The State of Western Australia v Elliott
[2020] WASC 368
•13 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ELLIOTT [2020] WASC 368
CORAM: HALL J
HEARD: 31 AUGUST 2020 & FURTHER WRITTEN SUBMISSIONS ON 6 OCTOBER 2020
DELIVERED : 13 OCTOBER 2020
FILE NO/S: INS 58 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BENJAMIN JOHN ELLIOTT
Accused
Catchwords:
Criminal law – Evidence – Propensity evidence – Prior incidents of violence – Murder trial – Turns on its own facts
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B E F Tooker |
| Accused | : | Ms F R Veltman |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Mel Legal |
Cases referred to in decision:
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213
La Bianca v The State of Western Australia [2019] WASCA 105
RMD v The State of Western Australia [2017] WASCA 70
The State of Western Australia v Jackson [2019] WASCA 118
Wark v The State of Western Australia [2020] WASCA 19
HALL J:
The accused is charged that on or about 29 October 2018 at West Busselton he murdered Samuel Darryl Riley. He has pleaded not guilty to that charge and the matter is set down for a four week trial in Busselton commencing on 19 October 2020. By an application dated 14 August 2020 the State seeks a ruling that it be permitted to lead evidence of prior convictions of the accused as propensity evidence.
Prosecution case
The prosecution case is that the deceased lived alone in a one bedroom unit in Carter Street, West Busselton. He suffered from schizophrenia which was complicated by illicit drug use. He was in receipt of a disability pension and received care from an agency called Enable WA (funded by the National Disability Insurance Scheme). His mother lived in Busselton and would visit him often.
The deceased was last seen alive at his unit by his mother at approximately 5.00 pm on Monday 29 October 2018. She had gone to his unit to help tidy up because he had a rent inspection the next day.
At 10.43 am on Tuesday 30 October 2018 an employee of the Department of Housing attended at the deceased's unit in Carter Street to conduct a rent inspection. She knocked on the door and the window but received no answer. She left and shortly after the deceased's carer attended the residence and knocked on the kitchen window. Again there was no response. The carer left and advised his employer.
The carer obtained keys to the unit from the deceased's mother. At about 11.00 am the carer and a colleague re‑attended the unit. They found that they did not need to use the key as the front door was open. Upon entry they located the deceased in the living room on his queen size bed with significant multiple facial and head injuries.
At 11.27 am St John Ambulance were called to attend. Ambulance officers arrived and declared life extinct at 11.42 am. The police were advised and attended the scene. Initially, due to the significant head injuries and blood on the wall above the deceased's head, the police believed that the cause of death was suicide by a gun shot. However, no firearm was found and homicide detectives were called in. An investigation team from the homicide squad arrived at the scene at 6.52 pm that day.
On 1 November 2018, approximately 40 m from the deceased's unit, a police officer saw a Fiskars brand X7 tomahawk style axe in the shallow water of a canal. The axe was lying in the water below a pedestrian bridge that links Carter Street to Queen Elizabeth Avenue, West Busselton. Subsequent forensic examination of the axe identified it as the murder weapon.
On 2 and 5 November 2018 Dr Gerard Cadden, a forensic pathologist, performed a post‑mortem examination on the deceased. Dr Cadden determined that the cause of death was 'severe open head injury'.
On 15 November 2018 the accused was arrested, interviewed and released without charge. On 5 December 2018 he was arrested again, re‑interviewed and then charged with the murder of the deceased.
The prosecution relies on the following evidence to prove that the accused was the killer of the deceased:
1.the accused and the deceased had gone to high school together 15 years earlier;
2.from 12 September 2012 to the date of the deceased's death the accused was in custody for all but 12 days;
3.the deceased moved into his unit on Carter Street two years prior to his death and thus for most of that period the accused was in custody;
4.when interviewed by police on 5 December 2018 the accused said that he had not caught up with the deceased since his release from prison and return to Busselton. He was shown a picture of the deceased's unit and denied having been there;
5.the forensic evidence indicates that the deceased was killed in his bed;
6.DNA matching that of the accused was found on the fitted sheet that the deceased was lying on when found;
7.the location in which the accused's DNA was found was consistent with him having leaned on the bed on the right‑hand side in order to bludgeon the deceased;
8.DNA matching that of the accused was also found on a blue doona cover;
9.the position in which the DNA on the doona cover was found is also consistent with the accused leaning over the deceased in order to bludgeon him;
10.a syringe located in a bin in the living area produced a DNA result that was consistent with two contributors, being the deceased and the accused. The State will submit that an inference can be drawn from this that the deceased and the accused were using drugs together on the night the deceased was killed;
11.there was a trail of the deceased's blood from the bed where he was killed to the bathroom. A swab taken from the hot tap of the bathroom sink produced a weak mixed profile that was consistent with the accused being a contributor;
12.a mixed DNA sample was also found on a fold‑out bed in a bedroom of the unit. Testing indicated that the accused was a likely contributor to this mixed sample;
13.a swab was also taken from the flush buttons of a toilet at the unit. A mixed DNA profile was found which was consistent with coming from two people, one of whom was likely to be the accused;
14.there is evidence that the accused travelled to Busselton on 26 October 2018 and stayed with an acquaintance, Jacinta Cooper, in Hobson Street. On the night the deceased was killed the accused left the house between 10.30 pm and 11.00 pm and told Ms Cooper that he was going to have a drink with a friend. When she woke up the next morning she saw the accused awake and sitting in the lounge at about 11.00 am. He told her that someone had stolen his shoes from the back step and she gave him a pair of sneakers that belonged to her ex‑partner;
15.CCTV footage shows that the deceased visited Ms Cooper on four occasions in the three days prior to his death. On one occasion the deceased came to the door and asked for some drugs. On this occasion the accused was inside sitting on a couch. After the deceased had left it is alleged that the accused made derogatory remarks about the deceased;
16.the accused showed interest in the news regarding the deceased's death in the days that followed. According to Ms Cooper he expressed disappointment that there was not more in the newspaper about it;
17.on either the Thursday or Friday following the killing the accused shaved his head. The State will submit that this was in an attempt to change his appearance in case the police were looking for him;
18.the location of the murder weapon, that is the axe, was consistent with it being discarded by a person using a foot bridge that provided the most direct route from the deceased's unit to Ms Cooper's house; and
19.when interviewed by the police on 5 December 2018 the State will submit that the accused told a number of lies, in particular whether he had met with the deceased since returning to Busselton and whether he had been to the deceased's unit. The State will rely on the DNA evidence as proof that the accused's denials were false. These will be relied on as lies told out of a consciousness of guilt.
Propensity evidence
The State seeks to adduce evidence of two earlier incidents as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA). The first incident is an assault that occurred at Casuarina Prison on 29 October 2012. On 7 July 2014 the accused pleaded guilty in the Rockingham Magistrates Court to a charge of assault occasioning bodily harm arising from that incident. He was sentenced to 7 months' imprisonment, concurrent on a term he was already serving.
The facts of the first incident as stated to the court, and admitted by the accused, were as follows:
The victim was a 34 year old male who, at the time of this offence, was also a serving inmate. He was 180 centimetres tall, of slim build. Mr Elliott is before you. At the time of the offence, he was 25 years and of a similar build and stature. As I said, both parties were currently held at Casuarina Prison, located at 288 Orton Road in Casuarina, and are not known to each other.
At approximately 4.45 pm on 29 October 2012, Mr Elliott was in the ANC Wing day room located within Casuarina Prison. The victim was sitting at a table with Mr Elliott and others, eating dinner. Mr Elliott asked the victim where the tomato sauce was and left the table briefly, walking over to a nearby cupboard, and after sitting down for a short period, Mr Elliott armed himself with a fork, stood up, and without warning struck the victim to the head and neck multiple times.
The victim was pushed to the floor by Mr Elliott, landing on his back and Mr Elliott struck him once more to the right side of the chest, before being restrained by the prisoners and prison staff. As a result of the incident, the victim received puncture wounds to the right temple, right side of the head, right side of the neck, back neck, right collar bone and right hand, and these injuries required minor medical treatment.
On 30 December 2012, officers from Rockingham Detectives Office attended at Casuarina Prison to speak with Mr Elliott, and an electronic record of interview was conducted with him. He was later summonsed and a prison charge referred. Due to Mr Elliott's circumstances, your Honour, and being an incarcerated prisoner, the prosecution will not be seeking costs in relation to the prosecution notice.
During the course of the plea in mitigation in the Rockingham Magistrates Court the lawyer who appeared for the accused referred to psychiatric reports and previous incidents of drug induced psychosis. It was submitted on behalf of the accused that mental health issues were a significant factor in the commission of the offence. The lawyer noted in this regard that the offence occurred 'only about a month' after the accused had gone into custody for other matters and that 'he was still coming down off drugs and really was in a state that was – an agitated state'. In sentencing the Magistrate made reference to the accused suffering from bipolar disorder and noted that this had not been diagnosed at the time of the offence.
The second incident relied on by the State occurred on 29 September 2017 in Innaloo. As a result of this incident the accused was charged with doing an act with intent to harm as a result of which bodily harm was caused contrary to s 304(2) of the Criminal Code. The accused pleaded not guilty to that charge and was convicted on 13 August 2020 after a trial in this Court before Derrick J and a jury. On 2 October 2020 he was sentenced to 5 years 3 months' imprisonment.
At the hearing of the application the accused had yet to be sentenced in respect of the second incident and the State relied on the facts as set out in the prosecution opening address at the trial. It was accepted that the facts as found by the trial judge may not be the same as those alleged in the opening address. Accordingly, I gave leave to the parties to make further written submissions after the sentencing proceedings were complete.
The facts of the second incident as found by Derrick J were relevantly as follows:
On 29 September 2017 Mr Donald Roper and his wife Mrs Shirley Roper were riding their bicycles along the cycle path adjacent to the Mitchell Freeway near Innaloo.
Mr Roper was 77 years old. Mrs Roper was 65 years old.
Earlier that day Mr and Mrs Roper had been with their son‑in‑law and grandchildren riding their bicycles in the northern suburbs of Perth. They were on their way home.
The Ropers' plan was to ride to the Warwick Train Station and to catch the train home from there. However, there had been an incident at the Warwick Train Station which prevented them catching the train from that station. They therefore decided to continue riding south along the cycle path to the Stirling Train Station which was still operating and from which they would be able to catch the train home. That is what they did.
At shortly before 11.40 am, as Mr and Mrs Roper rode south along the cycle path towards the footbridge that they needed to access in order to get from the cycle path to the Stirling Train Station, they both noticed a man standing behind a tree near the edge of the cycle path. At the time Mrs Roper was riding slightly in front of Mr Roper. Neither Mr Roper nor Mrs Roper were riding particularly quickly.
The man that Mr and Mrs Roper saw standing behind a tree near the edge of the cycle path was you.
In the moments after Mrs Roper rode past you, and as Mr Roper was in the process of riding past you, you stepped out onto the cycle path and struck Mr Roper with force to the left side of his face with a glass object, most likely a glass bottle. The blow caused Mr Roper immediate and severe pain. It also caused him to fall onto his right side onto the cycle path. As he was wearing clip in cycling shoes he fell to the ground while still clipped into his bicycle.
The force of the blow that you struck caused the glass object that you struck Mr Roper with to break, if not completely then at least in part. As a result a number of green glass fragments from the glass object fell onto the cycle path.
As Mr Roper lay injured and stunned on the ground and desperately trying to free himself from the pedals of his bicycle you kicked him to the head and neck region.
Meanwhile, Mrs Roper, who had heard her husband cry out in pain as he was struck by you, turned around and saw you standing over her husband kicking him. Mrs Roper got off her bicycle and ran back towards you and Mr Roper screaming at you to leave Mr Roper alone. As Mrs Roper approached, you calmly walked off in a northerly direction along the cycle path, that is, heading back in the direction from which Mr and Mrs Roper had come.
After Mrs Roper and another cyclist who had arrived on the scene had managed to help Mr Roper to the side of the cycle path and to sit him down, Mrs Roper called 000. She made the call at 11.41 am. Both Mr Roper and Mrs Roper were understandably in a state of shock at the time.
A short time after Mrs Roper made the triple zero call ambulance and police attended at the scene.
Mr Roper was taken by ambulance to Sir Charles Gairdner Hospital for treatment to the injuries that he had suffered to his face as a result of you striking him with the glass object. The injuries suffered by Mr Roper as a result of the blow that you struck consisted of three quite deep lacerations to the left side of his face which were located near his left eyebrow, on his left cheek area and on his left jaw area.
On 30 September 2017 Mr Roper was operated on under general anaesthetic so that his wounds could be properly cleaned, debrided and sutured in layers. The wounds were closed in two layers, a deep layer and a skin layer. Mr Roper was discharged from hospital on the afternoon of 30 September 2017.
Derrick J also made findings that the violent behaviour of the accused was gratuitous and unprovoked and that after the assault he walked away from the victim with callous indifference and without any attempt to call for assistance for him. Although there were some indications of mental illness, on the limited information available Derrick J was unable to make any finding that such illness was causally related to the commission of the offence.
Relevant legal principles
Section 31A of the Evidence Act provides as follows:
31A.Propensity and relationship evidence
(1)In this section –
propensity evidence means –
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fairminded 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.
For propensity evidence to be admissible, s 31A of the Evidence Act requires affirmative answers to the following:
1.Is the evidence propensity evidence or relationship evidence.
2.Is the evidence of significant probative value.
3.Is the probative value of the evidence compared to the degree of risk of an unfair trial such that fair‑minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial.
In Dair v The State of Western Australia,[1] Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):
The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 ‑ 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 ‑ 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] ‑ [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
[1] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] ‑ [61].
In Daniels v The State of Western Australia,[2] Buss JA summarised the principles referred to in Dair in the following terms:
(a)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.
(b)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.
(c)The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d)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.
[2] Daniels v The State of Western Australia [2012] WASCA 213 [49].
Daniels is a particularly pertinent case for the purposes of this application as it dealt with evidence of past convictions for offences of violence that were relied upon by the prosecution as both propensity and relationship evidence. In that case the issue was whether the accused had acted in self‑defence and a propensity to violence was relied on by the State as being relevant to the state of mind of the accused. Insofar as propensity evidence was concerned, on appeal it was held that the evidence did not have significant probative value having regard to the nature of the past incidents and the facts in issue in the trial.
More recently in RMD v The State of Western Australia,[3] the principles relevant to whether propensity evidence has significant probative value have been summarised as follows:
[3] RMD v The State of Western Australia [2017] WASCA 70 [185].
The principles relevant to s 31A were recently outlined in DKA v The State of Western Australia ([2017] WASCA 44) by reference to a number of appellate decisions. In summary:
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution (DKA [35]).
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value (DKA [36]).
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue (DKA [30]).
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue (DKA [30]).
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence (DKA [30]).
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact (DKA [30]).
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value (DKA [42], [44]).
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value (DKA [43], [44]).
Those principles have also been discussed in subsequent cases: see La Bianca v The State of Western Australia;[4] The State of Western Australia v Jackson[5] and Wark v The State of Western Australia.[6]
[4] La Bianca v The State of Western Australia [2019] WASCA 105.
[5] The State of Western Australia v Jackson [2019] WASCA 118.
[6] Wark v The State of Western Australia [2020] WASCA 19.
Submissions
The State submits that the proposed evidence is similar fact evidence or other evidence of the conduct of the accused and is also evidence of a tendency that the accused has or had (see s 31A(1)(a) and s 31A(1)(b)). It is submitted that the evidence establishes that the accused has a tendency to use extreme violence to attack a person to the head with a weapon without apparent justification and to inflict multiple blows or persist in his attack and to then leave without rendering assistance.
The State submits that the evidence has significant probative value bearing in mind similarities with the alleged facts of the murder. In particular the deceased was killed by the use of a tomahawk to repeatedly and forcefully strike the deceased to the face and head. It is said that the fact that the accused has a tendency to use extreme violence to attack a person to the head with a weapon without apparent justification and to inflict multiple blows makes it more likely that he is the killer.
The State also refers to the fact that there is evidence that suggests another possible suspect. Another man, Daniel McCartney, has admitted to attending the deceased's unit and using drugs with the deceased. Mr McCartney's DNA has also been found in the unit. The State submits that in circumstances where the jury will have to consider whether it is possible that Mr McCartney was the killer of the deceased it will be relevant for them to take into account that the accused has the violent tendency alleged.
The State submits that there are three factors that set this case apart from what might be considered a typical 'similar fact' identification cast. First, that the tendency is quite specific. Second, the tendency involves conduct which is far outside the realms of ordinary human behaviour and beyond the contemplation of most human beings. Third, to make good its case the State needs to meet an alternative theory that Mr McCartney is the killer. For these reasons the evidence is said to have significant probative value.
The State also submits that the risk that the jury might fail to properly assess and scrutinise all of the evidence can be mitigated by an appropriate direction. It is said to be exceedingly unlikely that the jury would convict the accused simply because of the prior convictions without carefully evaluating all of the evidence. Further it is said that the propensity evidence would form only a small part of the evidence as a whole.
The defence opposes the application, essentially on the grounds that the evidence does not meet the test of having significant probative value. It is submitted that there are a number of significant differences between each of the incidents. As a consequence any tendency that is drawn from the incidents must be one of a broad and general nature that can have limited probative value in determining the identity of the killer. Furthermore, there is said to be a significant risk that, notwithstanding any directions, the evidence would be used improperly by the jury.
Merits of the application
There are significant differences between each of the two propensity incidents relied on and between them and the alleged killing of the deceased. Each of the incidents involve the use of a different weapon, a fork in the case of the first incident, a bottle in the case of the second incident and an axe in the present case. The number and location of the blows was also different. In the first incident there were multiple blows with a fork, which were not confined to the head or face. In the second incident there was a single blow with the bottle followed by kicking when the victim had fallen to the ground. In the case of the present charge it is alleged that there were multiple blows confined to, or at least focused on, the face and head.
As to the suggested feature that all of the incidents were without apparent justification, clearly there can be no justification for such extreme violence but that does not mean that the incidents were entirely inexplicable. In particular, as I have earlier noted, in respect of the first incident it was submitted that the accused's mental health and the possible continuing effects of drug use were relevant factors. If that is correct it does not support a conclusion that the first incident was necessarily a manifestation of a tendency to display violence at random. This is a factor that is different from the second incident, which does appear to have been without any obvious cause. On the other hand the prosecution case in respect of the present charge is that the accused knew the deceased and harboured ill‑will towards him.
Another factor relied on by the State is that the accused's tendency includes leaving after an act of violence without rendering assistance. That is not a factor which could be meaningfully suggested in respect of the first incident given that the accused and the victim were both confined within a prison. There is no suggestion in the facts of that incident that could support this aspect of the suggested tendency. However, it is a feature of the second incident. As to the present charge, obviously whoever was the killer left the scene without reporting what he had done, but that is hardly a remarkable fact in the circumstances.
When the details of each of the incidents are taken into account it is clear that they do not all share the features referred to by the State in describing the tendency. The only common factor is that all of the incidents involved a sudden explosion of extreme violence. However this is a tendency of a broad and general nature. This is relevant in assessing the probative value of the evidence.
The fact in issue to which this evidence is said to be relevant is the identity of the killer. However there is nothing distinctive about the prior incidents that would assist in determining that issue. It may be that the evidence of those incidents proves that the accused is a person who is more likely to engage in extreme violence, but this is not a characteristic that is so unusual as to make it significantly or substantially more likely that he is the killer in this case, even when taking into account the other evidence to be adduced by the prosecution. In my view this evidence does not have significant probative value.
As to the suggestion that the evidence would assist in determining whether there is a realistic possibility that Mr McCartney is the killer, it does not seem to me that this would be an appropriate approach to the evidence. The task of the jury will not be to decide which of the two men is more likely to be the killer but whether the accused is proven beyond reasonable doubt to be the killer. If there is a reasonable possibility that Mr McCartney is the killer then that possibility cannot be rationally affected by some tendency to violence on the part of the accused.
For the reasons I have given it is not necessary to consider the question of whether 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 the relevant evidence should take priority over the risk of an unfair trial. However, if it was necessary for me to do so, my conclusion in that regard would be that the evidence does not meet that test.
The State submitted that the risk of unfairness could be obviated by a direction that the jury would need to be satisfied on all of the other evidence (that is, without regard to the propensity evidence) that the accused was inside the deceased's unit on the night he was killed. If not so satisfied then the accused would have to be acquitted. If they were so satisfied the propensity evidence could be used to determine whether he was the killer. It is submitted that a direction in these terms would mitigate the risk that the jury would convict the accused simply because of his past convictions.
I do not accept that submission. Given that the prosecution case is an entirely circumstantial one there is a very significant risk that the jury would use the past incidents to conclude that the accused must be the killer even if on a proper consideration of all of the evidence there remained some doubt in that regard. The nature of the past incidents are likely to engender a belief on the part of the jury that the accused is a dangerous person who deserves to be in prison regardless of whether his guilt is proven beyond reasonable doubt. I do not consider that directions in this regard would sufficiently obviate the risk that this evidence would be misused.
Conclusion
For the reasons I have given the evidence referred to in the prosecution's application is not admissible.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall
13 OCTOBER 2020
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