R v WBN

This case involved appeals against convictions for sexual offences committed against children in the appellant’s home. The trial judge had allowed evidence in respect of all of the counts to be cross-admissible, and refused an application by the defence for separate trials for each of the complainants. A majority of the Court of Appeal concluded that the trial judge had erred in refusing separate trials, because there was not sufficient similarity between the alleged offending on each count for that evidence to be cross-admissible. Philippides JA dissented on this issue, concluding that there was sufficient similarity in the circumstances surrounding the alleged offending.

Fraser and Philippides and McMurdo JJA

16 September 2020

Background

The appellant was convicted of 11 counts of sexual offences against seven children. [23]. Most of the counts involved indecent treatment of a child under 16 by way of touching. [23]. The offending occurred in the appellant’s family home, and the complainants either had a family relationship to the appellant or were friends of the appellant’s children. [27]. The appellant was sentenced to an effective sentence of six years’ imprisonment. [24].

The appellant appealed against the convictions principally on the grounds that the primary judge erred in ruling that the counts were cross-admissible and in refusing an application by the defence for separate trials for each of the complainants, and in directing the jury in various ways. [25]. In the result, Fraser and McMurdo JJA considered that the appeal should be allowed in respect of all of the convictions, including because separate trials should have been ordered. [20]. Philippides JA dissented on this issue, considering that the counts were properly the subject of a single trial, but allowing the appeal in respect of one count due to a misdirection by the trial judge. [169].

The majority view – the appeals against all convictions should be allowed

Fraser and McMurdo JJA began by observing that the common law allows, “in an exceptional case, evidence to be admitted although it is relevant only because it demonstrates a relevant propensity or tendency of the accused”. [4]. In Hoch v The Queen (1988) 165 CLR 292, a plurality of the High Court observed that the potential value of such evidence “lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred”. [5]. Their Honours said that the test for admissibility of such evidence is a “particularly demanding one”, in that it must be such that “when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence”. [15], [17].

In essence their Honours concluded that the evidence concerning the separate accounts “did not have the requisite degree of similarity” such that it “could not have been given unless [it] were true”. [18]. Their Honours illustrated this by reference to counts 8 and 11; count 8 involved the alleged digital rape of a girl while she was asleep; count 11 was an alleged attempt by the appellant to kiss another complainant, which she was able to prevent. [18]. Their Honours said that “[i]t was open to a jury to reason that it was one thing to conclude that the appellant had tried to kiss a girl, but another thing to conclude from that event that (as alleged in count 8) he had raped a girl by taking advantage of her being asleep after drinking”. [18]. Their Honours said that “the same may be said of each other count, in comparison with count 8”. [19]. Consequently, “the evidence of each count was not admissible in the proof of every other count, and separate trials should have been ordered”. [20]. For each count there was “a risk that the jury may have convicted the appellant by using evidence which was wrongly admitted into evidence on that count”. [20].

Accordingly, the appeal was to be allowed, convictions on all counts quashed, and a re-trial ordered. [20]. Their Honours further ordered that specified counts were to be tried separately from others. [20].

The dissenting view – the appeals should largely be dismissed (except for a conviction on one count)

Philippides JA dissented in relation to whether the trial judge had erred in not ordering separate trials. After a review of the authorities, her Honour wrote that (at [108]):

“Dissimilarity in the actual acts constituting the similar fact evidence and the alleged offending does not necessarily detract from the probative value of the similar fact evidence as manifestations by an accused of a particular distinctive propensity.”

Her Honour cited observations to similar effect in R v McNeish (2019) 2 QR 355. [108]. Instead, as the High Court stated in R v Bauer (2018) 266 CLR 56, “[i]f … there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true”. [109]. In her Honour’s view, the common features linking the sexual offending in this case was that (at [123]):

“the offending occurred in the house or pool against young female complainants to whom the appellant had access because of their familial relationship or friendship with family members in disregard of the risk of detection.”

Relatedly, the evidence of each complaint, if accepted, proved that the appellant had “a tendency to have a sexual interest in female children” which he acted on by “taking advantage of their presence in the home environment” and that he acted in a “brazen manner” that disregarded the risk of detection. [126]. Her Honour considered that there was therefore a “high level of similarity” between the counts, such that the similar fact evidence of each complainant was properly cross-admissible. [131].

Separately, her Honour considered that the appeal should be allowed in respect of count 10, which concerned an alleged groping of a complainant’s breasts. [139]. The defence case was that the touching had been accidental. [139]. The trial judge had erred in directing the jury on this count because the direction “raised the possibility that the jury might have considered that even if unintentional, if the touching was foreseeable that was sufficient to exclude accident and render the appellant liable”. [147]. Accordingly, her Honour considered that the conviction on this count alone should be quashed. [147].

W Isdale