Judgment Suppressed - [2007] WASC 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HENARE [2007] WASC 291

CORAM: MURRAY J

HEARD: 1 NOVEMBER 2007

DELIVERED : 29 NOVEMBER 2007

FILE NO/S: INS 99 of 2007

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JOHN HENRY HENARE
Respondent

Catchwords:

Criminal law and procedure - Propensity evidence - Accused charged with murder - Admissibility of evidence of his violent conduct on another occasion

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Evidence inadmissible

Category: B

Representation:

Counsel:

Applicant: Mr A G Elliott
Respondent: Mr D P A Moen

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Mr M Andrews

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

Buttsworth v The Queen (2004) 29 WAR 1; [2004] WASCA 69
Di Lena v Western Australia [2006] WASCA 162
Donaldson v Western Australia (2005) 31 WAR 122; [2005] WASCA 196
Duffy v The Queen [1981] WAR 72
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Noto v Western Australia [2006] WASCA 278
Pfennig v The Queen (1995) 182 CLR 461
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
Sweeney v Western Australia [2006] WASCA 118
Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25
VIM v Western Australia (2005) 31 WAR 1; [2005] WASCA 233
Western Australia v Osborne [2007] WASCA 183

MURRAY J: Mr Henare is charged on indictment with the murder of one Neal Argent at Merredin on 22 March 2007. He will plead not guilty and his trial by jury is scheduled to commence on 13 December.
There is evidence capable of establishing that on the evening of 22 March 2007 the accused, who was staying temporarily in Merredin for purposes connected with his work, and Mr Argent, a local, were both drinking in the Northside Tavern in Merredin. They were not so much together as close to each other, and there is evidence that they fell into an argument. There are a number of witnesses as to what occurred, and unsurprisingly it appears that the accounts they give in evidence will vary. People saw different parts of what happened and saw what occurred from different positions.
There is some evidence to suggest that the accused was holding a glass in his hand, but there is other evidence to suggest that he was drinking from a stubbie. In any event, a struggle developed between the two men, who went to the ground with the accused on top of Mr Argent. Other patrons pulled the two apart. No other person was involved in the fight. There is evidence that before the two men fell to the ground, the accused threw a punch towards Argent. There is evidence that before that occurred, witnesses noticed the sound of breaking glass.
When the two men were separated, Argent was seen to have an ugly wound to his neck. He commenced to bleed heavily. He was rushed by ambulance to Merredin Hospital, but although attempts were made there to resuscitate him and preserve his life, he died. The post‑mortem examination revealed that the wound in the neck had severed or cut an important vein and artery. The cause of death was the massive blood loss.
Broken glass was found in the tavern in the general area where the fight between the two men had occurred. Forensic examination of the glass provided no DNA or other evidence to link the broken glass to the accused. There were fingerprints on the glass identified as those of the deceased.
The prosecution case, I was told, will be that the fatal wound to Mr Argent was caused directly by a blow struck by the accused with glass in hand, the glass having been broken immediately prior to the fight commencing, with the intention of using it as a weapon, or that the glass was used as a weapon with the intention that it would break on impact with Mr Argent, thus being likely to cause a wound of the kind which did occur. The prosecution will submit that in either of those circumstances it would be open to the jury to find established beyond reasonable doubt that the accused intended to cause Mr Argent some grievous bodily harm.
The prosecution will submit that the jury may find established beyond reasonable doubt that the accused struck the blow which ultimately caused Mr Argent's death knowing that he had the glass in his hand. That act, it will be submitted, was therefore not an act which occurred independently of the exercise of the will of the accused: Duffy v The Queen [1981] WAR 72; Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25 and Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26.
On the other hand, for the accused I am told that, on the basis that there is no issue about causation, it will be the defence case that there is evidence that the glass was held by the deceased and that the prosecution is unable to negate the proposition that it broke in some fashion when the men fell to the floor. It will be put that in that case the prosecution is unable to negate the proposition that Argent's neck in some way came into contact with the broken glass while he was struggling on the floor.
If he might have received the fatal wound in that way, it will be put that the prosecution is unable to negate the view that the death was an event which occurred by accident within the meaning of s 23 of the Criminal Code, because it would not be open to suggest that the accused was, in the circumstances, in breach of any of the provisions of the Code concerned with negligent acts or omissions so as to exclude the operation of s 23: Murray and the recent decision of the High Court in Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65.
In any event, if that line of defence fails, the defence case will be that the prosecution is unable to prove to the required standard that at the time of doing the act, whatever it was, by which Mr Argent's neck was brought into contact with the broken glass so as to cause the fatal wound, the accused intended to do Argent some grievous bodily harm. Section 28 of the Code and the accused's state of intoxication at the time will be brought into play.
And so it will be contended that if the jury are satisfied beyond reasonable doubt that Argent met his death directly as a consequence of a deliberate blow with the glass, or that he received the fatal wound in circumstances which negated the proposition that the death was an accident, nonetheless the appropriate verdict would be one of guilty of manslaughter rather than murder. It can be readily seen, therefore, that not only is the intention with which the accused acted in issue as a matter of law, but it will very much be a live issue of fact.
In those circumstances, the prosecution asks that I rule that it may lead evidence of an incident in which the accused is alleged to have been involved in Victoria on 4 November 2006, a few months only before the incident with which he is charged in Merredin. He is charged with causing serious injury to a man named Ottas. That charge and a number of alternatives have not yet been dealt with.
Put generally, the allegation is that there is evidence available to establish that on the Saturday 4 November 2006, during the afternoon, the accused and Ottas were both in a bar in the Albert Hotel in Footscray. It is said that Ottas was sitting on a bar stool near the pool table at which the accused was playing a game of pool. Both men were known at the hotel. In the early evening, and no doubt affected by alcohol, the accused was observed to commence violently striking Ottas about the head at least three times with a pool cue. It was not a fight, witnesses would say, because Ottas appeared to offer no aggression towards the accused and he appears to have had no opportunity to defend himself.
As a result of the force of the attack, Ottas was rendered unconscious and fell to the floor. He suffered a fractured skull and injuries to his brain which are still causing difficulties with his speech. It seems that when the accused was asked why he had attacked Ottas in that way he said something like, "I am sick of these kiwi jokes." When subsequently interviewed by the Victorian police, the accused declined to answer any questions.
For the prosecution it is argued that this evidence is admissible to prove both the manner in which the fatal wound was inflicted upon Argent, ie, by a deliberate attack with a glass, broken to be used as a weapon, and the intention to cause grievous bodily harm with which, it is alleged, the attack was carried out. It is urged upon me that the evidence of the Victorian incident in November 2006 establishes that the accused has, in a bar and when affected by alcohol, a tendency to use a weapon in response to any perceived slight or insult, deliberately to cause serious injury to the victim.
Section 31A of the Evidence Act 1906 (WA) is relied upon. It is in the following terms:
(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.
For the prosecution it is argued that this is 'propensity evidence' within the meaning of either limb of the definition in s 31A(1). Section 31A(3) is not relevant in this case, but it is argued that having regard to s 31A(2) the evidence is admissible because I should take the view that having regard to the evidence available as to what occurred in the tavern in Merredin, the evidence about what occurred in the Albert Hotel in Footscray has 'significant probative value' and there is no basis upon which the evidence might be excluded under s 31A(2)(b) on the ground that the probative value of the evidence is exceeded by its prejudicial effect, and because of any consequent unfairness in the trial.
It will be observed that I express the provisions of s 31A(2)(b) in terms of discretionary exclusion of evidence which would otherwise be admissible because of its significant probative value. That the paragraph operates in that way was accepted by the prosecution because it involves weighing (if such a thing is conceptually possible) the views of fair‑minded people about the degree of risk of an unfair trial against the probative value of the evidence in question.
Unsurprisingly, although this section was only introduced into the Evidence Act by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 proclaimed to come into force on 1 January 2005 (Government Gazette 31 December 2004 p 7130), the section has attracted much judicial attention both at first instance and on appeal as the courts endeavour to construe the provision so as to establish its effect and operation.
In Donaldson v Western Australia (2005) 31 WAR 122; [2005] WASCA 196, the issue arose in a case which involved charges of sexual offences against four complainants, where there were parallels in the ages of the complainants and in the manner by which the offender committed the various offences upon the different complainants, although there were differences in the offences committed. As to s 31A of the Evidence Act, Roberts‑Smith JA, with whom Wheeler JA and Miller AJA agreed, took the view that the source of s 31A was a passage in the dissenting judgment of McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528 ‑ 529, where his Honour said:
If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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.
It will be observed that the wording of s 31A(2)(b) is precisely that with which the passage from the judgment of McHugh J concludes.
At 148 [130] of Donaldson, Roberts‑Smith JA said that in his Honour's view the unfairness with which the section is concerned was the risk that the jury or other tribunal of fact might use the evidence, if admitted, by employing an impermissible process of propensity reasoning to the effect that merely because the accused is shown to have behaved, on other occasions, in a manner similar to that constituting the offence charged, he is likely to have committed that offence. The unfairness, on that view, lies in the danger of the jury employing an impermissible process of reasoning towards the guilt of the accused, against which the trial judge would be bound to warn the jury, where required.
The decision in Donaldson was given on 17 October 2005. It was followed by the decision of the Court of Appeal in VIM v Western Australia (2005) 31 WAR 1; [2005] WASCA 233, in which case, although the appeal was argued before that of Donaldson, the judgment of the court comprised of the same three judges as heard Donaldson was delivered on 2 December 2005. The two cases were not unalike factually. The difference between them was that the ruling of the District Court judge in VIM in relation to the admissibility of the evidence was given before s 31A commenced in operation. Nonetheless, at 33 [168] the court, following Donaldson, said that it would have held that the admissibility of the evidence was secured by the proper application of s 31A(2).
Sweeney v Western Australia [2006] WASCA 118 was a case relevantly concerned with the identification of the appellant as the offender in relation to an indictment containing a number of courts of armed robbery. The trial proceeded jointly in relation to each of the counts and the question which arose in respect of the application of s 31A was whether evidence in relation to one count could be used as propensity evidence to help establish the identity of the accused as the offender in respect of another offence of robbery. The judgment of the court was given by Roberts‑Smith JA, Pullin and Buss JJA agreeing, and, at [156] ‑ [158], his Honour relied upon his judgment in Donaldson.
In Di Lena v Western Australia [2006] WASCA 162, Roberts‑Smith JA, Wheeler and Pullin JJA agreeing, made clear the view of the Court of Appeal that s 31A provided for the admissibility of a much wider category of propensity evidence than would have been the case at common law and that the section departed from and again broadened the ground of admissibility for propensity evidence at common law, that such evidence must have such a strong probative value to make it admissible only if there was no rational view of the evidence consistent with the innocence of the accused of the offence charged. Reference may also be made to the discussion of s 31A by McLure JA, Steytler P and Wheeler JA agreeing, in Noto v Western Australia [2006] WASCA 278, and perhaps most recently, Western Australia v Osborne [2007] WASCA 183, per Wheeler JA at [10] ‑ [11].
I return now to s 31A and its application to this case. One may accept at the outset that the evidence sought to be adduced is propensity evidence within the meaning of s 31A(1). It is evidence of the conduct of the accused person which shows a tendency to the use of a substantial degree of violence in response to what may be perceived to be a relatively trivial slight or insult, or in response to other events, particularly when affected by alcohol. To use the jargon of the area of offender management, the accused may be shown by this evidence to have an anger management problem.
The question then is whether that evidence is admissible within the two limbs of s 31A(2). In the first place, the evidence of the Victorian incident, when regard is had to the evidence which may be led to prove what occurred in Merredin, must have significant probative value in relation to the issues to which it is proposed to be directed; that the accused struck a deliberate blow with the glass, using it as a weapon and with the intention to cause Argent some grievous bodily harm. That is to say, in my opinion, the evidence will not be admissible merely because it is relevant to the proof of those facts, but because it offers clear and cogent proof that those facts as to the nature of the blow, and the intention with which it was delivered, existed.
That is not so very different, if different at all, from what would be required to secure the admission of such evidence at common law. The matter was generally discussed by a Court of Criminal Appeal comprised of five judges in Buttsworth v The Queen (2004) 29 WAR 1; [2004] WASCA 69, at 5 ‑ 6 [13] ‑ [19]. At [19] the court said that:
… [such] evidence will be admissible because it is concerned with much more than merely the propensity of the accused to offend in a particular way. It will be evidence which has a direct probative value to prove the commission of the offence charged on the ground that if the jury finds established what was done on other occasions by the accused, it would be too great a coincidence to imagine that he did not offend in the same manner against the complainant on the occasion in question.
To my mind, that statement still usefully encapsulates what is necessary to satisfy the requirement of s 31A(2)(a) that the propensity evidence must, either of itself or having regard to other evidence to be adduced in the case, have significant probative value.
In my opinion, the evidence sought to be adduced in this case will not meet that test. To prove that on 4 November 2006, in Footscray, Victoria, the accused picked up a pool cue and struck another man about the head with it, inflicting serious injury because, while in drink, he was angry at the telling of jokes which poked fun at people from his country, does not of itself alone, or in combination with the evidence about the incident in Merredin on 22 March 2007, help to prove the facts which it would be directed to establish.
What occurred in Footscray does not help to prove that the accused struck Argent a deliberate blow with the glass so as to cause his fatal wounds, as opposed to the proposition that the accused got into an argument with Argent which developed into a struggle, in the course of which the two men fell to the floor and Argent was caused, in some fashion, to come into contact with the broken glass so as to receive his wounds. Nor, in my opinion, does what occurred in Footscray in November 2006 have significant, or indeed any particular, probative value to prove that a deliberate blow with the glass in Merredin in March 2007 was delivered with the intention to cause Argent grievous bodily harm.
In both respects, it seems to me that the evidence about what happened in Footscray only has probative value by the employment of impermissible propensity reasoning. It only helps to prove what occurred in Merredin and with what intention the conduct of the accused there was accompanied, on the basis that he might be found to be a person who has a propensity to violent conduct intended to inflict serious harm upon a victim.

That view makes it strictly unnecessary that I should express any opinion about the operation, in this case, of s 31A(2)(b), but, in view of the arguments presented to me, I will touch upon it briefly. I have already intimated that in my view the paragraph is difficult to apply because it appears to require a trial judge to compare matters which are of different qualities. In my respectful opinion, the paragraph is made no less difficult to interpret, having regard to its evident origin.
For the evidence to be admissible, both pars (a) and (b) of s 31A(2) must be satisfied. Paragraph (b) is therefore to be applied to evidence which has already been found to have significant probative value. Paragraph (b) seems therefore to be an additional requirement for admissibility which is not, I think, the way in which the relevant observation of McHugh J in Pfennig at 528 ‑ 529, cited above, was meant. It should be remembered that, at 528, immediately before the paragraph of his Honour's judgment which contains the words employed in s 31A(2)(b), his Honour said, speaking of the rule at common law, that:
In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted, not because its probative value outweighs its prejudicial effect, but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.
It is clear, I think, that the view expressed was that in the case of propensity evidence at common law there was little, if any, work to be done by the traditional discretionary grounds for the exclusion of otherwise admissible evidence, because the consideration of the impact upon the fairness of the trial of the admission of the evidence, and the process of weighing its probative value against its prejudicial effect, were subsumed in the test for the admissibility of the evidence.
That, I think, must be the effect of s 31A(2)(b). Even if the evidence has significant probative value it will not be admissible, having regard to s 31A(2)(b), unless the interests of justice in the context of the particular trial, and having regard to the particular nature of the evidence, cause the court to consider that the evidence should be before the tribunal of fact despite the nature and magnitude of the risk of unfairness in the trial which the admission of that evidence would entail.
It follows from what I have written above that that test would not be met in this case. In my view, the evidence sought to be adduced is inadmissible.