The State of Western Australia v Edwards
[2019] WASC 87
•20 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2019] WASC 87
CORAM: HALL J
HEARD: 14, 18 - 20 FEBRUARY 2019 &
FURTHER WRITTEN SUBMISSIONS ON 1 & 15 MARCH 2019
DELIVERED : 20 MARCH 2019
FILE NO/S: INS 164 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRADLEY ROBERT EDWARDS
Accused
Catchwords:
Criminal law - Evidence - Propensity evidence - Section 31A Evidence Act - Whether evidence of uncharged conduct is propensity evidence - Whether evidence relevant to particular counts is admissible in respect of other counts as propensity evidence - Whether evidence has significant probative value - Whether 'fair minded people' test met
Whether evidence of possession of pornography is admissible as being relevant to the issue of identity of the offender - Whether evidence capable of rationally affecting the question of whether the accused is the offender in respect of any of the counts
Joinder of counts in the indictment - Whether all counts formed a series of offences of the same or similar type - Whether nexus established by cross-admissibility of evidence - Whether charges should be separately tried - Section 133 Criminal Procedure Act - Whether any prejudice from a joint trial can be guarded against
Legislation:
Criminal Procedure Act 2004 (WA), s 85, s 133, sch 1 div 2 cl 2, cl 7 & cl 9
Evidence Act 1906 (WA), s 31A
Result:
The Huntingdale prowler evidence is admissible only in respect of counts 1 and 2;
the Huntingdale offences evidence is admissible in respect of all counts;
the Hollywood Hospital evidence is admissible in respect of all counts;
the Telstra Living Witness Project evidence is admissible only in respect of counts 3 to 8;
the Karrakatta offences evidence is admissible in respect of all counts;
the Pornography evidence is inadmissible; and
the application for a separate trial of counts 1 and 2 is dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | Ms C Barbagallo SC & Ms S J Bowman |
| Accused | : | Mr P D Yovich SC & Ms G M Cleary |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Mony De Kerloy |
Case(s) referred to in decision(s):
APC v The State of Western Australia [2012] WASCA 159; (2012) A Crim R 59
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HCP v The State of Western Australia [2019] WASCA 38
Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187
JAW v The State of Western Australia [2016] WASCA 40
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kalani v The State of Western Australia [2013] WASCA 132; (2015) 48 WAR 178
Leaman v The Queen (1987) 28 A Crim R 104
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Makin v Attorney‑General (NSW) [1894] AC 37
Mansell v The State of Western Australia [2009] WASCA 140
McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Kray [1970] 1 QB 125; [1969] 3 All ER 941
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
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Roe [No 2] [2015] WASC 387
The State of Western Australia v Wark [2017] WASC 154
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
Table of Contents
The prosecution case
The State application to lead propensity evidence
Matters not in issue
Admissions
Propensity evidence - the relevant principles
Huntingdale prowler evidence
Summary of evidence
State's submissions
Defence submissions
Admissibility of the Huntingdale prowler evidence
The Huntingdale offences evidence
Summary of evidence
State's submissions
Defence submissions
Admissibility of the Huntingdale offences evidence
The Hollywood Hospital offence evidence
Summary of evidence
State's submissions
Defence submissions
Admissibility of the Hollywood Hospital evidence
Telstra Living Witness Project evidence
Summary of evidence
Admissibility of the Telstra Living Witness Project evidence
The Karrakatta offences evidence
Summary of evidence
State's submissions
Defence submissions
Admissibility of the Karrakatta offences evidence
Pornography evidence
Summary of evidence
State's submissions
Defence submissions
Admissibility of the pornography evidence
Separate trial application
Relevant principles ‑ joinder
Conclusion ‑ joinder
Relevant principles ‑ the discretion to order separate trials
Conclusion ‑ Severance
Conclusions
HALL J:
Summary
The accused is charged on an indictment containing eight counts, including three counts of wilful murder. He has pleaded not guilty to the charges and a nine‑month trial is listed to commence on 22 July 2019. An order has been made that the trial be by judge alone.
The charges in the indictment are as follows:
Count 1On 15 February 1988, at Huntingdale, the accused broke and entered the dwelling‑house of EWH with intent to commit an offence therein and the offence was committed at night.
Count 2On the same date and at the same place as count 1, the accused unlawfully deprived ALH of her personal liberty
Count 3On 12 February 1995, at Claremont and elsewhere, the accused unlawfully detained KJG.
Count 4On the same date as in count 3, at Karrakatta, the accused sexually penetrated KJG without her consent, by penetrating her vagina with his penis, and did bodily harm to KJG, and did an act which was likely to seriously and substantially degrade or humiliate KJG.
Count 5On the same date and at the same place as count 4, the accused sexually penetrated KJG without her consent, by penetrating her anus with his penis, and did bodily harm to KJG, and did an act which was likely to seriously and substantially degrade or humiliate KJG.
Count 6On or about 27 January 1996, at Claremont and elsewhere, the accused wilfully murdered Sarah Jane Spiers.
Count 7On or about 9 June 1996, at Claremont and elsewhere, the accused wilfully murdered Jane Louise Rimmer.
Count 8On or about 15 March 1997, at Claremont and elsewhere, the accused wilfully murdered Ciara Eilish Glennon.
Hereafter, I will refer to counts 1 and 2 as the Huntingdale offences, counts 3 to 5 as the Karrakatta offences and counts 6 to 8 as the Claremont murder offences. I do so for ease of reference and without any implication that any of the charges have been proved. All of the charges are allegations and no evidence to support those allegations has been adduced at this stage.
The prosecution filed an application seeking a ruling that certain evidence is admissible pursuant to s 31A of the Evidence Act 1906 (WA) as propensity or relationship evidence, or alternatively pursuant to common law. The evidence that is in dispute falls into six categories. These categories will be referred to in these reasons as the Huntingdale prowler evidence, the Huntingdale offences evidence, the Hollywood Hospital evidence, the Telstra Living Witness Project evidence, the Karrakatta offences evidence and the Pornography evidence. The prosecution seeks rulings that the evidence in each category is admissible in respect of all counts in the indictment.
The defence filed an application seeking an order that counts 1 and 2 (the Huntingdale offences) be tried separately from the remaining charges. That application is based upon a claim that the Huntingdale offences do not form part of a series of offences of the same or similar character as counts 3 to 8. The defence accepts that this argument can only succeed if evidence in respect of the Huntingdale offences is held not to be admissible in respect of the other counts.[1] That is, if evidence in respect of counts 1 and 2 is cross‑admissible with evidence in respect of the other counts, an argument that there should be a separate trial cannot be maintained because sufficient nexus between the charges would have been established.
[1] Defence Submissions in Reply filed 8 February 2019 (Defence Reply) [3].
For the reasons that follow, I have come to the following conclusions:
(1)the Huntingdale prowler evidence is admissible only in respect of counts 1 and 2;
(2)the Huntingdale offences evidence is admissible in respect of all counts;
(3)the Hollywood Hospital evidence is admissible in respect of all counts;
(4)the Telstra Living Witness Project evidence is admissible only in respect of counts 3 to 8;
(5)the Karrakatta offences evidence is admissible in respect of all counts;
(6)the Pornography evidence is inadmissible; and
(7)the application for a separate trial of counts 1 and 2 must be dismissed.
The prosecution case
The State's case against the accused may be summarised as follows.
With regard to counts 1 and 2, the State alleges that on 15 February 1988, the accused entered a house in Huntingdale at night, with the intention of sexually assaulting the complainant. The complainant, who was aged 18 at the time, was asleep in her bedroom. The State case is that the accused entered the property through an unlocked door, closed the bedroom doors of other family members, unplugged the telephone and went into the complainant's bedroom. He then straddled the complainant, who was lying on her stomach, and pinned her down by placing his knees on either side of her back, one hand on the back of her head and the other hand over her mouth. He attempted to force a cloth or piece of material into her mouth. She managed to turn to her side and scratch her attacker, who then ran from the room. Throughout, the attacker did not speak to the complainant. Two items were left behind by the attacker, being a kimono and a pair of knotted stockings. In 2016, DNA examination of spermatozoa on the kimono revealed a DNA profile matching that of the accused.[2]
[2] State Submissions filed 25 January 2019 (State Submissions) [102]; ts 171 - 172.
In relation to counts 3 to 5, the State alleges that the accused grabbed the complainant, who was then aged 17 years, from behind whilst she was walking in Claremont in the early hours of the morning of 12 February 1995. He pushed her to the ground, bound her hands behind her back, forced a cloth into her mouth, placed a hood over her head and bound her feet. She was then carried to and placed in a nearby vehicle, which was then driven to Karrakatta cemetery, where she was sexually penetrated without consent. The complainant was dropped into nearby bush and later observed a white van, which she believed to be driven by the accused, driving by. DNA swabs taken from the complainant were compared to a sample of the DNA of the accused in 2016 and found to be a match.[3]
[3] State Submissions [122]; ts 180 - 182.
In relation to count 6, the State case is that in the early evening of Friday, 26 January 1996, Sarah Spiers went to the Ocean Beach Hotel in Cottesloe. She was 18 years old. At about midnight, she was driven by her sister to Claremont where she went to Club Bayview in St Quentin's Avenue, where she stayed until around 2.00 am. She then left the club, walked to a Telstra telephone box on the western corner of Stirling Road, made a telephone call and asked for a taxi to take her to Mosman Park. A taxi driver was dispatched to collect her, but the driver did not see anyone waiting, so he continued on and collected a fare in St Quentin's Avenue. Ms Spiers was last seen alone leaning up against a Telstra bollard at the eastern corner of Stirling Road. Between 2.30 am and approximately 3.00 am there was a series of screams heard within a small area in Mosman Park, consistent with a female in distress. Since that time, Ms Spiers has not made contact with friends or family and there has been no access to her bank account or medical services. She is not recorded as having left Australia. The State case is that the accused took Ms Spiers and murdered her.[4]
[4] State Submissions [123]; ts 182 - 183.
In relation to count 7, the State case is that in the early evening of Saturday, 8 June 1996, Jane Rimmer went to the Shenton Park Hotel. She was 23 years old. Sometime after 8.00 pm, she caught a taxi from Nedlands to the Ocean Beach Hotel, Cottesloe, where she met with some friends. Sometime between 9.30 pm and 10.00 pm, she left with her friends and want to the Continental Hotel on the corner of Bayview Terrace and Gugeri Street, Claremont, where they stayed until shortly before midnight. A taxi was called and Ms Rimmer's friends got in, but she declined to join them. She was last seen by her friends on the footpath outside the entrance to the Continental Hotel on Bayview Terrace, just after midnight. Ms Rimmer's naked body was discovered in bushland off Woolcott Road, Wellard on 3 August 1996. The body was concealed with branches which were torn from nearby trees. A knife with a Telecom Australia logo was found on Woolcott Road on the same day. The cause of death could not be determined, however post‑mortem examination revealed a prominent defect to her neck, which was consistent with an injury. Later forensic examination revealed the presence of numerous fibres in Ms Rimmer's hair. The composition of some of the fibres is consistent with having come from a 1996 VS Series 1 Holden Commodore or the equivalent Toyota Lexcen. Telstra records indicate that the accused was allocated a 1996 VS Series 1 Holden Commodore station wagon (for work and private use) as at 9 June 1996. The State case is that the accused took Ms Rimmer and murdered her.[5]
[5] State Submissions [124]; ts 183 - 185.
In relation to count 8, the State case is that in the early evening of Friday, 14 March 1997, Ciara Glennon was at a function at the law firm at which she worked in Perth. She was 27 years old. From there, she and some colleagues were given a lift by another colleague to Claremont, where they went to the Continental Hotel, arriving there at about 11.30 pm. Shortly before the hotel was due to close at midnight, Ms Glennon told friends she was leaving. At about 11.45 pm, she walked in a southerly direction down Bayview Terrace and she was later seen on Stirling Highway between Leura Avenue and Stirling Road. A person fitting Ms Glennon's description was seen interacting with motor vehicles. In particular, two witnesses saw her appear to talk through the passenger window of a car described as a white late model Holden Commodore station wagon, which pulled up beside her. One witness describes it as being a VR or VS Holden Commodore station wagon. Telstra records indicate that the accused was allocated a white VS Series 1 Holden Commodore station wagon (for work and private use) as at 15 March 1997. On 3 April 1997, Ms Glennon's body was found in bushland near Pipidinny Road, in Eglington. She was fully clothed and the body was concealed with branches which were torn from nearby trees. The cause of her death was determined as 'consistent with a neck injury'. In 2009, a forensic examination revealed the presence of a mixed DNA profile originating from at least two individuals in a sample from two fingernails on the left hand of Ms Glennon. The mixed DNA profile is consistent with coming from two contributors, being Ms Glennon and a male. The male component of the mixed DNA profile matches the accused's DNA profile. The State case is that the accused took Ms Glennon and murdered her.[6]
[6] State Submissions [125]; ts 185 - 187.
The State application to lead propensity evidence
The State's application is in the following terms:
1.In any trial on Indictment INS 164 of 2018 the State be permitted to lead evidence of the following conduct of the accused as propensity and/or relationship evidence pursuant to section 3lA of the Evidence Act 1906 (WA):
(a)The conduct of the accused in the Hollywood Hospital offence as described in the statement of [the complainant] dated 8 February 2017 and in respect of which the accused pleaded guilty and was convicted in the Perth Court of Petty Sessions on 1 June 1990.
(b)The conduct of the accused in the Huntingdale Prowler Series of offences.
(c)The conduct of the accused in the Telstra Living Witness Project.
(d)The conduct of the accused in possessing, authoring, and/or contributing to the Karen Stories, the Chloe Story, the Nicola Story, the Sophie Story, the Sleepover Story, the Drunk Woman Story, the Erin Story and the Bree Story, which were located on electronic devices.
(e)The conduct of the accused in downloading and possessing pornographic recordings and photographs depicting the rape of women and violence perpetrated upon women.
(f)The conduct of the accused in possessing or having possessed a pornographic recording entitled 'Forced Entry', released by Extreme Associates in April 2002.
(g)The conduct of the accused in performing online searches for websites depicting the rape of women and violence perpetrated upon women.
2.In any trial on Indictment INS 164 of 2018 the conduct of the accused in certain counts on the Indictment, if proven, is admissible as propensity and/or relationship evidence pursuant to section 3lA of the Evidence Act 1906 (WA) with respect to other counts on the Indictment, as set out below, and with such evidence being utilised to reason that the accused is more likely to have committed the count under consideration.
(a)Counts (1) and (2) (the Huntingdale offences) with respect to:
i.Counts (3), (4) and (5) (the Karrakatta offences), and
ii.Counts (6), (7) and (8) (the Claremont Series), individually or in any combination of those counts.
(b)Counts (3), (4) and (5) (the Karrakatta offences) with respect to:
i.Counts (1) and (2) (the Huntingdale offences), and
ii.Counts (6), (7) and (8) (the Claremont Series), individually or in any combination of those counts.
(c)Counts (6), (7) and (8) with respect to each other.
(d)Counts (6), (7) and (8) (the Claremont Series), individually or in any combination of those counts, with respect to Counts (3), (4) and (5) (the Karrakatta offences).
3.The State gives notice of its intention to lead evidence of the following conduct of the accused as common law circumstantial evidence relevant to a fact in issue, and which evidence is critically linked to the applications in paragraphs (1) and (2) above:
(a)The conduct of the accused in wearing, collecting and/or maintaining a collection of women's underwear and garments.
(b)The conduct of the accused in the Huntingdale Prowler Series of offences.
(c)The conduct of the accused in the Telstra Living Witness Project.
(d)The conduct of the accused in possessing, authoring, and/or contributing to the Karen Stories, the Chloe Story, the Nicola Story, the Sophie Story, the Sleepover Story, the Drunk Woman Story, the Erin Story and the Bree Story, which were located on electronic devices.
(e)The conduct of the accused in downloading and possessing pornographic recordings and photographs depicting the rape of women and violence perpetrated upon women.
(f)The conduct of the accused in possessing or having possessed a recording entitled 'Forced Entry' released by Extreme Associates April 2002.
(g)The conduct of the accused in performing online searches for websites depicting the rape of women and violence perpetrated upon women.
Paragraph 1 of the application identifies categories of evidence that do not relate directly to any of the counts but are said to be admissible as propensity or relationship evidence. Paragraph 2 of the application identifies evidence relating to particular counts in the indictment which is said to be admissible as propensity evidence in respect of other counts. In respect of paragraph 1, the issues are whether the evidence is admissible at all, and if so, in respect of which counts. In respect of paragraph 2, the evidence is obviously admissible in respect of the count or counts to which it directly relates and the issue is whether it is admissible in respect of other counts.
As to paragraph 3, this was not the subject of any detailed submissions (except in regard to the Pornography evidence). As regards 3(a), the defence accepts that this evidence is relevant and admissible with respect to counts 1 and 2 and the State does not assert any relevance beyond that.[7] As to 3(b) and 3(c), if admissible at common law, it could only be as similar fact evidence and this is subsumed into s 31A. As to 3(d) to 3(g), they are identical to 1(d) to 1(g) and the State did advance an alternative basis for admissibility in respect of this evidence.
[7] ts 211.
The evidence referred to in paragraphs 1 (d) to 1 (g) and 3(d) to 3(g) of the application will be dealt with together in these reasons under the heading 'pornography evidence'. At the directions hearing, the State abandoned reliance on s 31A of the Evidence Act as a basis for admissibility of the Pornography evidence.[8] In the alternative, the State submitted that the Pornography evidence was admissible on the basis that it was relevant to the proof of identity of the offender in respect of all charges. This submission will be canvassed in more detail later in these reasons.
[8] ts 293.
Matters not in issue
The defence accepts that evidence of, and relating to, counts 3 to 5 is admissible in the trial of counts 6 to 8, and vice versa. It is also accepted that evidence of, and relating to, each of counts 6 to 8 individually is admissible on each of the other counts in that group. This concession is based on the evidence being admissible under s 31A as propensity evidence as 'similar fact or other evidence of the conduct of the accused person' and also, possibly, on the basis of the tendency identified by the State. However, it is not conceded that the evidence is admissible on the basis of a more general tendency or as relationship evidence.[9]
[9] Defence Reply [5].
The defence also accepts that the Huntingdale prowler evidence is admissible in respect of counts 1 and 2.[10] Whilst the written submissions do not specify the basis for this concession, it can be assumed to be similar to that referred to in the previous paragraph, namely that the evidence is 'similar fact or other evidence of the conduct of the accused person' and also evidence of a tendency identified by the State. However, the defence does not accept that this evidence is admissible in respect of the other counts in the indictment.
[10] Defence Reply [7].
The defence accepts that the Telstra Living Witness Project evidence is admissible in respect of counts 3 to 8. Again, presumably on the same basis, as propensity evidence. However, it is not accepted that this evidence is admissible in respect of counts 1 and 2 in the indictment.[11]
[11] Defence Reply [8].
In my view, these concessions are properly made. The evidence in each case is propensity evidence that is relevant to the issue of identification of the offender. In each case, the evidence has significant probative value and meets the fair‑minded person test referred to in s 31A. More will be said about the Huntingdale prowler and Telstra Living Witness project evidence later in these reasons.
Admissions
The accused also made some admissions of fact at the directions hearing, pursuant to s 32 of the Evidence Act. These are relevant in any assessment of what facts remain in issue. The admissions are:
1.On 14 and 15 February 1988, I did not have the consent of any person to enter the dwelling‑house of [EWH].
2.On 11 and 12 February 1995, I did not have the consent of [KJG] to sexually penetrate her.
3.On 11 and 12 February 1995, I did not believe that I had the consent of [KJG] to sexually penetrate her.
4.On 11 and 12 February 1995, I did not have the consent of [KJG] to engage in any sexual act with her.
5.On 11 and 12 February 1995, I did not believe that I had the consent of [KJG] to engage in any sexual act with her.
These admissions do not imply any admission by the accused that he did enter the house referred to in count 1 or that he did sexually penetrate the complainant in counts 3 to 5. They simply mean that there will be no issue in relation to the elements the subject of the admissions.
Propensity evidence - the relevant principles
Section 31A of the Evidence Act provides:
(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.
Generally speaking, evidence that does no more than show that the accused has a bad character, or has done other criminal or disreputable things, is not admissible.[12] This is because such evidence will usually not meet the basic test of relevance. At common law, an exception is made where evidence of other conduct of an accused person is so strikingly similar that it is capable of supporting an inference that the accused committed the offence.[13] Such evidence is referred to as similar fact evidence. The purpose of s 31A is to encompass similar fact evidence, but also to extend the categories of admissible evidence relating to the conduct of an accused person.[14] Section 31A provides that propensity or relationship evidence is admissible if the court considers that the evidence meets the two tests contained in s 31A(2), namely that it is of significant probative value and 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.
[12] See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [118], [129]; Makin v Attorney‑General (NSW) [1894] AC 37; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 480 ‑ 481.
[13] Pfennig 480 - 481; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 535, 553 ‑ 554, 560.
[14] The State of Western Australia v Wark [2017] WASC 154 [44]; Donaldson [117].
Where a party seeks to rely on s 31A as a basis for the admissibility of evidence, the first question is whether the evidence is 'propensity' or 'relationship' evidence. Those phrases are defined in s 31A(1) in very broad terms. As Pritchard J (as her Honour then was) observed in The State of Western Australia v Wark, the definition of propensity evidence does not describe the nature of that evidence, but merely defines it by reference to other kinds of evidence.[15] Her Honour said that in order to determine what evidence falls within the description of propensity evidence, it is necessary to also bear in mind the meaning of the word propensity as being 'a natural or habitual inclination or tendency' and 'a pre‑disposition or inclination to, towards, or for a particular action, habit, quality etc; a tendency to do something'.[16] It is also necessary to take into account the well‑recognised forms of propensity evidence at common law. Her Honour concluded that the words 'other evidence of the conduct of the accused person'[17]
must be construed as any evidence of the conduct of the accused person which demonstrates, or is capable of demonstrating the accused has a propensity ‑ that is, an inclination to commit crime, or crime of a particular kind, or an inclination to behave in a particular way ‑ which is capable of supporting an inference that the accused is the person, or the sort of person, likely to have committed the alleged offence.
I agree with her Honour's analysis.
[15] Wark [40].
[16] Wark [41].
[17] Wark [45].
Once it is established that the evidence is capable of falling within the definition of propensity or relationship evidence, it is then necessary to consider whether the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. Since an application of this sort is dealt with prior to the trial and before any evidence is led, it must be based on the contents of the prosecution brief. Whether witnesses will be able to give all of the evidence contained in their statements and whether there will be any issues as to their credibility are not matters that can be taken into account. In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.[18] This must mean that an assumption is made that the evidence contained in the statements will be given and that all other evidence which may be relevant in assessing the probative value will be admissible.
[18] Donaldson [153]; DKA v The State of Western Australia [2017] WASCA 44 [35]; RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185].
In DKA v The State of Western Australia,[19] the Court of Appeal set out the following well‑established principles in regard to whether evidence has significant probative value.
(1)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.
(2)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.
(3)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes 'important' or 'of consequence'.
(4)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.
[19] DKA [30].
Any inquiry as to whether propensity evidence has significant probative value must begin with identification of the fact in issue to which the propensity evidence is said to be relevant.[20] The probative value of propensity evidence will vary depending upon the issue that it is adduced to prove. Where the evidence is adduced to prove identity of the offender for a known offence, the probative value of propensity evidence will almost certainly depend upon close similarity between the evidence and the conduct constituting the offence.[21]
[20] DKA [37].
[21] Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 [39] (Kiefel CJ, Bell, Keane & Edelman JJ).
The assessment of significant probative value does not conclude by assessing the strength of the evidence in establishing a particular propensity or tendency. The probative value of the evidence will also depend on the extent to which any proven tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality may mean that the tendency evidence provides significant support for the existence of that tendency but that the tendency itself does not provide significant support for proof of the fact in issue.[22]
[22] Hughes [64].
In DKA, the appellant had sexually abused young female relatives some 20 years before the alleged offences (which involved different female relatives). There were fundamental differences between the nature, quality, extent and duration of the previous conduct and the conduct that was the subject of the charges. The prosecution relied on the previous conduct as propensity evidence on the basis that it was capable of establishing that the appellant had a sexual interest in young female relatives. The Court of Appeal accepted that the evidence was relevant and had some probative value but did not accept that the evidence had significant probative value. The court said:[23]
The propensity relied on by the State in this case is pitched at a high level of generality: the propensity to exhibit a sexual interest in young females to whom the appellant is related. The high level of generality of the alleged propensity can affect the extent of the probative force of the propensity evidence.
Further and in any event, the high level of generality of the alleged propensity does not detract from and must not obscure the need to examine the detail of the propensity evidence in determining whether its probative value is properly characterised as significant. As we have said, the facts in issue, relevantly, are whether the appellant did any of the acts the subject of the charges. All the facts and circumstances alleged by other evidence adduced or to be adduced must be considered in assessing whether the evidence would have significant probative value. Among other things, the nature, quality, extent and duration of the conduct the subject of the propensity evidence, the nature, quality, extent and duration of the conduct the subject of the charges, and the extent of any rational connection between the conduct the subject of the propensity evidence and the conduct the subject of the charges all bear on whether the propensity evidence has significant probative value.
There is no necessary requirement that propensity evidence exhibit a 'striking similarity' or 'underlying unity' with the charged act in order to be admissible. Those concepts are not to be transplanted from their common law setting and used as glosses on or substitutes for the statutory phrase 'significant probative value'. But the nature and extent of any similarity is relevant to whether the evidence has significant probative value. (footnotes omitted)
[23] DKA [42] ‑ [44]; see also RMD; APC v The State of Western Australia [2012] WASCA 159; (2012) A Crim R 59.
The dangers of assuming that past conduct of a broadly similar type will necessarily have significant probative value is illustrated by McPhillamy v The Queen.[24] In that case, the appellant was charged with sexual offences against an 11‑year‑old altar boy who was under the supervision of the appellant when he as an acolyte. Tendency evidence was admitted that some ten years earlier the appellant had touched two 13‑year‑old boys who were boarders at a school where he was an assistant house master. The acts on the two occasions were of a different nature and level of seriousness. In the High Court, the plurality noted that tendency evidence may be to have a particular state of mind or to act in a particular way. In that case, the tendency evidence established that the appellant had a sexual interest in young teenage boys and it was not disputed that such an interest was likely to be enduring. However, the plurality said that proof of such a sexual interest may meet the basal test of relevance but it was not capable of meeting the requirement of significant probative value. Their Honours said 'generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value'.[25] Their Honours went on to say that, in the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the earlier incident, the inference that at the dates of the offences he possessed the tendency was weak.[26] They also said that where the tendency evidence relates to sexual misconduct with persons other than the complainant it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.[27] Their Honours said that proof of the earlier conduct was not capable of affecting the assessment of a likelihood that the appellant committed the offences at the later time to a significant extent. The evidence rose no higher in effect than to insinuate that, because the appellant had sexually offended ten years earlier, in different circumstances, and without any evidence other than the later complainant's allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that were alleged.[28] The appeal in that case was allowed and the conviction was set aside and a new trial ordered.
[24] McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13.
[25] McPhillamy [27] (Kiefel CJ, Bell, Keane & Nettle JJ).
[26] McPhillamy [30].
[27] McPhillamy [31].
[28] McPhillamy [32].
For propensity evidence to be admissible, it must also meet the second test in s 31A(2), that is, the fair‑minded person test. This test requires the court to assess the degree of unfairness at trial that will be occasioned by the admission of the evidence in question. The risk is that a jury (or judge in a judge alone trial) may uncritically overvalue the probative effect of the evidence and conclude that the accused must have committed the offences charged simply because he has committed other offences or done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.[29]
[29] Donaldson [127].
In Dair v The State of Western Australia,[30] Steytler P referred to three possible risks of prejudice from propensity evidence:
1."The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts" (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: "it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing")). This comes down to the belief that the jury will over‑estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:
"research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (Ibid at 322)."
2."The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences" (Wigmore … p 650). Thus, "there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged" (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: "sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest" (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
3."The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts" (Ibid; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512).
[30] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [63].
When assessing the risk of an unfair trial in the context of a jury trial, the court must 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.[31] In the context of a trial by judge alone, the fact that the judge is the fact‑finder does not necessarily eliminate the possibility of prejudice but it is relevant to take into account that judges are familiar with the process of disregarding irrelevant considerations and that the course of reasoning of a judge in reaching a verdict will be disclosed in written reasons, and will incorporate necessary directions regarding the use that can be made of the evidence.[32]
[31] DKA [31].
[32] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [47] (Martin CJ).
After identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair‑minded people would draw from a comparison of those matters. Fair‑minded people are reasonable members of the general community who are not lawyers and, it must be assumed, people who 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'.[33] This weighing process may be a difficult one as it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair‑minded person.[34]
[33] DKA [31]; Dair [66]; Johnson v Johnson[2000] HCA 48; (2000) 201 CLR 488 [53].
[34] DKA [32].
One other factor is pertinent and that is the risk that the evidence at trial does not accord with the evidence as anticipated. This is a risk referred to by the High Court in Hughes.[35] However, that risk can be ameliorated in the context of a trial by judge alone.[36] If the evidence adduced at trial does not come up to expectations and this reduces its probative value such that it no longer meets the requirements of s 31A, it would be possible for the question of its admissibility to be raised again.[37] Accordingly, any rulings made at this stage are only of a provisional nature. If the assumptions made in regard to the prosecution evidence prove to be wrong and a later ruling is made that evidence is inadmissible, any possible prejudice can be obviated by the trial judge expressly putting that evidence aside and not taking it into account in the reasoning process.
[35] Hughes [42].
[36] Wark [68].
[37] See Wark [61] - [62].
Huntingdale prowler evidence
Summary of evidence
In and around late 1987 and 1988, a series of incidents occurred in the Huntingdale area that involved a person trespassing on, or entering into, residences and stealing women's underwear and other garments. The evidence relied upon in this regard is as follows.[38]
[38] State Submissions [96].
In or about mid‑January 1988, an apricot‑coloured silk kimono and white women's underwear were stolen from a clothesline at 76 Harpenden Street, Huntingdale. This kimono was subsequently found at the scene of the Huntingdale offences (counts 1 and 2) on 15 February 1988.
On Thursday, 21 January 1988, at approximately 3.00 am, a man attempted to break into a house at Lot 3 Huntingdale Road, Huntingdale. The man was disturbed by the occupants of the residence and left the area. He was described as being approximately 30 years of age, 180 cm tall with short dark hair, of chubby or solid build and wearing a 'wrap around' garment. That garment was described as being like a sarong or like what 'the Japanese wear' which was colourful and came 'down to his leg'.
Later the same morning, that is, on Thursday, 21 January 1988, at approximately 4.10 am, a man broke into a residence at 61 Huntingdale Road, Huntingdale and was found by the female occupant to be standing in a spare bedroom of the house searching through drawers of an antique dresser. The female occupant ran to her bedroom where she screamed for help. The man ran off. The man was described as Caucasian, with a fair complexion, thin to average build, not muscly, approximately 180 cm tall, aged between 19 and 21 years old, with dark short hair which was in a neat short back and sides style, clean shaven, brown eyes, black eyebrows, bare feet and clean in appearance. The man was described as wearing a blue satin silky dressing gown or nightwear which appeared to be quite feminine with white shorts with a pattern on them.
Two days later, on 23 January 1988, between 9.00 pm and 10.00 pm, a person tried to break into the same residence at 61 Huntingdale Road, Huntingdale. The person was disturbed by the barking of the occupant's dog after having removed the flyscreen of the female occupant's bedroom window.
On Thursday, 28 January 1988, at approximately 9.30 pm, a man peered over the fence into the residence at 61 Huntingdale Road, Huntingdale. At that time, the female occupant was in her yard feeding her animals. The man was described as a 180 cm tall, slim build, dark and identical to the man seen at the same residence by the same female occupant in the early hours of the morning on Thursday, 21 January 1988. The female occupant of the house assisted in the compilation of an identikit sketch of this man, which is alleged to be broadly consistent with the way the accused looked at the relevant time.
On two occasions between a few days to two weeks apart, in or around January and early February 1988, female garments were stolen from a clothesline at Lot 1401 Bullfinch Street, Huntingdale. At least two bras, four pairs of underwear, three pairs of tights and a white satin three‑quarter length kimono with oriental flowers embroidered on each side at the front were stolen.
On Thursday, 11 February 1988, at approximately 1.00 am, a man broke into a residence at Lot 1386 Bullfinch Street, Huntingdale and went to the master bedroom of the house. The female occupant woke to the noise of rustling in her bedside drawer. She saw the man crouched down near the drawers. He then fled from the house without saying anything. He was described as wearing some form of 'flowing garment' which was 'similar to a kimono' and was light in colour.
Later the same morning at approximately 2.30 am, a man was seen at the rear sliding door of 61 Huntingdale Road, Huntingdale trying to open the door. The man was disturbed by a neighbour, causing him to run off and jump over the fence. The man did not say anything to witnesses during this incident. The man was described as approximately 5 foot 11 inches (180 cm) tall, very slim, jet black hair, a standard man's haircut, light-coloured skin, wearing 'something really funny…like a dressing gown' which had long sleeves and came to just below the knee. The man had nothing in his hands, was not wearing glasses and had no beard. Police attended at the residence and conducted a fingerprint examination. Three partial latent fingerprints and one latent palm impression were obtained from the rear sliding door. In December 2016, following the arrest of the accused, a comparison was undertaken with the accused's fingerprints. The prosecution case is that three out of the four latent fingerprints can be identified as being those of the accused. A foot impression of a bare right foot was also located in the sand at the scene. This impression was compared to foot impressions obtained from the accused in November 2017. The prosecution case is that the accused cannot be excluded from having created this foot impression.
In the late hours of Saturday, 8 October 1988, or the early hours of Sunday, 9 October 1988, a female occupant of 78A Harpenden Road, Huntingdale opened the rear glass sliding door of her residence to let out her cat. She left the door open and went to have a shower. On her way to the shower, she noticed that her toilet door which she normally left ajar was closed. She showered for approximately 15 minutes before dressing and walking back past the toilet door. As she did so, a man opened the toilet door and rushed out at her. He pushed her against the wall with force causing her to fall to the floor. The intruder then stood over her and slapped her repeatedly around her head and neck. She received bruises on both sides of her back as well as on her neck. She described the man as wearing 'something similar to a ladies' satin nightie' and 'layers of what appeared to be ladies' clothing'. He was barefoot and had underpants over his head, but his eyes were exposed. He was about 6 foot 1 inch tall and slim to medium build. The female occupant fought back and managed to punch the intruder to the face a few times. She also kneed him to the groin. At that time, she noticed that her young daughter was standing nearby. The intruder looked at the child and fled out the rear sliding door. The female occupant saw him jump over the rear fence. The man did not say anything to the female occupant during this incident. Police attended and took photographs of bare foot impressions in the sand around the perimeter of the house. The impressions were later compared to foot impressions obtained from the accused in November 2017. It is the prosecution case that the accused cannot be excluded as having created three out of the four foot impressions obtained.
During the period that the Huntingdale prowler series of incidents occurred, the accused was 19 years of age, approximately 183 cm tall, slim to medium build with short dark hair and of fair complexion. He lived with his family at 144 Gay Street, Huntingdale, which was within a 1 km radius of all of the residences connected with these events.[39]
State's submissions
[39] State Submissions [97].
The State submits that the evidence relating to the Huntingdale prowler series is admissible at common law as circumstantial evidence relevant to identity of the assailant in the Huntingdale offences. The Huntingdale prowler series of events is such that a trier of fact could reasonably conclude that these events all involved one assailant and that the accused was that assailant. In particular, the events all occurred within close proximity of the accused's home at the time and within a relatively short period of time. The descriptions given by some of the witnesses and the presence of fingerprints, DNA and foot impressions, constitute evidence from which it can be inferred that the accused was the perpetrator.[40]
[40] State Submissions [246].
It is also submitted that this evidence is admissible in respect of the Huntingdale offences as propensity evidence pursuant to s 31A because it is evidence of a tendency that the accused had to enter residences near his home during the night whilst wearing a female garment similar to a kimono and disturbing or stealing items of women's underwear or clothing. These are features which are similar to the Huntingdale offences and are relevant to the identity of the offender.[41]
[41] State Submissions [249] - [251].
The prosecution also submits that the evidence is admissible in respect of the other charges on the basis that the Huntingdale prowler series is evidence that the accused has or had a tendency or propensity to prowl an area of familiarly at night-time in a distinctive manner in order to create and/or seize opportunities to commit an offence with a sexual motive.[42] The prosecution say that a similar tendency can be discerned from the Telstra Living Witness Project evidence. That evidence will be summarised later in these reasons. It is submitted that if it is established that the accused was the Huntingdale prowler, it is significantly more likely that he is the person who is the perpetrator in the Telstra Living Witness Project incidents.[43]
Defence submissions
[42] ts 188 - 189.
[43] ts 191.
The accused does not object to the admissibility of the Huntingdale prowler evidence in respect of counts 1 and 2. It is accepted on his behalf that this evidence is relevant and admissible, both directly to establish identity and pursuant to s 31A of the Evidence Act.[44]
[44] Defence Reply [7].
What is in issue is whether the Huntingdale prowler evidence is admissible in respect of the other counts in the indictment.
The defence submits that the parallels the State seeks to draw between the two sets of behaviour, that is the Huntingdale prowler evidence and the Telstra Living Witness Project evidence, are largely illusory.[45] The Huntingdale prowler evidence is characterised by an offender who is on foot and goes to properties with the apparent purpose of stealing items of women's clothing and who, on occasion, wears such clothing. This may well be sexually motivated but it is a motivation that is satisfied by stealing the items (other than in respect of the conduct the subject of counts 1 and 2 which is separately considered). The defence submit that the dominant characteristic of the Huntingdale prowler behaviour is that it is conducted in a surreptitious manner and in most cases involves avoiding, rather than seeking out, direct contact.[46] In contrast, the Telstra Living Witness Project evidence involves an offender in a car who either stares at women or offers them a lift.[47] A factor that the State says is common, that is, that both sets of behaviour persisted in the face of significant publicity, is said by the defence not to be well‑established or sufficiently distinctive.[48]
Admissibility of the Huntingdale prowler evidence
[45] Defence Reply [103].
[46] Defence Reply [95], [98], [102], ts 218.
[47] Defence Submissions filed 11 January 2019 (Defence Submissions) [123] - [126], ts 218 - 219.
[48] Defence Reply [96] - [99], ts 219.
There is no doubt that the Huntingdale prowler evidence is admissible in respect of counts 1 and 2. It is relevant to the issue of identity of the perpetrator of counts 1 and 2, both because of the high likelihood that the same person was involved in all of the incidents and also because it is propensity evidence which has significant probative value and meets the fair‑minded person test. The fact that all incidents occur in the same geographical area, close in time and that the perpetrator in counts 1 and 2 was wearing (or at least in possession of) a kimono strongly connects the Huntingdale prowler evidence with counts 1 and 2.
The real issue is whether the evidence is admissible in respect of the other counts. In order to be admissible as propensity evidence in respect of the other counts, this evidence must first be capable of establishing a propensity or tendency. The tendency that the prosecution relies on, namely a tendency to prowl an area of familiarity at night-time in a distinctive manner in order to create and/or seize opportunities to commit an offence with a sexual motive,[49] is capable of falling within the definition of propensity in s 31A. However, that tendency is pitched at a high level of generality. The use of the word 'prowl' and the phrases 'distinctive manner' and 'sexual motive' imply that there is something about the Huntingdale prowler evidence that makes it more likely that the person involved in the Telstra Living Witness Project incidents is the accused and therefore the person who committed counts 3 to 8. But each of those words and phrases is capable of encompassing a wide range of conduct.
[49] ts 232.
Assuming, for the sake of argument, that in each group of incidents a single person was responsible for all of the conduct in that group, there is very little to suggest that it is likely to be the same person responsible for both groups. It may be the same person, but the nature, quality, extent and duration of the prowling conduct in each group is markedly different. The distinctive features of the Huntingdale prowler conduct are not shared by the Telstra Living Witness Project conduct. In the case of the Huntingdale incidents, those features are a man on foot, in the Huntingdale area, who approaches or enters residential premises at night, with the purpose of stealing women's clothes, who sometimes wears such clothing and who appears to have a sexual motivation or fetish. In the case of the Telstra incidents, those features are a man in a vehicle, in the Claremont and Cottesloe areas, who observes or approaches young women at night who are walking along roads in the area, who sometimes offers the women a lift, who is dressed normally and who may have a sexual motive, but not one that manifests any fetishistic element. The prosecution's claim that the differences are consistent with the accused's changing circumstances and evolving methods assumes the very question that is in issue, namely the identity of the offender.[50]
[50] ts 192 ‑ 193.
Where the fact in issue to which the evidence is said to relate is identity, there will be a greater need for the evidence to have some common or similar features.[51] In my view, the common features between the Huntingdale and Telstra evidence are few and broadly stated. In essence, they are that the person involved has a tendency to prowl an area that he knows and that this is sexually motivated.[52] There is a distinctive method used in each group, but it is not the same. On the other hand, there are many and significant differences between the conduct. Those differences cannot be readily explained or dismissed as irrelevant. They must be taken into account in assessing the probative value of the evidence.
[51] Hughes [39].
[52] ts 192, 196, 209.
In my view, it is doubtful whether the Huntingdale prowler evidence is relevant to the determination of the identity of the offender who committed counts 3 to 8, but in any event it certainly does not meet the significant probative value test. This evidence does not aid, to a significant extent, in the resolution of the essential issue of the identity of the offender in respect of counts 3 to 8. Put another way, the fact, if it is proven, that the accused engaged in the Huntingdale prowler conduct does not make it significantly more likely that he was the person who committed the offences the subject of counts 3 to 8, when viewed alone or having regard to other admissible evidence.
Since the evidence does not meet the significant probative value test, it is unnecessary to consider the fair‑minded person test. The fair‑minded person test assumes the existence of significant probative value. If the evidence does not have that value no question arises of weighing the risk of an unfair trial against the expectations of a fair‑minded person.
For those reasons, the Huntingdale prowler evidence is admissible in respect of counts 1 and 2 but is not admissible in respect of counts 3 to 8.
The Huntingdale offences evidence
Summary of evidence[53]
[53] State Submissions [102].
In the early hours of the morning of Monday, 15 February 1988, a man entered a residence at Lot 1392 Bullfinch Street Huntingdale. He entered through a closed but unlocked back door. The complainant, an 18‑year‑old woman, was asleep in her bedroom. The complainant's brother and her parents were asleep in other rooms in the house. The parents had left their bedroom door open, as they usually did.
The man who entered the house closed the doors to all the bedrooms and unplugged the landline telephone. He then entered the complainant's bedroom and attacked her as she lay face down asleep in her bed. He straddled the complainant and pinned her down. He used a hand to cover her mouth and attempted to force a piece of cloth or fabric into her mouth with the evident purpose of stopping her from screaming or yelling out for help. The complainant struggled and this eventually caused the man to desist his attack and to flee the bedroom. As he was leaving, the complainant noticed that the man was wearing something that looked like a white nightie. The man did not say anything to the complainant during this attack.
After the attack, a light‑coloured silk kimono and a pair of knotted black stockings were found in the complainant's bedroom. They did not belong to her. The kimono had been stolen from a clothes line at 76 Harpenden Street, Huntingdale a few weeks earlier. The kimono was retained by the police and a forensic examination in December 2016 revealed the presence of multiple areas consistent with the presence of semen. DNA examination and analysis of the suspected semen stains revealed a single source male DNA profile which was a match to the DNA profile of the accused.
The State also relies on other evidence in regard to the identity of the offender. This includes that the accused lived within a short walking distance of the complainant's residence at the relevant time, that the complainant was known to the accused to the extent that the accused was a friend or acquaintance of the complainant's brother, that the accused had visited the complaint's home on at least one occasion prior to the incident and the Huntingdale prowler evidence.[54]
State's submissions
[54] ts 234.
In written submissions, the State asserted that the accused's conduct in the Huntingdale offences is propensity evidence pursuant to s 31A in that it is evidence of a 'tendency that the accused has or had' to attack and endeavour to overpower and restrain vulnerable women, for his own sexual motives.[55] It was also submitted that the evidence is relationship evidence pursuant to s 31A in that it is evidence of the accused's attitude of disdain and disrespect towards women who are strangers or who he barely knows, in a sexual context, over a period of time.[56]
[55] State Submissions [424].
[56] State Submissions [425].
In oral submissions at the directions hearing, the State amended the description of the tendency and the relationship that the evidence was said to prove. The State submitted that the evidence showed that the accused has or had a tendency or propensity to attack women, whom he barely knows or who were not known to him, who were vulnerable by the circumstances prevailing at the time, by attacking them without provocation and without warning, attacking them from behind, using some piece of fabric or cloth to put over or into their mouths, attempting to or in in fact rendering the women incapable of resisting his attack on them, saying very little or nothing to the women during the attack, with the conduct being sexually motivated.[57]
[57] ts 274 - 275.
The State submitted that the evidence is of significant probative value with respect to the facts in issue in the Karrakatta offences (counts 3 to 5). It is said to be evidence which, by itself and in combination with other evidence relevant to identity, materially increases the probability that the accused was the assailant in the Karrakatta offences.[58]
[58] State Submissions [385].
The State further submitted that the Huntingdale offences evidence needs to be viewed in the context of other evidence relevant to identity in respect of counts 3 to 5. That other evidence includes intimate swabs taken from the complainant in the Karrakatta offences that reveal the presence of a single source male DNA profile which matches that of the accused. It also includes evidence that the complainant was placed into a panel van or similar vehicle, that a white van with Telecom markings on it was observed to drive passed Hollywood Hospital at some point after the complainant was abducted from a park a short distance away, that a similar van with a person seated in it was observed on four or five occasions parked inside Karrakatta cemetery and that the Karrakatta offences took place during the period when the incidents described in the Telstra Living Witness Project evidence were occurring.[59]
[59] State Submissions [385].
The State says that the propensity established by the Huntingdale offences evidence has a high degree of probative value because of the number and nature of features of the accused's conduct which are common to the Huntingdale offences and the Karrakatta offences. The presence of those features are said to make it more likely, when viewed in the light of all of the other evidence, that the accused is the man who committed the Karrakatta offences.[60]
[60] State Submissions [385].
The common features are said to be as follows:[61]
[61] State Submissions [385].
(1)that both complainants were vulnerable young females;
(2)the attacks were unprovoked and without warning;
(3)the attacks were from behind;
(4)the attacks both involved the accused putting one hand over the mouth of the victim;
(5)in both cases a piece of cloth or fabric was placed over or into the victim's mouth;
(6)each victim was physically restrained;
(7)the attacks were sexually motivated;
(8)the attacks were both committed in the early hours of the morning;
(9)the perpetrator spoke little, if at all, throughout the commission of the offences; and
(10)the accused was at the time of the offences experiencing a degree of personal or emotional stress in the context of his intimate relationships.
The State submits that the common features of the offences are such as to constitute a recognisable motive, behaviour or conduct on the part of the accused. This is said to be especially so when regard is had to the similar conduct exhibited by the accused in respect of the Hollywood Hospital offence. The State says that the tendency established by the Huntingdale offences is evidence which, together with the Hollywood Hospital offence, demonstrates an underlying unity, system or pattern in the accused's offending which goes directly to the probability of whether or not the accused committed the Karrakatta offences. Without this evidence the trier of fact may doubt whether it is likely that a man, with no prior demonstrated tendency to attack a woman, would suddenly act in a violent manner towards a female, as is alleged in counts 3 to 5. Evidence that he had attacked another women in the early hours of the morning seven years earlier, in combination with other evidence, shows a disposition on the accused's part to act in such a manner. It is said that the evidence could bolster the veracity of the DNA evidence in respect of the Karrakatta offences, in the event it is challenged. It would also tend to rebut any innocent explanation advanced by the accused for the DNA. In particular, it would rebut any suggestion that the complainant had consented to any sexual acts. It also is said that the evidence would make it more probable that the complainant in counts 3 to 5 was sexually assaulted in the manner alleged.[62]
[62] State Submissions [385].
The time gap of seven years between the Huntingdale offences and the Karrakatta offences is said to be less significant due to the accused's commission of the Hollywood Hospital offence in 1990. This is said to show that the tendency continued and remained active in the period between counts 1 and 2 and counts 3 and 5.[63]
[63] State Submissions [386].
The State submits that the evidence also meets the fair‑minded person test, in particular because if the Huntingdale offences and Karrakatta offences were dealt with separately the trier of fact would not have a complete picture of the accused's conduct.[64]
[64] State Submissions [387].
As regards the admissibility of this evidence in respect of counts 6 to 8, the State submits that the evidence needs to be viewed in the context of other evidence. The tendency said to be proven by the Huntingdale offences evidence is said to be bolstered by the Holywood Hospital evidence and the Karrakatta offences evidence. The existence and strength of such a tendency is said to be highly probative in respect of the Claremont murder offences and would assist in assessing whether any innocent explanation for forensic evidence is reasonably open.[65]
Defence submissions
[65] ts 243 - 244.
The defence submits that some of the points of commonality are not established by the evidence, in particular as to whether at the time of the two incidents the accused was experiencing a degree of personal or emotional stress in the context of his intimate relationships.[66] In regard to the other features, it is said that when assessed they are not really distinctive. The features such as attacking by surprise, trying to restrain the victim physically and to stop them calling out and attacking in the early hours of the morning are said to be generic rather than distinctive.[67]
[66] Defence Reply [51], [62].
[67] Defence Reply [122], [126], [143], ts 229, 259.
The defence says that what is distinctive is the differences in the attacks. The complainant in the Huntingdale offences was attacked in her own home by a man wearing what might be described as a woman's nightie, whereas the complainant in the Karrakatta offences was attacked in a public place by a man dressed quite unremarkably. The claimed fetish for women's underwear that is a distinctive feature of counts 1 and 2 is not apparent in respect of counts 3 to 5. The defence submits that this position is not improved by taking into account the factual circumstances of the Hollywood Hospital offence.[68]
[68] Defence Reply [123] - [125].
The defence says that the tendency said to be established by counts 1 and 2 is pitched at a high level of generality and in truth is no more specific than to 'sexually attack female strangers'. There is said to be no close similarity as between counts 1 and 2 and counts 3 to 5 such as would assist in determining the identity of the offender in respect of counts 3 to 5.[69]
Admissibility of the Huntingdale offences evidence
[69] Defence Reply [130] - [131].
The Huntingdale offences evidence is capable of establishing an inclination on the part of the accused to attack vulnerable women in the manner described by the State.[70] It is, therefore, propensity evidence. The real issue is whether it has significant probative value.
[70] See Wark [49] - [50].
The fact in issue to which this evidence is said to relate is the issue of the identity of the offender in respect of counts 3 to 8. Some other facts in issue were referred to in the State's submissions, including whether any act of sexual penetration in counts 3 to 5 was consensual. The admissions made by the accused at the directions hearing[71] mean that no issue remains in regards to consent.[72] In these circumstances the only fact in issue to which the evidence could meaningfully relate is the question of identity. As previously noted where identity is in issue, any similarity in the conduct is more important.
[71] Notice of Formal Admission signed 5 February 2019, see also Defence Reply [25].
[72] See Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.
In some respects the general terms used by the State in expressing the tendency proved by the Huntingdale offences evidence obscures the differences between the two attacks. To describe both complainants as vulnerable omits to take into account that each was vulnerable in a different way; the first complainant because she was at home asleep in her own bed and the second complainant because she was alone walking along a street at night. The different nature of the vulnerability of the alleged victims is a relevant consideration.[73] However, there are other aspects of the attacks that do have common distinctive qualities.
[73] McPhillamy [31].
Both attacks involved women who were effectively strangers to the accused, who were attacked from behind and without warning and both involved the use of physical restraint and an attempt to use a piece of fabric or cloth over or into the mouth of the complainant with the evident purpose of suppressing any screams or calls for help. It is true that, taken individually, some aspects of the conduct could be said to be generic in the sense that they would be common to many offences of the same type. For example, attacking a woman who is a stranger to the perpetrator from behind and without warning. However, in comparing the conduct, it is necessary to look at the accumulation of features and not merely examine them on a piecemeal basis. Individual features that may be common to many offences may be more distinctive when accumulated.
Also relevant to the assessment of the probative value of the evidence is the context of other evidence that is available.[74] This includes the Hollywood Hospital evidence, which will be considered later in these reasons. However, for present purposes it is appropriate to assume that that evidence will also be admissible. The significance of that evidence is that another attack involving similar distinctive features occurred in 1990, between the Huntingdale offences and the Karrakatta offences. The fact that on each of these occasions the evidence indicates a tendency to not merely have an interest in doing something but to act upon that interest increases its probative value.[75] The occurrence of the Hollywood Hospital offence is capable of supporting a conclusion that notwithstanding the lapse of time between the Huntingdale offences and the Karrakatta offences the tendency that is alleged continued to be held by the accused.
[74] DKA [36].
[75] McPhillamy [27].
In my view, the Huntingdale offences evidence has significant probative value in respect of counts 3 to 5 because it makes it more likely to a significant extent that the accused was the person who committed the Karrakatta offences. If the Huntingdale offences are established they are capable of proving that the accused had a tendency to attack unknown women from behind, using force and the use of cloth to stifle any sounds and that these actions were sexually motivated. The existence of such a tendency, when viewed in the light of other relevant evidence, is capable of supporting to a significant extent the prosecution case that the perpetrator in the Karrakatta offences is the accused.
I am also satisfied that this evidence meets the fair‑minded person test. Whilst there is always some risk of prejudice to an accused where propensity evidence is introduced, that risk is less likely in the context of a trial by judge alone.[76] As the trial judge, I am conscious of the use to which this evidence can be put and the limitations to that use. I am capable of guarding against any misuse of the evidence.
[76] Wark [67] - [68].
As to whether the Huntingdale offences evidence is admissible in respect of counts 6 to 8, there is little evidence as to the manner in which the victims of the Claremont murders were abducted. It is possible to infer that each was abducted, at night and for a sexual motive. However, the distinctive features relied upon by the State as being common to the Huntingdale and Karrakatta attacks cannot be proven as being present in the case of counts 6 to 8. Nonetheless, there is a clear basis for connecting the Karrakatta offences with the Claremont murders; they all occurred in the same area, at around the same time and involved victims with similar personal features. Accordingly, the existence of a tendency to attack unknown women in the way described would have significant probative value in regard to the identity of the person who committed the Claremont murders. If it is established that the accused had this tendency, that he had it for a long time and that, within 12 months of the first of the murders, that tendency had been expressed in the same area, that is evidence that has the potential to be material to the question of the identity of the person who committed the Claremont murders. The fair‑minded person test is also satisfied in regard to the use of that evidence in respect of counts 6 to 8.
For these reasons, I am satisfied that the Huntingdale offences evidence is admissible in respect of all counts. Specifically, it is admissible in respect of counts 3 to 8 as propensity evidence pursuant to s 31A of the Evidence Act. I do not accept that it is admissible as relationship evidence as the nominated relationship is so broad that it cannot meet the significant probative value test.
The Hollywood Hospital offence evidence
Summary of evidence[77]
[77] State Submissions [104] - [115].
At around 2.30 pm on 7 May 1990, the accused, then aged 21, was at Hollywood Hospital in Nedlands attending to a fault on the PABX system in his capacity as a Telecom technician. He entered an office in which the complainant, a 40‑year‑old female senior social worker, was sitting. The accused asked to use the toilet. A toilet was located through a door at the back of the office. The complainant was engaged in her work and only 'minimally responded' to the accused. He went to the toilet and returned a short time later. He then approached the complainant from behind, put a piece of material over her nose and mouth using his left hand and put his right arm over her right shoulder and across her chest. He then began dragging the complainant backward towards the toilet. She was seated on a chair with wheels and her chair was dragged back with her. The accused pulled her off the chair keeping a tight grip on her and the chair fell over.
The complainant struggled against the accused, but was unable to scream because of the presence of the accused's hand and the material covering her mouth. She could not move her arms because of the grip that he had on her. After a struggle, in which the complainant kicked the accused, he loosened his grip and she broke free. She fled into a neighbouring ward and sought help. The accused did not say anything to the complainant during the attack, although he did say sorry to her after the attack was completed.
A hospital security guard attended and detained the accused until police arrived. The accused admitted to the security guard that he had tried to drag the complainant to the toilet cubicle. He was found by police to have cable ties in his pocket, though such ties could be used in the course of his work.
The accused was arrested by police and charged with one count of common assault. He later pleaded guilty to that charge on 11 May 1990. A conviction was recorded and a pre‑sentence report was obtained. On 1 June 1990, the accused was sentenced in the Perth Court of Petty Sessions to 2 years' probation. He was required to undertake a sex offender's treatment programme from 30 August 1990 to 9 May 1991.
The pre‑sentence report records that the accused informed the author that at the time of the offence he had been very frustrated by not being able to fix the equipment that day and that he was also under a lot of pressure in his de facto relationship. In May 1990, the accused informed a clinical psychologist that in the week leading up to the offence he was in a state of some distress. In particular, he admitted that he had argued with his de facto partner the evening prior to the offence and that he was still disturbed by this argument on the day of the offence. He also said that he had been carrying a heavier emotional burden from the previous week when his de facto partner had informed him of her infidelity with a previous boyfriend earlier in the relationship. The accused said that he had been deeply distressed by this confession.
State's submissions
The State submits that the accused's conduct in the Hollywood Hospital offence is propensity evidence pursuant to s 31A in that it is evidence of 'a tendency that the accused has or had' to attack and endeavour to overpower and restrain vulnerable women, for his own sexual motives. It is also said to be relationship evidence pursuant to s 31A in that it is evidence of the accused's attitude towards a class of persons, being an attitude of disdain and disrespect towards women who are strangers or who he barely knows, in a sexual context, over a period of time.[78]
[78] State Submissions [327] - [328].
The State says that this is evidence of unimpeachable reliability, having been the subject of a plea of guilty. Further, it is evidence of conduct that is said to be so far outside the realms of ordinary human behaviour that the relevant tendency can properly be established by a single incident.[79]
[79] State Submissions [329] - [331].
At the directions hearing, the State expressed the tendency said to be proven by the Hollywood Hospital offence in a different way. The State asserted that the evidence was capable of establishing that the accused has or had a tendency or propensity to attack women, whom he barely knows or who were not known to him, who were vulnerable by circumstances prevailing at the time, by attacking them without provocation and without warning, and taking them from behind, using some piece of fabric or cloth to put over or into their mouths, attempting to or in fact rendering the women incapable of resisting his attack on them, saying very little or nothing to the women during the attack, with the conduct being sexually motivated.[80] This is, of course, the same tendency that is suggested as being established by the Huntingdale offences.[81]
[80] ts 274 - 275.
[81] ts 212.
The defence submitted that none of the material related directly to any of the offences committed and that, accordingly, it was not relevant to the question of identity. This is evidence that was said to be highly prejudicial but that the probative value was 'so slight as to be non‑existent'.[137] As to the violent erotic stories, the defence say that the common themes of the stories are the overcoming of resistance and recording of the conduct for later use. In some stories, there is an element of taking advantage of a woman who is unconscious because of alcohol, or who has been deliberately drugged. In another story, compliance is obtained by blackmail. The Chloe story does not have those features, rather it involves kidnapping and then holding the victim in a pre‑prepared place for an extended period. That is said to bear no resemblance to the Karrakatta offences.[138]
[137] ts 311.
[138] ts 310.
In supplementary written submissions, the defence identified other aspects of this evidence that were said to be pertinent. In particular:
1.That some versions of the story.txt document only exist as deleted documents and this is consistent with an inference that the accused did not want to keep those versions;[139]
2.That the Chloe story only exists on one of the three superseded devices. There are three copies of the story on that device and all copies are in the same form. It has not, therefore, been changed or added to;[140]
3.The same is true of some other stories identified by the State in its written submissions;[141]
4.The only evidence of access to the Chloe story is on 29 August 2015;[142]
5.The deleted zip files containing each of the copies of the Chloe story also contain images, but none of those images fall into the BDSM or female degradation categories;[143]
6.That activity on the sites.txt document does support the contention that, from time to time, the accused preferentially sought out more extreme material. However, the evidence of downloaded material does not support any contention that he selectively kept any such material, bearing in mind that it represents only 8.42% of the total images on the active device;[144]
7.Within the zip files, no distinction is made between the images that fall into the category identified by the State and other images. The images are not organised or described;[145]
8.That some of the material relied on by the prosecution cannot properly be described as 'extreme'.[146]
[139] Defence Supplementary Submissions filed 15 March 2019 (Defence Supplementary Submissions) [20].
[140] Defence Supplementary Submissions [21].
[141] Defence Supplementary Submissions [22].
[142] Defence Supplementary Submissions [23].
[143] Defence Supplementary Submissions [23].
[144] Defence Supplementary Submissions [24] ‑ [26].
[145] Defence Supplementary Submissions [31].
[146] Defence Supplementary Submissions [33].
The defence submit that whilst an inference is open that the accused had an interest in obtaining and keeping pornographic material, the evidence does not support an inference that that interest exclusively, or even predominantly, related to extreme material. It cannot be shown that the accused had a preference for extreme material over pornography generally.[147]
[147] Defence Supplementary Submissions [37].
The defence submits that what is readily apparent from the sites.txt document is that there are a great many places on the internet where material of the type identified by the State can be found. How many such sites exist apart from those listed on the documents is impossible to know. It is quite impossible to know how rare such material, or an interest in it, is.[148]
[148] Defence Supplementary Submissions [52].
The evidence does not support any inference that an interest in pornography is long‑standing. Indeed, the defence say, that interest appears to be of recent origin and to have increased in the 12 months immediately preceding the arrest of the accused.[149]
[149] Defence Supplementary Submissions [53].
The defence submit that if propensity reasoning does not justify the admission of the evidence, then coincidence reasoning cannot logically either, because both rely on a degree of specificity of correspondence between the evidence and the facts in issue that is simply absent in this case.[150]
[150] Defence Supplementary Submissions [93].
The defence say that the fact that between 19 and 28 years after the offences, the accused possessed a large quantity of pornography is not logically capable of making it more likely that he is the offender. This is so even if some of that material has common features with some of the offences.[151]
[151] Defence Supplementary Submissions [95].
The defence submit that the evidence has no probative value at all. Further, the prejudicial effect of it cannot be ignored simply because this will be a trial by judge alone. The volume and nature of some of the material would naturally evoke feelings of prejudice. This would be exacerbated by minute examination at trial of specific features of the material.[152]
Admissibility of the pornography evidence
[152] Defence Supplementary Submissions [96].
Evidence is relevant if it makes more probable a fact in issue or a fact relevant to a fact in issue. The essential components of the law in respect of relevance were referred to by Gleeson CJ in Goldsmith v Sandilands.[153] The principles were recently summarised by Buss P in HCP v The State of Western Australia:[154]
In Goldsmith v Sandilands, Gleeson CJ made the following observations in relation to the concept of relevance and the admissibility of evidence:
(a)The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues at the trial.
(b)Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial.
(c)The general rule that relevant evidence will be received is qualified by other rules.
(d)One such qualification limits investigation of collateral matters.
The question as to the relevance of evidence, in a criminal trial before a judge and jury, is whether the evidence, if accepted, could rationally affect the jury's assessment of the probability of the existence of a fact in issue. See Smith v R. Evidence may have that effect directly or indirectly. See Roach v R. Evidence may be relevant if it assists in the evaluation of other evidence. See HML v R. Evidence is either relevant or it is not. No question of discretion is involved. A decision as to whether evidence is relevant is based on logic and general experience. See BBH v R. If evidence is not relevant, no further issue arises as to admissibility. Irrelevant evidence will not be received. See Smith [6]. The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant. See Papakosmas v R; Roach [14].
[153] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024.
[154] HCP v The State of Western Australia [2019] WASCA 38 [45] - [46].
Evidence that goes only to the existence of a propensity or tendency can only be admissible either as similar fact evidence at common law or pursuant to s 31A. As the State does not rely on either of those bases for admission, the evidence is only admissible if it relates directly to some fact in issue.[155] If it does no more than prove some inclination or tendency it will not, given the concession by the State, be admissible.
[155] See Wark [45].
The fact in issue that has been identified is the issue of identity, that is, was it the accused who committed each of the offences. Does the possession or creation of any of the items of pornography identify the accused, or assist in identifying him, as the perpetrator of any of the offences?
One way in which the pornography might assist in the identification issue is if it had some factual connection to any of the offences. But that is not the case here. It is not suggested that any of the pornography depicts any of the victims. It is not suggested that the accused created any of the pornographic images or the video Forced Entry. None of the offences involved any reference to pornography or identifiable acting‑out of images from pornography. The only direct connection is said to be in regard to features present in the Chloe story. These are said to be so unusual as to be autobiographical in character.
The Chloe story does include a number of features that are common to the offences, in particular the Karrakatta offences. However, the story is different in many other important respects. The differences include the age of the victim (40 in the story) and the circumstances in which she is abducted (from the carpark of her home). It is also relevant to take into account that this is but one of many stories depicting a range of different scenarios. The significance of similarities in one such story is diminished by the range of scenarios that are depicted in all of them together. The possibility of innocent coincidental similarities cannot be discounted. In my view, no reasonable reading of the Chloe story could view it as being a record or depiction of any of the alleged offences. It contains no striking, unique or telling details that only the perpetrator would know. If, as alleged, it is autobiographical, it is curious that it has so many details that are unlike the Karrakatta offences. There would be no obvious reason to change details if the accused was seeking to hide these stories from others. This tends to heighten the significance of those differences.
There are important distinctions between the Chloe story and the propensity evidence referred to earlier in these reasons. Unlike the propensity evidence which related to acts of violence, the story is, on its face, a work of fiction that shows only an interest in the subject of violent sexual offending. The capacity of an interest to serve as an identifying characteristic is clearly less than actions.[156] Not every person with such an interest will act upon it and even the possibility of doing so may be largely speculative. Although the State does not rely on tendency reasoning, it is implicit in their argument that possession of this material is an identifying feature because there is said to be some high degree of correlation between such an interest and violent sexual offending of the type alleged here. But the evidence here falls far short of establishing any such correlation.
[156] See McPhillamy [27].
The State submits that the quantity, nature and organisation of the pornography establishes that the accused had an unusual and obsessive interest that, whilst not necessarily unique, is a feature that is capable of identifying him as the perpetrator of the alleged offences. There are several flaws in this argument.
1.The possession of the pornographic videos and images and the creation of the list of sites and stories cannot be firmly established in time, except for the 12 months between December 2015 and December 2016 that the active device was used. Whilst it may be supposed that the activity of collecting and creating occurred over a period of years, it cannot be shown that any of that activity coincided with the commission of the offences, or was even close in time to those events.
2.As I have earlier noted, an identifying feature that relates to an interest or behaviour rather than an action or physical feature is less likely to have any relevance. Unlike a physical feature, such as hair colour, this feature cannot be directly linked to the perpetrator. The State argument involves a two‑stage process: that violent sexual behaviour can be evidence of a particular attitude that is distinctive and that the same attitude can be inferred from the possession of pornography of a particular type. But an attitude or interest may be difficult to precisely define and even more difficult to compare to behaviour that is qualitatively different. I do not accept that it can be assumed that the perpetrator of any of the offences was necessarily likely to have an interest in violent pornography, nor that a person who had such an interest is more likely to have committed these offences.
3.The submissions that the interest here is unusual or rare due to the size, nature and organisation of the collection is based on assertion, not evidence. The experience of the courts is that some people have very large collections of such material and that computer technology and the internet makes obtaining such collections comparatively easy. To be capable of being a distinguishing feature, this interest must be shown to be both shared with the offender and capable of discriminating between individuals to some reasonable extent. It is not apparent that this evidence does either of these things.
4.The particular type of pornography that the State relies on, that is, BDSM or violent pornography, represents a relatively small proportion of the total collection. Furthermore, much of the material said to be relevant was deleted and not accessible by the accused at the time of the search. It cannot be maintained that the accused had a particular or exclusive interest in such pornography, such as to make it an identifying characteristic.
As I noted during the directions hearing, despite the fact that the State foreswore reliance on s 31A, the argument put for the admissibility of the pornography evidence as a whole seemed in some respects to be a propensity argument in all but name.[157] The submission that it can be no coincidence that a person forensically linked to violent attacks upon women is, much later, found in possession of pornography that is of a similar nature, seems to imply that the accused has an inclination or tendency to have an interest in that subject that makes it more likely that he was the offender. If it was propensity evidence, it would have to meet the significant probative value test, a test which the State did not attempt to meet (because of the way it pitched its argument). In any event, in my view, it could not possibly meet that test. However, it is necessary to deal with the State's argument that the evidence is admissible at common law as being relevant to the issue of identity.
[157] ts 299.
The pornography evidence does not meet the test of relevance. It is not evidence which could rationally affect the question of whether the accused is the offender in respect of any of the counts in the indictment. For those reasons that evidence is not admissible. No question of excluding the evidence in the exercise of discretion because its probative value is outweighed by its prejudicial effect arises. However, consistently with what I have said, in my view, this evidence has no probative value and its only effect would be to prejudice a fair trial of the accused.
Separate trial application
The accused seeks a separate trial on counts 1 and 2 (the Huntingdale offences). The defence accepts that each of the charges of wilful murder is properly joined with each of the others and that the evidence relating to them is cross‑admissible.[158] The defence also accepts that the Karrakatta offences are properly joined with the Claremont murder offences and that the evidence relating to the Karrakatta offences and the Claremont murder offences is cross‑admissible.[159] However, the defence submits that counts 1 and 2 are not properly joined with the other counts because they do not satisfy the statutory requirements for joinder.[160]
[158] Defence Submissions [6].
[159] Defence Submissions [7].
[160] Defence Submissions [8].
The basis for the joinder of counts 1 and 2 with the other counts is that they are said to form or are part of a series of offences of the same or a similar character.[161] The defence accepts that counts 3 to 8 are a series of offences of the same or similar character because the four incidents from which those charges arise can all be said to involve attacks on young women that began or likely began in a relatively small geographic area within a period of a little over two years between the hours of midnight and 3.00 am. All four victims in respect of counts 3 to 8 were likely alone when they first encountered the person or persons who offended against them. That encounter also likely occurred when they were walking or waiting by the side of a road.[162] In contrast, the Huntingdale offences occurred at least seven years earlier in a different geographic area and involved an attack upon a young woman who was at home with other members of her family and asleep in her bedroom.[163]
[161] State Submissions [212].
[162] Defence Submissions [46] - [47].
[163] Defence Submissions [43] - [44].
The defence submits that whilst the offences may be similar in character, their factual settings are disparate and there is no sufficient correlation between them to enable the offences to be described as a series without straining the word beyond a meaning which it is reasonably capable of bearing when the time, place and other circumstances of the offences as well as their legal character or category are taken into account. There is said to be no sufficient connection between counts 1 and 2 and the other offences to justify them being joined in the same indictment.[164]
Relevant principles ‑ joinder
[164] Defence Submissions [50].
Section 85 of the Criminal Procedure Act 2004 (WA) provides that an indictment must comply with sch 1 div 2. Schedule 1 div 2 sets out the rules relating to the content of prosecution notices and indictments. Clause 2(3) provides that a prosecution notice or indictment must contain one charge only unless cl 7 or another written law permits otherwise.
Schedule 1 div 2 cl 7(3) of the Criminal Procedure Act provides:
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,
and may do so without alleging a connection between the offences.
Clause 9 of sch 1 div 2 of the Criminal Procedure Act relevantly provides:
(1)If one prosecution notice or indictment contains 2 or more charges the charges must be tried together unless a court orders otherwise under this Act.
In the present case, the State only relies upon the first limb of cl 7(3), that is, that the offences form or are part of a series of offences of the same or similar character. In Zammit v The State of Western Australia,[165] Steytler P said:
[165] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [22] ‑ [26].
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.
In R v Kray [1970] 1 QB 125 the Court of Appeal in England considered the effect of r 3 of Sch 1 to the Indictments Act 1915 (UK) which read as follows:
'Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.'
The Court (Widgery and Fenton Atkinson LJJ and James J) considered (at 130) that the word 'series', in this context, encompassed two or more components (it was followed in this respect in Lancaster v The Queen [1989] WAR 83 at 86). The Court said, of the words 'offences … of a similar character' (at 130 ‑ 131):
' … [O]ffences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.'
They went on to illustrate this by reference to R v Clayton Wright [1948] 2 All ER 763. In that case four counts against the accused had been joined, being arson of a vessel, arson of the same vessel with intent to prejudice the insurers, attempting to obtain money by false pretences from those insurers in respect of a policy on the vessel and attempting to obtain money by false pretences from insurers by falsely pretending that a mink coat had been stolen from his motor car. Lord Goddard said at 765 that the charge with regard to the mink coat 'was a similar charge of swindling underwriters, and, therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent acts to the prejudice of the underwriters … '.
In Ludlow v Metropolitan Police Commissioner [1971] AC 29, the House of Lords held that a 'sufficient nexus' encompassed both the law and the facts relating to the offences (this conclusion was agreed with by Brennan J in Sutton v The Queen (1984) 152 CLR 528 at 540 ‑ 541). The indictment in Ludlow alleged two counts. The first was attempted larceny from a public house. The second was robbery with violence, which also occurred at a public house when the accused refused to pay for a drink. The two offences were committed within 16 days of one another. The House of Lords held that the offences were similar in law, since both contained stealing or attempted stealing as an element. They also had similar factual features, because both took place at public houses within a relatively short period of time. The Court also approved what had been said in Kray to the effect that, while a nexus is certainly established if the offences are so connected that the same evidence would be admissible in respect of each, the rule was not restricted to such cases.
In De Jesus at 9, Dawson J accepted that for two or more offences to constitute a series there must be a connection or nexus between them. He went on to say:
'This, I think, is something different from the express requirement in s. 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold's Criminal Pleading Evidence & Practice, 42nd ed. at par. 1‑77), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.
Similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s. 585 - "a series of offences of the same or a similar character" - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow, at 39 that "Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series". Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a "series" without straining the word beyond the meaning which it is reasonably capable of bearing.'
A nexus between offences is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but the rule is not restricted to such cases.[166]
[166] R v Kray [1970] 1 QB 125; [1969] 3 All ER 941, 944.
Conclusion ‑ joinder
It is evident that the offences in the present case are of a similar character insofar as each group of offences involves a violent attack upon a woman. But the real issue is whether the charges in counts 1 and 2 could be said to form part of a series which also includes the other counts in the indictment. The existence of a nexus between the charges such that evidence on one is admissible in respect of the others is a basis upon which a conclusion could be drawn that they form part of a series.[167]
[167] See Mansell v The State of Western Australia [2009] WASCA 140 [26]; JAW v The State of Western Australia [2016] WASCA 40 [78]; The State of Western Australia v Roe [No 2] [2015] WASC 387.
In the present case, I have concluded that evidence of the Huntingdale offences is admissible in respect of counts 3 to 8 and that evidence of the Karrakatta offences is admissible in proof of counts 1 and 2. This provides sufficient nexus for the joinder of counts 1 and 2 with the other counts. Counts 1 and 2 form part of a series of offences of the same or similar character as counts 3 to 8 because there is evidence relevant and admissible to all counts of the existence of a tendency to attack vulnerable women who are otherwise strangers to the accused without warning and by using physical restraint that involves placing a piece of cloth or material over the victim's mouth in order to obtain compliance. The defence accepted that if evidence of counts 1 and 2 and evidence of the other counts on the indictment was cross‑admissible then no claim that the counts were improperly joined could be maintained.[168]
[168] ts 316.
Where multiple charges are properly joined in one indictment, they must be tried together unless the court orders otherwise: cl 9.[169] That position is justified because a joint trial promotes consistency in decision‑making and facilitates a single enquiry into matters which arise out of, or essentially involve, common issues of fact or law. A joint trial will also prompt the due and expeditious administration of criminal justice, including saving court time and public expense and the avoidance of unnecessary inconvenience for witnesses.[170]
[169] Criminal Procedure Act, Schedule 1, div 3 cl 9.
[170] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 [128]. See also Kalani v The State of Western Australia [2013] WASCA 132; (2015) 48 WAR 178 [73].
Relevant principles ‑ the discretion to order separate trials
It does not necessarily follow that because charges have been properly joined as forming a series of offences of the same or similar character, there must inevitably be a joint trial. The fact that there may be a nexus between charges does not exclude the possibility that, in some circumstances, a joint trial will be prejudicial to an accused and justify the exercise of the discretion to order separate trials pursuant to s 133 of the Criminal Procedure Act. The test to be applied in exercising this discretion differs from the requirements for charges to be joined on the same indictment.
Section 133 relevantly provides:
(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.
When a court is called upon to exercise the discretion under s 133(4) to order a separate trial, it is necessary to consider whether there are reasonable grounds on which the court could properly be satisfied that an accused is likely to be prejudiced in the trial and that the likely prejudice is caused by the fact that the indictment also includes other charges or other accused. The matters that are said to give rise to the likely prejudice must be actual and not assumed and be likely to affect what happens in the trial itself.[171]
[171] The State of Western Australia v Micalizzi [2010] WASCA 147 [23] ‑ [28].
A conclusion that an accused would be likely to be prejudiced at a joint trial does not necessarily require that a separate trial be ordered. It merely enlivens the discretion to make such an order. In considering whether to exercise that discretion regard must be had to whether any prejudice can be adequately guarded against by the giving of appropriate instructions to the jury.[172]
[172] Criminal Procedure Act, s 133(5)(a).
The fact that evidence is admissible in respect of one count but not in respect of another is not, of itself, a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one accused or on only one count is received into evidence. Ordinarily, a properly instructed jury is capable of distinguishing between evidence admissible in only one respect. There will, however, be cases in which the prejudice is so great that it cannot be overcome.[173]
[173] Zammit [65]; Leaman v The Queen (1987) 28 A Crim R 104, 112 ‑ 113.
On the other hand, if evidence on one charge is admissible in relation to another, no impermissible prejudice can arise.[174] In Donaldson, the evidence in respect of the charges was cross‑admissible on a propensity basis.
[174] Donaldson [101].
Conclusion ‑ Severance
In the present case, whilst there is some evidence that is admissible only in respect of counts 1 and 2 and other evidence that is only admissible in respect of other counts in the indictment, there is nonetheless a body of evidence that is admissible in respect of all of the counts. The evidence admissible in respect of each count is readily identifiable and any risk of prejudice is minimised by the fact that this is a trial by judge alone and the evidence relevant to each count would be referred to, dealt with separately and the discipline of preparing reasons for decision would ensure that this occurred. The risk that the trial judge will be improperly influenced by evidence that is not relevant to a particular count is negligible.
The conclusions in regard to the admissibility of the propensity evidence lead to a conclusion that the defence application for a separate trial of counts 1 and 2 must be refused. At the hearing, some submissions were directed to the question of whether a joint trial could still properly occur if the State's propensity evidence application failed.[175] The authorities recognise that cross‑admissibility is a sufficient basis for joinder, but not a necessary one. The test for whether offences form part of a series of offences of the same or similar character is not identical to the test for whether evidence on different counts is cross‑admissible on a propensity basis. There may be cases where though evidence is not cross‑admissible the alleged offences can nonetheless be said to form a series of offences of a similar type. One way in which this may arise is if evidence in respect of one count establishes a tendency which is relevant in respect of another count but does not meet the test of significant probative value. The meeting of the relevance test may provide a sufficient nexus between the offences even though the evidence is not admissible as propensity evidence because it does not have the requisite high level of probative value. In this regard, I note that counsel for the accused accepted that it may be open to conclude that the evidence in respect of counts 1 and 2 proves a tendency which is relevant to proof of the other counts though he disputed that it had significant probative value.[176]
[175] ts 321 - 323.
[176] ts 222.
In my view, there is a sufficient nexus between counts 1 and 2 and the other counts even if the propensity evidence that I have referred to is inadmissible. There is a sufficient connection between those counts and the other counts given the underlying similarity of the conduct notwithstanding the differences as to place and time and some of the circumstances. The real concern that would usually arise in the class of cases to which I refer, that is, where the offences form part of a series but the evidence is not cross‑admissible, is that there would be a significant risk of prejudice. That, however, is not a question that relates to joinder but to whether the discretion under s 133 should be exercised. For the reasons I referred to earlier, even if the evidence was not cross‑admissible, that risk of prejudice would be low in the context of a trial by judge alone. Thus, even if I had come to a different conclusion in relation to the admissibility of the propensity evidence, I would nonetheless have dismissed the defence application for a separate trial of counts 1 and 2.
Submissions at the hearing also addressed the question of whether in order to be properly joined each count must properly form part of a series with every other count on the indictment. It is said it would not be sufficient if counts 1 to 5 formed a series and that, separately, counts 3 to 8 formed a different series.[177] This was an issue referred to by Steytler P in Zammit. His Honour there expressed the view that the use of the word 'series' indicated that all offences must form part of a single series.[178] Though those comments were not material to the outcome of the decision in Zammit, I accept their correctness. Nonetheless, I am satisfied that all of the charges form part of a single series connected in the way that I have referred to earlier in these reasons.
[177] ts 333.
[178] Zammit [57].
Conclusions
The Huntingdale prowler evidence is admissible as propensity evidence in respect of counts 1 and 2. However, that evidence is not admissible in respect of the other counts in the indictment.
The evidence relating to the commission of the Huntingdale offences is obviously directly admissible in respect of counts 1 and 2, but also admissible in respect of the other counts in the indictment as propensity evidence.
The Hollywood Hospital evidence is admissible in respect of all counts in the indictment as propensity evidence.
The Telstra Living Witness Project evidence is admissible as propensity evidence in respect of counts 3 to 8. However, that evidence is not admissible in respect of counts 1 and 2.
The Karrakatta offences evidence is obviously directly admissible in respect of counts 3 to 5, but is also admissible in respect of the other counts in the indictment as propensity evidence.
The pornography evidence is not relevant to the facts in issue in this case and is not admissible in respect of any of the counts.
None of the evidence is admissible as relationship evidence.
Counts 1 and 2 are properly joined with the other counts in the indictment because they form part of a series of offences of the same of similar character. Any prejudice to the accused arising from a joint trial can be guarded against and the discretion to order a separate trial should not be exercised. The application for a separate trial will, therefore, be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall20 MARCH 2019
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