The State of Western Australia v Galby
[2015] WASC 19
•21 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GALBY [2015] WASC 19
CORAM: HALL J
HEARD: 16 JANUARY 2015
DELIVERED : 16 JANUARY 2015
PUBLISHED : 21 JANUARY 2015
FILE NO/S: INS 126 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LYNETTE ANNE GALBY
Accused
Catchwords:
Criminal law - Relationship and propensity evidence - s 31A Evidence Act 1906 (WA) - Arson to home of complainant - Multiple past instances of damage to home of complainant
Legislation:
Nil
Result:
Application to adduce evidence granted in part
Category: B
Representation:
Counsel:
Prosecution : Mr A C Ebell
Accused: Mr M R Gunning
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Gunning Young Barristers & Solicitors
Case(s) referred to in judgment(s):
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
HALL J: The accused is charged that on 26 December 2013 she wilfully and unlawfully destroyed a home unit in Nickol by fire contrary to s 444(1)(a) of the Criminal Code (WA). She has pleaded not guilty to that charge and a trial is listed commencing 23 February 2015.
By application dated 10 December 2014, the prosecution applies for an order that it be permitted to lead evidence of the conduct of the accused in relation to 13 offences of wilful damage and breaching a violence restraining order that occurred between 23 July 2011 and 29 March 2013. The State submits that this evidence is admissible at common law as relationship evidence and also as either relationship or propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA).
The prosecution case
The prosecution case is as follows. The accused and the complainant, David Grose, had been in a personal relationship but separated in early to mid‑2013. During the course of that relationship, the complainant had obtained a number of violence restraining orders against the accused due to her violent behaviour towards him. On 5 March 2013, the complainant obtained a VRO against the accused which would remain in force until 14 March 2015.
On 26 December 2013, at about 6.00 am, the accused went to see the complainant at his home, being unit 3/45 Delambre Drive, Nickol. She wished to discuss the VRO with him. She was in company with her cousin, Denise Hubert. According to Ms Hubert the accused appeared to be intoxicated.
The accused and Ms Hubert sat down with the complainant in the dining area of the unit and discussed the VRO. The complainant became angry with the accused and Ms Hubert then left. The accused then began yelling and acting aggressively towards the complainant, so he left the unit. At the time he left there were no appliances left on or flames anywhere in the house. Ms Hubert observed the accused come out of the unit and yell at the complainant, who was outside speaking to police on his mobile telephone. The accused then went back inside and locked the doors.
The prosecution case is that whilst inside the unit the accused wilfully and unlawfully set fire to a mattress on the floor of the living/dining room, knowing or believing that doing so was likely to result in the destruction of, or damage to, the unit. A short time after locking herself in the unit the accused came out and told the complainant to remove the restraining order. She continued to abuse the complainant before walking off down the street. Shortly afterwards flames were observed inside the unit. The complainant went in and saw that the mattress was on fire. He attempted to put the fire out but was unable to remain in the property due to the amount of smoke. Fire and emergency services were called but they were unable to contain the blaze and the property was destroyed by the fire.
An arson investigator concluded that the fire originated on a mattress in the dining room, that there were no indicators of an accidental cause of fire in that area and that it appeared that the fire had been started through human action. Over the next month the complainant received a number of threatening text messages from the accused. He contacted police in relation to one he received on 30 January 2014 in which the accused mentioned having a metal bar and that she was going to break all of his bones. Police were unable to locate the accused until 11 February 2014 when she was arrested and charged with arson. She participated in an electronic record of interview but made no comment to questions that were put to her.
The prosecution case is circumstantial and relies upon the jury finding that the only reasonable inference is that the accused started the fire whilst locked in the unit and that she did so with the necessary intent, knowledge or belief.
Prior convictions
The prosecution wish to lead evidence of five separate incidents which occurred between 23 July 2011 and 29 March 2013 and which resulted in the accused being charged with criminal damage and breaching a violence restraining order. She was convicted of those charges on her pleas of guilty. All of the incidents occurred at the same home unit and all but one of the charges related to the same complainant. The relevant facts are as follows.
On 23 July 2011, the accused was at the Nickol property with the complainant and another person who was visiting. The accused began arguing with the visitor until that person left. The accused then continued arguing with the complainant until he too left. The accused then took a frying pan from the kitchen and proceeded to strike the walls, smashing holes in the wall panelling on both sides of the hallway. Police attended and spoke to the accused who made full admissions. She was convicted of wilfully and unlawfully damaging property contrary to s 444(1)(b) of the Criminal Code (charge number PKH11/1836).
On the following day, 24 July 2011, the accused went to the Nickol unit in breach of a police order and asked the complainant to let her in. He refused but agreed to place some of her possessions at the rear of the unit so that she could collect them and leave. She went to the back of the unit but the complainant placed the possessions at the front so that the accused could not gain entry. The accused tried to get into the unit by way of the back door but could not do so as the locks had been changed. She shouted to the complainant to let her in however he ignored her. She then smashed the rear glass sliding door and entered the kitchen. She said to the complainant 'see what you get when you don't let me in'. Police arrived and arrested the accused and she was later convicted of wilful and unlawful damage of property (PKH11/1837).
On 1 August 2011, the accused again attended at the unit to collect personal possessions. The complainant refused to let her inside. The accused went to the complainant's Ute which was parked nearby and took a large metal pole from the rear tray. She then smashed the vehicle's front windscreen, front headlight and rear taillights. She was charged with criminal damage (PKH11/1609). The occupants of a neighbouring unit witnessed the accused's actions and decided to leave. There had been tension between the accused and one of the neighbours earlier in the day. The accused approached the vehicle in which the neighbours were sitting and smashed the metal pole against the vehicle door frame and roof panel causing dents and scratches. A further charge of criminal damage was laid in respect of this conduct (PKH11/1610).
The complainant obtained a VRO on 24 August 2011 which restrained the accused from communicating with or approaching him and from entering or remaining on or approaching within 50 m of the unit. This VRO had an expiry date of 26 August 2013.
On 7 September 2011, the accused went to the unit shouting, yelling and being abusive towards the complainant. This resulted in a charge of breaching the VRO (PKH11/1831). On this occasion she is also alleged to have thrown an empty glass bottle at the front door and to take a large piece of wood and smash it against the front security door. She left before police arrived.
Several hours later the accused returned to the unit and gained access to the rear yard where she again began yelling, screaming and abusing the complainant. A further charge of breaching the VRO arose out of this incident (PKH11/1832). Again, she left before police arrived.
On the following day, 8 September 2011, the accused went to the unit in the evening. She began abusing, yelling or throwing beer bottles at the complainant. Another charge of breaching the VRO was preferred (PKH11/1833). She again left before police arrived.
The next evening, 9 September 2011, the accused again went to the unit. She used a solid metal bar to smash the front security screen and then pushed the metal bar through the screen mesh in an attempt to hit the complainant. On this occasion the complainant and another person held the accused until police arrived. She was charged with breaching the VRO and criminal damage (PKH11/1834 and 1835).
On 26 October 2012, the accused went to the unit and banged on the front door demanding entry. When the complainant refused to let her inside the accused walked to the back of the premises and began hitting the rear glass sliding window with a hammer, eventually causing it to shatter. The complainant then left the premises and the accused went inside and damaged a Foxtel iQHD box belonging to the complainant by hitting it with the hammer. She was charged with two offences of criminal damage (PKH12/2485 and 2486).
A further VRO was obtained on 5 March 2013. On 29 March 2013 the accused breached that VRO on two occasions (PKH13/971 and 974). The State contends that the VRO in this case was issued to protect the complainant. The Statements of Facts relating to those breaches were not available at the time of the hearing of this application.
Relevant law
Section 31A of the Evidence Act relevantly 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.
The categories of propensity evidence and relationship evidence as defined in s 31A(1) are not mutually exclusive. It is possible for evidence which answers the description of relationship evidence to also fall within the definition of propensity evidence: Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [42] (Buss JA).
In Daniels, Buss JA said:
The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:
(a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)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.
The court may decide, in a particular case, that the tests in s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:
(a)solely for a particular or limited purpose; or
(b)subject to the trial judge giving the jury a specific direction or directions in relation to the evidence [43] ‑ [44].
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] ‑ [61], Steytler P said in relation to the concept of 'significant probative value' as referred to in 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].
See also Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45].
The following propositions can be drawn from that analysis:
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 the propensity or relationship evidence would 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 or relationship 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 or relationship evidence either by itself or having regard to other evidence adduced or to be adduced has in proving that fact.
The question regarding the risk of unfairness requires the court to take into account any directions that might be given to the jury in an attempt to overcome any prejudice arising from the evidence. The court is obliged to consider what conclusion fair‑minded people would draw from a comparison of the probative value of the evidence with the risk of an unfair trial. See Dair [66] and Horsman [23] and Buiks [46].
Prosecution submissions
The State submits that by pleading not guilty and making no admissions to the police the accused has put all elements of the offence in issue. In these circumstances, it will be necessary for the State to prove beyond reasonable doubt that the accused lit a fire in the unit which destroyed the property and that in lighting the fire she intended to destroy the unit or knew or believed that her act was likely to result in that destruction.
The State contends that the prior convictions are admissible as both propensity evidence and relationship evidence. In regards to propensity evidence, it is submitted that there are striking similarities between the facts of the past offences and the circumstances of the present offence. In particular, all of the prior convictions occurred at the same location, six of the prior offences involved the accused damaging the unit or property of the complainant, all of the damage offences occurred in the context of arguments with the complainant, the complainant was the protected person in all of the prior breach of VRO offences and each of those offences occurred when the accused approached the complainant at the unit, in breach of the VRO. It is also submitted that the prior offences show that the accused displayed a pattern of behaviour amounting to a tendency under s 31A(1)(b) to behave in an aggressive manner towards the complainant, to wilfully and unlawfully damage property in the course of arguments with the complainant and to disregard VROs protecting the complainant by attending at the home unit.
The State also contends that the evidence is admissible as relationship evidence because it is evidence of the accused's attitude and conduct towards the complainant over a period of two years. It is said to be evidence that demonstrates the character of their relationship and provides important context to the present offence.
The prosecution submits that the evidence is of significant probative value because it supports the evidence of the complainant and Ms Hubert and will assist the jury to determine the issue of whether the accused set fire to the mattress while she was alone in the property and that this was a wilful and unlawful act. The probability that she did so is said to be significantly increased by evidence of the nature of the relationship.
Defence submissions
Defence counsel submitted that, even accepting the factual circumstances of the past offences, they do not amount to a pattern of behaviour which shows a propensity to damage property by lighting fires. The evidence could not assist in drawing a conclusion that the accused had deliberately lit the fire with the necessary intention. A contrast was drawn between the spontaneous acts of damage that had occurred in the past and the more deliberate and intentional behaviour involved in lighting a fire. It was accepted that there may well be a general tendency to wilfully damage property but not a propensity to do so by way of lighting a fire.
Merits of the application
I will deal first with the question of whether the evidence is admissible as relationship evidence. All of the prior offences (with one exception) relate to the same complainant, Mr Grose. Taken together they are evidence from which it could be concluded that the relationship between the complainant and the accused was one that was marked by anger and aggression on the part of the accused towards the complainant. The anger of the accused frequently flared into destructive behaviour. That behaviour was directed to damaging the complainant's personal property or the unit in which he was residing.
The prior offences occurred between 23 July 2011 and 29 March 2013. The present offence is alleged to have occurred on 26 December 2013. The gap of some 10 months between the last of the prior offences and the events relating to the present charge might suggest that the evidence is of limited probative value. However, the evidence indicates that the attitude of the accused towards the complainant had not altered by December 2013. She remained angry with him and unhappy that he had obtained a VRO. The pattern of argument and aggression on the part of the accused was typical of the earlier incidents. Those incidents revealed a marked attitude by the accused towards the complainant that had been held over a period of more than two years and continued to be held at the time of the alleged arson.
As relationship evidence the past offences have significant probative value because they are evidence of the attitude or conduct of the accused towards the complainant over a period of time. They reveal that the relationship was one that was characterised by violent arguments in which the accused has typically caused damage to property belonging to, or occupied by, the complainant. In the absence of this evidence the likelihood that the accused deliberately lit the fire in order to destroy the unit in which the complainant was living cannot be properly assessed. However, in light of evidence which shows that over an extended period of time the accused has displayed an attitude towards the complainant of being willing to damage property, including the unit in which he was living when angry with him, makes it significantly more likely that the fire was deliberately lit by the accused. If this evidence was excluded the true nature of the relationship would not be revealed. Whilst there is a degree of risk that such evidence could be used by the jury in a merely prejudicial way, any such risk could be adequately obviated by appropriate directions. In my view, 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 evidence must have priority over the risk of an unfair trial.
For these reasons the evidence of the prior offences is admissible as relationship evidence with two qualifications. First, the evidence relating to charge PKH11/1610 relates to damage to the neighbours' car. It would seem from the facts in relation to that offence that the accused had some separate grudge in regard to the neighbours. Whilst this offence occurred close in time to others that related to the complainant, the motivation appears to have been different. On this basis that offence can say nothing about the relationship with the complainant and could not be admissible on a relationship basis. Secondly, the facts regarding the two last breaches of VRO (PKH13/971 and 974) were not available at the hearing of this application. Whilst the State believed that these offences also related to approaches to the complainant in breach of a VRO intended to protect him, the admissibility of evidence in respect of those breaches is dependent upon those facts being correct. Accordingly, a ruling that evidence in respect of those prior offences is admissible is provisional.
In regard to whether the evidence is admissible on a propensity basis, due regard has to be had both to the similarities and differences between the past and present alleged conduct. The similarities are significant. All of the past damage offences (other than the one relating to the neighbours) relate to property owned or occupied by the complainant, occurred at the same location and occurred in the context of an argument with the complainant. A number of the offences also occurred in circumstances where there was a current VRO, as was the case with the arson charge. The significant difference is that none of the past offences involved the lighting of a fire.
I accept that in some circumstances the lighting of a fire may involve planning and deliberation. That can be contrasted with spontaneous acts of damage committed in an explosion of temper. However, in this case the evidence indicates that the offence occurred during a relatively short period of time when the accused had locked herself in the unit and that both before and after the event she was observed to be angry and aggressive towards the complainant. In these circumstances, it would be wrong to characterise what is alleged to have occurred as a planned or calculated act. To the contrary, it is the prosecution case that the accused acted whilst angry at the complainant and in order to cause harm to him by damaging or destroying his home.
It is true that no conclusion could be drawn from the past offences that the accused has a tendency to light fires. However, that evidence does support an inference that the accused has a tendency when angry with the complainant and at his unit to cause damage to that unit. The differences in the type of damage do cause me to have some reservations as to whether this evidence has significant probative value as propensity evidence or whether the probative value outweighs the risk of an unfair trial. However, I have come to the conclusion that the evidence of past offences of damage (other than that in relation to the neighbours) is also admissible on a propensity basis. This would not extend to the breaches of VRO; they do not reveal a tendency in the relevant propensity sense.
Conclusion
The evidence of the past offences, other than in relation to PKH11/1610, is admissible as relationship evidence. For reasons that I have given, this ruling also applies to PKH13/971 and 974, but subject to confirmation of the facts in relation to those offences. The past damage offences (other than PKH11/1610) are also admissible on a propensity basis. This ruling assumes that appropriate directions will be given regarding the use of the evidence at the trial of the accused.
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