The State of Western Australia v Cross
[2015] WASC 61
•13 FEBRUARY 2015
THE STATE OF WESTERN AUSTRALIA -v- CROSS [2015] WASC 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 61 | |
| 13/02/2015 | |||
| Case No: | INS:152/2014 | 4 FEBRUARY 2015 | |
| Coram: | HALL J | 4/02/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce evidence refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ABRAHAM KEUNG CROSS |
Catchwords: | Criminal law Propensity evidence s31A Evidence Act 1906 (WA) Whether evidence of prior conduct relevant Whether evidence has significant probative value Whether risk of unfair trial outweighed by probative value of evidence |
Legislation: | Nil |
Case References: | Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ABRAHAM KEUNG CROSS
Accused
Catchwords:
Criminal law - Propensity evidence - s31A Evidence Act 1906 (WA) - Whether evidence of prior conduct relevant - Whether evidence has significant probative value - Whether risk of unfair trial outweighed by probative value of evidenc
Legislation:
Ni
Result:
Application to adduce evidence refused
Category: B
Representation:
Counsel:
Applicant : Mr J Mactaggart
Accused : Mr A E Eyers
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Accused : Anthony Eyers
Case(s) referred to in judgment(s):
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
1 HALL J: On 4 February 2015 I refused an application by the state to adduce evidence pursuant to s 31A of the Evidence Act 1906 (WA). I indicated at that time that reasons for my decision would be published in due course and would be suppressed until completion of the trial. The following are my reasons for the decision.
2 The accused is charged on an indictment containing two counts. Count 1 alleges that on 6 October 2013 at Doubleview the accused murdered Callum James Pinner. Count 2 alleges that on the same date and at the same place the accused, with intent to do grievous bodily harm to Harrison John Miller, unlawfully wounded Harrison John Miller. The accused has pleaded not guilty to those charges and the matter is listed for a trial commencing on 24 March 2015.
The prosecution case
3 The prosecution case is that in the early hours of the morning of Sunday 6 October 2013 the accused was present in the vicinity of a house in Doubleview where a party attended by a large number of young people was occurring. The accused was in company with Shaun Peter Donaldson. The accused and Donaldson began to behave inappropriately outside the party, making comments to some of the young men and women who were in attendance and shining torches in their faces. The accused and Donaldson were requested to leave the area but declined to do so.
4 The deceased, Callum James Pinner, was a guest at the party. The deceased spoke to the accused and a physical confrontation ensued in which punches were exchanged. Both parties moved from outside the house to a nearby intersection. The accused took out a 10 cm long knife and struck the deceased with it in a motion similar to throwing a punch. The deceased received a single penetrating wound to the neck. He immediately fell to the ground bleeding. He later died from the injury.
5 The accused and Donaldson fled the area pursued by other young people who had been at the party. One young man, Harrison John Miller, caught up with the accused and there was a struggle between them. The accused inflicted a wound to Mr Miller by striking him to the chest with the knife.
6 When later interviewed by police the accused admitted being involved in an altercation with guests from the party but denied inflicting the fatal wound to the deceased and denied being armed or being equipped with a knife or having a knife in his possession.
The s 31A application
7 By an application dated 12 January 2015 the State applied for an order that it be permitted to adduce evidence from Dylan Findlay Stickle, as contained in statements dated 7 November 2013 and 20 December 2013. In those statements Mr Stickle says that he met the accused about 12 months earlier. Mr Stickle's neighbours, Todd Spencer and Mr Spencer's girlfriend Sarah, introduced the accused. He did not know the accused well and met him only a few times in the following 12 months.
8 Mr Stickle said that in about March or April 2013 he was near Todd and Sarah's house when he saw a group of five or six children aged between 12 and 16 years at the front door. Todd and Sarah were present and started arguing with the group about something. One of the children said they would return to bash Sarah. The group left and a short time later the accused arrived on his skateboard.
9 About an hour later Todd asked Mr Stickle to come over to his place. Todd said that he believed that the group was planning to return and bash Sarah. It is not clear at what point the accused joined them, but Mr Stickle refers to him as being present at some point in this conversation. According to Mr Stickle both Todd and the accused said that if the group returned they were going to bash and kill them. He said that the accused said, 'Fuck it, I'll just shank them'. He said that the accused then made a fist with his thumb protruding between his middle and ring finger and threw a punch with his left hand whilst holding his skateboard in his right hand. The accused also said that he would hit members of the group with his skateboard.
10 Mr Stickle then left and returned about 30 minutes later. He saw both Todd and the accused crouched down behind a door. He said that on the floor next to Todd he saw a small machete and a pipe from a vacuum cleaner in his hand. He does not refer to the accused being armed. He told them that he had called the police. Both Todd and the accused said they did not care and that they were going to 'get the kids'. Mr Stickle said he did call the police but they did not attend. Nor did the group of children return. It is not suggested that any violence actually occurred on this occasion.
11 The State submitted that the conduct of the accused observed by Mr Stickle is similar to the conduct that the accused engaged in on 6 October 2013. It was submitted that evidence that the accused had previously expressed an intention or willingness to inflict a blow with his fist or skateboard on people younger than himself is of significant probative value as it indicates a preparedness on the part of the accused to use violence in circumstances where he finds himself in conflict or perceived conflict with younger people.
12 The State submitted that in considering issues including whether the accused inflicted the fatal stab wound and whether he acted in self-defence, evidence that he has expressed a preparedness to use violence against younger people in the past has significant probative value. The probative value was said to be such that when compared to the risk of an unfair trial, fair-minded people would think that it was in the public interest to adduce the evidence.
13 On behalf of the accused it was submitted that the events described by Mr Stickle are not relevant to the events on 6 October 2013. That evidence does not show a tendency, relationship or attitude on the part of the accused towards young people. The differences between the two incidents were referred to. These include the difference in ages of the young people concerned. In the first incident Mr Stickle said that the children were aged between 12 and 16 years old, the deceased and the other young people at the party on 6 October 2013 were in their late teens and earlier twenties. Another difference was that Mr Stickle does not refer to the accused being armed at any point nor does he suggest that the accused is in the habit of carrying a weapon.
Relevant principles
14 Section 31A of the Evidence Act confers on the courts the power to admit propensity and relationship evidence. In the present case the prosecution submits that the evidence of Mr Stickle is propensity evidence. Propensity evidence is defined in s 31A(1) as meaning:
(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.
15 Section 31A(2) states that evidence will be admissible under s 31A 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.
16 Both of those tests must be satisfied in order for the propensity evidence to be admissible. As regards the first test, in Dair v The State of Western Australia[2008] WASCA 72 [61] Steytler P said:
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
17 As regards the second test, Steytler P examined the comparison which s 31A(2)(b) requires in Dair. The points made by his Honour were subsequently referred to by Buss JA in Onekawa v The State of Western Australia [2012] WASCA 105 as follows:
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court, having already found under s 31A(2)(a) that the evidence has significant probative value, to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a person likely to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury [64]. Fourthly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues [66]. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J) [45].
18 The definition of 'propensity evidence' in s 31A(1) of the Evidence Act is wide and goes beyond what the common law understood by that category of evidence. It includes not just similar fact evidence but also evidence of the character or reputation of the accused or of a tendency that he has, as well as other evidence of the conduct of the accused person: Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [36]. However the evidence must, of course, be relevant. It must be evidence that could rationally affect, directly or indirectly, the assessment of the probabilities of the existence of a fact in issue in the proceedings. The evidence may explain an event that would otherwise appear curious or unlikely or may provide a context that is helpful or even necessary for understanding the narrative: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
19 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: Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [49] (Buss JA).
20 The fair-minded person referred to in s 31A(2)(b) is presumed to be a reasonable member of the general public who is not a lawyer but who has informed himself or herself of at least the basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances: Preston [42]. The court must decide in effect whether fair-minded people would think that the interests of justice required the admission of the evidence despite the risk of an unfair trial. A factor to be considered in determining the risk of an unfair trial is the effect of any direction that could be given in neutralise the risk: Preston [41].
The merits of the application
21 Whilst the evidence of Mr Stickle is evidence of conduct of the accused, it is difficult to see that it is relevant to any fact which could be in issue at the trial. The State conceded that the circumstances of the two incidents are different. Amongst the significant differences are the following:
(1) There is no evidence that during the earlier incident the accused was at any stage armed with or carrying a knife.
(2) The earlier incident involved no actual confrontation or violence. There is no suggestion that the accused ever saw the group of children concerned or made any direct threats towards them.
(3) Whilst the accused made some statements as to what he would do if the group returned, this was in the context of similar claims being made by Todd Spencer and on the basis of what he had been told about threats having been made regarding Mr Spencer's girlfriend. Their intentions appear to have been limited to being willing to use violence in the event that the group returned and tried to carry out the threatened attack.
(4) The events described by Mr Stickle occurred at least six months earlier. There is no suggestion that they were in any way connected with the events of 6 October 2013.
(5) The evidence is said to be relevant because it shows willingness on the part of the accused to use violence towards 'young people'. There is no suggestion that the accused has in fact used violence in such a context on previous occasions or has made threats with a knife, whether to 'young people' or otherwise.
(6) The age differences of the groups of 'young people' involved is such that it is difficult to suggest that they together form a recognisable part of society in regards to whom the accused has a particular attitude. The conduct of the accused is explicable as being a response to a reported threat, rather than as indicating a willingness to use violence to children as such.
(7) The context of the two incidents is markedly different. In the earlier incident the accused was offering to assist a person who was anticipating that his girlfriend would be attacked in their home. That bears no meaningful comparison to the alleged events of 6 October 2013.
22 The evidence of the earlier incident does not make it more or less likely that on 6 October 2013 the accused had a knife, used it to inflict the fatal wound on the deceased or was not acting in self-defence. In my view, the evidence of the earlier incident does not meet the test of relevance. Even if it did, it is not evidence with significant probative value. On the other hand the prejudicial effect if the evidence was admitted would be significant. I do not consider that the prejudicial effect could be effectively neutralised by directions. In my view, if this evidence was admitted the trial would be unfair. Fair-minded people would not think that the evidence should be admitted given the high risk that the trial would be unfair.
23 For these reasons I refused the State's application.
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