John v The State of Western Australia
[2013] WASCA 272
•29 NOVEMBER 2013
JOHN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 272 | |
| THE COURT OF APPEAL (WA) | 29/11/2013 | ||
| Case No: | CACR:159/2013 | 1 NOVEMBER 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 1/11/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THOMAS DAVID JOHN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for leave to appeal against order Order refusing to sever counts on an indictment |
Legislation: | Criminal Procedure Act 2004 (WA), s 85, sch 1 div 2, s 133 Evidence Act 1906 (WA), s 31A |
Case References: | Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 The State of Western Australia v Micalizzi [2010] WASCA 147 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JOHN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 272 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : GER 1 of 2013
Catchwords:
Criminal law and procedure - Application for leave to appeal against order - Order refusing to sever counts on an indictment
Legislation:
Criminal Procedure Act 2004 (WA), s 85, sch 1 div 2, s 133
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : No appearance
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
The State of Western Australia v Micalizzi [2010] WASCA 147
1 McLURE P: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA.
3 MAZZA JA: On 1 November 2013, this court dismissed the appellant's application for leave to appeal against an order made by Stavrianou DCJ refusing to sever counts on an indictment. An appeal may be brought against such an order pursuant to s 26(1)(b) of the Criminal Appeals Act 2004 (WA). I joined in the making of that order for the following reasons.
Background
4 The appellant is charged on an indictment dated 6 May 2013 in the District Court with 10 offences of indecent dealing against two teenage girls, allegedly committed while they were employed by him, contrary to either s 321(4) and s 321(8)(b) or s 322(4) of the Criminal Code (WA). Counts 1 to 9 concern JMK, and count 10 concerns CML. Based on the depositions contained in the State brief, the State will allege that in June 2009, at about the time of JMK's 15th birthday, she commenced part-time casual employment with the appellant at his roadhouse business. JMK alleges that on nine separate occasions during her employment until late 2011, the appellant indecently dealt with her in various ways, predominantly, but not exclusively, by touching or rubbing her body.
5 CML also worked for the appellant on a part-time casual basis. She was employed over two periods. She alleges that during the first period, from time to time the appellant brushed his hand across her bottom, or 'swipe[d]' his shoulder over her chest. At the time these incidents occurred, CML considered the contact to be accidental. No charges have been laid with respect to this conduct. However, CML alleges that on one occasion during the second period she worked for the appellant, which began in January 2011, the appellant touched and then grabbed her bottom. It is this allegation that is the subject of count 10.
6 It appears from the materials that JMK and CML are friends, and that each complained to the other about the appellant's conduct.
7 It also appears that the appellant has made no admissions to the alleged offending behaviour and that there are no other witnesses to the events that allegedly occurred.
8 The appellant has pleaded not guilty to all the charges. A trial date has not yet been set. It is clear that the principal issue in respect to each of the charges is whether the State can prove beyond reasonable doubt that the appellant touched the complainants as alleged. The credibility of each complainant will be crucial to whether the State discharges that burden.
The severance proceedings
9 On 18 June 2013, the appellant applied to sever the indictment so that the charges in respect of the two complainants are heard separately. The application was opposed by the State.
10 The primary argument put on behalf of the appellant (and repeated in written submissions to this court) was that the evidence of the complainants is not mutually admissible. Accordingly, the joinder would give rise to undue prejudice to the appellant which could not be cured by a direction.
11 The State submitted that the evidence of each complainant is admissible in the case of the other. It submitted that in each case, the evidence of the other complainant is admissible pursuant to s 31A of the Evidence Act 1906 (WA) because it reveals an underlying unity, system or pattern and is evidence of a tendency that the appellant has. Further, the State submitted that it is evidence of the appellant's conduct towards a class of persons over a period of time, namely teenage female employees.
12 In his extempore reasons, his Honour ruled that the complainants' evidence is mutually admissible pursuant to s 31A of the Evidence Act. He considered that the evidence of each complainant is propensity and relationship evidence, as those terms are defined in s 31A(1). He addressed the statutory criteria for admissibility of such evidence in s 31A(2) and concluded that the evidence is admissible. His Honour said, in effect, that as the evidence is admissible, the appellant would not suffer any impermissible prejudice by the joinder and dismissed the application (ts 27).
The appeal to this court
13 The grounds of appeal are difficult to understand and do not clearly and concisely allege the errors of law said to have been committed by his Honour. However, a consideration of the grounds of appeal and the brief written submissions in support of them suggests that it is alleged, first, that the evidence of the complainants is not mutually admissible. It is submitted that the evidence of each complainant is not either propensity or relationship evidence, nor does it comply with the criteria in s 31A(2) of the Evidence Act. The second alleged error is that a joint trial involving the two complainants will be unfair. The alleged unfairness was expressed by the appellant in his written submissions in this way:
Joint trials would not be just in the circumstances because the jury would be distracted, to a dangerous extent, from giving count 10 the careful, separate consideration required, with a full and uncontaminated appreciation of the standard of proof due to being enveloped and swamped by the mere existence of, let alone the evidence relating to, the nine counts relating to JMK. There is a danger that the jury would be unable to prevent the use of the nine charges and evidence in relation to JMK as an overly important step in their reasoning to guilt in relation to the single charge involving CML.
Did his Honour err in allowing the joinder
14 The starting point is s 85 of the Criminal Procedure Act 2004 (WA) (CPR), which requires an indictment to comply with sch 1 div 2 of the CPR. Schedule 1 div 2 cl 7(3) states:
(3) A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a) form or are a part of a series of offences of the same or a similar character; or
(b) are alleged to arise substantially out of the same or closely related acts or omissions; or
(c) are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
16 Sections 133(3) and s 133(5) of the CPRprovides:
(3) If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a) that the accused be tried separately on one or more of the charges; and
(b) the prosecutor to tell the court the order in which the charges will be tried.
…
(5) In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b) to so decide irrespective of the nature of the offence or offences charged; and
(c) to so decide even if -
(i) the evidence on one of the charges is inadmissible on another; or
(ii) the evidence against one of the accused is not admissible against another,
as the case requires.
18 This brings me to s 31A of the Evidence Act. That section is in these terms:
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.
19 The definition of propensity evidence and relationship evidence is very broad. In the case of propensity evidence, it goes beyond what the common law understood by that category of evidence: Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [36].
20 The material before this court reveals an underlying unity, system, pattern or tendency that the appellant had over the relevant time and is clearly propensity evidence. The similarities or underlying unity include:
(a) both complainants were teenage female employees of the appellant;
(b) the alleged offences all occurred at the same location;
(c) the alleged offences all involved similar 'low level' touching of the bodies of the complainants; and
(d) the alleged offences involved approaching each of the complainants while they were at work.
21 The conduct could also be characterised as relationship evidence because it revealed an attitude on behalf of the appellant that he was entitled, or at least able, by virtue of his position as each complainant's employer, to touch them as alleged.
22 I now consider the criteria in s 31A(2). In order for propensity or relationship evidence to have significant probative value it must, either by itself or having regard to other evidence, rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue in the proceedings. Significant probative value is more than mere relevance. It connotes a probative value which is important or of consequence.
23 In the proceedings before his Honour, the appellant's counsel conceded that the complainants' evidence has significant probative value. It appears that the appellant now resiles from this position. The evidence has significant probative value because:
(a) given the underlying unity and similarity, it makes each complainant's account of what occurred more likely; and
(b) it renders unlikely any defence raised by the appellant that the touching in each case was accidental or unintentional.
24 I now turn to the comparison required by s 31A(2)(b). This requires the court to decide whether fair-minded people would think that the interests of justice require the admission of the evidence despite its risks. Fair-minded people are reasonable members of the general public who are not lawyers, but who 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: Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66]. The 'risk of an unfair trial' is the risk that a jury will act illogically and find the accused guilty merely because he is a likely person to have committed such acts. When assessing the risk of an unfair trial it is necessary 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.
25 In my opinion, the fair-minded person would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. If the indictment was severed, the jury would not have before it highly relevant evidence of underlying unity, system or pattern which goes directly to the probability of whether or not the appellant committed the offences charged. Without the evidence, the jury would be left with a misleading and artificial impression that each complainant has, alone, made allegations against the appellant. In other words, the jury would not see the proper context in which the offences were allegedly committed.
26 Any risk of unfairness to the appellant can be effectively dealt with by a direction to the jury. It is assumed that juries understand and act upon such directions. Based on the material before this court, the complainants' evidence is mutually admissible pursuant to s 31A of the Evidence Act.
27 I do not accept the submission that the joint trials would result in the jury not giving careful separate consideration to count 10 which relates only to CML. No doubt the jury would be directed to consider the evidence in respect of each count on the indictment separately. The alleged danger of the jury being 'swamped' by the evidence of JMK is more imagined than real.
28 Based on the material before his Honour, it is not reasonably arguable that his Honour erred in failing to sever the indictment. Of course, the matter may be revisited by the trial judge in the course of the trial if circumstances arise that show that the appellant will be impermissibly prejudiced in his trial: s 133(1) of the CPA.
Conclusion and orders
29 The proposed grounds of appeal have no reasonable prospect of succeeding. The appeal must be dismissed: Criminal Appeals Act s 27(1), (2) and (3).
1. Leave to appeal is refused.
2. The appeal is dismissed.
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