LNN v WA

[2021] WASCA 39

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Child sexual offences
4. › Evidence of uncharged acts
5. › Directions to jury
6. › Whether trial judge's direction as to permissible and impermissible use of evidence of uncharged acts gave rise to miscarriage of justice
7. › Whether propensity reasoning was impermissible use of evidence not admitted under s 31A
8. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Appeal against conviction
3. › Child sexual offences
4. › Recent complaint evidence
5. › Whether trial judge misdirected jury as to use of evidence of witness to whom complaint was made
1. Criminal Law
2. › Appeal against conviction
3. › Inconsistent verdicts
4. › Whether guilty verdicts on some counts inconsistent with not guilty verdicts on other counts
5. › Whether verdicts can stand together as exercise in fact finding based on logic and reasonableness
1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Whether guilty verdicts unreasonable and not supported by evidence
5. › Province of jury and province of appellate court
6. › Assessment of credibility of child witnesses

Quick Take

Where evidence of uncharged sexual acts is admitted for a limited purpose (such as context) and not as propensity evidence under s 31A of the Evidence Act 1906 (WA), the trial judge must give a specific direction that the jury must not engage in propensity reasoning — that is, must not reason that the accused was the kind of person likely to have committed the charged offences. A direction that the evidence is merely 'context' or 'background' is insufficient, particularly where other aspects of the direction or the prosecutor's submissions invite the jury to use the evidence in deciding whether the charges are proved. The label 'context' covers a variety of different uses of evidence, and the permissible use must be clearly articulated.