The State of Western Australia v Crowe
[2014] WASC 335
•18 SEPTEMBER 2014
THE STATE OF WESTERN AUSTRALIA -v- CROWE [2014] WASC 335
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 335 | |
| 18/09/2014 | |||
| Case No: | INS:224/2013 | 2, 3 & 10 SEPTEMBER 2014 | |
| Coram: | SIMMONDS J | 10/09/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for permission to lead evidence dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA VINCENT MARTIN CROWE |
Catchwords: | Criminal law and procedure Propensity evidence Accused charged with murder Admissibility of entry in notebook Significant probative value Degree of risk of unfairness at trial Comparison of that value and that risk |
Legislation: | Criminal Code (WA), s 279 Evidence Act 1906 (WA), s 31A |
Case References: | Bratty v Attorney-General for Northern Ireland [1963] AC 386 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 Ninyette v State of Western Australia [2012] WASCA 184 Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 The State of Western Australia v Henare [2007] WASC 291; (2007) 180 A Crim R 175 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
VINCENT MARTIN CROWE
Respondent
Catchwords:
Criminal law and procedure - Propensity evidence - Accused charged with murder - Admissibility of entry in notebook - Significant probative value - Degree of risk of unfairness at trial - Comparison of that value and that risk
Legislation:
Criminal Code (WA), s 279
Evidence Act 1906 (WA), s 31A
Result:
Application for permission to lead evidence dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D L S Davidson
Respondent : Ms J G Fordham
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Fordham & Roast
Case(s) referred to in judgment(s):
Bratty v Attorney-General for Northern Ireland [1963] AC 386
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Ninyette v State of Western Australia [2012] WASCA 184
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
The State of Western Australia v Henare [2007] WASC 291; (2007) 180 A Crim R 175
- SIMMONDS J:
Introduction
1 This is an application by the State in the course of the prosecution of the accused (the application). The accused is charged by indictment (the indictment) that, contrary to Criminal Code (WA) (Code) s 279, he committed the offence of murder. The trial is listed for six days, to commence on 6 October 2014. The State's application is for an order that certain evidence be adduced at the trial by the State (the evidence). The basis of the application is that the evidence is 'propensity evidence' admissible under Evidence Act 1906 (WA) s 31A.
2 As I announced at the hearing on 10 September 2014, I have concluded that the application should not be granted. The following are my reasons.
3 In these reasons I first describe the matter the subject of the present indictment.
4 Then I describe the State's application in more detail and the evidence to which that application relates.
5 Next, I describe the applicable legal principles, including the statutory background relevant to determining that application.
6 I then apply those legal principles.
7 The concluding section of these reasons contains my conclusions and orders.
The matter the subject of the indictment
8 The indictment, INS 224 of 2013, is dated 27 May 2014. It reads:
On 10 February 2013 at Scarborough Vincent Martin Crowe murdered Kenyon Freedom Meyler.
9 The statement of material facts for the offence of murder thus charged reads as follows:
The victim in this matter is 21 years of age, approximately 175 cm tall and of slim build.
The accused in this matter is 32 years of age, approximately 180 cm tall and of medium build.
Late Saturday 9 February 2013 to the early hours of Sunday, 10 February 2013 the victim was at a 'rave' at Gilkisons Dance Studio, Perth with a group of friends. The accused was also in attendance at the 'rave' and was associating with the victim and his friends as he knew one of the males in the group.
Later that morning the group of people, including the victim and the accused, caught taxis to Unit 3, 19 Helmsley Street, Scarborough.
At the address members of the group continued to socialise and consumed alcohol. Later that day a friend of the accused (Witness MURPHY) attended the address and socialised with occupants at the address.
While MURPHY was at the address he and the victim had a minor verbal altercation.
Between the hours of 1400 - 1450 hours on Sunday, 10 February 2013 the accused and the victim were inside the premises situated at Unit 3, 19 Helmsley Street, Scarborough.
During this time the victim was seated in the dining area of the premises. The accused attended the kitchen area and located a black handled kitchen knife with a silver blade, the blade of the knife approximately 20 cm in length. The accused approached the victim without warning and in a jabbing motion used the knife to stab the victim once to the right upper neck area causing a deep laceration. This caused the victim to bleed profusely from the wound.
As a result Police and St John Ambulance were called to the address where the victim was conveyed to the Sir Charles Gardner Hospital for medical treatment. The victim was subsequently admitted to the Intensive Care Unit for medical treatment. The victim never regained consciousness. At about 9:30pm on Saturday, 16 February 2013 the parents of the victim along with treating medical staff made the decision to turn off life support to the victim. The victim was declared life extinct at 12:08am on Sunday 17 February 2013.
On Sunday 10 February when police attended the scene the accused was located a short distance away being treated by paramedics due to an altercation in the street after the stabbing. The accused was conveyed to hospital where he sought medical treatment.
On Monday, 11 February 2013 the accused participated in a video record of interview where he stated that he had no recollection of the incident.
The accused was initially charged with With Intent to do Grievous Bodily Harm Does Grievous Bodily Harm to another. As a result of a post-mortem conducted on the deceased the cause of death was identified as being 'Penetrating wound to the neck'. As a result the present charge has been preferred.
10 The accused before me accepted the statement of material facts, for the most part. It was put to me that any disagreement was not material to the argument on the application. This was save that evidence will be presented at any trial on the indictment that the accused had consumed illicit drugs on the night in question.
11 I particularly note the electronic record of interview (EROI) with the accused commencing at 2.19 am on 11 February 2013, the early morning after the incident in question. That EROI was played before me, having earlier become exhibit 1. I note the following from it.
12 The accused indicates to the police that he had consumed a quantity of alcohol, in the form of one or more of beer, spirits and wine, on the night and the following morning before the incident in question, including at the residence at which the incident happened.
13 The accused also indicates to the police that on that night, about half-way through it, he had been given a pill and had also sniffed a white powder, known as 'meow meow', the latter of which he could remember affecting him.
14 The accused further indicates that he was unable to recall anything over a period of eight to 10 hours after sniffing the meow meow, in the early hours of the morning, including the incident in question and its aftermath, and that his recollection of other events surrounding the incident in question was patchy.
15 I further note that at the trial, as was explained before me, there will be evidence from a chemist that a blood sample, taken from the accused sometime after the incident in question. However the blood sample received for analysis on 3 April 2013, showed him to have a blood alcohol level consistent with heavy intoxication at the time of the incident in question, but did not indicate the presence of the drug mephedrone, the pharmacological term for the drug with the street name 'meow meow'. At the same time, the delay in receipt of the sample, and uncertainty as to the conditions of storage of the sample in the meantime, considered with the high instability of mephedrone, meant that it was unlikely, if mephedrone had been taken, that any detectable levels would have been present when the sample was analysed.
16 In addition, as was explained before me, at the trial there will be evidence from a pharmacologist/toxicologist that, while that person had no clinical experience of those under the influence of mephedrone, the literature and his understanding of the effects of methylamphetamine, which had similar effects, showed the following:
(1) Mephedrone works more quickly when sniffed than when taken orally.
(2) Alcohol enhances the stimulant effects of mephedrone, with the prominent effects of co-intoxication being impulsivity, indifference to risk and propensity to anger, aggression and violence.
(3) By contrast, painkillers, the presence of which in the accused's blood was indicated by the analysis of the sample referred to, of the sort so indicated, would diminish the stimulation effect of Mephedrone.
(4) Unless the overall intoxication became severe enough to engender delirium, the intoxicated person would retain an understanding of what they were doing and insight into the possible consequences, although they would not properly weigh the consequences when making a decision to act or not to act.
(5) Delirium is a final common fate of many severe intoxications. The state of delirium has effects on understanding, capacity to form intent and capacity to act that is similar for all intoxicants. However, alcoholic delirium or delirium from stimulant intoxication is a state of disintegrated understanding, diminished awareness and weakened physical control. As well as taking away the capacity to form intent, delirium also takes away the capacity for any sort of sustained and purposeful action and prevents the formation of memories about events occurring during the delirium.
The violence exhibited by a delirious person is typically primitive and momentary. The violence is most commonly a simple, ill-aimed punch, push or slap. If there is evidence of even rudimentary organisation, that would argue against the presence of delirium. In that respect, evidence of the accused walking from the lounge area to the kitchen area, getting a knife and then going to the deceased and stabbing him, leaving almost immediately thereafter, would be inconsistent with a diagnosis of delirium.
18 It is not in dispute that the only substantial issue at the trial will be whether the accused had the intent necessary for one of the two forms of murder in Code s 279(1)(a) or (b). Those provisions read as follows:
279. Murder
(1) If a person unlawfully kills another person and -
(a) the person intends to cause the death of the person killed or another person; or
(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person ...
the person is guilty of murder.
19 The application is dated 27 May 2014 and is in the following terms:
The Applicant applies for an Order that that [sic] -
The letter written by the accused be adduced at trial by the State.
The letter is evidence of:
(1) A propensity for violence by the accused with a knife; and/or
(2) Illustrates a state of mind of the accused whilst under the influence of alcohol and/or drugs.
21 In support of the application the State provided written submissions dated 7 August 2014 (the State's written submissions). In opposition to the application that accused provided written submissions dated 13 August 2014 (the written submissions for the accused).
22 The evidence being the 'letter' the subject of the application was on 13 February 2013 located and seized by police with other items in a bag owned by the accused.
23 An audio-visual record of the search was played before me and became exhibit 2. It was put in through Detective Sergeant Mark Wayne Williams. Detective Williams played an active role in the investigation. He was one of the police officers who executed the search warrant. He gave other evidence before me.
24 It is not in contest that the 'letter' had been handwritten by the accused. The circumstances in which it was written and left in the bag were the subject of evidence from the accused before me which I will shortly reach.
25 The terms of the 'letter' were as follow: its terms as well as its spelling and spacing have been reproduced without alteration, save that I have numbered the paragraphs as below for convenience in making reference to it.
What evidence from past experienses leads me to belive that I pysicaly cannot drink alcohol?
[1] I dont remember many times were I stopped after one night I almost always drink for a second or tird day.
If I go out for one night when I wake up the next morning the first thing I think about is going back on the drink.
[2] I very often drove cars while I was drinking
[3] When I came off drugs for a couple of months all I did was drink alcohol I couldn't handle reality
[4] While I was drunk I kiked a mans door in I had a Stanley Knife and I wanted to cut him gladley he wasnt there but afterwards he badly beat me up
[5] When Im drunk I end up in stolen cars I end up drinking with crowds of people who are younger than me
[6] I have been on holidays with friends and family and I dont remember much about it. I went away with my brother and a few friends when I was around seventeen I drank all my money in a few days and my brother had to Keep giving me money I just wanted to Keep getting pissed about 2 years later we went on holidays again and basically the same thing happened
26 It may be seen that the evidence is that the 'letter' was in fact an entry in an otherwise blank 'Marbig' brand folder or notebook. It is not in contest that the form of that entry is not a letter, lacking as it does an addressee, and that the accused did not present the entry, such as by showing it or reciting its terms, to any other person or persons. I understood counsel for the State was content to accept the characterisation of the letter as a 'notebook' entry. I will employ that characterisation from this point forward. A photocopy of the notebook entry became exhibit 3.
27 Before me the accused was sworn and gave evidence. He testified that the matter in paragraphs [1] to [6] were notes he prepared in response to the question in the unnumbered paragraph asked by the organisers of the meetings of those who attended the meetings. The accused explained the notes as having been taken in the early stages of the period of just over three months he spent attending on a daily basis meetings of Alcoholics Anonymous (AA) at various locations in Perth. He had taken those notes drawing on what he called 'war stories' told by participants at the meeting which he found, as he variously put it, 'good', 'great' and, ultimately, 'interesting' (ts 57 - 58). He testified that in fact he never read out or otherwise spoke at the meetings in any of the terms of the notebook entry (ts 54 - 55, 57).
28 He testified that much of what appeared in the notebook entry was in large part based on those 'stories' told by others at the meeting, and not his own or entirely his own experiences. He testified that he had used the first person in the notebook entry as he had considered using the accounts he described so as to be better accepted at meetings at which such stories or stories like them were told by many of the participants.
29 As to the matter in the paragraph [1] this was similar but not entirely 'true' for him (ts 58). I understood the principal lack of truthfulness for him to be to the extent the paragraph indicated he always drank on Sundays having started on a Friday.
30 As to the matter in the paragraph [2] this was not 'true' for him (ts 58).
31 As to the matter in the paragraph [3] this was 'partly true' for him (ts 59). He had been in rehabilitation in a residential facility in Ireland for 10 months in 2008, and after leaving that facility he had ceased using drugs altogether, and not drunk alcohol for a period of close to 12 months, before resuming his use of alcohol, soon after resumption finding himself to be drinking to an extent he had found problematic. That problematic drinking was that which had led him to undertake the attendance at AA meetings, for about three months, starting in July of 2012, about four months after moving to this country from Ireland. That problematic use was what he identified as 'binge drinking', beginning Friday nights and including at least some Sundays, to the point where on occasion he had blacked out.
32 As to the matter in paragraph [4], this was not true for him (ts 59). It came from what he had heard as to a similar story of criminal activity. He testified that when he drank he was 'a happy drunk', who did not become aggressive (ts 59). At the same time, he had been involved in physical fights in his early teen years, between about 13 and 15. His fights subsequently were, he testified, fights in the sense of arguments.
33 I note there is a difficulty with the construction of paragraph [4] in a respect which received some emphasis in closing submissions for the State. It is not clear from the context whether the adverb 'gladly' with qualifies what precedes it ('I wanted to cut him') or follows it ('he wasn't there'). The State put to me that the first was the appropriate reading, while for the accused it was put that the second was the appropriate reading, or at least as appropriate a reading.
34 As to the matter in paragraph [5] this was not true for him (ts 60). He had heard stories like it told at the meetings.
35 Finally, as to the matter in paragraph [6], this was 'basically true' for him (ts 60).
36 The accused testified that he had seen his notes as a way of being more accepted amongst people who told stories of that kind. However, he testified he had never used those notes because he had come to know participants who had told him not to tell 'war stories' but rather to talk about himself. After writing the notes, and a few weeks after beginning going to the meetings of AA, he had indeed spoken at a meeting or meetings of his binge drinking and his black outs.
37 In cross-examination, it was put to the accused on several occasions that his account as to the untruth of various paragraphs was not accurate, and that in fact each of the paragraphs was true.
38 In particular, the accused's attention was drawn to particular passages in the transcript of exhibit 1, as corrected by counsel to the State, either with the agreement or without disagreement from counsel for the accused, which it was said were at odds with what appears in the notebook entry. While I accept there is some difficulty in reconciling the two, I am not satisfied that that difficulty is such that I, or indeed a jury, could not find the account as to the truth of the various paragraphs a credible one.
39 It was also put to me that the accused's inability to remember the names of those whose stories he had drawn on as he testified to also tended to cast doubt on his testimony as to the truthfulness of the notebook entry. However, I do not draw any significance for that purpose from that inability. This is given the conditions of relative anonymity at AA meetings to which the accused testified.
40 Further, it does not seem to me that the account of the truth or the lack of truth of various paragraphs in the notebook entry is so lacking in plausibility such that I, or indeed a jury, could not find that account credible. In that regard, I note the account the accused provided of what occurred at AA meetings he attended, including the similarity of the stories as told by those there with no or minimal mediation or facilitation with one another and/or with the notebook entry.
41 At the same time, I do not consider that I am in a position to conclude that the account of the accused as to the truthfulness (or the lack thereof) of the various paragraphs in the notebook entry is truthful. It is a matter that, as submitted to me by counsel for the State, should be left to the jury were the evidence is to be adduced before them.
42 This has implications for the application of the applicable legal principles, as I will indicate.
43 I further note that the State in closing submissions accepted that the paragraph [2] and the paragraph [6] were not part of what the State was pressing for permission to adduce. Neither paragraph, the State said, was relevant of itself to affect an issue, and, as I understood their submissions, they were prejudicial.
44 The State further indicated that the principal paragraph of the notebook entry for the purposes of the application was paragraph [4].
45 Counsel for the accused put to me that redaction of those portions of the notebook entry would itself create a prejudice in terms of the jury's ability to understand and assess the evidence in the notebook entry.
46 My overall conclusion makes it unnecessary for me to reach a final view on the submission of counsel for the accused, but I should indicate that I am considerably attracted to it. In my view, assessing the truthfulness or otherwise of the remaining portions of the notebook entry would be very much assisted by, and arguably could not properly proceed without, the jury having the redacted portions.
47 I turn now to the applicable legal principles.
The applicable legal principles
48 Evidence Act 1906 (WA) s 31A is as follows:
31A. Propensity and relationship evidence
(1) In this section -
propensity evidence means -
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
…
(2) Propensity evidence ... is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
49 On the authorities cited to me on the application of these provisions I take the following propositions to be established:
1. A determination by a trial judge to admit evidence under Evidence Act s 31A(2) is one of law, not of discretion. If the trial judge concludes that the evidence has significant probative value, and that fair minded people, comparing its probative value to the risk of an unfair trial, would think the public interest in producing relevant evidence of guilt must have priority over the risk of an unfair trial, then he or she is bound to admit it: see Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [60] (Roberts-Smith JA, Wheeler & Pullin JJA agreeing).
2. The definition of propensity evidence in Evidence Act s 31A (1) is extraordinarily wide, going beyond what the common law understood by that category of evidence, embracing not just similar fact evidence, but also evidence of the character or reputation of the accused or of a tendency that he or she has or had, as well as 'other evidence of the conduct of the accused person': see Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [36] (Mazza JA, Martin CJ & Buss JA agreeing); see also Di Lena [52] (Roberts-Smith JA). The evidence does not need to fall within the category of similar evidence, let alone strikingly similar evidence: see Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [120] - [122] (Roberts-Smith JA, Wheeler JA agreeing).
3. The evidence in question must be relevant before it can be admitted into evidence. This means it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of fact in issue in the proceeding: see Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] (Steytler P), which I note was quoted in Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] (Buss JA, Martin CJ & Mazza JA agreeing).
4. The evidence in question must also be of significant probative value, meaning it must be such as could rationally effect the assessment of the probability of the relevant facts and issues to a significant extent: ie, more is required than mere relevance but less than a substantial degree of relevance. It is a probative value which is important or of consequence. Significance of the probative value of the 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 an establishing the fact: see Dair [61] (Steytler P), which I note was quoted in Daniels [47] (Buss JA).
5. Evidence Act s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value: see Dair [62] (Steytler P), as described in Daniels [50] (Buss JA).
6. The risk of an unfair trial includes the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude that an accused must have committed the offence charged simply because he or she has committed other offences, or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning: see Donaldson [127] (Roberts-Smith JA).
7. When assessing the risk of an unfair trial for the purposes of Evidence Act s 31A(2)(b) the court will 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: see Dair [64] (Steytler P), as described in Daniels [50] (Buss JA).
8. However, it is important to bear in mind in respect of the matter of directions that, when propensity evidence is admissible as such, because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: see Dair [64] (Steytler P); see also Daniels [94] (Buss JA), referring to Dair [64] among other authorities, and explaining that by 'standard propensity warning' it is meant 'a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3], and also explaining that the reason a standard propensity warning is not required is that 'the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged'.
9. At the same time, a particular warning might be required in the circumstances of the individual case. Whether such a warning is required, and its terms, will depend upon those circumstances: see Dair [65] (Steytler P).
10. Having identified the probative value of the evidence, and the degree of risk of an unfair trial, the court must make the comparison referred to in Evidence Act s 31A(2)(b). That comparison requires an assessment to be made whether fair-minded people would think that the interests of justice require the admission of the evidence despite the risk. For that purpose fair-minded people are to be regarded as reasonable members of the general public who are not lawyers and who have informed themselves of at least the most basic considerations relevant to arriving at their conclusion founded on a fair understanding of all the relevant circumstances: see Dair [66] - [67] (Steytler P), referred to in Daniels [50] (Buss JA).
50 With respect to proposition 6 above, I note [63] in Dair (Steytler P), as follows, referring to, among other authorities, Cross on Evidence (7th Aust ed, 2004):
Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199, identify a threefold prejudice (only part of which is present in this case) involved in the introduction of similar fact evidence, as follows:
1. 'The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts' (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: 'it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing')). This comes down to the belief that the jury will over-estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:
'research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted [Ibid at 322].'
2. 'The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences' (Wigmore … p 650). Thus, 'there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged' (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: 'sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest' [Ibid]. In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
3. 'The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts' [Ibid]; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512).
(See also Heydon (at [21135] - [21150]).)
- See now Cross on Evidence (9thAust ed, 2013) [21135] - [21150] (to the same effect as the 7th Aust ed paragraphs cited).
51 Neither of the other two members of the court in Dair referred to [63] in the reasons of Steytler P. Nor have I been able to find any reference to that paragraph in any other decision of the Court of Appeal, and after I raised the matter with them counsel did not direct me to one.
52 However, the reasons of the other two members of the court in Dair do not give me any reason to conclude that they took any issue with what appears in [63].
53 In my view I should take Dair [63] as a statement of three possible forms of risk of an unfair trial from admission of propensity evidence. I am unable otherwise to account for the contents of that paragraph in its context. I note, of course, that the article from which quotation is taken is on the law sometime before the enactment of Evidence Act s 31A. Nor does the quotation use language in s 31A of 'risk of an unfair trial'. However, in view of that context, and especially the use of 'prejudice' in Dair [64], Dair [63] should, as I have indicated, be taken as a statement of the kind referred to.
54 It will be evident from proposition 3 above that a fact or facts in issue in these proceedings must be identified by the State for the purposes of the application of Evidence Act s 31A. The fact in issue in this case is the intention with which the accused engaged in the conduct which caused the death of the victim.
55 On the submissions for the State that evidence is capable of being seen as of conduct of the accused intended to be the use of violence with a knife towards men even when the accused was affected by alcohol or drugs or both. The State referred for this purpose to The State of Western Australia v Henare [2007] WASC 291; (2007) 180 A Crim R 175 [25] (Murray J) which I agree offers support for those submissions.
56 On those submissions, as I understood them, the evidence is 'propensity evidence' within Evidence Act s 31A, in either of two ways. First, the evidence is 'propensity evidence' within s 31A(1) 'propensity evidence' (a) by being similar fact evidence. Second, the evidence is 'propensity evidence' within s 31A(1) 'propensity evidence' (b) by being evidence the accused has or had a capacity to intentionally use violence with a knife towards men even when affected by alcohol or drugs or both, that is, the accused is or was capable of being in control of his faculties even when affected by alcohol or drugs or both.
57 Counsel for the State also directed me to Cross on Evidence (9th Aust ed, 2013) [21200] and in particular Bratty v Attorney-General for Northern Ireland [1963] AC 386, 410 (Lord Denning). I accept that that paragraph and that authority offer support for the State's submissions in both respects.
58 I have previously indicated that the submissions of the State focus attention on the incident with the Stanley knife to which the notebook entry refers. While this is evidence of a single incident, I accept that evidence of a single incident is capable of being propensity evidence. At the same time whether evidence of a single incident has significant probative value is capable of being affected by how proximate in time the incident was to the alleged offence, and whether or not anything of a similar nature had occurred at any other time. I refer for this view of the law to Ninyette v State of Western Australia [2012] WASCA 184 [34] (Murphy JA), [1] (Buss JA agreeing), [37] (Mazza JA agreeing).
Application: 'propensity evidence'
59 I consider on the submissions of the State that I have referred to that the evidence was propensity evidence.
60 I did not understand counsel for the accused to advance submissions against the conclusion that the notebook entry was 'propensity evidence'. In any event, I do not consider such a submission should be upheld for the reason I have just given.
Application: relevance
61 Whether the evidence was relevant was in sharp contest before me.
62 It was put to me, by counsel for the accused, that the notebook entry went to the use of alcohol and not the use of alcohol and drugs. Consequently it was not relevant to this trial's issues.
63 I disagree. The notebook entry's relevance lies in relation to negativing the suggestion that the accused, by reason of his consumption of a substantial quantity of a substance with stimulant effects, like alcohol, at or about the time of the alleged offence, did not have the capacity to form, or otherwise lacked, the intention referred to in either of Code s 279(1)(a) and (b) and, as paragraph [4] particularly indicated, could still remember detail even after such consumption.
Application: significant probative value
64 The fourth proposition of law above focuses attention on the nature of the fact in issue to which the evidence is relevant, and on the significance or importance which the evidence may have in establishing that fact.
65 The nature of the fact in issue to which the evidence is relevant is as I have indicated of central significance in this case. Intention is the only substantial issue at the trial. It is not in contest that the accused's case will be, or include, that the evidence of the accused's consumption of alcohol and drugs at or about the time leading up to the commission of the alleged offence will leave the jury with a reasonable doubt as to whether the accused had an intention within Codes 279(1)(a) or (b). That reasonable doubt will arise because the evidence will tend to indicate the accused had no capacity to form such intention or otherwise had no such intention.
66 Counsel for the accused put to me that it could not be determined the notebook entry had significant probative value given the difference in the circumstances described in the notebook entry, being the general focus on alcohol alone, and in paragraph [4] the presence of premeditation and planning of a kind not evident in the present case. That is to say, as I understood the submission, the notebook entry did not have significance or importance in respect of the issue I have identified sufficient to warrant the description of it as having 'significant probative value'.
67 I disagree. I do so in view of the pharmacological/toxicological evidence as to the stimulant effects of alcohol and the fact that I am unable to exclude the possibility the notebook entry was truthful in full.
68 However, in my view the degree of significance or importance the evidence may have in establishing the fact of intention is open to considerable question.
69 I approach this matter on the assumption that the evidence in the notebook entry is truthful in its entirety. I return to that assumption shortly.
70 The evidence is not clear as to the time of the incident with the Stanley knife. The incident with the Stanley knife did not involve the completion of the act indicated as intended. The immediate background to that incident was consumption of alcohol, with consumption of drugs being significantly more remote in time. Finally, there is no indication in the evidence or otherwise that anything of a similar nature to that incident had occurred on any other occasion.
71 In respect of the last point, I note that the State put to me that, unlike the incident to which the evidence in Ninyette related, the incident here was a recognisable mode of behaviour. By this it was meant that the incident with the Stanley knife should be seen in the context of other matters in the notebook entry as tending to suggest the accused was generally aware of, and could later recall, his behaviour when he was affected by alcohol or drugs or both.
72 However, on my analysis of the evidence, that characterisation of the incident with the Stanley knife as a recognisable mode of behaviour is not at all clear. The notebook entry does not describe what the effect on the accused was of his consumption of drugs, either alone or in conjunction with his consumption of alcohol. I note, of course, that the notebook entry does indicate the consumption of alcohol had not prevented him driving or ending up in stolen cars, or recalling in some detail the incident with the Stanley knife. Further, he recalls he had been away with his brother and a few friends when he was 17, and had been away again about two years later, when events had unfolded as he described them.
73 However, in that last respect there are in his evidence before me indications the accused was told by others of how he had conducted himself when intoxicated and he could not himself remember, and it is not clear from the notebook entry paragraph [6] whether he could remember the matters there or was told of them by others. The possibility he was told of these matters by others is in my view confirmed by his reference to being on holidays with friends and family in relation to which he says 'I don't remember much about it'.
74 The question and lack of clarity I have referred to are relevant not only to the probative value of the evidence but also to the matters I reach next, of the degree of risk of an unfair trial, and the conclusion fair-minded people would draw from the comparison of the two.
75 Further, if it is accepted, as I consider it is open to do for the reasons I have previously explained, that the evidence in the notebook entry is not true or entirely true as testified to by the accused, there is of course a difficulty with assessing the notebook entry as having significant probative value and also as to the matters I reach next.
Application: degree of risk of unfairness at trial
76 I first address that degree without taking into account any directions that might be given to the jury by the trial judge, and the likely effect of those directions on the jury. Then I take those directions and that effect into account.
77 In my view, the nature of the risk without taking those directions into account is of a two-fold character. First the jury might, by reason of the evidence, convict the accused as a result of bias against him which would taint the jury's decision, bias resulting from the evidence because of the discreditable character of what it indicates about the accused. Second, the jury might be confused or distracted as it concentrated on attempting to answer the question or to resolve the lack of clarity: see Dair [63] (Steytler P).
78 Counsel for the State put to me, as I understood his submissions, that while directions might be necessary to insure against possible prejudice of those kinds, the possible prejudice was likely to be slight, as it was unlikely the jury would overweigh the evidence or come to the bias described. This was in view of the character of the evidence, as a statement of relatively less serious conduct, and, in the case of paragraph [4], of intention with limited results.
79 I disagree. The degree of that risk before taking those directions into account is considerable. The degree lies in the level of the possibility the jury would not properly weigh the evidence having regard to the question and lack of clarity I have referred to. That risk is considerable because the question and the lack of clarity are in my view both of considerable significance. Both go to the significance or importance of the evidence to the issue likely to be the only substantial issue in the trial and because of this both in my view require careful attention.
80 The last matter, of the careful attention that the question and the lack of clarity call for, would, in my view, tend to call for directions from the trial judge. Such directions would, it seems to me, remind the jury of the purpose of the admission of the evidence and the need to properly weigh it.
81 Properly weighing it would, as put by counsel for the State, depend on the judge having directed the jury to have regard to it only as a part of all of the evidence that they might find of assistance in determining whether to infer the relevant intention in accordance with the criminal standard.
82 The jury would as part of those directions be reminded of the need in respect of the evidence, as for all other evidence, not to allow any emotional reactions to the evidence, such as of condemnation, to enter into their deliberations. The jury would further be reminded it was not part of their task to answer the question or resolve the lack of clarity.
83 It is strongly arguable, in my view, that directions tailored in those ways to the purpose for which the evidence is being admitted and to overcoming the prejudice from such admission would be necessary if the evidence were admitted under Evidence Act s 31A. At the same time, I do not indicate a final conclusion on that point: see on whether directions of such a tailored kind might be necessary Dair [65] (Steytler P).
84 Further, in my view it would also be necessary, depending on the evidence in respect of the notebook entry as it emerged at trial, for the direction to draw the jury's attention to the accused's case as to the lack of truthfulness of parts of the notebook entry.
85 However, it is not enough to describe directions that might be given. It is necessary for me to take into account their likely effect on the jury: see Dair [64] (Steytler P).
86 In my view, directions of the kind I have described, particularly given the nature of the issue to which the evidence is relevant and the nature of the evidence itself, are not likely to overcome the two-fold risk to which I have referred. The central importance of the issue, and the character of the evidence as coming from the accused and indicating discreditable conduct with significant points of similarity if not identity to his conduct in the present case, would, in my view, make it unlikely directions could be arrived at that would achieve that end.
87 That unlikelihood would only increase to the extent the directions also went, as in my view they might well need to go, to the matter of the truthfulness or otherwise of the notebook entry.
88 I turn now to the conclusion that fair-minded people would draw from a comparison of the probative value of the evidence and the degree of risk of an unfair trial, as I have identified those two matters.
Application: the comparison of that value and that degree of risk
89 In my view, fair-minded people would note the question and lack of clarity referred to, including the matter of the truthfulness or otherwise of the notebook entry, as qualifying the probative value of the evidence. They would do this while also taking account of the substantial significance of the issue to which the evidence is relevant.
90 In my view fair-minded people would also have regard to the degree of risk of prejudice I have described that remained after account was taken of directions addressed to overcoming that prejudice.
91 In my view, on that comparison fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: see Evidence Act s 31A(2)(b).
Conclusions and order
92 It is for these reasons I have concluded that the evidence should not be admitted under Evidence Act s 31A.
93 It is for these reasons I have determined the State's application should be dismissed.
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