The State of Western Australia v Glasfurd [No 4] - [2022] WASC 443

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 4] [2022] WASC 443
CORAM:   MCGRATH J
HEARD:   24 OCTOBER 2022 & 6 DECEMBER 2022
DELIVERED          :   16 DECEMBER 2022
FILE NO/S:   INS 3 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE ERIC GLASFURD
Accused

Catchwords:

Criminal law - Evidence - Propensity evidence - Whether circumstances of prior offences have significant probative value - Whether risk of unfair trial outweighs public interest - Evidence of prior conduct not subject to conviction

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Propensity evidence is admissible in part
Leave granted to State to admit propensity evidence at trial

Category: B

Representation:

Counsel:

Prosecution	:	Mr B E F Tooker
Accused	:	Mr S D Freitag SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Smiddy-Brown Legal

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

Daniels v The State of Western Australia [2012] WASCA 213
DKA v The State of Western Australia [2017] WASCA 44
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Lilley v The State of Western Australia [2019] WASCA 164
MNA v The State of Western Australia [2020] WASCA 84
NTH v The State of Western Australia [2020] WASCA 22
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Wark [2017] WASC 154
The State of Western v Jackson [2019] WASCA 118

MCGRATH J:

The accused, Mr Glasfurd, is charged with one count of manslaughter contrary to s 280 of the Criminal Code (WA), one count of dangerous driving of a motor vehicle that was involved in an incident occasioning grievous bodily harm to another in circumstances of aggravation contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and four counts of dangerous driving of a motor vehicle that was involved in an incident occasioning bodily harm to another in circumstances of aggravation contrary to s 59A(1)(b) of the Road Traffic Act.
Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial in February 2023.
By application dated 31 March 2022, the State seeks leave to adduce evidence of prior convictions, traffic infringements and evidence concerning the conduct of the accused not subject to a criminal prosecution pursuant to s 31A of the Evidence Act 1906 (WA). I have determined that the evidence sought to be led by the State is admissible, in part, for the following reasons.

The State's case

In determining an application of this nature, it is necessary to assume that the evidence relied upon by the State will be that which is contained in the State's brief of evidence. I have considered the State's brief of evidence and the amended statement of material facts dated 4 March 2022 prepared by the State. The State's case is summarised in the amended statement of material facts in the following terms:
On Friday 20 August 2021 the accused, Jamie Eric Glasfurd, drove into the city and parked at the City of Perth multi-story car park on Pier Street. He arrived at about 12:30pm and parked his vehicle, a supercharged V8 Range Rover SUV registration number 1FAX947, on Level 7. He spent the afternoon in the city.
At 6:17pm that evening the accused returned to the multi-story car park. He had a partly filled beer bottle in his hand. It took him some time to work out how to pay for his ticket using the vending machines. He appeared unsteady on his feet. Eventually he paid for his ticket and caught the lift. He went one level too far (Level 8) and had to walk down to Level 7. He got into his vehicle at 6:25pm. About a minute later he reversed out and started to drive down to the ground level.
As he drove from level to level, his car would slow down for the corners and then rapidly accelerate and lurch forward in the straight sections of the car park. This pattern was repeated for most of the journey down to the ground level.
At 6:30pm the accused exited the multi-story car park in his Range Rover SUV. Initially he turned left and travelled north on Pier Street, but only for a short distance. He then mounted the raised median strip and conducted an illegal u-turn. When he got to the other side of Pier Street he straitened up his vehicle such that he was now facing north. The accused then accelerated heavily. His vehicle lurched forward and raced up the short hill towards the intersection of Pier Street and Murray Street, which is controlled by traffic lights.
The accused crossed through the intersection, narrowly missing a vehicle travelling west in the intersection, and mounted the footpath on the east side of Pier Street. After hitting the raised kerb on the south‑east corner of the intersection his vehicle ploughed into the rear of a Toyota Corolla, registration number 1DFI833, which was parked outside "My Place" (a pub). The Toyota Corolla then crashed heavily into a crowd of people who were sitting and standing outside "My Place".
…
At the time of the collision with the Toyota Corolla it is estimated that the accused's Range Rover was travelling at between 90-96 km/h. The speed limit along this section of Pier Street is 40 km/h.
The accused was arrested at the scene by police and conveyed to Royal Perth Hospital to be treated for the serious injuries he received in the crash. At blood sample was obtained from the accused under the provisions of the Road Traffic Act 1974. Upon analysis it was determined that the accused had 0.05mg/L of methylamphetamine, 0.01mg/L of amphetamine and 0.004 grams of alcohol per 100ml of blood in his system.
Counsel for the accused submitted that it is expected that the six counts will be defended on the basis that the accused placed his foot initially on the accelerator of the vehicle, however, upon removing his foot the accused re‑applied his foot to the accelerator instead of the brake, being a 'pedal error'. Counsel for the accused stated that the defence is that the act of the accused, in placing his foot on the accelerator, was an unwilled act pursuant to s 23A of the Criminal Code.[1]
[1] Accused's written outline of submissions dated 21 October 2022 (Accused's written submissions) [3] - [4].

The evidence the subject of the s 31A application

The proposed propensity evidence comprises three categories, namely convictions for offences contrary to Road Traffic Act, traffic infringement convictions and evidence of conduct of the accused allegedly exceeding the speed limit whilst driving recklessly but was not subject to a criminal prosecution (uncharged conduct). I will outline the propensity evidence.

Court convictions

The State relies upon convictions in the Magistrates Court for offences contrary to the Road Traffic Act (court convictions). The State's application particularises the following convictions:
1.In any trial on indictment 3 of 2022 the State is permitted to lead evidence of the conduct of the accused person pertaining to the following convictions:
a)Reckless driving speed of 155km/h or more; Road Traffic Act 1974 s 60A(1); Moora Magistrates Court 27 February 2020;
b)Dangerous driving; Road Traffic Act 1974 s 61(1); Second or subsequent offence; Mandurah Magistrates Court 20 January 2020;
c)Driving with prescribed illicit drug; Road Traffic Act 1974 s 64AC(1); Mandurah Magistrates Court 20 January 2020;
d)Reckless Driving – Excessive Speed; Road Traffic Act 1974 s 60(1b); Moora Magistrates Court 5 October 2011; and
e)Speeding by more than 20km/h but less than 30km/h; Midland Magistrates Court 31 July 1990.
It is necessary to outline the circumstances of the five court convictions.
On 23 August 2019, at Bindoon the accused committed the offence of recklessly driving a motor vehicle at a speed exceeding 155 km/h contrary to s 60A(1) of the Road Traffic Act.[2] The accused was driving his vehicle at a speed of 163 km/h in a 100 km/h zone.
[2] Prosecution notice lodged on 9 October 2019, charge number MO 462/2019.
On 28 December 2018, on Pinjarra Road in Greenfields, the accused committed the offence of dangerous driving contrary to s 61(1) of the Road Traffic Act and further, the offence of driving a motor vehicle, on a road, whilst a prescribed illicit drug was present in his oral fluid contrary to s 64AC(1) of the Road Traffic Act.[3] The certificate of analysis stated that the accused had illicit drugs in his system including methylamphetamine and amphetamine. The accused was observed overtaking other vehicles whilst travelling well above the 80 km/h speed limit. The speed limit reduced to 60 km/h but the accused failed to slow his speed and consequently collided with the rear of another vehicle. The collision caused significant damage to the vehicles and the occupants were taken to hospital.
[3] Prosecution notice lodged on 11 September 2019, charge numbers MH 3974/2019 - 3975/2019.
On 20 January 2020, the learned Magistrate imposed an eight month community based order in respect of the dangerous driving charge and a fine in the amount of $400 and a six month licence disqualification for the offence of driving with illicit drugs.[4]
[4] ts 6 (20/01/2020) (transcript before Magistrate Longden).
On 12 June 2011, the accused committed the offence of driving his motor vehicle on Mitchell Freeway, Mount Hawthorn, at 150 km/h, exceeding the speed limit of 100 km/h contrary to s 60(1b) of the Road Traffic Act.[5] The learned Magistrate imposed a fine in the amount of $1,000.
[5] Prosecution notice lodged on 25 June 2011, charge number MO 250/2011.
On 15 February 1990, the accused committed the offence of driving his motor vehicle on Great Northern Highway at 126 km/h exceeding the speed limit of 110 km/h. The learned Magistrate imposed a fine in the amount of $80.

Traffic infringement convictions

In respect of propensity evidence arising from traffic infringements (traffic infringement convictions), the State proposes to rely upon the following.
2.In any trial on indictment 3 of 2022 the State is permitted to lead evidence of the following traffic infringements:
a)Exceed speed limit in a speed zone by 30km/h but not more than 40km/h; 2 April 2021 at Chittering;
b)Exceed speed limit in a speed zone by 30km/h but not more than 40km/h; 12 December 2019 at Bindoon;
c)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 23 October 2019 at Bindoon;
d)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 26 April 2019 at Chittering;
e)Exceed speed limit in a speed zone by not more than 9km/h; 24 July 2019 at Karrakatta;
f)Exceed speed limit in a speed zone by not more than 9km/h; 24 July 2018 at Karrakatta;
g)Exceed speed limit in a speed zone by 30km/h but not more than 40km/h; 30 March 2014 at Bayswater; and
h)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 20 March 2014 at Guildford.
The State relies upon a list of traffic infringements that provides limited information concerning the offending. The above particularises the infringement offending.

Evidence of uncharged conduct

In respect of the uncharged conduct, the State seeks to rely upon the conduct of the accused on 5 June 2021 as outlined by Constable Mitchell Jolliffe and First Class Constable Alessandro Caratozzolo. The police officers allegedly witnessed the accused driving at a speed exceeding 120 km/h on Riverside Drive in Perth, being a 60 km/h speed zone. The State disclosed the officers' witness statements. Counsel for the accused submitted that it was necessary that the two officers be examined to properly assess how the officers were able to determine the speed of the accused's vehicle, absent any speed measuring device. I agreed that an examination was appropriate.
Accordingly, on 6 December 2022, during a directions hearing, the two police officers were examined by counsel. I will outline the testimony of the officers when I turn to consider the admissibility of the uncharged conduct.

Relevant legal principles – s 31A of the Evidence Act

Section 31A of the Evidence Act confers the power to admit propensity and relationship evidence on the court.
Propensity evidence is defined in s 31A(1) as meaning:
(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 is defined in s 31A(1) as meaning evidence of the attitude or conduct of the accused towards another person, or a class of persons, over a period of time.
Propensity evidence and relationship evidence, as defined in s 31A(1), are not mutually exclusive. Evidence which may be characterised as relationship evidence may also come within the definition of propensity evidence.[6] In Daniels v The State of Western Australia, Buss JA stated:[7]
[6] Daniels v The State of Western Australia [2012] WASCA 213 [42] (Buss JA).
[7] Daniels v The State of Western Australia [43] - [44].
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.
Therefore, evidence will be admissible under s 31A if the court considers:
(a)The evidence is propensity evidence or relationship evidence as defined in s 31A(1);
(b)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(c)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.
With respect to the first requirement for admissibility, the term 'propensity evidence' as defined in s 31A(1) has a broad meaning. The term is defined to include, among 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, so far as is presently relevant, refers to the manner in which the accused person behaves or has behaved.[8]
[8] The State of Western v Jackson [2019] WASCA 118 [20].
The term 'relationship evidence' is defined in s 31A(1) to mean 'evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time'. The ordinary meaning of the word 'attitude', from which there is no reason to depart in interpreting the definition of 'relationship evidence', is 'a settled opinion or way of thinking'.[9] Accordingly, the attitude of a person towards another person or class of persons is the person's settled opinion or way of thinking about that person or class of persons.
[9] Australian Concise Oxford English Dictionary (4^th ed, 2003), 84.
There is a degree of overlap between the definitions of 'propensity evidence' and 'relationship evidence' contained in s 31A(1). There will often be cases where evidence which falls within the definition of 'propensity evidence' also answers the description of 'relationship evidence'.[10] However, the categories of evidence that constitute 'propensity evidence' and 'relationship evidence' are not entirely co‑extensive. Although a propensity may be demonstrated by a single episode of conduct or more than one episode of conduct, 'relationship evidence' includes evidence of the attitude of the accused person towards another person or persons over a period of time.
[10] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [44].
As to the second of the requirements for admissibility stipulated in s 31A(2)(a), namely whether the evidence has significant probative value, the relevant principles were stated in RMD v The State of Western Australia as follows: [11]
[11] RMD v The State of Western Australia [185] (Beech J as his Honour then was, Mazza JA agreeing). See also RMD v The State of Western Australia [50] ‑ [52] (Buss P); The State of Western Australia v Jackson [18] and MNA v The State of Western Australia [2020] WASCA 84 [64], [160].
(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. (citations omitted).
Although the above statement of principles in RMD v The State of Western Australia was made with reference to 'propensity evidence' within the meaning of s 31A(1), the principles as stated are broadly speaking equally applicable to 'relationship evidence' within the meaning of the section.
For the purpose of determining the admissibility of propensity evidence and relationship evidence, a court must take the evidence at its highest from the perspective of the prosecution.[12] Thus the probative value of propensity evidence and relationship evidence is to be assessed by reference to what the evidence is capable of proving, taken at its highest.[13]
[12] RMD v The State of Western Australia [52(b)].
[13] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 [39] ‑ [54].

As to the third of the requirements for admissibility stipulated in s 31A(2), fair‑minded people are reasonable members of the general community who are not lawyers but who, it must be assumed, have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.[14]
[14] Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [42]; Daniels v The State of Western Australia [50]; DKA v The State of Western Australia [2017] WASCA 44 [32]; RMD v The State of Western Australia [51].
Section 31A(2)(b) involves a comparison between the probative value of the propensity or relationship evidence and the degree of risk of an unfair trial if it is admitted. The risk of an unfair trial is the risk that the jury might uncritically overvalue the probative effect of the evidence and conclude that the accused must have committed the offence, simply because he or she has the propensity identified (for example, because he or she committed other offences) or simply because he or she has demonstrated a particular attitude towards a person or class of persons, rather than confining the use of the evidence to a process of dispassionate and logical reasoning. Other aspects of the potential prejudice which may arise from the admission of propensity or relationship evidence include the potential tendency that the jury may punish the accused for past misconduct by finding them guilty of the offence charged, and that the evidence may confuse or distract the jury from its task of resolving whether the accused person actually committed the conduct the subject of the charge.
The analysis which is required in relation to s 31A(2)(b) was discussed by the Court of Appeal in DKA.[15]Further, the process of the analysis which must be undertaken was outlined by Pritchard J in The State of Western Australia v Wark as follows:[16]
(i)Consideration of the requirement in s 31A(2)(b) arises after the court has found that the evidence has a significant probative value. Section 31A(2)(b) then requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of that evidence in question.
(ii)When assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury.
(iii)After identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. It is to be assumed that such fair-minded people will have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'.
(iv)That balancing exercise is a difficult one because 'it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair-minded person'. (footnotes omitted)
[15] DKAv The State of Western Australia [2017] WASCA 44 [31] - [32].
[16] The State of Western Australia v Wark [2017] WASC 154 [16].
The applicable principles were affirmed in RMD v The State of Western Australia,[17] Lilley v The State of Western Australia[18] and The State of Western Australia v Jackson.[19]
[17] RMD v The State of Western Australia.
[18] Lilley v The State of Western Australia [2019] WASCA 164 [58] - [60].
[19] The State of Western Australia v Jackson.

State's submissions

The State submits that the issues at trial have now been identified by the parties. The State case is that the accused deliberately drove his vehicle at excessive speed and this was the primary cause of the vehicle incident. The accused's position is that he did not deliberately accelerate, rather an unwilled act caused the acceleration of the vehicle.
The State provided a summary of the other evidence that will be relied upon at trial to prove that the accused deliberately drove his vehicle at excessive speed rather than that his action, in accelerating, was an unwilled act.[20] It is necessary to outline the other evidence.
[20] State's written outline of submissions filed on 10 October 2022 (State's written submissions) [19] - [28].
The State, at trial, will rely upon CCTV footage of the movement of the accused's vehicle on the afternoon of Friday, 20 August 2021. The State contends that the driving may be described as moderately reckless without being excessively so. The defence will dispute this interpretation of the accused's driving. The State relies upon the CCTV footage showing the accused drinking alcohol with a young male on a bench on Murray Street between 5.30 pm and 6.15 pm. The accused then leaves that area and walks towards the direction of the multi-story carpark with a beer bottle in his hand. Between 6.15 pm and 6.30 pm the CCTV footage shows the accused paying for his parking ticket and then driving his vehicle from the multi-story carpark onto Pier Street.
The State relies upon the manner in which the accused drove his vehicle immediately prior to the vehicle incident. The State contends that the accused accelerated heavily whilst driving through the various floors of the carpark. Upon leaving the carpark, the accused is observed doing an illegal U-turn over the median strip on Pier Street and then straightening his vehicle by executing a three-point turn.
The State further relies upon the CCTV footage showing a light coloured sedan moving through the intersection of Pier Street and Murray Street in the moments before the vehicle collision. This vehicle, which was travelling in a westerly direction, was an obstacle to the forward movement of the accused's vehicle as it headed towards the intersection in the southerly direction. The State relies upon the proposed expert testimony from Senior Constable Michael Feldman who assessed the CCTV footage and the collision data from the vehicle and stated '[t]his (steering input) is consistent with the Land Rover moving to the left due to the presence of the light-coloured sedan travelling west through the intersection, before having to steer right to make the entrance into the single lane of Pier Street.'
The State contends that the deliberate steering to the left and then to the right is consistent with a driver who is consciously driving his motor vehicle to avoid obstacles and to continue his forward movement along Pier Street.
The State proposes to lead evidence of the collision data obtained from the accused's vehicle. The State contends that the interpretation of the data by Mr Roger Hughes, a mechanical engineer from Jaguar Range Rover, establishes that the accused took his foot off the pedal and re-applied full pressure on the accelerator approximately three seconds before the initial crash or collision on Pier Street. The steering input data shows that there was significant steering input to the left and then to the right about two seconds before the initial crash.
Further, the State relies upon an utterance allegedly made by the accused to Dr David Townsend, a psychiatric registrar, immediately after being taken into the hospital. Dr Townsend was treating the accused and made enquiries as to whether the accused had any history of suicidal ideation. To that enquiry, Dr Townsend states that the accused uttered the words 'then put my foot down and went for it' after coming out of the carpark.
The State contends that the court convictions, traffic infringement convictions and uncharged act constitutes propensity evidence, being that the accused has a tendency to drive motor vehicles at excessive speed and in a reckless manner (including whilst testing positive to illicit drugs, namely methylamphetamine).
The State submits that the propensity evidence has significant probative value and that the proof of the propensity increases the likelihood of the commission of the offences. The State contends that the propensity evidence will be led to prove the State's case that the accused deliberately drove the vehicle at high speed along Pier Street and that the acceleration of the vehicle prior to the collision was a willed act. The accused's tendency to drive in this manner, taken with the other evidence in the State's case, principally his driving prior to the current offending conduct and his intoxication, support a finding that the propensity evidence has significant probative value.[21] The State submits that the propensity evidence is relevant, to a significant extent, to a fact in issue namely, the wilfulness of the accused's driving. Therefore, it is necessary for a jury to 'hear about his driving history in order to decide whether his actions were deliberate and not the result of an unwilled act.'[22]
[21] State's written submissions [42], [45].
[22] State's written submissions [45].
The State submits 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. In respect of the possibility of the risk of an unfair trial the State submits that, unlike other cases, the prior conduct 'is not shocking in nature or overwhelmingly more serious than the indicted allegations.'[23]
[23] State's written submissions [47].

Defence's submissions

Counsel for the accused submitted that the defence does not accept the State's interpretation of the accused's driving and conduct immediately prior to the vehicle incident. The accused does not accept the State's description of his driving as being 'moderately reckless'. The defence position is that the accused was driving the vehicle in a manner similar to many motorists whilst trying to find a parking bay in the Perth CBD and in navigating the multi-story carpark.[24]
[24] Accused's written submissions [5] - [7].
The accused contends that he was not driving recklessly and that the pressure placed on the accelerator that caused the excessive speed of the vehicle in the seconds before the collision was as a consequence of an unwilled act, namely, his foot putting weight on the accelerator pedal.
The accused submits that the expert opinion from Mr Roger Hughes supports the defence position that he initially placed his foot on the accelerator, removed his foot and then, by an unwilled act, reapplied his foot to the accelerator instead of the break.[25]
[25] Accused's written submissions [4].
Counsel for the accused stated that each of the convictions, traffic infringements and the uncharged act must be individually assessed and not treated as a 'job lot'. I agree with that submission. I will now turn to assess the convictions, infringements and the uncharged act.

Assessment of admissibility

Court convictions

Counsel for the accused accepted that four of the five convictions 'fall within the definition of propensity evidence'.[26] The accused does not accept that his conviction for driving with a prescribed illicit drugs is relevant to proving the accused's tendency to drive at excessive speed.
[26] Accused's written submissions [11].
Counsel for the accused submitted that three of the four court convictions were offences that occurred on highways or freeways and that the fourth conviction related to a dual carriage way on a rural highway. Accordingly, it is contended that the subject of the indictment concerns an allegation of the accused driving his motor vehicle at an excessive speed in a built‑up city location. The defence submits that given there is greater visibility, lower volume of traffic, which usually creates distances between vehicles, and higher speeds in freeway, highway and rural settings, the manner in which the person drives at those locations does not correlate with the manner in which a person drives in a CBD/city setting. Therefore, the probative value of the court convictions is reduced. In addition, counsel for the accused submitted that the allegation concerning the accused in respect of the counts on the indictment concerns driving in a 'stop-start situation' which is different from maintaining a speed in excess of the speed limit over a distance. The defence submits that at most, the court convictions show a narrow tendency for the accused to use excessive speed when driving on the highway, freeway and in rural environment and therefore, is not significantly probative in relation to the primary fact in issue in respect of the counts on the indictment.
In addition, counsel for the accused submitted that, in determining whether there is significant probative value, the conviction that occurred on 31 July 1990 for driving greater than 20 km/h but less than 30 km/h over the speed limit is in excess of 30 years old. Therefore, the length of time that has lapsed between the conviction and that allegation on the counts on the indictment means that the conviction has no probative value.
I am of the view that court convictions, except the conviction on 31 July 1990 of exceeding the speed limit by more than 20km/h but less than 30 km/h, constitute propensity evidence. There is insufficient temporal proximity between the speeding offence committed in 1990 and the alleged offending.
I find that the other four court convictions show a tendency to drive motor vehicles at excessive speed and in a reckless manner including whilst testing positive for illicit drugs. I do not accept the submission that the location of the driving of the vehicle, namely in a rural location or on highways and freeways, renders the court convictions inadmissible. On each occasion the accused was driving his vehicle at excessive speed on a roadway which is shared by other road users. It is artificial to categorise the court convictions as being inadmissible for the reason that the driving occurred on freeways or on non-metropolitan roadways.
I do not accept the accused's submission that the conviction committed in 2018 of driving whilst testing positive to a prescribed illicit drug is not admissible as propensity evidence. I am satisfied that the conviction is significantly probative and is admissible. The accused was allegedly driving the vehicle in the present case whilst testing positive to an illicit drug, namely methylamphetamine, being the same drug that he tested positive for when he committed the offence of dangerous driving in 2018.
The defence accepted, save the illicit drug conviction, that the court convictions would not be excluded on the basis of the 'fair-minded' test.[27] The accused's counsel submitted that the admission into evidence of the court conviction of driving whilst testing positive to illicit drugs, in the context of a dangerous driving offence on the same day, would give rise to the risk of an unfair trial such that fair-minded people would think the risk of adducing those pieces of evidence would outweigh the public interest in adducing all relevant evidence of guilt.
[27] Accused's written submissions [34].
I am of the view that the entirety of the proposed court convictions, that I have found to be significantly probative, should not be excluded on the 'fair-minded test'. I am satisfied that the conviction of driving whilst testing positive to an illicit drug which occurred whilst committing the offence of dangerous driving is admissible. The allegation in the present case is that the accused tested positive for illicit drugs, including methylamphetamine. Clearly, a fair-minded person would think that the adducing of that evidence as relevant to the accused's guilt is not outweighed by the risk of doing so.

Traffic infringements convictions

The defence's position is that the traffic infringements by their nature fall within the scope of the definition of propensity evidence.[28] However, counsel for the accused submitted that it was necessary that each infringement be considered separately and in particular, an analysis be conducted on the separate issues in terms of the date and nature of each infringement to be taken into account. The State did not undertake such an analysis.
[28] Accused's written submissions [19].
The State seeks to rely upon eight infringement convictions. In respect of temporal proximity, six of the infringement convictions occurred during the period between 24 July 2018 and 2 April 2021. The two further infringement convictions occurred in March 2014. I am of the view that there is temporal proximity between the eight infringement convictions the State seeks to rely on and the alleged offending the subject of the indictment.
The defence submits that speeding at less than 10 km/h over the speed limit is just as consistent with inadvertence and a lack of attention as it is with deliberately flouting the road rules which thereby significantly reduces the probative value of the infringement offending. I accept that submission. Therefore, I do not accept that the two traffic infringement convictions committed on 24 July 2018 have significant probative value. The two infringement convictions particularise the speed as exceeding the speed limit by not more than 9 km/h. I am also of the view that the traffic infringment of 23 October 2019, that the accused exceeded the speed limit by 10 km/h but not more than 19 km/h, does not have significant probative value. The speed by which the accused exceeded the speed limit is not excessive.
The other five infringement convictions particularise the speeding as exceeding the speed limit between 20 km/h and 40 km/h. I am satisfied that exceeding the speed limit within that range is significantly probative.
Turning to the 'fair-minded test', I am of the view that the entirety of the proposed traffic infringments, that I have found to be significantly probative, should not be excluded on the 'fair-minded test'. The accused did not submit otherwise.

Driving on 5 June 2021

The accused accepts that the evidence sought to be led of the accused's driving on 5 June 2021 in terms of the speed of the vehicle falls within the scope of the definition of propensity evidence.[29]
[29] Accused's written submissions [27].
The State relies upon two police officers, Constable Jolliffe and First Class Constable Caratozzolo, who allegedly witnessed the accused driving at over 120 km/h in a 60 km/h zone. Given that the accused was not charged, there are no factual findings or a statement of material facts. Rather, as I have observed, the State filed, as part of the State's brief of evidence, the statements of the two officers.
On 6 December 2022, during a directions hearing, the two police officers were examined by counsel. The directions hearing examination was undertaken after hearing submissions from counsel for the accused that, in order to properly understand and assess the witness statements, it was appropriate that the two officers be examined. The contention of counsel is that the accuracy of the observations of the two police officers in respect of the speed at which the accused was driving his vehicle on Riverside Drive in Perth is relevant to the assessment of the probative value of that evidence. I accepted that submission and accordingly, the police officers were examined at the directions hearing.
I will outline the testimony of Officers Jolliffe and Caratozzolo.

Constable Jolliffe stated that at 2.00 pm on 5 June 2021, he was on duty situated on the river side of Riverside Drive, Perth. [30] At that time, he heard a vehicle accelerating in third gear along Riverside Drive heading in an easterly direction. The vehicle was on the opposite side of the road in the far lane. Officer Joliffe estimated that the vehicle was travelling at 'well, in excess of 120. I would probably say closer to 140'.[31] The officer stated that he was stood still and that there were other vehicles on the road.
[30] ts 69 (06/12/2022).
[31] ts 71 (06/12/2022).

Officer Jolliffe stated that his experience in estimating the speed of vehicles was based on his experience in racing cars, as a part-time mechanic and using a speed measuring device in his police duties on six occasions.
Officer Jolliffe gave testimony that the vehicle turned up Plain Street and that it was intercepted at the corner of Barrack Street and St Georges Terrace by other officers. Officer Jolliffe travelled to the interception location on his bicycle.
During the evidence of Officer Jolliffe, a portion of the recording of his body worn camera was played. The accused was asked how fast he was going to which he answered, 'no idea'. Officer Jolliffe stated 'I estimate you were doing in excess of 120 kilometres an hour in a 60 zone' to which the accused replied 'I don't think I was going that fast. Okay. I was trying it out. I will give you that'.[32]
[32] ts 77 (06/12/2022).
Officer Joliffe confirmed that the accused was not charged in respect of the allegation of speeding. The officer explained the reason that he did not charge the accused with any offence was '[o]bviously, we didn't have a speed gun with us or something like that' and 'so trying to get - to prove speed is literally just our opinion against it. So we didn't charge him for the speeding. He was charged on the basis of driving without a licence and … other items that we found on the day'.[33]
[33] ts 78 (06/12/2022).
In cross-examination, Officer Jolliffe confirmed the vehicle did not change lanes or swerve and that there were other vehicles on the road. During the six months that Officer Jolliffe worked in the traffic section of the police he mainly worked on the 'booze bus' and that he has only used a speed camera less than 10 times.[34] The officer confirmed that he had no experience with the Range Rover Sport vehicle.
[34] ts 80 - 81 (06/12/2022).
The officer accepted that his confidence that the vehicle was in third gear may be misplaced and that the vehicle may have been in anything from third to fifth gear.[35] The officer did not see the brake lights come on at anytime, though the vehicle turned at Plain Street. The officer said that he did not observe any other vehicles in the same lane as the accused's vehicle.[36] The officer accepted that a vehicle revving may be stationery and that it is difficult to determine whether a vehicle is moving fast from the sound of the revving of the vehicle.[37]
[35] ts 86 (06/12/2022).
[36] ts 80 (06/12/2022).
[37] ts 81 (06/12/2022).
Officer Joliffe stated that he was able to observe the vehicle's licence plate but did not accept the proposition that the vehicle was going the same speed as the other vehicles and that the vehicle was going 'at least twice' as fast as other vehicles.[38]
[38] ts 83 (06/12/2022).
In cross-examination, Officer Jolliffe agreed with the proposition that the accused was not charged in respect of the alleged speeding or reckless driving because there was insufficient evidence.[39]
[39] ts 83 (06/12/2022).
In his examination-in-chief, First Class Constable Caratozzolo stated that he has operated a speed camera between five and 10 times in his approximately seven year career as a police officer.[40] The officer stated that on 5 June 2021 he was at Riverside Drive. At that time, he observed a vehicle accelerating heavily from the area near the Bell Tower on Riverside Drive.[41] At that time, the officer was on the river side of the road and upon hearing the vehicle he moved to the median strip.
[40] ts 88 (06/12/2022).
[41] ts 89 (06/12/2022).
During his testimony, the officer stated that 'judging by the - the gear changes I would have said the vehicle was in third gear-ish … and travelling in excess of 140'.[42] In making that assessment, the officer relied upon his experience as a priority one driver, that is, one who is trained to drive a vehicle at the speed of 140 km/h for police duties. The officer stated that he drives at 140 km/h daily undertaking vehicle intercepts.[43] The officer also relied upon his experience with V8 vehicles and that he owns such a vehicle.
[42] ts 90 (06/12/2022).
[43] ts 91 (06/12/2022).
The officer stated that he was within four to five metres of the accused's vehicle when it passed him on Riverside Drive. The officer observed the vehicle turn left onto Plain Street and he subsequently travelled by push bike to St Georges Terrace after the vehicle had been intercepted by other officers.[44]
[44] ts 93 (06/12/2022).
In cross-examination, the officer accepted the accused's vehicle could have been in third, fourth or fifth gear.[45] The officer also accepted that the speed of a vehicle travelling at 120 km/h is effectively travelling at 2 kms a minute. The officer initially estimated that he had the accused's vehicle under observation for 10 or 15 seconds. The officer accepted in cross-examination that for a vehicle travelling 120 km/h it was only possible for the vehicle to have been under observation for half the time he had estimated.[46]
[45] ts 97 (06/12/2022).
[46] ts 98 (06/12/2022).
In cross-examination, the officer was asked whether is it possible 'that you've got the speed wrong, the other way, and you've got the time right' to which the officer said 'well, the speed is an estimation' and further 'the time is an estimation'.[47] During his testimony the officer then stated that the estimation for the time period for which he observed the vehicle may not be correct but that he was 100% sure concerning how fast the vehicle was travelling.[48]
[47] ts 98 (06/12/2022).
[48] ts 98 (06/12/2022).
The officer stated that '140 was an estimation'.[49] The officer was then asked whether a speed of 100 km/h was a possibility to which the officer stated, 'I would still say it was in excess of 100'.[50] The officer stated that he accepted that he was making estimates rather than stating an exact figure and that an estimation of 120 km/h to 160 km/h was 'a fair estimation' but that he would not go as low as 80 km/h. [51]
[49] ts 99 (06/12/2022).
[50] ts 99 - 100 (06/12/2022).
[51] ts 99 (06/12/2022).
The officer accepted that in determining the speed of the vehicle when he was a pursuit driver, he would use the speed of his own vehicle to estimate the speed of other vehicles on the road. The officer accepted he has never owned or driven a vehicle similar to the accused.
In respect of the decision not to charge the accused with excessive speed or reckless driving, the officer stated that it was a decision made jointly with Officer Jolliffe. The officer accepted that the accused was not charged with excessive speed or reckless driving because there was 'no objective evidence of how fast the vehicle was travelling'.[52]

Assessment of uncharged act

[52] ts 104 (06/12/2022).

I am now required to make a finding as to whether the evidence is sufficiently reliable to constitute propensity evidence. In assessing whether the evidence has significant probative value, it is to be taken at its highest from the perspective of the prosecution.[53]
[53] NTH v The State of Western Australia [2020] WASCA 22 [108].
I accept that both officers presented as credible witnesses who were endeavouring to give their best respective estimation of the speed of the vehicle. The task of accurately estimating the speed of the vehicle was a most difficult one. The officers did not have the assistance of speed measuring instruments nor had the opportunity to undertake an analysis of the distance the vehicle travelled between two points on Riverside Drive and the time taken for that travel. Rather, the officers were confronted with an unexpected traffic incident whilst they were both on the other side of a four lane road, Riverside Drive. Understandably, both officers determined that the accused should not be charged with excessive speeding or reckless driving for the reason that there was insufficient evidence. The officers accepted that their estimation of speed was insufficient to prove an allegation of excessive speed or reckless driving. In that regard, the officers' opinion was not misplaced. It is extremely difficult to assess the speed of a vehicle by a person relying upon a visual identification whilst stationery on the edge of the road.
I am not satisfied that the proposed evidence has sufficient reliability to be probative or significantly probative. The officers had no means to measure the speed of the vehicle. The officers were doing their best to estimate the speed of the vehicle. Both officers, whilst experienced with vehicles, had very limited experience with the use of speed measuring equipment and assessing the speed of vehicles. The officers were estimating the speed travelling towards them whilst standing on the opposite side of the road. In cross-examination the lack of reliability of the testimony was exposed. Each officer gave varying accounts of the speed of the vehicle with significant variations. If the officers were able to say with sufficient accuracy the time in which the vehicle travelled between two parts of Riverside Drive, then a reliably calculated estimation of the speed of the vehicle could have been determined. In this regard, Officer Caratozzolo estimated that he observed the vehicle speeding for 10 to 15 seconds which he accepted was inconsistent with his estimation of speed.
It is not possible to make a reliable finding as to the speed of the accused's vehicle.

Conclusion

Therefore, I find that the State's application to adduce the propensity evidence is allowed except the proposed evidence which I have particularised as being inadmissible namely, two court convictions, the three traffic infringement convictions and the uncharged act.
I accept the State's submission that the propensity evidence shows a tendency of the accused to drive motor vehicles at excessive speed and in a reckless manner (including whilst testing positive to illicit drugs, namely methylamphetamine). The propensity evidence has significant probative value and that the proof of the propensity increases the likelihood of the commission of the offences. The propensity evidence is relevant to a fact in issue, namely whether the accused deliberately drove the vehicle at high speed along Pier Street and that the acceleration of the vehicle prior to the collision was deliberate. That is, the propensity evidence rationally affects the assessment of the probability that the accused was driving deliberately. The accused's tendency to drive in this manner, taken with the other evidence in the State's case, principally his driving prior to the current offending conduct, support a finding that the propensity evidence has significant probative value.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
16 DECEMBER 2022