The State of Western Australia v Glasfurd [No 7]

[2023] WASC 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 7] [2023] WASC 49

CORAM:   MCGRATH J

HEARD:   10 FEBRUARY 2023

DELIVERED          :   10 FEBRUARY 2023

FILE NO/S:   INS 3 of 2022

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

JAMIE ERIC GLASFURD

Accused

Catchwords:

Criminal law - Objection to evidence - Relevance

Legislation:

Nil

Result:

Proposed witness testimony not admissible

Category:    B

Representation:

Counsel:

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

Solicitors:

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

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

Phillips v The Queen (2006) 225 CLR 359

R v Swaffield (1998) 192 CLR 159

The State of Western Australia v Glasfurd [No 5] [2023] WASC 25

MCGRATH J:

(This judgment was delivered extemporaneously and has been edited for publication)

Introduction

1. 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.

2. Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial commencing next Monday, 13 February 2023.  I have previously outlined the proposed State case at trial in The State of Western Australia v Glasfurd (No 5)[1] and need not provide a further detailed summary.  In short, the State case is that at 6.30 pm on 20 August 2021 the accused drove his vehicle at high speed, whilst intoxicated and in a reckless manner, causing a collision on Pier Street that resulted in the death of one pedestrian and injuring four other pedestrians.

   [1] The State of Western Australia v Glasfurd [No 5] [2023] WASC 25.

3. The accused objects to the State leading testimony from five proposed State witnesses.  The accused objects to the entirety of the proposed testimony of four witnesses and part of the proposed testimony of the fifth witness.  The objection primarily relies upon the contention that the evidence is not relevant. 

4. The witnesses have provided statements which form part of the material in the State brief of evidence.  I have read the witness statements.  There is no need for the witnesses to give evidence on a voir dire prior to trial.  A determination of the objection may be based on the respective witness statements.  I have also benefited from the written and oral submissions of counsel.

Evidence subject to objection

1. The proposed testimony of the five witnesses is outlined in the respective witness statements and by counsel in written submissions.  I will refer to the most salient parts of the respective witness statements. 

2. The first witness, Mr Brodie Smith, stated that he observed a black Range Rover vehicle on Mitchell Freeway at approximately 6.30 am on 20 August 2021.  Mr Smith observed the black Range Rover vehicle accelerating and breaking hard behind the vehicle in front.  Mr Smith expressed concern that the vehicle would hit another vehicle.  He observed the black Range Rover vehicle pull over but later speed past his vehicle.  He did not get the registration number of the vehicle.  Mr Smith stated that the driver of the vehicle was a male in his '60s' with grey hair.  The State submits that the description of the driver was consistent with the appearance of the accused.

3. Mr Kobe Bradbury stated that whilst he was driving from Innaloo to Karrinyup at about 7.00 am on 20 August 2021, he observed a black Range Rover vehicle with the partial registration 1FAX 47.  Mr Bradbury expressed the opinion that the vehicle was dangerously overtaking other vehicles.  Mr Bradbury estimated that the black Range Rover vehicle was travelling at between 70 and 80 km/h. 

4. Mr Simon Andreas observed the black Range Rover vehicle at about 7.00 am on 20 August 2021.  Mr Andreas stated that he was exiting the tunnel near East Parade and observed a black Range Rover vehicle changing lanes and accelerating towards the vehicle in front.  He then observed the vehicle cut across three lanes of traffic to take a last minute exit.  Mr Andreas did not recall the registration number.

5. Ms Sallese Wilmot-Barr was driving from the Crown Casino onto Great Eastern Highway at about 9.30 am on 20 August 2021.  The witness recalls stopping behind a black Range Rover vehicle, but that she did not observe the registration number.  She observed the Range Rover vehicle turn, accelerate and drive aggressively.  The black Range Rover vehicle stopped at the next set of lights alongside her vehicle.  The witness observed the black Range Rover vehicle accelerate again and drive erratically, exceeding the speed limit.  The witness gave a description of the driver but did not recall the registration number. 

6. Ms Patti Battilana stated that whilst she was driving at Burswood at 9.30 am on 20 August 2021, she observed a black Range Rover vehicle driving aggressively and 'all over the road.'  Ms Battilana followed the vehicle along Graham Farmer Freeway into the Casino precinct.  Later in the day, she observed the same vehicle incident at 6.30 pm on Pier Street and expressed the opinion that the vehicle that was involved in the vehicle incident on Pier Street was the same vehicle she observed at 9.30 am earlier that day.  

The Objection

1. The accused objects to the proposed evidence on three bases.  First, the evidence of each witness does not establish that the driver of the vehicle being observed by the respective witness was, in fact, the accused.  

2. Second, if the evidence is sufficient to establish that the driver of the vehicle was the accused, then an assessment has to be made whether the accused was driving the vehicle in a manner that was reckless, dangerous or contrary to the road rules.  That is the manner of the driving is relevant to a fact in issue in the trial. 

3. Third, the defence submits that there is insufficient temporal proximity between the alleged sightings of the accused driving his vehicle, given that the sightings of the accused driving the vehicle occurred earlier on the morning, when the vehicle incident occurred at approximately 6.30 pm.

Submissions of the State and the Accused

1. Mr Tooker submitted that the State's case at trial is that the accused, whilst intoxicated and driving recklessly, lost control of his high‑powered vehicle on Pier Street.  The evidence to which the State seeks to lead is said, on the State's case, to be circumstantial evidence relevant to determining the manner of the accused's driving at the time of the alleged offending.

2. The State contends that the evidence is capable of showing that on the morning of the alleged offending, the accused was driving in a reckless manner similar to the manner in which he drove the vehicle immediately prior to the vehicle incident.  The State accepts that for the jury to be able to use the evidence, subject to the accused's objection, it must be satisfied that the driver of the vehicle observed by the five witnesses was the accused in his black Range Rover vehicle which was involved in the vehicle incident that occurred at 6.30 pm on Pier Street.

3. Mr Tooker succinctly outlined the statements of the respective witnesses at paragraphs 7 and 13 of his written submissions.  Mr Tooker, at paragraphs 14 to 17 of the written submission, refers to CCTV footage at Crown Perth which forms part of the evidentiary material that supports a finding that it was the accused, Mr Glasfurd, who was driving the motor vehicle.  The State, therefore, submits that the evidence in combination, comprising the evidentiary electronic material and the oral evidence of the proposed witnesses, is capable of proving that Mr Glasfurd was the driver of the vehicle and that he drove the vehicle in a dangerous or reckless manner earlier on the day of the vehicle incident.

4. The objection, in turn, is outlined by Mr Freitag SC, which was developed in his oral submissions and at paragraphs 3 to 7 of the written submissions.  It is stated that the evidence of the prior driving of the accused is too remote from the alleged offending to be circumstantial evidence capable of supporting an inference of guilt in relation to the charges.

5. Mr Freitag SC submitted that the only possible basis for the admissibility of the evidence, namely pursuant to s 31A of the Evidence Act1906 (WA), has been disavowed by the State.  Mr Freitag SC further stated, that in a temporal sense, this evidence can be contrasted from evidence of the accused driving immediately before the alleged offending.  That evidence is not objected to and is clearly relevant, as it is part of the same course of driving, even though it is not alleged to be criminal in itself.

6. The disputed evidence is also separated from the alleged offending behaviour by various, and sometimes substantial, distances in each case.  The State has accepted, as Mr Freitag SC submitted, that for the jury to be able to use this evidence it must be satisfied that the driver and the vehicle described by the five witnesses is Mr Glasfurd and it is his vehicle, being the vehicle that was involved in the incident at 6.30 pm on Pier Street.

Determination of the Objection

1. The objection is primarily one of relevance.  It is uncontroversial that evidence is not admissible unless it is relevant to an issue at trial.  In order for that evidence to be relevant, it is necessary that it could rationally affect, directly or indirectly, the assessment of the probability the existence of a fact in issue in the proceedings.[2] 

   [2] Phillips v The Queen (2006) 225 CLR 359.

2. Further, relevant evidence may be excluded if its prejudicial effect exceeds its probative value.[3]

   [3] R v Swaffield (1998) 192 CLR 159, 191.

3. After careful consideration of the evidence and having the benefit of the oral and written submissions, I find that the proposed evidence of the particularised witnesses the subject of the objection are inadmissible on the basis of relevance. I find that there is insufficient temporal proximity between the alleged sighting of the accused allegedly driving his vehicle on the morning of the vehicle incident by each of the respective five witnesses and the time of the incident on Pier Street, being approximately 6.30 pm. In making this determination, I am mindful that the State did not seek to rely upon s 31A of the Evidence Act but rather contended the evidence was admissible as relevant circumstantial evidence.

4. If the driving formed part of a continuous driving episode, or was undertaken immediately prior to the vehicle incident, then the evidence has a basis of admissibility as relevant to a fact in issue, that is, the nature of the accused's driving at the time of the incident.  The accused's driving in the years, months, weeks, day or on the day at another time is not relevant to a fact in issue, unless on the day the driving forms part of a continuous journey or is immediately before the vehicle incident.  Therefore, I find the evidence the subject of the objection is inadmissible.

5. I also have significant concerns in respect to the speculative nature of the witnesses' evidence concerning the identification of the driver in a black Range Rover vehicle.  The evidence in support of the identification of the accused as the driver by the witnesses is somewhat tenuous.  However, I need not decide that matter.  The evidence is inadmissible because of the lack of temporal proximity and therefore, is not relevant.

6. If I had found otherwise, I would have closely considered the evidence to determine whether Mr Glasfurd was, in fact, the driver on each occasion.  I would have had to make separate findings in respect to each of the witnesses.  I would have taken into account the combination of evidence but, I reiterate, it is not necessary to do so, because I accept the primary submission of Mr Freitag SC.  Therefore, the State cannot rely upon the evidence that is subject to the objection at trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NA

Associate to the Honourable Justice McGrath

22 FEBRUARY 2023