Court of Appeal (WA)|2010-10-29|Before: Pullin JA

KMB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 212 (29 October 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KMB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 212

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual offences against stepdaughter - Sexual relationship with a child under the age of 16 years - Offending over 10-year period - Uncharged sexual acts - Whether uncharged sexual acts admissible as propensity evidence or relationship evidence - Whether trial judge failed adequately to direct the jury as to the complainant's evidence regarding uncharged sexual acts - Whether miscarriage of justice

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether total effective sentence infringed the totality principle - Turns on own facts

B v The Queen [2002] WASCA 236

D v The Queen [2003] WASCA 33

D v The State of Western Australia [2009] WASCA 155

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

Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482

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

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

LSC v The Queen [2003] WASCA 303

Ly v The Queen [2007] NSWCCA 28

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

MPD v The State of Western Australia [2008] WASCA 57

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516

Schaper v The State of Western Australia [2010] WASCA 178

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Stubley v The State of Western Australia [2010] WASCA 36

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

Upton v The State of Western Australia [2008] WASCA 54

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1 PULLIN JA: I agree with Buss JA that the appeals against conviction and sentence should be dismissed. I agree with Buss JA's reasons for dismissing the appeal against sentence. My reasons for dismissing the appeal against conviction are as follows.

2 The appellant's ground of appeal alleges error and a miscarriage of justice because of the trial judge's alleged failure to adequately direct the jury as to the evidence about uncharged acts. By uncharged acts I mean acts of sexual offending against the victim which are not made the subject of counts in the indictment. This was a case involving sexual offences committed by the appellant against his stepdaughter commencing when the victim was 8 years old and continuing until she was 18. The details of the counts in the indictment are set out in Buss JA's reasons.

3 The first alleged 'inadequate' direction to the jury was that the trial judge did not direct the jury that they needed to be satisfied beyond reasonable doubt before they could take into account the evidence of uncharged acts. The submission that such a direction had to be given has no merit. The evidence about the uncharged acts was circumstantial evidence. It did not amount to evidence constituting an indispensible link in a chain of evidence necessary to prove the appellant's guilt in relation to any of the counts in the indictment. This is because the complainant gave direct evidence of the offences the subject of the indictment: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585; PIM v The State of Western Australia [2009] WASCA 131 [157], [314]; Stubley v The State of Western Australia [2010] WASCA 36 [159] - [160], [390].

4 The next particular supporting the ground was an allegation that the trial judge failed to adequately direct the jury as to the reason why the evidence was admitted. This particular has no merit. It was not necessary for the jury to be given reasons as to why the evidence was admitted.

5 The next alleged inadequacy in the direction was the fact that the trial judge did not direct the jury as to the purpose for which they could use the evidence of uncharged acts. That particular of the ground has no merit. The trial judge did explain what use could be made of the evidence (and also what use could not be made of the evidence).

6 Finally, it was alleged that the trial judge failed to adequately identify the evidence in question. That particular has no merit. Buss JA has set out what the trial judge said about the 'uncharged' or 'other' sexual acts. The trial judge reminded the jury of the evidence sufficiently to

allow the jury to understand what the evidence was so that they could understand the direction about what use could, and could not, be made of that evidence.

7 As a result, none of the particulars to the ground of appeal against conviction has any merit and for those reasons the appeal against conviction should be dismissed.

8 BUSS JA: On 23 April 2009, the appellant was convicted after a trial in the District Court before Groves DCJ and a jury on seven counts in an indictment which alleged the commission of various sexual offences against his step-daughter.

9 The complainant was born on 15 June 1989. The offences occurred between 1 January 1997 and 11 July 2007.

10 On 21 May 2009, the trial judge sentenced the appellant to a total effective term of 14 years 6 months' imprisonment. The sentence was backdated to commence on 18 March 2009, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.

11 Details of the offences, the maximum penalties and the individual sentences are as follows:

Count 1: Between 1 January 1997 and 14 June 2005, the appellant had a sexual relationship with the complainant.

Count 2: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his tongue.

Count 3: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his fingers.

Count 4: On 11 November 2006, the appellant sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his penis.

Count 5: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his tongue.

Count 6: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his fingers

Count 7: On 11 July 2007, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis.

12 The appellant has appealed to this court against his conviction and sentence. It is convenient to begin by considering the appeal against conviction and then to examine the appeal against sentence.

13 The appellant was convicted on one count of having a sexual relationship with a child under the age of 16 years, three counts of sexual penetration of a child whom he knew to be his de facto child, and three counts of sexual penetration without consent.

14 At the material time, s 321A of the Criminal Code (WA), which created the offence of engaging in a sexual relationship with a child under the age of 16 years, provided, relevantly:

(1) For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.

(2) In subsection (1) the act referred to need not be the same act, or constitute the same offence on each of the 3 or more occasions.

(3) A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.

(4) An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.

(5) In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particularize the circumstances, of the alleged acts.

15 In about 1996, the appellant commenced a relationship with the complainant's mother. Shortly afterwards, the complainant, her mother and the complainant's brother commenced living with the appellant at his home. The complainant was then aged about 7 years and 6 months.

16 In September 1997, the appellant married the complainant's mother. Although he was not her biological father, the appellant's name was placed on the complainant's birth certificate. The complainant was raised in the belief that she was the appellant's biological daughter. She remained of that belief until, at the age of 18 years, her mother told her the truth.

17 In about 2001, the appellant and the complainant's mother separated. The mother was a drug addict. She left the family home with the complainant's younger brother. The complainant remained with the appellant.

18 The complainant gave evidence at the trial that from the time she was 8 years old until she was 18, the appellant raped her 'continuously'. She said that sexual acts were committed against her on an almost daily basis.

19 As to count 1, the three episodes relied on by the prosecution were as follows. The first act involved the appellant causing the complainant to stroke his exposed penis until it became erect, the appellant touching the complainant's vagina and the appellant telling the complainant to remove her clothes, lying on top of her and penetrating her vagina with his penis. This occurred when the complainant was aged about 8 years. The second act occurred a few days after the first act. The appellant removed the complainant's clothes and touched her vagina. On this occasion, he penetrated her vagina with his penis and ejaculated in her vagina. The third act occurred at the appellant's brother's vacant property in rural Western Australia. The appellant removed the complainant's clothes, performed oral sex on her and penetrated her vagina with his fingers and then his penis. He ejaculated in her vagina. The complainant was then aged about 10 years. The three acts I have mentioned were said by the prosecution to be representative of the appellant's sexual abuse of the complainant between 1 January 1997 and 14 June 2005.

20 Counts 2, 3 and 4 were alleged to have occurred on 11 November 2006 at the appellant's home. The appellant removed the complainant's clothes, penetrated her vagina with his tongue, then with his fingers and finally with his penis. He ejaculated in the complainant's vagina. She was then aged 17 years.

21 Counts 5, 6 and 7 were alleged to have occurred on 11 July 2007 when the complainant was aged 18 years. The appellant removed most of the complainant's clothes, penetrated her vagina with his tongue, then with his fingers and finally with his penis. He ejaculated in her vagina.

22 In 2002, when the complainant was 12 years old, she became pregnant. She gave evidence that the appellant was the father of the child. The appellant took the complainant to see medical practitioners. He arranged for her to have an abortion. The appellant told the medical practitioners that the complainant had become pregnant to a 12-year-old boy.

23 According to the complainant, when she was 18 years old she left the appellant's home after an argument with him. She said that counts 5, 6 and 7 occurred shortly before she left. After the occurrence of these counts, she told her mother, her boyfriend and three work mates that she had been abused by the appellant for 10 years. On 25 October 2007, about three months after leaving the appellant's home, she made a complaint to police.

24 After the complainant made this complaint, police arranged for her to meet with the appellant on 14 December 2007. The complainant wore a covert recording device. During the meeting, which was recorded, the appellant made numerous admissions to the complainant, including the following:

[complainant] So you don't know why you had sex with me at eight and it continued for 10 years. You could have gotten your pleasure from someone else yet you chose it towards me and I was eight years old dad.

[appellant] I never meant to hurt you if that's what you want.

...

[appellant] I don't want you to think I'm some evil guy. I mean what you think means more to me than anybody else. Yes there was nothing malicious or to harm you or anything else. Part of me knew it was wrong but like I said. I just honestly loved you very much and I always wanted to be - look after you and make sure you done well and you can blame your whole life on me or you can sit down and believe what I'm telling you.

25 The appellant elected not to give evidence in his own defence at the trial. He did, however, call evidence from his niece, his son, his employer and a work colleague.

26 The prosecutor said in opening in relation to the three episodes underpinning the sexual relationship count:

The sexual abuse continued at such frequency that [the complainant] is unable to tell you each and every occasion, save for those that stood out in her mind (ts 14).

27 As to the evidence of other sexual incidents between the appellant and the complainant, the prosecutor said:

(a) The complainant recalled that sexual abuse continued on a regular basis (ts 15).

(b) The complainant kept a diary in which she marked the days on which the appellant had sexual intercourse with her, but 'the sexual intercourse occurred with such frequency that she gave up after a couple of months or so of marking her diary' (ts 17).

(c) The complainant repeatedly told the appellant to stop, and that she did not want him to continue to penetrate her (ts 19).

28 The appellant's trial counsel, in a brief opening, identified the issue in the case as being, 'did it happen?' (ts 20).

29 The complainant's evidence was not pre-recorded. She gave evidence at the trial from a remote room in the District Court.

30 Apart from giving specific evidence as to all of the counts in the indictment (including the three episodes relating to the sexual relationship count), the complainant gave evidence, without objection, about other sexual assaults. In particular:

(a) When giving evidence about an incident in 2003 at a country town, the complainant said the appellant was having sex with her 'just about every day, if he could' (ts 32).

(b) She had an abortion at the age of 12 years, and thereafter the appellant continued to have sex with her (ts 36).

(c) After the abortion, the complainant was prescribed the contraceptive pill, and the appellant continued to have sex with her (ts 36).

(d) When asked how frequently the appellant was having sex with her, the complainant replied, 'very often. It - probably about every - just about every day if he had the chance to' (ts 36).

(e) When giving evidence about incidents around 11 November 2006, after her uncle's wedding, the complainant said, 'He [referring to the appellant] wanted to sleep with me again' (ts 37).

(f) The complainant did not say 'no' to the appellant during the incidents because every time she told him 'no', 'he wouldn't listen and I knew it was no point saying anything else' (sic) (ts 38).

31 The complainant said in evidence-in-chief that she had told her work colleagues, 'my [step-father] has been sexually abusing me since I was 8' (ts 41). She agreed in cross-examination that in August 2007 she had told her mother and that in July 2007 she had told her (the complainant's) boyfriend that the appellant had been abusing her since she was 8 years old (ts 106). It was put to the complainant by the appellant's trial counsel that there was no occasion when her step-father (the appellant) had abused her, as she had described, from the age of 8 years onwards. She replied 'incorrect' (ts 111). Although the complainant told her boyfriend and her work colleagues the abuse had finished when she was 14 years old (ts 112), her evidence was to the effect that the abuse continued until July 2007, when she was aged 18 years (ts 115 - 116). The complainant said in re-examination that she had been 'abused at a young age' (ts 113).

32 The prosecutor said in her closing address in relation to the evidence of other, uncharged, sexual incidents involving the appellant and the complainant:

(a) A few months after they moved in (to the appellant's house), he started to abuse her sexually (ts 247).

(b) The complainant had told the jury that her step-father was having sex with her just about every day, if he could (ts 248).

(c) Referring to the events that gave rise to counts 2, 3, and 4, 'by that stage she has learnt that whatever she said or did was never going to make him change his mind' (ts 249).

(d) All the complainant wanted was for the abuse to stop (ts 251).

(e) '[The appellant's] love for her is one of illicit passion and unnatural interest built up over the years when she was a child' (ts 251).

(f) The complainant's evidence was that she was not making it up, and that she had been 'abused at a young age' (ts 252).

(g) The abuse started when she was eight years old, and that is 'just the right age to be groomed and conditioned to accept as normal ... what is ... unnatural' (ts 253).

(h) The complainant had been conditioned over a period of 10 years to accept what he was doing to her, and had been conditioned not to tell anyone (ts 253).

The appellant's trial counsel's closing address

33 The appellant's trial counsel told the jury that it was important to 'look carefully at the context in which the events which are being spoken of and the allegations that are being made are arising' (ts 255).

34 Counsel referred to the complainant's evidence about sexual incidents occurring almost every day, if there was a chance, for almost 10 years (ts 262), and questioned the authenticity of this evidence (ts 263).

35 According to counsel, the relevant 'context' included the fact that the complainant had first raised the issue of the alleged abuse shortly after she had discovered that the appellant was in fact her step-father. Before that time, she had believed him to be her biological father (ts 263).

36 Counsel made reference to the complainant having disclosed her 'horrific history' (ts 264), and referred to the complainant's contention that 'it was always the same and it was every other day, if it was possible' (ts 265).

Appeal against conviction: the ground of appeal

37 The appellant's sole ground of appeal against conviction alleges that the trial judge erred in fact and law, and there was a miscarriage of justice, when he failed adequately to direct the jury as to the evidence about other offending of a sexual nature committed by the appellant upon the complainant.

38 The particulars to the ground assert that his Honour did not:

(a) direct the jury that they needed to be satisfied beyond reasonable doubt of the evidence in question;

(b) adequately direct the jury as to the reason why this evidence was admitted;

39 On 2 March 2010, Owen JA granted leave to appeal.

Appeal against conviction: some relevant legal principles

40 In HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, Gleeson CJ referred to the term 'uncharged acts', in the context of a case involving sexual offending against children, and said he was content, for the purpose of stating his reasons, to adopt that term. His Honour added, however, that he did not suggest it would always, or even usually, be a helpful term in a trial judge's directions to a jury [1]. Like Gleeson CJ, in these reasons I will, solely for convenience, use the term 'uncharged acts'. However, as Gleeson CJ and Hayne J explained in HML, it is preferable that the term not be used by a trial judge in directing a jury.

41 At common law, evidence that reveals the accused as a person of bad character is not admissible in criminal proceedings if it merely proves that he or she has a general disposition or propensity to commit crime or a particular kind of offence. See Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs ACJ, Stephen, Jacobs & Aickin JJ agreeing); Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 (Gibbs CJ), 603 (Wilson J), 609 (Brennan J). The reasons for this exclusion were summarised by McHugh J in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 512 - 513.

42 The exceptions to this exclusionary rule include what has been referred to as 'propensity evidence'. In Pfennig, Mason CJ, Deane and Dawson JJ said:

There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense (464 - 465).

43 The term 'propensity evidence' does not appear to have a precise meaning at common law. It includes 'similar fact evidence' and 'relationship evidence'.

44 The term 'similar fact evidence' usually describes evidence which reveals that the accused has, on previous occasions, engaged in conduct similar to that alleged against him or her in the pending criminal proceedings. The probative value of similar fact evidence lies in the improbability of witnesses giving accounts of happenings having the requisite degree of similarity unless the events occurred.

45 Where the similar fact evidence is disputed, it remains relevant to prove the commission of the acts charged. See Pfennig (482) (Mason CJ, Deane & Dawson JJ). See also Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 556 - 557 (Deane J).

46 The term 'relationship evidence' refers to evidence relating to the accused and the complainant which will often be admissible because it tends to prove how or why the conduct the subject of the pending criminal proceedings arose, or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged. See Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 630 (McHugh J). Evidence of the relationship between the accused and the complainant may be admissible for the purpose of proving the accused's guilty passion, intention or propensity, or the accused's opportunity or motive to commit the offence alleged against him. See Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [182] (Callinan J).

47 In R v Best [1998] 4 VR 603, Callaway JA (Phillips CJ & Buchanan JA agreeing) said:

The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive (606).

48 Propensity evidence may be directly relevant to a fact in issue (this is usually the case with similar fact evidence) or it may be indirectly relevant to a fact in issue (this is usually the case with relationship evidence).

49 At common law, propensity evidence is admissible only if it is sufficiently highly probative of a fact in issue as to outweigh the prejudice it might cause to the accused. It is inadmissible if there is a reasonable view of the evidence which, when the propensity evidence is considered with other relevant evidence, is inconsistent with the accused's guilt. See Pfennig (481 - 483) (Mason CJ, Deane & Dawson JJ); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson & Gaudron JJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [9], [54] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

50 Also, at common law, evidence is admissible, even though it reveals other criminal conduct or non-criminal but discreditable behaviour by the accused, if it is part of the res gestae. Further, evidence of collateral facts which tends to prove the facts in issue (that is, circumstantial evidence) is often admitted in evidence, even though it reveals other criminal conduct or non-criminal but discreditable behaviour by the accused. See Harriman (628) (McHugh J). In Harriman, McHugh J said:

If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused. Consequently, it is a matter of great importance whether the evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the facts in issue: cf Forbes, Similar Facts (1987), at p 19 (633).

51 Section 31A of the Evidence Act 1906 (WA) provides:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

52 Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch.

53 The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig:

The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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 (529).

See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.

54 Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] - [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of each of pars (a) and (b) of s 31A(2) have been satisfied.

55 In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. No doubt, the other person will usually be the complainant (especially in the case of allegations of sexual assault against a child) or a class of persons of which the complainant is a member (again, especially in the case of allegations of sexual assault against a child or children). The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

56 The tests for admissibility in pars (a) and (b) of s 31A(2) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) 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.

57 The court may decide, in a particular case, that the tests in pars (a) and (b) of s 31A(2) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in par (a) is satisfied, but the test in par (b) is not satisfied unless the evidence in question is admitted:

(b) subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.

The instances I have given are examples. They are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.

58 Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.

59 This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto [26] - [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [64] (Steytler P).

60 However, as Steytler P noted in Upton, it does not follow from the conclusion that if evidence is admitted generally as propensity evidence under s 31A, no warning of any kind is ever required in respect of the evidence [65]. His Honour explained:

Under the common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. That is because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the crime charged. A propensity direction would contradict the basis on which that evidence was admitted: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J). The same is true of evidence admitted as propensity or relationship evidence under s 31A. If that evidence satisfies the test for admissibility (as it must do), no propensity direction is required: Noto [26] - [28]. That is not to say that no warning of any kind is required in respect of the evidence. What needs to be said will necessarily depend upon the individual circumstances [65].

61 A warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of miscarriage of justice. However, no propensity warning is necessary in relation to propensity evidence or relationship evidence which is admitted generally under s 31A.

62 Section 31A does not deal with the standard of proof in relation to uncharged acts or propensity evidence generally.

63 In PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516, I examined, in the context of a criminal trial alleging sexual offending against a child, the basis for the admissibility under s 31A of uncharged acts including any directions which a trial judge may be required to give to the jury in relation to the uncharged acts. It is unnecessary, in the particular circumstances of the present case, to repeat, revisit or elaborate upon the opinions I expressed in PIM. See, however, the observations of Owen JA in Stubley v The State of Western Australia [2010] WASCA 36 [4] in relation to HML and the approach recommended by Nettle, Redlich and Dodds-Streeton JJA in R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [65].

Appeal against conviction: the trial judge's summing up

64 The trial judge instructed the jury in his summing up, relevantly, as follows:

(a) The jury had to arrive at a separate verdict in respect of each of the seven counts in the indictment. It was open to the jury to find the appellant guilty of one, some or none of the charges or, conversely, not guilty of one, some or all of the charges. Simply because, for example, the jury found him guilty of one charge, it did not follow that he must therefore be guilty of all of the charges. Conversely, if the jury found him not guilty of one charge, it did not follow that he must therefore be not guilty of all of the charges (ts 194). The jury must not reason on the basis that, 'well, if he did one then he must have done all of them' (ts 194).

(b) The State had the burden of proving each of the elements of each count. There was no onus on the appellant to prove his innocence or, indeed, to prove anything at all. The burden of proof never shifts from the prosecution (ts 194).

(c) The State must prove all of the elements of a count beyond reasonable doubt before the jury could return a verdict of guilty (ts 195). The appellant was entitled to the benefit of any reasonable doubt which the jury may have (ts 196). If the jury had a reasonable doubt in respect of any element of any of the counts, the State will have failed to prove its case on that count and the appellant must be acquitted (ts 196).

I mentioned earlier, 'uncharged' or 'other' sexual acts. You'll recall that [the complainant] gave evidence that, apart from these particular instances of which she gave evidence, the instances - i.e., the charges on the indictment - those occasions, that she also gave evidence that the accused, 'Would have sex with her just about every day if he could'. There was also evidence, you will recall, when she spoke of having recorded in her diary in the months of January, February and March of 2006, by putting a red asterisk on the day, they being days when she said that the accused had sexual intercourse with her.

Now, those matters are not the subject of any charges on the indictment. So you may be wondering, 'Well, what's the purpose of that evidence?' And what can you do or how can you use that evidence? It is evidence that's referred to as relationship evidence or evidence of extraneous sexual conduct in the sense that it is talking about matters that were done but are not the subject of any charges. This evidence of those alleged - or that alleged sexual conduct is admitted as evidence solely to establish the relationship between the accused ... and [the complainant] as part of the context and the setting in which or the background against which the offences charged are alleged to have occurred. By giving, if you like, the bigger picture; that is it is against this background that it is said that these charges were committed. Even if you accept that evidence, that is the evidence of the extraneous sexual conduct, or part of it - the commission of the offences charged - the offences on the indictment can only be proved by the evidence relating to those charges and not by the evidence of the extraneous sexual conduct. That is, if you're not satisfied that the conduct the subject of a particular charge has been proved, then you can't use the evidence of the uncharged acts to convict the accused. You can't rationalise, 'Well, he did these things on these other occasions, therefore, he must have done this charged offence'. You can't use that evidence to rationalise in that way. You must not reason that, because the accused engaged in sexual conduct with the complainant on other occasions, that he was the kind of person who was likely to have done so on the particular occasions with which he has been charged. On the other hand, if you do not accept [the complainant's] evidence of these other occasions, the extraneous sexual conduct; if you don't accept her evidence as to that, then of course, it's likely to influence your assessment of her credibility about the events charged. Unless you find the evidence of extraneous conduct reliable and believe it to be true, then you should simply disregard it; put it to one side and then just consider the evidence in relation to each of the separate charges on the indictment (ts 200 - 201). (emphasis added)

You can only find him guilty, [the appellant] guilty, on count 1 if all 12 of you are satisfied beyond reasonable doubt that on the first occasion he either sexually penetrated her or indecently dealt with her, that on the second occasion that he sexually penetrated her and that in [the location in rural Western Australia], the third occasion, he sexually penetrated her. You have to be satisfied beyond reasonable doubt as to those matters before you can convict him on count 1, that being the charge of a sexual relationship (ts 207).

Again, you have to be satisfied beyond reasonable doubt that these incidents [the subject of counts 2, 3 and 4] did occur as [the complainant] said they did (ts 208).

[Y]ou have to be satisfied beyond reasonable doubt firstly that [the appellant] did sexually penetrate [the complainant] in the way alleged [in counts 5, 6 and 7] and that he did so without her consent (ts 210).

Her credibility, of course, is at the very heart of this case. What you make of her and of her evidence is very much a matter for you because, as I've stressed, you alone are the judges of the facts in this case. When assessing the credibility of [the complainant] you will, as I've said, bring to bear your powers of commonsense, your life's experiences and powers of judgment. Assessing credibility means considering firstly the honesty of the witness, the impression of honesty that she gave you. It's also necessary to consider the reliability of what she has said. You may accept the whole of what she said; you may reject the whole of what she said. You may accept parts of it; you may reject other parts of it. Just because you might find that perhaps she's unreliable in certain respects that's not to say that you necessarily find that she is unreliable in respect to all things. Of course, if you have the view that her evidence is unreliable and if you do have, as defence counsel said yesterday, misgivings about her evidence, doubts, concerns, if you were to think, 'Well, I reckon he did it but I can't be sure', well, that's not good enough. You have to be satisfied beyond reasonable doubt. That is you have to be accepting that [the complainant's] evidence is truthful, that it is credible, that it is reliable ... Because [the complainant's] evidence is vital to the prosecution's case you must consider her evidence carefully and I do direct you to do that (ts 210 - 211). (emphasis added)

65 No application was made by the State or the appellant at or before the trial in relation to the admissibility of the evidence of the uncharged acts or the purpose or purposes for which the State proposed to rely on that evidence.

66 The appellant was represented at his trial by senior counsel with many years experience as a criminal defence lawyer. Senior counsel did not:

(a) object to the admissibility of the evidence of the uncharged acts;

(b) request the trial judge to give any particular directions in his summing up to the jury about that evidence; or

(c) complain about or request any re-direction concerning the directions given in his Honour's summing up in relation to the evidence of the uncharged acts.

67 Before this court, counsel for the appellant (who did not appear for the appellant at his trial) conceded that the evidence in question was admissible under s 31A of the Evidence Act as 'relationship evidence' (appeal ts 19). Counsel also conceded that it was necessary, in view of the forensic decisions taken by senior counsel at the trial, for the appellant to demonstrate to this court that a miscarriage of justice had occurred (appeal ts 13).

68 In my opinion, evidence of the uncharged acts was, without doubt, admissible under s 31A as 'relationship evidence' and, also, as 'propensity evidence'. The evidence demonstrated the nature of the relationship between the appellant and the complainant and, also, the character of the appellant and a tendency that he had. The evidence of the uncharged acts illustrated the appellant's ongoing sexual interest in the complainant, and revealed the manner and extent to which he had acted on that interest.

69 The evidence of the uncharged acts had significant probative value, either by itself or taken with other evidence adduced at the trial. If accepted by the jury as truthful and reliable, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the facts in issue in relation to each of the counts in the indictment. I consider that fair-minded people would think that the interests of justice required the admissibility of the evidence of the incidents in question despite any risk of an unfair trial.

70 The evidence of the uncharged acts, if accepted by the jury as truthful and reliable, disclosed either criminal or disreputable conduct by the appellant towards the complainant.

71 The nature and extent of any directions required in relation to 'propensity evidence' or 'relationship evidence' which is admitted under s 31A depends on the character of the evidence in question, whether the evidence is admitted generally or for a particular or limited purpose, and the facts and circumstances of the particular case.

72 If a trial judge is required, but fails, to give any particular direction or directions in relation to 'propensity evidence' or 'relationship evidence', it does not necessarily follow that there will have been a miscarriage of justice. The whole of the trial judge's summing up must be examined, in the context of the relevant facts and circumstances (including the evidence actually adduced and the course of the trial as a whole), in order to determine whether a miscarriage has occurred.

73 In the present case, I am satisfied that the trial judge's summing up did not occasion a miscarriage of justice. Also, I am satisfied that his Honour's summing up did not contain any material errors of law. My reasons for these opinions are as follows.

74 First, the directions which the trial judge actually gave were very favourable to the appellant in that:

(a) they confined the relevance of the evidence of the uncharged acts to background or contextual relevance;

(b) they required the jury to focus solely upon the complainant's direct evidence in relation to the specific acts alleged against the appellant in each count in the indictment; and

(c) they required the jury not to act on any of the complainant's evidence concerning any element of any offence alleged against him in the indictment unless they were satisfied beyond reasonable doubt that her evidence was truthful and reliable.

(a) His Honour gave the jury a 'separate consideration warning'. They had to arrive at a separate verdict in respect of each count (ts 194).

(b) His Honour directed the jury that the complainant's credibility was 'at the very heart' of the case. The jury could not be satisfied beyond reasonable doubt in relation to a count unless they accepted the complainant's evidence as truthful and reliable. Her evidence was 'vital' to the State's case and it was therefore necessary for the jury to consider her evidence carefully (ts 210 - 211).

(c) His Honour directed the jury that the evidence of the uncharged acts was admitted as evidence 'solely to establish the relationship between [the appellant] ... and [the complainant] as part of the context and the setting in which or the background against which the offences charged are alleged to have occurred' (ts 200 - 201).

(d) His Honour directed the jury that even if they accepted the evidence of the uncharged acts, the counts in the indictment could only be proved 'by the evidence relating to those charges and not by the evidence of the extraneous sexual conduct' (ts 200 - 201).

(e) His Honour directed the jury that if they were not satisfied that the conduct the subject of a particular count in the indictment had been proved then they could not use the evidence of the uncharged acts to convict the appellant (ts 200 - 201). He gave the jury this 'propensity warning': the jury could not use the evidence of the uncharged acts to reason that if he had engaged in the extraneous sexual conduct then he was 'the kind of person who was likely to have done so on the particular occasions with which he has been charged' (ts 200 - 201).

(f) As to count 1, his Honour directed the jury, relevantly, that they could only convict on that count if they were satisfied beyond reasonable doubt that in relation to:

(i) the first episode relied on by the State, the appellant either sexually penetrated the complainant or indecently dealt with her;

(ii) the second episode relied on by the State, the appellant sexually penetrated her; and

(iii) the third episode relied on by the State, the appellant sexually penetrated her (ts 207).

(g) As to counts 2, 3 and 4, his Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that the incidents the subject of the counts actually occurred as the complainant said they did (ts 208).

(h) As to counts 5, 6, and 7, his Honour directed the jury, relevantly, that they could only convict on these counts if they were satisfied beyond reasonable doubt that the appellant sexually penetrated the complainant in the manner alleged in the counts and that he did so without her consent (ts 210).

76 Secondly, none of the uncharged acts was an indispensible link in a chain of evidence necessary to prove the appellant's guilt on any of the counts in the indictment. The complainant gave direct evidence of the specific conduct alleged against the appellant in the counts.

77 Thirdly, the trial judge did not direct the jury that the evidence of the uncharged acts could be relied on by them for the purpose of finding that the appellant had a sexual interest in or a 'guilty passion' for the complainant.

78 Fourthly, in the circumstances I have described in my first, second and third reasons at [74] - [77] above:

(a) it was unnecessary, on any view of the reasons of the High Court in HML, for his Honour to direct the jury that they needed to be satisfied beyond reasonable doubt in relation to the evidence of the uncharged acts;

(b) his Honour adequately directed the jury as to the relevance of the evidence of the uncharged acts including the purpose for which this evidence could be used by the jury; and

79 Fifthly, the only reasonable inference open in the circumstances is that senior counsel for the appellant at the trial (who, as I have mentioned, is a very experienced criminal defence lawyer) decided, for legitimate forensic reasons, not to object to the admissibility of the evidence of the uncharged acts, and not to seek any directions or re-directions from the trial judge in his summing up in relation to that evidence. As I have mentioned, the evidence in question was, without doubt, admissible under s 31A as 'relationship evidence' and, also, as 'propensity evidence'. Also, as I have mentioned, the directions which his Honour actually gave were very favourable to the appellant. It was in the interests of the appellant for his trial counsel to minimise the impact of the evidence of the uncharged acts. Any objection or application for directions or re-directions may well have resulted in his Honour scrutinising the authorities of this court which were in point, and giving directions or re-directions less favourable to the appellant.

80 The ground of the appeal against conviction is without merit.

Appeal against sentence: the grounds of appeal

81 The appellant appeals against his sentence on three grounds.

82 Ground 1 alleges that the trial judge erred in the exercise of his sentencing discretion by imposing a sentence on count 1 (namely, 10 years 6 months' imprisonment) that was manifestly excessive. Ground 2 alleges that his Honour erred in the exercise of his sentencing discretion by imposing a total effective sentence of 14 years 6 months' imprisonment that was 'manifestly excessive'. Ground 2 is, in substance, a complaint about the application of the totality principle. Ground 3 alleges that his Honour erred by failing properly to apply the totality principle and this resulted in a total effective sentence that was disproportionately long when viewed in the light of the appellant's overall criminal culpability. Ground 3 had originally included an allegation that the total effective sentence was 'crushing', but this allegation was disavowed by counsel for the appellant at the hearing of the appeal (appeal ts 32 - 33). Accordingly, the appellant relies only on the first limb of the totality principle.

KMB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 212 (29 October 2010)

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KMB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 212 (29 October 2010)

Legislation Cited (2)

Cases Cited (18)