Dass v WA

[2021] WASCA 212

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Cross-admissibility of evidence on joined charges
5. › Whether evidence of sexual offending against one complainant cross-admissible as propensity evidence on charges involving different complainant
6. › Significant probative value
7. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Practice and Procedure
3. › Joinder of charges
4. › Application for separate trial
5. › Whether accused likely to be prejudiced by joint trial
6. › Whether prejudice can be guarded against by judicial direction
7. › Criminal Procedure Act 2004 (WA), s 133(3)
1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Fair-minded person test
5. › Assessment of risk of unfair trial against probative value
6. › Role of judicial directions in overcoming prejudice
7. › Evidence Act 1906 (WA), s 31A(2)(b)

Quick Take

Where evidence on joined charges is cross-admissible as propensity evidence under s 31A of the Evidence Act 1906 (WA), there can be no relevant prejudice from joinder and the discretion to order separate trials under s 133(3) of the Criminal Procedure Act 2004 (WA) is not enlivened. Numerous similarities in the pattern of offending — including the involvement of the same third party, similar-aged victims, polyamorous sexual activity, and provision of drugs — can establish significant probative value even where there are differences in the precise nature of the sexual acts, the degree of intoxication, and the location.