The State of Western Australia v Chamberlain - [2018] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CHAMBERLAIN [2018] WADC 82
CORAM:   BRADDOCK DCJ
HEARD:   11 JUNE 2018
DELIVERED          :   22 JUNE 2018
FILE NO/S:   IND 1911 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
COLIN PAUL CHAMBERLAIN

Catchwords:

Evidence - Admissions - Oral - Unrecorded - Admissibility - Propensity - Prior conviction - Cash found - Admissibility - Small quantity of cannabis - Relevance - Admissibility

Legislation:

Criminal Investigation Act 2006, s 118, s 155
Evidence Act 1906, s 31A

Result:

Oral statement, prior conviction, cash admissible

Representation:

Counsel:

Applicant	:	Ms S McCallion
Accused	:	Mr J J Scudds

Solicitors:

Applicant	:	Director of Public Prosecution
Accused	:	Porter Scudds Barristers & Solicitors

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

Dair v The State of Western Australia [2008] WASCA 72
Donaldson v The State of Western Australia [2005] WASCA 196
Wright v The State of Western Australia [2010] WASCA 199

JUDGE BRADDOCK:

Colin Paul Chamberlain faces an indictment alleging that, on 27 February 2017, at Haynes, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The trial in this court is listed on 25 September 2018.
On 11 June 2018 a number of issues came before the court for directions. These were the admissibility of:
1.an alleged oral admission by Mr Chamberlain during a conversation with his mother on 27 February 2017 at 1 Gray Road, Haynes.
2.evidence of a prior conviction of Mr Chamberlain on 20 December 2016.
3.evidence of $3,000 cash found at the premises during the police search.
4.evidence of a small quantity of cannabis material found at the premises during the search.

Background

On the morning of 27 February 2017, the police attended at premises at 1 Gray Road, Haynes, where Mr Chamberlain then resided. They found approximately 7.8 g and 27.2 g of methylamphetamine secreted in a container attached magnetically to a curtain rail in his bedroom. The methylamphetamine was contained in two separate clipseal bags. The police also located $3,000 in cash, weapons, ammunition, three glass smoking implements, a hard drive said to be for CCTV cameras.
The execution of the search warrant was recorded in the usual fashion by a video camera operated by one of the police officers. The $3,000 cash, green plant material, two glass smoking implements and scales were found in the master bedroom.
Upon arriving at the premises, police informed Mr Chamberlain that they held search warrants under the Criminal Investigations Act 2006 (CIA) and the Firearms Act 1973, they cautioned Mr Chamberlain, and advised him that he was under arrest on a charge not relevant to this indictment. He was advised of his right to contact a lawyer and he chose to exercise that right. He also wished to telephone his mother and did so. The officers went through his further statutory rights. Mr Chamberlain advised the officers that he had some savings in his jacket pocket in his room. He declared certain other items, irrelevant to these proceedings. The officers located the cash he directed them to, he told them it was about $3,000, and it was secured. The officers then explored the premises.
Mr Chamberlain attempted to contact his lawyer but was only able to leave a message. As a result, the officers told him that they would not ask him any questions about items located at the property until he had had the opportunity to get advice. Mr Chamberlain had advised his mother of what was happening. The search then proceeded. There were no admissions made during the course of it.
Towards the end of the process Mr Chamberlain's mother, Kay Wright arrived but remained outside. At about 12.45 pm, when Mr Chamberlain was about to be taken to Perth Police Station, he requested to speak to his mother. The evidence of the exchange with his mother which followed is contested. It is alleged that Mr Chamberlain and Mrs Wright were standing in close proximity to Detective Constable Ogg and Detective Sergeant Britton, when Mrs Wright questioned Mr Chamberlain as to what he had done. It is alleged that he said 'They found some amphetamines in my room' to which Mrs Wright responded 'how much?'. It is alleged that he said 'quite a lot'. She said 'Oh Colin, is anyone else involved?' to which it is alleged that he replied 'no, it's me, it is what it is'. This conversation was not recorded by any means at the time.
Mr Chamberlain was subsequently interviewed formally at the Perth Police Station. He made no admissions in relation to possession of the methylamphetamine. No mention was made at any time during that interview of the conversation with his mother.
Prior to these events, on 9 September 2016, other officers had executed a Misuse of Drugs Act search warrant at the same premises. During the search, police officers located a black magnetic canister attached to the top of the bathroom door frame. Inside that canister were two small clipseal bags containing approximately 1 g of methylamphetamine. The accused, when questioned under caution, made full admissions to being the owner of the drug and said it was for his personal use. He subsequently entered a plea of guilty and was convicted.

The oral statement

On 11 June 2018, counsel for the prosecution called evidence, on the voir dire, in relation to the alleged oral admission made by Mr Chamberlain. Detectives Ogg and Britton gave evidence.
Detective Ogg was the officer in charge of the investigation. He said that as the search was winding up, and whilst officers were still in the premises, Mr Chamberlain, his mother, himself and Detective Sergeant Britton were in the carport of the premises. Detective Ogg described the carport. The mother asked to speak to Mr Chamberlain alone. She was not permitted to speak to him alone. A conversation then ensued between Mr Chamberlain and his mother. Detective Ogg said in evidence‑in‑chief that the accused's mother asked if anyone else was involved and the accused said: 'No just me. It is what it is'. The search was concluded and the accused advised he was to be taken to Perth Police Station.
Under cross‑examination, Detective Ogg said that Mr Chamberlain did not refer to methylamphetamine but used the word 'drugs'. He said there was no mention of his room. This was demonstrated to be inconsistent with his statement of 5 May 2017. The officer referred to the fact that he had made notes in his daybook of the exchange.
During the voir dire, confusion arose in relation to three pages of notes in the possession of counsel for the prosecution, which had been disclosed very late to counsel for the defence. The problem did not emerge until the end of Detective Britton, the second witness', evidence. Officer Ogg was recalled, for further cross‑examination, on his notes. He said that he had made his notes in the daybook, as they were about to leave the premises in the police vehicle. He said further that there has been discussions between himself and 'the team', specifically Detective Sergeant Britton, as to what had been said by Mr Chamberlain, and the search generally. He accepted his statement was identical to the notes made by Detective Sergeant Britton. His note of the disputed conversation was an apparent addition to his notes, out of chronological order and recorded only the statement 'no just me', when his mother asked whether anyone else was involved.
Detective Sergeant Britton, the senior officer, said that he was a searcher during the execution of the warrants. Detective Ogg was the officer in charge. He confirmed that no admissions were made by Mr Chamberlain in relation to the methylamphetamine at any time during the search and that he was not questioned during the course of the search. After Mr Chamberlain's mother arrived, at around lunch time, she was initially kept separate. At the completion of the search, as they were preparing to depart, Mr Chamberlain requested to speak to his mother privately. He was not permitted to do so. However he did speak to his mother in the presence of the detectives. Detective Sergeant Britton said that the recording equipment had been packed for departure. The conversation took place as they were leaving the premises, walking towards the police vehicles in the driveway. He said that he, Detective Constable Ogg, Mr Chamberlain and his mother were present. The other officers were either loading or getting into the cars about 50 m away.
He said that Mrs Wright asked Mr Chamberlain what he had done. Detective Sergeant Britton said he was within 2 m of them. Mr Chamberlain then said that the police had found amphetamines in his room. His mother asked 'how much?' Mr Chamberlain responded 'quite a lot'. His mother asked 'was anybody else involved?' and Mr Chamberlain answered 'no, it's me. It is what it is'. Detective Sergeant Britton said after that nothing significant was said and he and the accused went to his vehicle. He made notes in his daybook within a few minutes of the conversation in the vehicle. He confirmed that he was present at the electronically recorded interview at the police station later. He had no further contact or conversation with Mrs Wright. He did not show Mr Chamberlain the notes he made.
Both officers confirmed that there was no mention of the alleged statements by Mr Chamberlain to his mother during the course of the interview or at any subsequent time. Detective Sergeant Britton said, when queried about this, that Mr Chamberlain made no admissions and such a statement would be put to him in what he called the 'challenge part' of the interview. However, they did not reach that stage. It emerged that the officers had spoken to each other about what was said, prior to interviewing Mr Chamberlain. Both officers confirmed that no statement was taken from Mrs Wright that there was no contact or attempt to take any statement from Mrs Wright.
The prosecution submitted that the verbal statement attributed to Mr Chamberlain amounts to an acceptance of involvement with, and sole possession of, the methylamphetamine found in the house.
The State seeks therefore to lead an unrecorded alleged admission by Mr Chamberlain (the oral statement). The first question which arises is whether the oral statement it is subject to the provisions of s 118 of the CIA. The State submitted that firstly, the oral statement was not an admission to a police officer and therefore s 118 did not apply. The State argued further that, if s 118 did apply, there was a reasonable excuse for the absence of audio visual recording. It was submitted that the oral statement by the accused was spontaneous and unanticipated by the officers. The equipment had been packed away after the search and they had not intended to question him at that stage. In the further alternative, the State relied upon s 155 of the CIA and sought admission of the oral statement in the discretion of the court, pursuant to that provision.
Counsel for Mr Chamberlain argued that there was no reasonable excuse for the failure to record the oral statement. Further, whilst the oral statement was allegedly made at the scene, there was no attempt on video subsequently to confirm it with Mr Chamberlain or to put it to him on video. He was not asked to check or adopt the notes made by the officers in the car. It was therefore submitted that the evidence was uncorroborated, and depended upon the police officers' recollections only. Further, there was video equipment available both at the scene and at the police station. It was argued that to admit the alleged admission would be unfair and remove Mr Chamberlain's right to silence by obliging him to call evidence to rebut the oral statement. Mr Chamberlain did not give evidence on the voir dire.

Admissibility of the oral statement

The State contends that s 118 has no application to this oral statement. Section 118 relevantly provides:
(1)In this section -
admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age;
child means a person who is under 18 years of age;
reasonable excuse, for the absence of an audiovisual recording of an admission, includes -
(a)the admission was made when it was not practicable to make an audiovisual recording of it;
(b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)the suspect did not consent to an audiovisual recording being made of the admission;
(d)the equipment used to make an audiovisual recording of the admission malfunctioned.
…
(3)On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)the evidence is an audiovisual recording of the admission; or
(b)in the absence of an audiovisual recording of the admission -
(i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii)the court decides otherwise under section 155.
(4)Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
The State relies upon the definition of 'admission' in s 118(1) being 'made by a suspect to a police officer'. There is no dispute that Mr Chamberlain was a suspect.
It was argued that the words in this case were spoken to Mr Chamberlain's mother, not to a police officer.
The State relies upon dicta in Wright v The State of Western Australia [2010] WASCA 199 where in considering this point, McClure P, with whom Buss JA agreed, said:
51The structure of the provision is as follows. Prima facie, evidence of an admission by a suspect is not admissible unless there is an audiovisual recording of the admission. The evidence will be admissible in the absence of an audiovisual recording if (1) the prosecution proves that there is a reasonable excuse for the absence; or (2) the court decides otherwise under s 155.
52Section 118 replaces s 570D of the Criminal Code which was considered by the High Court in Carr v The State of Western Australia (2007) 232 CLR 138 and Nicholls v The Queen (2005) 219 CLR 196. The explanatory memorandum for the Criminal Investigation Bill notes that s 118 substantially mirrors the previous provisions. Under s 570D evidence of any admission by the accused was not admissible 'unless the evidence is a videotape on which is a recording of the admission'. Videotape was defined as any videotape on which is recorded an interview. The term 'admission' in s 570D is the same as the definition in s 118(1). The term 'videotape' has been replaced in s 118 by the expression 'audiovisual recording' which is not defined. Thus the question whether the admission was made in an interview is no longer relevant. However, the definition of admission remains as one made by 'a suspect to a police officer'. The requirement must place some limitation on the scope of the exclusion. In its context, the meaning of 'to' is expressing motion or direction towards someone; that is the words or conduct was directed to a police officer.
53It is apparent from the heading and content of pt 11 in general that its primary focus is on the recording of an interview between a suspect and police which is invariably conducted in private with the attendant risk of police verballing a suspect. On the other hand, whether or not a suspect made an admission 'to a police officer' involves questions of degree and that expression should be given its broadest legitimate scope consistent with the statutory language and purpose of the Act.
54In this case the evidence of all persons present in the room was consistent, namely that the statements made by the appellant were directed at his cousin both physically and as a matter of intention; the appellant was explaining to his cousin why he was wanted by police. A statement made by a suspect to a third party in the presence of police would not in my view fall within the mischief which s 118 is intended to address. However, I will proceed on the assumption that the admission is not admissible because it was not recorded.
Counsel for Mr Chamberlain, on the other hand, relied upon dicta by Blaxell AJ in the same case, who took a broader view at [135] ‑ [141]:
135Quite obviously, when a police officer asks a question of a suspect and the suspect responds with an admission, that admission is made 'to' the police officer. However, there are a wide variety of other circumstances in which an admission can be made where the position is not so clear. For example, (as alleged in the present case) the admission might be made to a third person and overheard by the police officer. It may also be that the suspect making the admission is unaware that a police officer is present. A further possibility is that the admission is an involuntary exclamation or a musing out loud which is not directed towards any person at all. It should also be borne in mind that an admission need not be by spoken words but might be a physical act or other behaviour by the suspect. In light of the wide variety of possible circumstances, a question of construction arises as to what constitutes an admission made 'to' a police officer within the meaning of s 118.
136The word 'to' is a preposition which varies in meaning depending upon the context in which it appears. In the context of s 118, I consider it to mean an admission made by a suspect which is simply heard or observed by a police officer. For the reasons which follow, I also consider it unnecessary that the admission be directed towards a police officer, or that the suspect intend that it be heard or seen by a police officer.
137In this regard, the text of the Act and its legislative history point towards the purpose of encouraging the audiovisual recording of admissions, and of expanding (not restricting) the circumstances in which such recordings should occur (Carr [56]). A wide construction of the definition also promotes the underlying policy of minimising the opportunities for police 'verballing'.
138It can be assumed that such opportunities will only arise once a person becomes a 'suspect' (which no doubt is one of the reasons for subs (4)). Therefore it would be surprising if Parliament did not intend s 118 to cover all admissions made by a suspect in the presence of a police officer after that point in time. A narrower construction limiting s 118 to admissions made directly to a police officer would leave open considerable potential for abuse. All that would be necessary to avoid s 118 would be evidence that the admission was made to some third person or was not directed towards any person at all.
139In my view, the wider construction is also consistent with that part of the definition which refers to a suspect's 'acts or otherwise'. It is difficult to conceive in what way a physical act amounting to an admission can be made 'to' a police officer in the narrower sense, and only a wide construction can comfortably accommodate the full text of the definition.
140On the present appeal it is unnecessary to decide whether there can be an 'admission' (within the meaning of s 118) when the suspect is unaware that a police officer is present. However, I am inclined to the view (consistent with the reasons already expressed) that such admissions fall within the ambit of s 118.
141In arriving at this wider construction I have not overlooked the word 'made' in the definition. Although this word (in combination with 'to') could be construed as requiring that the admission be directed towards a police officer, I consider that in the context of the provisions as a whole, it simply means the bringing into existence of the admission.

The observations of McClure P and Blaxell AJ in Wright were obiter. The appeal did not determine construction of 'admission' in s 118(1) of the CIA.
The determination of the admissibility at trial of the oral statement does, in this case, require as a first step, a determination of the applicability of s 118 CIA. The evidence clearly establishes there was no recording of it.
Counsel for Mr Chamberlain argued that s 118 imposed a strict statutory regime for the recording of admissions, aimed at the mischief of alleged or impugned police verbals in serious criminal investigations.
The legislation, formerly in s 570D of the Criminal Code and now in s 118 of the CIA, together with improving technology has limited the occurrence of disputes in criminal cases about alleged oral 'confession' or verbals by police officers.
Statements said to be incriminating made to third parties, in the presence of police officers are not commonly seen in these courts. Wright is the only appellate authority in this jurisdiction to consider the matter. Legislation in other States provides similarly but not in identical terms, for the recording of admissions in criminal investigations.
The context, in this case, is that the investigating officers had, pursuant to warrants, lawfully searched Mr Chamberlain's home. The statutory requirements on the arrest of a suspect had been complied with.
The officers informed Mr Chamberlain that they would not ask him questions about the items found during the search, until he had received legal advice. I accept the evidence that, at the conclusion of the searching process, just prior to departure with the officers, either Mr Chamberlain or his mother made a request to speak to each other privately. The officers' evidence differed as to who made the request and that is immaterial for present purposes. I accept that this was not permitted, but nevertheless there was a short conversation between the two, in the presence of Detectives Ogg and Britton. I accept that the officers were in close proximity to Mr Chamberlain and his mother at the time, that they did overhear the exchange and that it would have been obvious that the officers would overhear what was said. They took no part in it. There are other differences between the officers' evidence as to the precise location of the conversation, which again do not require resolution for present purposes.
Mr Chamberlain did not give evidence on the voir dire, but cross‑examination of Detective Ogg (although not Detective Sergeant Britton) suggested that Mr Chamberlain accepts that a conversation occurred, but that the words spoken were different and exculpatory. I do not need to make a final determination of the words spoken. The State's case, at its highest, would evidence a significant inculpatory statement, if admissible. It is obvious that the officers regarded the exchange as significant, by their actions in noting it in their daybooks.
The definition of admission requires that any statement be 'made to' a police officer. I respectfully agree with McClure P that this requirement must place some limit on the exclusion in s 118 of the CIA. I agree that its construction imports words directed towards a police officer. This is consistent with the overall purpose of the legislation to regulate criminal investigations and, specifically in s 118 of the CIA, the interviewing or questioning of suspects. Whilst I agree that the provision should be given its broadest legitimate scope, and there are questions of degree as noted in [53], the statutory words are plain English and clear: 'made to'. They do not imply that everything alleged to be an admission uttered in the presence of officers falls within s 118 CIA in all circumstances.
The evidence before me was that Mr Chamberlain was talking to his mother. He was answering directly questions posed by her, not by the officers, and what he said was directed to her and to her enquiries. I do not consider this falls within the mischief which s 118 was intended to address. I conclude that Mr Chamberlain's oral statement was not made to a police officer(s) but to his mother and thus does not fall within the provisions of s 118. Prima facie, therefore, the oral statements are relevant and admissible.
Had I taken the contrary view, I would need to consider whether there was any reasonable excuse for the failure to record what was said.
In the circumstances, I conclude that there were sufficient reasons for the lack of audiovisual recording at the time:
1.the search was over and the officers were leaving;
2.the equipment was packed or being packed away (I accept Sergeant Britton in this regard); and
3.the officers had no reason to anticipate Mr Chamberlain would make any admission as they had determined not to question him until he had legal advice, and he had effectively said nothing during the search.
There is no excuse for not inviting Mr Chamberlain to confirm what he said when he was interviewed formally by the same officers at 2.00 pm the same day. The reason given for not putting to him a question about the exchange with his mother does not make much sense. There is no legitimate restriction requiring the officers to wait until a late stage to raise the oral statement allegedly made previously. It is a matter of speculation what response they would have received, and perhaps it is unlikely that any inculpatory statement would have been subsequently confirmed. However, I do not consider that the absence of such subsequent enquiry vitiates retrospectively the excuse for the absence of audiovisual recording at the time.
I conclude that had s 118 of CIA been applicable, there would have been a reasonable excuse for the absence of an audiovisual recording of the oral statement. Events subsequent do not remove that excuse in these circumstances, however they may have relevance to any consideration of its exclusion on an alternate basis.
Section 155 of the CIA permits the admission of otherwise inadmissible material. As I would have admitted the evidence, either way, it is unnecessary to consider the discretionary provision in s 155 CIA.
Finally, I must consider whether there is any other basis to conclude that the oral statement should be excluded. Counsel for Mr Chamberlain effectively relied upon the 'unfairness' discretion. The authorities in this area are well established and were usefully summarised by Blaxell JA in Wright [115] ‑ [117]:
115Once the prosecution proves that a confession was made voluntarily, it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities a 'substantial reason' why the confession should be excluded in the exercise of the court's discretion (Lee (152 - 154)). There are three possible bases for a discretionary exclusion of a voluntary confession. These are that it is unfair to the accused to admit the confession, that public policy considerations make admission of the evidence unacceptable, or that the prejudicial effect of the statement outweighs its probative value (R v Swaffield (1998) 192 CLR 159 [51]). The focus of the unfairness discretion is on the rights of the accused whereas the public policy discretion is concerned with matters of public interest. The third discretion focuses on the probative value of the evidence and guards against a miscarriage of justice (Swaffield [52]). Depending upon the particular circumstances, these various considerations may well overlap (Swaffield [74]).
116The unfairness discretion is not concerned with whether the police acted unfairly, but with whether it would be unfair to the accused to use his confession against him (Lee (154); Van der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10, 26). The prime concern of the unfairness discretion is the potential unreliability of the confession, but it is not the only concern. There may be unfairness to the accused because the confession might not have been made at all, or might have been made in a different form, if the interrogation had been conducted properly (Van der Meer (20); Swaffield [71]).
117The line between the unfairness and public policy discretions is sometimes blurred (Swaffield [54]). This is because the question of unfairness is often taken into account in the exercise of the public policy discretion (Bunning v Cross (1978) 141 CLR 54, 74 - 75). However, unfairness is only one of the relevant factors in the exercise of this discretion which focuses on broader questions of 'high public policy' favouring the exclusion of any evidence which has resulted from unlawful or improper conduct by police (Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202 (Deane J)).
In my view, there is no need here to consider directly the issue of public policy. The officers here did nothing to induce or procure the oral statement. To the contrary, up to the point that Mrs Wright spoke to her son, the officers had determined not to question him and followed the statutory requirements in all other respects. Thus, the oral statement formed no part of a police interrogation or interview.
Accordingly, the issue is whether it would be unfair to Mr Chamberlain to use the oral statement against him - the first possible basis of exclusion referred to in Swaffield. The third discretion, often expressed as 'whether the prejudicial effect outweighs its probative value' is easily answered.
The prejudicial effect of the oral statement is its character as an admission to sole possession of the drugs. That is also its probative value. It does not prejudice Mr Chamberlain in any additional tangential or unrelated manner. The issue is simply whether it is unfair to use the evidence against him.
The circumstances are that:
1.he had been cautioned, and advised of his rights by the time he spoke to his mother, several times;
2.he knew it was not a private conversation as there were two detectives standing in close proximity;
3.the officers took no part in the exchange;
4.he had been told the officers would not question him until he received legal advice;
5.there is no suggestion that his judgment or faculties were impaired at the time; and
6.he was not alone, obviously, with the officers.
In this scenario, I cannot conclude that it is unfair to admit the oral statement. It may be challenged at trial. What precisely was said and its significance will be matters for the jury to determine.

Propensity evidence

I turn now to the application by the State to lead evidence of a prior conviction of Mr Chamberlain at his trial. The prosecution case on the indictment is that the accused was in possession of 35 g of methylamphetamine found as described previously in these reasons. The prior conviction on 20 December 2016 related to the finding of 1 g of methylamphetamine at the same premises, on 9 September 2016.
The State argued that this conviction was admissible as circumstantial evidence, to support an inference that Mr Chamberlain was able to obtain and possess methylamphetamine. Although there was evidence, in both instances, that the drug was found in a container which was magnetically attached to a location by way of concealment, it was not suggested that the circumstances were sufficiently similar overall to be admissible as similar fact evidence at common law. In the absence of such striking similarity, the circumstance is that Mr Chamberlain had previously been convicted of and in possession of a small quantity of methylamphetamine. It is my view that the prejudicial effect of such evidence would outweigh its probative value and it should not be admitted, at common law.
However, the application is also made pursuant to s 31A of the Evidence Act 1906. The act defines propensity evidence to include 'similar fact evidence or evidence of other conduct of the accused or evidence of the character or reputation of the accused person or a tendency that the person has or had'. In the application before me, it was not argued that the evidence of the prior conviction did not satisfy this definition. It is manifestly evidence of other conduct of Mr Chamberlain and a tendency that he has to possess methylamphetamine.
Section 31A, however, requires additionally that the evidence have significant probative value. Further the probative value of the evidence compared to the degree of the risk of an unfair trial must be a such that a fair‑minded person would think that it was in the public interest to adduce all the relevant evidence of guilt over the risk of an unfair trial.
The State submitted that the prior conviction shows that the accused has a tendency to possess methylamphetamine and to conceal it around his home in canisters. Further, it is said to be significantly probative as it goes to the issue of possession and would tend to negative any innocent explanation of the presence of methylamphetamine in Mr Chamberlain's home.
Section 31A has been considered in detail on a number of occasions in the Court of Appeal of Western Australia. I do not propose to repeat again all that has been said by the Court of Appeal. The law was set out in counsel's submissions and there is no dispute as to the applicable principles. Under s 31A the first question is whether the evidence proposed to be led is relevant: Donaldson v The State of Western Australia [2005] WASCA 196 [118]. Clearly, in this instance, the evidence has that character. It is relevant material which if accepted might assist in the proof of the offence on the indictment or some particular element of it. It is capable logically of contributing to proof of the offence: Dair v The State of Western Australia [2008] WASCA 72 [260]. The evidence has significant probative value by reason of the fact that it is the same drug as that alleged on the indictment, it was found concealed in a magnetic container attached, in the case of the prior conviction, to the bathroom doorframe, and, in the case of the indictment, to a curtain rail in the accused's bedroom. It is probative in that it establishes a link with methylamphetamine, a tendency to conceal it at his home, and the prior drugs were found only five months prior to the events the subject of the indictment. It would assist in rebuttal of any suggestion of a third party having hidden it, for example.
The critical issue in this case is the test set out in s 31A(2)(b). Counsel for Mr Chamberlain submitted that the evidence posed a significant risk of unfairness and opposed it on the basis of that risk.
The risks on the admission at trial of a prior conviction are that either, the jury might overestimate the significance of the evidence and give it too much weight, or the jury might reason inappropriately, that because of the past conduct the accused was guilty; ie the evidence might raise a bias against an accused person.
In my view, the evidence of the prior conviction is admissible pursuant to s 31A of the Evidence Act. The evidence does satisfy the test and fair‑minded people would think it should be admitted in the public interest. Any potential risk of prejudice can be addressed by way of an appropriate direction to the jury as to the proper use of the evidence at trial.
There is no particular difficulty about the manner in which the evidence is to be proved, nor is there any dispute as to the fact of the conviction, or the underlying elements of it.

Other evidence

Objection was taken to the State leading the evidence that the police also found $3,000. It was suggested that there was an innocent explanation for the possession of the $3,000 and that it was prejudicial to the accused to admit in evidence in the circumstances. It was argued that it would distract the jury as a side issue. I am not persuaded that the evidence should be excluded on that basis. There is evidence in the prosecution brief that Mr Chamberlain received payments into his bank account in excess of $4,000 in the few days prior to the execution of the search warrant. Counsel for the defence referred to this evidence, and to the fact that no charge has been laid in relation to the cash, as he said might be anticipated. Counsel for the prosecution pointed out that the bank statements obtained by the police showed deposits from a government department into the account but did not show any cash withdrawals of that order of magnitude. Accordingly, the character of the $3,000 is in issue.
In my view, the finding of a large sum of cash at the same time and in the same location as a significant quantity of methamphetamine is admissible as circumstantial evidence at the trial of an accused for possession of the drugs with intent to sell or supply. It might be construed together with other evidence, as evidence of dealing in drugs for reward. Appropriate directions would, in my view, deal with any issue that arose about the bank evidence or the appropriate inferences to be drawn. Accordingly, the evidence of the finding of the cash is admissible. It is logically relevant to an issue in the trial.
Finally, objection was taken to the admissibility of the evidence that the police found a small quantity of cannabis at the premises during the same search that revealed the 35 g of methamphetamine. It is suggested on behalf of the State that the presence of the cannabis is circumstantial evidence which demonstrates that the accused was able to access and source prohibited drugs.
The possession of a small quantity of cannabis found at the same time that the officers discovered the significant quantity of methamphetamine has limited if any probative value on this indictment. It does not follow that the ability to obtain cannabis indicates the same ability with methylamphetamine, particularly in these quantities. It is prejudicial and has very limited, if any, probative value. For that reason it should be excluded. The State submission as to its relevance was far too vague to be of any persuasive force.
Some further consequential amendments may be required to the search and interview videos. I do not understand counsel to anticipate any difficulty in that regard.
Accordingly, on these various applications the rulings are:
(i)The oral statement allegedly made by Mr Chamberlain to his mother is admissible.
(ii)The evidence of the finding of $3,000 is admissible.
(iii)The evidence of the prior conviction is admitted pursuant to s 31A of the Evidence Act.
(iv)The evidence of the finding and any other evidence in relation to cannabis at the accused's premises is inadmissible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
ASSOCIATE TO JUDGE BRADDOCK
21 JUNE 2018