Flessas v The State of Western Australia

The Court of Appeal of Western Australia recently heard an appeal against conviction brought by the appellant, Flessas, against the State of Western Australia. The appellant was convicted, following a trial, of multiple counts of possession of a prohibited drug with intent to sell or supply to another and multiple counts of possession of cash that was reasonably suspected to be unlawfully obtained. The appellant challenges the trial judge's decision to admit evidence of a prior conviction for drug dealing as propensity evidence under section 31A of the Evidence Act 1906 (WA), arguing that the evidence did not have significant probative value. The central issue for the court was whether the trial judge's decision to admit the evidence of the appellant's prior conviction was correct, particularly in relation to the requirement under s 31A(2)(a) that the evidence have significant probative value.

The court examined the appellant's argument that the evidence of the prior conviction did not have significant probative value. The court acknowledged that the concept of significant probative value has been the subject of previous judicial consideration and that it is a threshold question for the admissibility of propensity evidence. The court noted that the evidence of the prior conviction, which involved a similar offence, was relevant to the appellant's propensity to commit the current offences. The court also noted that the probative value of evidence of a prior conviction can be significant, especially where the prior offence is similar to the current charges and the evidence helps to establish a pattern of behaviour. In balancing the probative value against the risk of unfair prejudice, the court found that the trial judge was entitled to conclude that the evidence had significant probative value and that the public interest in adducing all relevant evidence of guilt outweighed the risk of an unfair trial.

Having considered the arguments, the Court of Appeal upheld the trial judge's decision to admit the evidence of the prior conviction as propensity evidence. The court found that the evidence was relevant and had significant probative value, and that the trial judge appropriately balanced the probative value against the risk of unfair prejudice. The appeal was therefore dismissed. The appellant's convictions and sentences remain in place.