The State of Western Australia v GAM - [2024] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GAM [2024] WADC 46
CORAM:   RITTER DCJ
HEARD:   16 FEBRUARY 2024
DELIVERED          :   7 JUNE 2024
FILE NO/S:   IND CAR 1 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GAM

Catchwords:

Propensity and relationship evidence - Family violence - Tendency to behave violently towards women - Domestic violence - Section 31A application

Legislation:

Evidence Act 1906 (WA)

Result:

Application dismissed

Representation:

Counsel:

The State of Western Australia	:	Ms E E Lynch
Accused	:	Mr I D Hope

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Ian Hope

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

Daniels v The State of Western Australia [2012] WASCA 213
Edser v QSuper Board [2021] FCA 1437
LFG v The State of Western Australia [2015] WASCA 88
Preston v The State of Western Australia [2012] WASCA 64
PRS v The State of Western Australia [2023] WASCA 106
The State of Western Australia v Brown [2020] WASC 300
The State of Western Australia v Elliott [2020] WASC 368

RITTER DCJ:

The application

By an application filed on 5 March 2024, The State of Western Australia (the State) applies for an order that:
1.In any trial on indictment CAR 1 of 2023 the State is permitted to lead evidence of the conduct of the accused person relating to offences contained in:
(a)GN 972/2016 - being armed in a way that may cause fear - in respect of which the accused pleaded guilty in the Magistrates Court at Geraldton on 27 June 2016.
(b)GN 971/2016 - aggravated common assault - in respect of which the accused pleaded guilty in the Magistrates Court at Geraldton on 19 April 2016.
(c)GN 2157/2010 - aggravated assault occasioning bodily harm - in respect of which the accused was convicted in the Magistrates Court at Geraldton on 20 September 2010.
(d)GN 968/2016 - being armed in a way that may cause fear - in respect of which the accused pleaded guilty in the District Court at Geraldton on 27 June 2016.

The indictment

Indictment CAR 1 of 2023 contains five charges as follows:
1.On 26 August 2022 at Brockman, [GAM], while in the place of [the complainant's relative] without her consent, unlawfully assaulted [the complainant].[1]
[1] The name of the present alleged victim and other people named in the indictment have been anonymised, for privacy reasons.
And that [GAM] did bodily harm to [the complainant].
And that immediately before the commission of the offence [GAM] knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.
2.On the same date and at the same place as Count (1), [GAM] unlawfully assaulted [the complainant] and thereby did her bodily harm.
And that [GAM] was in a family relationship with [the complainant].
3.On or about 5 September 2022 at Brockman, [GAM] unlawfully assaulted [the complainant] and thereby did her bodily harm.
And that [GAM] was in a family relationship with [the complainant].
And that a child was present, namely [LM].
4.On the same date and at the same place as Count (3), [GAM] made a threat with intent to compel [the complainant] to do an act she was lawfully entitled to abstain from doing.
And that [GAM] was in a family relationship with [the complainant].
And that a child was present, namely [LM].
5.Between 10 September 2022 and 28 October 2022 at Narngulu, [GAM] attempted to pervert the course of justice upon the prosecution of himself on charges of aggravated home burglary, aggravated assault occasioning bodily harm, and threats with intent, by encouraging [the complainant] to withdraw her complaint.
The indictment charges the accused with offences alleged to have occurred on 26 August 2022, 5 September 2022 and between 10 September 2022 and 28 October 2022. Each of the charges allege the victim is the complainant.
The conduct[2] of the accused that is alleged to have occurred against the complainant is:
(a)In count 1, entering the home without consent and assault occasioning bodily harm.
(b)In count 2, assault occasioning bodily harm.
(c)In count 3, assault occasioning bodily harm.
(d)In count 4, a threat.
(e)In count 4, 'encouragement'.
[2] The specification of 'conduct' that follows deliberately does not mention the intents or purposes which are elements of the charges.
In counts 2, 3 and 4 the indictment also pleads, as a circumstance of aggravation, that at the time of the conduct constituting the offence against the complainant, the accused and the complainant were in a family relationship.

Procedural history

An application under s 31A of the Evidence Act 1906 (WA), with respect to the trial of the accused was made by the State on 24 July 2023 (the first application). The first application was heard on 16 February 2024. The hearing was adjourned, part‑heard, after I expressed the preliminary view that there were some problems with the application as then pleaded and particularised. The hearing was adjourned so the State could consider whether it would amend its application, to consider other issues that had been raised by me during the hearing and to allow the State and GAM to make additional written submissions.
A document entitled 'State's Further Submissions in relation to Application to Lead Evidence Pursuant to s 31A of the Evidence Act dated 5 March 2024' (SFS) was provided. Counsel for the accused replied to those submissions in an email dated 5 April 2024 (Accused's Further Submissions or AFS).
Following this, counsel agreed that a mention hearing listed for 8 April 2024 need not proceed and the application could be determined on the basis of the materials then before the court, including the written submission filed prior to and the oral submissions made at the hearing on 16 February 2024. Consequently, the State filed the present application, the Proposed Facts Document (PFD) and the SFS.
Prior to the hearing on 16 February 2024 the State filed a document on 16 January 2024 entitled 'State's Submissions in Relation To Application to Lead Evidence Pursuant to s 31A of the Evidence Act' (State's Written Submissions or SWS), and counsel for the accused filed a document, which was relied upon at the hearing, entitled 'Amended Outline of Defence Submissions in Objection to the Leading of Evidence pursuant to s 31A Evidence Act 1906' (Accused's Written Submissions or AWS).
In the SFS the State said that it continued to rely on the SWS. The same is assumed, with respect to the position of the accused, and the AWS.

The meaning of the application

The application, insofar as it seeks permission to lead 'evidence of the conduct of the accused person relating to offences' involves a looseness of language. It seems from the terms of the application as a whole, together with the PFD and the submissions of the State, that the State wants to lead the evidence of the conduct of the accused person that was engaged in by him in the commission of the past offences specified. This is different from conduct 'relating to' the offences. The latter connotes a connection to the offences but not the conduct comprising the offences.
In Edser v QSuper Board,[3] Perram J said:
As Beaumont and Lehane JJ observed in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285 of the relationship required by the words 'relates to':
... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice.
[3] Edser v QSuper Board [2021] FCA 1437 [62].
That is, 'relates to' requires a connection from one thing to another. As I apprehend it, the State does not want to lead evidence that has a relationship to the conduct of the accused to the past offences identified, but of the conduct of the accused that comprised the offences.
The accused, by his counsel, did not raise any point arising out of the looseness of the language of the application and therefore I do not need to consider the issue further. I will treat the application as if the words 'relating to' were intended to say 'comprised by'.

The PFD

The prosecution summarised the evidence that it applies for permission to lead at the trial in a document entitled 'Proposed Facts of Evidence Sought to be Admitted pursuant to s 31A of the Evidence Act' dated 1 March 2024 (the PFD). The PFD is attached to these reasons[4] and marked Annexure A.
[4] With appropriate anonymisation.
The PFD provides a summary of the evidence of the conduct of the accused as committed in offences GN 971/2016, GN 972/2016 and GN 968/2016, against Ms Q and offence 2157/2010 committed against Ms G.[5]
[5] The names of the accused, past victims and other people named in the indictment have been anonymised, for privacy reasons and to avoid any miscarriage of justice in the trial.
The PFD says offences GN 971/2016 and GN 972/2016 both occurred on 16 February 2016. At that time the accused and Ms Q had been in a relationship for about six months and lived together and had no children.
Offence GN 968/2016 took place on 2 March 2016. This was just over two weeks after offences GN 971/2016 and GN 972/2016. The offence was also committed against Ms Q.
The offence committed against Ms G, charged by GN 2157/2010, occurred on 2 May 2010. At that time the accused and Ms G had been in a de facto relationship for approximately 14 years and had six children together.

Section 31A of the Evidence Act

Section 31A of the Evidence Act provides:
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 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.

The facts alleged by the State

The State asserted the material facts of the charges in the indictment were as contained in a document entitled 'Amended Statement of Material Facts' dated 17 July 2023 (SOMF).
In the SWS, the State provided what is described as a brief summary of the SOMF as follows:
7.By way of a brief summary, the Accused and the Complainant are ex-partners and have a very young daughter together.
8.Counts (1) and (2) are alleged to have been committed on 26 August 2022, while the Complainant was staying at her sister's house in Carnarvon. It is alleged that the Accused returned from Perth to confront the Complainant about 'blocking' him. The Accused entered the house without consent and punched the Complainant several times to her right arm and shoulder, causing bruising.
9.Counts (3) and (4) are alleged to have been committed on or about 5 September 2023. The Accused and the Complainant were in their shared bedroom. The Accused wanted the Complainant to take methylamphetamine with him. When the Complainant declined, the Accused tried to administer a shot of methylamphetamine to the Complainant's arm himself, but was unable to do so. The Accused became angry at the Complainant, punching her to her face and head and when the Complainant fell to the floor, the Accused repeatedly kicked her to her [head], arms and legs, causing pain and bruising. The Accused then threatened the Complainant to get her to inject herself.
10.Count (5) is alleged to have been committed between 10 September and 28 October 2022. After being charged with the abovementioned offences, the Accused was remanded in custody. While in custody, the Accused consistently telephoned the Complainant and encouraged her to make attempts to withdraw her complaint to police, as well as providing her with instructions about how to do so. As a result of the Accused's persistent communications, the Complainant attended the Carnarvon Police Station on 27 October 2022 seeking to withdraw the charges against the Accused.
(emphasis added)

The issues in the trial

In the SWS the State attempted to identify what the issues at trial would be. As noted in the SWS, no formal admissions have been made and therefore at trial, the State will be, insofar as is presently known, required to prove every element of each offence beyond reasonable doubt.
However, the SWS also submits that based upon admissions made during the accused's electronic record of interview with police:
1.The primary issues in counts 1 and 2 are likely to be whether the accused had consent to enter the house and whether he assaulted the complainant;
2.The primary issues in count 3 are likely to be whether the accused assaulted the complainant and if so whether he did so unlawfully; and
3.The primary issue in count 4 is likely to be whether the accused threatened the complainant.
There was no submission in the SWS about what the likely issues were said to be for count 5 on the indictment.
The thrust of the SWS and oral submissions by the State is that the proposed s 31A evidence is propensity evidence and further or in the alternative relationship evidence. The State then submits the evidence has 'significant probative value' and 'passes the fair‑minded person' test set out in s 31A of the Evidence Act.

Construction of s 31A of the Evidence Act

As set out by Hall J in The State of Western Australia v Elliott:[6]
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.
[6] The State of Western Australia v Elliott [2020] WASC 368 [19].
Additionally in the more recent decision of the Court of Appeal in PRS v The State of Western Australia,[7] the court set out in convenient summary form, the following principles:
[7] PRS v The State of Western Australia [2023] WASCA 106 [83] - [88].
83In s 31A(1) of the Evidence Act 1906 (WA), the term 'propensity evidence' is defined to mean:
(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.
84Section 31A(2) states, relevantly, that propensity 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 (s 31A(2)(a)); 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 (s 31A(2)(b)).
85In RMD v The State of Western Australia, Beech JA summarised various principles, enunciated in the case law, that are relevant in determining whether propensity evidence has significant probative value within s 31A(2)(a), as follows:
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(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.

(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.
(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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(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.
(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.
(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. (footnotes omitted)

86In The State of Western Australia v Jackson, Buss P, Mitchell and Beech JJA made these observations concerning the determination of whether propensity evidence has significant probative value within s 31A(2)(a):
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.

Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.

Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)

87In Jackson [52] - [53], the court also said:
(a)An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.
(b)Whether propensity evidence has significant probative value depends upon the nature of the fact or facts in issue to which it is allegedly 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.
(c)If propensity evidence is allegedly relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be carried out separately in relation to each fact in issue.
(d)The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to assess the different value of propensity evidence in relation to different facts in issue in deciding whether, having regard to the nature and significance of those facts in issue, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, at the trial of the relevant offence or offences.

88In The State of Western Australia v JHN, Buss P, Mazza & Vaughan JJA made these points:
(a)The question of whether propensity evidence has significant probative value can only have one correct answer, although reasonable minds may sometimes differ as to the answer. An appellate court must determine for itself whether propensity evidence possesses significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (A Pseudonym).
(b)Propensity evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of the propensity evidence to support the credibility of a State witness's account of the charged acts. See RMD [52] (Buss P).
(c)The concept of propensity evidence and whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context; namely, the fact or facts in issue at the trial and the other evidence (including the other propensity evidence) adduced or to be adduced at the trial. See Lilley [61].
(d)Section 31A substantially altered the common law. Propensity evidence is admissible under s 31A if the court considers that the test under each of the first and second limbs of s 31A(2) is satisfied. See Dair v The State of Western Australia.

(footnotes omitted)

In determining the application I do so in accordance with these principles.

The submissions of the State in the PFD

In the PFD the State makes the following submissions about the evidence sought to be admitted pursuant to s 31A of the Evidence Act:
Offences committed against [Ms Q]
GN 971/2016 - Aggravated common assault
GN 972/2016 - Being armed in a way that may cause fear
1.At the time of this offence, the Accused was 40 years of age. The Accused and [Ms Q] had been in a relationship for about six months. They lived together but had no children together.
2.At about 2.00am on 16 February 2016, the Accused and [Ms Q] were both in the lounge room of [an address in Geraldton], which was a friend's house. The Accused was angry that [Ms Q] had gone for a car ride with another man a few days earlier.
3.The Accused began to punch [Ms Q] to the head with both hands, which caused her to fall to the ground. The Accused grabbed [Ms Q] by the hair and dragged her around the room.
4.The Accused then went to the kitchen and picked up a 25‑centimetre-long kitchen knife from the bench. The Accused held the knife above his head in an aggressive way while yelling at [Ms Q].
5.[Ms Q] was still in the lounge room, which is an inclusive open‑plan living area adjacent to the kitchen. She was frightened and felt fear that she was about to be hurt by the knife. [Ms Q] ran out of the house and hid in bushes outside.
GN 968/2016 - Being armed in a way that may cause fear
6.At the time of this offence, the Accused was 40 years of age.
7.On 2 March 2016, [Ms Q] was at the home of her great‑uncle, [MQ], located at [an address in Rangeway]. [Ms Q] and her great‑uncle were making dinner for themselves and talking.
8.At about 5.10pm, the Accused jumped the rear fence of [the address in Rangeway] while in possession of a baseball bat. He walked to the rear door of the house, which was open. The Accused could hear that there were people inside.
9.The Accused entered the house without consent and approached [MQ], who was in the kitchen, while holding the baseball bat above his shoulder in a threatening manner. The Accused was no more than five metres from [MQ] and very close to [Ms Q].
10.The Accused demanded that [Ms Q] leave the address with him. [Ms Q] tried to calm the Accused down and although she did not want to do so, she went with the Accused in order to avoid a violent confrontation.
Offence committed against [Ms G]
GN 2157/2010 - Aggravated assault occasioning bodily harm
11. At the time of this offence, the Accused was 34 years of age. The Accused and [Ms G] had been in a de facto relationship for approximately 14 years and they had six children together.
12. On 2 May 2010, the Accused unlawfully assaulted [Ms G], with whom he was in a family and domestic relationship, and thereby did her bodily harm, namely causing her bruising to her face and particularly around her eyes.

Outline of the position of the accused

In the AWS, counsel for the accused referred to the reasons of Mazza J in Preston v The State of Western Australia,[8] where his Honour said that 'evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings'.
[8] Preston v The State of Western Australia [2012] WASCA 64 [37].
The accused's counsel also referred to Daniels v The State of Western Australia[9] where Buss JA (as the President then was) said the adjective 'significant' in the phrase significant probative value in s 31A(2)(a) of the Evidence Act connotes important or of consequence.
[9] Daniels v The State of Western Australia [2012] WASCA 213 [49(c)], [82].
The central submission of counsel for the accused was that the evidence of the conduct of the accused comprising the offences dated 16 February 2016, 2 March 2016 and 2 May 2010 were not significantly probative of proof of the allegations in the indictment said to have occurred on 26 August 2022, 5 September 2022 and 11 September 2022 to 27 October 2022.
The accused's counsel submitted there are significant material differences in the evidence about the 2010 and 2016 offences when compared to the 2022 allegations. Accordingly, it was submitted the 2010 and 2016 convictions are less than significantly probative of the 2022 charges.
The accused's counsel noted the accused accepted culpability for the 2010 and 2016 offences but has denied the 2022 charges.
The accused's counsel also made the point that the 2010 and 2016 allegations involved different complainants, being Ms Q and Ms G. Counsel also submitted Ms Q and Ms G are unrelated to the complainant.
In the AWS, counsel set out in a summary form what was contended to be the characteristics of the 2022 charges and the contrasting characteristics, according to his submission, of the offences which occurred on 2 May 2010, 16 February 2016 and 2 March 2016.
These contentions are set out below, subject to amendments for ease of reference and to remove parts that were relevant only to the first application:
1.Characteristics of the 2022 charges:
1.1Count 1 (being in the place of the complainant without consent, unlawfully assaulting her, doing bodily harm, when the accused knew or ought to have known there was another person in the place, which was ordinarily used for human habitation) and count 2 (unlawfully assaulting the complainant, doing her bodily harm, when in a family relationship):
(a)The offences occurred on 26 August 2022.
(b)The accused and the complainant had been in a relationship for one year.
(c)The accused entered into the complainant's Carnarvon residence without consent.
(d)The accused struck the complainant to the arm and shoulder.
(e)The accused interrogated the complainant about her movements.
1.2Count 3 (unlawfully assaulting, the complainant, doing her bodily harm when in a family relationship and a child was present) and count 4 (making a threat with intent to compel the complainant to do an act she was entitled to abstain from doing, when in a family relationship, and when a child was present):
(a)The offences occurred between 5 - 6 September 2022.
(b)The accused attempted to inject the complainant with a hypodermic needle and inject a drug.
(c)The accused punched the complainant to the face causing a bruise.
(d)The accused kicked the complainant to the head, arms and legs.
(e)The accused raised a steel pole and demanded the complainant inject herself with a needle and squirt the remaining drug into her mouth.
(f)A child was present.
1.3Count 5 (attempting to pervert the course of justice):
(a)The offence occurred between 11 September 2022 and 27 October 2022
(b)The accused encouraged the complainant to withdraw charges.
(c)On 27 October 2022 the complainant attended the Carnarvon Police Station to withdraw the charges against the accused but subsequently told police that she was pressured to do so against her intention.
2.Characteristics of the prior offences:
2.1Charges GN 971/2016 and GN 972/2016 (aggravated common assault and being armed in a way that may cause fear):
(a)The offences occurred on 16 February 2016.
(b)The accused and Ms Q had been in a six‑month relationship.
(c)The accused was upset with Ms Q about a sexual 'approach' by another male.
(d)The accused punched Ms Q to the head, pulled her by the hair and held a knife in an aggressive way while yelling at Ms Q.
(e)Ms Q ran out of the house.
2.2GN 2157/2010 (aggravated assault occasioning bodily harm):
(a)The assault occasioning bodily harm occurred on 2 May 2010 against Ms G.
(b)Ms G suffered bruising to her face.[10]^, [11]
[10] In the SWS it was submitted that according to the transcript of the hearing now before the court, the facts were not read, and the court cannot therefore speculate as to the facts as found.
[11] No submissions were made about offence GN 968/2016.
The AWS then set out what was submitted to be the significant differences between the offences the subject of the s 31A application and the charges in the indictment. My summary of the relevant parts of the AWS is as follows:
(a)The 2016 offences occurred about six and a half years prior to the 2022 charges.
(b)The complainants were different persons.
(c)The locations were different.
(d)The circumstances of the offending were different.
(e)On 16 February 2016 the accused did not harm or attempt to harm Ms Q.[12]
(f)On 16 February 2016 the accused struck Ms Q, pulled her hair and held a knife over a sexual approach by a man.
(g)On 2 May 2010, 14 years prior to the alleged offences in 2022, the accused was convicted of assault occasioning bodily harm by causing bruising to the face of Ms G.
(h)The SOMF is unavailable and the circumstances surrounding the offence may have been so materially different to the alleged offences of 2022, so as to render them irrelevant.
(i)The alleged 2022 offences materially involve:
(i)On 26 August 2022, repeatedly striking his partner, the complainant.
(ii)On 5 ‑ 6 September 2022 threatening the complainant with a steel rod to cause her to inject herself.
(iii)Between 11 September 2022 and 27 October 2022 repeatedly encouraging the complainant to withdraw charges.
[12] This assertion seems to be inconsistent with (f).
Counsel for the accused therefore submitted the significant differences between the facts comprising the 2016 and 2010 offences are such that that evidence is less than significantly probative to the alleged 2022 offences.
The AWS then referred to the hypothetical fair‑minded person test lest the court found, contrary to his submission, that the evidence of the 2016 and 2010 offences was significantly probative of the proof of the 2022 charges.

Elaboration of the State's submissions

As set out earlier the State contended that the proposed evidence was propensity evidence and/or in the alternative relationship evidence.
The State submitted the proposed evidence was propensity evidence as it was capable of demonstrating a tendency the accused has to behave in a violent manner towards women with whom he is in a domestic relationship.
The State also submitted the proposed evidence was relationship evidence, as it was evidence of the attitude and conduct of the accused towards a class of persons, being women with whom he is in a domestic relationship with, over a period of time. With respect, this so‑called relationship, is not a cogent descriptor as it does not say what the attitude and conduct of the accused was; and does not in my opinion really add much, if anything, to the asserted tendency.
The conduct the State relies upon from the past offences is the conduct or behaviour of assaulting a woman, within the circumstance that he was in a domestic relationship with them.
As to whether the proposed s 31A evidence has significant probative value, the State submitted:
1.The proposed s 31A evidence has significant probative value as it is capable of rationally affecting, to a significant extent, the assessment of the probability of facts in issue, for example:
(a)In relation to counts 1 and 2, whether the accused assaulted the complainant and if so, whether he assaulted her unlawfully.
(b)In relation to count 3, whether the accused assaulted the complainant and if so, whether he assaulted her unlawfully.
(c)In relation to count 4, whether the accused threatened the complainant.

Lapse of time and significant probative value

As set out more fully below, a lapse in time from past offending can affect whether the evidence has significant probative value.
The relevant lapses of time are:
1.From 2 May 2010, 16 February 2016 and 2 March 2016, being the dates of the past offences to 24 August 2022, 5 September 2022 and 10 September to 28 October 2022 being the dates of the alleged commission of the present charges.
2.The Sentence Information Unit has informed the State[13] that the accused was in custody for these periods since the past offending:
[13] There was no objection to this information being before the court in deciding the application.
(a)16 May 2020 to 6 September 2021 (on remand - 479 days).
(b)17 ‑ 26 March 2020 (on remand - 10 days).
(c)27 June 2016 to 4 July 2019 (serving sentence - 1,103 days).
(d)5 March 2016 to 26 June 2016 (on remand - 114 days).
(e)3 April 2015 to 4 June 2015 (serving sentence - 63 days).
(f)21 November 2014 to 19 February 2015 (serving sentence - 91 days).
(g)12 October 2014 to 20 November 2014 (on remand - 40 days).
(h)23 April 2014 to 24 April 2014 (on remand - 2 days).
(i)10 October 2010 to 19 October 2010 (on remand - 10 days).
(j)5 October 2010 to 9 October 2020 (serving sentence - 5 days).
(k)20 September 2010 to 4 October 2010 (on remand - 15 days).
The State therefore submits the accused had a significantly reduced opportunity to offend during those periods. The State summarises that there were a total of 1,932 days when the accused was in custody, from 4 September 2010 to 6 September 2021. This period spans 4,020 days. So, of 4,020 days, the accused spent 1,932 days in custody. Thus, in this period the accused spent 2,088 days in the community or 5.72 years or 69.6 months given a 30‑day month. Also 1,932 days of 4,032 days is 48% of 4,020 days. The State said more notably, between 2 March 2016, when the accused committed offence GN 968/2016 and 26 August 2022 when count 1 on the indictment was allegedly committed, the accused had spent approximately 1,706 days in custody and only 662 days in the community. That appears to be an error of calculation as there are 2,638 days between 2 March 2016 and 26 August 2022. If the number of days in custody in this period of time was 1,706 days, then that leaves 932 days in the community, or a period of 2.55 years or 31 months based on 30 days per month. Also 1,706 days is 64.67% of the total period within this time span.
The State also submitted the proposed s 31A evidence showed the relevant tendency or attitude of the accused was present in 2010 when he was 35, and 2016 when he was 40. It was therefore submitted there was not a tendency or attitude of the accused which was fleeting or confined to a different stage of his life. It was submitted that given the tendency or attitude persisted from 2010 to 2016, 'one would reasonably expect it to also persist for another six years and into 2022'. It was not clear on what basis the State asserted one might reasonably expect this. There was no expert opinion evidence introduced or authorities cited which support this submission.
The State therefore submitted that in light of the above, the lapse of time between the proposed s 31A evidence and the offences alleged in the indictment, does not materially affect whether there is a significant probative value of the proposed s 31A evidence.
Given the submissions, there is an issue as to whether the time the accused spent in custody should be taken into account in assessing whether the proposed s 31A evidence has significant probative value, and if so how and to what extent and for what purpose.

The law on s 31A and lapses of time

In the SWS the State referred to LFG v The State of Western Australia[14] and The State of Western Australia v Brown.[15] The State submitted that in LFG, Martin CJ noted that a submission made on behalf of the appellant that a lapse in time of approximately 4 ½ years needed to be considered in light of the fact that the appellant had spent approximately 22 months of that period in custody. In LFG the principal issues were whether there had been an error in failing to order the trial of LFG should be a trial by a judge alone; whether with respect to propensity evidence there was a risk of an unfair trial which outweighed the probative value of the evidence; and whether the verdicts were inconsistent and therefore unsafe and unsatisfactory. The majority, comprised by Buss P and Mazza JA, dismissed the appeals. Martin CJ would have allowed the appeal. In that context, and with respect, the mere noting by Martin CJ of the submission referred to at [162] is of limited assistance in resolving the present application.
[14] LFG v The State of Western Australia [2015] WASCA 88 [162] (LFG).
[15] The State of Western Australia v Brown [2020] WASC 300 [100] (Brown).

In Brown the nature of the propensity evidence was of the offender's tendency to have a sexual interest in girls under the age of 13 years. Derrick J said the time that has lapsed between a prior offence and the alleged offences is not something that can be overlooked in making the relevant assessment.[16] His Honour noted that ordinarily the fact that a person has not acted on a tendency for a period would militate against the conclusion that the tendency is of significant probative value, in determining if the person has engaged in the alleged offence. The period of time was 16 ½ years. His Honour went on to say however that the accused had only spent seven months in the community between December 2003 and October 2015.[17] As a result his Honour noted that the accused's opportunity and ability to act on the tendency during that time was limited. His Honour also noted[18] that although the accused was in the community from October 2015 to the time of the commission of the alleged offences before the court, throughout that period he was supervised and subject to the onerous and strict supervision and monitoring conditions of a supervision order. His Honour decided that the existence of those conditions had an impact upon the ability of the accused to act on his tendencies and on the likelihood that he would do so.
[16] Brown [100].
[17] Brown [101].
[18] Brown [102].
In Brown[19] his Honour said that a period of a little over four years is not an insignificant period of time. However when his Honour took into account that the accused was subject to the conditions of a supervision order during that period, the lapse of time was not such as to cause his Honour to conclude that the evidence of the accused's tendencies as established by the prior offences was not significantly probative of whether or not the accused engaged in the conduct relevant to the determination of the charges before the court. His Honour decided the evidence of the prior offences and the relevant tendencies which the evidence was capable of proving, despite the time that had elapsed since the last determination of the tendencies, would either by itself or having regard to the other evidence to be adduced, rationally affect, to a significant degree, the assessment of the probability of the accused having engaged in the relevant alleged conduct before the court.
[19] Brown [103].
The analysis by Derrick J in Brown supports the following principles relevant to deciding an application to adduce propensity evidence under s 31A of the Evidence Act:
(a)Time that has elapsed since the commission of a past offence, which is said to contain evidence of significant probative value, is relevant to an assessment of whether the evidence is of that character.
(b)However, in assessing the relevance of the time, a judge can take into account, factually, the length of time in which an accused was in custody or subject to strict supervision in the community and therefore unable to act, or has a more restricted opportunity to act upon their tendencies.
(c)Neither (a) nor (b) above is alone determinative of the issue of whether there is significant probative value.

Defence submissions on lapse of time

In the AWS counsel submitted the accused had been out of custody for significant periods of time. Accordingly, the fact that he had not, during that period of time, acted on any tendency of violence against a woman militated against the conclusion that evidence of the tendency had significant probative value.
Counsel submitted there was a contrast between any tendency of the accused to be violent to a female partner to a tendency to have a sexual interest in children. It was submitted the tendencies here are of a different kind. Counsel therefore submitted the effluxion of time was more significant in the present case to that considered in Brown.
Whilst it can be accepted that these tendencies may be of a different type, I do not think, in the absence of expert evidence, that I could find there was some greater significance in an effluxion of time without acting on one of these types of tendencies, as against the other. Accordingly, I do not accept that submission made on behalf of the accused.

Lapse of time assessment

In the present case, overall, I regard the periods of time that the accused has spent in the community, between the dates relevant to the application, to be significant in the assessment of whether the evidence of the conduct constituting the past offences has significant probative value.

Considering all facts together

In accordance with the principles set out earlier the evidence of the conduct engaged in by the accused to commit the offences the subject of charges GN 968/2016, GN 971/2016 and GN 972/2016, should not be considered in isolation. They are to be considered together to ascertain if there is a relevant tenancy of the accused. For the purpose of assessing the application I assumed the conduct the subject of the offending is propensity evidence or relationship evidence. The evidence is relevant at least insofar as trying to establish the assault occasioning bodily harm charges. The fact that the accused has, in the past, assaulted his domestic partner makes it more probable that he has done so as charged.
The more difficult question is whether the State can establish there is significant probative value in the conduct of the past offending in attempting to prove the current charges.
In undertaking this assessment, in accordance with the principles set out above, I must decide whether the past evidence would either together and having regard to the other evidence to be adduced, rationally affect, to a significant degree, the assessment of the probability of the existence of a fact in issue; bearing in mind that significance connotes important or of consequence.

Assessment of application

Bearing in mind that the jury will be told, in the accused's trial, that they are effectively deciding the verdicts in three trials, I think it appropriate to consider the s 31A application separately for counts 5 and 4 on the indictment. With respect to counts 1 ‑ 3 there is a commonality of the facts alleged, in terms of the type of offence alleged. Therefore, I will consider the s 31A application bearing that in mind.

Count 5 on the indictment

I do not find that the past evidence has significant probative value in attempting to prove the conduct the subject of count 5 in the present indictment. The conduct asserted in count 5 does not constitute conduct that is the product of the tendency asserted by the State.
That asserted tendency is a tendency the accused has to behave in a violent manner towards women with whom he is in a domestic relationship. That tendency does not in my opinion have a significant probative value in trying to prove an offence of a different character, the subject of count 5.
The State also submitted the proposed evidence was relationship evidence, as it was evidence of the attitude and conduct of the accused towards a class of persons, being women with whom he is in a domestic relationship, over a period of time. Again count 5 involves different alleged conduct. It is an offence of a different kind to those committed in the past. The relevant past conduct, of assaulting a partner, is sufficiently different from the conduct of allegedly encouraging a domestic partner to withdraw a complaint to make the former significantly probative of the latter.

Count 4 on the indictment

I form that same conclusion about the evidence of the conduct of the past offending to count 4 in the indictment. This is evidence of a threat, not an assault, with a rod, which is not present in the past offending. The present charge is also allegedly against a different complainant, a significant period of time ago; with the threat being made for the specified purpose of trying to get his domestic partner to inject herself with a drug, that was not a purpose present in the past offending. The fact that the accused in the past assaulted his domestic partner the length of time ago that he did is not in my opinion of significant probative value of whether he engaged in the conduct the subject of count 4; even when one takes into account that the State allege that assaults of his domestic partner preceded the threat which is the gravamen of the alleged offence now under consideration.

Counts 1, 2 and 3 on the indictment

The assessment of whether the past offending has significant probative value, in proving counts 1, 2 and 3 in the indictment is more difficult to determine. That is because the indictment, in these counts, charges the accused with offences in which it is alleged that he assaulted the complainant, his domestic partner and occasioned bodily harm to her; and the past offending conduct, in counts GN 2157/2010 and GN 971/2016 was assault occasioning bodily harm to a domestic partner; and the conduct comprising the past offending in counts GN 968/2016 and GN 971/2016 involved going armed so as to cause fear in a domestic partner. Counts 1 - 3 in the indictment, however, do not allege the use of a weapon. Insofar as count 3 in the indictment alleges the use of a syringe, it is not, in the SOMF said that the syringe was used in assaulting the complainant but more that the assault was engaged in for the purpose of overcoming resistance to the use of the syringe. Furthermore, with respect to the past conduct of assaulting a domestic partner, I take into account, in making the relevant assessment, the time since the past conduct occurred and the fact that it was against different domestic partners. Whilst it may be taken into account that an assault against past domestic partners may show a tendency to assault domestic partners, that is not the same as constituting significant probative value that the past assaults on domestic partners are proof of an assault against this particular domestic partner; and that is the fact in issue in counts 1 - 3 in the indictment. In my opinion, the length of the gap between the combined past offending and the offences alleged in the indictment, is significant, in my assessment.
As mentioned earlier, the State relied on the fact that the past offending was engaged in when the accused was at the same stage of his life, and it was therefore more entrenched behaviour. I am not sure that can be necessarily taken into account, in the absence of expert evidence that might establish it, but even if it is, in my opinion the cogency of the point is offset by the time gap that I have referred to.
For these reasons I do not find that the evidence of the conduct engaged in, in the past offending, separately or together, and having regard to the conduct alleged in the indictment, has significant probative value in proving the conduct alleged in counts 1 - 3 of the indictment.
I have also considered the charges in the indictment as a whole. However, when all of the conduct of the accused in the past is considered together with the conduct alleged in the indictment, I still do not find the evidence of the past conduct to be of significant probative value in the proof of any of the charges in the indictment.

Conclusion

These assessments are fatal to the success of the application.
Making an assessment that the evidence of the past conduct is not of significant probative value in proving any of the offences alleged in the indictment means that it is not necessary to consider the additional requirement for admissibility, that the value of the evidence desired to be adduced, 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.
As I am not of the opinion that the evidence of the past offending conduct is of significant probative value in establishing any of the counts in the indictment, for the reasons set out above, the State's application must be dismissed.

ANNEXURE A

IN THE DISTRICT COURT OF WESTERN AUSTRALIA
BETWEEN No CAR1 of 2023
THE STATE OF WESTERN AUSTRALIA
and
GAM

PROPOSED FACTS OF EVIDENCE SOUGHT TO BE ADMITTED PURSUANT TO SECTION 31A OF THE EVIDENCE ACT

Date of Document:  1 March 2024
Filed on behalf of:  The State of Western Australia
Prepared by:
Office of the Director of Public Prosecutions
Ground Floor  Telephone: (08) 9425 3999
55 St Georges Terrace  Facsimile: (08) 9425 3600
PERTH WA 6000  ODPP Reference: 23/106

Offences committed against [Ms Q]

GN 971/2016 - Aggravated common assault

GN 972/2016 - Being armed in a way that may cause fear

At the time of this offence, the Accused was 40 years of age. The Accused and [Ms Q] had been in a relationship for about six months. They lived together but had no children together.
At about 2.00am on 16 February 2016, the Accused and [Ms Q] were both in the lounge room of [an address in Geraldton], which was a friend's house. The Accused was angry that [Ms Q] had gone for a car ride with another man a few days earlier.
The Accused began to punch [Ms Q] to the head with both hands, which caused her to fall to the ground. The Accused grabbed [Ms Q] by the hair and dragged her around the room.
The Accused then went to the kitchen and picked up a 25-centimetre-long kitchen knife from the bench. The Accused held the knife above his head in an aggressive way while yelling at [Ms Q].
[Ms Q] was still in the lounge room, which is an inclusive open-plan living area adjacent to the kitchen. She was frightened and felt fear that she was about to be hurt by the knife. [Ms Q] ran out of the house and hid in bushes outside.

GN 968/2016 - Being armed in a way that may cause fear

At the time of this offence, the Accused was 40 years of age.
On 2 March 2016, [Ms Q] was at the home of her great-uncle, [MQ], located at [an address in Rangeway]. [Ms Q] and her great-uncle were making dinner for themselves and talking.
At about 5.10pm, the Accused jumped the rear fence of [the address in Rangeway] while in possession of a baseball bat. He walked to the rear door of the house, which was open. The Accused could hear that there were people inside.
The Accused entered the house without consent and approached [MQ], who was in the kitchen, while holding the baseball bat above his shoulder in a threatening manner. The Accused was no more than five metres from [MQ] and very close to [Ms Q].
The Accused demanded that [Ms Q] leave the address with him. [Ms Q] tried to calm the Accused down and although she did not want to do so, she went with the Accused in order to avoid a violent confrontation.

Offence committed against [Ms G]
GN 2157/2010 - Aggravated assault occasioning bodily harm

At the time of this offence, the Accused was 34 years of age. The Accused and [Ms G] had been in a de facto relationship for approximately 14 years and they had six children together.
On 2 May 2010, the Accused unlawfully assaulted [Ms G], with whom he was in a family and domestic relationship, and thereby did her bodily harm, namely causing her bruising to her face and particularly around her eyes.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
7 JUNE 2024