The State of Western Australia v Gordon-Stables
[2021] WADC 118
•1 DECEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GORDON-STABLES [2021] WADC 118
CORAM: RUSSELL DCJ
HEARD: 22 OCTOBER & 17 NOVEMBER 2021
DELIVERED : 1 DECEMBER 2021
FILE NO/S: IND 850 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JOANNE DAYANA GORDON-STABLES
Catchwords:
Criminal law - Evidence - Section 31A of the Evidence Act 1906 (WA) - Admissibility of propensity evidence
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Propensity evidence admissible
Representation:
Counsel:
| Applicant | : | Ms D Borkowski |
| Accused | : | Ms Z M Burgess |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Burgess Criminal Lawyers |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Mansell v The State of Western Australia [2009] WASCA 140
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 Jackson [2019] WASCA 118; (2019) 55 WAR 285
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
RUSSELL DCJ:
Introduction
The trial of this matter is listed for four days commencing on 6 December 2021.
On 22 October 2021, I heard the State's application dated 27 July 2021 for an order pursuant to s 31A of the Evidence Act 1906 (WA), that the State be permitted to lead evidence of the conduct of the accused relating to the offence contained in count 2 on indictment 1232 of 2008 in respect of which the accused was found guilty in the District Court at Perth on 19 February 2009 (2009 Conviction).
I heard further submissions from counsel for the State and the accused on 17 November 2021.
For the reasons that follow, I order that the State is permitted to lead evidence of the conduct of the accused relating to the 2009 Conviction in relation to count 1 on indictment 850 of 2020 only, and on the basis set out at [68] of these reasons.
The State's case
The accused, Ms Joanne Dayana Gordon-Stables, is charged on indictment 850 of 2020 with nine charges under the Misuse of Drugs Act 1981 (WA) as follows:
1.On count 1 - that on 5 March 2019 at Rockingham she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
And that the offence involved a trafficable quantity of methylamphetamine.[1]
2.On counts 2 and 3 - that on 25 May 2019 at Rockingham she offered to sell or supply a prohibited drug, namely methylamphetamine, to another.[2]
3.On count 4 - that on 3 June 2019 at Rockingham she offered to sell or supply a prohibited drug, namely methylamphetamine, to another.[3]
4.On count 5 - that on 5 June 2019 at Rockingham she offered to sell or supply a prohibited drug, namely methylamphetamine, to another.[4]
5.On count 6 - that on 9 June 2019 at Rockingham she offered to sell or supply a prohibited drug, namely methylamphetamine, to another.[5]
6.On count 7 - that on 21 July 2019 at Rockingham she attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.[6]
7.On count 8 - that on 24 July 2019 at Rockingham she offered to sell or supply a prohibited drug, namely methylamphetamine, to another.[7]
8.On count 9 - that on 30 July 2019 at Rockingham she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.[8]
[1] Misuse of Drugs Act s 6(1)(a) and s 34(1)(a).
[2] Misuse of Drugs Act s 6(1)(c) and s 34(1)(aa).
[3] Misuse of Drugs Act s 6(1)(c) and s 34(1)(aa).
[4] Misuse of Drugs Act s 6(1)(c) and s 34(1)(aa).
[5] Misuse of Drugs Act s 6(1)(c) and s 34(1)(aa).
[6] Misuse of Drugs Act s 6(1)(a), s 33(1)(a) and s 34(1)(aa).
[7] Misuse of Drugs Act s 6(1)(c) and s 34(1)(aa).
[8] Misuse of Drugs Act s 6(1)(a) and s 34(1)(aa).
The State's case as outlined in the amended statement of material facts and summarised in the State's written submissions is as follows.
In relation to count 1:
1.At about 6.00 pm on 5 March 2019, the accused was travelling in the passenger seat of her vehicle along Pegasus Street in Rockingham.
2.Police conducted a vehicle stop and the vehicle was searched under the Misuse of Drugs Act.
3.Seven small clip seal bags containing a total of 1.09 grams of methylamphetamine were located in a small black case in the accused's handbag.
4.Five clip seal bags were located inside a purse in the glovebox of the vehicle containing a total of 42.69 grams of methylamphetamine.
5.The total quantity of methylamphetamine located in the accused's possession, the subject of count 1 was 43.78 grams.
6.The accused was arrested and participated in a visually recorded interview. She admitted to ownership of the 1.09 grams of methylamphetamine in the case in her handbag, but denied knowledge or ownership of the drugs located in the glovebox.
In relation to counts 2 - 6 and 8:
1.While the accused was on bail for count 1, a telephone intercept warrant was obtained, and police monitored and recorded the accused's communications.
2.The accused received calls from various associates in which she agreed to supply methylamphetamine to them in quantities ranging between a 'half weight' (0.5 grams) and a 'half oz' (14 grams).
3.The State relies on those calls for counts 2 - 6 and count 8 on the indictment, in respect of which, the accused is charged with seven separate offences of offering to sell or supply a prohibited drug, namely methylamphetamine, to another on separate occasions between 25 May 2019 and 24 July 2019, as follows:
(a)in respect of count 2, 0.5 grams on 25 May 2019;
(b)in respect of count 3, 1.75 grams on 25 May 2019;
(c)in respect of count 4, 0.5 grams on 3 June 2019;
(d)in respect of count 5, 7 grams on 5 June 2019 (for $2,250);
(e)in respect of count 6, 1.75 grams on 3 June 2019; and
(f)in respect of count 8, 14 grams on 3 June 2019.
In relation to count 7:
1.On 21 July 2019, the accused arranged, through a series of calls and messages, to meet Scott Kirk at an address in Port Kennedy to obtain an unknown quantity of methylamphetamine for $1,800.
2.The accused attended the address but was unable to obtain the drugs as they were not then available.
3.The accused returned home and arrangements were made for Mr Kirk to deliver the drugs to the accused.
4.Mr Kirk obtained the drugs and was intercepted by police on his way to deliver them to the accused and he was found to be in possession of 8.2 grams of methylamphetamine.
5.The State alleges that the accused intended to receive some or all of that methylamphetamine from Mr Kirk as part of their arrangement and this gives rise to the charge of attempted possession of a prohibited drug, namely methylamphetamine with intent to sell or supply to another, the subject of count 7.
In relation to count 9:
1.On 30 July 2019, police executed a Misuse of Drugs Act search warrant at the accused's home address in Rockingham.
2.During that search, police located a magnetic box in a room being used as a bedroom by the accused in which 10 clip seal bags containing methylamphetamine in quantities ranging between 0.08 grams and 0.48 grams, weighing 2.09 grams in total and $200 cash.
3.Police also located digital scales and a large quantity of clip seal bags.
Counsel for the accused indicated at the hearing on 22 October 2021 that the accused intends to plead guilty to the charges in counts 2 ‑ 8 inclusive on the indictment on the basis she intended to supply methylamphetamine. It was indicated that those pleas are to be entered at trial.
The State has deferred any application to lead evidence at trial of the accused's conduct in respect of counts 2 ‑ 8 on indictment 850 of 2020 to be made to and determined by the trial judge, after any indicated pleas have been entered.
The proposed propensity evidence
The State seeks to adduce evidence of the conduct of the accused in February 2008, relating to the 2009 Conviction as propensity evidence in relation to counts 1 and 9 on the indictment.
The facts in relation to that prior offending are set out in a statement of facts in relation to prior offending dated 27 July 2021. They are, in summary:
Facts relating to the 2009 Conviction
1.On 15 February 2008, the accused was stopped by police for a driver's licence check whilst she was driving along Flinders Lane in Rockingham.
2.The accused was asked to get out of the vehicle. She was asked about two bags on the floor of the driver's side of the car where her feet were (a pink 'Playboy' handbag and a ladies' carry bag). She stated that they were hers.
3.Upon searching the bags, police located in the 'Playboy' bag a large sachet bag found to contain 10.5 grams of methylamphetamine with a purity of 41% and another two sachet bags in a tic tac container found to contain 4.21 grams of methylamphetamine with a purity of 42% and 0.38 grams of methylamphetamine (the purity of which was not tested).
4.The total quantity of methylamphetamine seized was 15.09 grams.
5.Police also found in the Playboy bag $300 cash, a set of electronic scales and a large quantity of empty sachet bags. A further quantity of sachet bags were found in the glovebox.
6.Detectable traces of methylamphetamine were later found on the surface of the scales.
7.A search of the ladies' carry bag located the accused's brown purse containing $175 cash.
The legal principles
Section 31A of the Evidence Act provides:
(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.
When considering the State's application to admit propensity evidence under s 31A of the Evidence Act, there are three questions I need to consider: They are:
1.Is the proposed evidence 'propensity evidence' as defined in s 31A(1) of the Evidence Act?
2.Is the evidence, either by itself or having regard to other evidence adduced or to be adduced, of significant probative value?
3.Is the probative value of the evidence compared to the degree of risk of an unfair trial, such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must take priority over the risk of an unfair trial?
Propensity evidence
The definition of propensity evidence in s 31A(1) is extraordinarily wide and includes evidence of the character or reputation of the accused or a tendency that the accused has or had as well as any other evidence of the conduct of an accused person.[9]
Significant probative value
[9] Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [46] (Mazza JA).
The principles relevant to whether propensity evidence (or relationship evidence) has significant probative value within the meaning of s 31A of the Evidence Act were summarised in RMD v The State of Western Australia,[10] as follows:
[10] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Beech JA with whom Mazza JA agreed).
…
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.
(footnotes omitted)
In The State of Western Australia v Jackson,[11] the Court of Appeal repeated the principles summarised in RMD v The State of Western Australia, and stated that four further points should be made, as follows:
[11] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] - [23]
20First, the term 'propensity evidence' as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct' in this context refers (relevantly to this appeal) to the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to that appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
21Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
22Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the work the propensity evidence is tendered to do. For example, propensity evidence may be adduced in order to (a) prove the commission of a crime (b) prove the identity of the person who committed the crime, the commission of which is not in dispute, or (c) prove a mental element of an act, which act itself may or may not be proven.
23Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.
(footnotes omitted)
Degree of risk of an unfair trial and fair‑minded person
I turn now to the principles relating to the question of whether the probative value of the evidence compared to the degree of risk of an unfair trial, is such that a fair-minded person would think that the public interest in adducing all relevant evidence of guilt must take priority over the risk of an unfair trial.
In Dair v The State of Western Australia,[12] Steytler P identified the three aspects of prejudice that may arise as a result of the admission of propensity evidence and which consequently may give rise to the risk of an unfair trial as follows:
1.The over‑strong tendency of the jury to believe that the accused is guilty of the charge merely because they are a person likely to do such acts.
2.The tendency of the jury to condemn, not because the accused is believed guilty of the offence charged, but because they have escaped punishment for other offences.
3.The possibility that the jury might become confused or distracted as it concentrates on resolving whether the accused actually committed similar acts or other offences.[13]
[12] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
[13] Dair v The State of Western Australia, 429 - 430.
The first of the aspects of prejudice identified by Steytler P has also been put in terms of the risk that the jury will uncritically overvalue the propensity evidence and reason impermissibly that because an accused has committed other offences or has done the other things relied on or referred to, they must also have committed the charged offence.
When assessing the risk of an unfair trial for the purposes of the hypothetical comparison provided for by s 31A(2)(b) of the Evidence Act, 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.[14]
[14] RMD [51]; Preston v The State of Western Australia [41].
It can be accepted that a jury will accept and faithfully apply the directions of the trial judge until the contrary is demonstrated. A direction against impermissible reasoning is likely to be accepted by the jury.[15]
[15] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65]; Mansell v The State of Western Australia [2009] WASCA 140 [49].
The fair‑minded person is presumed to be a reasonable member of the general community who is not a lawyer, but who it must be assumed has 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.[16]
[16] RMD [51]; Preston [43]; Dair v The State of Western Australia [67].
The court must, in effect, decide whether fair‑minded people would think that the interests of justice require the admission of the evidence despite the risk of an unfair trial.[17]
[17] RMD [51].
The State's submissions
The State submits that, in respect of count 1, it is likely that possession of the larger quantity of methylamphetamine found in the glovebox of the accused's car will be the central fact in issue at trial.
This is on the basis of the accused's admission in her video record of interview on 5 March 2019 in relation to possession of the smaller quantity of methylamphetamine found in the search (1.09 grams); her denial of possession of the larger quantity found in the glovebox of her car (42.69 grams); and statements made by her to the effect that the larger quantity of drugs could have been put in the glovebox by someone who had a lift in the car the previous night.
The State also anticipates that possession will be in issue in respect of count 9 and that it may be argued that the drugs the subject of that charge were in the possession of someone other than the accused, who also lived at the address where the drugs were found, at the relevant time.
The State contends that the proposed propensity evidence is relevant to and significantly probative of the issue of possession of the larger quantity of methylamphetamine the subject of count 1 (the 42.69 grams found in the glovebox) because:
1.the probability of the accused having no knowledge of the drugs in the glovebox is rendered less likely by the fact that she has previously possessed a significant quantity of methylamphetamine with the intent to sell or supply it; and
2.the facts relating to both the 2009 Conviction and count 1 concern the transporting of methylamphetamine, in significant quantities, in multiple packages in a motor vehicle.
Further, the State submits that the propensity evidence it seeks to rely upon is evidence which would tend to discount or negate the hypotheses that:
1.the drugs the subject of count 1 were not in the accused's possession or that they had been put in the accused's car by another person and she had no knowledge of them; and
2.the drugs the subject of count 9 were in the exclusive possession of one or more of the other occupiers of that address,
as being reasonable explanations.
The State submits that, in circumstances where it is anticipated it will be suggested at trial that the drugs in each case, belonged to someone other than the accused, to deny the jury the knowledge of the accused's previous association with methylamphetamine and possessing a significant quantity of it with intent to sell or supply, would leave the jury with a fundamental misapprehension as to the full circumstances surrounding the offending.
It is submitted that when evaluating the circumstantial evidence, taking the State's case at its highest, knowledge of the 2009 Conviction and the circumstances of it make it objectively more likely that, in respect of count 1, the accused knew of the drugs in the glovebox and that she was exercising control over them.
As to the degree of risk of an unfair trial, the State submits that fair‑minded people would think that the public interest in adducing all relevant evidence must have priority over the degree of an unfair trial and that any such risk can be adequately addressed by appropriate directions to the jury.
The State proposes that the conduct relating to the 2009 Conviction be proved by reading into evidence an agreed statement of facts.
The defence position and submissions
As already noted, counsel for the defence has indicated that the accused intends to plead guilty to counts 2 - 6 and 8 on the indictment at trial on the basis that she offered to supply methylamphetamine and, to count 7 on the basis that she intended to purchase an amount of methylamphetamine from Mr Kirk, which she intended to share with her partner.
It is submitted by the defence that, by her indicated pleas of guilty to the offers to supply in counts 2 - 6 and 8 and to count 7, she admits she was engaged in the supply of methylamphetamine at the material time, but does not accept there was a commercial element to the transactions.
The defence agrees that the main issue in relation to count 1 is possession of the 42.69 grams located in the glovebox of the accused's car. The defence contends that the accused had no knowledge of the 42.69 grams of methylamphetamine.
The defence takes no issue with the State's submission that, prima facie, the evidence of the conduct relating to the 2009 Conviction constitutes propensity evidence within the meaning of s 31A(1) of the Evidence Act.
What is in issue is:
(a)whether the evidence is of significant probative value; and
(b)the degree of risk of an unfair trial.
The defence submits that the evidence fails on both of those tests.
As to significant probative value, the defence submits that if the accused pleads guilty to the counts relating to offers to supply, the jury will not be left in any doubt as to her association with methylamphetamine that she was an active user and involved in supplying it at the material time.
Counsel for the accused stated that in addition to the guilty pleas to counts 2 - 8, the accused will admit at trial, possession of the 1.09 grams of methylamphetamine in the seven clip seal bags the subject of count 1, leaving only the larger quantity of 42.69 grams of methylamphetamine in the glovebox the subject of count 1 in issue.
The defence has stated it takes no issue with the State relying at trial on the admissions and conduct relating to counts 2 ‑ 8 as circumstantial evidence in relation to counts 1 and 9.
The defence submits that the accused's admissions of guilt by her guilty pleas significantly reduce the probative value of the conduct relating to the 2009 Conviction, as it is of less importance or consequence in the determination of the facts in issue.
The defence also point to differences between the circumstances of the offending in the 2009 Conviction and in counts 1. Those differences included that:
1.The prior offending was more than 11 years before the offence the subject of count 1 on the present indictment.
2.The amount of methylamphetamine the subject of the 2009 Conviction was 15.09 grams, compared to 42.69 grams in count 1.
3.That there was no indicia present in relation to count 1.
4.The accused was the sole occupant of the car in respect of the 2009 Conviction, and a passenger in respect of count 1.
As to unfairness, the defence submits that to lead evidence of the conduct relating to the 2009 Conviction would be highly prejudicial, as it relates to previous serious drug offending, and the prejudice is not outweighed by the probative value, given it will not be in issue that the accused was connected to and engaged in the supply of methylamphetamine at the time of the alleged offence in counts 1 and count 9.
The defence submits that fair‑minded people would not think it in the public interest to lead such evidence when it is of no material consequence to the facts to be determined; and where there is other evidence. The defence refers to the circumstantial evidence pertaining to counts 2 ‑ 8, which it is indicated, the accused will admit by her pleas of guilty before the jury, and her admission to possessing the 1.09 grams of methylamphetamine that forms part of count 1.
The defence points, in effect, to the prejudice in this case being the real risk that the jury will believe the accused is guilty of the charge merely because she is a person likely to do such acts or because she has a prior conviction for similar offending. Further, it is submitted there is a real risk the jury will overestimate the value of the prior conduct and impermissibly reason to guilt, in a manner logically unconnected with the evidence in the trial, which risks cannot be cured by directions to the jury.
Disposition
Significant probative value
The evidence sought to be adduced by the State is relevant evidence, which if accepted, might assist in the proof of the relevant offence charged or a particular element of it.
It is not in issue that the evidence sought to be adduced is propensity evidence. What is in issue is whether it is significantly probative of the issue of, relevantly, possession and the degree of risk of an unfair trial.
I am satisfied that the proposed propensity evidence is significantly probative of the issue of whether the accused had knowledge and possession of the methylamphetamine in the glovebox.
The evidence of the conduct relating to the 2009 Conviction is relevant to negate any suggested co-incidence or innocent association of the accused with the drugs the subject of count 1, or that the accused was not a person associated with significant quantities of methylamphetamine. The probability that the drugs were placed in the glovebox without the accused's knowledge or that they were not in her possession or control is rendered less likely by the conduct relating to and the fact of the 2009 Conviction.
Though the accused has indicated that she will plead guilty to the later offences in counts 2 - 8 on the indictment, such admissions largely relate to offers to sell or supply methylamphetamine to others on dates that post-date the alleged possession of methylamphetamine in count 1, which is 5 March 2019. The offers to supply methylamphetamine, the subject of counts 2 ‑ 6 and 8 were made on dates from two and half months later on 25 May 2019 to more than four and half months later on 30 July 2019.
Count 7 relates to an alleged attempt by the accused to possess methylamphetamine with intent to supply on 21 July 2019, not to actual possession, and that conduct is also alleged to have occurred more than four and half months later than the disputed possession in count 1.
The proposed propensity is a relevant circumstance which could rationally affect the assessment of the probability of whether the accused was in possession of the 42.69 grams of methylamphetamine, the subject of count 1, and renders the probability of the accused having no knowledge of those drugs less likely.
As to the time that has elapsed between the conduct relating to the 2009 Conviction and the events the subject of count 1, the anticipated defence case is similar to that in Preston.[18] In that case, the fact that the appellant had previously possessed a considerable quantity of methylamphetamine with intent to sell or supply in a single incident some 10 years earlier, was held relevant to the jury's assessment of the defence.
[18] Preston [53] (Mazza JA).
Given the time that has elapsed since the conduct relating to the 2009 Conviction, I am not satisfied that evidence can be used as evidence that the accused had a tendency to possess methylamphetamine with intent to sell or supply it. There is no evidence of repeated or continuing similar conduct.
Nor am I satisfied that evidence of the conduct relating to or the fact of the 2009 Conviction is significantly probative of the issue of possession in relation to count 9. This is because the circumstances of the 2009 conviction are significantly different and the quantity of methylamphetamine involved is much less, being 2.09 grams found in a house. Also, the circumstances relating to count 9 more readily include the admissions in relation to counts 2 - 8, which pre-date the alleged offending in count 9.
The conduct relating to the presence of indicia in relation to the 2009 Conviction is not significantly probative to the issue of possession in counts 1 and 9 of the current indictment and that part of the proposed propensity evidence should not be adduced.
The degree of risk of an unfair trial
I must now consider s 31A(2)(b) of the Evidence Act.
There is always a risk that if the court admits the proposed propensity evidence, the jury will uncritically overvalue it and impermissibly reason that merely because the accused engaged in similar criminal conduct in the past, she must be guilty of the instant offence charged.[19]
[19] See Preston [40]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [58].
There is a further risk that the jury could reason that the accused, because of the 2009 Conviction, is a person more likely to commit offences of the kind and therefore not take as seriously their obligation to examine the other evidence against her. There is also the risk that the jury will be generally biased against the accused because she has been convicted of a previous offence of a similar nature.
A factor which must be included in my assessment of the risk of an unfair trial is any directions which could be given to the jury to neutralise such risk.[20]
[20] RMD [51]; Preston [41].
I accept that fair-minded members of the community would expect to hear evidence of the prior conduct and would think that it is in the public interest for the proposed evidence to be adduced despite the risk of an unfair trial. This is because, as the State submits, that leaving the jury in ignorance of the conduct relating to the 2009 Conviction, would leave the jury with an incomplete picture and a misapprehension as to the full circumstances surrounding the offending. In particular, the jury would be uninformed of the accused having previously been in possession of a significant quantity of that drug, which would rebut any suggestion of coincidence or innocent association between the accused and the methylamphetamine found in the glovebox or that she was not a person who had any association with methylamphetamine.
I am satisfied that the probative value of the proposed propensity 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.
As to directions that could be given to the jury, whilst this will ultimately be a matter for the trial judge depending on how the case is run at trial, in my view, and based on what has been indicated to date, the directions to the jury should include that:
1.the evidence of the accused's conduct relating to and the fact of the 2009 Conviction must only be used by the jury as part of the assessment of the circumstantial evidence in considering whether the accused was in possession of the 42.69 grams of methylamphetamine the subject of count 1;
2.the jury should also be directed that the propensity evidence could not, by itself, prove the case against the accused; and
3.the jury should also be warned against reasoning that the accused must have committed the offence charged simply because she has been convicted of another offence.
In my view, such directions would guard against the prospect that a jury might uncritically overvalue the probative effect of the evidence or engage in improper prejudicial reasoning.
In the circumstances of this case, I do not consider the risk of an unfair trial to be high, if the evidence is admitted and appropriate directions are given.
Summary and conclusions
For the reasons outlined, the evidence of the conduct relating to and the fact of the 2009 Conviction sought to be adduced, when considered with the evidence as a whole, has significant probative value in relation to the issue of possession and in relation to count 1 only.
The risk of an unfair trial can be neutralised by appropriate directions to the jury. Fair-minded people would think that, in all the circumstances, the public interest requires the admission of the evidence despite its risks.
The evidence as to the conduct relating to and the fact of the 2009 Conviction is admissible under s 31A of the Evidence Act and the State has leave to lead the proposed propensity evidence in a form to be agreed:
1.limited to the issue of possession for count 1 on indictment 850 of 2020 only; and
2.excluding the facts relating to the indicia referred to in the material facts relating to the 2009 Conviction (ie: excluding the matters stated in pars 10 - 12 of those material facts).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
1 DECEMBER 2021
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