Suppressed
[2020] WASC 9
•14 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [2020] WASC 9
CORAM: CORBOY J
HEARD: 19 SEPTEMBER 2019
DELIVERED : 14 JANUARY 2020
FILE NO/S: INS 246 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHAWN ADAM NEWTON
Accused
Catchwords:
Nil
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J C Whalley SC |
| Accused | : | Mr J A Davies |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Jonathan A Davies |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
DKA v The State of Western Australia [2017] WASCA 44
Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 189
La Bianca v The State of Western Australia [2019] WASCA 105
Lilley v The State of Western Australia [2019] WASCA 164
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Edwards [2019] WASC 87
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Wark [2017] WASC 154
CORBOY J:
The application
The accused has been committed to stand trial on an indictment alleging three counts:
(1)On 14 July 2017, at Scarborough he unlawfully detained Gavin Michael Barr.
(2)On 14 July 2017, at Scarborough he made a threat with intent to compel Gavin Michael Barr to do an act he was lawfully entitled to abstain from doing.
(3)On or about 14 July 2017, at Scarborough or elsewhere in Western Australia, he murdered Rebecca Jane Gascoigne.
The State applied for an order under s 31A of the Evidence Act 1906 (WA) that it be permitted to lead evidence of the accused's conduct in two incidents described in a witness statement provided by Michelle Lorraine Hyland on 4 August 2017. I have concluded the application should be allowed for the following reasons.
The State's case
The State's case as alleged in the statement of material facts is that:
(1)As at July 2017, Mr Gavin Barr resided at unit 7, 51 Abbett Street, Scarborough (the Unit). Ms Gascoigne also lived at the Unit. She was in a casual domestic relationship with the accused and Mr Barr had allowed the accused to temporarily reside at the Unit.
(2)On the evening of 14 July 2017, Ms Gascoigne and the accused were in Ms Gascoigne's bedroom. At about 7.00 pm, Mr Barr knocked on the bedroom door. The door was opened by the accused and Mr Barr asked to speak to Ms Gascoigne in private. The accused responded aggressively and Mr Barr retreated towards the kitchen with the accused following him. The accused produced a knife and claimed he was armed with a gun.
(3)The accused ordered Mr Barr into Ms Gascoigne's bedroom. Ms Gascoigne was lying on the bed with her wrists and ankles bound with zip ties.
(4)The accused remonstrated with Mr Barr and Ms Gascoigne about their previous sexual encounters. He then assaulted Ms Gascoigne by stuffing a sock in her mouth and punching her several times. He inferred he was going to kill Ms Gascoigne and threatened Mr Barr by again stating he had a gun.
(5)The accused ordered Mr Barr to go to the living room and lie face down on the floor looking away. He threatened to kill Mr Barr if he moved. He dragged Ms Gascoigne from the bedroom to the living room, wrapped her head in Glad Wrap and further bound her wrists, ankles and head with gaffer tape. He then wrapped Ms Gascoigne in a rug. He continued to punch her while binding and wrapping her.
(6)The accused searched the Unit for items that could identify Ms Gascoigne and himself. He placed items such as clothing, condoms and toothbrushes in garbage bags.
(7)The accused threatened to kill Mr Barr if he did not assist in disposing of Ms Gascoigne's body. The accused and Mr Barr placed Ms Gascoigne's body and the garbage bags in the boot of Mr Barr's vehicle. They disposed of the garbage bags and then drove to a carpark at Whitfords Beach, where the accused intended to bury Ms Gascoigne's body. The accused left the vehicle to make a telephone call and Mr Barr was able to escape in his vehicle with Ms Gascoigne's body still in the boot.
(8)Mr Barr saw two police vehicles as he drove south along the Mitchell Freeway. He stopped and informed the police about what had occurred. Ms Gascoigne's wrists and ankles were still bound when the police located her body in the boot of Mr Barr's vehicle.
(9)The accused was arrested on 24 July 2017. He was wearing a wig at the time of his arrest and had a loaded firearm in the pocket of the jumper he was wearing.
(9)Dr White conducted a post‑mortem examination of Ms Gascoigne's body. She reported to the coroner that, in her opinion, the cause of Ms Gascoigne's death was 'asphyxia in a women with a traumatic brain injury and drug effect'.
Ms Hyland's statement
Ms Hyland states she met the accused in about December 2007. She was addicted to heroin at the time and the accused had offered to supply home bake through a mutual friend. Ms Hyland and the accused formed a relationship shortly afterwards which lasted until sometime in 2011.
Ms Hyland describes two incidents in her witness statement that are the subject of the State's application under s 31A of the Evidence Act.
Ms Hyland does not state when the first incident occurred other than it was while she and the accused were living in a unit in Hillarys. According to Ms Hyland, they commenced living at the unit in about June 2009 and remained there for approximately 18 months.
Ms Hyland states she and the accused had an argument. She tried to leave through the rear door of the unit but the accused grabbed her in a headlock and dragged her back. He forced her to lie down on the lounge‑room floor with her hands behind her back. He then tied her wrists and ankles with video cables and hit her after she was bound. He left her in that state until the next morning.
According to Ms Hyland, the second incident occurred towards the end of June 2011. By this time, the accused and Ms Hyland were living separately but they met to discuss their relationship. They purchased a pizza and then drove together from the shop. Ms Hyland was driving the vehicle.
As she was driving, Ms Hyland advised the accused she could not be with him. The accused told her to pull into a carpark so he could get a taxi. However, the accused started punching Ms Hyland once she stopped the vehicle. He made her get out of the car and sit in the passenger seat. He told her to sit on her hands so she could not move and he continued to punch her in the face and chest. He then drove from the carpark while continuing to demand that Ms Hyland sit on her hands.
At one point, Ms Hyland undid her seatbelt and attempted to escape as the car was negotiating a roundabout. The accused reached over and grabbed her hair to prevent her from escaping. Ms Hyland managed to get out of the car but was chased by the accused. He grabbed hold of her and dragged her back to the car. He again made her sit on her hands in the passenger seat.
The accused drove to a beach area near Ocean Reef and threatened to kill Ms Hyland. He stopped in a carpark but his demeanour changed and he asked Ms Hyland to forgive him. The police arrived at the carpark and the accused was arrested.
The accused was subsequently convicted of deprivation of liberty and aggravated assault occasioning bodily harm following a trial. He was sentenced for those offences on 28 August 2014. He was also sentenced for a burglary offence committed in September 2011. The accused pleaded guilty to that offence in July 2013.
The accused was sentenced to terms of imprisonment for each offence:
(1)3 years 6 months for the deprivation of liberty offence;
(2)1 year concurrent for the aggravated assault occasioning bodily harm offence;
(3)2 years cumulative for the burglary offence.
Accordingly, the accumulated sentence was 5 years 6 months. The sentence was backdated to 26 September 2011 and the accused was made eligible for parole. However, the accused was not granted parole and he remained in custody until about March 2017.
The court was not provided with the transcript of the trial of the deprivation of liberty and aggravated assault charges. However, the trial judge's sentencing remarks suggest that Ms Hyland's evidence in the trial was substantially consistent with the allegations made in her witness statement. In particular, the sentencing judge found that the accused had punched Ms Hyland numerous times at the carpark; that Ms Hyland was made to sit on her hands while the accused drove the vehicle; that Ms Hyland managed to escape from the vehicle when it slowed to navigate a roundabout; that the accused chased Ms Hyland and forced her back into the car; and that the accused was arrested by police at a carpark at Burns Beach. In any event, in determining the application, the evidence must be taken at its highest from the perspective of the prosecution.
The State's submissions
The State submits that:
(1)Ms Gascoigne was bound hand and foot by cable ties and gaffer tape when her body was discovered and recovered by police from the boot of Mr Barr's vehicle. Accordingly, the fact that she had been bound will not be in dispute in the trial. The issue in the trial will be, who was she bound by?
(2)Realistically, there are only two possible culprits on the evidence contained in the prosecution brief: the accused or Mr Barr. Consequently, the jury will be required to consider whether it was the accused who bound Ms Gascoigne's hands and feet with cable ties and gaffer tape before assaulting and suffocating her, as alleged by Mr Barr, or whether it was Mr Barr himself who did those acts.
(3)Evidence that on previous occasions the accused had physically restrained another domestic partner, including by binding her hands and feet, prior to assaulting her would rationally effect to a significant degree the jury's assessment of a fact in issue. It would be open to the jury to conclude that it would be a highly improbable coincidence that Mr Barr would fabricate an allegation against the accused that was so similar in material respects to conduct in which the accused had engaged on previous occasions. That is especially as there was no known prior connection between Mr Barr and the accused and accordingly, no way that Mr Barr could have known of the allegations made by Ms Hyland at the time Mr Barr made his statement to the police implicating the accused.
(4)Regrettably, domestic violence is too common. However, it is unusual for a perpetrator to tie up or otherwise restrain the victim prior to committing an assault. That behaviour could be characterised as idiosyncratic.
(5)It is accepted that the restraints allegedly used by the accused on Ms Hyland and Ms Gascoigne are different. The accused used video cables in the first incident described by Ms Hyland. In the second incident, no physical restraint was used but rather, the accused compelled Ms Hyland to restrain herself by sitting on her hands. According to Mr Barr, the accused used cable ties and gaffer tape to restrain Ms Gascoigne. However, it is the pre‑assault restraint of the victim by, on the State's case, the accused that is relevant and not the means by which that restraint was affected nor the precise mechanism of the assault.
The relevant principles
Section 31A of the Evidence Act states:
(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 or relationship 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[1]. In particular, Beech J (as his Honour then was) identified the following propositions:
[1] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also La Bianca vThe State of Western Australia [2019] WASCA 105 and The State of Western Australia v Jackson [2019] WASCA 118.
(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.[2]
[2] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67. See also Buss P at [50] – [52].
In The State of Western Australia v Jackson, the Court of Appeal affirmed the principles stated in RMD and noted four further points about the meaning and effect of s 31A:[3]
(a)The word 'conduct' in s 31A(1) refers to the manner in which the accused person behaves or has behaved. The words 'a tendency' refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
(b)An assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(i)the evidence is capable of proving the propensity; and
(ii)proof of the propensity increases the likelihood of the commission of the alleged offence.
(c)An evaluation of the extent of the probative value of propensity evidence requires the purpose for which the evidence is sought to be admitted to be identified – that is, it is necessary to consider what work the propensity evidence is tendered to do.
(d)Even where a propensity is identified at a higher level of generality, it is necessary to examine the proposed propensity evidence in detail in 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. In that context, it should also be noted that in RMD, the Court of Appeal observed that 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.
[3] The State of Western Australia v Jackson [2019] WASCA 118 [20] – [23] and see Lilley v The State of Western Australia [2019] WASCA 164.
The first question in determining an application under s 31A is whether the proposed evidence is 'propensity' or 'relationship' evidence as defined by the section. As Hall J observed in The State of Western Australia v Edwards, those expressions are defined in s 31A(1) in very broad terms.[4] His Honour referred with approval to the observations of Pritchard J (as her Honour then was) in The State of Western Australia v Wark that the words 'other evidence of the conduct of the accused person' in the definition of 'propensity' evidence:
must be construed as any evidence of the conduct of the accused person which demonstrates, or is capable of demonstrating the accused has a propensity - that is, an inclination to commit a crime, or crime of a particular kind, or an inclination to behave in a particular way - which is capable of supporting an inference that the accused is the person, or the sort of person, likely to have committed the alleged offence.[5]
[4] The State of Western Australia v Edwards [2019] WASC 87 [25].
[5] The State of Western Australia v Wark [2017] WASC 154 [45].
If the proposed evidence can be categorised as propensity or relationship evidence, it is then necessary to consider whether the evidence would, either by itself or having regard to other evidence to be adduced, have significant probative value. That is to be determined according to the principles to which reference has already been made. In particular, it is necessary to identify precisely the issue to which the proposed evidence is said to be relevant. It is relevant in this case to note the observation of Hall J in SOWA v Edwards that, 'where the evidence is adduced to prove identity of the offender for a known offence, the probative value of propensity evidence will almost certainly depend upon close proximity between the evidence and the conduct constituting the offence.'[6] It is also necessary to consider the extent to which the alleged propensity makes more likely the elements of the offence charged: see DKA v The State of Western Australia[7].
[6] The State of Western Australia v Edwards [2019] WASC 87 [28]; Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 189 [39].
[7] DKA v The State of Western Australia [2017] WASCA 44 [42] ‑ [44].
Finally, it is also necessary to undertake the comparison required by s 31A(2)(b). The possible risks of prejudice from propensity evidence were identified by Steytler P in Dair v The State of Western Australia.[8] In comparing the probative value of the evidence to the degree of risk of an unfair trial, the court must:
(a)take into account any directions that might properly be given to the jury and the effect of the directions on the jury's deliberations; and
(b)determine what fair minded people would think was in the public interest on comparing the probative value of the evidence and the risk of an unfair trial.
[8] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
Disposition
Three points about the State's application should be noted. First, the State rightly concedes that evidence of the accused's alleged conduct in the incidents described by Ms Hyland can only be relevant to proof of the identity of the person who killed Ms Gascoigne. The evidence is not relevant to the elements of causation and intent.
Second, the accused was in custody between November 2014 and about March 2017. Consequently, I consider that the time between the incidents described by Ms Hyland and the events the subject of this prosecution is not a significant factor in determining the probative value of the proposed evidence.
Third, it is not necessary for there to be evidence of repetitive conduct to satisfy the definition of propensity evidence.
The propensity alleged by the State is not just that the accused has a tendency to assault women with whom he is in a domestic relationship. The alleged propensity is more specific: an inclination to restrain women with whom he is in a domestic relationship for the purpose of committing assaults. Moreover, the forms of restraint alleged by Ms Hyland were unusual; they involved more than merely physically grabbing hold of her or grappling with her as part of an assault.
The evidence proposed to be led from Ms Hyland must be considered in the context of the allegations made by Mr Barr and the evidence that Ms Gascoigne was found with her wrists and ankles bound when the police retrieved her body from the boot of Mr Barr's vehicle. There is an obvious similarity between the use of restraints in the incidents described by Ms Hyland and the application of restraints to Ms Gascoigne. In my view, the proposed evidence is propensity evidence for the purpose of s 31A as either, or both, similar fact evidence or other evidence of the conduct of the accused. To adopt the interpretation of the expression 'other evidence of the conduct of the accused person' proposed by Pritchard J in SOWA v Wark and accepted by Hall J in SOWA v Edwards, it is evidence that is capable of supporting an inference that the accused is a person, or the kind of person, who is likely to have bound Ms Gascoigne as alleged by the State.
I consider that the evidence proposed to be led from Ms Hyland has significant probative value in the context of the issues to be determined in this case. The critical issue the jury will be required to determine is who caused Ms Gascoigne's death: the accused or Mr Barr?
I consider that evidence the accused has an inclination to physically restrain a woman with whom he is in or had a domestic relationship for the purpose of assaulting her is evidence that would rationally affect, to a significant extent, the assessment of a probability that it was the accused who bound Ms Gascoigne when the evidence is considered with the evidence of Mr Barr and the evidence concerning how Ms Gascoigne had been found prior to when her body was retrieved by the police. That, in turn, would be relevant to who, as between the accused and Mr Barr, caused Ms Gascoigne's death.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy15 DECEMBER 2020
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