Ha v Forrest
[2019] WASC 26
•11 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HA -v- FORREST [2019] WASC 26
CORAM: ACTING JUSTICE STRK
HEARD: 29 NOVEMBER 2018
DELIVERED : 11 FEBRUARY 2019
FILE NO/S: SJA 1075 of 2018
BETWEEN: HA
Appellant
AND
CHRISTOPHER ANDREW FORREST
Respondent
ON APPEAL FROM:
For File No: SJA 1075 of 2018
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S M DE MAIO
File Number : CC KAL 254 of 2017, CC KAL 256 of 2017, CC KAL 257 of 2017
Catchwords:
Criminal law - Appeal against conviction - Propensity evidence - Whether properly admitted - Whether a miscarriage of justice for unsafe and unsatisfactory conviction - No miscarriage of justice - Magistrate's findings reasonable in all circumstances
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b), s 9(1), s 9(2), s 9(3), s 10(3), pt 2
Criminal Code (WA), s 417(1)
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal granted for both grounds
Appeal dismissed on both grounds
Category: B
Representation:
Counsel:
| Appellant | : | A D Sullivan |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
DKA v The State of Western Australia [2017] WASCA 44
Gibbs v The State of Western Australia [2018] WASCA 68
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
JJS v The State of Western Australia [2014] WASCA 136
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25
Wimbridge v The State of Western Australia [2009] WASCA 196
ACTING JUSTICE STRK:
This is an appeal against convictions in the Kalgoorlie Children's Court. The appellant appeared in the Kalgoorlie Children's Court on nine charges. Pleas of guilty were entered in July 2017 in relation to three of the nine charges before the trial magistrate. The trial for the remaining charges took place on 4 January 2018. Of the remaining charges the subject of not guilty pleas, the appellant was convicted of three offences. The judgments of conviction from those charges were entered on 12 January 2018.
The appellant brings two grounds of appeal against the three convictions. By the first ground, the appellant alleges that the magistrate erred by granting the prosecution's application to lead evidence of the appellant's previous conviction for burglary (which conviction came about by a plea of guilty in July 2017) pursuant to the Evidence Act 1906 (WA) s 31A. By the second ground, the appellant alleges that the verdicts of the magistrate were unsafe and unsupported by the evidence.
Extension of time
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[1]
[1] Criminal Appeals Act 2004 (WA) s 10(3).
The appeal notice was filed on 21 May 2018, about four and a half months out of time.
The test for the grant of an extension of time to appeal is whether it is in the interests of justice to grant an extension.[2] Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[3]
[2] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108]; applied in Briggs v Houlihan [2018] WASC 301 [47].
[3] Robertson v The State of Western Australia [2009] WASCA 83 [9].
Merely showing that there are reasonable prospects of demonstrating that the conviction was a miscarriage of justice is not sufficient. Something more has to be shown, otherwise there would be no practical consequence ever flowing from the failure to appeal within time.[4] However, exceptional circumstances are not closed. A compelling explanation for the delay would generally constitute exceptional circumstances.[5]
[4] Wimbridge v The State of Western Australia [2009] WASCA 196 [21]; citing Bardsley [113] ‑ [114].
[5] Wimbridge [20].
In support of the application for extension of time, the appellant relies on the affidavit of Anthony Doug Sullivan, a solicitor employed by Legal Aid (WA). Mr Sullivan deposes to the steps and time taken after the trial to secure the transcript and to secure a grant of legal aid. There is no evidence before me of any prejudice to the respondent if an extension of time is granted.
Before determining whether an extension of time should be granted, the merits of the appeal must be considered.
Leave to appeal
The appellant requires leave to appeal in respect of each of the grounds.[6] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[7] That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[8] If leave to appeal is refused on each ground, the appeal is taken to be dismissed.[9]
[6] Criminal Appeals Act 2004 (WA) s 9(1).
[7] Criminal Appeals Act 2004 (WA) s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[9] Criminal Appeals Act 2004 (WA) s 9(3).
On 13 July 2018, Archer J ordered that the application for an extension of time to appeal and the application for leave to appeal be heard together with the appeal.
The trial
The nine offences and the outcome of each offence are summarised in the table below.[10]
[10] The source of the table is the respondent's outline of submissions filed 15 November 2018, page 3. The table incorporates the tables prepared on behalf of the appellant (appellant's outline of submissions filed 26 September 2018, page 2), and further details included on behalf of the respondent. At the hearing of the appeal, counsel for the appellant confirmed that the appellant did not take issue with the respondent's table, but observed that the timeframes set out in the 'Date' column were sourced from witness statements and some discrepancies remain (ts 2, 3 (29 November 2018).
Charge No Offence Date Complainant Place Verdict 1. KA 201/2017 Aggravated burglary with intent 29 April 2017 A Fraser South Kalgoorlie Guilty plea 2. KA 252/2017 Aggravated burglary 4 June 2017
2.52 pmG Pentecost 53 Johnson St, Boulder Guilty plea 3. KA 253/2017 Stealing Guilty plea 4. KA 254/2017 Burglary with intent 3 June 2017
2.30 ‑ 4.00pmA Healy 4/16 Hanbury St, Kalgoorlie Guilty 5. KA 255/2017 Stealing (from a car) 3 June 2017
2.50 pmJ Rauch 18 Hanbury St, Kalgoorlie Not Guilty 6. KA 256/2017 Burglary 3 June 2017
1.00 ‑ 1.50pmM Telford 3/15- MacDonald St, Kalgoorlie Guilty 7. KA 257/2017 Stealing Guilty 8. KA 258/2017 Burglary 27 May 2017
1.00 ‑ 5.00pmD Roberts Turner St, Sth Kalgoorlie Not Guilty 9. KA 259/2017 Stealing Guilty of alternative offence[11] [11] In relation to KA 258 and KA 259 of 2017, the appellant was convicted of the alternate offence of Possessing Stolen or Unlawfully Obtained Property contrary to s 417(1) Criminal Code (WA): ts 8 (12 January 2018).
Pleas of guilty had been entered in July 2017 in relation to three of the charges before the trial magistrate, being KA 201 (which offence took place in South Kalgoorlie), KA 252 and KA 253 of 2017 (which offences took place at 53 Johnson Street, Boulder).
Application made pursuant to the Evidence Act s 31A
At the trial, an application was made by the prosecution to adduce evidence concerning the appellant during and immediately following a burglary for which the appellant had pleaded guilty and which took place at 53 Johnson Street, Boulder, as propensity evidence pursuant to the Evidence Act s 31A. The application was opposed on the basis that the evidence lacked significant probative value.[12]
[12] The trial magistrate's reasons for granting the application at ts 16 - 19 (4 January 2018).
The application was granted, however, the trial magistrate determined that the propensity evidence from the burglary which took place at 53 Johnson Street, Boulder on 4 June 2017 could only be used in relation to charge KA 254 of 2017.[13]
[13] ts 19 (4 January 2018) and ts 3 (12 January 2018).
The appellant was sentenced to a nine‑month intensive youth supervision order for the offences for which he was found guilty and for those which he pleaded guilty.
The prosecution case at trial
June 2017 offences - KA 252 and KA 253 of 2017
KA 252 and KA 253 of 2017 were the offences said to have been committed last in time, on 4 June 2017 at 53 Johnson Street, Boulder. These offences were the subject of guilty pleas. The respondent summarises the material facts for these offences as follows.[14]
[14] Respondent's outline of submissions filed 15 November 2018 pars 10 ‑ 12. The appellant's summary of the statement of material facts is set out in the appellant's outline of submissions filed 26 September 2018 par 7(a) - (c).
At 2.52 pm on Sunday, 4 June 2017, the appellant and a co-offender entered the home of Garth Pentecost at 53 Johnston Street, Boulder. The home was unattended at the time. The pair gained entry by smashing a glass panel adjacent to the front door of the premises and then reaching through to unlock the front door. The appellant and the co‑offender searched each room of the house, stealing a PlayStation 4 (PS4) game console, two PS4 controllers, a PS4 controller recharging station, two PS4 games, two digital security cameras and a Dell backpack laptop bag. The pair then left the premises.[15]
[15] Respondent's outline of submissions filed 15 November 2018 par 10.
As the pair left 53 Johnson Street, Boulder they were observed by the witness Angela Mueller, who was a friend of Mr Pentecost and was driving past at the time. Ms Mueller described seeing two Aboriginal males, approximately 15 years old, one of slim build dressed in dark clothing and the other heavier set with a round face dressed in light clothing. Ms Mueller saw the pair walking away from the front door of 53 Johnson Street, Boulder and noticed that Mr Pentecost's car was not in the driveway of the home. Ms Mueller stopped and asked the pair what they had been doing. One of them said 'I'm looking for a dog' and then went on to say 'I thought it was in [the] back garden so I went to the door'. Ms Mueller then noticed that the window next to the front door was smashed. Ms Mueller asked about the window but the pair said that it was like that when they went to the door. Ms Mueller offered to go with the male and check (presumably for the dog) but the male said 'I think I saw it at the corner there' and the pair walked off.[16]
[16] Respondent's outline of submissions filed 15 November 2018 par 11.
Mr Pentecost discovered the break‑in on his return to 53 Johnson Street, Boulder. CCTV cameras inside Mr Pentecost's home recorded the appellant and the co-offender. The footage showed the appellant wearing a light-coloured top and dark pants, dark gloves, and a black bum-bag slung diagonally across his body. The CCTV footage was provided to police who commenced an investigation.[17]
3 June 2017 offences - KA 256 and KA 257 of 2017
[17] Respondent's outline of submissions filed 15 November 2018 par 12.
The prosecution's case in respect of charges KA 256 and KA 257 of 2017 was that at about 1.00 pm on Saturday, 3 June 2017, the complainant, Michael Telford, left his home address at 3/150 MacDonald Street, Kalgoorlie. When he returned at about 1.50 pm, he became aware that someone had been inside his house. His wallet had been opened and several cards had been removed and thrown on the floor. Several watches were missing from the stand where they were kept. Whoever entered the property had gone through the main bedroom, the spare bedroom and the study. There were no obvious signs of damage or forced entry, however, the property did have a dog door. Although Mr Telford did not know it at the time, his folding blade pocket knife with a green inlay handle that had his surname engraved on it was also stolen. This knife was later found in the appellant's possession.[18]
3 June 2017 offences - KA 255 of 2017
[18] Respondent's outline of submissions filed 15 November 2018 par 13.
In respect of charge KA 255 of 2017, the prosecution's case was that at about 2.50 pm on Saturday, 3 June 2017, the complainant, Josephina Rauch, parked her car outside her friend's home address at 18 Hanbury Street, Kalgoorlie. At about 3.05 pm, Ms Rauch returned to her car to find that someone had smashed both front windows. Ms Rauch's iPhone 7+ and a red lunch box were both missing from her car.[19]
3 June 2017 offences - KA 254 of 2017
[19] Respondent's outline of submissions filed 15 November 2018 par 14.
In respect of charge KA 254 of 2017, the prosecution's case was that a further offence occurred at 4/16 Hanbury Street, Kalgoorlie, a unit next door to where Ms Rauch's car was parked.
Andrea Healy, the complainant, left her home at 4/16 Hanbury Street, Kalgoorlie at about 2.30 pm on 3 June 2017, locking the front door behind her. At about 2.40 pm, Lucia Pichler was in her (Ms Pichler's) backyard at 3/12 Hanbury Street, Kalgoorlie. Ms Pichler saw an Aboriginal boy standing at the unit next door to Ms Healy's.[20]
[20] Respondent's outline of submissions filed 15 November 2018 par 15.
Ms Pichler described the boy as tanned skinned, young-looking, around 15 years old, slim build, not too tall, about 160 cm in height. He had dark ear length hair that was brushed to one side. The boy was wearing a grey top and black pants. He had a bum-bag slung diagonally around his chest, and the purse section of the bum-bag was on his back and it was black. The boy had opened the flyscreen door of the unit behind Ms Pichler. Ms Pichler asked 'Do you need help?' and the boy responded 'I'm looking for a dog'.[21]
[21] Respondent's outline of submissions filed 15 November 2018 par 16.
When Ms Healy returned home at about 4.00 pm, the front door of her unit was unlocked and the ensuite bathroom window was open and smashed. Various rooms had been ransacked. From an upstairs bedroom Ms Healy could see that a mobile phone that did not belong to her was located on her garage roof.[22]
Search of the appellant's home
[22] Respondent's outline of submissions filed 15 November 2018 par 17.
On Monday, 5 June 2017, police attended the appellant's home address and arrested the appellant. During a search of the premises, police located a number of iPads. The appellant stated, on camera and under caution, that the iPads were stolen and had been given to him by a cousin. An Adidas bum-bag belonging to the appellant was also seized. The bum-bag contained (inter alia) a pair of gloves, a torch and flick knife that was later identified as belonging to Mr Telford, the complainant, in charges KA 256 and KA 257 of 2017.[23]
[23] Respondent's outline of submissions filed 15 November 2018 par 18.
One of the iPads was later identified via the serial number as belonging to Deborah Roberts, the complainant in charges KA 258 and KA 259 of 2017. Ms Roberts identified that the iPad had been stolen from a burglary on her premises at Turner Street, South Kalgoorlie, that occurred on 27 May 2017 between the hours of 1.00 - 5.00 pm. Entry to Ms Roberts' premises had been gained via a smashed bedroom window.[24]
[24] Respondent's outline of submissions filed 15 November 2018 par 19.
No forensic evidence was obtained.[25]
The propositions upon which the prosecution case was based
[25] Respondent's outline of submissions filed 15 November 2018 par 20.
The prosecution's case was entirely circumstantial and relied upon the drawing of the following inferences:[26]
21.1The offences committed on 3 June 2017, namely: the burglary on Mr Telford's premises; the stealing from Ms Rauch's car; and the burglary of Ms Healy's premises, were all committed by the same offender;
21.2The person observed by Ms Pichler outside Ms Healy's neighbour's unit was the person who committed the burglary on Ms Healy's unit;
21.3The males who spoke to Ms Mueller outside Mr Pentecost's unit were the appellant and his co-offender; and
21.4The person observed by Ms Pichler was the appellant.
[26] Respondent's outline of submissions filed 15 November 2018 par 21.
In support of the first and second propositions, the prosecution relied upon the following circumstantial evidence of identity:[27]
22.1The small window of time within which the 3 June 2017 offences were committed (1.00 pm to somewhere around 2.40 pm);
22.2That the 3 June 2017 offences were committed in a relatively small geographical area;
22.3That Ms Rauch's car was parked outside the house next door to Ms Healy's premises; and
22.4The inherent unlikelihood of a person being in Ms Healy's neighbour's backyard for the innocent purpose of looking for a dog in such close temporal and physical proximity to Ms Healy's home being burgled.
[27] Respondent's outline of submissions filed 15 November 2018 par 22.
In support of the third proposition (that is, that the males who spoke to Ms Mueller outside Mr Pentecost's unit were the appellant and his co‑offender), the prosecution relied upon the following:[28]
23.1The general physical description of the two males given by Ms Mueller matching the two males shown on the CCTV footage; and
23.2The inherent unlikelihood that the two males matching the general physical appearance of the appellant and his co-offender, but not being the appellant and his co-offender, would be at Mr Pentecost's home for an innocent purpose in such close temporal proximity to Mr Pentecost's home being burgled.
[28] Respondent's outline of submissions filed 15 November 2018 par 23.
In support of the fourth proposition (that is, that the person observed by Ms Pichler was the appellant), the prosecution relied upon the following:[29]
24.1That the appellant was found in possession of Mr Telford's knife shortly after it had been stolen;
24.2That the person observed by Ms Pichler matched the general physical description of the appellant;
24.3That the person observed by Ms Pichler was carrying a bum-bag slung diagonally across his body like the appellant was in the CCTV footage from Mr Pentecost's home; and
24.4That the person observed by Ms Pichler said that he was looking for a dog.
[29] Respondent's outline of submissions filed 15 November 2018 par 24.
In addition to the above, the prosecution relied upon the evidence regarding the discovery of a black Adidas bum‑bag in the search of the appellant's premises that contained items consistent with a house break‑in (the torch and gloves), and Mr Telford's knife.[30]
[30] Respondent's outline of submissions filed 15 November 2018 par 25.
In respect of many of the prosecution witnesses, evidence was adduced by the agreed tender of witness statements into evidence rather than the calling of witnesses to give evidence in person.[31] The following exhibits were tendered:
[31] ts 23 (4 January 2018).
No. Exhibit ts page 1. Two page statement of Josephina Rauch signed 11 August 2017 24 2. Lucia Pichler's three page statement signed 4 June 2017 24 3. Angela Mueller's two page statement signed 11 September 2017 24 4. Andrea Healy's three page statement signed 4 January 2018 24 5. Deborah Robert's three page statement signed 14 August 2017 24 6. Michael Telford's three page statement dated 9 August 2017 25 7.1 CCTV Footage 30 7.2 Two stills from CCTV Footage 36 8. Map of Johnston Street, Boulder 30 9. Search Video 5/6/2017 32 10. 10.1 ‑ 10.3 Three Photographs: Knife, bum‑bag, and gloves 33 11. Digiboard 34 12. DVD of the identification process 34 13. Exhibit log 35 14. 14.1 ‑ 14.5 Photographs of iPads 35
Findings at trial
As summarised in the respondent's outline of submissions, the magistrate made the following findings of fact:[32]
[32] Respondent's outline of submissions filed 15 November 2018, pars 31 – 32.
32.1Ms Pilcher observed an Aboriginal boy in the unit behind hers 10 minutes after Ms Healy left her home. The boy was wearing a bum‑bag diagonally across his chest with the purse bit at the back. That description is entirely consistent with the CCTV footage of the appellant committing the offence the next day in Mr Pentecost's home;[33]
[33] ts 3 (12 January 2018).
32.2Ms Pilcher participated in a digiboard identification process nine days later and nominates someone other than the appellant. Upon viewing the DVD of the identification process, her Honour was satisfied that the actions of the police officer conducting the digiboard identification process were wholly unsatisfactory and rendered the identification process as "fatally flawed". For this reason, her Honour discounted the identification made by Ms Pilcher;[34]
[34] ts 3 ‑ 4 (12 January 2018).
32.3The bum‑bag belonging to the appellant is distinctive-looking with its white stripes, but it is not a rare item. What makes the evidence about the bum‑bag compelling in this case is the way that it was worn;[35]
32.4Ms Pilcher had described exactly the manner in which the appellant is seen carrying (wearing) the bum‑bag in the CCTV footage. This tied the appellant to the comment about looking for the dog;[36]
32.5The map tendered into evidence did not contain a scale so it is unclear how far apart the Johnson Street (Mr Pentecost) and Hanbury Street (Ms Healy) properties are, but they appear to be in adjoining suburbs;[37]
32.6There were no forensics located at any of the scenes, which may be explained by the appellant wearing gloves in the CCTV footage. The gloves did not seem to be the same as those recovered in the search warrant so her Honour did not make any comment beyond "the lack of forensics might be explained by the fact that the CCTV shows [the appellant] wearing gloves during the commission of the Pentecost burglary, and I can infer that the lack of forensics in Ms Healy's home has a similar explanation";[38]
32.7Her Honour was satisfied beyond reasonable doubt, in all of the circumstances, that the elements of the offences of burglary and stealing for the Healy property were made out, including the identification of the appellant;[39]
32.8In respect of the stealing from Ms Rauch's car, her Honour found that the stealing must have occurred in a 'small window' of 15 minutes between 2.50 and 3.05 pm. Her Honour noted that the prosecution relied upon a link between a phone and a red lunch box stolen from Ms Rauch's car and a phone and lunch box found at the Healy property to prove that the appellant was the person who stole from the car. However, the materials tendered did not establish any admissible evidence concerning the phone or lunch box;[40]
32.9Her Honour found that in respect of the stealing from the car, there was an alternative hypothesis reasonably available on the evidence, that a co-offender committed the burglary without the appellant's knowledge whilst the appellant was in the back yard speaking with Ms Pilcher. In light of this alternative hypothesis and in the absence of any link between the appellant and the items taken from the car, her Honour found that she was not satisfied beyond reasonable doubt that the appellant had committed that offence;[41]
32.10In respect of the Telford burglary, her Honour noted that Mr Telford's knife that was stolen in the burglary was found in the appellant's possession two days after the offence. Her Honour found that standing alone, the doctrine of recent possession would not satisfy her that the appellant was responsible for the burglary of Mr Telford's home. However, the other evidence "does build up a circumstantial case against [the appellant]";[42]
32.11Her Honour was satisfied that there was a sufficient link between the Telford, Healy and Pentecost burglaries such that the only reasonable inference was that the appellant committed all three burglaries;[43] and
32.12Her Honour was not satisfied that there was a sufficient link between the burglary of Ms Robert's home on 27 May 2017 and the three burglaries on 2 and 3 June 2017 to conclude that the appellant was responsible for the 27 May 2017 burglary. Her Honour found that given the longer passage of time since that burglary, and in light of the comments made by the appellant in the search video, the appellant's possession of the iPad stolen from Ms Robert's home could be explained by the alternative hypothesis that he received the stolen iPad.[44]
[35] ts 4 (12 January 2018).
[36] ts 4 (12 January 2018).
[37] ts 4 (12 January 2018).
[38] ts 4 ‑ 5 (12 January 2018).
[39] ts 5 (12 January 2018).
[40] ts 5 ‑ 6 (12 January 2018).
[41] ts 6 (12 January 2018).
[42] ts 7 (12 January 2018).
[43] ts 7 (12 January 2018).
[44] ts 7 ‑ 8 (12 January 2018).
Ground 1
Ground 1 is concerned with the decision of the magistrate to grant the prosecution's application made at the commencement of the trial to adduce evidence of the appellant's conviction for charges KA 252 and KA 253 of 2017 (that is, the offences committed at 53 Johnson Street, Boulder, the subject of a guilty plea), as propensity evidence pursuant to the Evidence Act s 31A (which section is reproduced at Schedule A to these reasons).
The appellant says that the magistrate erred in permitting the prosecution to lead evidence of the appellant's previous convictions for burglary. The following arguments are advanced.
The appellant says that for propensity evidence to be significantly probative, or so as to avoid the risk of an unfair trial, the evidence must be strikingly similar.[45] The appellant contends that in this case, it was not.[46]
[45] Appellent's outline of submissions filed 26 September 2018 par 26.
[46] ts 7 – 8 (29 November 2018).
In the alternative, the appellant says that the evidence in this case was insufficiently similar to permit admission.[47]
[47] Appellant's outline of submissions filed 26 September 2018 par 27; ts 8 ‑ 11 (29 November 2018).
The appellant also says that the propensity evidence was insufficiently probative of the fact in issue.[48] Alternatively, the risk of an unfair trial outweighed the probative value of the propensity evidence.[49]
[48] Appellant's outline of submissions filed 26 September 2018 par 28.
[49] Appellant's outline of submissions filed 26 September 2018 par 30.
Finally, the appellant submits that the prosecution failed to prove the conviction, or the facts on which the conviction was based.[50]
Ground 1: merits
[50] Appellant's outline of submissions filed 26 September 2018 par 29; ts 6 (29 November 2018).
This ground of appeal requires the court to decide for itself whether the evidence in question had significant probative value and was properly admitted.[51]
[51] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [52(a)]; DKAv The State of Western Australia [2017] WASCA 44 [34].
For the reasons set out below, I am satisfied that the propensity evidence had significant probative value and was properly admitted at trial. While leave to appeal on ground 1 will be granted, the ground of appeal is not made out.
Relied upon in combination as 'propensity evidence' were the following:[52]
a)the appellant's general appearance as a young Aboriginal man who was of slim build;
b)that the CCTV footage showed the appellant wearing a bum-bag diagonally across his body whilst he committed the burglary at 53 Johnson Street, Boulder; and
c)evidence from Ms Mueller that when she questioned the males outside 53 Johnson Street, Boulder, one of them said that they were looking for a dog.
[52] Respondent's outline of submissions filed 15 November 2018 par 35; ts 17 (4 January 2018).
The definition of 'propensity evidence' in s 31A(1) is extraordinarily wide and goes beyond what the common law understood by that category of evidence.[53] The appellant appears to accept that, given the broad definition of propensity evidence, the evidence in question was propensity evidence as defined by s 31A. The proposed propensity evidence was similar fact evidence or other evidence of the conduct of the appellant that tended to make it more likely that the person observed by Ms Pilcher was the appellant, and was the person who committed the burglary of Ms Healy's unit. I accept that the evidence was capable of rationally bearing on the assessment of the probability that the acts the subject of charge KA 254 of 2017 occurred, as alleged.
[53] Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [36].
The real issue is whether the two requirements in pars (a) and (b) of s 31A(2) were satisfied.
As observed by the Court of Appeal in DKA v The State of Western Australia,[54] as to whether evidence has 'significant probative value', the following is well established:
(a)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)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.
(c)The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d)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. (footnotes omitted)
[54] DKA [30]. See also RMD [50].
As noted above, I find that the evidence has probative value, having regard to the other evidence adduced. Turning to the question of whether the propensity evidence has 'significant probative value', it is well established that the nature and quality of the propensity evidence is to be considered, accepting it at its highest in favour of the prosecution.[55]
Is there a requirement that the evidence be 'strikingly similar'?
[55] DKA [35] and RMD [52(b)].
The appellant contends that for propensity evidence to be significantly probative, or so as to avoid the risk of an unfair trial, the evidence must be strikingly similar,[56] particularly where it is to support identification of an accused in circumstances of similar conduct. The contention was framed as follows by counsel for the appellant:[57]
… before utilising propensity evidence as for identification cases, there needs be that level of striking similarity that would make it appropriately probative.
[56] Appellant's outline of submissions filed 26 September 2018 par 26.
[57] ts 8 (29 November 2018).
In support of this contention, the appellant refers to the decisions of Horsman v The State of Western Australia,[58] and Dair v The State of Western Australia.[59]
[58] Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [29].
[59] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
The question of whether some special requirement or different test should be applied in relation to the use of propensity evidence for proof of identity was considered by the Court of Appeal in DKA v The State of Western Australia.[60] The appellant's contention cannot be sustained in light of the finding of the Court of Appeal, as set out below:
There is no necessary requirement that propensity evidence exhibit a 'striking similarity' or 'underlying unity' with the charged act in order to be admissible. Those concepts are not to be transplanted from their common law setting and used as glosses on or substitutes for the statutory phrase 'significant probative value'. But the nature and extent of any similarity is relevant to whether the evidence has significant probative value. (footnote omitted)[61]
Was the evidence insufficiently similar to permit admission, or insufficiently probative of the fact in issue?
[60] DKA [44].
[61] DKA [44].
As observed in RMD v The State of Western Australia:
... 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. The matters which must be examined include the nature, quality, extent and duration of the conduct the subject of the proposed propensity evidence, on the one hand, and the nature, quality, extent and duration of the charged acts, on the other, and the nature and extent of any rational connection between the conduct the subject of the proposed propensity evidence and the charged acts. [62]
[62] RMD [52(f)].
I have examined the propensity evidence in detail.
I have examined carefully on the one hand the evidence of Ms Mueller[63] and the CCTV footage,[64] and on the other hand, the evidence of Ms Pilcher.[65] I note that the statement of Ms Mueller was signed on 11 September 2017, whereas the statement of Ms Pilcher was signed on 4 June 2017.
[63] Exhibit 3, Angela Mueller's two page statement signed 11 September 2017.
[64] Exhibit 7.1.
[65] Exhibit 2, Lucia Pilcher's three page statement signed 4 June 2017.
Each of the offences involved the appellant wearing a bum-bag diagonally across the body, and responding that he was looking for a dog in response to an enquiry from a stranger. There was also some general similarity between Ms Mueller's and Ms Pilcher's descriptions of the appellant. Ms Pilcher's description of the appellant was consistent with my own observations from review of the CCTV footage.
I have had regard to the fact that the description provided by Ms Mueller did not include a reference to a bum-bag. Further, Ms Mueller described the two Aboriginal males walking away from the front door of 53 Johnston Street, Boulder as 'Both Aboriginal male, approximately 15 years of age, one of slim build dressed in dark clothing and the other heavier set with round face dressed in light clothing'.[66]
[66] Exhibit 3, Angela Mueller's two page statement signed 11 September 2017, pars 3 ‑ 4.
I compared this description to the evidence of Ms Pilcher. The description provided by Ms Pilcher included that '[the] boy was wearing a grey top and black pants. The boy had a bum‑bag slung diagonally around his chest, the purse section of the bum‑bag was on his back and it was black in colour. The boy had dark hair, it was about ear length and had been brushed to one side'.[67] Further, Ms Pilcher described the boy as '[appearing] to be Aboriginal, he had tanned skin. He looked young, I think he was around 15 years old. The boy was of a slim build and wasn't too tall, I think he was only about 160 centremetres in height'.[68]
[67] Exhibit 2, Lucia Pilcher's three page statement signed 4 June 2017 pars 9 ‑ 10.
[68] Exhibit 2, Lucia Pilcher's three page statement signed 4 June 2017 pars 7 ‑ 8.
I accept the submission made on behalf of the respondent that it is fair to say that a bum‑bag is not a unique item of clothing, wearing a bum-bag diagonally across the body is not a unique manner of wearing it, and responding that you are looking for a dog is not necessarily a unique response to an enquiry from a stranger.[69]
[69] Respondent's outline of submissions filed 15 November 2018 par 39.
However, I accept that in this case, the proposed propensity evidence, in combination, takes on a significant probative force when the timing of the burglaries and their close geographical location are taken into account.[70] The burglaries were committed on consecutive days and within relatively close geographical proximity.
[70] Respondent's outline of submissions filed 15 November 2018 par 39.
I accept that had the burglaries occurred a week apart in time, or not in close geographical location, the probative force of the evidence would be diminished.[71]
[71] Respondent's outline of submissions filed 15 November 2018 par 39.
This is not a case in which unsupported evidence of an uncharged incident is sought to be taken into account. The proposed propensity evidence is from a source independent to the complainant for charge KA 254 of 2017. The source is CCTV footage which showed the appellant wearing a bum-bag diagonally across his body whilst he committed the burglary at 53 Johnson Street, Boulder, and the evidence from Ms Muller that when she challenged the males outside 53 Johnson Street, Boulder, one of them said that they were looking for a dog. The accused pleaded guilty to charges KA 252 and KA 253 of 2017 (that is, the offences committed at 53 Johnson Street, Boulder).
Having regard to all of the above, I do not find that the proposed propensity evidence was insufficiently similar to permit admission, nor do I find that the proposed propensity evidence was insufficiently probative of the fact in issue, as contended on behalf of the appellant. I am satisfied that the propensity evidence, having regard to other evidence adduced, has significant probative value.
Does the risk of an unfair trial outweigh the probative value of the propensity evidence?
The next issue to be determined is whether the second of the two requirements in s 31A(2) was satisfied.
Section 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value.[72]
[72] RMD [51]; DKA [31].
As observed by Mazza JA in Preston v The State of Western Australia:[73]
Section 31A(2)(b) makes plain what is well-known about propensity evidence ‑ that its admission will, almost always, give rise to a risk of an unfair trial.
[73] Preston [40].
In this case, admission of the proposed propensity evidence to establish identity in what is a circumstantial evidence case gives rise to a real risk. However, in the absence of a jury, the risk of an unfair trial is not high or extreme.
Section 31A(2)(b) also requires the court, when assessing the risk of an unfair trial, to take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury.[74] As the trial was heard by a magistrate, this second consideration does not arise.
[74] RMD [51]; DKA [31].
Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, s 31A(2)(b) requires the court to consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair‑minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'.[75]
[75] RMD [51]; DKA [31].
The weighing process in s 31A(2)(b) is difficult in that it requires not just a weighing of things that are incommensurable, but it requires an assessment, not of what the presiding judicial officer would think, but what the hypothetical fair minded person would think.[76]
[76] Preston [39]; see also DKA [32]; and Dair [67].
In all of the circumstances, including the fact that the trial was before a magistrate and not a jury, I find that fair-minded people would think that the interests of justice required the admission of the evidence despite its risks.[77] This is not a case where the prejudicial value of the propensity evidence in all of the circumstances is too high for it to be overcome by the public interest in it being admitted.
Did the prosecution fail to prove the conviction, or the facts on which the conviction was based?
[77] Dair [67].
The appellant also complains that the prosecution failed to prove the conviction, or the facts on which the conviction was based.[78]
[78] Appellant's outline of submissions filed 26 September 2018 par 29.
The appellant says that the proof of conviction and the facts relied upon were never formally tendered at trial for charges KA 252 and KA 253 of 2017,[79] and the following submission was made:[80]
For the prosecution to introduce and rely upon propensity evidence, the obligation remains for their evidence to come up to proof to establish what they allege the propensity evidence establishes. It is not sufficient for the prosecution to lead prejudicial evidence on the basis that it will establish a fact and then fail to lead evidence that establishes the same fact.
[79] Appellant's outline of submissions filed 26 September 2018 par 7.
[80] Appellant's outline of submissions filed 26 September 2018 par 29.
The appellant further complains that '…it was never formally admitted nor was the conclusion reached beyond a reasonable doubt that the appellant was the male wearing the bum bag in the footage. It may well have been the co-offender wearing the bum bag'.[81]
[81] Appellant's outline of submissions filed 26 September 2018 par 20.
These complaints are not sustainable. It was not the case that the prosecution sought to rely on the appellant's conviction as propensity evidence. That is, the prosecution did not seek to admit evidence that established that the appellant was a criminal. Rather, given the appellant pled guilty to charges KA 252 and KA 253 of 2017, the prosecution sought to lead evidence of the conduct of the accused, on the basis that the conduct tended to make it more likely that the person observed by Ms Pilcher was the appellant and was the person who committed the burglary of Ms Healy's unit.
Evidence of the conduct of the accused was lead through the tender of the CCTV footage, which was accompanied by the evidence of Mr Pentecost, and the statement of Ms Mueller.[82]
[82] Respondent's outline of submissions filed 15 November 2018 par 38.
Mr Pentecost gave evidence and was not cross examined, and through Mr Pentecost the CCTV footage was tendered as Exhibit 7.[83] The statement of Ms Mueller was tendered, and by agreement, she was neither called nor cross-examined.[84]
[83] ts 29 ‑ 30 (4 January 2018).
[84] ts 23 - 24 (4 January 2018); Exhibit 3.
As to the assertion that 'It may well have been the co-offender wearing the bum bag', it appears from a review of the trial transcript that it was not disputed that the person seen wearing the bum‑bag in the CCTV footage was the appellant. In any event, in her reasons, her Honour records as follows: [85]
I have viewed the CCTV. The bum bag is visible and worn in the manner described by [Ms] Pilcher.
…
Ms Pilcher has described exactly the manner in which we see [the accused] in the CCTV carrying the bum bag.
[85] ts 4 (12 January 2018).
Given this finding, the submissions made on behalf of the appellant that the conclusion that the appellant was the male wearing the bum‑bag in the footage was not reached beyond reasonable doubt and 'It may well have been the co‑offender wearing the bum bag', cannot be sustained.
Ground 2
By the second ground, the appellant alleges that the verdicts of the magistrate were unsafe and unsupported by the evidence.
I have reviewed the entire trial record and determined that there was no miscarriage of justice. That is, the appellant did commit the offences for which he was found guilty. Whilst leave to appeal on ground 2 is granted, for the following reasons, the appeal is dismissed.
Ground 2: Merits
This appeal is governed by pt 2 of the Criminal Appeals Act 2004 (WA). An appeal may be on the ground that there has been a miscarriage of justice.[86] The statutory ground of miscarriage of justice is commonly encompassed under the term that the conviction is 'unsafe and unsatisfactory'.
[86] Criminal Appeals Act 2004 (WA) s 8(1)(b).
The Court of Appeal of Western Australia has stated that the principles concerning unsafe and unsatisfactory verdicts of a jury are applicable to appeals from a decision of a magistrate.[87]
[87] The State of Western Australia v Olive [2011] WASCA 25 [44] (Buss JA with whom McLure & Mazza JJA agreed).
In Libke v The Queen,[88] Hayne J stated that where it is alleged that a conviction is unsafe and unsatisfactory, the question for an appellate court is:
[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case ... [the] evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt.
[88] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also JJS v The State of Western Australia [2014] WASCA 136 [8]; and Gibbs v The State of Western Australia [2018] WASCA 68 [30] ‑ [36].
In R v Baden-Clay,[89] the High Court said that where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appellate court 'must always be whether the [appellate] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.
[89]R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66].
The court is required to make an independent assessment of the evidence, both as to its sufficiency and its quality.[90]
[90] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453, 473 (Deane, Toohey & Gaudron JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ). See also JJS [8].
In R v Baden-Clay, the prosecution's case against the respondent was circumstantial, and the High Court observed as follows:[91]
… The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.'
For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (footnotes omitted)
[91] R v Baden-Clay [46] ‑ [47].
The tribunal of fact is the person entrusted with the responsibility of determining the guilt or innocence of the appellant at first instance.[92] However,
[i]n most cases a doubt experienced by an appellate court will be a doubt which a [tribunal of fact] ought also to have experienced. It is only where a [tribunal of fact's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[93]
[92] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ); SKA v The Queen [13].
[93] M v The Queen, 494; SKA v The Queen [13].
I have reviewed the whole of the evidence that was presented in the trial. In my view, it was open to the magistrate to have been satisfied beyond reasonable doubt that the appellant was guilty of the charges alleged against him in relation to charges KA 254, 256 and 257 of 2017, and of the alternate offence of possessing stolen or unlawfully obtained property for charge KA 259 of 2017.
This conclusion is based on all of the evidence adduced by the prosecution, including the propensity evidence adduced under the Evidence Act s 31A. The propensity evidence did, having regard to the other evidence adduced, rationally affect to a significant extent, the assessment of the probability of the existence of the facts in issue. That is, the person observed by Ms Pilcher outside of Ms Healy's neighbour's unit was the person who committed the burglary of Ms Healy's unit, and the person observed by Ms Pilcher was the appellant.
The approach taken on behalf of the appellant calls for the evidence to be looked at in a piecemeal fashion. Instead, I have considered and weighed all of the circumstances established by the evidence and I have determined that there is no inference consistent with innocence reasonably open on the evidence.
In particular, I note that I have weighed the evidence of Ms Pilcher. The evidence of Ms Pilcher, particularly her observation of a person outside of Ms Healy's neighbour's unit, was non‑conclusive identification evidence. Ms Pilcher observed an Aboriginal boy, of about 15 years of age. Ms Pilcher's observations are reproduced at [57] above. Ms Pilcher's description is consistent with my review of the CCTV footage. I have weighed that evidence in the balance.
Ms Pilcher participated in an entirely flawed digiboard identification process. I have weighed in the balance the fact that Ms Pilcher did not positively identify the appellant, but I have given no weight to Ms Pilcher's purported identification of another person.
Having regard to all of the evidence, I am satisfied that there was a sufficient link between the Telford, Healy and Pentecost burglaries such that the only reasonable inference was that the appellant committed all three burglaries.
It was significant that the knife stolen from Mr Telford's premises was located in the bum‑bag, and that the appellant admits to possession of the item. Whilst this evidence is not determinative of the issue, I have also weighed it in the balance.
I have given careful consideration to the concerns raised on behalf of the appellant. From my review of the evidence as a whole, I was not left with a troubling doubt of the kind referred to by the High Court in M v The Queen.
It follows from the above that I am satisfied that the convictions were supported by the evidence, contrary to the allegation made in appeal ground 2.
Conclusion and Orders
Whilst leave to appeal is granted on both grounds, and the appellant's application for an extension of time is granted, the appeal must be dismissed.
Schedule A – Evidence Act 1906 (WA), section 31A
31A.Propensity and relationship evidence
(1)In this section ‑
propensity evidence means ‑
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere
12 FEBRUARY 2019
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