Lilley v The State of Western Australia - [2019] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LILLEY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 164
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   10 APRIL 2019
DELIVERED          :   22 OCTOBER 2019
FILE NO/S:   CACR 47 of 2018
BETWEEN:   JEMMA VICTORIA LILLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HALL J
File Number             :   INS 333 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appellant and co-accused convicted after a joint trial of murder - Cut-throat defences - Propensity evidence - State adduced propensity evidence in its case against the appellant - Whether propensity evidence correctly admitted - Co‑accused adduced evidence in her defence which tended to prove that the appellant had a propensity to commit murder - Whether evidence correctly admitted - Whether the trial judge should have ordered that the appellant be discharged from the joint trial and tried separately

Legislation:

Criminal Code (WA), s 279
Criminal Procedure Act 2004 (WA), s 133, sch 1 cl 9(2)
Evidence Act 1906 (WA), s 31A, s 32

Result:

Appellant's application in the appeal dated 20 September 2018 dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Ms A L Forrester SC & Mr R G Wilson

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
La Bianca v The State of Western Australia [2019] WASCA 105
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Mahmood v The State of Western Australia [2009] WASCA 220
Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Micalizzi [2010] WASCA 147

TABLE OF CONTENTS

Overview of the critical issue at the trial

Overview of the State's case at the trial

The appellant's formal admissions at the trial

Overview of the appellant's case at the trial

Overview of Ms Lenon's case at the trial

The grounds of appeal

Ground 1: the pre-trial ruling of Jenkins J in relation to the propensity evidence

Ground 1: the appellant's submissions

Ground 1: its merits

Ground 2: the appellant's submissions

Ground 2: its merits

Ground 2A: the appellant's submissions

Ground 2A: its merits

Conclusion and orders

JUDGMENT OF THE COURT:

The appellant has applied for leave to appeal against conviction.
The appellant and a co‑accused, Trudi Clare Lenon, were jointly charged with murder. The indictment pleaded that, on 13 June 2016, at Orelia, the appellant and Ms Lenon murdered Aaron Lee Pajich, contrary to s 279 of the Criminal Code (WA). The appellant and Ms Lenon pleaded not guilty to the charge.
On 1 November 2017, after a joint trial before Hall J and a jury, the appellant and Ms Lenon were convicted of Mr Pajich's murder.
On 28 February 2018, the trial judge sentenced each of the appellant and Ms Lenon to life imprisonment with a minimum non‑parole period of 28 years.
None of the grounds of appeal relied upon by the appellant has any merit. Leave to appeal should be refused. The appeal must be dismissed.

Overview of the critical issue at the trial

The appellant was born on 1 May 1991. She was aged 25 years when Mr Pajich was killed. Ms Lenon was born on 14 November 1973. She was aged 42 years when Mr Pajich was killed. Mr Pajich was aged 18 years when he was killed.
At the trial, the parties were agreed that, on 13 June 2016, Mr Pajich was killed intentionally at the residential property known as 22 Broughton Way, Orelia (the Orelia property). At all material times, the appellant and Ms Lenon occupied the property.
Mr Pajich had been attacked with a knife and a wire garrotte. The garrotte caused fine abraded bruising to his neck. He was stabbed three times with the knife. Two of the stab wounds, one to his neck and the other to his chest, were fatal. Mr Pajich also suffered some defensive wounds to his hands.
The critical issue at the trial was whether both the appellant and Ms Lenon had inflicted the two knife wounds that caused Mr Pajich's death; alternatively, whether one of them had inflicted those knife wounds and the other had enabled or aided the stabber.
There was no suggestion that Mr Pajich's death was authorised, justified or excused by law.
At the trial, there was uncontested evidence that the police had found Mr Pajich's body buried in the backyard of the Orelia property. His body was wrapped in a white rubber‑backed drop sheet and covered by a blue tarpaulin. A cement pad and red tiles had been placed over the burial site.
The appellant gave evidence at the trial, but otherwise did not adduce any evidence. Ms Lenon elected not to give evidence, but adduced evidence from Gordon McMeikan, and her defence counsel read into evidence, by consent, a letter from Professor David Joyce, a clinical pharmacologist.

Overview of the State's case at the trial

The State's case at the trial was, in summary, as follows.
Prior to 13 June 2016, the appellant had purchased the Orelia property. She had resided in the house on the property for some months before Mr Pajich was killed.
Prior to 13 June 2016, the appellant had been employed as a night‑fill manager at a Woolworths retail store in Palmyra. During the course of her work, the appellant supervised and became friendly with a number of people, including Matthew Stray and Natalie Davey.
Prior to 13 June 2016, Ms Lenon and members of her family knew Mr Pajich. He was enrolled in an educational college she attended. Mr Pajich had spent time with one of Ms Lenon's sons.
As at 13 June 2016, Mr Pajich suffered from some level of autism which, to some extent, made him trusting and vulnerable.
Some months prior to 13 June 2016, the appellant and Ms Lenon met through mutual acquaintances. After they met, Ms Lenon and two of her sons began living with the appellant at the Orelia property.
Prior to 13 June 2016, Mr Pajich had visited the Orelia property on one or more occasions. The appellant knew that he had been to the property.
The appellant had an interest in horror movies and graphic depictions of extreme violence. That interest was manifested in posters, artwork, notes about torture methods, and weapons (including numerous knives) that the appellant kept at the Orelia property. The appellant had tattoos depicting horror movie characters.
The appellant had an obsession with serial killers. She had read and written articles about some of them.
Ms Lenon had an interest in weapons and the infliction of pain. For some years she had participated in what the parties referred to as 'the BDSM scene'. Ms Lenon described herself as a ‘submissive’ who derived sexual pleasure from being dominated by another person. She developed a persona who represented her submissive fantasies. Ms Lenon called this persona 'Corvinna'.
In the weeks before Mr Pajich was killed, the appellant and Ms Lenon shared violent fantasies about death and killing. They developed a plan to lure a person to the Orelia property and kill the person. That plan was apparent from Facebook messages exchanged between the appellant and Ms Lenon.
The appellant and Ms Lenon decided to lure Mr Pajich to the Orelia property with the intention of killing him. They carried out the plan. The appellant and Ms Lenon acted together in killing Mr Pajich. Both of them inflicted the two knife wounds that caused his death; alternatively, one of them inflicted those knife wounds and the other enabled or aided the stabber. On the State's case, the appellant and Ms Lenon were guilty of murder either as joint principals or one of them was the principal and the other was an enabler or aider.
Neither the appellant nor Ms Lenon was motivated to kill Mr Pajich by hatred, revenge or personal gain. For the appellant, the motivation was a strong desire to kill in order to experience what it felt like to kill another person. For Ms Lenon, the motivation was the pleasure of serving another person (namely the appellant) whom Ms Lenon perceived as powerful and dominating. The idea of killing another person was exciting for both the appellant and Ms Lenon. They perceived it as the fulfilment of their shared violent fantasies.
The State's case against the appellant relied upon alleged admissions made by the appellant in relation to the killing and formal admissions she made at the trial and, also, upon circumstantial evidence, including propensity evidence.
The prosecutor contended that the evidence as a whole led to an inference that the appellant and Ms Lenon had acted together in killing Mr Pajich. The appellant had a preoccupation with serial killers that was more than a mere interest. She was obsessed with them and this fed her desire to emulate serial killers and to become, herself, a killer.
The propensity evidence relied upon by the State in its case against the appellant included the fact that the appellant had authored a book called 'Playzone' in about 2007. The book concerned a fictional male serial killer called 'SOS'. The appellant referred to herself as SOS. She planned to write more about serial killers.
Some of the Facebook messages exchanged between the appellant and Ms Lenon, before Mr Pajich was killed, involved the use of the personas SOS and Corvinna.
The State alleged that the appellant had told two lies to the police which showed a consciousness of guilt of the charged offence. First, it was alleged that the appellant had lied about whether Mr Pajich had come to the Orelia property or, at least, about whether she had met him. Secondly, it was alleged that the appellant had lied about where she was on the day of the murder. The appellant admitted in her evidence at the trial that she had told those lies. She explained that Ms Lenon had asked her to lie because Ms Lenon did not want anyone to know that she was the last person to see Mr Pajich before his death.

The appellant's formal admissions at the trial

During his opening address at the trial, the appellant's defence counsel made formal admissions on behalf of the appellant, pursuant to s 32 of the Evidence Act 1906 (WA), as follows:
1.Jemma Lilley [that is, the appellant] attended Rockingham Shopping Centre on the morning of 13 June 2016.
2.Aaron Pajich got into [a] Ford Falcon motor vehicle registration 1BRN 250 which Jemma Lilley was a passenger in at Rockingham Shopping Centre on the morning of 13 June 2016.
3.Aaron Pajich was driven in the Ford Falcon motor vehicle registration 1BRN 250 to 22 Broughton Way, Orelia ("the house") on the morning of 13 June 2016 and entered the house.
4.Jemma Lilley was at the house on 13 June 2016.
5.The cause of death to Aaron Pajich was stabbing injuries to his neck and chest.
6.Jemma Lilley was involved in the purchase of hardware, building and garden materials - tiles etc, before and after 13 June 2016 including the following attendances:
(a)     Attended Bunnings Rockingham middle of 16 May 2016.
(b)     Attended Bunnings Rockingham morning 3 June 2016.
(c)     Attended Bunnings Rockingham afternoon 12 June 2016.
(d)     Attended Bunnings Port Kennedy afternoon 12 June 2016.
(e)     Attended Bunnings Rockingham morning 15 June 2016.
(f)    Attended Bunnings Rockingham afternoon 18 June 2016.
(g)     Attended Bunnings Rockingham afternoon 19 June 2016.
(h)     Attended Rockingham Salvage 17 June 2016.
7.Work was done in [the] backyard of the house by Jemma Lilley after 13 June 2016.
8.Jemma Lilley lied to the police in her Record of Interview on 20 June 2016 as to her whereabouts on 13 June 2016 and that she didn't meet anyone at Rockingham Shopping Centre on 13 June 2016.
9.Around 2007 Jemma Lilley wrote a manuscript called Playzone. Playzone was a fictional work about serial killers and killing. SOS was a character in the book. The manuscript was placed on an internet site in 2010.
10.The deceased Aaron Pajich's mental functioning was below that of a young man of his age. Arrangements were being made to see if he should be declared on the Autism Spectrum.

Overview of the appellant's case at the trial

The appellant's case at the trial was, in summary, as follows.
The appellant contended that Ms Lenon had killed Mr Pajich without any involvement by her. The appellant did not intend to kill Mr Pajich. On 13 June 2016, the appellant arrived at the Orelia property with Ms Lenon and Mr Pajich. The appellant decided to watch television. She fell asleep. Some hours later she was woken by Ms Lenon. The appellant realised that Mr Pajich had left the house, a black sofa had been removed and a piece of carpet had been cut from the floor. Ms Lenon told her that cats had urinated on the sofa and the urine had soaked the carpet, which was why the sofa and the piece of carpet had been removed. The appellant contended that it was Ms Lenon who knew Mr Pajich and who had convinced him to come to the house. Ms Lenon cleaned the house and buried Mr Pajich's body after she had killed him.
The appellant admitted in evidence at the trial that she, Ms Lenon and Mr Pajich were the only people in the house at the relevant time. She also admitted having inadvertently done things that had the practical effect of assisting in the killing of Mr Pajich and the destruction or concealment of evidence after he was killed. The assistance included purchasing items that were used in concreting and tiling the burial site and carrying out the concreting and tiling work. The appellant maintained, however, that she was unaware that a body was buried underneath the concrete and tiles.

Overview of Ms Lenon's case at the trial

Ms Lenon's case at the trial was, in summary, as follows.
Ms Lenon's defence counsel acknowledged that on 13 June 2016 Ms Lenon took Mr Pajich to the Orelia property. However, Ms Lenon did not do so as part of any plan to kill him. The appellant attacked Mr Pajich when he entered the house. Ms Lenon did not know that the appellant would attack Mr Pajich. Ms Lenon did not assist the appellant in killing him. According to Ms Lenon, her involvement was confined to assisting the appellant in attempting to cover up the appellant's offending.

The grounds of appeal

Originally, the appellant relied upon four grounds of appeal. However, prior to the hearing of the appeal, counsel for the appellant abandoned ground 3. The remaining grounds are as follows.
Ground 1 alleges that Jenkins J erred at a pre-trial hearing by ruling that certain items of evidence were admissible as 'propensity evidence' pursuant to s 31A of the Evidence Act. The items of evidence comprised:
(a)certain facts relating to the Playzone book;
(b)the appellant's expressed intention to kill someone;
(c)the appellant's interest in and ownership of a number of knives;
(d)the appellant's possession of a garrotte; and
(e)the appellant's utterances to other persons as to her interest in violent serial killers and murder generally.
Ground 2 alleges that the trial judge erred by admitting into evidence, as part of Ms Lenon's case, evidence of a 'slit throat' image of a man being attacked by a woman.
Ground 2A alleges, in the alternative to ground 2, that if his Honour was correct in admitting the evidence of the 'slit throat' image of a man being attacked by a woman, his Honour should have discharged the appellant from the joint trial with Ms Lenon and granted the appellant a separate trial.
On 26 September 2018, Mazza JA referred the appellant's application for leave to appeal to the hearing of the appeal.
We note that none of the grounds of appeal asserts that the verdict of guilty is unreasonable or cannot be supported. Also, no complaint is made about the trial judge's directions to the jury in his summing up.
The appellant made an application in the appeal dated 20 September 2018 for leave to adduce additional evidence in the appeal, namely the appellant's affidavit sworn 18 September 2018. On 26 September 2018, Mazza JA referred the application to the hearing of the appeal. The affidavit related to matters the subject of ground 3 which, as we have mentioned, was abandoned prior to the hearing of the appeal. The application should be dismissed.

Ground 1: the pre-trial ruling of Jenkins J in relation to the propensity evidence

At a pre‑trial hearing, Jenkins J determined that the items of evidence the subject of ground 1 were 'propensity evidence' as defined in s 31A(1) of the Evidence Act. In particular, her Honour was satisfied that each item was evidence of the conduct of the appellant or of a tendency that the appellant has or had. For example, the evidence as to the appellant's interest in and ownership of a number of knives and her possession of a garrotte was evidence of the appellant's conduct. The evidence as to the appellant's authorship of Playzone and her interest in violent serial killers and murder generally was evidence of the appellant's tendency to be so interested.
As to the Playzone book, her Honour ruled that evidence of the appellant's authorship of Playzone, and that Playzone was a fictional work about serial killers and murder, was admissible. Her Honour also ruled that evidence of when the appellant wrote Playzone was admissible because the age of the book was a relevant factor for the jury's consideration. Her Honour did not otherwise permit the State to adduce evidence in relation to Playzone. Playzone was a manifestation of the appellant's intense interest in serial killers and murder. The evidence was, having regard to other evidence to be adduced by the State, of significant probative value to the facts in issue; in particular, as to whether the appellant had killed Mr Pajich or whether she had been a party to the murder and as to the State's allegation concerning the motive for killing Mr Pajich. A person with an intense interest in serial killers and murder may be more likely to have put his or her interest into practical effect, and to have formed an intention to kill and to have killed, than a person without that interest. The significance of the probative value of the evidence of the appellant's authorship of Playzone, and the evidence of when she wrote Playzone, had to be considered in the context that each of the appellant and Ms Lenon apparently asserted that the other had committed the murder, and in conjunction with other evidence in the State's case. The other evidence included the appellant's intense interest in serial killers and murder; her expressed intention to kill someone; and her interest in collecting and using knives.
As to the appellant's expressed intention or desire to kill someone, Jenkins J ruled that the appellant's utterances to that effect were relevant to the facts in issue; in particular, as to whether the appellant had killed Mr Pajich or whether she had been a party to the murder and as to the State's allegation concerning the motive for killing Mr Pajich. The evidence was, having regard to other evidence to be adduced by the State, of significant probative value to the facts in issue, including the State's allegation as to why Mr Pajich was killed. A person with a desire to kill is more likely to have formed an intention to kill and to have killed than a person without that desire. Similarly, a person with a motive to kill is more likely to have killed than someone without that motive. On the State's case, the evidence as to the appellant's expressed intention to kill someone was relevant to her alleged motive, being a desire to experience killing. The significance of the probative value of the evidence of the appellant's expressed intention to kill someone had to be considered in the context that each of the appellant and Ms Lenon apparently asserted that the other had committed the murder, and in conjunction with other evidence in the State's case. The other evidence included the appellant's intense interest in serial killers and murder; her authorship of Playzone; and her interest in collecting and using knives.

As to the appellant's interest in and ownership of a number of knives, there was no dispute between the parties that the appellant had access to knives or that one of her knives may have been the murder weapon. Her Honour ruled that the evidence was, having regard to other evidence to be adduced by the State, of significant probative value to the facts in issue; in particular, as to whether the appellant had used a knife to kill Mr Pajich. The appellant was not merely interested in collecting and owning knives. Her interest in collecting and owning knives was linked to her interest in serial killers and murder and to her interest in using knives. A person who is interested in collecting and using knives is more likely to have formed an intention to use a knife to stab someone than a person without that interest. The significance of the probative value of the evidence as to the appellant's interest in and ownership of a number of knives had to be considered in the context that each of the appellant and Ms Lenon apparently asserted that the other had committed the murder, and in conjunction with other evidence in the State's case. The other evidence included the appellant's interest in using knives; her intense interest in serial killers and murder; her authorship of Playzone; and her expressed intention to kill someone.
As to the appellant's possession of a garrotte, Jenkins J ruled that the evidence was of significant probative value to the facts in issue; in particular, as to whether the appellant had used the garrotte to injure Mr Pajich. An important issue in the case was the identity of the person who had caused Mr Pajich's injuries, including the bruising on the right side of his neck. There was evidence that the garrotte might have been used during the commission of the charged offence to inflict the neck injury. The significance of the probative value of the evidence as to the appellant's possession of a garrotte had to be considered in the context that each of the appellant and Ms Lenon apparently asserted that the other had committed the murder, and in conjunction with other evidence in the State's case. The other evidence included the appellant's interest in and ownership of a number of knives; her intense interest in serial killers and murder; her authorship of Playzone; and her expressed intention to kill someone. Her Honour referred to the reasoning in Castle v The Queen.[1] Her Honour said that, as in Castle, the probative value of the evidence of the appellant's possession of a garrotte, in the context of the facts in issue and the other evidence in the State's case, outweighed any prejudicial effect that the evidence might have on the appellant.
[1] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449.
As to the appellant's utterances to other persons as to her interest in violent serial killers and murder generally, her Honour ruled that the evidence of those utterances (like the evidence in relation to Playzone) was a manifestation of the appellant's alleged intense interest in serial killers and murder. The evidence was, having regard to other evidence to be adduced by the State, of significant probative value to the facts in issue; in particular, as to whether the appellant had killed Mr Pajich or whether she had been a party to the murder and as to the State's allegation concerning the motive for killing Mr Pajich.The significance of the probative value of the evidence of the appellant's utterances had to be considered in the context that each of the appellant and Ms Lenon apparently asserted that the other had committed the murder, and in conjunction with other evidence in the State's case. The other evidence included the appellant's authorship of Playzone; her expressed intention to kill someone; and her interest in collecting and using knives.
Jenkins J considered that when the accumulation of the items of propensity evidence was considered as a whole, all of the propensity evidence had significant probative value in the jury's determination of the facts in issue. Her Honour was satisfied that the probative value of all of the propensity evidence, compared to the degree of risk of an unfair trial, was 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. The jury would determine the cogency of the propensity evidence after hearing it in evidence‑in‑chief and after the evidence‑in‑chief was tested by cross‑examination. The jury would be properly instructed about the relevance of the evidence. In the circumstances, there was no appreciable risk that the jury might overestimate the force of the propensity evidence. The propensity evidence would not induce in the minds of the jurors a bias against the appellant that could not be removed by appropriate judicial directions. For example, there was no appreciable risk that a properly instructed jury would reason impermissibly that because the appellant was a person who had an interest in collecting and using knives, the appellant would have used a knife to kill Mr Pajich. There was no appreciable risk that the admission of the propensity evidence would result in an unfair trial. The propensity evidence was highly relevant to the State's case; in particular, as to the motive for killing Mr Pajich.If the propensity evidence was not admitted, the jury would consider the balance of the State's case in a contextual vacuum.

Ground 1: the appellant's submissions

Counsel for the appellant submitted that Jenkins J erred in holding that the appellant's authorship of Playzone, when she was a teenager, made it probable that the appellant was 'more likely than anyone else to actually commit a murder'. Counsel emphasised that the appellant wrote Playzone when she was aged about 16 years. Counsel for the appellant cited APC v The State of Western Australia[2] in support of the appellant’s argument that the probative value of acts performed by an accused as a teenager is to be distinguished from the probative value of acts performed by an accused as an adult. It was argued that Jenkins J should have ruled that the whole of the evidence in relation to Playzone was inadmissible because the evidence was not capable of establishing 'a propensity when seeking to prove acts performed by [the appellant] as an adult'.
[2] APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.
Counsel for the appellant also submitted that Jenkins J erred in holding that the appellant's expressed intention or desire to kill someone, in the context of her interest in serial killings and murder, meant that the appellant was 'more likely than another person to actually commit a murder'. It was argued that the appellant's expressed intention to kill someone did not reach that threshold.
Counsel for the appellant also submitted that Jenkins J erred in holding that the appellant's interest in and ownership of a number of knives made it 'more likely that she may have been responsible for the knife murder of [Mr Pajich]'. It was argued that the appellant's interest in and ownership of a number of knives did not reach that threshold.
Counsel for the appellant also submitted that Jenkins J erred in ruling that the appellant's 'mere' possession of a garrotte was admissible. It was argued that the evidence of the appellant's possession of a garrotte should have been excluded because the evidence was 'more prejudicial than probative'.
Counsel for the appellant also submitted that Jenkins J erred in ruling that evidence of the appellant's utterances to other persons, as to her interest in violent serial killers and murder generally, was admissible. It was argued that the evidence did not have significant probative value. Counsel submitted that the evidence of the appellant's interest in serial killers was 'abstract and not relevant to a fact in issue before the jury'. Further, the evidence was 'more prejudicial than probative' and consequently should have been excluded.
According to counsel for the appellant, all of the evidence the subject of ground 1 was of 'marginal relevance', both individually and in combination. The evidence had 'little probative value to the matters in issue' and was 'certainly not [of] significant probative value'. Further, according to counsel, fair-minded members of the public might consider that 'the very significant prejudicial effect of this material could result in an unfair trial, irrespective of what directions the jury were ultimately given by the trial judge to try to address this prejudice'.
At the hearing of the appeal, counsel for the appellant accepted, correctly, that all of the evidence the subject of ground 1 was admissible as relevant circumstantial evidence, but argued that none of the evidence was admissible as propensity evidence (appeal ts 19, 22, 24 ‑ 25).

Ground 1: its merits

Section 31A of the Evidence Act provides:
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 principles relevant to whether propensity evidence has significant probative value, within the meaning of s 31A of the Evidence Act, were summarised in RMD v The State of Western Australia as follows:[3]
[3] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Beech JA). See also RMD [50] - [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA).
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)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.
(4)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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)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.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
Recently, in The State of Western Australia v Jackson,[4] the following points were made:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences (Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26], [34]; Flessas v The State of Western Australia [2018] WASCA 210 [46]; La Bianca [145]).
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do' (Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [23]). For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, 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 (DKA v The State of Western Australia [2017] WASCA 44 [43]; La Bianca [26](f)).
[4] The State of Western Australia v Jackson [2019] WASCA 118 [20] - [23] (Buss P, Mitchell & Beech JJA).
Counsel for the appellant's submissions in relation to ground 1 were fundamentally flawed. The submissions addressed the concept of propensity evidence and the question of whether the evidence relied upon by the State had significant probative value by focusing on each individual item of evidence separately and disregarding the relevant context; namely, the critical issue at the trial, the other evidence (including the other propensity evidence) adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial.
Further, regardless of the reasons that informed Jenkins J’s ruling that the propensity evidence was admissible, this Court’s determination as to whether the trial miscarried as a result of the admission of the evidence is concerned with the use made of the propensity evidence at trial. See McPhillamy v The Queen.[5] As we have mentioned, the appellant does not challenge any of the trial judge’s directions concerning the use that the jury could make of the propensity evidence. Given the focus in the appeal as to the use made of the propensity evidence at the trial, in determining whether the admission of the evidence caused the trial to miscarry, the absence of any complaint about the use to which the propensity evidence could be put is a substantial obstacle to the success of the appellant’s submissions on ground 1.
[5] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [11] (Kiefel CJ, Bell, Keane & Nettle JJ).
As to the Playzone book, at the trial the appellant's defence counsel made a formal admission, on the appellant's behalf, that '[a]round 2007 [the appellant] wrote a manuscript called Playzone. Playzone was a fictional work about serial killers and killing. SOS was a character in the book. The manuscript was placed on an internet site in 2010'.
It is apparent from that formal admission that the appellant wrote Playzone when she was aged about 16 years and that the book was about a fictional serial killer called SOS.
The trial judge referred to Playzone and the appellant's interest in serial killers on a number of occasions in his summing up to the jury, including as follows:
(a)His Honour said that there was evidence that the appellant had written Playzone about a fictional serial killer and was planning to write more. Any feelings of dislike or prejudice that the jurors may experience about those facts were irrelevant. The evidence concerning Playzone was part of the circumstantial evidence that the jury could take into account. In particular, the evidence concerning Playzone was relevant in understanding the character of each accused and the relationship between them. The character and disposition of each accused and the relationship between them may be relevant in considering whether the accused in fact did what the State alleged they had done (ts 2430).
(b)His Honour observed that, while Playzone had not been tendered as an exhibit, the jury had heard references to it from a number of witnesses, including some descriptions of its contents. The book was about a serial killer called SOS. His Honour said there was evidence that the appellant had made a number of statements to friends and work colleagues to the effect that she wanted to be called SOS and that she wanted to kill a person (ts 2442). In particular, Angela McKibbin, an employee of a video store frequented by the appellant, gave evidence that in late 2012 or early 2013 the appellant had told her that she wanted to kill someone before the age of 25 (ts 2456).
(c)His Honour commented that the writing of Playzone many years ago was one of several items of evidence led to prove that the appellant had an interest in serial killers. Indeed, his Honour noted that the appellant had admitted that she had an interest in serial killers (ts 2456).
(d)His Honour explained the State's case in relation to the appellant's interest in serial killers, the appellant's response to the State's case and the manner in which the jury should approach and deal with the evidence of the appellant's interest:
There's something else that I need to say about the evidence of [the appellant's] interest in killing. It's not suggested that any of that necessarily relates to a plan to kill Aaron Pajich, in particular. Rather, you've heard that evidence because it is said to reveal an aspect of the character of [the appellant] or of a tendency that she has.
The prosecution say that she had more than a mere interest in serial killers. Rather, she had an obsession with them. And that this fed a desire to emulate the serial killers and to become, herself, a killer. They say that she wanted to become the character, SOS, and feel for herself what it was like to kill.
In her evidence, [the appellant] denies any such desire and says that her writings were merely fiction. She also denied many, if not all of the things, that others have reported her saying; or at least she says that they misunderstood what she was saying.
It's a matter for you as to what conclusions you draw about [the appellant's] character and whether she had homicidal tendencies. If you conclude that she did, then that would not in itself prove her guilt; rather it would be one piece of evidence that you could use, together with all the other circumstantial evidence, to determine whether she did participate in the killing [of] Mr Pajich. It is a factor which, if you find it proven, may make it more likely that she is the sort of person who would commit an offence of this nature (ts 2443).
(e)His Honour referred to Playzone, in particular to the character SOS, in the context of the appellant's alleged admissions to Ms Davey. Ms Davey gave evidence that the appellant had told her in April or May 2016 that 'SOS would be coming out soon'. The appellant denied in her evidence having made that statement to Ms Davey. The appellant accepted that she may have spoken about SOS to Ms Davey and others, but only in the context of SOS as her fictional character (ts 2464 ‑ 2465).
(f)His Honour also reminded the jury that Jeffrey Burling, a work colleague of the appellant, gave evidence that the appellant had told him, 'probably a few months before all this happened', that the appellant thought that 'SOS was going to come out soon' (ts 2456).
(g)His Honour referred to Facebook messages sent between the appellant and Ms Lenon in March, April and May 2016. The appellant used the name SOS and Ms Lenon used the name Corvinna in those messages. On the State's case, the Facebook messages showed that the appellant and Ms Lenon were developing a joint plan, or at least forming a joint intention, to kill someone. On the State's case, the appellant and Ms Lenon, in playing the roles of SOS and Corvinna, had a wish or an expectation that they would play those roles in the real world. The appellant rejected the State's case. She gave evidence that the Facebook messages were sent and received in the context of a proposed book which would be a 'back story … of the meeting between SOS and Corvinna as two characters' in the book. The appellant said that she and Ms Lenon were merely playing fictional roles and that the Facebook messages were part of her research. His Honour urged the jury to read the Facebook messages carefully and to see 'whether you are satisfied that they do bear the interpretation that the prosecution says that they do, or whether [it is] possible that they could be the fantasising of the two accused as they suggest' (ts 2459). His Honour added that it was 'not necessarily one thing or the other' and that the jury should consider 'the possibility that in playing these roles, the two accused wanted or had an expectation that these roles would, in fact, [be] played in the real world' (ts 2459).

The appellant admitted in her evidence that she had an abiding interest in serial killers (ts 2042 ‑ 2043, 2106). She had written articles on two real-life serial killers (ts 2106) and was continuing to write on that subject (ts 1681). She had written 12 chapters of a second book (ts 1656). According to the appellant, a third book would 'be based on SOS's daughter learning from SOS, so SOS's childhood told to his daughter' (ts 2005).
We are satisfied (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial) that the evidence in relation to Playzone was evidence of the appellant's character and of a tendency that she had (namely, an intense interest, in the nature of an obsession, in serial killers and murder generally).
The probative value of the evidence in relation to Playzone is to be evaluated having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial. The Playzone evidence, together with other evidence adduced by the State, was capable of showing that:
(a)from the age of about 16 years, when the appellant wrote Playzone, up to the age of 25 years, when the murder was committed, the appellant had a continuing interest in Playzone and its characters and in serial killers and murder generally, and that this continuing interest fuelled a desire by the appellant to emulate serial killers;
(b)the appellant wanted to become the character SOS and to feel what it was like to kill; and
(c)the appellant had never developed the moral responsibility associated with an adult and that, by the age of 25 years, her interest in serial killers and murder generally from the age of about 16 years had become an obsession.
The evidence of the appellant's authorship of Playzone, and that Playzone was a fictional work about serial killers and murder, was not merely of 'marginal relevance'. The appellant’s reliance on APC is misplaced. The strength of the probative value of the evidence in relation to Playzone was not diminished by the fact that the appellant authored the book when she was aged about 16 years. Other evidence adduced by the State was capable of establishing that the appellant's intense interest, in the nature of an obsession, in serial killers and murder generally continued from the age of about 16 years up to the age of 25 years and was, in part, expressed through and by reference to the character SOS from Playzone. The evidence in question (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial) could rationally affect, to a significant extent, the assessment of the probability that:
(a)the appellant and Ms Lenon had formed a plan to lure Mr Pajich to the Orelia property with the intention of killing him;
(b)the appellant and Ms Lenon had acted together in killing Mr Pajich; and
(c)both the appellant and Ms Lenon had inflicted the two knife wounds that caused Mr Pajich's death; alternatively, one of them had inflicted those knife wounds and the other had enabled or aided the stabber.
The other evidence adduced by the State at the trial, to which we have referred at [67] ‑ [69] above, included the other propensity evidence as to the appellant's expressed intention to kill someone; the appellant's interest in and ownership of a number of knives; the appellant's possession of a garrotte; and the appellant's utterances to other persons as to her interest in violent serial killers and murder generally; and, more specifically:
(a)evidence that the appellant had made a number of statements to friends and work colleagues to the effect that she wanted to be called SOS and that she wanted to kill a person;
(b)evidence given by David Bishop, a friend of the appellant, that the appellant would refer to herself as SOS (ts 747);
(c)Ms Davey's evidence that the appellant had told her in April or May 2016 that 'SOS would be coming out soon' (ts 710);
(d)Ms McKibbin's evidence that in late 2012 or early 2013 the appellant had told her that she wanted to kill someone before the age of 25 (ts 518);
(e)Mr Burling's evidence that the appellant told him, 'probably a few months before all this happened', that the appellant thought that 'SOS was going to come out soon' (ts 738);
(f)Mr Stray's evidence that the appellant had told him that she had killed a young man (ts 667); his evidence that at the time she had shown him a photograph of a young man (the photograph being of Mr Pajich) (ts 670); his evidence that the appellant described to him how she had killed the young man, including a description of how she had put a knife into the young man's chest (and that the knife made a cracking sound and that she had to push the knife in a long way and that it was hard) (ts 672) and a statement that the killing had not gone according to plan because the wire she had put around the young man's neck had broken (ts 667 ‑ 668);
(g)the Facebook messages sent between the appellant and Ms Lenon in March, April and May 2016;
(h)Ms Davey's evidence that the appellant had shown her a garrotte that the appellant had brought to work (ts 711); Ms Davey's evidence that the garrotte shown to her by the appellant was very similar to a garrotte found by police at the Orelia property (ts 711); Ms Davey's evidence that on 14 or 15 June 2016 the appellant told her that she had broken the garrotte (ts 714); and Ms Davey's evidence that at the time she saw scratch marks on the appellant's arms and a bite mark on her wrist (ts 714);
(i)Dr Jodi White's evidence that a garrotte (or, at least, a handsaw) in the pocket of a jacket found by police in the carport at the Orelia property (Ms Lenon's DNA profile having been identified on the jacket) could have been used to cause two areas of bruising on the right side of Mr Pajich's neck (ts 797), although Dr White was unable to say whether it did in fact cause that injury (ts 819);
(j)a notebook found by police in the lounge area of the house at the Orelia property which contained, in the appellant's handwriting, a reference to 'choking/strangling', including by garrotte (ts 456);
(k)Adam Moore's evidence that in about April 2016 the appellant had, with his consent, cut him twice on his right leg with a knife (ts 862); that each cut was 30 to 40 mm in length (ts 870); the appellant told him that the knife she used was her favourite (ts 862); the cuts were not deep, but there was a slight trickle of blood (ts 870); Mr Moore took photographs of the cuts and sent them to the appellant's mobile telephone (ts 870); Mr Moore, with the appellant's consent, then cut her leg (ts 866); the cutting of Mr Moore's leg occurred after many hours of conversation between the appellant and him concerning knives and cutting (ts 865); the appellant showed Mr Moore photographs on her mobile telephone of her knife collection (ts 869) and told him that she had wanted to cut herself and other people 'in the past and in the future' (ts 870); and that she had previously cut someone else (ts 868);
(l)knives and a cutter found by police in the house at the Orelia property;
(m)photographs of knives found by police on the appellant's mobile telephone;
(n)Ms Davey's evidence that the appellant had shown her knives (ts 711);
(o)Mr Stray's evidence that the appellant had shown him an image that he described as a 'medieval jester type character … who was suspended like a puppet … and was sort of hanging limp like he was asleep or unconscious'; and that the appellant had told him that the image was of a new tattoo she was going to get to 'signify what she had done … a symbol to represent … the significance of killing someone' (ts 668); and
(p)Constable Adam Jenkins' evidence that police had extracted a text message dated 19 June 2016 from the appellant's mobile telephone; the text message was from the appellant to a tattoo artist; and in the message the appellant said in substance that she had an appointment for 'the Fool' tattoo and that she wanted the character in the tattoo to be holding a knife facing down instead of a gun (ts 1074).
The appellant's formal admissions, to which we have referred at [67] ‑ [69] above, included, in particular, admissions that the appellant attended Rockingham Shopping Centre on the morning of 13 June 2016; Mr Pajich and the appellant were passengers in a motor vehicle on the morning of 13 June 2016; Mr Pajich and the appellant were driven in that vehicle from Rockingham Shopping Centre to the Orelia property on the morning of 13 June 2016, and entered the house; the appellant was at the house on 13 June 2016; the cause of Mr Pajich's death was stabbing injuries to his neck and chest; the appellant was involved in purchasing hardware, building and garden materials, including tiles, before and after 13 June 2016; the appellant did work in the backyard of the Orelia property after 13 June 2016; the appellant lied to police on 20 June 2016 as to her whereabouts on 13 June 2016 and in stating that she did not meet anyone at Rockingham Shopping Centre on 13 June 2016; and around 2007 the appellant wrote Playzone, which was a fictional work about serial killers and killing, and SOS was a character in the book (see [31] above).
The matters that were or were not in contest at the trial, to which we have referred at [67] ‑ [69] above, included, in particular:
(a)on 13 June 2016, Mr Pajich was killed intentionally at the Orelia property;
(b)at all material times, the appellant and Ms Lenon occupied the Orelia property;
(c)the critical issue at the trial was whether both the appellant and Ms Lenon had inflicted the two knife wounds that caused Mr Pajich's death; alternatively, whether one of them had inflicted those knife wounds and the other had enabled or aided the stabber;
(d)there was no suggestion that Mr Pajich's death was authorised, justified or excused by law;
(e)Mr Pajich's body was buried in the backyard of the Orelia property;
(f)a cement pad and red tiles had been placed over the burial site;
(g)the appellant admitted in evidence at the trial that she knew how to use a garrotte (ts 2045);
(h)the appellant admitted in evidence at the trial that the garrotte she had shown Ms Davey was identical to the garrotte found by police at the Orelia property (ts 2046);
(i)the appellant admitted in evidence at the trial that two garrottes had been purchased (ts 1800);
(j)the appellant admitted in evidence at the trial that she liked knives (ts 1697);
(k)the appellant admitted in evidence that she intended to get a tattoo of 'the Fool or the jester' (ts 1672); that she had told the tattoo artist that she 'wanted to change the image of a gun in [the jester's] hands to a knife'; that she had conducted Google searches of the terms 'evil killer jester silhouette' (ts 1714) and 'evil killer jester' (ts 2003); and that she had told Mr Stray on 18 June 2016 of her plan to get a new tattoo of a jester (ts 2025);
(l)the appellant admitted in evidence at the trial that, at the material time, the only people in the house at the Orelia property were her, Ms Lenon and Mr Pajich (ts 2132); and
(m)each of the appellant and Ms Lenon sought to blame the other as being responsible or principally responsible for killing Mr Pajich.
As to the appellant's expressed intention or desire to kill someone, we are satisfied (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) that the evidence of that expressed intention or desire was evidence of the appellant's character and of a tendency that she had (namely, a tendency to want to kill someone).
The evidence as to the appellant's expressed intention or desire to kill someone (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) was, together with the other evidence adduced by the State, capable of showing that:
(a)the appellant was more likely than an ordinary person to commit a murder;
(b)the appellant had a motive for killing Mr Pajich; and
(c)in the context of the critical issue at the trial (see [9] and [72(c)] above), that the appellant had in fact been involved in killing Mr Pajich by inflicting one or both of the fatal wounds; alternatively, by aiding or enabling Ms Lenon to inflict them.
The evidence as to the appellant's expressed intention or desire to kill someone was not merely of 'marginal relevance'. The evidence in question (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) could rationally affect, to a significant extent, the assessment of the probability of the existence of the facts set out at [69(a)], [69(b)] and [69(c)] above.
As to the appellant's interest in and ownership of a number of knives, we are satisfied (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) that the evidence of the appellant's interest in and ownership of a number of knives was evidence of the appellant's character and of a tendency that she had (namely, a tendency to collect implements that were capable of being used to kill someone).
The evidence as to the appellant's interest in and ownership of a number of knives (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) was, together with the other evidence adduced by the State, capable of showing that:
(a)the appellant was more likely than an ordinary person to use a knife to stab someone; and
(b)in the context of the critical issue at the trial (see [9] and [72(c)] above), that the appellant had in fact been involved in killing Mr Pajich by inflicting one or both of the fatal wounds; alternatively, by aiding or enabling Ms Lenon to inflict them.
The evidence as to the appellant's interest in and ownership of a number of knives was not merely of 'marginal relevance'. The appellant's interest extended to collecting and using knives. Also, the appellant had access to knives and one of those knives may have been the murder weapon. Evidence that a person is in possession of an item that might have been used to commit the charged offence is relevant. See Castle [78] (Kiefel, Bell, Keane & Nettle JJ). In the present case, the evidence in question (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) could rationally affect, to a significant extent, the assessment of the probability of the existence of the facts set out at [69(a)], [69(b)] and [69(c)] above.
As to the appellant's possession of a garrotte, we are satisfied (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) that the evidence of the appellant's possession of a garrotte was evidence of the appellant's character and of a tendency that she had (namely, a tendency to collect implements that were capable of being used to injure someone).
The evidence as to the appellant's possession of a garrotte (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) was, together with the other evidence adduced by the State, capable of showing that:
(a)the appellant was more likely than an ordinary person to use a garrotte to injure someone; and
(b)in the context of the critical issue at the trial (see [9] and [72(c)] above), that the appellant had been in possession of an implement that might have been used by the appellant, while Mr Pajich was being murdered, to inflict the neck injury he suffered.
The evidence as to the appellant's possession of a garrotte was not merely of 'marginal relevance'. The garrotte was specifically referable to the appellant and involved more than mere possession. The evidence in question (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) could rationally affect, to a significant extent, the assessment of the probability of the existence of the facts set out at [69(a)], [69(b)] and [69(c)] above. The probative value of the evidence in question, having regard to the matters we have mentioned, substantially outweighed any irrelevant or impermissible prejudice.
As to the appellant's utterances to other persons as to her interest in violent serial killers and murder generally, we are satisfied (having regard to other evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) that the evidence of the appellant's utterances:
(a)was evidence of the appellant's character and of a tendency that she had (namely, a tendency to want to kill someone);
(b)was capable of showing that the appellant was more likely than an ordinary person to commit a murder;
(c)was capable of showing that the appellant had a motive for killing Mr Pajich;
(d)in the context of the critical issue at the trial (see [9] and [72(c)] above), was, together with the other evidence adduced by the State, capable of showing that the appellant had in fact been involved in killing Mr Pajich by inflicting one or both of the fatal wounds; alternatively, by aiding or enabling Ms Lenon to inflict them;
(e)was not merely of 'marginal relevance'; and
(f)could rationally affect, to a significant extent, the assessment of the probability of the existence of the facts set out at [69(a)], [69(b)] and [69(c)] above.
The evidence in question was not 'abstract'. It was of practical relevance to the facts in issue; in particular, it was influential in the context of fact-finding. The probative value of the evidence in question, having regard to the matters we have mentioned, substantially outweighed any irrelevant or impermissible prejudice.
We are satisfied that the probative value of each item of evidence impugned in ground 1, compared to the degree of risk of an unfair trial, was 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, within s 31A(2)(b) of the Evidence Act. The directions which the trial judge gave to the jury in his summing up were adequate to overcome any irrelevant or impermissible prejudice arising from the items of propensity evidence. As we have mentioned, the appellant's grounds of appeal do not challenge the correctness of any of his Honour's directions. In the circumstances, there was no reasonable possibility that the jury might have misused the propensity evidence or overestimated its probative force. The admission of the propensity evidence did not occasion an unfair trial. The propensity evidence was highly relevant to and probative of the State's case. If the propensity evidence had not been admitted, the jury would have considered the balance of the State's case in a contextual vacuum, and the trial would have been unfair from the State's perspective.

Ground 1 is without merit.

Ground 2: the appellant's submissions

At the trial, Ms Lenon's defence counsel tendered in evidence a still image, taken from a moving image (in Graphics Interchange Format or 'GIF') on the internet, of a woman slitting a man's throat with a knife.
Police extracted the image from the appellant's mobile telephone. The image appeared in three messages extracted from the appellant’s mobile telephone, being one message sent by the appellant on each of 7 November 2015 and 19 April 2016, and one message received by the appellant on 19 April 2016 (ts 1144 ‑ 1146).
The appellant's defence counsel objected to the tender. He argued that the image was prejudicial to the appellant. Ultimately, the trial judge rejected that argument and permitted Ms Lenon's defence counsel to tender the image (ts 2019 - 2021).
During her closing address, Ms Lenon's defence counsel commented that the image showed 'the stabbing to the left side of the [man's] neck, which is where in fact Mr Pajich was stabbed' (ts 2293).
Before this court, counsel for the appellant submitted that the comment made by Ms Lenon's defence counsel was 'incorrect and inflammatory'. According to counsel for the appellant, the image shows 'a slicing of [the man's] throat, not a stabbing'. Mr Pajich's throat was stabbed, not sliced.
Counsel for the appellant also noted that Ms Lenon's defence counsel said in her closing address that the image depicted 'the blood coming from the left‑hand side [of the man’s] throat, exactly where Mr Pajich was stabbed' (ts 2293). Counsel submitted that defence counsel's description was 'misleading'.
According to counsel for the appellant, the image was 'so prejudicial in nature that any relevant probative value it may have had to the trial was outweighed by that prejudice'.

Ground 2: its merits

The image tendered in evidence by Ms Lenon's defence counsel shows a woman standing behind a man. The woman's left hand is on top of the man's head. The woman has a knife in her right hand. The man has a handgun in his right hand. The woman has inserted the knife into the left‑hand side of the man's neck and appears to be cutting his throat. What appears to be blood from the wound can be seen.
Initially, on 11 October 2017, the trial judge ruled that the image should not be received into evidence. His Honour said he was not satisfied that the image 'presented as it would be in isolation, has relevance and in fact is apt to mislead the jury as to the nature of [the appellant's] interest in that sort of subject' (ts 1095).
However, later in the trial, on 26 October 2017, his Honour ruled, over the objection of the appellant's defence counsel, that there was 'a proper foundation' for the tender of the image and that it should be received (ts 2020). His Honour added that he had taken into account the prejudice to the appellant from the tender of the image, but he was 'satisfied that the probative value is greater than the prejudice' (ts 2021).
The case law has established that one of two jointly charged accused may tender relevant evidence to disprove his or her guilt, even though, as against the other accused, the evidence merely tends to prove that the other accused had a propensity to commit the offence with which the two accused have been jointly charged. See Russell v The State of Western Australia[6] and Mansfield v The State of Western Australia.[7]
[6] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [308] ‑ [334] (Buss JA).
[7] Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233 [78] – [106] (Buss P; Mazza & Mitchell JJA agreeing).
In the present case, there were numerous pieces of information before the jury, apart from the image, that tended rationally to show that the appellant's character and personality were such that she, rather than Ms Lenon, had killed Mr Pajich. We refer, in particular, to the evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above. The image was relevant to Ms Lenon's defence and was admissible in her case.
Further, and in any event, we do not accept that 'any relevant probative value [the image] may have had to the trial was outweighed by [its] prejudice'. That conclusion is based upon our examination of the image in the context of:
(a)the facts in issue at the trial;
(b)the nature and quality of the content of the image; and
(c)the nature and quality of the substantial body of other evidence that was graphic and confronting, that was plainly admissible in the State's case against the appellant and that was put before the jury for its consideration.
In our opinion, at least some members of the jury may have found the image confronting, but the image was not especially graphic. There is nothing in the image which might have resulted in a juror determining the State's case against the appellant otherwise than according to law or by reference to a proper evaluation of the evidence as a whole. See Liyanage v The State of Western Australia.[8]
[8] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [198] (Martin CJ, Mazza & Mitchell JJA).
The substantial body of other evidence that was graphic and confronting, that was plainly admissible in the State's case against the appellant and that was put before the jury for its consideration, included:
(a)video footage of the discovery of Mr Pajich's body (wrapped in what appears to be a drop sheet);
(b)photographs of the exterior of the site of the tiled area in the backyard of the Orelia property where Mr Pajich's body (wrapped in what appears to be a drop sheet) was found;
(c)31 photographs of Mr Pajich's body (wrapped in what appears to be a drop sheet) and items found at the gravesite;
(d)a DVD of 37 photographs of bloodstains (smears and droplets) found at the Orelia property;
(e)seven photographs of bloodstains on the carpet in the house at the Orelia property;
(f)five diagrams of Mr Pajich's injuries;
(g)a disc of the injury map in relation to Mr Pajich;
(h)three electronically‑recorded interviews by police with Ms Lenon which outlined in detail the appellant's alleged plan to cut up Mr Pajich's body in the house at the Orelia property; and
(i)the evidence of Dr White as to the nature and extent of Mr Pajich's injuries.
Further, and in any event, we do not accept that the comments made by Ms Lenon's defence counsel in her closing address were inflammatory or were materially incorrect or misleading. Defence counsel for Ms Lenon did submit to the jury that the image showed the woman stabbing the man (as distinct from slicing the man's throat), but defence counsel also acknowledged that the appellant's case was that the image depicted a 'slit throat' (ts 2293). The correct interpretation of what is depicted in the image was a matter for the jury. However, even if the jury was of the opinion that the image depicted a slicing, as distinct from a stabbing, of the man's throat, it remained the case that the woman used a knife to make an injury to the man's throat which began on the left side of his neck. The image reflected the appellant's interest in killing and also reflected an injury similar to one of the fatal injuries suffered by Mr Pajich. The probative value of the image, in the context of Ms Lenon's defence, was substantially greater than any prejudice to the appellant arising from the image.
It is of some significance, in evaluating ground 2, that the appellant's competent and experienced defence counsel, who was absorbed in the atmosphere of the trial, did not complain to the trial judge about the comments made by Ms Lenon's defence counsel in her closing address. Also, the appellant's defence counsel did not, when expressly invited to do so, complain to his Honour about the adequacy of his Honour's directions to the jury on this issue (ts 2431, 2484). See Mahmood v The State of Western Australia.[9]
[9] Mahmood v The State of Western Australia [2009] WASCA 220 [65] (Owen JA; McLure P & Miller JA agreeing).
Ground 2 is without merit.

Ground 2A: the appellant's submissions

Counsel for the appellant submitted, in the alternative to ground 2, that if the trial judge was correct in admitting the image into evidence, his Honour ought to have discharged the appellant from the joint trial with Ms Lenon and granted the appellant a separate trial.
It was argued that the image was not adduced by Ms Lenon's defence counsel 'to prove [Ms Lenon's] innocence', but rather was evidence 'which went towards [the appellant's] propensity and was highly prejudicial in its nature'.
According to counsel for the appellant, the admission of the image into evidence caused the appellant's trial to be unfair. His Honour should have discharged the appellant from the joint trial and granted her a separate trial.

Ground 2A: its merits

Clause 9(2) of sch 1 to the Criminal Procedure Act 2004 (WA) provides:
If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.
Section 133 of the Criminal Procedure Act deals with the power to order separate trials.
Section 133(1) provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
By s 133(2), a court may amend or cancel an order made under s 133.
Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
Section 133(4) provides:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order ‑
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
By s 133(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.
The relevant legal principles relating to the exercise of the court's power under s 133 of the Criminal Procedure Act to order separate trials are well established. See The State of Western Australia v Bowen;[10] The State of Western Australia v Micalizzi;[11] Russell and Mansfield. It is unnecessary to repeat them.
[10] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.
[11] The State of Western Australia v Micalizzi [2010] WASCA 147.
Prior to the commencement of the joint trial, the State applied to adduce the image as evidence in the State's case against the appellant. The trial judge held that its prejudicial value outweighed its probative value and, accordingly, refused to permit the State to tender it (ts 217 ‑ 218). The State accepts that if the appellant had been tried separately from Ms Lenon, the image would not have been adduced into evidence.
At the joint trial, the image was received into evidence as part of Ms Lenon's defence implicating the appellant. That image, together with evidence of the 'jester image' and evidence of the appellant wanting the 'Fool tattoo', was relevant and admissible in Ms Lenon's case in that it suggested (having regard to the evidence adduced by the State at the trial, the appellant's formal admissions and the matters that were or were not in contest at the trial, as set out at [63] ‑ [64] and [70] ‑ [72] above) that it was the appellant, rather than Ms Lenon, who had killed Mr Pajich (ts 2467 ‑ 2468).
In our opinion, the trial judge did not err in failing to discharge the appellant from the joint trial and granting her a separate trial. We are of that opinion for the following reasons.
We accept that a consequence of the appellant being tried jointly with Ms Lenon was that evidence was adduced in relation to the appellant which would not have been heard by the jury if the appellant had been tried separately.
However, each of the appellant and Ms Lenon asserted that she was not the offender or the principal offender and that the other was the offender or the principal offender. A joint trial of the appellant and Ms Lenon advanced the administration of justice in that, in the context of what were in substance 'cut‑throat' defences, the joint trial gave the jury the means of obtaining an overview of the respective roles of each of the appellant and Ms Lenon in the charged offence. See Ali v The Queen.[12]
[12] Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [58] (Callinan & Heydon JJ).
Also, the degree of prejudice inherent in the image was limited by the context of the substantial body of evidence that was graphic and confronting, that was plainly admissible in the State's case against the appellant and that was put before the jury for its consideration. See [100] above.
Further, it is of some significance, in evaluating ground 2A, that the appellant's competent and experienced defence counsel, who was absorbed in the atmosphere of the trial, did not apply to the trial judge for the discharge of the appellant from the joint trial with Ms Lenon and the grant to the appellant of a separate trial.
We are satisfied that there were no particular features of the present case that required the appellant and Ms Lenon to be tried separately.
Ground 2A is without merit.

Conclusion and orders

The appellant's application in the appeal dated 20 September 2018 should be dismissed. None of grounds of appeal has any merit. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss
22 OCTOBER 2019