The State of Western Australia v Hiemstra - [2014] WASC 466

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HIEMSTRA [2014] WASC 466

CORAM: CHANEY J

HEARD: 4 DECEMBER 2014

DELIVERED : 8 DECEMBER 2014

FILE NO/S: INS 173 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JOHN ARJEN HIEMSTRA
Accused

Catchwords:

Evidence - Propensity evidence - Plea of guilty to two counts on indictment - Whether circumstances surrounding counts to which accused pleaded guilty admissible in relation to remaining counts - Whether evidence establishes underlying pattern or unity of offending - Whether evidence of significant probative value - Whether mode of disguise and conduct distinct characteristics - Turns on own facts

Legislation:

Evidence Act 1906 (WA) s 31A

Result:

Evidence ruled inadmissible

Category: B

Representation:

Counsel:

Prosecution : Mr A G Elliott
Accused: Mr J A Sutherland

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: McDonald & Sutherland

Cases referred to in judgment:

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

CHANEY J: On 11 July 2014, the Director of Public Prosecutions filed an indictment which charged the accused, Mr John Arjen Hiemstra, with four offences. The indictment read as follows:
(1)On 10 November 2013 at Midland John Arjen Hiemstra stole from Mark Thomas Bartels, with threats of violence, a sum of money and medication the property of Peter Zaninovich trading as Optimal Pharmacy Plus Midland. And that John Arjen Hiemstra was armed with a dangerous weapon, namely a rifle.
(2)On 2 December 2013 at High Wycombe John Arjen Hiemstra stole from Janine Gray, with threats of violence, a sum of money and medication the property of Kim Teresa Watkins and Steven David Lewis trading as High Wycombe Pharmacy. And that John Arjen Hiemstra was armed with an offensive weapon, namely metal pole. And that John Arjen Hiemstra was in company with another.
(3)On 18 December 2013 at Bellevue John Arjen Hiemstra stole a motor vehicle, namely a Mazda Hatchback registration number 9LX 190, the property of Bobbi Leanne Te Aomihi George.
(4)On 18 December 2013 at Swan View John Arjen Hiemstra stole from John Lagana, with threats of violence, a sum of money and medication the property of John Alfred Lagana trading as Morrison Road Drive‑In Pharmacy. And that John Arjen Hiemstra was armed an [sic] offensive instrument, namely a replica handgun. And that John Arjen Hiemstra was in company with another.
On 16 October 2014, Mr Hiemstra pleaded guilty to counts 3 and 4 (Friendlies Chemist robbery). A judgment of conviction was entered on those two counts on that day. The trial in relation to counts 1 (Optimal Pharmacy robbery) and 2 (High Wycombe Pharmacy robbery) is listed to commence on Tuesday, 9 December 2014.
Having taken the accused's pleas of guilty in relation to counts 3 and 4 on 16 October 2014, Hall J raised with counsel then appearing for the State (who was not counsel appearing on the present application) the question of whether there was any proposal to lead evidence in respect of counts 3 and 4 pursuant to s 31A of the Evidence Act 1906 (WA). Counsel responded that the matter had not been considered and that he did not wish to make a commitment either way. Hall J then observed that no doubt counsel for the accused was proceeding on the basis that, in light of the pleas, the only evidence being adduced by the prosecution was evidence in relation to counts 1 and 2, and if there was to be any change in that regard, counsel should be advised as soon as possible.
On 28 November 2014, an application was made by the State for an order pursuant to s 31A permitting the prosecution to lead evidence of the circumstances relating to counts 3 and 4 at the forthcoming trial on counts 1 and 2. It is regrettable that, notwithstanding Hall J raising the matter on 16 October 2014, the application was left so close to trial.
The evidence sought to be adduced pursuant to s 31A is the accounts of six lay witnesses who were present and made observations either in the Friendlies Chemist or in the vicinity of Friendlies Chemist at the time of the robbery, and the evidence of certain police officers who were involved in Mr Hiemstra's arrest in the course of that robbery. In particular, the State seeks to rely on the evidence of those witnesses as to Mr Hiemstra's appearance and his conduct during that robbery.
It is apparent that the live issue for trial in relation to counts 1 and 2 is identification. In his record of interview with the police following his arrest in relation to the Friendlies Chemist robbery, Mr Hiemstra denied any involvement in the Optimal Pharmacy robbery or the High Wycombe Pharmacy robbery. The State case as to identity is based upon inference. It accepts that, in the absence of evidence as to the accused's involvement in the Friendlies Chemist robbery, there is no evidence capable of sustaining a conviction of Mr Hiemstra in relation to counts 1 and 2. In essence, the State contends that because of the physical and temporal proximity of the three robberies, the mode of dress utilised in each robbery, the demands made and general conduct of the offender in each robbery, and the fact that witnesses in each of the Optimal Pharmacy robbery and the High Wycombe robbery described the offender as having a limp in circumstances where Mr Hiemstra acknowledged in his interview with the police that he walked with a limp, provide a basis upon which an inference can be drawn that Mr Hiemstra was the offender in counts 1 and 2.
Section 31A of the Evidence Act provides:
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.
Subsection 3 is not relevant for present purposes.
Counsel for the accused accepted, in my view correctly, that, given the breadth of the definition of 'propensity evidence' in s 31A, the evidence sought to be led by the State is capable of coming within the meaning of that expression.

Significant probative value

Section 31A(2)(a) requires that, for propensity evidence to be admissible, the Court must consider that the evidence would have significant probative value. That is, the evidence must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent'.[1] The fact at issue in this case is the identity of the offender in counts 1 and 2.
[1] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [61] (Steytler P).
In order to assess whether the proposed evidence has significant probative value in relation to that issue, it is necessary to consider closely the evidence sought to be adduced and the other evidence to which regard must be had in assessing the significance of the proposed evidence. I am assisted in that task by a table handed up by counsel for the State which summarises the evidence as to identification and conduct which, the State contends, gives rise to the inference as to identity. That table deals with disguise, height of the offender, build of the offender, ethnicity, accent and voice, any other description, clothing, the weapon used, the bag carried, what was said, what was asked for, and whether a getaway car was used. The analysis (modified slightly in form but not in substance) is attached as an appendix to these reasons.
In Dair v The State of Western Australia, the Court of Appeal considered whether evidence as to previous acts of violence in order to evade arrest was significantly probative of identification of an offender who had stabbed a police officer in order to avoid arrest. At [275], EM Heenan AJA noted that certain features of the previous incidents of violence to avoid arrest were present in the sequence of events which led to the offence with which the accused was charged, his Honour continued:
Nevertheless, I do not consider that they have any particular identity, special feature or unique stamp. Sadly, conduct of this kind is experienced in many cases of stealing or attempted stealing whether from a motor vehicle or from some other location or person. Threats or resistance to facilitate flight by an offender are frequently encountered with many crimes. Violence, including assault with a knife, is, regrettably, a frequent feature of many attempts to resist arrest by the police. No doubt the pattern of resistance, or the threats or weapons used, on certain occasions, may have some distinctive stamp or recognisable quality if the offender employs some unusual weapon or some identifiable but uncommon stratagem to effect his attempted escape. For example, an offender who went armed with a 'knuckle duster' or who preyed on a particularly susceptible class of victims, or who committed an offence at the same place or in the same locality repeatedly may perhaps involve sufficient features to render his conduct recognisable, distinctive or otherwise to possess some feature which allows a logical connection to be made which would tend to exclude the likelihood that the offence charged would have been committed by some person other than the person shown to have committed previous offences the subject of the propensity evidence.
In my view, the same reasoning process can be applied in this case.
I do not consider the evidence of the circumstances surrounding the Friendlies Chemist robbery to be significantly probative of the identity of the offender involved in the Optimal Pharmacy robbery or the High Wycombe Pharmacy robbery. That is because I do not consider that the evidence summarised in the table which is appendixed demonstrates what counsel for the State described as an underlying pattern or unity, or to use Heenan J's expression, some distinctive stamp or recognisable quality. The mere fact that the offenders in each case disguised their appearance by covering their body with clothing is commonplace in armed robberies. In this case, as counsel for the State properly acknowledged, it is not possible to identify any of the same items of clothing worn in each of the robberies. It might be expected that at least the balaclava might be the same if the offenders were the same, but there is no doubt that the balaclava worn in the High Wycombe Pharmacy robbery (as seen on photographs from the CCTV), is different from the balaclava worn in the Friendlies Chemist robbery. The description of the 'beanies' worn in the Optimal Pharmacy robbery and the Friendlies Chemist robbery appear to have significant differences. The descriptions of the height of the offenders in each of the earlier robberies are inconsistent, and capable of applying to a wide range of the population. The same could be said of the descriptions of the offenders' build, ethnicity and accent. It might be said that the descriptions of the offenders in the Optimal Pharmacy and High Wycombe Pharmacy robberies suggest a complexion darker than as described in relation to the Friendlies Chemist robbery, suggesting a different offender, or at least not supporting an inference that it was the same offender.
As to clothing, there is no reference to gloves being worn in the Optimal Pharmacy, but gloves are worn on the other two occasions. The wearing of gloves during a robbery cannot be said to be a distinctive stamp. Other than that, the clothing is generally described as covering the body, but no common item of clothing is described. Experience shows that pharmacy robberies are commonly carried out by people who wear clothing which covers their body so as to avoid identification.
Significantly, in my view, the weapons used in each of the three robberies are different. In the Optimal Pharmacy robbery, a sawn‑off rifle was used and was covered with a towel or blanket or other object. In the High Wycombe Pharmacy robbery, the offender was carrying some form of pole or stick. In the Friendlies Chemist robbery, Mr Hiemstra was carrying a black replica hand gun.
The offenders were carrying a bag in each case, but the descriptions of the bags differ from robbery to robbery.
Furthermore, I do not consider that there is anything distinctive about the method of the robberies. Robberies of pharmacies occur with regrettable frequency. It is well‑known that they are most usually carried out by people suffering from drug dependency, and commonly involve demands for both money and drugs. There are no particular expressions used which are suggestive of a single offender. The State contends that the fact that the offender in each case demanded that the safe be opened is significant. It argues that this suggests particular knowledge on the part of the offender that particular drugs are contained in a pharmacy safe. That may be so, but I do not consider that that knowledge is so uncommon that the fact that Mr Hiemstra demanded drugs from the safe during the Friendlies Chemist robbery is probative of the fact that it is the same person who made the same demand in the other two robberies.
As to the use of a getaway car, the evidence in relation to count 4 was that Mr Hiemstra sought to use a getaway car with which, with his participation, had been stolen earlier that day (being count 3 on the indictment). Although there is evidence that a vehicle was used as a getaway vehicle for the High Wycombe robbery, there is no evidence as to whether that vehicle was stolen. Apparently, the vehicle was never identified. There was no evidence of the use of a getaway car in relation to the Optimal Pharmacy robbery.
There are two matters which the State emphasises in submitting that there is a distinctive similarity such as to reinforce the inference as to identity in counts 1 and 2. The first is that, when arrested in the course of Friendlies Chemist robbery, the accused was found to have applied sticky tape, apparently around the cuff of his shirt. When asked about that in his interview with the police, it would appear, although the transcript of the interview records part of his answers as indistinct, that his purpose was said to be to conceal tattoos on his hands or wrists. The State contends that certain still photographs taken from the CCTV footage of the High Wycombe Pharmacy robbery show what might be sticky tape on the white cuff of the offender's shirt. The photographs are by no means clear, but for present purposes, I accept that it is possible that the jury might conclude that sticky tape is depicted, notwithstanding that no witness of the High Wycombe Pharmacy robbery refers to sticky tape on the offender's shirt.
There is no evidence that the offender in the Optimal Pharmacy robbery used sticky tape around his wrists, or indeed that the offender wore gloves.
The second significant feature relied upon by the State is that, in his interview with police, Mr Hiemstra admitted that he suffered from a back complaint which causes him to walk with a limp. That is a matter which is not referred to by any of the witnesses to the Friendlies Chemist robbery. However, in each of the Optimal Pharmacy robbery and the High Wycombe Pharmacy robbery, witnesses described the offender as walking with a limp. The State contends that that distinctive characteristic of the offender, when viewed with all of the other evidence of description and conduct, demonstrates an underlying unity in the three offences.
There is no basis to rely upon the presence of sticky tape in relation to the Optimal Pharmacy robbery. There is simply no evidence which suggests that the offender used sticky tape on that occasion. It is, of course, open to the State to adduce evidence that Mr Hiemstra walks with a limp as relevant evidence in relation to counts 1 and 2. That would not be adduced as propensity evidence under s 31A. If there were other distinctive or characteristic features between the three robberies, the fact that the offender in each case walked with a limp would no doubt strengthen that connection. In my view, however, the lack of distinctive characteristics in all of the other aspects of description and conduct referred to in the appendixed table means that, while the evidence that Mr Hiemstra robbed a pharmacy and that he has a limp may be probative, in the relevant sense, of the identity of the offender in the Optimal Pharmacy robbery and the High Wycombe Pharmacy robbery, in my view, it cannot be said to be significantly probative.
In the circumstances, I do not consider that either the evidence of the circumstances surrounding the Friendlies Chemist robbery, or the stealing of the vehicle the subject of count 3, is significantly probative of the identity of the offender in relation to counts 1 and 2.
That conclusion is enough to conclude that the evidence is not admissible pursuant to s 31A of the Evidence Act. For completeness, I would add that I do not consider that the requirement of s 31A(2)(b) is met. The risk of an unfair trial arises because of the risk that the jury may use the evidence in an impermissible way, or may act out of prejudice to the accused. That risk may be heightened in this case because the jury do not have the experience which the courts have as to the frequency of robberies of pharmacies and the common features which attend many of those robberies. They might, therefore, give weight to similarities as to the method of disguise which is excessive in light of the common experience of courts as to the mode of dress and disguise of those who commit armed robberies in pharmacies. In relation to the sticky tape, there is a danger that the jury might be influenced by that evidence in relation to the identity of the offender in the Optimal Pharmacy robbery, when there is no basis upon which that would be permissible. One cannot be comfortable that any direction as to the limited use of that evidence could effectively avoid that danger.
Having regard to the conclusion I have reached as to the low probative value of the proposed evidence, I do not consider that a fair minded person, being a person who 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',[2] would consider that the probative value of the evidence is such that adducing the evidence should, in the public interest, take priority over the risk of an unfair trial. For those reasons, I rule that the evidence of the circumstances surrounding counts 2 and 3 is not admissible on the hearing of the charges in counts 1 and 2 of the indictment.
[2] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66] (Steytler P); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

COUNT	WITNESS	DISGUISE	HEIGHT	BUILD	ETHNICITY	ACCENT/ VOICE	OTHER DESCRIPTION	CLOTHING
1: Optimal Plus Pharmacy, Midland, Sun 10.11.13, 5.20pm	Bartels	Grey beanie pulled down over face, eye holes cut out	180cm	Slim	Tanned ‑ either Caucasian or light‑skinned Aboriginal	Australian, angry but not loud, voice sounded old-like a smoker's voice	Walked with a limp, thin patchy grey beard	Long- sleeved flannel jacket with faded red and white chequers on it, buttoned up except for top button
Eng	Mask ‑ like a bag pulled over his head with eyes cut into it, dark colour but not black	174cm	Thin	Tanned skin	Whitening facial hair	Red flannel shirt, long sleeves
Teague (saw from 30-35m away)	Beanie pulled over his face, black, thick material	A little taller than 5 ft 4	Medium	Was running slowly and had a limp	Red and white checked short (sic), long black pants
Bradshaw (across road)	Dark green face mask - eye holes cut out	Skinny and weak	Neck looked light - coloured	Limping but moved quite quickly	Red and black checked long sleeve shirt, white running shoes, black dress pants
2: High Wycombe Pharmacy, Mon 2.12.13, 5.30pm	Kiu	Head covering leaving only eyes exposed	165cm	Caucasian with olive skin	Deep voice, spoke loudly, Aust accent but not Aboriginal one	Several days growth on chin ‑ yellow to white	Completely covered by clothing; long sleeve top ‑ dark colour, head covering, black gloves
Farquar	Black balaclava with 2 eye holes	6 ft	Med	Caucasian (white skin around eyes)	Dark coloured jumper, dark long track pants (she thinks), dark gloves
Cullen	Australian
Pang	Black balaclava	170cm	Caucasian	Dark sleeve (sic) shirt with black vest over it, dark coloured pants, dark coloured shoes.
McKenna	Balaclava ‑ dark brown or black	5'11"	Slim	'Probably' Caucasian	Australian	Looked funny when he was running, like he had something wrong with his foot or was dragging his foot	Long pants (she thinks), may have had gloves on
Giannati	Balaclava which had a smiley face like a clown, black	5'9"	Med	Caucasian, green eyes
Gray	Black or grey balaclava with eye slots	190cm	Thin	Walked with a limp ‑ thinks it was left leg ‑ more of a dragging motion than a limp	Black or grey top, gloves
CCTV	Black balaclava with eye holes and black smiley face mouth	Long sleeve shirt (light colour, poss blue), long black pants, black sneakers with white soles, black gloves, possibly sticky tape around wrists of shirt
4: Friendlies Chemist, Swan View, Wed 18.12.13, 1.15pm	Lagana	Balaclava	Med	Australian	Gloves
Stephenson	Black balaclava	175cm	Med	Black long sleeved check ‑ shirt with sleeves rolled to about ¾ of arm, dark pants, black and white coloured running shoes, not wearing gloves
Behre	Black balaclava	165cm	Slim	Caucasian	Blue flannel shirt, black pants, black gloves, sneakers which had green on them
Jhally	Black balaclava with eye holes	175cm	Med	Australian, med tone	Long pants, long sleeved shirt
Found upon arrest, EROI	Dark grey beanie with eye holes cut out	178‑180 cm	Slim	Caucasian	Admits he walks with a limp. Sticky tape around wrists (admits in EROI)	In photo in police car: blue and white check long ‑ sleeve shirt, blue denim shorts (¾ length). BUT he was wearing long black tracksuit pants and dark blue sneakers with white soles for the offence ‑ the tracky pants and sneakers were seized upon arrest. Also seized from him: black gloves, sticky tape from around wrists, shoes ???

COUNT	WITNESS	WEAPON	BAG	WHAT SAID	WHAT ASKED FOR	GETAWAY CAR	WHAT STOLEN
1: Optimal Plus Pharmacy, Midland, Sun 10.11.13, 5.20pm	Bartels	Rifle with scope ‑ dark brown timber rifle, bolt action, sawn off, initially covered in dk (sic) blue towel or blanket	"Open the safe"	Drugs (from safe) and money
Eng	Short rifle with wooden handle, bag or something over the end of the rifle	Blue bag	"give me the money" (repeatedly), open the safe, told to put the boxes of drugs into his bag	Drugs from safe, money
Teague (saw from 30-35m away	Gun, approx. 1.5m long, looked like it was in a black gun case	Dark blue duffel bag with black handle
Bradshaw (across road)	Carrying gun in right hand	Grey gym bag -old and faded
2: High Wycombe Pharmacy, Mon 2.12.13, 5.30pm	Kiu	Shorter version of walking stick	Black bag	"get down on the floor, don't move" (yelling), "open the safe, open the safe" (repeatedly), "pseudo, I want pseudo"	Money, drugs from safe, pseudo (when they couldn't open safe)	Older goldish coloured sedan
Farquar	Silver metal pole in left hand, approx. 30cm long	"everyone get on the ground and you won't get hurt", "don't mess around, I don't wanna hit ya" (when they couldn't open safe)	Money, access to safe, pseudos (when they couldn't open safe)	Old mustard coloured vehicle (thinks 4 door sedan)
Cullen	"everyone get down on the floor"	Silver old Falcon
Pang	Metal object in hand as a weapon	"take the money out of the till and I won't hurt anyone", "everyone get on the floor', "stay on the floor", "give me the pseudo"	Money, open the safe, pseudos
McKenna	Steel waddie in hand, approx., 30cm long	"drop to the ground, drop to the ground, open the safe", "open the safe or I will hit you over the head"	Open the till, open the safe
Giannati	Shiny metal pole approx. 50cm long	Black back pack	"get on the floor", "get the drugs out of the safe"	Drugs out of the safe, pseudos	Ford falcon EB model, goldy/silvery, reg CA362, old style WA plates yellow with black wirting (sic)
Gray	Metal pole with wooden ball on end, approx. 40cm long	Black bag in hand	"open the tills, drop to the ground, do as you're told and no one will get hurt" (repeatedly), "open the tills, open the safe", "hurry up, open it or I'll hit you over the head"	Money from tills, drugs from safe, pseudos
CCTV	Silver metal pole in right hand, poss wooden handle on end	Black backpack or bag in left hand
4: Friendlies Chemist, Swan View, Wed 18.12.13, 1.15pm	Lagana	9mm black handgun	Red and white bag	"big fella get down on the ground"	Money from tills. Drugs from safe
Stephenson	Black handgun	Yelled that he wanted everything from the safe and tills
Behre	Black handgun	Large black duffel bag, thinks it had red on it	"This is a hold up, open your safe"
Jhally	Gun	Black sports bag	"This is a hold up" (or similar)	Money from till, drugs from safe
Found upon arrest, EROI	Black replica handgun