The State of Western Australia v Glasfurd [No 6]
[2023] WASC 26
•9 FEBRUARY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 6] [2023] WASC 26
CORAM: MCGRATH J
HEARD: 3 FEBRUARY 2023
DELIVERED : 9 FEBRUARY 2023
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:
Further traffic infringement convictions not admissible as propensity evidence
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):
The State of Western Australia v Glasfurd [No 4] [2022] WASC 443
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 4 April 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). In The State of Western Australia v Glasfurd[No 4],[1] I determined the State’s application including the admissibility of eight of the traffic infringements, namely items 2(a) to (h) inclusive listed on the State’s Application filed 4 April 2022. However, I did not make a determination in respect to the admissibility of the balance of the State’s application, being the 18 further traffic infringement convictions, namely items 2(i) to (z) inclusive listed on the State’s Application filed 4 April 2022 .
[1] The State of Western Australia v Glasfurd [No 4] [2022] WASC 443.
Accordingly, I now determine the State’s application to rely upon the further 18 traffic infringement convictions as forming part of the propensity evidence to be relied upon at trial.
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. Further, I have considered the respective trial cases for the State and defence which are outlined in The State of Western Australia v Glasfurd [No 4].[2]
The evidence of the further traffic infringement convictions the subject of s 31A of the Evidence Act
[2] The State of Western Australia v Glasfurd [No 4] [2022] WASC 443 [4] - [5].
The further proposed traffic infringement convictions comprise the following:
i)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 4 September 2011;
j)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 16 May 2011;
k)Exceed speed limit in a speed zone by not more by 9km/h; 27 August 2010;
l)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 4 May 2010;
m)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 19 April 2009;
n)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 27 February 2009;
o)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 20 August 2008;
p)Exceed speed limit in a speed zone by 9km/h; 17 March 2008;
q)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 14 September 2007;
r)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 15 February 2007;
s)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 27 August 2005;
t)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 26 April 2005;
u)Exceed speed limit in a speed zone by 41km/h or more; 14 August 2004;
v)Exceed speed limit in a speed zone by 10km/h but not more than 19km/h; 16 June 2003;
w)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 19 October 2002;
x)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 6 March 2001;
y)Exceed speed limit in a speed zone by 20km/h but not more than 29km/h; 23 November 2000;
z)Exceed speed limit in a speed zone by 30km/h but not more than 40km/h; 27 March 2000.
The charges particularise the traffic infringement offending. The State does not rely upon any other factual information concerning the offending.
Relevant legal principles - s 31A of the Evidence Act
In The State of Western Australia v Glasfurd [No 4], I outlined the applicable legal principles and rely upon those principles as outlined in determining the admissibility of the further traffic infringement convictions.[3]
[3] The State of Western Australia v Glasfurd [No 4] [2022] WASC 443, [18] - [32].
Respective submissions of the parties
I received written submissions and oral submissions from both parties at the substantive hearing of the s 31A Evidence Act application. I invited both parties to make further submissions but counsel for both parties submitted that they relied upon the submissions that had previously been made in respect to the traffic infringement convictions. Accordingly, I have reconsidered the entirety of the written and oral submissions made by counsel for the State and the accused, Mr Glasfurd.
Assessment of admissibility
In my previous consideration of the eight infringement convictions, I determined that there was sufficient temporal proximity between the eight traffic infringement convictions, namely items 2(a) to (h) inclusive listed on the State’s Application filed 4 April 2022, and the date of the vehicle incident the subject of the counts on the indictment, given that six of the traffic infringements occurred between the period 24 July 2018 and 2 April 2021 and two of the traffic infringements occurred in March 2014.
However, I did not accept the admissibility of three of the traffic infringement convictions because the convictions were in respect to driving a motor vehicle at a speed by not more than 9 km/h or at a speed between 10 km/h but not more than 19 km/h. I found that the traffic infringement convictions were not significantly probative because the speed by which the accused exceeded the speed limit was not excessive. I determined that the other five infringement convictions, where the offending was exceeding the speed limit between 20 and 40 km/h, was admissible. Accordingly, I was satisfied that exceeding the speed limit within that range and that time period was significantly probative.
I apply my reasoning to determining the admissibility of the further 18 traffic infringement convictions. There are five traffic infringement convictions for exceeding the speed limit by 20 km/h but not more than 29 km/h, being the traffic infringements of 19 April 2009, 26 April 2005, 19 October 2002, 6 March 2001 and 23 November 2000 respectively (being items 2(m), (t), (w), (x) and (y)). In addition, the traffic infringement conviction of 27 March 2000 involved exceeding the speed limit by 30 km/h but not more than 40 km/h (item 2 (z)), and the traffic infringement of 14 August 2004 (item 2(u)) involved exceeding the speed limit in the speed zone by 40 km/h or more. Those seven traffic infringement convictions therefore involve driving a vehicle at a speed so excessive that the convictions are prima facie significantly probative.
I find that the other 11 traffic infringement convictions are not admissible for the reason that the speed was not exceeding the speed limit excessively and therefore, the convictions are not significantly probative.
The issue that remains is the temporal proximity between the seven traffic infringement convictions and the date of the vehicle incident the subject of the counts on the indictment.
I am of the view that there is insufficient temporal proximity between the seven traffic infringement convictions the State further seeks to rely upon and the vehicle incident the subject of the indictment. One of the traffic infringement convictions occurred in April 2009 and the remaining six occurred between March 2000 and April 2005. Therefore, the further seven traffic infringement convictions that involve excessive speed are inadmissible due to the lack of temporal proximity to the alleged offending.
Conclusion
Accordingly, I have now considered the admissibility of the further 18 traffic infringement convictions, namely items 2(i) to (z) inclusive listed on the State’s Application filed 4 April 2022. I have determined that seven of the traffic infringements, namely items 2(m), (t) to (u), and (w) to (z) inclusive, involved the driving of the vehicle at a speed so excessive that prima facie the convictions may be significantly probative. However, I have determined that the seven traffic infringement convictions are inadmissible due to the lack of temporal proximity with the alleged vehicle incident the subject of the counts on the indictment.
Therefore, the further traffic infringement convictions, namely items 2(i) to (z) inclusive listed on the State’s Application filed 4 April 2022 are not admissible as propensity evidence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Judicial Support Officer
9 FEBRUARY 2023
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