Onekawa v WA

[2012] WASCA 105

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Admissibility under s 31A Evidence Act 1906 (WA)
5. › Whether propensity evidence had significant probative value
6. › Whether probative value outweighed risk of unfair trial
7. › Striking similarity between incidents
8. › Sexual assault of sleeping victims
9. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Propensity evidence
5. › Whether trial judge adequately directed jury on permissible and impermissible uses of propensity evidence
1. Appeal
2. › Extension of time to appeal against conviction
3. › Whether merits of grounds of appeal justified extension
4. › Criminal Procedure Act 2004 (WA), s 98

Quick Take

Propensity evidence of a single subsequent offence involving sexual touching of a sleeping victim is admissible under s 31A of the Evidence Act 1906 (WA) at a trial for sexual penetration of other sleeping victims, where the striking similarity lies in the modus operandi of opportunistically sexually assaulting sleeping young women. It is not essential that there be a multiplicity of incidents or complainants for propensity evidence to have significant probative value. Evidence of conduct occurring after the charged offences is capable of being admissible as propensity evidence.