The State of Western Australia v Gonzalez
[2014] WASC 242
•25 JUNE 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GONZALEZ [2014] WASC 242
CORAM: SIMMONDS J
HEARD: 25 JUNE 2014
DELIVERED : 25 JUNE 2014
FILE NO/S: INS 193 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
YOVAN JOSHUA GONZALEZ
Respondent
Catchwords:
Evidence - Admissibility in trial for armed robbery of conduct and convictions in previous trials - Section 31 of the Evidence Act 1906 (WA) - Whether significant probative value shown - What degree of risk of an unfair trial - Comparison of value with risk
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms Z M M Jenkins
Respondent: Mr A O Karstaedt
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: NR Barber Legal
Case(s) referred to in judgment(s):
Bennett v The State of Western Australia [2012] WASCA 70
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213
Di Lena v The State of Western Australia [2006] WASCA 162
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Preston v The State of Western Australia [2012] WASCA 64
SIMMONDS J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
This is an application by the state for orders to permit it to lead certain evidence at a trial by jury, listed to commence on 1 September 2014 on the present indictment, INS 193 of 2013.
The basis for this application is that the evidence to be led is propensity evidence, admissible under Evidence Act 1906 (WA) s 31A.
I should immediately note that I have concluded the application should not be granted. The following are my reasons.
First, I describe the matter the subject of the present indictment.
Then I describe the state's application in more detail and the evidence to which that application relates.
Then I describe the applicable legal principles, including the statutory background relevant to determining the application.
I then apply the legal principles.
The concluding section of these reasons is my conclusion and orders.
I turn then to the matter the subject of the present indictment, INS 193 of 2013.
The present indictment
The indictment is dated 1 February 2014 and reads:
On 26 April 2013, at Bassendean, Yovan Joshua Gonzalez stole from the Australian and New Zealand Banking Group trading as ANZ Bank, with threats of violence, a sum of money the property of the Australian and New Zealand Banking Group trading as ANZ Bank.
And that Yovan Joshua Gonzalez was armed with a dangerous weapon, namely a handgun.
The statement of material facts for that offence of armed robbery is as follows, excluding the final paragraph:
At about 3:22 pm on Friday 26 April 2013, the accused attended at the ANZ Bank located within the Bassendean Shopping Centre on West Road in Bassendean.
The accused entered the bank wearing a Balaclava, Dark Baggy clothing and black gloves whilst holding a Black handgun.
At the time there were 11 customers in the bank including three children and five staff members. As he walked into the bank the accused yelled out 'Nobody fucking move this is a robbery.'
The accused handed the bank tellers plastic bags and asked them to fill them with money, whilst he walked backward and forward, pointing the handgun at them.
Fearing for their safety, the staff put the money they had from their tellers into the bags and handed it back to the accused.
The accused ran from the bank and through the car park towards Old Perth Road.
The accused at some point has discarded the clothing worn during a robbery in a rubbish bin at the front of 91 Old Perth Road, some 200m from the bank, and attempted to burn the clothing.
The clothing was seized by Police and sent for DNA analysis. As a result of that analysis the accused was identified as having worn the clothing.
In the early hours of Friday, 10 May 2013, the accused was arrested by Police and conveyed to the Regional Investigations Unit and interviewed regarding the offence. He made no admissions. (capitalisation in original)
It is likely that the central issue at the trial will be one of identity.
It is not in contest, it seems to me, that there is in the prosecution brief material that would establish the following if that material were properly in evidence at the trial.
The ANZ Bank branch in the Bassendean Shopping Centre - I call that the ANZ Bassendean Shopping Centre - where the offence was committed; 91 Old Perth Road, Bassendean, where burnt clothing was discovered; and the accused's residential address, also in Bassendean, were all within 500 m of one another.
On the day following the offence, burnt material was found at 91 Old Perth Road in Bassendean, as I have indicated. The material had not been there the previous day at 12.30 pm. The burnt material included a number of items of clothing. A number of those items of clothing matched the descriptions by witnesses of the offence of clothing items worn by the offender and appeared to have such a match also, from the CCTV feed of the incident.
The items similar to those identified with the robber were a pair of black woollen gloves, black pants, a black beanie or balaclava and a jacket. Those items of clothing, as well as at least one other, were forensically tested. DNA profiles were recovered from each item. The profiles in two cases matched the DNA profile of the accused. There was also indicated to be other DNA on the items in question.
There are descriptions of the offender by eyewitnesses, and the offender appears from the CCTV feed I referred to, in ways that are consistent with the offender being the accused.
The state's application
Turning to the state's application, this is dated 13 February 2014 and is in the following terms.
The applicant applies for orders that:
1.In any trial on indictment 193 of 2013 the State be permitted to lead evidence of the conduct and subsequent conviction of the accused person relating to offences contained in Indictment 59 of 2002 in respect of which the accused pleaded guilty in the Supreme Court at Perth [date not included in application].
2.In any trial on indictment 193 of 2013 the State be permitted to lead evidence of the conduct and subsequent conviction of the accused person relating to offences contained in Indictment 174 of 2005 in respect of which the accused pleaded guilty in the Supreme Court at Perth on 1 December 2005.
In support of the present application, the state provided written submissions, supplemented by oral submissions at the hearing before me; the written submissions being dated 7 April 2014. In opposition to the present application, the defence for the accused provided written submissions dated 19 June 2014, supplemented by oral submissions at the hearing before me also.
I have the two indictments referred to in the application.
Indictment INS 59 of 2002 reads as follows:
(1) On 1 November 2001 at Osborne Park [the accused] stole from Clare Annette Tosley, with threats of actual violence, money the property of The Bank of Western Australia Limited; and that [the accused] pretended to be armed with a dangerous weapon, namely a gun.
(2) And further that on 9 November 2001 at North Perth [the accused] stole from Dianne Lesley Crawford, with threats of actual violence, money the property of the ANZ Banking Group Limited; and that [the accused] pretended to be armed with a dangerous weapon, namely a gun.
Indictment INS 174 of 2005 reads as follows:
(1) On 6 October 2005 at Northbridge, [the accused] stole a motor‑vehicle, namely a Ford Falcon station wagon registration 1BKZ616, the property of Paul Henry Cochran.
(2) On 6 October 2005 at Mt Lawley, [the accused] stole from Samantha Evelyn Laffrey and Adrian Charles Sibadogil, with threats of violence, money the property of Bank of Western Australia Ltd, trading as Bankwest Mt Lawley; and that [the accused] pretended to be armed with dangerous weapon, namely a revolver; and that [the accused] was in company with another.
(3) On 7 October 2005 at Victoria Park, [the accused] engaged in a transaction, namely the purchase of a Ford Telstar motor‑vehicle, with the proceeds of an offence, namely armed robbery, then well knowing that the proceeds used in the transaction were directly derived from the commission of that offence.
In respect of indictment INS 174 of 2005, it became evident at the hearing that the evidence the subject of the present application was that related to count 2 on the indictment. The evidence relating to the other counts was included only to the extent that it was relevant to count 2, the armed robbery offence.
In respect of indictment INS 59 of 2002, the facts for count 1, the first armed robbery offence of 2001, can be stated in the terms of the state's written submissions with a modification, par 20, as follows:
On 1 November 2001, at about 1:50 PM, the accused entered the BankWest branch situated at 236 Main Street in Osborne Park. He walked to a female teller and showed her written note which stated 'Give me all your money. I have a gun.' When the teller did not react he stated 'I've got a gun. Hurry up and give me the money.' The teller, fearing to her safety, then handed him $2,995 in cash. He then left the bank. At the time of committing this offence, the accused was visiting an address in Tuart Hill, less than a kilometre away from the bank branch, an address he had visited on a number of previous occasions.
The facts of count 2 in the same indictment, the second armed robbery offence of 2001, can be stated in terms of the state's written submissions, par 21, as follows:
On 9 November 2001 at midday, the accused entered the ANZ Bank at 448 Fitzgerald Street in North Perth. He walked up to the female teller and said that he had a gun and wanted money. He lent across the counter and took a number of wage envelopes from the teller. The teller, fearing for her safety, did not resist him. He left the bank on foot with $3250.
In respect of indictment INS 174 of 2005, the facts for count 2, the armed robbery of 2005, can be stated in the terms of the state's written submissions, par 22, as follows:
On 6 October 2005 the accused and an associate attended a number of banks in Mount Lawley to select which one they would rob. At about 3:18 PM the offender and his associates selected BankWest at 649 Beaufort Street in Mount Lawley. They approached the front door of the bank, tied t‑shirts around their faces to disguise their appearance and entered the bank. The offender was in possession of a replica handgun. When he entered the bank he pointed the revolver at a customer and told her to get on the ground. He then pointed the revolver at several bank staff and yelled at them to give them money. He specifically pointed at a 17 year old bank teller. The staff, fearing for their safety, removed money from their drawers, handing it to the offenders. The total amount stolen was $14,370. After the robbery the offenders changed clothes, dumped the gun, divided up the stolen money and parted company. They bought turpentine to burn the car that they may get away in, but didn't actually burn the car. Instead they wiped it down for prints. Police did not recover any of the stolen money.
I turn then to the applicable legal principles.
The applicable principles
The Evidence Act s 31A is as follows:
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.
On the authorities cited to me on the application of those provisions, I take the following 10 propositions to be established:
(1)A determination by a trial judge to admit evidence under Evidence Act s 31A(2) is one of law, not of discretion. If the trial judge concludes that the evidence has significant probative value, and fair‑minded people, comparing its probative value to the risk of an unfair trail, would think the public interest in producing relevant evidence of guilt must have priority over risk of an unfair trial, then he or she is bound to admit it: see Di Lena v The State of Western Australia [2006] WASCA 162 [60] (Roberts‑Smith JA, Wheeler & Pullin JJA agreeing).
(2)The definition of propensity evidence in Evidence Act s 31A(1) is extraordinarily wide, going beyond what the common law understood by that category of evidence and embracing not just similar fact evidence but also evidence of the character or reputation of the accused, or of a tendency that he or she has had, as well as other evidence of the conduct of the accused person: see Preston v The State of Western Australia [2012] WASCA 64 [36] (Mazza JA, Martin CJ & Buss JA agreeing); and Di Lena [52]. The evidence does not need to fall within the category of similar evidence, let alone strikingly similar evidence: see Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [120] ‑ [122] (Roberts‑Smith JA, Wheeler JA agreeing).
(3)The evidence in question must be relevant before it can be admitted into evidence. This means it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: see Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] (Steytler P), which I note was quoted in Daniels v The State of Western Australia [2012] WASCA 213 [47] (Buss JA, Martin CJ & Mazza JA agreeing).
(4)The evidence in question must also be of significant probative value, meaning it must be such as could rationally affect the assessment of the probability of the relevant facts and issues to a significant extent, ie, more is required than mere relevance, but less than a substantial degree of relevance. It is a probative value which is important or of consequence. Significance of the probative value of the tendency evidence must depend on the nature of the fact in issue to which it is relevant, and the significance or importance which that evidence may have in establishing the fact: see Dair [61], which I note was quoted in Daniels [47].
(5)Evidence Act s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value: see Dair [62], as described in Daniels [50].
(6)The risk of an unfair trial includes the risk that a jury might uncritically overvalue the probative effect of the evidence, and conclude that an accused must have committed the offence charged simply because he or she has committed other offences, or has done, or has a reputation for doing, other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning: see Donaldson [127].
(7)When assessing the risk of an unfair trial for the purposes of Evidence Act s 31(A)(2)(b), the court will 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: see Dair [64] (Steytler P), as described in Daniels [50] (Buss JA).
(8)However, it is important to bear in mind in respect of the matter of directions that when propensity evidence is admissible as such, because it meets the requirement of the admission of evidence of that kind, the standard propensity warning will not be required: see Dair [64]; see also Daniels [94] referring to Dair [64] among other authorities, and explaining that by 'standard propensity warning' is meant a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] ‑ [3], and explaining also that the reason the standard propensity warning is not required is that:
[T]he very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged.
(9)At the same time, a particular warning might be required in the circumstances of an individual case. Whether a warning is required and its terms will depend on those circumstances: see Dair [65].
(10)Having identified the probative value of the evidence and the degree or risk of an unfair trial, the court must then make the comparison referred to in Evidence Act s 31A(2)(b). That comparison requires an assessment to be made of whether fair‑minded people would think that the interests of justice require the admission of the evidence despite the risk. For that purpose, fair‑minded people are to be regarded as reasonable members of the general public, who are not lawyers and who have informed themselves of at least the most basic considerations relevant to arriving at their conclusion, founded on a fair understanding of all the relevant circumstances: see Dair [66] ‑ [67], referred to in Daniels [50].
I should add to these 10 propositions that it is not clear from the authorities with which I am familiar what the position of a court is where the court is in doubt as a result of the comparison I have just described.
It seems to me, on the reading and understanding of the plain meaning of s 31A, that I am in a position where I would agree with counsel for the defence in this case, that that language means that in such a case the state's application would fail. Only where the court arrives at the conclusion described in the terms of s 31A(2)(b) will the evidence be admissible under this section.
I would add that it is evident from proposition 3 above that a fact, or facts, in issue in the proceedings must be identified by the state for the purposes of the application of Evidence Act s 31A. The state has identified for these purposes the fact in issue as the identity of the person who robbed the ANZ Bassendean Shopping Centre. There is more, however, that needs to be said in respect of that, and I will reach that in due course.
Application of the principles: significant probative value
Turning then to the matter of significant probative value, given the breadth of the definition of propensity evidence in Evidence Act s 31A(1), I consider the evidence the subject of the present application is indeed such evidence. It seems to me, for reasons put to me by counsel for the state in her oral submissions, that the evidence here could be seen both as similar fact evidence and as tendency evidence. There is a difference between the two, as the latter does not require matters of similarity to be as significant as the former.
The state submits that the propensity evidence the subject of the present application has significant probative value because of the following:
1.the use of a handgun, real or pretended, in all four of the robberies;
2.the targeting of a bank in all four robberies;
3.the fact that the accused had two layers of clothing on at the time of the first armed robbery of November 2001, compared with evidence of the clothing worn by the offender in the present offending, which was sufficiently loose that it was observed by two eyewitnesses, and can be seen in the CCTV feed, to fall down during the incident, the CCTV feed revealing that there is other clothing below it, although the nature of that other clothing is not clear: in the case of the first armed robbery of November 2001, the evidence on the point is that the offender was wearing two sets of outer clothing;
4.the disposal by the accused of the clothes and the gun in separate locations in the case of the armed robbery of 2005 should be compared with the facts of the present offending relating to the burnt items of clothing and the fact that no handgun was found in the residence of the accused, or, indeed, as I understand it, otherwise;
5.the degree of proximity to the address the accused was visiting at the time of the first armed robbery of 2001 should be compared with the proximity to the accused's residential address of the ANZ Bassendean Shopping Centre, and where the burnt clothing was found in the case of the present offence, relative to, or by comparison with, where the outer layer of clothing was dropped in the first armed robbery offence in November 2001, being at the address associated with the accused in that case, being, as I understand it, his residential address;
6. the pattern of a developing sophistication in the approach to the four armed robberies: in the first and second armed robberies of 2001, the accused walked inside the targeted banks, pretended to have a gun and demanded money; in the armed robbery of 2005, he disguised himself, and was armed, before walking inside the bank, with a replica weapon, being a replica handgun, and made his demands, later disposing of the gun and clothes in separate locations, and expressing an intention to burn the car used in the offending, in the end, wiping its steering wheel down to remove fingerprint evidence; compared with the present offending, in which the offender used a disguise and a handgun, and where the burnt clothing used like that was later found, and where the gun used was not found with the burnt clothing or elsewhere.
It is not apparent to me that the propensity evidence, which I accept it to be, while I consider it to be relevant, is evidence that, considered on its own, would, to any significant extent, rationally effect the assessment of the probability that the accused was the robber in the present offending.
It is apparent to me that the items 1 ‑ 6, which I have listed off, while undoubtedly describing a class of armed robberies significantly smaller than that of armed robbers as a whole, are a class of a sufficient number of people as to render the propensity evidence of limited value.
I note the discussion of the evidence in Dair [70] ‑ [71] in Steytler P's reasons, and I also note the analysis in [275] in the concurring judgment of EM Heenan AJA.
It seems to me, expressing the matter differently, that armed robbers using a weapon or pretending to use a weapon of a kind that could readily be concealed, targeting bank branches and areas familiar to them, where the bank branches are open, wearing loose‑fitting clothing of the kind that could readily be disposed of, and over the history of their offending moving to dispose of clothing and weapon used, so as to avoid detection, does not, in my view, describe a unique or distinctive class to a sufficient extent.
I further note the age of the three offences, the subject of the state's application, involving offences committed some years ago. I accept, as counsel for the state put to me, that periods of incarceration of the offender over the period since the armed robberies in November 2001 and the gaps that exist represent a significantly limited opportunity for the offender to commit offences in those gaps while nonetheless committing offences in them.
However, the matter of the age of the offences is one relevant to assessing the probative value of those offences, while not being determinative by any means in relation to that matter: see Daniels [60], [67], [68]; see also Preston [57] and Bennett v The State of Western Australia [2012] WASCA 70 [33] (Martin CJ, Buss & Mazza JJA agreeing).
However, note must also be taken of the DNA evidence in this case. This is as I must have 'regard to other evidence adduced or to be adduced' in making the present assessment: Evidence Act s 31A(2)(b). In my view, the propensity evidence makes it more likely that the DNA evidence connects the accused with the present offending as opposed, say, to connecting the accused to clothing that another used in that offending, or to clothing of similar kinds, when that DNA evidence is combined with the identification evidence from the eye witnesses and the CCTV feed to which I have previously referred: see Dair [72].
It further seems to me that, although the matter is, in my view, a close one, the probative value here is sufficient to warrant the description 'significant' in the terms of s 31A. In that respect, as in a number of others as will become apparent, this case is of a kind, if not on all fours with, Dair. It is not on all fours with Dair as there was no DNA evidence from the scene or otherwise in Dair. In this case, I accept that there is important, indeed, perhaps critical identification evidence in the form of the DNA evidence that would distinguish this case from Dair.
However, in Dair, the propensity evidence in that case went to how the jury should approach the evidence there of tentative identification of the accused by a number of witnesses and recognition evidence by a still further witness. The propensity evidence did so by showing the accused to be in a class of persons more likely than others to commit the offence charged.
I consider that that comparison of the cases shows that they involve the same kind of use of propensity evidence.
I turn then to the matter of degree of unfairness at trial.
Application of the principles: degree of unfairness.
It appears to me that the propensity evidence here is highly prejudicial. That risk of high prejudice derives from three factors.
One factor is that the jury would overestimate the value of the evidence and reason that because the accused had committed offences of a somewhat similar kind in the past, he must have been the person who had committed the present offence.
Another factor is that the jury might also think that, because the accused was a member of a class of persons likely to commit offences of the present kind, they were relieved of their obligation to closely examine other evidence against the accused.
Finally, the propensity evidence might cause them to be biased against the accused. I say in this last respect, bias, that I am satisfied the bias arises from the nature of the offending, being armed robbery in a bank during opening hours in each case. I do not see anything of significance being added to that by calling that prior offending offending of dishonesty, as it was by defence counsel, although, undoubtedly it is dishonest to steal.
I turn then to the matter of the comparison of the value with the degree of risk.
Application of the principles: the comparison of that value and that risk
I first note that the propensity evidence, while it provides significant support to the DNA evidence in this case, as was put to me by counsel for the state and as I have sought to reproduce above, does not, in my view, provide substantial support. That is because of my assessment above of the class of armed robber described by the propensity evidence, considered on its own.
Next, in my view, fair‑minded people would, having regard to the degree of risk I have identified, conclude that unless the risk could be adequately guarded against by directions from the trial judge, the public interest in producing the evidence would not have priority over that risk of unfairness. In my view, the propensity evidence in this case, given my assessment of its probative value above, like the propensity evidence in Dair, should be seen to give rise to a risk of prejudice of such a degree that it is difficult to be satisfied even the strongest warnings would be enough to overcome it. I refer to Dair [79].
I do not see that it is appropriate to describe that difficulty as one that would arise in the usual case. It seems to me that it is important to identify the facts and circumstances of the particular case, the one before me, by reference to the risk of each of the three kinds that I have described and to consider what warnings might be made in respect of that risk.
I have considered, in particular, the warning the state indicated might be made, directing the jury to confine their use of the propensity evidence to their consideration of alternative explanations consistent with the innocence of the accused of the DNA results when those results are also considered with all the other evidence in the case, particularly the other identification evidence from eyewitnesses and CCTV feed that I have referred to.
However, it seems to me it is not the case that a warning - even the strongest warning in that respect - would be sufficient. I have arrived at that conclusion by reference to the nature of the risks and the nature of the propensity evidence that I have described.
I should add this, in view of the way in which counsel for the state concluded the initial oral submissions before her reply. It seems to me, as Dair indicates, a fair‑minded person making the comparison described by s 31A(2)(b) would, and I agree with counsel for the state in this respect, at least as I understood her submission, note the importance of the fact in issue in relation to which the propensity evidence has significance; that is to say, the importance of the fact in issue for the trial.
However, that person would also properly appreciate the entirety of the assessment s 31A(2)(b) calls for, which at the least is not limited to accounting for that significance of the fact in issue. In particular, there is no question, and I did not understand counsel for the state to submit this in any event, of giving determinative effect to such importance of the fact in issue. And, again, I refer to Dair.
Conclusion and orders
My conclusion and orders then are the following.
For these reasons I conclude that the propensity evidence should not be admitted under Evidence Act s 31A.
Accordingly, the state's application should be dismissed.
I will hear from counsel as to any further orders I need to make.
0
9
1