Liyanage v WA

[2021] WASCA 220

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Trial by judge alone
5. › Whether verdicts unreasonable or unsupported by evidence
6. › Criminal Appeals Act 2004 (WA), s 30(3)(a)
1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Admissibility under s 31A Evidence Act 1906 (WA)
5. › Significant probative value
6. › Whether differences in nature of acts preclude significant probative value
7. › Whether propensity established from later offences applicable to earlier offences
1. Criminal Law
2. › Sexual offences
3. › Medical practitioner and patient
4. › Offending during medical consultations
5. › Motivation for sexual offending
6. › Whether trial judge erred in observations about motivation
7. › Whether error material to verdict
1. Criminal Law
2. › Evidence
3. › Onus of proof
4. › Whether trial judge reversed onus by reference to accused's inability to explain conduct

Quick Take

Propensity evidence under s 31A of the Evidence Act 1906 (WA) may have significant probative value even where the specific sexual acts differ between the propensity counts and the charged counts, provided the surrounding circumstances share common features such as the relationship of trust, vulnerability of victims, and the guise under which the offending occurred. A trial judge's overstated observation about the motivation for sexual offending does not constitute material error where there is no reasonable possibility it affected the verdict.