The State of Western Australia v Demetriou
[2020] WADC 167
•16 DECEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DEMETRIOU [2020] WADC 167
CORAM: PRIOR DCJ
HEARD: 10 DECEMBER 2020
DELIVERED : 16 DECEMBER 2020
FILE NO/S: IND 267 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
THEO DEMETRIOU
Catchwords:
Evidence - Propensity evidence - Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) - Whether evidence of previous conduct of possession of methylamphetamine with intent to sell or supply reveals a propensity to possess heroin and possess with an intention to sell or supply to others
Legislation:
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 11
Result:
Application by the State granted
Representation:
Counsel:
| The State of Western Australia | : | Ms S M Manson-Grumley |
| Accused | : | Mr H T Gawley |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Holborn Lenhoff Massey |
Case(s) referred to in decision(s):
Asplin v The State of Western Australia [2013] WASCA 72
Bennett v The State of Western Australia [2012] WASCA 70
Dair v The State of Western Australia [2008] WASCA 72
Di Lena v The State of Western Australia [2006] WASCA 162
Donaldson v The State of Western Australia [2020] WASCA 193
Flessas v The State of Western Australia [2018] WASCA 210
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
La Bianca v The State of Western Australia [2019] WASCA 105
Mansell v The State of Western Australia [2009] WASCA 140
McPhillamy v The Queen [2017] NSWCCA 130
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
R v Bishop [2012] WASC 390
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Jackson [2019] WASCA 118
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
PRIOR DCJ:
Mr Demetriou is charged with an offence of possession of a prohibited drug, namely heroin, with intent to sell or supply it to another. The offence is alleged to have occurred on 12 August 2019 at North Perth.
No admissions have been made by Mr Demetriou to any of the elements of the charge.
The State seeks to lead evidence of Mr Demetriou's conduct in relation to three offences contained in indictment 2029 of 2016, indictment 1735 of 2014 and indictment 1742 of 2014 by its application dated 2 June 2020. Mr Demetriou pleaded guilty to these three offences on 13 March 2015 and 22 December 2016 in the District Court. All three offences were offences of possession of methylamphetamine with intent to sell or supply it to another.
The State contends that evidence of the three previous convictions and facts of the offences constitutes propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA), as it is evidence of prior conduct of Mr Demetriou that shows a tendency for him to 'possess prohibited drugs with intent to distribute them'.
The summary of relevant prosecution facts of indictment 267 of 2020 are:
1.At 1.40 pm on Monday 12 August 2019 Mr Demetriou was a passenger in a Hyundai LM motor vehicle. Mr Demetriou was sitting in the rear passenger seat. The vehicle was parked in a carpark, three other males approached the vehicle and got in.
2.The vehicle was driven away from the carpark and then stopped by police a short while later. Mr Demetriou was arrested in respect of a return to prison warrant.
3.Police searched the vehicle and located a bag in the footwell of where Mr Demetriou had been sitting. Police searched the bag and located several clip seal bags containing substances suspected to be illicit drugs. Following analysis, it was confirmed that three of the clip seal bags contained 3.87 g, 1.73 g and 0.84 g of heroin. The total weight being 6.44 g.
4.A fourth clip seal bag contained 0.34 g of methylamphetamine.
5.Within this same bag police also located digital scales, numerous empty clip seal bags, a glass smoking pipe and a squashed water bottle. The scales were tested and found to have traces of heroin and methylamphetamine on them.
5.The bag also contained the box to an 'i-clip' wallet. An 'i-clip' wallet was located on Mr Demetriou's person when he was searched.
7.DNA analysis was conducted on the items located in the bag. Mr Demetriou's DNA profile was within a mixed profile which was located on:
(a)glass pipe;
(b)squashed water bottle;
(c)electronic scales; and
(d)four clip seal bags.
Summary of proposed propensity evidence
Indictment 2029 of 2016
On 1 July 2016 police executed a search warrant (under the Misuse of Drugs Act 1981 (WA)) of an apartment where Mr Demetriou was staying. Mr Demetriou declared to police that there were prohibited drugs in his bedside table. A clip seal bag containing 5.67 g of methylamphetamine with a purity of 78% was in the bedside table. Mr Demetriou claimed ownership and stated that it was for personal use. Also located in the bedside table was another clip seal bag containing 2.35 g of methylamphetamine at 33% purity. Mr Demetriou claimed ownership and referred to it as 'chop'. In the lounge room was another clip seal bag containing 0.05 g of methylamphetamine. Mr Demetriou also claimed ownership of this.
Whilst searching the kitchen, a police officer located 5.62 g of methylamphetamine with a purity of 84%. It was in a vacuum‑sealed bag. Mr Demetriou denied ownership of this item.
Three other people were present in the apartment. All had prior drug convictions. No forensic link was established between Mr Demetriou and the methylamphetamine located in the kitchen. The charge on the indictment does not relate to the amount located in the kitchen.
Indictment 1735 of 2014
On 21 May 2014 police executed a search of a vehicle. Prior to the search Mr Demetriou had been seated in the front passenger seat. Police located a black cloth bag in the centre console. The bag contained 11.1 g of methylamphetamine, empty clip seal bags, electronic scales and a green plastic dispensing straw.
Mr Demetriou was interviewed by police and denied any knowledge of the items.
A mixed DNA profile was obtained from the scales ‑ a contributor to the profile matched Mr Demetriou's reference profile with a likelihood ratio of greater than 100 billion in favour of him being a contributor to the mixed profile.
Indictment 1742 of 2014
On 2 May 2014 police executed a search at Unit 2, 933 Beaufort Street, Inglewood. Mr Demetriou lived at this address with his girlfriend and a friend.
Mr Demetriou was present at the time of the search. He provided consent for the police to search his bedroom and declared to police that there were drugs and smoking implements in his bedroom. Four clip seal bags containing a total of 5.87 g of methylamphetamine were in the top drawer of Mr Demetriou's bedside cabinet. The first clip seal bag contained 1.7 g of methylamphetamine, the second 1.62 g, the third 0.01 g of methylamphetamine and the fourth 2.43 g. An amount of empty new clip seal bags were in the same drawer. Mr Demetriou stated that he picked out the best rocks of methylamphetamine to see how much he was ripped off by each dealer. A set of digital scales were located under the drawers by the side of Mr Demetriou's bed. When questioned, Mr Demetriou stated that he used them to weigh out daily amounts of methylamphetamine for his own use.
As Mr Demetriou had not made any formal admissions, the State will be required to prove all elements of the offence, including possession of the heroin by Mr Demetriou and his intention to sell or supply it to another. These are two separate distinct elements.
There are three requirements for the evidence to be admissible under s 31A of the Evidence Act[1] which are:
1.The first requirement is that the evidence comes within either or both of the definitions of propensity evidence and relationship evidence.
2.The second requirement is that the court must consider that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
3.The third requirement is 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.
[1] Dair v The State of Western Australia [2008] WASCA 72 [171] (Dair); Asplin v The State of Western Australia [2013] WASCA 72 [30] - [33] (Asplin).
Counsel for Mr Demetriou submits that his prior convictions do not meet the second and third of the three requirements under s 31A of the Evidence Act.
Whether evidence meets the requirements of s 31A of the Evidence Act is a question of law. Once the requirements of the section are met, the evidence must be admitted.[2]
[2] Asplin [28] (Mazza JA with whom Martin CJ & Pullin JA agreed); Di Lena v The State of Western Australia [2006] WASCA 162 [60], [94] (Roberts-Smith JA with whom Wheeler & Pullin JJA agreed).
In The State of Western Australia v Jackson,[3] the Court of Appeal observed that it is for the prosecution to prove each element of the offence, and to do so without the defence being required to disclose its answers to the charges. In doing so, the prosecution must present the whole of its case foreseeing, so far as it reasonably can, any issue which Mr Demetriou might raise, for the prosecution will not, generally speaking, be permitted to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.
A. Does the evidence meet the definition of propensity or relationship evidence under s 31A(1)(a) or s 31A(1)(b) of the Evidence Act?
[3] The State of Western Australia v Jackson [2019] WASCA 118 [49] (Jackson).
The definitions of this type of evidence are wide.[4] It includes more than common law similar fact evidence. In Onekawa v The State of Western Australia,[5] Buss JA said:
43'Propensity evidence' is defined by reference to the conduct, character or reputation of a person or a tendency that a person has or had. It includes similar fact evidence.
[4] Jackson [20]; Asplin [30].
[5] Onekawa v The State of Western Australia [2012] WASCA 105 [43].
The threshold test for admissibility of any evidence is relevance. That is, the evidence must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.[6]
[6] Dair [60].
In HML v The Queen,[7] Gleeson CJ made the following observation, which is useful in determining the issue of relevance:
6Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.
[7] HML v The Queen [2008] HCA 16 [6]; (2008) 235 CLR 334 (HML).
The convictions and facts of indictments 2029 of 2016, 1735 of 2014 and 1742 of 2014 indicate Mr Demetriou has a tendency to be in possession of quantities of prohibited drugs under the Misuse of Drugs Act and with an intention to sell or supply such drugs to another.
I accept this evidence does meet the wide definition of propensity under s 31A(1)(b) of the Evidence Act.
B. Does the evidence, either by itself or having regard to other evidence to be adduced, have 'significant probative value'?
The State submits that Mr Demetriou's three prior convictions have significant probative value, as it is evidence of his conduct and of a tendency to 'possess prohibited drugs with intent to distribute them'.
Mr Demitriou submits the proposed propensity evidence is vague and non-specific which cannot by itself, or in conjunction with other evidence, have significant probative value.
The State case is, the heroin was not found in isolation. It was found inside a bag near Mr Demitriou. The bag also contained the prohibited drug methylamphetamine and items commonly associated with drug dealing.
Mr Demetriou submits that his three previous convictions are all limited to possession of methylamphetamine with intent to sell or supply to another. Therefore, those convictions do not establish a disposition which could have an influence upon his behaviour at the time of the alleged offence.
To possess significant probative value, evidence must be such as could rationally affect the assessment of the probability of a fact in issue to a significant extent. Significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance. It is probative value which is 'important' or 'of consequence'.[8]
[8] Dair [61].
The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A(2)(a) of the Evidence Act were summarised by the Court of Appeal in RMD v The State of Western Australia[9] as follows:
[9] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (RMD). See also RMD [50] - [52]; La Bianca v The State of Western Australia [2019] WASCA 105 [24] - [26], [144] (La Bianca).
(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.
In Jackson[10] the Court of Appeal considered the following four points were also relevant:
[10] Jackson [20] - [23].
20The 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 the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
21An 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.[11]
22Evaluation 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.
23Even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the court of determining whether, or itself, or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.
(emphasis added)
(citations omitted)
[11] Hughes v The Queen [2017] HCA 20 [41]; (2017) 263 CLR 338; McPhillamy v The Queen [2018] HCA 52 [26], [34]; (2018) 92 ALJR 1045; Flessas v The State of Western Australia [2018] WASCA 210 [46]; La Bianca [145].
Significant probative value is not merely just relevant evidence.[12]
[12] Dair [60] - [61] (Steytler P).
Deciding whether evidence is significant will depend upon what the facts in issue at the trial and the importance that evidence has to the proof of that fact.
Specific considerations of propensity evidence in respect of drug offences were considered by Martin CJ in Bennett v The State of Western Australia:[13]
34In cases involving possession of prohibited drugs within intent to sell or supply, propensity evidence revealing a personalised or strikingly characteristic modus operandi is inherently less likely. That is because the practices of those charged with such offences have a certain similarity, including the location of drugs in clip seal bags in differing hiding places, the usual presence of scales and other paraphernalia associated with drug dealing, tick lists, significant amounts of cash and so on. In these cases, the propensity evidence will usually go no further than establishing a disposition on the part of the accused person to engage in drug dealing. The probative value of evidence of that character will depend upon the extent to which it establishes a disposition which could have had an influence upon the behaviour of the accused at the time of the commission of the alleged offence or offences.
35The probative value of evidence of that character will also depend upon a variety of other circumstances which cannot be exhaustively identified such as, for example, in both Preston and this case, the significance of the evidence in excluding an innocent association between the accused and the drugs that have been found, in a context where the evidence points to others with a prior association with prohibited drugs who might also have had access to the drugs that were found.
36However, excluding considerations of that kind, speaking generally, a single event of drug dealing many years before the offence being tried will obviously have less probative value than an event much closer in point of time. Similarly, where the propensity evidence establishes multiple prior instances of drug dealing, it will, generally speaking, have greater probative value than evidence of a singular event, because it points more strongly to an established and enduring disposition to engage in dealing in drugs.
(citation omitted)
[13] Bennett v The State of Western Australia [2012] WASCA 70 [34] - [36].
The element of possession is likely to be a key issue in dispute for the trial given the bag containing the heroin was not found on Mr Demetriou's person. The State will rely on an inference to be drawn that Mr Demetriou possessed the bag in the footwell near where he was sitting in the vehicle found by the police officer. There is also forensic evidence linking Mr Demetriou to some of the bag's contents.
Before the State proves the relevant intent to possess the methylamphetamine found in the bag, or before Mr Demetriou rebuts the presumption arising under s 11 of the Misuse of Drugs Act, the State must prove the element of possession.
The fact that Mr Demetriou has previously possessed prohibited drugs under the Misuse of Drugs Act is relevant to the element of possession.
The State does not rely upon the mere convictions for the three previous offences. The State relies on the conduct associated with those convictions. The facts of the three previous convictions reveal conduct by Mr Demetriou relating to small amounts of prohibited drugs and possession of items associated with drug use or dealing similar to what was found inside the bag.
The evidence of previous convictions proves Mr Demetriou has a tendency to possess prohibited drugs with intent to distribute them.
The fact that on three previous occasions the prohibited drug Mr Demetriou possessed was methylamphetamine, not heroin, does not detract from the probative value of the evidence as to the issue that he has a tendency to possess prohibited drugs with intent to distribute them.
The previous occasions Mr Demetriou possessed prohibited drugs were 2 May 2014, 21 May 2014 and 1 July 2016 in a relatively close proximity in time to the alleged offence on 12 August 2019. I also need to weigh in that during that time period Mr Demetriou was in custody for at least 16 months. The relatively short proximity in time between the past conduct and the alleged conduct of Mr Demetriou adds to the probative value of the evidence.
The facts of the three previous convictions are relevant to negate any issue raised by Mr Demetriou that he had no knowledge of the bag and/or its contents found in the motor vehicle near where he was sitting.
The evidence of the previous convictions makes it more likely Mr Demetriou possessed the bag and its contents shortly before the police found it. The evidence proves Mr Demetriou has a tendency to possess prohibited drugs including methylamphetamine and heroin. Both types of prohibited drugs were found in the bag. He has previously possessed methylamphetamine on three occasions.
If the State were to satisfy the jury as to the element of possession of the prohibited drug, the evidence of the three convictions is also relevant as to whether Mr Demetriou had an intention to sell or supply the prohibited drugs found in his possession to another.
I do not look at the facts in isolation. If the jury were satisfied Mr Demetriou possessed the bag and its contents, this evidence combined with the evidence of his previous tendency is relevant to consider as to whether the prohibited drugs contained in the bag were in there for the purpose of selling or supplying to another.
I therefore consider the evidence of the conduct relating to all three previous convictions of Mr Demetriou have significant probative value in relation to the issues likely to be in dispute in the offence on the indictment.
C. The fair-minded person test and risk to the accused of unfair trial (s 31A(2)(b))
In Dair the Court of Appeal considered this question and directed that a court is required to do the following:
1.' … assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence' (the court having already found that it has significant probative value).[14]
2.Consider the conclusion that fair-minded people being 'reasonable members of the general public who are not lawyers … would have informed themselves of "at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances"' would draw from a comparison of these issues. [15]
3.'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'.[16]
[14] Dair [62].
[15] Dair [66].
[16] Dair [64].
The relevant risk is the concern that the risk arises because a jury might use the propensity evidence in an impermissible way.[17]
[17] Di Lena [52], [59]; Donaldson v The State of Western Australia [2020] WASCA 193 [127] - [130]; Dair [62] - [67]; The State of Western Australia v Atherton [2009] WASCA 148 [327].
It can be accepted that a jury will accept, and faithfully apply, the directions of a trial judge until the contrary is demonstrated. There will be cases in which the prejudice is too great that it cannot confidently be concluded that it will be overcome.[18]
[18] Mansell v The State of Western Australia [2009] WASCA 140 [49]; Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] (Steyter P).
In respect of the directions that might be given to minimise the risk of an unfair trial, it cannot be assumed such directions will, in every case, cure the prejudice.[19]
[19] McPhillamy v The Queen [2017] NSWCCA 130 [83].
In considering the risk of an unfair trial to Mr Demetriou, the probative value of the proposed propensity evidence should be considered in the context of the evidence as a whole:[20]
64When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, 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. It is important to bear in mind 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 …
65Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend on the circumstances of an individual case.16
(FN16: Dair [64] - [65])
[20] R v Bishop [2012] WASC 390 [69] (Hall J).
In order to exclude evidence which has significant probative value, the court must conclude that the prejudicial value of the propensity evidence is so great that it is difficult to be satisfied that even the strongest of warnings would be enough to overcome the prejudice to the accused.
The risk of an unfair trial to an accused if propensity evidence is led, will always depend on the particular circumstances of each case.
The evidence the State relies upon of past conduct relating to Mr Demetriou's three convictions as tendency evidence is the type of evidence routinely led when an application of this nature is made.
There is always some risk of prejudice or unfairness to Mr Demetriou when such evidence is admitted.
I am satisfied the directions a trial judge will give as to how such evidence can be used and not be used, will mitigate significantly some of the prejudice to Mr Demetriou.
I proceed on the basis these directions will be followed faithfully by the jury.
I am satisfied that the probative value of the evidence compared to the degree of risk of an unfair trial to Mr Demetriou is such that fair‑minded people would think that the public interest adducing the tendency evidence of Mr Demetriou must have priority over the risk of an unfair trial to him.
I therefore grant the State's application dated 2 June 2020.
I will leave it to trial counsel to determine how the tendency evidence will be led at the trial and what evidence of conduct will be led.
Bail is renewed until 28 June 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
29 MARCH 2022
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