THE STATE OF WESTERN AUSTRALIA -v- CABLE [2025] WADC 45

[2025] WADC 45 [2025] WADC 45 (HC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- CABLE [2025] WADC 45 CORAM : STAUDE DCJ HEARD : 29 & 30 MAY 2025 DELIVERED : 25 JULY 2025 PUBLISHED : 6 MAY 2026 FILE NO/S : IND 1880 of 2024 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND BARRY THOMAS CABLE Catchwords: Criminal law - Evidence - Tendency evidence - Whether evidence of other conduct by the accused with respect to persons other than the complainant is tendency evidence that has significant probative value - Turns on own facts Evidence - Tendency evidence - Whether evidence of other conduct of accused as tendency evidence has significant probative value Legislation: Evidence Act 1906 (WA), s 31A -- 1 of 18 -- [2025] WADC 45 [2025] WADC 45 (HC) Page 2 Result: Application for leave to adduce evidence of other conduct as tendency evidence granted Representation: Counsel: The State of Western Australia : Ms K A Jennings Accused : Mr T F Percy KC & Mr G Yin Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : DG Price & Co Case(s) referred to in decision(s): Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385 GNW v The State of Western Australia [2024] WASCA 164 Hughes v The Queen [2017] HCA 20 McPhillamy v The Queen [2018] HCA 52 R v Bauer [2018] HCA 40 The Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15 ZYX (pseudonym initials) v Cable (No 5) [2023] WADC 61 -- 2 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 3 STAUDE DCJ: 1 The accused is charged with seven offences of a sexual nature said to have been committed on five occasions on unknown dates in the period 1967 - 1969 inclusive. The indictment alleges five counts of unlawful and indecent dealing with a girl under the age of 13 years and two counts of unlawful carnal knowledge of a girl under the age of 13 years. 2 The State's application is for leave to adduce the evidence of three witnesses, MH, RS and TH, as evidence of a tendency the accused had at the time of the alleged offending. Alleged facts 3 The statement of material facts alleges that the complainant was the adoptive child of the accused's sister-in-law and her husband. When the couple became estranged, the complainant lived for a period of time at an orphanage in Wembley. 4 For one month during the period 1967 to 1969 it is alleged that the complainant, then aged 9 - 11 years, stayed with the accused and his wife at their home for a period of about one month. The accused was then aged 23 - 25 years. 5 Counts 1 and 2, charges of indecent dealing and unlawful carnal knowledge, arise from an occasion when it is alleged that the complainant and the accused were in her bedroom. Both were undressed. The accused put a lubricant on the complainant's vagina and inserted one of his fingers before getting on top of the complainant and placing the tip of his penis in her vagina. 6 Counts 3 and 4, also charges of indecent dealing and unlawful carnal knowledge, arise from another occasion when it is alleged that the complainant was in the lounge room with the accused after his wife had gone to bed. The accused kissed the complainant on her mouth and elsewhere before putting one of his fingers in her vagina. He then put his penis in her vagina. 7 Count 5, a charge of indecent dealing, arises from another occasion when it is alleged that the accused and the complainant were together in the lounge room. The accused was sitting in a chair and directed the complainant to kneel in front of him and then to put her hands around his penis. He put his hands on hers and masturbated to ejaculation. -- 3 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 4 8 Count 6, a charge of indecent dealing, arises from another occasion when it is alleged that the accused and the complainant were together in the lounge room. Again, it is alleged that the accused sat in a chair with the complainant kneeling in front of him. He directed the complainant to suck his penis, which she did until he ejaculated. 9 Count 7, a charge of indecent dealing, is said to arise from a further occasion when it is alleged that the accused and the complainant were together in the complainant's bedroom. The accused was undressed. The accused got on the complainant's bed and knelt astride her. He directed the complainant to masturbate him until he ejaculated. 10 With respect to each count of unlawful carnal knowledge it is alleged that the accused was unable to penetrate the vaginal introitus. Proposed evidence 11 The proposed evidence is that of three witnesses MH, RS and TH of other sexual conduct by the accused for which he has not been charged. 12 MH gave evidence of sexual abuse by the accused in a civil trial in this court that resulted in an award of damages: ZYX (pseudonym initials) v Cable (No 5) [2023] WADC 61 (the civil case). Although MH gave a detailed statement to the Western Australia Police in 1998 no criminal charges were ever laid. 13 RS and TH gave evidence in the civil case that was admitted as similar fact evidence in support of MH's case. Neither of those witnesses has made a complaint to police of the accused's conduct. 14 The evidence sought to be adduced from MH is of acts of sexual abuse from age 12 until age 15. In 1968 the accused and his family moved into a house in Gooseberry Hill close to where she and her family lived. By MH's account, the accused engaged in sexual conduct towards her that started with talk about sexual matters, including compliments of a sexual nature, and led to her being asked to touch his penis, and, thereafter, in what she described as 'the second phase' which commenced before the football season in 1969, to engage in a range of sexual acts including masturbation and fellatio. -- 4 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 5 15 The accused managed the Thornlie swimming pool. On an occasion in September 1969 the accused took her to the pool when it was closed. He put a towel on the floor of the reception area, made her lie down and then attempted to have penile-vaginal sex with her. 16 MH has described two occasions on which the accused drove her to the Zig Zag in Gooseberry Hill and had her masturbate him. 17 In October 1969 she recalls that the accused and his family moved to Thornlie. MH and her sister were invited to stay for a few days in the school holidays. She recalls that one night when others were asleep, she was on the floor of the lounge room with the accused watching television. He started touching her genital area and her breasts. This became a common thing. 18 MH has stated also that when she was at the Thornlie pool, the accused would poke her indecently when she was under the water, and touch her genital area with his feet and her breasts with his hands. MH recalls that the accused went to Melbourne with his family in January 1970. They returned in September 1970. 19 MH turned 15 years in August 1970. Although her statements deal with occasional sexual encounters beyond that time, the State would not propose to adduce such evidence. 20 The acts described by MH, if charged as criminal offences, would include offences of the kind charged in the indictment. 21 The evidence of RS is expected to be of acts of the accused that commenced in 1981 when she was aged 9, about to turn 10. Her family became neighbours of the accused in Melbourne. She and her sister would play with the accused's children. 22 On one occasion while in a spa at the accused's home in 1981 when there were no other adults present, she will say that the accused pulled her onto his lap and squeezed her breasts before pulling her bathers aside and pressing his erect penis into her bottom. She recalled at least six occasions in the period 1981 to 1983 when he touched her breasts, pulled her bathers aside and pressed the tip of his penis into her bottom. 23 The evidence of TH is expected to be that when she was 9 or 10 years old she became friends with RS. She would spend time at RS's home and became aware that the accused and his family were to move in next door. -- 5 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 6 24 She recalls an incident in the period 1981 to 1984 when she would have been 9 - 12 years of age. She and RS were at the accused's home in the spa. She recalls no other adults being present. The accused exposed his penis. He had her sit on his knee. She felt his erect penis on her backside. He held her breasts. He then pulled her bathers to the side and pressed his penis against her anus. She got off his lap. 25 In each of their cases, the alleged conduct is said to have been committed in the early 1980s, 12 or more years after the charged offences are said to have been committed. In each case the acts described were done in the spa at the accused's home when there were other children present, though no other adults. 26 The conduct each of them describes is similar. It involved underwater activity, the accused positioning the child in front of him, pulling aside her bathers and pressing his erect penis against her bottom in a way that was unlikely to be noticed by others. The tendency 27 The proposed evidence can be conveniently described as other conduct evidence. 28 The other conduct evidence is intended to prove a tendency of the accused to be sexually attracted to young underage girls and to act upon that sexual interest when the accused had regular access to young underage girls through familial relationships or close friendships when the opportunity arose: see State's outline of submissions, par 15. Section 31A criteria 29 In the State's submission the other conduct evidence meets the definition of propensity evidence for the purpose of s 31A of the Evidence Act 1906 (WA), as evidence of a tendency that has significant probative value and passes the fair-minded people test. 30 There is really no dispute that other conduct evidence is tendency or propensity evidence. The issues at the hearing were whether it has significant probative value and passes the fair-minded people test. 31 As I have decided to allow the defence application for a fair trial, the fair-minded people test is much more easily satisfied than in a case of a jury trial, since the risks of an unfair trial identified by Justice Steytler in Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385 relate particularly to juries. -- 6 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 7 32 A trial judge who has the responsibility of directing himself or herself in relation to the use to which propensity evidence can and cannot be put in proof of a tendency to act in a particular way is not susceptible to those risks. 33 My reasons will therefore focus on the question of whether the other conduct evidence has significant probative value. 34 Evidence will have significant probative value if by itself or considered with other evidence it would rationally affect to a significant extent the assessment of the probability of the existence of a fact in issue. 35 The other conduct evidence is of a tendency which in the State's submission has significant probative value having regard to the facts to be proved in the prosecution case. 36 A tendency of the kind described is a fact that, if proved by the evidence as a whole, would tend to show that it is more likely that the accused committed the offences with which he is charged for the reason that the counts on the indictment are of sexual acts committed against a young female child to whom the accused had access through a familial relationship. 37 The other conduct evidence is of sexual acts committed against other female children to whom the accused had access not through a familial relationship, but through what might be called a family friendship relationship, the common feature of the two kinds of relationship being that they each afforded the opportunity to have access to the child when there were no other adults present. Submissions 38 In the State's submission the other conduct evidence, in itself or having regard to other evidence, is capable of proving that the accused had the tendency for which the State contends at the time when the alleged offences are said to have been committed. 39 The evidence of TH is that the sexual abuse described by her began around 1968. While the evidence of RS and TH is of acts committed in the period 1981 to 1983, in the State's submission it is capable, considered with all of the other evidence, of proving that at the time of the alleged offending the accused had the alleged propensity. -- 7 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 8 40 The evidence of TH and RS is said to prove the continued existence of that interest and the accused's willingness to act upon it when he had the opportunity to do so. The separation in time of the conduct alleged by the complainant and MH on the one hand, and RS and TH on the other, in the State's submission, does not detract from the probative value of the evidence. 41 The State contends that the charged and uncharged conduct to be evidenced by the complainant and the other conduct witnesses occurred with such frequency and breadth over the course of a number of years that it shows an enduring sexual interest in young underage girls on the part of the accused and a willingness to act upon that interest as a mature man when opportunities arose in the course of his regular access to those girls. 42 The State submits that in each case there was a family connection or close friendship that provided the occasion for the accused to have access to each child and the opportunity to commit the alleged acts. Further, there is a commonality to be seen in the type of conduct committed with respect to each witness and the complainant. It is observed that there is also factual commonality in the alleged offences and the other conduct as in each case it was opportunistic and went as far as the circumstances permitted. The acts were similar and occurred in similar locations: see State's outline of submissions, par 39.2. 43 The State's submission is that although there are differences in the conduct described by the complainant and the proposed other conduct witnesses, when the conduct is looked at as a whole it may be seen to be substantially similar. Such differences do not detract from the probative value of the evidence. 44 With respect to the difference in age between MH on the one hand and the complainant, RS and TH on the other, when the sexual abuse described by each commenced, the State submits that the fact that MH was aged 12, RS and TH were aged 9, and the complainant aged 9 - 11. The State's submission is that it simply indicates the breadth of the accused's sexual interest in underage girls. As to the occasions and periods when the accused allegedly abused the complainant and the other conduct witnesses, the State observes that the alleged offending against the complainant occurred during a period when she was in the accused's care and when he had the opportunity to offend against her and that similarly, in relation to RS and TH, the accused's access to them arose during the period that he lived near them in Victoria. -- 8 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 9 The alleged sexual abuse of MH persisted over a longer period because there was greater opportunity for such abuse by reason of her visits to his home even after he had left her neighbourhood. 45 Against the State's submissions the defence argues that the critical issue at trial will be opportunity, the accused maintaining an alibi with respect to the period of one month during which in the period 1967 to 1968 the complainant is said to have resided at his home. It is submitted that if the jury finds that the complainant was taken from the orphanage by the accused then it would not be difficult for the jury to conclude that he offended against the complainant as alleged. 46 It must be observed in relation to this point that it is not the State's case that the child was taken from the orphanage for the purpose of being abused, but that the period of time in which she lived at the accused's family home afforded the opportunity for the offending. 47 As to whether the proposed evidence is significantly probative of the charged offences, the defence submits that the tendency alleged is of a general nature. The defence observes that the complainant and the other conduct witnesses are not related to each other and that the acts they describe are not similar when considered in detail. It is submitted that the degree of dissimilarity between the alleged offending in each case, especially the circumstances in which it occurred, and the particular conduct described by those witnesses is such that it lacks significant probative value. 48 It is further submitted that the other conduct evidence of RS and TH does not demonstrate that the accused had the alleged tendency in 1968. Principles 49 The principles to be applied in deciding whether tendency evidence has significant probative value are set out in GNW v The State of Western Australia [2024] WASCA 164 (GNW): 55 In RMD v The State of Western Australia, Beech J (with whom Mazza JA agreed) referred to DKA and summarised the principles relevant to the meaning of the phrase 'significant probative value' as defined in s 31A as follows: (1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution. -- 9 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 10 (2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value. (3) Evidence has probative value if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue. (4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue. (5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence. (6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact. (7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value. (8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted) 56 These principles are well established and have been adopted in numerous decisions of this Court. -- 10 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 11 57 In The State of Western Australia v Jackson, the following additional points were made: First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had. Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which: (a) the evidence is capable of proving the propensity; and (b) proof of the propensity increases the likelihood of the commission of the offences. Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven. Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted) (citations omitted) -- 11 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 12 50 In McPhillamy v The Queen [2018] HCA 52 [26] (McPhillamy), the plurality held: As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. (citations omitted) 51 The court went on to say, however, that proof of a sexual interest in young teenage boys may meet the basal test of relevance but was not capable of meeting the requirement of significant probative value for admission as tendency evidence. The court said at [27]: Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. 52 In Hughes v The Queen [2017] HCA 20 (Hughes), the High Court held that in the case of an accused person who was charged with sexual offences against five female children aged under 16 years, the evidence of each complainant and other witnesses was cross-admissible as evidence of a tendency to have a sexual interest in underage girls and to use relationships to gain access to underage girls in order to engage in sexual activities with them. In that case the plurality held at [40]: … Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. -- 12 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 13 53 At [41] the plurality held: The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. 54 In that case it was held that dissimilarity in the acts and the circumstances in which they were committed did not deprive the evidence in question of significant probative value. Although there were such dissimilarities, the evidence as a whole was capable of proving that the appellant had a tendency to engage in 'sexually predatory conduct with underage girls as and when an opportunity presented itself …': [56]. 55 Evidence of propensity includes, of course, in a case like this, the evidence of the complainant herself, the High Court having held in The Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15 [24] (Roder) that any assessment of whether evidence has 'significant probative value' as tendency evidence is to be undertaken having regard to other evidence, including the evidence of the charged act. 56 In McPhillamy, the appellant was convicted of six offences against an 11-year-old boy on two occasions between 1 November 1995 and 31 March 1996, in circumstances where he was alleged to have on each occasion followed the child into a toilet and sexually abused him. Evidence was given at the trial by two witnesses that in 1985, when each was 13 and a boarder at a school where the appellant was an assistant housemaster, the appellant sexually abused them. One witness said that on one occasion, feeling homesick, he had gone to the appellant's bedroom where the appellant cuddled him and then rubbed his genitals, and that on another occasion the appellant approached him when he was naked after showering and grabbed his buttocks. -- 13 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 14 57 The other witness also gave evidence of being homesick when he went to the appellant's room. The appellant massaged his shoulders and back and then his groin area, touching his genitals. On another occasion the appellant massaged the child, again when he was feeling homesick. On this occasion after falling asleep, the child awoke to find the appellant kneeling beside him with his head near his groin. The child felt wetness around his penis. 58 The plurality held at [31] that where the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together, citing Hughes and R v Bauer [2018] HCA 40. 59 The plurality found that the supervision exercised by the accused as assistant housemaster in 1985 over vulnerable homesick boys in his care had little in common with the supervision exercised in his role as acolyte over the complainant, an altar boy, in 1995 to 1996. It was held that the evidence of the propensity witnesses rose no higher in effect than to insinuate that, because the appellant had sexually offended against them 10 years before, in different circumstances, and without any evidence other than the complainant's allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that the complainant alleged. 60 In GNW the accused was charged with indecent dealing and indecent assault of the complainant on two occasions in 2020 and 2021. On the first occasion the accused and the complainant shared a tent in a country town to which they had travelled for a go-kart event. The complainant alleged that the accused touched him on the penis. On the second occasion, the complainant was staying overnight at the accused's house prior to their attending a go-kart event when the accused allegedly entered the room where the complainant was sleeping and touched him again on the penis. He was convicted of the second count. 61 Propensity evidence was admitted of the accused's conduct on three prior occasions in 1973, 1976 and 1994. On the first occasion the accused went with a 16-year-old boy to a town in connection with a senior scout venture. The two camped together in separate sleeping bags. The accused placed his arm around the boy on 34 occasions and eventually grabbed his penis after he had fallen asleep. On the second occasion the accused took a boy aged 15 years and another -- 14 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 15 aged 18 years on a weekend shooting trip. Whilst driving home, the accused, whilst seated next to the younger boy in the cab of a utility, grabbed him, pulled down his jeans and masturbated him. On the third occasion the accused was with an 11-year-old boy and four other children on a shooting trip. While camping, the boy slept next to the accused. The accused rubbed his hand on the boy's leg and then fondled his genitals. In respect of each of those occasions the accused had been convicted of an offence. 62 The accused in an appeal against conviction relied on McPhillamy, submitting that the absence of evidence that the accused had acted on his sexual interest in young boys under his supervision for 26 - 27 years rendered the probative value of the evidence weak. Moreover, the accused contended on appeal that there was no unifying link between the circumstances of the prior offences and the circumstances of the offence the subject of the appeal. 63 In its decision, the Court of Appeal applied the principles set out by the High Court in Roder noting that in deciding whether the prior conduct evidence in that case would have significant probative value the court must have regard to other evidence adduced or to be adduced including the evidence of the charged act. 64 The Court of Appeal found that the prior conduct evidence was capable of establishing the alleged tendency and would have significant probative value in proving that the accused did in fact place his hands on the complainant's penis in the manner alleged. 65 That decision was based on three reasons. First, the prior conduct evidence established that the appellant had an entrenched sexual interest in young males under his care and supervision and a willingness to act upon that sexual interest by (in each case) touching the young male's penis in the context of accompanying the child on a trip away or preparing to do so, be it for camping trips or other outdoor excursions. That tendency existed in the mid-70s as well as in the mid-90s and spanned several decades. The fact that the accused had not acted on his sexual interest between 1994 and 2021 was a relevant consideration, but when regard was had to the complainant's evidence of count 2, the court did not consider that this interval of time ultimately detracted from the significant probative value of the propensity evidence, essentially because of the enduring and entrenched nature of the tendency. -- 15 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 16 66 Second, the tendency was identified with reasonable specificity, the evidence establishing that the accused had a specific tendency, namely a sexual interest in young males under his care and supervision and a willingness to act on that interest by touching their penis. The Court of Appeal found that there were marked similarities in terms of: (a) the gender and age of the complainants; (b) the context of the offences being committed in relation to camping trips (except for the 1976 offence) and the offences being committed at night when the complainant was trying to go to sleep; (c) the accused performing a sexual act on the complainant; and (d) the sexual act always involving the touching or stimulation of the complainant's penis. 67 Differences between the circumstances of the prior offences and the circumstances of the offence of which the accused was convicted concerned minor matters which ultimately did not detract from the significant probative value of the evidence. 68 Third, McPhillamy was distinguishable on its facts, the court holding that the evidence showed that the accused had a sexual interest in young males and a willingness to act on that sexual interest by touching or stimulating their penis during the 1970s when he was aged in his early 20s, and again in 1994 when he was aged in his early 40s. That evidence combined with the complainant's evidence as to the charged act which allegedly occurred in 2021, when the appellant was aged in his late 60s, demonstrated that his tendency to have a sexual interest in teenage boys and his willingness to act on that interest persisted over many decades. This was found to be an important point of distinction. 69 Moreover, the court found that this was not a case where the tendency was expressed at a high level of generality involving the basal sexual interest in a class of people without more. 70 Rather, the court found that the tendency evidence not only demonstrated a sexual interest in young males under the appellant's supervision, but also a willingness to act upon that sexual interest in a particular manner, namely, by indecently touching the penis of -- 16 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 17 young males usually while they were trying to fall asleep and in the context of the trip away from home or in preparation for such a trip whether it was for go-kart racing, a camping trip or another outdoor excursion. Application 71 I am satisfied that there is a unifying link between the other conduct evidence proposed to be tendered, being the evidence of each of MH, RS and TH, and the acts charged in the indictment. In each case the accused related to the child as a relative or family friend. In each, by virtue of that relationship, the accused had access to the child which afforded the opportunity for the conduct in question to occur. The conduct occurred opportunistically and to the extent that the circumstances permitted. While MH was older than the complainant, RS and TH when the conduct they describe occurred, and continued for a period of years, it is consistent with a deviant sexual attraction to young girls of pre-pubescent or pubescent age. In the case of MH, the conduct can be seen to have been committed close in time to the conduct alleged by the complainant, lending support to the conclusion that the sexual interest existed at the time of the alleged offending. In the case of the other conduct involving RS and TH, although it allegedly occurred more than a decade later, it is confirmatory, when considered with the evidence of MH, of a deviant sexual interest at the time of the alleged offending. 72 I find that the evidence of the proposed witnesses strongly supports proof of a tendency on the part of the accused to be attracted to young, underage girls and to act on that interest when the opportunity arose. I find further that such a tendency, if proved as an intermediate fact, strongly supports the complainant's evidence of the commission of the alleged offences. It renders the commission of the alleged acts more likely to a significant degree. 73 It follows that I am not satisfied that the other conduct evidence proposed to be led by the State goes no further than proving a basal sexual interest in young girls as the defence contends. On the facts, McPhillamy can be distinguished in that regard. 74 Accordingly, I would grant the State's application and make an order that at the trial of this indictment the prosecution may adduce the evidence of MH, RS and TH in proof of a tendency on the part of the accused at the time of the alleged offences to be sexually attracted to -- 17 of 18 -- [2025] WADC 45 STAUDE DCJ [2025] WADC 45 (HC) Page 18 young underage girls and to act on that interest where he had regular access to young underage girls through familial or close friendships, when the opportunity arose. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 25 JULY 2025 -- 18 of 18 --