The State of Western Australia v Densley - [2018] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   GERALDTON
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DENSLEY [2018] WADC 41
CORAM:   STEVENSON DCJ
HEARD:   20 MARCH 2018
DELIVERED          :   Ex tempore
PUBLISHED           :   28 MARCH 2018
FILE NO/S:   IND GER 61 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GRANT TROY DENSLEY
GUY BRYAN GOUGH

Catchwords:

Nil

Legislation:

Criminal Procedure Act 2004 (WA) sch 3 cl 7(1)(a), sch 3 cl 7(5)

Result:

Application allowed

Representation:

Counsel:

Applicant	:	Mr L K Rosenthal
First-named Accused	:	Ms J M Gray
Second-named Accused	:	Ms K R Fry

Solicitors:

Applicant	:	State Director of Public Prosecutions
First-named Accused	:	Gray & Co Lawyers
Second-named Accused	:	George Guidice Law Chambers

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

The State of Western Australia v Higgins (2016) WASC 33

JUDGE STEVENSON:

[This judgment was delivered extemporaneously on 20 March 2018 and edited from the transcript.]

In this matter, the State alleges on Geraldton indictment number 61 of 2017 dated 15 February 2018 that the accused Guy Brian Gough and Grant Troy Densley committed three offences on 6 February 2017 at Wandina, namely, aggravated burglary and commit offence in a dwelling, aggravated unlawful assault and stealing. The victim of the alleged offence in each case is Reginald Leonard Bradshaw. Mr Bradshaw is now deceased, having died on 23 April 2017. The court is not aware of the circumstances of his death and it is not relevant to the issues to be determined today.
On 7 February 2017, the day after the alleged offences were committed, Mr Bradshaw made a written statement. The statement, therefore, was made 75 days before he died.
The application before the court today is by the State. It is dated 15 February 2018. The State applies pursuant to cl 7 of sch 3 of the Criminal Procedure Act 2004 (the CP Act) to read into evidence at the trial, to be held on a future date, the statement of Mr Bradshaw dated 7 February 2017. The statement purports to have been made by Mr Bradshaw at about 0040 hours on 7 February 2017 shortly after the commission of the alleged offences.
The amended statement of material facts dated 15 February 2018 alleges that the accused entered Mr Bradshaw's bedroom at 11 Crusader Heights, Wandina, at about 9.30 pm on Monday, 6 February 2017. Therefore, Mr Bradshaw's statement was made within three to four hours of the incident.
Clause 7(1) of sch 3 of the CP Act relevantly provides that:
A court dealing with a charge may admit into evidence a statement of a witness … if the court is satisfied that the statement complies with clause 4 … and clause 7 (1)(a) that the witness is dead.
It is properly conceded by both accused that the statement of Mr Bradshaw dated 7 February 2017 complies with the formal requirements set out in cl 4 of sch 3. Prima facie, therefore, the court may permit the State to read the statement into evidence at the trial of the accused pursuant to cl 7(1)(a) of sch 3 of the CP Act. That discretion is also to be exercised by reference to cl 7(5) of sch 3 which provides:
A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
In this case, both the accused Mr Gough and Mr Densley contend that the admission of the statement of Mr Bradshaw dated 7 February 2017 would be unfair to them. The position must, of course, be determined by reference to the issues likely to concern the jury at trial and they may, of course, be different with respect to each of the accused. Having said that, it would appear from the submissions made on behalf of both accused that there is some degree of overlap in relation to the factual inconsistencies said to arise from the statement of Mr Bradshaw and other witnesses who will be called to give evidence at the trial.
The discretion and the way in which the court must approach the issues raised by the application were conveniently summarised by his Honour Mitchell J (as he then was) in The State of Western Australia v Higgins (2016) WASC 33 [17]. Those principles were stated as follows (without stating the authorities relied upon for each proposition):
1.The unfairness to which cl 7(5) directs attention is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give his or her evidence-in-chief and in cross-examination at trial.
2.The fact that the statement concerns a central rather than a peripheral issue and is extremely prejudicial to an accused because of its tendency to show that he or she committed the charged offence is a factor in favour of the admission of the statement rather than its exclusion.
3.The appellate courts assess fairness by reference to the course of the trial. At this stage of the proceedings, I must consider the practical unfairness which would arise from the absence of the witness, given the likely course of the trial. Matters to be considered include whether there are other means of challenging the witness' evidence and whether the accused is unable to pursue lines of cross-examination to his or her material advantage.
4.In assessing unfairness, it will be relevant to note the opportunity which may be presented to the accused to give evidence concerning or affecting the absent witness without fear of contradiction.
5.The question of unfairness is also to be assessed in a context where the jury will be directed as to the need to treat evidence which cannot be the subject of cross-examination with caution.
It is necessary to consider whether unfairness occasioned by the fact that the witness is not called can be negatived by directions given by the trial judge. By way of comment at the outset, there is an element of artificiality in determining the application at this stage because the evidence which will be led at the trial will of course be the evidence of all the witnesses, and the evidence of the witnesses does not always reflect and is not always contained in their witness statement.
The exception in this case of course is with respect to the deceased complainant, Mr Bradshaw, because the only evidence the State can adduce is that evidence contained in his statement of 7 February 2017. Arguably it would be open for the application to be reconsidered, and arguably it would be open to the trial judge if the trial judge considered that the required direction, if the evidence is adduced, cannot be sufficient to overcome any unfairness to either of the accused depending on the evidenced to be adduced at the trial or how the evidence has in fact come out during the trial.
Notwithstanding this, a decision must be made today in relation to the State's application. Some comment was made in the course of submissions to all counsel which indicated that the parties have not yet, in my view, fully determined how they will proceed at trial so far as the accused are concerned in particular. That comment is made in light of the fourth comment made by Mitchell J in Higgins. The first comment was made in light of the third factor identified by Mitchell J where he says the fairness is to be assessed by reference to the course of the trial which requires, as I've already indicated, some assessment and some guesswork of what the evidence at the trial will be.
The parties have all filed written submissions. I have had the opportunity to read those submissions. I've also had the benefit of oral submissions today and these reasons for decision are informed in part by my discussions with counsel in the course of submissions in an effort to understand with precision the precise unfairness contended for by each of the accused in relation to their own respective position that would enliven the court's discretion at this stage to refuse the application, that is, to not permit the State to proceed to read into evidence the statement of Mr Bradshaw dated 7 February 2017.
It must be observed at the outset that this case is not on all fours with the position that Mitchell J was dealing with in Higgins. In this case, the State's submission is that there is other direct and circumstantial evidence which can be the subject of cross‑examination and comment by the accused in defence of the allegations made against them with respect to the counts on the indictment. It is the State's submission that this case, or more accurately each of the alleged offences on the indictment, does not stand or fall alone by reference to the evidence of the complainant, Mr Bradshaw.
The State contends that Mr Bradshaw's evidence, if admitted, can in fact be tested generally in the main by cross‑examination of other witnesses the State will call to give evidence at the trial. In particular for example, the State does not rely upon the evidence of Mr Bradshaw to prove the identity of Mr Densley. As I understand it, Mr Bradshaw is unable to provide relevant identification evidence of Mr Densley, and the State relies upon in particular the evidence of Master Grego and other evidence in this regard.
Turning to Mr Gough, the position Mr Gough is faced with is that he has made admissions in the course of a video record of interview that he was present in the Mr Bradshaw's bedroom at the time he was assaulted. I accept that there may be some factual issues at the trial as to whose acts caused the bodily harm to the complainant; that, of course, is two‑edged because it makes the importance of Mr Bradshaw's evidence in that regard more crucial and therefore, prima facie, more important that it should be left to the jury but on the other hand, there is other evidence from Master Grego as to the acts of Mr Gough with respect to Mr Bradshaw who, in any event, on his own admissions, he admits to assaulting at the relevant time.
The jury will have the benefit of the direct evidence of Mr Grego to the extent that he is able to give evidence of what he saw happen in Mr Bradshaw's bedroom, bearing in mind, of course, that his witness statement indicates that after the two accused entered the room, he left for a short period in order to obtain a bike, which he was instructed, on his evidence, to go and get by Mr Densley. The circumstances of the matters to which I have referred will of course be informed by the context and other evidence in the trial relied upon by the State to explain why the accused went to the place of Mr Bradshaw on this occasion and the purpose of doing so.
Some factual matters have been identified in the written submissions and also the oral submissions of counsel; they have been canvassed by counsel and I have engaged counsel with respect to those factual matters. I accept that there are some factual matters which arguably arise out of and do flow from the statement of Mr Bradshaw. For example in relation to the ownership of the laptop which may or may not be material at the end of the day with respect to count 3 on the indictment.
To the extent that there are inconsistencies, I am not persuaded it would be unfair to Mr Gough to admit the statement of Mr Bradshaw at the trial. Those inconsistencies will also be informed by other evidence, direct and circumstantial, proposed to be relied upon by the State. And cross‑examination of the other witnesses, in particular Master Grego and Ms Faithfull, will be possible. The position, as I said at the outset, with respect to Mr Gough has to be informed and understood in the context of the admissions made by him in the course of his video record of interview in relation to this matter. Bearing in mind, of course, in his first record of interview he denied being present and having any knowledge of the matter.
Identity with respect to Mr Gough is therefore unlikely to be in issue at the trial. I accept, of course, his credibility will be in issue, as will the credibility of Mr Bradshaw with respect to the acts that he attributed to Mr Gough in his statement of 7 February 2017 but this is not a case where the only evidence with respect to those matters – in particular the acts attributed to Mr Gough by Mr Bradshaw – is found in the evidence of Mr Bradshaw.
It cannot therefore properly be said, in my opinion, that it would be so unfair to Mr Gough in all the circumstances, such that the statement of Mr Bradshaw must be excluded. The submissions made on behalf of Mr Gough also include reference to evidence which arguably is irrelevant and does not go to any of the elements or issues likely to concern the jury at the trial. I accept, given some of the evidence on the prosecution brief, that evidence in relation to the extent of any relationship between Mr Bradshaw and Ms Faithfull may be relevant to the issue of motivation for both accused, although not as relevant for Mr Densley on the basis of the evidence that the complainant did not know Mr Densley and was therefore unable to identify him.
However, with respect to Mr Gough's purported reliance on the series of text messages between Mr Bradshaw and Ms Hall at a time after Ms Faithfull had made her statement to the police and he had made his statement to the police to the effect that she was pleading with him to in some way withdraw the complaint against Mr Gough in particular, at this point in time, I don't presently understand how that could be relevant to any issues in the trial or in a general way to the credibility of Mr Bradshaw or any other witness.
Having said that, I have read the unsigned statement of Ms Hall at prosecution brief page 52, which is entirely consistent in its content with the position that she adopted in the text messages sent to Mr Bradshaw. It is quite clear whose camp she is in from the text messages she sent to Mr Bradshaw and the result she was trying to achieve on behalf of Mr Gough. Forensically, it is difficult to understand or see how it could be in Mr Gough's interests to seek to adduce that evidence. Therefore, that is not something, in my view, which can properly be said to lead to unfairness for the purpose of this application.
The position with respect to Mr Densley is perhaps shorter. He relies on the same inconsistencies identified on behalf of Mr Gough in the prosecution brief and in particular, by reference to the statement of Mr Bradshaw and the statement of Mr Grego. In particular, Mr Densley relies upon the timing of when things happened by reference to the statements of Mr Bradshaw and Mr Grego insofar as entry by the accused into Mr Bradshaw's bedroom is concerned.
Again, it is difficult to understand, when the defence of Mr Densley is that he was not present, therefore putting his identity in issue, how that factual matter could have any relevance to the trial concerning him. As I understand it, it is accepted by Mr Densley that the identification evidence relied upon by the State comes from the statement of Mr Grego in particular by reference to his identification of him by his first name.
Mr Grego will obviously be a witness at the trial and Mr Densley through his counsel can, of course, cross-examine Mr Grego with respect to what he said in that regard. Therefore, there is no inherent or discernible unfairness to Mr Densley by allowing the statement of Mr Bradshaw to be admitted with respect to the issue of identification because Mr Bradshaw does not seek to identify Mr Densley in his statement as being involved in the incident.
Reference is also made on behalf of Mr Densley to the incident report provided to the court in the course of submissions which refers to, it would appear, a change in position by Mr Bradshaw at some point in time with respect to the identity of the second person involved in the alleged offences. Those entries, in my view, do not admit to any identification evidence by Mr Bradshaw of Mr Densley and, as I understand it, are not sought to be relied upon by the State in its case against Mr Densley.
Again, with respect, I fail to see or understand at this point how anything contained in those entries could be relevant to the issues in this trial insofar as they concern Mr Densley and, in particular, the issue of his identity. Mr Bradshaw does not seek to identify Mr Densley in that material or those communications.
Some other issues were raised by counsel on behalf of Mr Densley which may more properly be said to go to the issue of disclosure, for example, with respect to communications between police officers and Mr Bradshaw and Mr Grego and Mr Bradshaw at different points in time. Again, I don't see any unfairness as a result of those matters which would arise insofar as the admission of Mr Bradshaw's statement in the trial is concerned.
I have had regard to the other authorities referred to by Mitchell J in his decision and also in the submissions of counsel. At the end of the day, in my view, at this point of time, based on the material before the court and the issues as I understand them for the trial, I am not persuaded that it would be unfair to either accused if the State was to be permitted pursuant to cl 7 of sch 3 of the CP Act to read into evidence at the proposed trial the statement of Reginald Leonard Bradshaw dated 7 February 2017.
Although it does provide direct evidence which does go to central issues in relation to each of the counts on the indictment and the alleged involvement of the accused in those acts without identifying Mr Densley, it is not the only evidence in relation to the factual elements which the State is required to prove. I accept the submission of the State that all of the factual elements can be established by evidence other than that of Mr Bradshaw.
I also accept the State's submission that any prejudice or unfairness which will arise due to the inability of either accused to cross‑examine Mr Bradshaw can appropriately be dealt with by judicial direction from the trial judge about the caution which the jury must play when they come to consider and assess Mr Bradshaw's evidence in the absence of their ability to test that evidence and cross-examine him on any material issues of fact.
I also accept that, in general, the evidence of Mr Grego is largely consistent with the version of events outlined in Mr Bradshaw's statement and, as I've already indicated, both accused will have the opportunity to the extent they wish to cross-examine Mr Grego with respect to his version of events. In addition, each of the accused will have the benefit of the evidence of Mr Bradshaw as set out in his statement and will not face any reinforcement or fortification of that evidence by the witness in cross-examination.
Finally, in relation to Mr Densley, if his defence is that he was not there, then, of course, he must give consideration as to whether or not he wishes to file an alibi notice or simply put the State to proof of the allegations made against him.
With respect to the digiboard identification evidence, then, of course, together with the direction I've already referred to, the trial judge will ensure the trial is fair to each of the accused by giving the usual directions which apply to that type of evidence.
For these reasons, in my view, the State's application dated 15 February 2018 should be allowed. So the State is permitted to read into evidence at the trial of the accused the statement of Reginald Leonard Bradshaw dated 7 February 2017.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JUDGE C Stevenson
6 FEBRUARY 2019