Asplin v WA

[2013] WASCA 72

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Admissions to psychologist about sexual attraction to children
5. › Whether propensity and relationship evidence within meaning of s 31A
6. › Whether significant probative value
7. › Whether fair-minded people would think public interest in adducing evidence had priority over risk of unfair trial
8. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Whether residual discretion to exclude evidence properly admitted under s 31A
5. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Evidence
3. › Admissibility of prior charges
4. › Withdrawn charge for child exploitation material
5. › Whether evidence of prior charge admissible as context for propensity evidence
6. › Whether jury direction sufficient to ameliorate prejudice
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Manifest excess
5. › Indecent dealing with child under 13
6. › Whether immediate imprisonment was wrong type of sentence
7. › Whether 20 months' imprisonment manifestly excessive
8. › Criminal Code (WA), s 320(4)

Quick Take

Admissions to a psychologist about sexual attraction to children constitute both propensity evidence and relationship evidence under s 31A of the Evidence Act 1906 (WA) and may be admitted at trial where the identity of the offender is in issue. There is no residual discretion to exclude evidence properly admitted under s 31A. For single incidents of indecent dealing involving skin-on-skin genital contact with a child under 13 in breach of trust, a sentence of 20 months' immediate imprisonment is within range.