these reasons, in our opinion, the evidence of DMA did not rationally affect, to a degree that can properly be characterised as significant, the assessment of the probability of whether the appellant had done any of the acts the subject of the charges against him. Consequently, in our view, the evidence did not have significant probative value. The evidence should not have been admitted, and its admission occasioned a miscarriage of justice.

53 In our opinion, the appellant's conduct in relation to TR is so fundamentally different and less serious in character, compared to the charged acts, that the extent to which TR's evidence is capable of rationally affecting the assessment of the probability that the appellant acted as alleged in any or all of the charges cannot properly be characterised (of itself or having regard to other evidence adduced or to be adduced) as significant.

54 The respondent submits that TR's evidence discloses four acts on the part of the appellant that, taken together, and considered in the context of the other evidence adduced at trial, support the conclusion that the appellant had a sexual interest in young female relatives, and that that significantly increases the probability that he did the acts alleged in the indictment.

55 On TR's evidence, the appellant twice walked into her bedroom when she was getting changed and looked at her for something less than 60 seconds, while she was in her underwear. There was no physical contact between the appellant and TR, and no suggestion of or request for contact of any kind. While deplorable, this evidence of voyeuristic behaviour on the part of the appellant seems to us to be so far removed from the conduct the subject of the charges against the appellant that it is not rationally capable of affecting to a significant degree, of itself or having regard to other evidence adduced at the trial, an assessment of the probability that the appellant did the acts charged in the indictment.

56 TR's evidence about comments made by the appellant does not seem to us to take the respondent's case any further. TR's evidence about those comments was as follows. The appellant walked into the bedroom in which TR was getting changed to go out to a party. After she returned from the party, she got changed into her pyjamas and went into the kitchen. There, the appellant made an 'inappropriate comment' about her bottom. She could not remember what he said, but it was something complimentary.[31] She did not respond. Nothing further was said and she went to bed. The next morning at breakfast, in the presence of others, the appellant said that TR's bottom was nice and she should not cover it up, or something to that effect.[32] While this is evidence of oafish and inappropriate things being said by the appellant, we do not think it is capable of providing any significant assistance, of itself or having regard to other evidence adduced at the trial, in a rational assessment of the probability that the appellant committed the serious indecent acts and sexual assaults against RA that were alleged in the indictment.

57 Moreover, the incident described in TR's evidence occurred in the months before she turned 18. That further undermines the extent of the evidence's probative value in assessing whether the appellant committed a series of serious sexual offences against RA, beginning when she was 10 or 11 and finishing when she was 13 or 14.

58 Consideration of TR's evidence in the context of other evidence in the case, including that outlined at [49], does not alter the conclusion that TR's evidence would not and did not have significant probative value. The reasons stated at [50] apply again here.

59 In our opinion, the evidence of TR did not have significant probative value and should not have been admitted.

60 The respondent submits, on appeal, that if TR's evidence did not have significant probative value on the ground it revealed that the appellant had a sexual interest in young females to whom he was related, then it was admissible, and had significant probative value, as a rebuttal of the good character evidence relied on by the appellant.[33]

61 We do not accept these submissions of the respondent. TR's evidence was admitted as significantly probative evidence of the appellant's sexual interest in young females to whom he was related. It was not admitted in relation to any attempt to rebut the appellant's claim of good character. Indeed, TR's evidence was led before the appellant had adduced any evidence as to his prior good character. Moreover, the trial judge directed the jury as to the use it could make of TR's evidence.[34] In doing so, the trial judge (understandably) made no reference to any question of the appellant's character. Rather, the trial judge explained that TR's evidence, along with other evidence relied on by the State, could be used by the jury to determine whether it was satisfied that the appellant had a sexual interest in young females to whom he was related. The trial judge's direction about the evidence of good character relied on by the appellant (again understandably) made no mention of TR's evidence.[35]

62 In those circumstances, and in circumstances where, in our respectful opinion, the evidence of TR did not, through its tendency to establish a sexual interest on the part of the appellant in young female relatives, have significant probative value, of itself or having regard to other evidence adduced at the trial, on the question of whether the appellant had committed the offences alleged in the indictment, the admission of TR's evidence was in error, and occasioned a miscarriage of justice.

63 For these reasons, grounds 1 and 2 have been made out.

The consequences of the success of grounds 1 and 2

64 The respondent concedes that if the evidence was wrongly admitted, there is no room for the application of the proviso.[36] This will often be the case where it is found that evidence was wrongly admitted under s 31A of the Evidence Act.[37]

65 The respondent submits that the evidence of DMA and TR was relevant only in relation to counts 1 to 17, and that the judge directed the jury accordingly. Consequently, the respondent submits, the upholding of grounds 1 and 2 requires the quashing of the convictions on counts 1 to 17, but does not affect the conviction on count 19.

66 The appellant submits that the conviction on count 19 should also be quashed in consequence of the success of grounds 1 and 2. He submits that all the evidence was treated as 'cross-admissible', and that count 19 was fortified by the complainant's evidence.[38]

67 We do not accept these submissions of the appellant. The judge gave detailed directions as to the specific use to which the evidence of TR and DMA could be put.[39] All of those directions related to using that evidence in the assessment of counts 1 to 17. When directing on count 19, the judge referred only to the need to be satisfied beyond reasonable doubt that BA's evidence about it was truthful and reliable.[40] Nothing in the judge's directions suggested that the jury could have regard to RA's evidence in relation to ground 19, much less to any evidence of TR or DMA that might support RA's evidence. In our opinion, there is no real (not fanciful) risk that the jury could have understood that it could use the evidence of TR or DMA in relation to count 19.

1. uphold grounds 1 and 2;
2. allow the appeal against conviction;
3. quash the convictions on counts 1 to 17;
4. order a retrial in relation to counts 1 to 17; and
5. dismiss the appeal against sentence.

69 By way of concluding observation, the statutory test for the admission of propensity evidence (and relationship evidence) - significant probative value - is innately open-textured.[41] As a result, there is room for reasonable minds to differ on whether proposed propensity evidence would have significant probative value. If, after such evidence is admitted at trial, the view is taken on appeal that it does not have significant probative value, the result will generally, if not always, be the setting aside of any conviction and an order for a retrial. Given the open-textured character of the test for admission, the risk that on appeal an adverse view is taken is a matter to be taken into account by the prosecution in determining whether it proposes to rely on propensity evidence.

[9] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61]; Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] - [49]; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [290]; see also, in a similar but not identical statutory setting, IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529 [46], [103].

[10] Dair [62] - [67]; Daniels [50]; LFG [291]; quoting Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

[11] Dair [67]; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [39].

[12] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[13] DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 [60], [66] - [70], [98] - [101], [157], 178], [211], [212].

[14] KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11 [10] - [13].

[15] With the exception of Simpson J in DAO [206].

[16] DAO [45], [53], [107], [212]; KJM [14]; see also McCartney v The Queen [2012] VSCA 268; (2012) 226 A Crim R 274 [45] - [51].

[18] Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.

[20] See, for example, Dair [69] - [72]; Preston [52] - [57]; Daniels [67] - [73]; [80] - 84]; AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242 [75] and LFG [168].

[21] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [153]; AJE [73]; see also IMM [47] - [52].

[22] Respondent's submissions [19] - [22]; appeal ts 15, 16.

[26] DAO [179]; Ibrahim v Pham [2007] NSWCCA 215 [264]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 [53]; El-Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 [70] - [72].

[27] Saoud v The Queen [2014] NSWCCA 136; (2014) 87 NSWLR 481 [40]; Ford [125]; Hughes v The Queen [2015] NSWCCA 330 [166], [183], [188]; compare Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680 [171].

[28] Hughes [167], [183], [188]; Ford [125]; BP v The Queen [2010] NSWCCA 303 [108]; DAO [180]; El-Haddad [70].

[37] See, for example, Dair [90], although compare Vojneski v The Queen [2016] ACTCA 57 [108] - [112].