The State of Western Australia v Baker - [2014] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BAKER [2014] WADC 140

CORAM: BOWDEN DCJ

HEARD: 16 SEPTEMBER 2014 AND ON THE PAPERS

DELIVERED : 10 OCTOBER 2014

FILE NO/S: IND 467 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
CLINTON CHARLES BAKER

Catchwords:

Propensity/relationship evidence - Proposed evidence - Threats of personal violence to a former partner five years prior to alleged offence of making a threat to unlawfully kill a person

Legislation:

Evidence Act 1906 s 31A

Result:

Leave granted to lead propensity/relationship evidence

Representation:

Counsel:

The State of Western Australia : Ms M-N Mattocks
Accused: Mr CJ Hampson

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Justine Fisher Barristers & Solicitors

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

AJ v The State of Western Australia [2007] WASCA 228
AJE v The State of Western Australia [2012] WASCA 185
Asplin v The State of Western Australia [2013] WASCA 72
Barbour v The Queen (1939) 1 DLR 65
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
KRM v The Queen (2001) 206 CLR 221
Mansell v The State of Western Australia [2009] WASCA 140
R v Clark (2001) 123 A Crim R 506
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) (2011) 213 A Crim R 226
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Osborne [2007] WASCA 183
Zammit v The State of Western Australia [2007] WASCA 66

BOWDEN DCJ: It is alleged that on 30 June 2013 at Fremantle Mr Baker made a threat to unlawfully kill Mr Black.

The application

The State seeks to lead evidence that on 17 May 2008 Mr Baker used a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).
Mr Baker was convicted on his own plea in the Australian Capital Territory Magistrates Court on 17 December 2008 of this offence (the proposed evidence).

Brief overview of the case against Mr Baker

It is alleged that Mr Baker had been in a relationship with a woman who was a member of Mr Black's wife's family.
Towards the latter part of this relationship, Mr Black accompanied by police officers, attended a motel where Mr Baker was staying with his then partner because Mr Black was concerned about the welfare of Mr Baker's partner.
Subsequent to the breakdown of the relationship between Mr Baker and his partner, Mr Black obtained an interim violence restraining order (VRO) in October 2011 against Mr Baker. A final VRO was issued on 29 November 2011 remaining in force until 29 November 2013.
On 30 June 2013 Mr Black allegedly received a call from Mr Baker. This call forms the basis of the indictment. During the call Mr Baker is alleged to have said to Mr Black 'you fucked my family cunt I'm gonna fuck yours', 'getting my guns ready' and 'I'm gonna kill you, your wife and your fucking daughter and that slut Shiana', 'you're getting one in the forehead cunt. Then I'm taking out your wife and daughter'.
Mr Baker has pleaded not guilty to this offence.

The proposed evidence

The proposed evidence is that on 17 May 2008 Mr Baker sent a text to Ms X, who he had previously been in a domestic relationship with, but with whom he continued on occasions to reside, saying 'fuck with me an I swear on my life I will hurt everyone involved here it comes', 'I got told how dirty you wear [sic] at the start I want my 10 bucks back or I'll burn ya car', 'you pushed and pushed I no(sic) you want a smack in mouth that's why you pushed and pushed so don't worry you know I give you want you want …'
Mr Baker also left a message on Ms X's answering machine that was abusive and included a threat to break her jaw.

The State's submission

The State says the proposed evidence is admissible because:
(a)It is evidence of the conduct of Mr Baker in previously using a telephone system to make abusive and threatening comments to another person.
(b)It is significant evidence to establish that Mr Baker did say the words alleged because it demonstrates he has a propensity to abuse and threaten other people and to use a telephone to convey that abuse and threats.
(c)It negates any defence that the words were said 'accidentally'.
(d)A fair‑minded person would think that the public interest in adducing all relevant evidence must have priority over the risk of an unfair trial and that any prejudice could be cured by direction to the jury.

The defence submission

The defence say:
(a)The 5 year time span between the 2008 incident and the 2013 incident deprives the evidence of any probative or significantly probative value.
(b)The incidents were different in nature in that the 2008 proposed evidence involved texts being sent to Mr Baker's former partner with whom he had, on that day, had contact with. The 2013 incident involves verbal statements allegedly made to a distant family acquaintance being Mr Baker’s former partner's sister's husband whom he had not contacted for approximately 2 1/2 years.
(c)The content of the messages are different, the 2008 incident involved references to 'I'll hurt everyone', 'I'll burn your car', 'I'll smack you in the mouth' (and a threat to break her jaw) which are said to be insulting and abusive rather than threatening, whereas the 2013 incident involves a threat to kill.
(d)The 2008 incident was isolated and distinguishable and could not be said to constitute 'conduct'.
(e)Even if it was propensity evidence, it lacked significant probative value due to the matters referred to above.
(f)Even if had significant probative value it should be excluded under the 'fair‑minded person' test.

Section 31A of the Evidence Act 1906

Section 31A of the Evidence Act requires the evidence to be:
(a)relationship and/or propensity evidence;
(b)have significant probative value; and
(c)the probative value of the evidence compared to the degree of risk an unfair trial must be 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 disputed evidence is evidence of the conduct of the accused and is propensity evidence and it is also evidence of a tendency that he has or had and is also relationship evidence. The definition of relationship and propensity are extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
In determining whether the evidence has significant probative value the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) (2011) 213 A Crim R 226 [35].
The evidence is of significant probative value if it is more than merely relevant and its probative value is important or of consequence, and rationally affects, directly or indirectly, the assessment of the probability of a relevant fact in issue to a significant extent and/or explains a statement or event that would otherwise appear curious or unlikely: Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 - 61 (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194; Stubley v The State of Western Australia [2011] HCA 7 [11].
The accused has not made any formal admission of any fact in issue and the State is entitled to present its case on the basis that all facts are in dispute. The State will need to establish inter alia that it was the accused who spoke and what words were used. The prohibitive value of the disputed evidence is to be taken at its highest from the prosecutions perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
The evidence sought to be adduced must be more than an isolated transient flare up of anger or annoyance which immediately passes away and leads to nothing: Barbour v The Queen (1939) 1 DLR 65, R v Clark (2001) 123 A Crim R 506.
The proposed evidence show that Mr Baker has a tendency to make threats of personal violence when angered and as such, is evidence of significant probative value because it is makes it more likely that he was the person on the phone and the events occurred as Mr Black alleges. The medium through which the threats were made, the exact nature of the threats and the manner of conveying the threats are not the defining issue, it is the fact that threats of personal violence were made by Mr Baker when angered which provides the significant probative value in relation to the issues before the court.
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: AJ v The State of Western Australia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.
Evidence can have significant probative value even though the acts are not identical or similar to the charged acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66], Onekawa [50] - [55].
The proposed evidence relates to threats to a person who, it is reasonable to infer, had angered Mr Black that day whilst the charged act, it is reasonable to infer, relates to a person who had angered Mr Black some time previously. However, the significant probative value is that it shows Mr Baker reaction to people who had angered him is to make threats of personal violence.
Neither the lapse of time nor the different manner in which the threats were conveyed nor the different nature of the threats detracts from the significant probative value of the evidence.
The proposed propensity evidence goes toward proving a fact in issue, namely that it was Mr Baker talking to Mr Black and the contents of that conversation were threatening. It is evidence of significant probative value because it makes it more likely that Mr Baker was the person on the phone and that call involved threats being made. It rebuts defence relevant to the identity of the caller and what was said.
Fair-minded people who are members of the public and not lawyers, and who have informed themselves at least of the most basic considerations relevant to arrive at a conclusion founded on a fair understanding of all relevant circumstances would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: Dair [66] (Steytler P).
The risk that the proposed evidence will be misused is that a jury will have a strong tendency to believe Mr Baker is guilty of the charge because they will reason he is a person likely to do such acts and will have a tendency to condemn because of his past convictions and may become confused or distracted as a result of the disputed evidence.
Any risk of the evidences misuse can be overcome by a jury direction about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39]. It is accepted that a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65]; Mansell v The State of Western Australia [2009] WASCA 140 [49].
For the jury not to be informed of the tendency of Mr Baker to make threats to persons whom have angered him, would lead the jury to consider his conduct in relation to the alleged offence as if it was a seemingly inexplicable or fanciful incident. In those circumstances, I consider fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I grant leave to the State to lead the disputed conduct evidence, however the references to burning the car and the accused's and Ms M's genitalia are irrelevant and prejudicial and ought not be led.