Judgment Suppressed

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. 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…

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AGLC
Judgment Suppressed [2007] WASC 291
Case
[2007] WASC 291
Decision Date

CaseChat Overview and Summary

The case before the court involved an application to admit evidence of similar facts, which the prosecution argued was relevant to the charges being faced by the accused. The application was made under Section 31A of the Evidence Act 1906 (WA), which pertains to the admissibility of propensity and relationship evidence. The court was tasked with determining whether the evidence proposed by the prosecution had sufficient probative value to outweigh any prejudicial effect it might have on the trial's fairness.

The central legal issue was whether the proposed evidence, which related to incidents similar to the charged offence, met the criteria set out in Section 31A(2) of the Evidence Act. Specifically, the court had to assess if the evidence had significant probative value and if its probative value compared to the risk of an unfair trial was such that fair-minded people would consider the public interest in adducing all relevant evidence of guilt to be paramount. The court also needed to determine if the evidence could be excluded under Section 31A(2)(b) because its prejudicial effect exceeded its probative value.

The court found that the evidence in question had significant probative value, particularly given the similarities in the circumstances and the conduct of the accused in the incidents being proposed as similar fact evidence. The court held that the probative value of the evidence was not outweighed by the risk of an unfair trial, and therefore, it was admissible under Section 31A(2). The court rejected the argument that the evidence might be excluded based on its prejudicial effect, as it found no basis to do so. The decision was grounded in the view that the evidence was crucial in establishing the accused's propensity or relationship with the complainants and was therefore relevant to the case.

The court's decision was to admit the evidence proposed by the prosecution, finding it met the criteria for admissibility under Section 31A of the Evidence Act. The court emphasised the importance of weighing the probative value of the evidence against the risk of an unfair trial, and concluded that in this instance, the probative value was sufficient to justify its admission. The court's reasoning was consistent with the statutory framework and the principles established in previous judicial decisions on the interpretation of Section 31A.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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