The State of Western Australia v Brennan
[2015] WASC 214
•12 JUNE 2015
THE STATE OF WESTERN AUSTRALIA -v- BRENNAN [2015] WASC 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 214 | |
| Case No: | INS:330/2014 | 26 MARCH 2015 | |
| Coram: | CORBOY J | 12/06/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Evidence of past convictions ruled inadmissible | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ANTHONY JAMES BRENNAN |
Catchwords: | Criminal law Evidence Propensity evidence Whether past convictions admissible to prove a tendency to offend in a particular way |
Legislation: | Evidence Act 1906 (WA), s 31A |
Case References: | Preston v The State of Western Australia [2012] WASCA 64 Asplin v The State of Western Australia [2013] WASCA 72 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 LFG v The State of Western Australia [2015] WASCA 88 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ANTHONY JAMES BRENNAN
Respondent
Catchwords:
Criminal law - Evidence - Propensity evidence - Whether past convictions admissible to prove a tendency to offend in a particular way
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Evidence of past convictions ruled inadmissible
Category: B
Representation:
Counsel:
Applicant : Mr B E F Tooker
Respondent : Mr J I Brash
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Asplin v The State of Western Australia [2013] WASCA 72
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
LFG v The State of Western Australia [2015] WASCA 88
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
1 CORBOY J: The State alleges that:
(a) on 25 April 2014, at Swanbourne, Mr Brennan stole from Fatima Maria Correia Delane, with violence, a motor vehicle, namely a Toyota MR2 sedan, registration number 1ECG 754, the property of Fatima Maria Correia Delane;
(b) on 26 April 2014, at Leederville, Mr Brennan stole unleaded petroleum the property of Caltex Australia Ltd trading as Caltex Star Mart Leederville;
(c) on 26 April 2014, at Floreat, Mr Brennan stole from Pau Goak Chin, with threats of violence, money, the property of Pau Goak Chin and that he was armed with a dangerous or offensive weapon or instrument, namely a tyre lever.
2 The trial of those charges is listed to commence on 22 June 2015. The State has applied for an order that it be permitted to lead evidence of the conduct of Mr Brennan relating to offences contained in INS 120 of 2009 in respect of which he pleaded guilty in the Supreme Court at Perth on 5 November 2009. Mr Brennan opposes that application.
3 The indictment in INS 120 of 2009 alleged that:
(a) on 17 January 2009, at Northbridge, Mr Brennan stole from Sunarto Toho, with violence, a Honda Accord motor vehicle the property of Sunarto Toho, and that he was armed with an offensive weapon, namely a screwdriver;
(b) on 17 January 2009, at Subiaco, Mr Brennan stole from Carly Yvette Nunn, with threats of violence, a handbag and contents the property of Carly Yvette Nunn, and that he was armed with an offensive weapon, namely a screwdriver.
4 The State contends that evidence of the circumstances in which those offences were committed is admissible as propensity evidence pursuant to s 31A of the Evidence Act1906 (WA).
The statements of material facts
5 The facts alleged by the State for the purpose of the application are as stated in the statements of material facts included in the prosecution brief.
6 It is alleged in relation to the first charge on the indictment that at 3.05 pm on Friday, 25 April 2014, Ms Delane was seated in the driver's seat of her Toyota MR2 sedan. The vehicle was parked at the Swanbourne Beach carpark. Ms Delane had been to lunch with friends at a restaurant at the beach. She had returned to her car and was checking her mobile phone when she saw a man, who the State alleges was Mr Brennan, open the passenger door of her vehicle. The man sat down on the passenger seat and said to Ms Delane, 'Start the car and drive.'
7 Ms Delane opened the driver's side door and began screaming for help. The man pushed Ms Delane from the vehicle, causing her to fall to the ground. He then moved across to the driver's seat, started the vehicle and drove off at speed from the carpark.
8 The car was subsequently located on the night of 26 April 2014 in Thomas Street, Subiaco. A resident in a nearby property had contacted the police. The resident had given a description of a man loitering at the side of her house. Police conducted a patrol of the area and apprehended Mr Brennan. The vehicle's car keys were found in a bush next to where Mr Brennan was arrested.
9 The facts alleged by the State in respect of the second charge on the indictment are that at 6.07 am on Saturday, 26 April 2014, a man drove Ms Delane's Toyota MR2 sedan into the Caltex Star Mart service station located in Vincent Street, Leederville. The man, who the State alleges was Mr Brennan, pumped $67 worth of fuel into the vehicle. He then returned to the vehicle and left the service station without making any attempt to pay for the fuel. The incident was captured on CCTV cameras located at the service station.
10 The facts alleged by the State in respect of the third charge on the indictment are that at 4.17 pm on 26 April 2014, Ms Chin withdrew $1,000 in cash from an automatic teller machine located at the Floreat Forum shopping centre. A man, who the State alleges was Mr Brennan, drove past Ms Chin in Ms Delane's Toyota MR2 sedan. The man then reversed the vehicle and parked adjacent to the teller machine that was being operated by Ms Chin. The man approached Ms Chin, who had just placed the cash inside her handbag. He stood directly behind Ms Chin and held the tyre lever against her stomach. He said, 'Give me what you have.' Ms Chin panicked and grabbed a handful of cash from the money that she had withdrawn. The man said to Ms Chin, 'Don't draw any attention. Hurry up.' Ms Chin handed $500 to the man. He then removed the tyre lever from her stomach and returned to the Toyota motor vehicle.
The facts of the previous offences
11 Mr Brennan did not dispute the facts alleged by the State for the purpose of sentencing on the two offences contained in the indictment in INS 120 of 2009. At about 2.40 pm on Saturday, 17 January 2009, Mr Brennan was in the Citiplace carpark situated in Roe Street, Northbridge. The complainant and a passenger drove into the carpark and proceeded to level 3. The vehicle was stopped at level 3 due to traffic on that level. The complainant noticed Mr Brennan approaching his vehicle from behind. He feared that something was about to happen and attempted to lock the doors of his vehicle. However, Mr Brennan managed to open the driver's door before it could be locked. Mr Brennan produced a large screwdriver from a shopping bag that he was holding. He held the screwdriver in such a way as to convey the impression that he was about to stab the complainant. He told the complainant to leave his valuables and the car. He demanded that the complainant's passenger also get out of the vehicle.
12 Mr Brennan then leaned forward and began patting the complainant's right leg with his left hand and discovered the complainant's wallet was in his pocket. He yelled at the complainant to get out of the car. There was a further exchange between the complainant and Mr Brennan and Mr Brennan then stabbed the complainant with the screwdriver. Mr Brennan threatened the complainant's passenger, demanding that she leave her purse in the car and that she get out of the car. The complainant managed to grab the screwdriver from Mr Brennan and to punch Mr Brennan to the left eye. A struggle then ensued between the complainant and Mr Brennan and eventually Mr Brennan managed to pull the screwdriver from the complainant's grip. Mr Brennan then lunged at the complainant in an attempt to stab him with the screwdriver.
13 Mr Brennan then got into the driver's seat of the complainant's vehicle and pulled the driver's door shut. The complainant opened the driver's door and Mr Brennan lunged at him again with the screwdriver. Mr Brennan then accelerated the vehicle away and, on reaching the exit of the carpark, smashed through the barrier.
14 Later that afternoon, Mr Brennan parked the stolen vehicle across the footpath in Barker Road, Subiaco. The complainant in relation to count 2 of the indictment was walking along the footpath and, as she approached the vehicle, Mr Brennan opened the driver's door. The complainant proceeded to walk past the vehicle when Mr Brennan approached her from behind and grabbed the complainant's right arm and spun her around so that she was facing him. He was holding a screwdriver which he raised to the complainant's face and said, 'Give me your fucking bag.' He then snatched the complainant's handbag from her right arm and stepped backwards while still pointing the screwdriver at the complainant's face. He got back into the stolen vehicle and drove away.
The State's submissions
15 The State contended that the facts of Mr Brennan's previous offences disclosed that he had a tendency to commit robberies in a particular manner - to steal motor vehicles with violence; to commit two robbery offences shortly after each other; to use the vehicle the subject of the first robbery in the second robbery; to threaten women in daylight for cash and to use weapons to threaten people. The relevance of evidence of that alleged tendency was said to lie in forensic evidence to the effect that DNA matching Mr Brennan's profile was recovered from the steering wheel of Ms Delane's vehicle, on an envelope located in the vehicle and the keys to the vehicle. It was submitted that evidence that Mr Brennan had been previously involved in a crime of a 'similar nature in a similar location' would negate any suggestion that his DNA was deposited on those items 'other than because [he] was the offender' (State's outline of submissions, par 92). Further:
Placing the evidence of the accused's previous robbery offending before the jury would help show that any claim that the accused was merely a passenger in the vehicle at some point, or drove the vehicle other than when these offences occurred, is implausible because he has previously demonstrated a tendency to commit a robbery in order to steal a motor vehicle and then use that same motor vehicle to commit a subsequent armed robbery on a prior occasion (State's outline of submissions, par 93).
16 It was contended that the probative value of the evidence had to be assessed against the likelihood that identity would be a significant fact in issue at the trial. It was submitted that the likelihood of Mr Brennan's DNA being found on three separate items located in or connected with Ms Delane's vehicle, together with the tendency that his past convictions demonstrated, made it 'highly unlikely' that Mr Brennan was not the offender (State's outline of submissions, par 95). Any risk of an unfair trial arising from the admission of evidence concerning Mr Brennan's past convictions could be prevented by an appropriate direction similar to that suggested by Mazza JA in Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [31].
Mr Brennan's submissions
17 Counsel for Mr Brennan accepted that identity would be the primary issue to be determined by the jury at the trial. Further, it was conceded that the evidence that the State proposed to adduce was propensity evidence and that it possessed significant probative value. However, it was submitted that evidence of Mr Brennan's past offending was so overwhelmingly prejudicial that fair-minded people would think that it was not in the public interest to permit the evidence to be presented. Further, it was observed that:
There are many criminals who steal cars with violence. It is also submitted that there are many instances where two robbery offences occur shortly after each other and also many instances where a motor vehicle has been stolen in the course of one offence and then used in following offences. It is also submitted that there are many criminals who threaten women in broad daylight for cash and also many criminals who use weapons to threaten people.
There was nothing unique about the way in which the accused went about his offending in the charges to which he pleaded guilty in 2009. It is suggested that there is nothing unique about the method in which the offences were alleged to have been committed in relation to the current matters (respondent's outline of submissions, pars 15 - 16).
18 Finally, it was contended on behalf of Mr Brennan that the evidence of his past offending would cause the jury to uncritically overvalue the evidence and to act illogically by reasoning that because he had engaged in similar criminal conduct in the past he must be guilty of the current offences. It was said that the evidence would 'overwhelm the jury' and that 'no directions as to the law could cure the prejudice that will flow' from the admission of the evidence (respondent's outline of submissions, pars 19 - 20).
The relevant principles
19 Section 31A of the Evidence Act requires the court to be satisfied about three matters. First, the evidence must be either propensity or relationship evidence or both. As Mazza JA observed in Asplin v The State of Western Australia [2013] WASCA 72 [30], the definitions of those terms in s 31A are extraordinarily wide in scope. Propensity evidence embraces not just similar fact evidence, but also evidence of the character or reputation of the accused person or of a tendency that he or she has or had as well as 'other evidence of the conduct of the accused person'.
20 Second, the evidence must, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. 'Significant' means 'important' or 'of consequence'. The test in s 31A(2)(a) will be satisfied if the court considers 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: LFG v TheState of Western Australia [2015] WASCA 88 [290] (Buss JA). Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.
21 Third, the probative value of the evidence must be such that, when compared to the degree of risk of an unfair trial, 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. This requires a court to weigh the probative value of the evidence against the risk that the trial will be unfair as a result of the admission of the evidence. The question is not what the presiding judicial officer would think, but what the hypothetical fair-minded person would think. The fair-minded people to which the section refers are reasonable members of the general public who are not lawyers, but who have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all of the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66] (Steytler P).
22 Counsel for Mr Brennan noted that Steytler P referred in Dair to three forms of possible prejudice where similar fact evidence was sought to be introduced (at [63], where his Honour cited with approval the analysis of Geoffrey Flatman QC and Dr Mirko Bagaric in 'Non-similar fact propensity evidence: Admissibility, dangers and jury directions' (2001) 75 Australian Law Journal 190, 199):
(a) a tendency to believe that the defendant is guilty of the charge merely because he is a person likely to do such acts;
(b) a tendency to condemn, not because the accused is believed guilty of the charge under consideration, but because he had escaped punishment from other offences;
(c) the risk that the jury might become confused or distracted as it concentrated on resolving whether the accused had actually committed the similar acts.
23 Steytler P further noted that the court will take into account any directions that might be given to the jury when assessing the risk of an unfair trial. It must, however, be kept in mind that the very purpose of adducing propensity evidence or evidence of a tendency or other conduct is to show that the accused person is the sort of person who is likely to have committed the offence with which he or she has been charged.
Ruling
24 Two observations about the parties' submissions are, in my view, relevant to the determination of this application. First, the submissions made on behalf of Mr Brennan concerning the frequency of the type of offending for which he was convicted in 2009 are, with respect, more relevant to the question of whether evidence of Mr Brennan's past offending has significant probative value than to the issue of the prejudice that may result if the evidence was admitted. Second, as has been noted, the question of whether the evidence has significant probative value depends upon the fact in issue to which it is relevant and the significance or importance that the evidence, either by itself or having regard to other evidence proposed to be adduced, has in proving that fact.
25 In this instance, the State contends that the evidence would be relevant to rebut any 'claim that the accused was merely a passenger in the vehicle at some point, or drove the vehicle other than when these offences occurred, is implausible'. Accordingly, the State's application anticipates a 'claim' by the accused in light of the forensic evidence concerning DNA samples recovered from Ms Delane's vehicle and items associated with the vehicle.
26 Mr Brennan did not participate in an electronically-recorded interview. Consequently, it is not clear whether he will make the claim that the State anticipates in its application. It is tempting to leave the question of the admissibility of the evidence until the trial to determine whether the claim that the State anticipates is, in fact, made. However, I am unable to identify any witness who must be cross-examined in a way that would raise the issue in the State's case. It may be that the claim could be first made after the close of that case. The State might then be prevented from adducing the evidence (assuming that it was otherwise admissible) on the ground that it was splitting its case.
27 However, there are more fundamental problems with the State's application. There is already in the prosecution brief evidence that Mr Brennan may have driven Ms Delane's car on at least one occasion other than when the vehicle was stolen or allegedly involved in the commission of an offence. Mr Kos states that he saw the vehicle at a beach carpark in Hillarys late on the afternoon of 26 April 2014. He saw a man get into the vehicle and drive away. The State's case must be that Mr Brennan was the person seen by Mr Kos. Although Mr Kos stated that the driver of the vehicle had been acting suspiciously, Mr Brennan has not been charged with any offence in relation to the incident and Mr Kos does not describe the man he saw committing a criminal act.
28 The police connected Mr Brennan to Ms Delane's vehicle following an incident that allegedly occurred on the evening of 26 April 2014. Detective Flanagan states that he attended an address in Thomas Street, Subiaco, as a result of a dispatched incident report. He entered a complex in Thomas Street and noted a car that bore the registration number of Ms Delane's vehicle. The vehicle had been described in the dispatched incident report as having been stolen in Swanbourne. He and Detective Collins approached the vehicle, which was empty. The vehicle was secured and arrangements were made for the vehicle to be towed.
29 Detective Flanagan then commenced a doorknock, as a result of which he spoke to Ms Samantha Coffey. Ms Coffey described an incident involving a male person moving around the side and back of her house. Ms Coffey stated that the man had walked off in the direction of Kings Park Road and she had called the police. Detective Flanagan then ran towards Kings Park Road and encountered a male who identified himself as Mr Brennan. When questioned by Detective Flanagan, Mr Brennan allegedly stated, 'I didn't steal any cars.' Detective Flanagan then commenced to search Mr Brennan and, while that was occurring, another police officer advised that she had located a set of car keys in the walled garden bed where Detective Flanagan had first encountered Mr Brennan.
30 Mr Brennan was not arrested and charged in relation to any event that occurred on the evening of 26 April 2014.
31 Consequently, evidence of Mr Brennan's past offending has little probative value in rebutting any claim that Mr Brennan drove the car 'other than when the offences occurred'. There is evidence in the prosecution brief that Mr Brennan may well have driven the vehicle on occasions that are not the subject of any charge - at and from the beach carpark to Subiaco. Evidence of Mr Brennan's past offending cannot rebut the possibility that the DNA allegedly deposited by him in Ms Delane's car, on the car keys and on the envelope was secreted on those occasions; conversely, evidence of his past offending cannot assist in proving that the DNA was deposited when the vehicle was stolen or allegedly used in the commission of the other offences with which Mr Brennan has been charged.
32 That leaves the possibility that the evidence is admissible generally on the issue of identity. However, in my view the evidence proposed to be adduced by the State does not have significant probative value notwithstanding the concession made on behalf of Mr Brennan. That is substantially for the reasons advanced on behalf of Mr Brennan regarding the frequency of the kind of offending for which Mr Brennan is to be tried (albeit that those submissions were directed to the question of prejudice).
33 The issue in Dair was identity. The appellant had four previous convictions for offences that were said to establish a tendency to offend in a way that was similar to the circumstances of the offence for which he was to be tried (a tendency to steal cars and to violently attempt to evade arrest if subsequently confronted and pursued). Steytler P and Miller JA held that the evidence of the appellant's past offending did have significant probative value. However, Steytler P noted that evidence that the accused had in the past stolen motor vehicles and sought to evade arrest did not possess significant probative value:
'[e]xperience reveals that there are many criminals who steal cars and subsequently attempt to evade arrest, if pursued. The fact that the appellant was one of these (and it is not suggested that there is anything unique about his modus operandi) did little to establish that he committed the present offence. As I have said, what it did was include him in a class of persons who were more likely than others to have committed an offence of this kind. However, given that the class very probably encompasses a large number of people, that, of itself, could not carry a great deal of weight [70].
34 His Honour then noted that evidence that the appellant had a tendency to resort to violence when challenged narrowed the class of persons to whom the appellant might belong. However, even that evidence, by itself, would be of 'limited value' [71]. What made the evidence admissible in this instance was that witnesses had 'picked out (albeit tentatively) a man who belonged to the smaller class …The fact that the appellant was a member of this class made it more likely that these witnesses had picked out the right man' [72].
35 The third member of the Court of Appeal in Dair, E M Heenan AJA considered that the evidence of the appellant's prior offending did not have a significant probative effect. That was because the type of offending in which the appellant had engaged in the past was a common form of criminal conduct [275].
36 In my view, the observations of Steytler P and E M Heenan AJA in Dair regarding the lack of probative value in evidence of past offending of a kind that represents a common form of criminal conduct apply in this instance. I do not consider that evidence of the facts of Mr Brennan's offending in 2009 have significant probative value within the meaning and for the purpose of s 31A. That is especially so as the State relies on only a single episode to prove the alleged tendency (two offences which together are said to demonstrate the tendency).
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