The State of Western Australia v Dos Santos - [2014] WADC 21

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DOS SANTOS [2014] WADC 21

CORAM: BOWDEN DCJ

HEARD: 14 FEBRUARY 2014

DELIVERED : 14 FEBRUARY 2014

FILE NO/S: IND 1229 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MICHAEL DOS SANTOS

Catchwords:

Application for leave to adduce propensity/relationship evidence - Accused charged with aggravated burglary and assault occasioning bodily harm against former partner - Proposed relationship/propensity of violent, turbulent and abusive relationship over a five year period before the charged acts - Proposed propensity evidence more than 'transient ebullitions of annoyance and anger which immediately pass away'

Legislation:

Evidence Act 1906

Result:

Leave to admit propensity/relationship evidence granted

Representation:

Counsel:

The State of Western Australia : Ms C E Fitzgerald
Accused: Mr H C J Hoffman

Solicitors:

The State of Western Australia : Director of Public Prosecutions
Accused: Curt Hofmann

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

AJ v The State of Western Australia [2007] WASCA 228
AJE v The State of Western Australia [2012] WASCA 185
Asplin v The State of Western Australia [2013] WASCA 72
Barbour v The Queen (1939) 1 DLR 65
Bennett v The State of Western Australia [2012] WASCA 70
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia (2005) 31 WAR 122
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
KRM v The Queen (2001) 206 CLR 221
Mansell v The State of Western Australia [2009] WASCA 140
SJX v The State of Western Australia [2010] WASCA 243
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) 213 A Crim R 226
The Queen v Clark (2001) 123 A Crim R 506
The Queen v Iuliano [1971] VR 412
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Osborne [2007] WASCA 183
Wilson v The Queen (1970) 123 CLR 334
Zammit v The State of Western Australia [2007] WASCA 66

BOWDEN DCJ: The accused is charged with the following offences.
1.On 24 March 2003 at Beaconsfield while in the place of the complainant without her consent he committed the offence of aggravated assault occasioning bodily harm;
And that he was armed with an offensive instrument, namely a knife;
And that he threatened to kill the complainant;
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place
And that place was ordinary used for human habitation.
2.On the same date and at the same place he unlawfully assaulted the complainant and thereby did her bodily harm;
And that he was in a family and domestic relationship with the complainant;
And that a child was present, namely BR.

Allegations against the accused

It is alleged the accused and the victim had been involved in a volatile domestic relationship for about seven years, the relationship having ended in October or November 2012, approximately five months before the alleged offences occurred.
It is said that the accused had not been living with the complainant since the relationship ended.
It is alleged that on 24 March 2013, the complainant heard noises in her backyard and rang a friend of hers who subsequently sent her husband to the complainant's house.
It is further said that around about two and half hours later whilst the complainant and her friend's husband were in the kitchen, there was a knock on the kitchen window. It is said that the accused could be heard shouting from outside and then punched the kitchen window, smashing the glass and accused the complainant and her friend's husband of having an affair.
The accused is then alleged to have climbed through the window at which time the complainant's two children entered into the kitchen. The complainant ushered her children to another room and returned to the kitchen and asked her friend's husband to leave. When that occurred, the accused is alleged to have become aggressive, yelling and shouting at the complainant and accusing her of having an affair. The complainant's youngest child then came into the room where he was picked up and taken by the complainant to the living room. The accused is then alleged to have punched the complainant with a clenched fist to the head, slapped her with a back-hand to the face, grabbed her throat, squeezed it in a choking manner, threatened to kill her, grabbed her hair, banged her head against the floorboards and kicked her to the body and legs. The complainant's son BR tried to pull the accused of his mother but, it is said, was pushed away by the accused.

The proposed propensity/relationship evidence

The State wish to lead evidence of four distinct incidents.
The 2008 incident where it is alleged that the accused assaulted the complainant in the bathroom by pushing her into a sink following an argument.
The 2009 incident where it is alleged the accused kicked the complainant's feet from under her causing her to fall to the floor and then punched her all over her bodily.
The 2010 incident where it is alleged the accused grabbed the complainant by the hair and hit her around the arms.
The 2012 incident where it is alleged the accused and the complainant were arguing and when her son BR told the accused to leave his mother alone he was grabbed by the neck and pushed back towards his room by the accused.
Further, the State wish to lead evidence of a general turbulent and physically abusive relationship over the period the accused and complainant were together resulting in either her or her son calling the police on many occasions.

The State's submission

The State says that as accused has made no formal admissions all matters remain in issue.
The State say the proposed propensity evidence demonstrates the accused's tendency to behaviour in a violent and threatening manner towards the complainant and demonstrates his attitude and conduct towards the complainant over a period of time.
They say that the proposed evidence shows the accused's course of conduct towards the complainant over a period of time which includes verbal abuse and actual physical assaults within the context of intimate personal relationship and its subsequent breakdown.
They say this establishes that the accused has a tendency to abuse the complainant physically and that tendency significantly increases the likelihood that a fact in issue occurred, namely whether the assaults were committed by the accused on the complainant.
They say the evidence is also relevant to rebut any innocent explanation offered by the accused to explain his presence in the house without consent, how the complainant's injuries were causes and how any injuries that he sustained were caused.
They further say that to leave the jury in ignorance about the nature of the relationship and the complete context of the accused behaviour towards the complainant could lead to a misapprehension on the jury's part as to whether the offence has actually occurred because without knowing the full extent of the relationship and just looking at the charged acts in isolation would make little sense and may lead the jury to consider that the charged acts occurred out of the blue and for no apparent reason.

The defence submissions

The defence says, inter alia, that the four discrete incidents alleged:
1.Have not been the subject of any charges and the accused has not been convicted of any offence relating to those incidents nor has the complainant version of those events been previously test in cross‑examination.
2.Do not represent an accurate account of the totality of the 10 year relationship between the parties as they do not show that the accused's conduct towards the complainant was primarily one of discord or violence or that the relationship was marred consistently by the accused's violent conduct.
3.Do not portray the complainant's problematic and violent behaviour towards the respondent.
4.Does not demonstrate any propensity or tendency on the accused to behaviour violently or in a threatening manner towards the complainant
5.Could result in the defence having to cross-examine the complainant over all matters arising over the 10 year relationship and would mean that the trial would not be completed within the three days presently allocated.
Similar arguments are made in respect of the other propensity evidence the state wishes to leave.
The defence say the evidence is not significantly probative. They say the admission of the propensity evidence could confuse the jury and lead them to concentrate on whether the accused is criminally responsible for those four instances rather than concentrating on the two charged acts and the jury could critically over-value the probative effect of the propensity evidence by indulging in propensity reasoning resulting in an unfair trial which a judicial direction could not correct.

Section 31A of the Evidence Act 1906

For evidence to be admitted pursuant to s 31A of the Evidence Act the evidence must be:
(a)relationship and/or propensity evidence;
(b)have significant probative value; and
(c)the probative value of the evidence compared to the degree of risk an unfair trial must be 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.

Is it propensity evidence?

The Evidence Act defines propensity evidence, inter alia, as 'other evidence of the conduct of the accused' and relationship evidence as evidence of 'the character or reputation of the accused person or a tendency that the accused person has or had'.
This definition is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
The proposed evidence is evidence of the conduct of the accused and is clearly propensity evidence and it is also evidence of a tendency that he has or had and is relationship evidence.

Is the evidence of significant probative value?

To be of probative value, the evidence must be evidence that 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings and explain a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P).
To have significant probative value, the evidence must be more than merely relevant, it must be evidence that’s probative value is important or of consequence, and evidence that rationally affects, directly or indirectly, the assessment of the probability of a relevant fact in issue to a significant extent: Dair (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194 (Miller & Buss JJA); Stubley v The State of Western Australia [2011] HCA 7 [11].
The probative value of the evidence may lie in the fact that it discloses some feature which raises as a matter of common sense and experience the objective improbability of its bearing any explanation consistent with the accused's innocence.
In determining whether the evidence has significant probative value the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) 213 A Crim R 226 [35].
The accused has made no formal admission in relation to any fact in issue at the trial and absent such admission, the State is entitled to present its case on the basis that all facts are in dispute.
Insofar as the 2012 incident is concerned, this is an incident involving violence by the accused towards BR. BR's evidence of what he saw the accused do to his mother is clearly admissible as it shows the accused's propensity to behave violent towards the mother. However, BR's evidence as to what the accused did to him is only admissible as part of the res gestae and not admissible to show any tendency to behave violently towards BR (as this is irrelevant to the charges) or to show a tendency to be violent to his mother.
Evidence of the relationship between the accused and the complainant is admissible at common to put the facts in their proper context so the jury can understand the charges alleged to have committed by the accused against the background of the relationship that has existed between the parties: Wilson v The Queen (1970) 123 CLR 334, 399.
The evidence is admissible not simply because it describes the relationship of the parties, but because the acts of the parties occurring within that relationship are relevant to issues before the jury particularly whether the parties had a good relationship despite differences and disagreements or whether theirs was relationship in which violence occurred during the course of disagreements. For a jury not to be aware of events, throwing light upon their relationship, would be to require the jury to decide the issues in a vacuum rather than in the context of the true relationship between them: Wilson v The Queen.
On this basis, the evidence of the accused's violent acts towards the complainant are admissible at common law as showing the context or the nature of the relationship between the parties and therefore relevant to a fact in issue. By showing the kind of relationship that the parties had, it assists the jury in the evaluation of the complainant's evidence and as such is relevant to a fact in issue.
In addition, this evidence is admissible as tendency or propensity evidence. It shows the accused has animosity on his part on occasions towards the complainant and that manifests itself in acts of violence towards her.
Evidence capable of establishing violence at one point during a relationship is relevant to show what has occurred at another point in their relationship.
The evidence sought to be adduced by the prosecution is more than an isolated transient flare up of anger or annoyance which immediately passes away and leads to nothing: Barbour v The Queen (1939) 1 DLR 65, The Queen v Clark (2001) 123 A Crim R 506.
It is evidence which show that the accused man has a tendency to allow his anger towards the complainant to manifest itself in acts of violence towards her, and as such, is evidence of significant probative value because it is makes it more likely that the accused was the offender and the events occurred as the complainant alleges.
It is not necessary that any particular incident should by itself and of its own force show a relationship of enmity or distrust, it is sufficient if the incident makes a contribution which is not insignificant or unsubstantial to a climate of antipathy: The Queen v Iuliano [1971] VR 412, 416.
The proposed propensity evidence goes toward proving a fact in issue namely a relationship between the accused and complainant which is explanatory of the accused’s conduct: Iuliano.
The fact that the accused has not been convicted of these offences is no prohibition to the State leading this evidence if it fits the s 31A criteria.
Whether it represents an accurate account of the totality of events occurring in their relationship, is, with respect, not the point. If accepted by the jury, the propensity evidence is capable of establishing that the accused has a tendency to allow his anger towards the complainant to manifest itself in violence towards her and that renders it more likely that he did so on this occasion and that is evidence which is significantly probative.
The fact that it may result in the defence having to cross-examine the complainant over the matters arising during their relationship, is not grounds to exclude the otherwise admissible evidence. Any fears that the defence have as to time constraints of the trial will be accommodated by making more days available for the trial.
It is for a jury to decide whether evidence is to be accepted, and if so, what weight to give it. In assessing whether the evidence has significant prohibitive value, the evidence is to be taken at its highest from the prosecutions perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: AJ v The State of Western Australia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.
The time gap is a factor to be considered, however in this case, the continuity of the alleged violence over a number of years only reinforces the accused pattern of violent behaviour towards the complainant when arguments occur.
The probative value of the evidence must be considered in all of the circumstances of the case and will depend on a variety of circumstances which cannot be exhaustively defined: Bennett v The State of Western Australia [2012] WASCA 70 [33], [36] (Martin CJ). In SJX v The State of Western Australia [2010] WASCA 243.
Evidence can have significant probative value even though the acts are not identical or similar to the charged acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66], Onekawa [50] ‑ [55]. The proposed propensity evidence and the charged offences all have their genesis in the anger of the accused towards the complainant in respect of some aspects of their relationship manifesting itself in violent behaviour towards her notwithstanding that some acts occurred whilst they were together and the charged acts occurred after they were separated.
The evidence, with the exception of the 2012 incident, can be led by the state to show both the context and nature of the relationship between the parties and as establishing a tendency of the accused to allow his anger towards the complainant to manifest itself in acts of violence.

Is the probative value compared to the degree of risk of an unfair trial such that a fair-minded person would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial?

Section 31A requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial. The risk of an unfair trial is not one which should be downplayed: Preston.
The weighing process in s 31A(2)(b) requires weighing incommensurable matters, and making an assessment of what a hypothetical fair-minded person would think and not what the presiding judicial officer would think: Asplin v The State of Western Australia [32].
There is no common law discretion to exclude evidence that satisfies the s 31A criteria, on the grounds that its admission would be unfair or because its probative value is substantially outweighed by its prejudicial effect: Donaldson v The State of Western Australia (2005) 31 WAR 122 [140] (Roberts-Smith JA).
The introduction of propensity/tendency evidence is always likely to involve the risk of an unfair trial: Di Lena.
The unfairness does not mean the increased ability of the prosecution to prove their case by asking a jury to draw rational inferences. However, it does include a two-fold risk that firstly, it may have an adverse effect on the juries perception of the accused and they may reason that they can convict the accused because he behaved in the way alleged in the propensity evidence and therefore he must have committed the offences alleged, and secondly, it also encompasses the risk that the jury will decide the case on an improper or irrational basis rather than a logical one connected with the issues, and particularly that they may put more weight than is logically justified on the propensity evidence or be overwhelmed by it: Tasmania v Martin (No 2) [63]; Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts‑Smith JA).

The defence are concerned that a jury may over emphasise the importance of the evidence and concentrate on determining whether or not the accused committed the other acts of alleged violence against the complainant as alleged in the propensity evidence.
As HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 makes clear the jury may be instructed that they may not necessarily need it to decide whether the other conduct towards the complainant occurred. They may for example be satisfied of the accused's guilt of the charge they are then considering even if they are unable to decide or do not find it necessary to consider whether the other conduct towards her occurred and even if they were satisfied that other conduct occurred they could still entertain a reasonable doubt in respect of the count they are then considering.
The jury would of course be instructed that it does not follow just because the accused had been involved in other violent conduct towards the complainant on another date on another occasion that he is guilty of the offence they are then considering and the jury could only convict on the count that they are considering if they are satisfied that all of the elements of that particular count were established.
It is accepted that, a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65] (Steytler P); Mansell v The State of Western Australia [2009] WASCA 140 [49] (Martin CJ).
In almost all cases any risk of the propensity evidences misuse can be overcome by an appropriate direction to the jury about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA); Mansell.
Fair‑minded people are 'members of the public who are not lawyers, who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all relevant circumstances': Dair (Steytler P) [66].
For the jury not to be informed of the full extent of the relationship between the parties and the alleged violent behaviour of the accused towards the complainant would lead the jury to consider the case without full knowledge of the relationship between the parties and lead them to consider the accused's conduct in relation to the alleged offence as if that conduct had simply occurred, 'out of the blue' and was a seemingly inexplicable or fanciful incident. In those circumstances I consider fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I grant leave to the State to lead the proposed evidence as relationship and propensity with the exception of the 2012 incident. Evidence of what occurred to BR during the 2012 incident is admissible only as part of the res gestae.

The standard of proof

The State correctly accept that the jury should be instructed that if they conclude on the basis of the propensity evidence that the accused had a tendency to behave violent towards the complainant, they must be satisfied beyond reasonable doubt of the existence of that tendency on the basis that establishing that propensity is an essential step in the reasoning to guilt: AJE v The State of Western Australia.