The State of Western Australia v Dawson
[2020] WADC 143
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DAWSON [2020] WADC 143
CORAM: LEVY DCJ
HEARD: 18 SEPTEMBER 2020
DELIVERED : 13 NOVEMBER 2020
FILE NO/S: IND 404 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MICHAEL BRIAN DAWSON
THANH SON VO
Catchwords:
Criminal law - Application for separate trials and severance of the indictment - Whether counts properly joined on the indictment - Propensity evidence - Whether prior conviction has significant probative value - Risk of an unfair trial - Whether counts on the indictment cross-admissible
Legislation:
Nil
Result:
State's application to lead propensity evidence pursuant to s 31A of the Evidence Act allowed
Mr Dawson's application for severance refused
Mr Vo's application for severance refused
Representation:
Counsel:
| The State of Western Australia | : | Mr L K Rosenthal |
| First Accused | : | Ms K A Dowling |
| Second Accused | : | Mr D J A Hockton |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| First Accused | : | TBA |
| Second Accused | : | Angus Hockton |
Case(s) referred to in decision(s):
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Beck v The Queen [1984] WAR 127
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Huggins v The State of Western Australia [2018] WASCA 61
Packett v The King (1937) 58 CLR 190
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Seiler v The Queen [1978] WAR 27
Sutton v The Queen (1984) 152 CLR 528
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v WCM [2014] WASCA 38
Zammit v The State of Western Australia [2007] WASCA 66
LEVY DCJ:
Thanh Son Vo and Michael Brian Dawson stand charged on a single indictment, IND 404 of 2020, containing six separate counts:
•Counts 1 - 4 relate only to Mr Vo.
•Counts 5 and 6 relate only to Mr Dawson.
The charges against Mr Vo are as follows:
•Count 1 - on 25 June 2017 at Westminster, possession of methylamphetamine with intent to sell or supply to another.
•Count 2 - on the same date and place as Count 1, possession of ammunition.
•Count 3 - on the same date and place as Count 1, unlawful possession of a handgun.
·Count 4 - on 29 November 2018 at Morley, possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another.
The charges against Mr Dawson are as follows:
•Count 5 - on 6 December 2018 at Lansdale, possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another.
•Count 6 – on same date and place as Count 5, possession of $2,750 in money that is reasonably suspected to have been unlawfully obtained.
Each of the accused have made applications for severance of the indictment.
Mr Vo concedes that he would not suffer any real prejudice if he were jointly tried with Mr Dawson.[1] Mr Vo does however submit that since there is no real overlap in the evidence between count 4, which relates only to him, and counts 5 and 6 which relate only to Mr Dawson, that there is 'no utility'[2] in those counts (counts 4, 5 and 6) being dealt with together. The nub of Mr Vo's application is that counts 1 to 3 should be tried separately from count 4 on the basis that they are not connected and that the evidence in relation to count 4 will impermissibly prejudice his case on count 1.
[1] ts 44.
[2] ts 43.
Mr Dawson applies for severance of counts 5 and 6 on the indictment so that he can be tried separately from Mr Vo. Mr Dawson submits that the vast majority of the evidence the State will lead against Mr Vo on counts 1 to 4 is inadmissible in the trial against him. Mr Dawson's charges are completely separate to the charges brought against Mr Vo. Thus, Mr Dawson submits that his trial will be impermissibly prejudiced by the evidence led against Mr Vo.
If both accused succeed in their applications, the combined effect would result in the six counts being dealt with in three separate trials, as follows:
•Trial 1 - Mr Vo on counts 1 to 3.
•Trial 2 - Mr Vo on count 4.
•Trial 3 - Mr Dawson on counts 5 and 6.
The State opposes the severance applications. The State also brings an application pursuant to s 31A of the Evidence Act 1906 (WA) (the Act). That application relates only to Mr Vo. The State seeks to adduce evidence of Mr Vo's prior conviction for a serious drug offence. On 31 May 2019, Mr Vo was convicted on IND 2083 of 2018 of the offence of possessing 15.7 g methylamphetamine with intent to sell or supply to another. That offence occurred on 16 February 2018.
The State also submits that counts 1 and 4 on the indictment are cross‑admissible against Vo.
Summary of the State's case against Mr Vo
In the early hours of 25 June 2017, Mr Vo was in the driveway of 6C Reeves Court, Westminster where the accused rented a room. Whilst in the driveway, he was shot in the leg by an unknown assailant. Two people came to his aid. They were his flat mate Natasha Martin and a neighbour, Zolton Fodor. The police and St John's Ambulance were called.
Mr Fodor, in assisting to treat Mr Vo, pulled down Mr Vo's trousers so that he could apply pressure to his wounded leg. The State alleges that in the process of assisting Mr Vo he saw a clip seal bag containing a white crystalline substance fall from Mr Vo's trousers onto the driveway.
Once the police attended, they seized the clip seal bag and another allegedly found in the vicinity of Mr Vo. These bags were later analysed and found to contain quantities of methylamphetamine weighing 16.8 g and 3.85 g respectively. These quantities relate to count 1 on the indictment.
Police subsequently searched Mr Vo's room. It is alleged that they located and seized a handgun and magazine loaded with ammunition from a wardrobe in his room. This relates to counts 2 and 3 on the indictment.
In October 2018, police were conducting an investigation codenamed Operation Trident Alpha 20. The operation targeted Diem Thi Nguyen and her associates in relation to the alleged supply of prohibited drugs. As part of that operation, police lawfully obtained a telecommunications interception warrant enabling them to monitor seven mobile telecommunication services used by Ms Nguyen.
On 29 November 2018, Mr Vo was a passenger in a motor vehicle driven by Ms Nguyen when it was intercepted by police. The interception of the motor vehicle resulted from information that police had gathered whilst monitoring Ms Nguyen's telephones. That information led police to believe that a large drug deal was about to take place.
After the motor vehicle was intercepted by police, it is alleged that Mr Vo dropped a bag containing 0.53 g of methylamphetamine onto the ground as he got out of the vehicle. The motor vehicle was then searched by police. It is alleged that police located a shopping bag in the front passenger seat foot well. It is alleged that Mr Vo was seated in the passenger seat when the vehicle was stopped. The State's case is that the shopping bag contained 998 g of methylamphetamine in vacuum sealed clear plastic bags. This constitutes count 4 on the indictment.
The State's case against Mr Vo with respect to count 4 is that he, being an associate of Ms Nguyen, was either in possession of the methylamphetamine himself, or alternatively he had knowledge of the drugs and was in the vehicle for the purpose of providing Ms Nguyen with assistance with respect to supplying those drugs to another.[3]
[3] State's 'Outline of Submissions in Relation to section 31A Application' dated 28 August 2020, par 13; State's 'Outline of Submissions in relation in Response to Defence Application Pursuant to s133(4) and s135 of the Criminal Procedure Act' pars 13 and 17.
It is also alleged that inside the vehicle police located a backpack containing $15,980 in Australian cash, as well as cards and documents in the name of Ms Nguyen.
The following day police executed a search warrant at Mr Vo's home. There it is alleged police located a further 0.23 g of methylamphetamine, a set of electronic scales and a smoking implement.
Summary of the State's case against Mr Dawson
In the course of Operation Trident Alpha 20, the State alleges that police identified Mr Dawson as a person involved in discussions about the supply of prohibited drugs with, and on behalf of, Ms Nguyen. A mobile telephone number subscribed in his name was identified during the operation.
On 6 December 2018 police executed a search warrant at 270 Lansdale Road, Lansdale. Through information gleaned from the interception of Ms Nguyen's telephone communications, police suspected that this address was being used for the distribution of prohibited drugs by Ms Nguyen and her associates. Mr Dawson was the only person found in the premises. He was located in a study. During the course of the search, Mr Dawson told police that he was at the premises to smoke drugs as well as patch up a wall.
In the study police located and seized the following:
•small quantities of methylamphetamine;
•a smoking implement;
•electronic scales;
•$2,750 in cash;
•clip seal bags.
The $2,750 in cash constitutes count 6 on the indictment.
Police officers subsequently searched an air-conditioning vent in the study where they located a metal tin which was found to contain a total of 30.85 g of methylamphetamine in clip seal bags. This constitutes count 5 on the indictment.
The State also intends to rely upon lawfully intercepted telecommunications identified by counsel for the State[4] and summarised in the table below. The communications are between Mr Dawson and Ms Nguyen.
[4] ts 36 - ts 39.
Confusingly, whilst the State's written submissions include that '[i]t will be necessary to lead evidence of Nguyen's possession of 998g of methylamphetamine and telephone intercept material with respect to her involvement in prohibited drugs in the case of both men',[5] counsel for the State on the s 31A application expressly disavowed reliance upon any other communications between Ms Nguyen and other people which may have related to drug dealing.[6] Consequently, so far as Mr Dawson's application for severance is concerned, it will be dealt with on the basis that they are the only calls that will be adduced against him.
[5] State's 'Outline of Submissions in Relation to section 31A Application' dated 28 August 2020, par 28.
[6] ts 39 - ts 40.
Table of relevant calls and SMS
Session No Date Parties
Sender/ Receiver
CallerCall/
SMSSubject 3428 07/11/2018 Dawson Nguyen Call Dawson advising Nguyen not to go somewhere because police were 'down the road'. 494 18/11/2018 Nguyen Dawson Call Nguyen tells Dawson that 'Uncle got done.'
Dawson asks Nguyen what she needs and offers to pick her up.151 29/11/2018 Dawson Nguyen SMS Dawson speaks about 'Richard' calling and saying there is no outstanding bill. 152 29/11/2018 Dawson Nguyen SMS Dawson says he's on his way 153 29/11/2018 Dawson Nguyen SMS Dawson tells Nguyen a number of people have come over 154 29/11/2018 Dawson Nguyen SMS Dawson tells Nguyen a number people are there 190 29/11/2018 Dawson Nguyen SMS Dawson asking Nguyen to respond Session No Date Parties
Sender/ Receiver
Caller
Call/
SMSSubject 219 30/11/2018 Dawson Nguyen SMS Dawson tells Nguyen not to use Beechboro Road because there are police in the area. 86 05/12/2018 Dawson Nguyen SMS Dawson tells Nguyen to trust him and let him help her. Tells Nguyen to 'get the coin out of there.' 1861 06/12/2018 Dawson Nguyen Call Dawson tells Nguyen that 'everything has gone fuckin pear shaped with Zhong.'
Nguyen tells Dawson to pick money up.
Nguyen tells Dawson 'there's two Bs less'
Dawson says 'she (Leanne) doesn't take Bs.'
The State's case against Mr Dawson in relation to counts 5 and 6 is that he was an associate of Ms Nguyen and was 'involved in the on sale of methylamphetamine'.[7]
[7] State's 'Outline of Submissions in relation in Response to Defence Application Pursuant to s133(4) and s135 of the Criminal Procedure Act' par 17.
The State alleges that Mr Dawson was at the property for the purpose of selling small quantities of methylamphetamine on behalf of Ms Nguyen.[8]
[8]State's 'Outline of Submissions in relation in Response to Defence Application Pursuant to s133(4) and s135 of the Criminal Procedure Act' par 15.
The evidence sought to be adduced pursuant to s 31A of the Evidence Act against Mr Vo
On 31 May 2019, Mr Vo was convicted and sentenced to a term of two years imprisonment in relation to the offence of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply to another. That offence was committed on 16 February 2018. The facts of that offence (the 'propensity evidence') are set out in the sentencing transcript provided by the State and marked attachment 'A'.
In summary, the facts of the propensity offence are that on 16 February 2018 Mr Vo was at his home address when police officers executed a search warrant. Before being searched, he declared he was in possession of a small quantity (0.77 g) of methylamphetamine, in a front jeans pocket.
Mr Vo was subsequently strip-searched. Police found a further clip seal bag located inside his underwear. The clip seal bag was found to contain 15.7 g of methylamphetamine at 79% purity.
Police also located several clip seal bags of varying sizes, digital scales containing traces of methylamphetamine, tick sheets and MSM powder which is commonly used as a cutting agent for methylamphetamine.
The State seeks to rely upon the propensity evidence in relation to counts 1 and 4 on the indictment.
The State submits that the propensity evidence is evidence of Mr Vo's 'conduct and of a tendency that [he] has to "possess, or attempt to possess, prohibited drugs with an intent to distribute them" '.[9]
[9] State's 'Outline of Submissions in Relation to section 31A Application' dated 28 August 2020, par 16.
The State also submits that counts 1 and 4 are cross-admissible against Mr Vo.
The primary issues
The issues to be determined are as follows:
1.Are all counts on the indictment properly joined?
2.Should the State be permitted to lead the propensity evidence against Mr Vo in relation to either or both counts 1 and 4?
3.Should the indictment be severed so that Mr Dawson is tried separately to Mr Vo?
4.Should Mr Vo's charges be severed so that counts 1 to 3 are dealt with separately to count 1?
Since Mr Dawson's primary objection to a joint trial with Mr Vo is based upon the assertion that he will suffer irreparable prejudice arising from the evidence that will be led against Mr Vo, it is necessary to first consider the State's application to lead the propensity evidence against Mr Vo pursuant to s 31A the Act. Secondly, to consider the question of whether counts 1 and 4 are cross‑admissible against Mr Vo. Once these issues are resolved, the question of severance can be considered in light of all the evidence that the State will rely upon at a joint trial of both accused.
Part 1. The s 31A application and whether counts 1 and 4 are cross‑admissible in the trial against Mr Vo
The proposed propensity evidence has already been summarised above. As already noted, the State submits that the propensity evidence is relevant to both counts 1 and 4.
Legal principles
Section 31A of the Act provides:
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;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship 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.
Does the propensity evidence have significant probative value?
The principles relevant to whether propensity evidence has significant probative value within the meaning of s 31A of the Act have been set out in numerous cases including DKA v The State of Western Australia,[10] RMD v The State of Western Australia,[11] and The State of Western Australia v Jackson.[12]
[10] DKA v The State of Western Australia [2017] WASCA 44.
[11] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.
[12] The State of Western Australia v Jackson [2019] WASCA 118 [18].
In RMDv The State of Western Australia, Buss J summarised those principles as follows:[13]
[13] RMD v The State of Western Australia [185].
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.
(4)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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.
(footnotes omitted)
In the State of Western Australia v Jackson the Court of Appeal noted four other factors as follows:[14]
[14] The State of Western Australia v Jackson [20] - [23].
20First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
21Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
22Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
23Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.
(footnotes omitted)
The State submits that the evidence relating to Mr Vo's conviction on 31 May 2019 constitutes 'propensity evidence' in that it is 'evidence of the accused's conduct and of a tendency that the accused had to possess or attempt to possess, prohibited drugs with an intent to distribute them'.[15]
[15] States 'Outline of Submissions in Relation to section 31A Application' dated 28 August 2020, par 16.
Mr Vo accepts that the evidence constitutes 'propensity evidence' for the purposes of s 31A of the Act. However, Mr Vo submits that:
(a)the evidence does not have 'significant probative value'; and
(b)that the probative value of the evidence does not does outweigh the risk of an unfair trial when consideration is given to all relevant factors.
In order to prove both counts 1 and 4 against Mr Vo, the State will need to prove beyond reasonable doubt that Mr Vo:
(a)possessed the methylamphetamine, or aided another to possess the methylamphetamine; and
(b)intended to sell or supply the drug to another, or intended to aid another to sell or supply the drug to another.
Mr Vo does not admit any of these elements. Consequently, the State will need to prove these elements beyond reasonable doubt.
The State submits that the evidence relating to Mr Vo's conviction on 31 May 2019 constitutes 'propensity evidence' in that it is 'evidence of the accused's conduct and of a tendency that the accused had to possess or attempt to possess, prohibited drugs with an intent to distribute them'.[16]
[16] State's 'Outline of Submissions in Relation to section 31A Application' dated 28 August 2020, par 16.
The State submits that the propensity evidence goes to both the issue of possession as well as the element of proving Mr Vo had an intention to sell or supply the prohibited drugs. The propensity evidence, on the State's case, is relevant to rebutting any 'innocent association' between Mr Vo and the drugs.[17]
[17] ts 40.
Mr Vo accepts that the evidence constitutes 'propensity evidence' for the purposes of s 31A of the Act. However, Mr Vo submits that:
(a)the evidence does not have 'significant probative value'; and
(b)that the probative value of the evidence does not does outweigh the risk of an unfair trial when consideration is given to all relevant factors.
So far as counts 1 and 4 are concerned, leaving aside the propensity evidence, each offence is alleged to have been committed in very different circumstances. In relation to count 1, the State alleges that Mr Vo was in possession of the methylamphetamine (totaling 20.65 g) at the time he was shot in the leg in his driveway. No other person is alleged to be in possession of those drugs.
In relation to count 4 which involves 998 g of methylamphetamine allegedly found in close proximity to Mr Vo who was a passenger in a vehicle driven by Ms Nguyen, the State's case is that Mr Vo was either jointly in possession of the drugs with Ms Nguyen (s 7(a) of the Criminal Code), or he was aiding Ms Nguyen to possess the drugs with an intent to sell or supply them to another (s 7(b) or s 7(c) of the Code).
Without conceding the point, counsel for Mr Vo accepts that the State's application to adduce the propensity evidence is a strong one so far as count 1 is concerned.[18] He accepts that there are significant similarities between the circumstances involving count 1 and the propensity evidence, including the weights and type of prohibited drug involved, as well as the general circumstances.[19]
[18] ts 42, ts 45 and ts 46.
[19] ts 42.
However, Mr Hockton submits that save for the type of drug involved, the circumstances involving the propensity evidence are vastly different to the circumstances relating to count 4. The differences include:[20]
(a)the weights involved (count 4 - 998 g; propensity evidence - 15.7 g);
(b)Mr Vo was a 'user/dealer' in relation to the propensity evidence, whereas on count 4 the State alleges he was involved as part of a wider drug distribution network, or was aiding Ms Nguyen's involvement in that network. (Which Mr Hockton submits is inconsistent with a person being involved as a lower level 'user dealer'.)
(c)In relation to both count 1 and the propensity evidence, he was the sole possessor of the drugs.
[20] ts 42.
The facts in issue in relation to both counts 1 and 4 are whether Mr Vo was in possession of the methylamphetamine either as a principal or aider, and his intention at the time (whether the State can prove he intended to sell or supply the drugs, or he intended to aid Ms Nguyen to sell or supply the drugs to another).
Despite the differences between the propensity evidence and the circumstances relating to count 4, the propensity evidence must not be viewed in isolation.
The proximity of the propensity evidence to the offence the subject of the trial is another relevant consideration. Here the propensity evidence relates to a serious drug offence committed on 16 February 2018. That offence falls within the period in which counts 1 and 4 are alleged to have been committed. Count 1 is alleged to have been committed on 25 June 2017, some eight months prior to the offence the subject of the propensity evidence. Count 4 is alleged to have been committed nine months after the propensity evidence offence.
Whilst ordinarily the question of whether counts are cross‑admissible is best dealt with after the evidence has been led at trial, due to the nature of the issues raised in these applications, it is necessary to consider the question now.
In many ways, the question of whether counts 1 and 4 are cross‑admissible mirror the s 31A application with respect to the propensity evidence. In other words, would a conviction on one count be relevant to proving, directly or indirectly, a fact in issue on the other count and therefore increase the likelihood that the accused was guilty of the other offence?
In my view, for the same reasons, counts 1 and 4 are cross‑admissible and the propensity evidence is admissible on both counts.
When all of the evidence the State intends to lead on each count is considered, the propensity evidence is significantly probative in relation to both counts 1 and 4. The propensity evidence goes to the very issues in contention, namely possession and intention. The propensity evidence tends to rebut any innocent association between the accused and the drugs the subject of both counts.
Likewise, so far as the question of cross admissibility is concerned, given the nature of the alleged circumstances surrounding the offences on each count and the issues to be proved, a conviction on one count would be relevant in considering whether both the element of possession and intention on another count has been proved by the State beyond reasonable doubt.
The risk of an unfair trial
So far as the risk of an unfair trial needs to be considered, it is the risk of prejudice arising from the propensity evidence. In other words, the risk is that the jury will act illogically. The court is required to decide whether fair-minded people would think that the interests of justice requires the admission of the evidence, notwithstanding the risk that its admission presents to the trial.[21]
[21] The State of Western Australia v Osborne [2007] WASCA 183 [38] (Pullin J), Dair v The State of Western Australia[2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385 [51], [63] - [64] (Steytler P) and [182] (Miller JA); Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [40] and [43] (Mazza J).
In considering the risk of an unfair trial, it is necessary to take into account any directions that might be given to the jury in an attempt to overcome the prejudice and its likely effect on the jury.[22]
[22] APC v The State of Western Australia[2012] WASCA 159; (2012) 224 A Crim R 59 [90] (Mazza JA).
It would be necessary for the trial judge to give appropriate directions as to the manner in which the propensity evidence may be relied upon. I am satisfied that proper directions given by the trial judge would overcome any prejudice and its likely effect on the jury.
The real question is whether the admission of the evidence on count 4 in relation to count 1 would impermissibly prejudice Mr Vo's case on count 1. That issue falls to be considered in relation to the severance application.
Conclusion of s 31A application and cross-admissibility
The State's application to lead the propensity evidence is allowed in relation to both counts 1 and 4.
Counts 1 and 4 are cross-admissible on the trial of Mr Vo.
Part 2: The severance applications
There are three issues to be considered in relation to the severance applications brought by Mr Vo and Mr Dawson. They are:
1.Are the counts properly joined on the indictment?
2.If they are properly joined, are either or both of the accused likely to be prejudiced in their trial because of the joinder?
3.If there is such prejudice, should the charges be severed?
First issue: Are counts 1 - 6 properly joined on the indictment?
Section 85 and sch 1 div 2 of the Criminal Procedure Act2004 (WA) (CPA) set out the requirements relating to indictments brought in Western Australia.
Section 85 makes clear that sch 1 has effect in relation to indictments and charges in them. It also mandates that an indictment must:
(a)be in writing in a prescribed form; and
(b)comply with Schedule 1 Division 2;
Relevantly, sch 1 div 2 cl 2(3) prescribes that an 'indictment must contain one charge only, unless clause 7 or another written law permits otherwise'.
Clause 7 of the schedule permits more than one charge to be brought on an indictment provided certain preconditions are met. Schedule 1 cl 7 reads as follows (emphasis added):
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
Clause 9 of the schedule requires that, if an indictment contains one or more charges, or an indictment charges two or more accused, the charges must be tried together 'unless a court orders otherwise'[23] under the CPA.
The first limb of cl 7(3)(a) - joinder allowed if the charges 'form or are a part of a series of offences of the same or a similar character'
[23] CPA sch 1 div 2 cl 9(1) and cl 9(2).
In Zammit v The State of Western Australia,[24] Steytler P as he then was, noted that the 'meaning of the words "series of offences of the same or a similar character", which appear in cl 7(3)(a), has been considered in cases in Australia and in the United Kingdom'. Steytler P considered many of the relevant cases. The following can be distilled from the relevant cases set out in Steytler P's reasons in Zammit.
[24] Zammit v The State of Western Australia [2007] WASCA 66.
Firstly, so far as the question of what amounts to a series of offences of the same or similar character, both the law and the facts must be taken into account in deciding whether the offences are of a similar character.[25]
[25] Sutton v The Queen (1984) 152 CLR 528, 540 (Brennan J).
Secondly, if the offences are the same or similar in character they may constitute a series. However, in order for them to constitute a 'series of offences' there needs to be some connection between the alleged offences.[26]
[26] Packett v The King (1937) 58 CLR 190, 207 (Dixon J); Sutton at 541.
Thirdly, leaving aside offences of the same character, where a court is considering whether the similarity between the offences justifies their joinder, a conclusion that they are properly joined may arise from a consideration of the nature of the offences charged themselves, without there being a need for any factual connection between them.[27] However, the conclusion that two or more offences are properly joined as being part of a series of offences of the same or similar character may be strengthened if there is not only a similarity between them in terms of the law, but also some factual nexus between the offences, 'a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'.[28]
The second limb cl 7(3)(b) - joinder allowed if the charges 'arise substantially out of the same or closely related acts or omissions'
[27] Seiler v The Queen [1978] WAR 27, 32.
[28] Beck v The Queen [1984] WAR 127, 133.
In Zammit Steytler P considered the application of cl 7(3) and noted that the second limb of cl 7(3) was wider than its predecessor, s 585(2) of the Code. Steytler P noted the difference in wording that now appears in cl 7 compared to its predecessor s 585.
In particular, the words 'be constituted by' in the former provisions of s 585(2) have been replaced in cl 7(3)(b) with the words 'arise substantially out of' (used in s 586(7) of the Code) and that the words 'the same acts or omissions' have become 'the same or closely related acts or omissions' (the words 'or closely related' having also been used in s 586(7)). Again, with reference to Steytler P's decision the following can be distilled.
1.The question of whether one set of facts is closely related to another is simply one of degree.
2.The expression 'arise substantially out of … the same or closely related acts or omissions' is intended to have a relatively wide reach and the words are not to be given an unduly restrictive meaning, when regard is had to the broad discretion given to the court by s 133 of the Act.
Relevantly, so far as these applications are concerned, the State submits that counts 1 to 6 are all properly joined on the indictment. It is therefore necessary to consider the State's case and how the State submits the counts are properly joined.
The State submits that:
(a)counts 1 and 4 form or are a part of a series of offences of the same or a similar character (cl 7(3)(a));
(b)counts 1, 2 and 3 are alleged to arise substantially out of the same or closely related acts (cl 7(3)(b));
(c)counts 5 and 6 are alleged to arise substantially out of the same or closely related acts (cl 7(3)(b));
(d)counts 4 and 5 are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose (cl 7(3)(c)).
Mr Vo does not quarrel with the proposition that counts 1 to 4 are properly joined on the indictment.[29] Nor does he submit that there is any real prejudice to him if count 4 was tried together with counts 5 and 6 in relation to Mr Dawson.[30] His argument centres on submissions that go to the prejudice he submits would arise if counts 1 to 3 were tried together with count 4.[31]
[29] ts 43 and ts 45.
[30] ts 44 and ts 45.
[31] ts 43 and ts 45.
Mr Dawson accepts that counts 5 and 6 are properly joined together. However, although it was not expressed in precise terms, I understood the effect of counsel for Mr Dawson's submissions to be that Mr Dawson does not concede that counts 5 and 6 are properly joined on the indictment. That is that there is insufficient connection between counts 4 and 5.
Mr Dawson also submits that the joinder of counts 5 and 6 on the indictment with the charges against Mr Vo will impermissibly prejudice his fair trial.
The link, or nexus, between Mr Vo and Mr Dawson is alleged to be Ms Nguyen. Although the State concedes that there is no direct link between Mr Vo and Mr Dawson, their separate dealings with Ms Nguyen brings counts 4 and 5 within cl 7(3)(c) in that the acts constituting the offences are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose. The prosecution of a single purpose is, in effect, distributing drugs for or with Ms Nguyen, or aiding her to do so.
Mr Dawson submits that:[32]
1.There is limited evidence linking Mr Vo with him.
2.The charges against Mr Vo are significantly more serious.
3.The only issue in Mr Dawson's case is 'knowledge [of the drugs]'.
[32] Mr Dawson's 'Outline of Submissions in Support of Severance' dated 17 August 2020, par 3.
I am satisfied that all counts are properly joined on the indictment.
Counts 1 and 4 form or are a part of a series of offences of the same or a similar character, in that they both relate to charges brought against Mr Vo alleging that on each occasion he possessed methylamphetamine with an intent to sell or supply. They are sufficiently connected in time.
Counts 1, 2 and 3 arise substantially out of the same or closely related alleged acts. They are offences alleged to have been committed on the same day at the same place. The State will rely upon counts 3 and 4 as being relevant to proving that Mr Vo was in the business of drug dealing.
Counts 5 and 6 arise substantially out of the same or closely related alleged acts, namely that they are offences alleged to have been committed on the same date and at the same place involving Mr Dawson. They are clearly connected.
Finally, I am satisfied that the evidence relating to Ms Nguyen provides a sufficient nexus to connect counts 4 and 5 on the indictment as a series of acts or omissions done or omitted to be done in the prosecution of a single purpose.
Second and third issues: If the charges are properly joined, are either or both of the accused likely to be prejudiced in their trial because of the joinder? If there is such prejudice, should the charges be severed?
Section 133 of the Criminal Procedure Act
Section 133 of the CPA provides, relevantly, as follows:
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
In Huggins v The State of Western Australia,[33] the court considered the meaning and effect of s 133(3). Relevantly the Court of Appeal noted:
1.The discretion to order separate trials under s 133(3) is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges.[34]
2.The words 'in the trial' means in the hearing at which the verdict on each charge the subject of a prosecution notice or indictment is determined on the evidence adduced at that hearing.[35]
3.The likely prejudice must be actual, not assumed, and must be in the trial itself.[36]
4.Significantly, s 133(3) is only concerned with impermissible or improper prejudice, not prejudice that may flow from the strength of admissible evidence.[37] Thus, in this case if the evidence the subject of count 6 is otherwise admissible, then it could not be said be 'impermissible or improper prejudice'.
5.Furthermore, s 133(5)(a) provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment containing two or more charges, and the court is considering whether to order separate trials of the charges, it is open to the court to decide that any likelihood of prejudice 'can be guarded against' by direction to the jury and, in consequence, to decline to order separate trials.[38] That is so even if the evidence on one of the charges is inadmissible on another. To that extent, even if I find that the evidence on a count is not admissible on one or more of the other counts, it would not prevent the court from refusing the application for count 6 to be severed if a proper direction to the jury would adequately remove any likely prejudice arising from it remaining on the indictment.[39]
[33] Huggins v The State of Western Australia [2018] WASCA 61.
[34] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [94]; The State of Western Australia v Micalizzi [2010] WASCA 147 [23]; Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326, referring to s 133(4); [335]; In Huggins v The State of Western Australia.
[35] In Huggins v The State of Western Australia.
[36] The State of Western Australia v Micalizzi [25].
[37] The State of Western Australia v WCM [2014] WASCA 38 [32], [40].
[38] Donaldson v The State of Western Australia [95], [98]; Russell v The State of Western Australia [336].
[39] The State of Western Australia v Karolides [2017] WASCA 111 [32].
Mr Vo submits that:
1.The indictment contains counts from three separate and distinct incidents and that there is 'no connection in place or time for any of the three groups of charges'.[40]
2.There is little overlap in the evidence.
3.There is a real risk of prejudice to him in that a jury would impermissibly use evidence led on one charge that was not admissible on another.[41]
4.The jury might be overwhelmed and confused by having to deal with unconnected evidence.[42]
[40] Mr Vo's 'Outline of Submissions in Support of Severance of the Indictment and in Opposition TO Admission of Evidence Pursuant to s31A of the Evidence Act 1906 (WA)’ pars 1 and 2.
[41] Mr Vo's 'Outline of Submissions' par 6.
[42] Mr Vo's 'Outline of Submissions' par 7.
Mr Dawson's counsel submits that significant prejudice would flow into his case from the evidence in Mr Vo's case.
I am satisfied that each of the accused are likely to be prejudiced in their trials because the indictment contains multiple counts or charges and two accused.[43]
[43] Donaldson v The State of Western Australia [94]; The State of Western Australia v Micalizzi [23]; Russell v The State of Western Australia referring to s 133(4); [335]; In Huggins v The State Of Western Australia.
I am also satisfied that the likely prejudice is actual, not assumed, and will arise in the trial itself.[44]
[44] Micalizzi [25].
However, s 133(3) is only concerned with impermissible or improper prejudice, not prejudice that may flow from the strength of admissible evidence.[45]
[45] The State of Western Australia v WCM [40].
Furthermore, I am satisfied that there are adequate directions that a trial judge could give that would sufficiently remove the risk of an unfair trial to each of the accused.
Finally, it is relevant to note that each of the accused denies that they either possessed the drugs in question or had knowledge of the drugs (counts 1, 4 and 5). Knowledge of the drugs will be a critical issue in relation to those counts. Counts 4 and 5 are the counts connected, on the State's case, to Ms Nguyen. It seems implicit in the manner in which each of the accused intends to run their case that it will be argued that some other person had possession and knowledge of the drugs. In those circumstances, it seems likely that the evidence which forms the nexus of counts 4 and 5, namely the evidence relating to Ms Nguyen and her involvement in drug dealing, will support their defences. In those circumstances, it is difficult to see how any real prejudice would flow from that evidence.
Conclusion on the severance applications
Each of the applications for severance is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
13 NOVEMBER 2020
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