Ninyette v The State of Western Australia
[2012] WASCA 184
•24 SEPTEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NINYETTE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 184
CORAM: BUSS JA
MURPHY JA
MAZZA JA
HEARD: 4 SEPTEMBER 2012
DELIVERED : 4 SEPTEMBER 2012
PUBLISHED : 24 SEPTEMBER 2012
FILE NO/S: CACR 199 of 2011
BETWEEN: BRENDON WAYNE NINYETTE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 283 of 2011
Catchwords:
Criminal law - Appeal against conviction - Application for leave for an extension of time to appeal against conviction - Appellant convicted of one count of doing grievous bodily harm - Propensity evidence - Admissibility of evidence of a prior conviction for doing grievous bodily harm - Whether propensity evidence had significant probative value
Legislation:
Criminal Code (WA), s 248, s 297
Evidence Act 1906 (WA), s 31A
Result:
Application for leave for an extension of time in which to appeal allowed
Appeal against conviction allowed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159
BUSS JA: I agree with Murphy JA, for the reasons he gives, that the evidence in question was inadmissible. The evidence did not, either by itself or having regard to other evidence adduced or to be adduced at the trial, have 'significant' probative evidence within s 31A(2)(a) of the Evidence Act 1906 (WA). I therefore joined in the orders made by the court on 4 September 2012.
MURPHY JA:
Introduction
On 4 September 2012 the court heard an appeal against conviction. The single issue was whether the judge erred in admitting, purportedly pursuant to s 31A of the Evidence Act 1906 (WA), certain evidence of prior conduct of the appellant which had taken place eight years prior to the offence with which the appellant was charged and, ultimately, convicted in this matter. The respondent did not contend that the proviso applied if error were established. The court granted leave to extend the time in which to appeal, allowed the appeal, quashed the conviction and ordered a retrial, with reasons to be published later. These are the reasons why I joined in those orders.
The prosecution case
The appellant was charged with unlawfully doing grievous bodily harm contrary to s 297 of the Criminal Code (WA). Section 297(1) provided relevantly:
(1)Any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 10 years.
Section 248(2) and (4) of the Criminal Code provided:
(2)A harmful act done by a person is lawful if the act is done in self defence under subsection (4).
...
(4)A person’s harmful act is done in self defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
For present purposes, the prosecution's case was, relevantly, to the following effect. In the early hours of the morning on 12 May 2010, the appellant had been given to understand, by a female friend of the appellant, that the complainant and his female companion had taken her credit card. The appellant, with his nephew, left the house at which they were staying and went by car looking for the complainant and the complainant's female companion. The appellant's nephew was the driver. The appellant and his nephew located the complainant and his female companion in a car park at about 4.45 am. The appellant got out of the car armed with a tyre lever. The appellant approached the complainant and without any warning swung the tyre lever toward the complainant's head connecting with his forehead. The complainant's screams of pain awoke people sleeping in nearby flats. The appellant then left the scene leaving the complainant bleeding heavily and with a depressed skull fracture. The complainant's injuries were likely to cause permanent injury to his health if left untreated.
At trial the State, in support of its case, called evidence from, amongst others, the complainant, the complainant's female companion, the appellant's nephew, and two witnesses who lived in units near the car park. The State also tendered the appellant's record of interview with the police in which he in effect admitted that he had struck the complainant with the tyre lever. The State also led forensic evidence to the effect that the complainant's blood was found on the appellant's clothing.
The s 31A application before the trial judge
On the last working day before trial, the primary judge heard an application by the State to admit evidence under s 31A of the Evidence Act. The application concerned the appellant's conduct with respect to an incident in 2002 for which he was charged and pleaded guilty to doing grievous bodily harm, and was sentenced to 20 months' imprisonment. The effect of the evidence (outlined more fully later in these reasons) was that in 2002, the appellant had swung a metal implement (a star picket) at the head of a person who, according to the appellant, had been sexually interfering with a girl. The person raised his arm to protect his head and the implement connected with, and caused injuries to, the person's arm.
At the hearing of the s 31A application, which was prior to the commencement of the trial, the State submitted that it expected that the appellant would challenge the element of unlawfulness in the alleged offence against the complainant by raising questions of self‑defence or the defence of accident.
In the written submissions before the pre‑trial hearing, the State submitted (par [29):
[T]hat a fair minded person would want to know, in deciding whether the [appellant] acted unlawfully and whether he was the aggressor, that he had previously pleaded guilty to unlawfully causing grievous bodily harm in circumstances where he was acting unlawfully and he was the aggressor and the blow was directed toward the victim's head.
The State submitted that the propensity evidence represented evidence of conduct of the appellant or a tendency that the appellant had. The State submitted that the evidence had significant probative value for the following reasons:
•it demonstrated that the appellant had a propensity to be violent;
•it demonstrated that the appellant had a propensity to overreact to situations in which he perceived the existence of an injustice, and that the overreaction manifested itself in violence;
•it demonstrated that the appellant has a propensity to arm himself with a common inanimate object in order to facilitate the assault;
•it would rebut any assertion by the appellant at trial that he was not the aggressor;
•it is evidence that could rationally affect, to a significant extent, the jury's assessment as to the unlawfulness of the appellant's act of causing grievous bodily harm to the complainant.
The State argued, in effect, that the two instances had an underlying unity, in that in both instances, the appellant, upon finding out that a female known to him was being unjustly treated, reacted violently with the use of a weapon.
Defence counsel for the appellant argued that the evidence was not relevant, and that if it was, it could not rationally affect to a significant extent the jury's assessment of the unlawfulness of the actions in 2010. On this note, defence counsel submitted:
•there was an eight-year time gap between the incidents;
•there was no repetition of the 2002 offending in the interim;
•the circumstances of the two incidents were substantially different.
Defence counsel also said that any probative value of the evidence was outweighed by the risk of an unfair trial such that fair‑minded people would think that the public interest in adducing the evidence should not have priority over the risk of an unfair trial. Counsel argued in effect that the evidence was unfairly prejudicial in that the appellant's character would be tainted by a matter not the subject of his trial (ts 35).
The finding of Scott DCJ in relation to adducing propensity evidence
Scott DCJ found that the evidence was admissible pursuant to s 31A. His Honour considered the eight year gap between the incidents, and the fact that there was no alleged repetition of 'any like' offending in the interim, to be relevant but not decisive. His Honour said (ts 53):
The circumstances in which the 2002 incident occurred demonstrated, in my view, a tendency which the accused person has or had to overreact to the use of a weapon at hand, when confronted by an apprehension that a female known to him had suffered injustice and to exact some summary treatment.
His Honour's reference to the tendency of the appellant to 'overreact to the use of a weapon at hand' appears to be a mistake. In 2002, there was no allegation that the victim had a weapon at hand to which the appellant overreacted. However, it appears that his Honour was intending to refer to the appellant overreacting with a weapon at hand.
His Honour found the evidence to be relevant and significantly probative in the manner asserted by the State (ts 53) and said:
[I]n my view, it is evidence that could rationally affect to a significant extent, the jury's assessment as to the unlawfulness of the accused's alleged act, causing grievous bodily harm to the male complainant. In that the jury may think it more likely that he did so, having regard to that evidence.
Scott DCJ said that there were similarities between the two incidents and addressed the balancing exercise in the following way (ts 53):
In each case, the accused had a weapon in the form of an object at hand. In 2002, the star picket was swung at least in the direction of the complainant's head and was blocked by the complainant's arm. In 2010, the wheel brace allegedly struck the complainant in the head with significant force.
It is the case that the more probative the evidence, the greater the prejudice to an accused. Be that as it may, in my view, a fair minded person would want to know in deciding whether he or she is satisfied as to whether the accused acted unlawfully and whether he was the aggressor; that he had previously caused grievous bodily harm to another in circumstances to which I have referred.
His Honour said that any prejudice could be 'reduced appropriately' by a direction at trial.
The purported s 31A evidence adduced at trial pursuant to Scott DCJ's ruling
The prosecutor closed her case by reading to the jury a statement of agreed facts relating to the 2002 incident for doing grievous bodily harm. The statement was as follows (ts 322):
So ladies and gentlemen, it is agreed between the parties that in the early hours of 28 July 2002, Brendon Ninyette and several others were socialising and drinking in the premises of [X], a 20-year-old male. [X] asked Brendon Ninyette to be quiet as he was concerned that the noise levels at the party would disturb other members of the household who had already gone to bed.
Brendon Ninyette armed himself with a star picket that was in the corner of the lounge room of the premises and walked towards [X], who was seated at the kitchen table. Brendon Ninyette swung the star picket at [X's] head. [X] raised his left arm to protect his head. The star picket struck [X] on the left arm near the point of the elbow causing severe fractures to the arm that amounted to grievous bodily harm. Brendon Ninyette claimed that he had seen [X] being sexually inappropriate towards a female who was asleep on the floor.
After the prosecutor read the statement of agreed facts, the judge made the following observations to the jury (ts 322):
Ladies and gentleman, it's obvious to you from that ... statement of material facts that it related to a matter earlier than and not the same as the charge that you are concerned with …There will be directions given by me as to the manner in which you may consider and deal with that statement of agreed facts and the matters contained in it during the course of my directions as to law.
The appellant was later cross-examined by the prosecutor about the 2002 incident. The following exchange took place between the prosecutor and the appellant (ts 360-361):
It's agreed, isn't it, Mr Ninyette, that you said the reason that you did that in 2002 was because you'd seen [X] interfering with a young girl---Yeah, so the police know about it as well.
Yes---Kununurra Police. He was molest - he was sodomising a 13-year old child.
And - - ----I caught him in the act.
- - - in your eyes, that female was quite helpless, wasn't she---Yeah, she was intoxicated and asleep.
Yes, and that made you enraged, didn't it---Yeah, because I seen my sister molested all my life, so yeah.
It did---Yeah.
And so that rage caused you to pick up the star picket, didn't it---No, it was there, I warned him to stop, he wouldn't stop and it was his star picket. It was his weapon. I grabbed it and I said 'stop' and he wouldn't stop.
Just listen to the question - - ----And I hit him once and he stopped.
And you swung that at his head, that's been agreed---No, I took a swing and he put his arm out and I hit his arm.
Okay, and you're aware that doing that caused him serious injuries---Yeah. Caused her serious injury as well.
Yes, and turning to Jayd now [the female who contacted the appellant about the credit card being missing], you've already - we've heard in the video and we've heard in your evidence that she's a friend of yours---Yeah.
And people take advantage of her, don't they---Yeah.
And that's not right, is it---I don't know, probably not.
No---You wouldn't like it done to you, would you?
And that kind of unfairness or injustice against someone like Jayd - - ----There's so much - the police don't really do so much about it until someone's injured and yeah, in Jayd's case, she just cops it all the time.
And that makes you mad, doesn't it---Not really mad. Frustrated, I guess. No one will do anything about it.
Makes you mad enough to want to teach the people who do it to her a lesson---Yeah, not all the time, though.
Well, answer the question; it makes you mad enough to want to teach the people who do those things to her a lesson---Yeah, I suppose.
The judge's summing up and directions in relation to the purported s 31A evidence
The appellant had given evidence at trial to the effect that there was a fight, but he had not struck the complainant with the tyre lever. He said that although he did not see it happen, he was later told by his nephew that his nephew had struck the complainant with the tyre lever. The appellant said, in effect, that he had made admissions in his record of interview in order to protect his nephew.
In his summing up, the judge told the jury that the prosecution had to prove the following four elements. First, that it was the appellant who committed the assault and not some other person. Secondly, that the injuries sustained by the complainant amounted to grievous bodily harm in that they were likely to cause permanent injury to health if left untreated. Thirdly, that the grievous bodily harm suffered by the complainant was caused by the appellant striking him with the tyre lever. Fourthly, that the appellant committed the grievous bodily harm unlawfully in that he was not acting in self-defence at the time the offence was committed.
As to the first element, the judge in his summing up referred to the evidence of the complainant's female companion and the nephew to the effect that it was the appellant who had struck the complainant with the tyre lever. The judge also noted that the appellant had, however, given evidence on oath to the effect that he had not struck the complainant with the tyre lever and that if anyone had done it, it must have been his nephew.
As to the fourth element, the judge told the jury that they need only come to the fourth element if they were satisfied beyond reasonable doubt that the other elements of the offence had been made out. His Honour said that the prosecution had to prove beyond reasonable doubt that the appellant, in striking the complainant with the tyre lever, was not acting in self‑defence.
In relation to the purported s 31A evidence, the judge made the following observations (ts 420):
The State led the evidence to show that [the appellant] had a tendency to overreact violently in such circumstances. In particular, the State says that this evidence is relevant to the question of whether or not he overreacted in a violent manner towards [the complainant] ... on this occasion.
If you are satisfied beyond reasonable doubt that this evidence shows a tendency on [the appellant's] part to overreact violently in circumstances where he perceives that a female is being or has been unjustly dealt with, it is open to you to conclude that the occurrence of that incident increased the likelihood that [the appellant] committed the [offence] ...
That is entirely a matter for you. But the caution is this. You cannot use this evidence in substitution for evidence of the events charged in the count in the indictment you are considering. You must remember that you can only convict [the appellant] if you are satisfied beyond reasonable doubt that he did the acts constituting each of the elements of the charge that you are considering.
Section 31A of the Evidence Act
Section 31A of the Evidence Act is in these terms:
31A. Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The construction and operation of s 31A of the Evidence Act has been summarised most recently in this court in APC v The State of Western Australia [2012] WASCA 159 [84] ‑ [90]. It is unnecessary to repeat or elaborate on the matters set out in that decision, or the cases to which it refers, for the purposes of the disposition of this appeal.
The appeal
The single ground of appeal was that the learned trial judge erred in both law and fact when, over objection, he ruled admissible evidence of a previous conviction of the appellant for grievous bodily harm. The particulars were that:
(a) the evidence did not have significant probative value;
(b)it could not be said that the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair minded people would think that the public interest of adducing all relevant evidence of guilt must have priority over the risk of an unfair trial;
(c)the prejudicial effect of the admission of the evidence could not be cured by direction.
The ground, as particularised, did not assert that the 2002 incident was not 'propensity evidence' within the meaning of s 31A(1).
Disposition
Evidence is relevant if it could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue.
I will assume, without deciding, that the fact the appellant had once, eight years earlier, used a metal implement to strike another person in the absence of self‑defence, could rationally affect the assessment of whether it was the appellant, as opposed to his nephew, who had struck the complainant with the tyre lever and if so, whether he was acting in self‑defence at the time.
The substantive question in the appeal was whether the 2002 incident had significant probative value, either by itself, or having regard to other evidence, within the meaning of s 31A(2)(a), with respect to either or both of those two issues. The word 'significant' in this context has been taken to mean 'important' or 'of consequence'.
In my view, the evidence of the 2002 incident plainly did not have significant probative value in relation to either issue, for the following reasons. First, the incident in 2002 was a single, isolated incident which occurred eight years prior to the events the subject of the indictment in the matter under appeal. There was no suggestion that it constituted a recognisable mode of behaviour or conduct prior to that incident, and there was nothing to suggest that in the intervening eight years anything of a similar nature had occurred. Secondly, the metal implement in the 2002 incident was used as a weapon by way of an immediate response to the alleged sexual molestation of a 13‑year‑old girl. On the other hand, in the matter under appeal there was no immediate response to any perceived injustice. Rather, the offence allegedly involved, in effect, the appellant leaving home in the early hours of the morning to embark upon a calculated course of conduct in relation to which some one to two hours passed before the alleged assault took place. Thirdly, in this context, in the matter under appeal, he did not simply reach for a weapon which happened to be lying about, but, allegedly, deliberately alighted from the car bearing a weapon to be used in the alleged premeditated assault.
Fourthly, the assault in 2002 was said to be connected with the sexual molestation of a minor. There is no real equivalence between the appellant's response to that situation and the circumstances of the offence with which he was charged in the matter under appeal, which involved no sexual mistreatment of a minor. Fifthly, and related to the last point, the suggestion that the commonality between the two was, in effect, the appellant's 'overreaction' in the face of perceived injustice to 'females' generally, has an insubstantial foothold when proper recognition is given to the very peculiar circumstances of the 2002 incident.
For these reasons, the evidence did not have significant probative value and I considered that the appeal should be allowed. It is unnecessary to hypothesise on the result of the balancing exercise under s 31A(2)(b) of the Evidence Act, or on whether the prejudicial effect could be cured by direction, in the event that the evidence were to be treated as having significant probative value.
MAZZA JA: On 4 September 2012, I joined with the other members of the court in granting an extension of time, allowing the appeal, quashing the conviction and ordering a retrial. I have read the draft reasons of Murphy JA for making the orders. I respectfully agree with them. I wish to add some remarks of my own.
If experience in this court is anything to go by, it is not uncommon for the State to seek to adduce evidence pursuant to s 31A of the Evidence Act 1906 (WA) shortly before trial. In the present case, the State gave late notice of its intention to adduce the evidence of the incident in 2002. As a result, the question of its admissibility had to be dealt with on the last working day before the trial.
For obvious reasons, it is unsatisfactory for the State to decide, at virtually the eleventh hour, that it intends to adduce evidence pursuant to s 31A of the Evidence Act. Where the State seeks to adduce evidence pursuant to s 31A of the Evidence Act, that intention should be made clear to the accused and the court prior to and, by the very latest, at the time the matter is listed for trial.
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