Judgment Suppressed

Case [2016] WADC 70

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RCR [2016] WADC 70

CORAM:   TROY DCJ

HEARD:   12 MAY 2016

DELIVERED          :   12 MAY 2016

FILE NO/S:   IND 1042 of 2015

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

RCR

Catchwords:

Propensity - Section 31A - Significant probative value - Late disclosure - Earlier ruling - Abuse of process - Unfairness

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

The State of Western Australia   :    Mr C Henderson

Defendant:    Mr T Percy QC

Solicitors:

The State of Western Australia   :    Director of Public Prosecutions

Defendant:    Slater & Gordon

Case(s) referred to in judgment(s):

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Fuller v The Queen (1994) 34 NSWLR 233; (1994) 74 A Crim R 415

Hall v The State of Western Australia [2013] WASCA 165

IMM v The Queen [2016] HCA 14

JAW v The State of Western Australia [2016] WASCA 40

LBC v The State of Western Australia [2011] WASCA 201

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

Ninyette v The State of Western Australia [2012] WASCA 184

R v Handlen [2012] QSC 317

Rogers v The Queen (1994) 181 CLR 251

Santos v The State of Western Australia [No 2] [2013] WASCA 39

Smith v The Queen (2015) 322 ALR 464

The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124

  1. TROY DCJ:  Before the court is an application, dated 9 May 2016, to adduce certain evidence which the State categorise as propensity evidence.  The defence oppose the application on the basis that:

    (i)the evidence lacks significant probative value;

    (ii)it has already been ruled inadmissible; and

    (iii)this application is so late that it creates an unfairness that should not be countenanced.

Background

  1. As a consequence of a new indictment dated 11 May 2016, RCR is due to stand trial on 16 May 2016 facing five offences.  It is alleged that he committed two offences of sexual penetration of his natural daughter, RLR, when she was a child under the age of 16 years, two offences of indecently dealing with RLR when she was under the age of 16 years and a further offence of dealing with his natural daughter, CAR, when she was under the age of 16 years.  The defence is a flat denial that any such activities occurred.  Pre‑recordings occurred on 10 and 11 February 2016 and RCR's denials were put to each complainant.

  2. On 2 September 2014 RCR was arrested and interviewed and two computers and a laptop belonging to him were seized.  When interviewed RCR made some admissions concerning the content on the computers.  These admissions are set out in the State's earlier written submissions of 17 February 2016.  They amounted to admissions that he watched pornography where…

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Judgment Suppressed [2016] WADC 70
Case
[2016] WADC 70
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CaseChat Overview and Summary

In the matter of Judgment Suppressed, the court was tasked with determining the admissibility of certain evidence under Section 31A of the Evidence Act. The dispute arose between the state and the accused, who contested the relevance and fairness of the evidence presented. The court was required to decide whether the evidence had significant probative value and whether its probative value compared favourably to the risk of an unfair trial.

The legal issues before the court were whether the evidence in question satisfied the criteria set out in Section 31A(2) of the Evidence Act. Specifically, the court had to determine if the evidence had significant probative value and if its probative value outweighed the risk of an unfair trial. The court also needed to consider whether the late disclosure of the evidence constituted an abuse of process or rendered the trial unfair.

The court held that the evidence did indeed have significant probative value as it was influential in establishing the facts in issue. The court further determined that the probative value of the evidence compared favourably to the risk of an unfair trial, thus satisfying the criteria set out in Section 31A(2). The court found that the late disclosure did not amount to an abuse of process or render the trial unfair, and therefore, the evidence was admissible. The court concluded that the evidence met the requirements of Section 31A(2) and was thus admissible.

The final orders of the court were that the evidence, as described in points (2) to (6) of the State's application, coupled with the accused's admissions, was admissible in the trial. The court held that the evidence satisfied the criteria for admissibility under Section 31A of the Evidence Act and that the late disclosure did not render the trial unfair.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I must have regard to s 31A of the Evidence Act which 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. The evidence in this case is the material on the computers, as described at points (2) to (6) of the State's application, coupled with RCR's admissions. There is no doubt that it constitutes propensity evidence given the extraordinarily wide definition of that concept. 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: LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [290](a), Buss JA. For each count the fundamental fact in issue is whether the acts alleged occurred. The test in s 31A(2)(a) will be satisfied if the court considers that the propensity evidence would 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: LFG [290](b). The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence': LFG [290](c). That characterisation was confirmed by the majority judgment in IMM v The Queen [2016] HCA 14. French CJ, Kiefel, Bell and Keane JJ observed at [46] that Cross on Evidence suggests that a 'significant' probative value is a probative value which is 'important' or 'of consequence'. The significance of the probative value of the tendency evidence under s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT), (the statute under consideration in IMM) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact‑finding.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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