The State of Western Australia v Isabeth
[2017] WASC 49
•27 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ISABETH [2017] WASC 49
CORAM: FIANNACA J
HEARD: 7 FEBRUARY 2017
DELIVERED : 27 FEBRUARY 2017
FILE NO/S: INS 233 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KELVIN ARTHUR ISABETH
Defence
Catchwords:
Criminal law and procedure - Accused's application to exclude evidence - State's application to adduce relevant circumstantial evidence and/or propensity and relationship evidence - s 31A of the Evidence Act 1906 (WA) - Admissibility at common law - Discretion to exclude evidence
Legislation:
Criminal Code (WA), s 378, s 401(1)(a), s 401(1)(c), s 444(1)(a)
Evidence Act 1906 (WA), s 31A
Result:
The State may adduce the evidence
Reasons may not be published until the conclusion of the proceedings on indictment
Category: B
Representation:
Counsel:
Prosecution : Ms K I Goddard-Borger
Defence: Ms A Rogers
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Abigail Rogers Barristers & Solicitors
Cases referred to in judgment:
APC v The State of Western Australia [2012] WASCA 159
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Ferris v The State of Western Australia [2009] WASCA 54
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
Preston v The State of Western Australia [2012] WASCA 64
R v Stalder [1981] 2 NSWLR 9; (1981) 3 A Crim R 87
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 49
FIANNACA J:
Introduction
The accused is charged on indictment with the following offences:
Count 1:Aggravated burglary (in company) in the place of Phillip John Grose at Naval Base on 2 April 2015 (Criminal Code (WA) s 401(1)(a));
Count 2:Stealing property of Mr Grose at the same place on 2 April 2015 (Criminal Code s 378);
Count 3:Criminal damage by fire caused to a workshop and its contents at the same place on 2 April 2015 (Criminal Code s 444(1)(a));
Count 4:Burglary in the same place of Mr Grose on 22 April 2015 (Criminal Code s 401(1)(c)); and
Count 5:Criminal damage by fire caused to the same workshop and its contents on 22 April 2015 (Criminal Code s 444(1)(a)).
Prior to the hearing of the applications before me, the accused had pleaded not guilty to all charges on the indictment and the matter was listed for a trial to commence on 8 May 2017. The evidence on which the State intends to rely at the trial includes evidence that Mr Grose's car was damaged on or about 1 April 2015 and that the accused made a threat to Mr Grose by telephone, later on 1 April 2015, that he would be harmed if he did not pay the accused a specified sum of money. The accused has been charged with the offences of criminal damage and making a threat to harm in respect of those incidents. Those charges are to be dealt with at a trial in the Magistrates Court in September 2017.
By application dated 13 January 2017, the accused has sought an order excluding the evidence in respect of those incidents in the trial on indictment on the basis that 'the admission of those charges [will be] unfair and prejudicial to the accused'. The State has filed an application dated 25 January 2017 in which it seeks an order permitting the State to lead the evidence pursuant to s 31A of the Evidence Act 1906 (WA), as evidence of the accused's attitude or conduct towards Mr Grose, in the event that the evidence would not otherwise be admissible. It argues, however, that the evidence is relevant circumstantial evidence in the trial of the counts on the indictment.
In the submissions filed on behalf of the accused, it was foreshadowed that he would plead guilty to counts 1 to 3 in the indictment. As a consequence, the State's application also sought an order permitting it to lead evidence in respect of the offences in counts 1 to 3 in the accused's trial on counts 4 and 5. Again, the State's submission is that the evidence is relevant circumstantial evidence in proving that the accused committed counts 4 and 5. Alternatively, it submits that the evidence is admissible under s 31A of the Evidence Act as both propensity and relationship evidence.
At the hearing of the applications on 7 February 2017, the accused pleaded guilty to counts 1 to 3 on the indictment and I entered judgments of conviction in respect of those counts. Therefore, the trial will now be only in respect of counts 4 and 5. Counsel for the accused conceded at the hearing that the evidence in respect of counts 1 to 3 would be admissible both as propensity evidence and relationship evidence under s 31A in the accused's trial on counts 4 and 5. In my opinion, for reasons I will give, the concession was properly made. What remains in dispute is the admissibility of the evidence about the damage to Mr Grose's car and the threatening telephone call alleged to have been made by the accused on 1 April 2015. Although the accused's application to exclude that evidence relies on the grounds of unfairness and prejudice, the submission developed by his counsel also contends that the evidence does not have significant probative value in the proof of counts 4 and 5 on the indictment.
For the reasons that follow, I have concluded that the evidence is admissible as circumstantial evidence tending to establish a motive for the accused to commit the offences the subject of counts 4 and 5, and its probative value outweighs any prejudicial effect it may have. Alternatively, the evidence is admissible under s 31A of the Evidence Act in the accused's trial on counts 4 and 5.
The prosecution case
The evidence on the prosecution brief reveals that the accused and Mr Grose were known to one another. They had socialised in the past. Mr Grose's workshop was in a complex of factory units in Naval Base. The accused had previously rented another factory unit at the same complex. As at 2 April 2015, Mr Grose was in a relationship with the accused's ex‑partner, Ms McGregor. It appears the accused considered Ms McGregor to still be his partner, although that was not her view of their relationship.
The State's case is that, from 1 April 2015, the accused engaged in a course of intimidating conduct towards Mr Grose that demonstrated feelings of animosity towards him, most likely because of Mr Grose's relationship with Ms McGregor, and that the burglaries and criminal damage by fire on both 2 and 22 April 2015 were committed by the accused as a result of that animosity, intended to punish Mr Grose and to extract from him a sum of money. The State's case is that the conduct commenced with damage being caused to Mr Grose's car either late on the night of 31 March 2015 or just after midnight on 1 April 2015. It alleges that, on the afternoon of 1 April 2015, he received a telephone call from the accused in which the accused referred to what had happened to Mr Grose's car and threatened him with harm if he did not pay the accused $3,500. The State's case is that the accused then sent threatening text messages to Mr Grose before the burglary and arson on 2 April 2015. On that occasion, the accused and another stole a television, a CCTV hard drive and an oven before the accused set fire to a sofa bed.
The State also alleges that the accused subsequently sent more threatening text messages between 2 April and 22 April 2015, and that the offences alleged to have been committed on 22 April 2015 were part of a continuing course of intimidation and punishment by the accused. The offences alleged to have been committed that day again involved breaking into Mr Grose's workshop and setting fire to property, on that occasion a pool table.
Finally, the State alleges that the accused sent further abusive and intimidating text messages after the burglary and arson of 22 April 2015.
The accused's offending on 2 April 2015 was captured on CCTV footage taken by a surveillance camera in Mr Grose's workshop. It depicts two offenders. As the accused now admits, one of them, a male with long dreadlocks and a beard, is him. There is no CCTV footage of the second incident, on 22 April 2015, that resulted in further damage to the workshop and its contents by fire. Nor is there any forensic evidence connecting the accused to that offence. The State's case depends on an inference being drawn from the accused's demonstrated animosity towards the accused, the earlier incidents of damage caused to Mr Grose's property and the text messages sent to Mr Grose both before and after 22 April 2015, that he was the offender who broke into Mr Grose's workshop on 22 April 2015 and caused the further damage.
The accused was interviewed by police while he was in hospital on 25 May 2015. He denied being involved in the burglary and arson offences on either 2 April 2015 or 22 April 2015. He claimed to be scared of fires and to have been in a wheelchair for the last year. He said that Ms McGregor was still his partner, but he knew there might be something going on between Mr Grose and Ms McGregor. He admitted sending text messages to Mr Grose, but said that he believed Mr Grose was selling drugs to his (the accused's) daughter and the messages were intended to stop him from doing that.
The defence case
The accused's case is that he did not commit the offences on 22 April 2015. He also denies being involved in causing damage to Mr Grose's car or making a threatening telephone call to Mr Grose on 1 April 2015.
The issue at the trial in respect of counts 4 and 5 on the indictment will be the identity of the offender, in other words whether it was the accused who broke into Mr Grose's unit on 22 April 2015 and set fire to the pool table.
The evidence on which the State will rely at trial
The evidence on the prosecution brief, on which the State relies, includes:
1.a number of statements from Mr Grose;
2.a statement from Ms McGregor;
2.images of Mr Grose's mobile telephone showing text messages he received;
3.downloads from Mr Grose's mobile telephone showing text messages he received from 2 April 2015 to 2 July 2015, and the telephone numbers from which they were received;
4.call charge records for a mobile telephone service used by the accused;
5.CCTV footage (and stills extracted from that footage) of the incident the subject of counts 1 to 3 on the indictment;
6.photographs of the accused;
7.photographs showing the damage caused by the fire on both 2 April 2015 and 22 April 2015;
8.two arson reports, one in respect of each of the fires; and
9.a video recorded interview conducted by the police with the accused on 25 May 2015.
The evidence to which the accused objects
The accused objects to evidence of events that took place on or about 1 April 2015.
Mr Grose states[1] that around 12.25 am on Wednesday, 1 April 2015, he was at his factory unit in Naval Base with Ms McGregor. He awoke after falling asleep watching television. He decided to move his car, which was outside. When he went to his vehicle, he noticed that the front passenger window had been smashed. He could not see anyone in the area. He moved his car inside the unit to prevent further damage. He noticed that the padlock to the personal door to the unit was missing. He replaced it with another padlock. He locked both that door and the garage door. Shortly afterwards, someone started banging on the doors and yelling abuse. Mr Grose states that it sounded like the accused. The police were called by Ms McGregor and attended some time after the person or persons outside had left.
[1] Prosecution brief (PB) 3, 11 - 12.
Ms McGregor[2] confirms that she was with Mr Grose during the night of 31 March 2015 and early hours of 1 April 2015. She also states that Mr Grose went outside to move his car and that he then brought to her attention that it was damaged. She saw that the front passenger door window was smashed and the windscreen was cracked. She also states that after the car was brought inside, someone was banging on the doors and yelling abuse, and that she called the police. Whoever was outside had left by the time the police arrived.
[2] PB 181 - 182.
Mr Grose states that he set up a CCTV camera after that incident. It was as a result of that measure that the incident the subject of counts 1 to 3 on the indictment was captured on video.
Mr Grose states[3] that around 1.12 pm on 1 April 2015, he was at his home in Medina when he received a telephone call. He recognised the voice as the accused's voice. He had known him for two and a half years. Mr Grose continues as follows:
He said to me, "You have two choices."
I said, "What do you mean?"
He said, "Either you pay me three and a half grand or you go to the pine plantation."
I said, "I don't have three and a half thousand."
He said, "You've seen what happened to your car. You're going to be next."
I said, "What do you mean by the pine plantation?"
He said, "The Black Power is in town and they are watching you."
He then hung up.
[3] PB 4 [14] ‑ [25].
Mr Grose states[4] that he subsequently received threatening text messages on his mobile telephone from a particular mobile telephone number, commencing on the morning of 2 April 2015. The texts referred to the 'Black Power'. One text included a link to a story on a news website, which explained that the Black Power was a violent 'street gang' from New Zealand that had moved into Australia. The text messages were sent both before and after Mr Grose's unit was burgled and damaged by fire on 2 April 2015, although the last one sent on that date was at 10.19 pm, including the words, 'Well here it comes',[5] less than an hour before the fire at the unit was reported, which was at 11.11 pm.
[4] PB 6.
[5] PB 191.
The sending and contents of the text messages are confirmed by data downloaded by the police from Mr Grose's telephone.[6] Subscriber records[7] for the telephone number from which the text messages were received show that the user of that service from 7 December 2014 was one 'Keven Lisavath' of an address in Medina that Ms McGregor states was the address at which she lived with the accused until 2014.[8] The State's case is that the accused was the user of the mobile telephone at that time, and that he used a false subscriber name that approximated his name. Ms McGregor confirms that the number was the accused's mobile telephone number.[9] Further, the 'Optus webtrace' record[10] that shows calls made from the relevant number in 2015 shows the subscriber to be Kelvin Arthur Isabeth (the accused).
[6] PB 185 - 192.
[7] PB 157.
[8] PB 182.
[9] PB 182 [36].
[10] PB 159 - 178.
The general flavour of a number of the messages sent to Mr Grose from the number attributable to the accused was a demand that Mr Grose call the sender, threats of harm if he failed to do so and warnings that he should watch out. Text messages were sent on 3 and 10 April 2015 and on each day from 16 to 21 April 2015. On 23 April 2015, the day after the offences alleged in counts 4 and 5, a message from the relevant mobile service to Mr Grose read (grammar corrected): 'I think it's in your interest to ring me now for [a] meeting, don't you think or … ?'[11]
[11] PB 189.
Further abusive messages were sent from the relevant mobile service to Mr Grose after 23 April 2015. It is not necessary for present purpose to go into any further detail.
While there is evidence about the number from which the text messages were sent, there is no evidence about the number from which the call was made to Mr Grose on the afternoon of 1 April 2015. In fact, there is no independent evidence that a call was made to Mr Grose at that time. He did not identify the number from which the call was made, although I was told during the hearing that it is not the number from which the texts were subsequently sent. The records of calls from that number (for which the accused was the subscriber) do not include a call to Mr Grose's number at the time he describes. There is no reverse call record of calls made to Mr Grose's telephone.
The accused objects to the evidence of the damage to the car and of the banging and yelling outside the unit on 1 April 2015. He also objects to the evidence of the telephone call Mr Grose claims he received during the afternoon of 1 April 2015. The accused does not object to the evidence of the text messages sent to Mr Grose's telephone from 2 April 2015 until 25 May 2015, the latter being the date of the last of the abusive and threatening texts sent to Mr Grose, which came after the police had interviewed the accused.
The relevant principles
The State submits that the evidence under consideration is admissible independently of s 31A of the Evidence Act, but is admissible under that section in any event.
Section 31A prescribes the circumstances under which the court may admit propensity and relationship evidence. In the present case, the prosecution submits that the evidence of the conduct relating to the prior convictions is both propensity and relationship evidence.
'Propensity evidence' is defined in s 31A(1) as meaning:
(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' is defined as meaning, relevantly, 'evidence of the attitude or conduct of the accused person towards another person … over a period of time'.
Section 31A(2) provides that propensity 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.
(Section 31A(3) is not relevant for the purposes of this application.)
The evidence under consideration is clearly relationship evidence for the purposes of s 31A. It is evidence of the accused's attitude or conduct towards Mr Grose and, in combination with the evidence of the text messages, is evidence of that attitude or conduct over a period of time. In my opinion, it may also be regarded as propensity evidence. The definition of propensity evidence has been described as being extraordinarily wide.[12] It goes beyond what the common law understood by that term. By its terms, it includes considerably more than similar fact evidence. In particular, it does not require the existence of striking similarities between the previous conduct and the offence charged. The evidence under consideration, if accepted, would demonstrate a propensity on the part of the accused to involve himself in harm to Mr Grose's property if he did not comply with his demands.
[12] Preston v The State of Western Australia [2012] WASCA 64 [36] (Mazza JA; Martin CJ & Buss JA agreeing).
However, the fact that the evidence may come within the ambit of s 31A does not mean that it is not admissible on another basis. Section 31A does not exclusively define the only circumstances in which evidence that might come within its scope is admissible.[13] The section was introduced to overcome common law rules which precluded evidence of propensity, or of relationship, being admissible without more.[14] If the evidence in question would be admissible for another purpose under the common law, for instance to prove motive or as part of the res gestae, it is unnecessary to invoke s 31A, even though the evidence may reveal other criminal conduct or non-criminal but discreditable behaviour by the accused.[15]
[13] Ferris v The State of Western Australia [2009] WASCA 54 [63] (Martin CJ; Miller JA & Beech AJA agreeing).
[14] Ferris v The State of Western Australia [2009] WASCA 54 [63] (Martin CJ; Miller JA & Beech AJA agreeing).
[15] Ferris v The State of Western Australia [2009] WASCA 54 [63] (Martin CJ; Miller JA & Beech AJA agreeing); PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [123] - [125] (Pullin JA); [241] (Buss JA, as he then was).
The evidence under consideration will be admissible at common law if it is relevant to an issue in the trial, unless there is some good reason for not receiving it. Such a reason may be that the nature or content of the evidence is such as to be likely to create impermissible prejudice against the accused that outweighs its probative value.[16]
[16] See the discussion in Cross on Evidence (10th ed) [21140] - [21145]; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590; R v Stalder [1981] 2 NSWLR 9, 20; (1981) 3 A Crim R 87, 98 (CCA) (Street CJ, referring to 'undue' or 'disproportionate' prejudice).
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[17] Evidence may bear upon the assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.[18] As Gleeson CJ put it in HML v The Queen:[19]
It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.
[17] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [5] (Gleeson CJ); Washer v The State of Western Australia [2007] HCA 48; (2007) 234 CLR 492, 35 ‑ 36 [5]; Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2]; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590.
[18] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
[19] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
The fact in issue in this case will be whether the accused was the person who broke into Mr Grose's unit on 22 April 2015 and set fire to his pool table. Evidence that tends to establish that the accused had a motive to cause damage to Mr Grose's property, or had embarked on a course of intimidation of Mr Grose, which included causing damage to his property, would have the capacity, in combination with other evidence, to affect the assessment of the probability that it was the accused who broke into Mr Grose's unit on 22 April 2015 and lit the fire. I will return below to whether the evidence in this case is admissible on that basis.
As the evidence is also sought to be admitted under s 31A of the Evidence Act, it is necessary to have regard to the principles that apply in that context.
The effect of s 31A(2)(a) was explained by Buss JA in LFG v The State of Western Australia, relying on the analysis undertaken by Steytler P in Dair v The State of Western Australia,[20] as follows:[21]
(a)Evidence has "probative value" if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)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.
(c)The adjective "significant", in the phrase "significant probative value" in s 31A(2)(a), connotes "important" or "of consequence".
(d)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.
The effect of s 31A(2)(b) was explained by his Honour, again by reference to points made by Steytler P in Dair, as follows:[22]
First, 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. Secondly, when assessing the risk of an unfair trial for this purpose, 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. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have 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': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
[20] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
[21] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [290] (Buss JA).
[22] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [291] (Buss JA).
In Donaldson v The State of Western Australia, Roberts‑Smith JA expressed the following opinion about the meaning of 'the risk of an unfair trial' in s 31A(2)(b):[23]
The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences 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.
[23] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127] (Roberts‑Smith JA).
In APC v The State of Western Australia, Pullin JA made the following observations about the risk of an unfair trial:[24]
The risk of an unfair trial when propensity evidence is led, depends on the particular circumstances of the case. Examples are given in Dair at [63]. Speaking generally, such a risk may arise from the tendency in a jury to believe that the defendant is guilty of the charge, merely because he is a person likely to do such acts.
[24] APC v The State of Western Australia [2012] WASCA 159 [15] (Pullin JA).
In essence, all of the examples that have been identified in the authorities involve the risk of a jury not confining the use of the evidence to a process of dispassionate, logical reasoning, as described by Roberts‑Smith JA in Donaldson.
Application of the principles to this case
Admissibility of the evidence in respect of counts 1 to 3 in the trial of counts 4 and 5
The accused accepts that the evidence in respect of counts 1 to 3 on the indictment is admissible pursuant to s 31A in the trial of counts 4 and 5, on the basis that it is propensity evidence of significant probative value, particularly having regard to the evidence of text messages that followed, and it meets the test in s 31A(2)(b). The concession is properly made. The evidence is similar fact evidence, in that it involved a burglary on Mr Grose's unit and the causing of damage to his property by fire at a time that was relatively proximate to the offences of 22 April 2015. In light of the text messages, it also demonstrates a tendency on the part of the accused to act on his animosity towards Mr Grose by a particular means, that is, by breaking into his property and destroying or damaging his property by fire. Describing the evidence in that way also highlights that the evidence is relationship evidence for the purposes of s 31A (it demonstrates an attitude towards Mr Grose), and has significant probative value on that basis.
In my opinion, the evidence in respect of counts 1 to 3 is also relevant as circumstantial evidence in the trial on counts 4 and 5. In combination with the text messages, it is evidence from which a motive for counts 4 and 5 can be inferred, being a desire to exact punishment on Mr Grose and reinforce the threats that had been made, because he had failed to comply with the accused's demands in the text messages despite the damage to his property on 2 April 2015. Further, it is circumstantial evidence tending to establish the level of animosity the accused felt towards Mr Grose at a time relatively proximate to the offences of 22 April 2015. Finally, it is evidence that demonstrates the accused was mobile and not afraid of fire (or at least not so afraid as to deter him from lighting a fire), contrary to his claims in his video record of interview.
Admissibility of the disputed evidence
(a) Whether the disputed evidence is admissible at common law
It was submitted on behalf of the accused that the evidence of the damage to the motor vehicle and the telephone call to Mr Grose on the afternoon of 1 April 2015 lacks probative value in respect of the offences alleged in counts 4 and 5. It was submitted that the evidence is of conduct of a different kind to that alleged in counts 4 and 5 and is not admissible at common law. Alternatively, the accused contends that the degree of prejudicial effect attaching to the evidence outweighs any probative value. The principal submission proceeds on the basis that the evidence is relied on by the State as similar fact or propensity evidence. With respect, the argument overlooks other bases on which the evidence may be admissible, and on which the State relied.
In my opinion, the evidence under consideration is circumstantial evidence that is directly relevant to the issue whether the accused committed the burglary and arson on 22 April 2015.
The evidence is capable of establishing that Mr Grose's car was damaged outside his unit on the night of 31 March 2015 or sometime before 12.25 am on 1 April 2015, and that someone who sounded like the accused was banging on the garage door and shouting soon after Mr Grose brought the car inside the unit. If the jury accepts Mr Grose's evidence that the accused called him on the afternoon of 1 April 2015 and said the things set out in [20] above, that evidence, in combination with the evidence about the damage to the car and the disturbance I have just described, would be capable of establishing that the accused was involved in the damaging of the car, and that he did so because he felt animosity towards Mr Grose and intended to extract money from him through intimidation. Even if the jury were not satisfied that the accused was involved in damaging the car, the evidence of the telephone call would be capable of establishing that he was prepared to use damage to Mr Grose's property as a means of intimidating him into paying the money the accused had demanded. It is also capable of establishing a motive for him to cause further damage to the accused's property, namely the extortion of money from Mr Grose.
Further, as the accused has pleaded guilty to the burglary and arson on 2 April 2015, the evidence of the telephone call provides the context in which those offences occurred. The text messages that followed would not provide the full context. The full context for the offences of 2 April 2015 is relevant to determining whether the accused committed the offences on 22 April 2015. If the jury accepts the accused was trying to extort money from Mr Grose, that fact would assist in understanding why he would again attack Mr Grose's unit on 22 April 2015, as Mr Grose still had not complied with the demand made in the telephone call.
Finally, the content of the telephone call, if accepted, would provide context to the references to 'Black Power' in the text messages that followed, including the internet link. It would be capable of supporting an inference that those references were intended to convey an ongoing threat of deleterious consequences for Mr Grose, in which that gang may be involved, if he did not cooperate with the accused.
In summary, the evidence is capable of establishing both that the accused had a motive to cause damage to Mr Grose's property and that he had embarked on a course of intimidation of Mr Grose, which included causing damage to his property.[25] At the very least, it provides a context that is helpful for an understanding of the narrative established by other evidence. For those reasons, the evidence would have the capacity, in combination with other evidence, to affect either directly or indirectly the assessment of the probability that it was the accused who broke into Mr Grose's unit on 22 April 2015 and lit the fire.
(b) Whether the fact the evidence is disputed weighs against admission
[25] See, in this regard, the examples given by McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 628 - 634 in analysing the manner in which evidence may be admissible as part of the res gestae or as circumstantial evidence, notwithstanding it may have prejudicial effect.
It was submitted on behalf of the accused that the accused denies having had anything to do with the damage to Mr Grose's vehicle or making a telephone call to him on the afternoon of 1 April 2015. He has pleaded not guilty to the charges in respect of those matters in the Magistrates Court.
The fact that the accused does not admit (and indeed denies) the conduct concerning the damage to the car and the telephone call is not a bar to the admission of the evidence. It is not unusual in criminal trials for aspects of the circumstantial evidence, including propensity evidence, on which the prosecution relies to be disputed. However, it was submitted on behalf of the accused that the jury will be required in effect to make findings about the accused's guilt in respect of separate conduct that is the subject of separate charges in the Magistrates Court. The defence contends that this will be a distraction from the real issues that the jury will need to determine.
It is regrettable that the offences in the Magistrates Court were not included in the indictment and are proceeding separately. If, as is implicit in the State's submission, it contends that they were part of a series of offences of a similar character, or arose out of closely related acts, or were part of a series of acts committed in the prosecution of a single purpose, they could have been joined on the indictment. Although the charges in the Magistrates Court are 'either way' offences that may be dealt with summarily, it seems to me there would have been an irresistible argument for committing them to this court under s 5 of the Criminal Code to be tried with the charges on the indictment.
As matters stand, the jury will be required to make findings of fact in respect of matters for which the accused is to be tried in the Magistrates Court. Of course, it will not be known what findings they may have made about those matters, because the verdict, whether guilty or not guilty, will not reveal findings of fact beyond the elements of the offences charged. Although a special verdict may be sought from the jury by the trial judge under s 113(2) of the Criminal Procedure Act 2004 (WA) if he or she was of the opinion that the proper sentence to be imposed may depend upon a specific fact, I would not have thought that approach would recommend itself in this case, even if it were thought that the contents of the telephone call place the alleged offending in a more serious light. In my opinion, the fact that there are charges yet to be dealt with in the Magistrates Court in respect of the same subject matter would militate against requiring a special verdict.
In any event, it may not be necessary for the jury to be satisfied beyond reasonable doubt that the accused made the telephone call and said the things alleged in order for it to take the evidence into account. That would depend on whether the evidence is regarded as an essential link in reasoning to a verdict of guilty.
A further point to be made is that the jury would not have to be satisfied that the accused was involved in damaging the car in order for it to find that he made the telephone call and made the alleged threat. Although the State submits that the jury could rely on the contents of the call as an admission that the accused was involved in damaging the car, the jury could still rely on the call as evidence of the accused associating himself with and approving of the causing of the damage, which would be relevant to his attitude towards the complainant and his property, even if it was not satisfied he was not involved in causing that damage.
In my view, a jury would not be unduly diverted from their task in deciding the facts in respect of counts 4 and 5 by having to consider the disputed evidence. It is not lengthy or complicated evidence. The acceptance of the evidence in respect of the telephone call will depend on an assessment of the credibility of Mr Grose. The need for a jury to make such assessments in deciding what facts have been proved as part of a circumstantial case is not an unfamiliar aspect of criminal trials.
The accused's counsel has also raised a question of procedural fairness, as the accused may elect to give evidence in the trial in this court and be exposed to cross-examination about the disputed matters, which may prejudice his position in the Magistrates Court. However, if that were to occur, it will be a matter to be raised and dealt with in the Magistrates Court, either as affecting the propriety of the summary prosecution proceeding or the admissibility of evidence in those proceedings. I express no view about those matters, but simply note that if the accused is prejudiced in those proceedings, as a result of the proper admission of evidence in the trial in this court, his remedy will lie in the Magistrates Court.
(c) Whether prejudice outweighs probative value
It was submitted on behalf of the accused that the evidence should be excluded in any event in the exercise of discretion because the prejudicial effect of the disputed evidence outweighs its probative value. In the context of the common law discretion to exclude evidence that is otherwise admissible, the prejudicial effect with which the court is concerned is the danger of its misuse, not its inculpatory force.[26] It is the risk of unfair prejudice that may lead a jury to a finding of guilt otherwise than by a process of dispassionate, logical reasoning from the evidence that the court must consider.[27] Such prejudice may take the form of a belief that the accused is guilty of the charges in respect of which he is being tried merely because he is a person who is likely to commit such offences. In this context, the comments of Roberts‑Smith JA in Donaldson v The Queen in the context of s 31A(2)(b), referred to at [40] above, are apposite.
[26] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 402 [3] (Gleeson CJ).
[27] See [35] above and the text and authorities referred to in footnote 16.
To the extent that the disputed evidence tends to establish that the accused was involved in damaging Mr Grose's car, or was prepared to appropriate the damage as part of a threat to Mr Grose to extort money from him, any prejudice flowing from the fact that it showed him to be someone who was prepared to commit criminal damage is not significant compared to the probative value of the evidence, particularly when there will be other evidence (in respect of counts 1 to 3), which the accused accepts is admissible, that will show he was prepared to break into the complainant's premises and set fire to property within them.
However, it was submitted on behalf of the accused that the evidence of an alleged threat by the accused during the telephone call either to kill or do other personal harm to Mr Grose is highly prejudicial. It was submitted that the prejudice of that evidence outweighs any probative value it may have. In fact, it was submitted that the threat has no probative value as evidence of propensity to cause damage to the complainant's property, and, to the extent that it tends to establish animus towards Mr Grose, it adds very little to the evidence of the commission by the accused of the offences the subject of counts 1 to 3 and the hostile text messages sent on 2 April 2015 and thereafter.
In my opinion, the evidence of the threat has probative value for the reasons I have already given.[28] The threat concerning the pine plantation was the context for Mr Grose's query that allegedly resulted in the accused referring to the Black Power being in town and watching Mr Grose. References to the Black Power then followed in text messages which a jury would be entitled to conclude were intended to intimidate Mr Grose. The accused accepts those text messages are relevant. I do not agree with the accused's submission that the threat allegedly made during the telephone call adds little to the texts and the accused's conduct that followed. In my opinion, it would be artificial to redact the threat from the telephone call. It would remove the context in which the Black Power was first referred to, and would potentially diminish the degree of animus the jury might infer from the evidence of the call.
[28] See [47] ‑ [50] above.
The prejudicial effect of what may be construed as a threat to kill or at least do personal harm to Mr Grose must be considered in the light that:
(a)some of the text messages that followed might be regarded as conveying an implied threat of physical harm, so that any additional prejudice from the telephone call would not be significant; and
(b)no personal harm of the kind threatened came to Mr Grose.
In that light, the risk of unfair prejudice is not so significant, in my opinion, as to outweigh the probative value of the evidence.
Finally, the risk of unfair prejudice arising from both the evidence of the damage to the car and the evidence of the telephone call can be guarded against by an appropriate direction as to the proper use to be made of the evidence. Therefore, I do not consider that the evidence should be excluded in the exercise of discretion.
(d) Whether the disputed evidence is admissible under s 31A Evidence Act 1906 (WA)
For the reasons set out at [33] above, the disputed evidence is both relationship evidence and propensity evidence for the purposes of s 31A.
For the reasons set out at [47] ‑ [50] above, the evidence has significant probative value. I consider that, having regard to other evidence to be adduced, as explained earlier, the disputed evidence would rationally affect, to an extent that is of consequence, the assessment of the probability of whether the accused was the person who committed the offences on 22 April 2015. It would do so by proving facts relevant to that fact in issue. Those facts concern, in the first instance, the existence of a motive for committing the offences. The facts that would be proved are (a) that the accused felt animosity towards Mr Grose, (b) that the animosity was so great that he wished to cause harm to Mr Grose and his property, and (c) that he intended to extract money from Mr Grose through intimidation. Those would all be facts of importance in determining, in combination with other evidence, including the evidence concerning counts 1 to 3, whether it was the accused who committed the offences on 22 April 2015. Secondly, the evidence would establish the accused's preparedness to cause damage to Mr Grose's property as part of a course of intimidation driven by the animosity and financial motive.
It was submitted on behalf of the accused that the lapse of time between the events concerning the damage to the car and the telephone call on the one hand and the burglary and arson of 22 April 2015 on the other detracts from the probative value of the disputed evidence. In my opinion, the period of three weeks is not of any particular consequence either per se or, more significantly, having regard to the conduct the subject of counts 1 to 3 and the evidence of the hostile text messages that filled a large part of the period. A jury would be entitled to consider that the relationship and propensity demonstrated by the events of 1 April 2015, including the telephone call, persisted over the three week period.
It was argued on behalf of the accused again in this context that the disputed evidence did not have significant probative value because the conduct the subject of that evidence was of a very different kind to the conduct the subject of counts 4 and 5. That argument focusses on that part of s 31A that is concerned with similar fact evidence. However, the authorities to which I referred in dealing with the legal principles make it clear that the ambit of s 31A is much wider than that. The disputed evidence in this case has significant probative value as relationship evidence and propensity evidence in the manner I have already described.
It is necessary then, pursuant to s 31A(2)(b), to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question. In doing so, I 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.
The risk of unfairness in this case is essentially the same as I discussed in dealing with the common law admissibility of the evidence and the discretion to exclude. It is the risk that the jury will uncritically overvalue the evidence and impermissibly reason that simply because the accused engaged in conduct involving damage to the complainant's car (if they accept he did), or in aggressive and threatening behaviour towards the complainant during a telephone call on 1 April 2015 (if they accept the evidence about that call), he must be guilty of the offences charged in counts 4 and 5. In my opinion, such a risk can be adequately neutralised by the standard direction to the jury explaining the use to which the evidence could be put, as I have outlined above, and that the prior conduct could not, by itself, prove the case against the accused in respect of counts 4 and 5. The jury would be directed that they would need to critically analyse the whole of the evidence, of which the disputed evidence, if they accept it, is only a part, and could only convict if satisfied beyond reasonable doubt that the accused did the acts constituting the offences. Those directions would be reinforced by the usual direction that the jury must not allow sympathy or prejudice to affect their judgment.
Of course, the accused's submission about the prejudice attaching to the alleged threat to kill or cause personal harm applies in this context also. It was submitted in effect that the degree of risk of an unfair trial arising from that evidence is so significant that a fair-minded person would not think that the public interest in adducing all relevant evidence, accepting the evidence is relevant in the manner I have described, must have priority over that risk. With respect, I disagree.
In my opinion, reasonable members of the general community having a fair understanding of all the relevant circumstances and informing themselves of at least the most basic considerations relevant to reaching the conclusion contemplated by s 31A(2)(b) would regard the evidence of the telephone call, including the threat, as important to a proper understanding of the accused's commission of the burglary and arson offences on 2 April 2015 and his intention in sending the texts after that, if they accept he sent the texts. They would regard it as being in the public interest for a jury to have a complete picture of the accused's behaviour and attitude towards the complainant at a time that was still relatively proximate to the incident on 22 April 2015, when assessing the likelihood that it was the accused who committed the offences on that date. In my opinion, such members of the community would consider that the risk of an unfair trial would be adequately mitigated by appropriate directions about the proper use of the evidence, so that the public interest in adducing the evidence should have priority over that risk.
Those conclusions apply also to the evidence of the events surrounding the causing of damage to Mr Grose's car. That evidence provides context for the telephone call and explains what might otherwise be thought to be a cryptic reference during that call to 'what happened to' Mr Grose's car.
I am satisfied, therefore, that the probative value of the disputed 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.
Conclusion
For the reasons I have given, the State may adduce the evidence in respect of counts 1 to 3 and the disputed evidence at the trial of the accused in respect of counts 4 and 5 on the indictment.
My decision in respect of the disputed evidence is based, of course, on the contents of the witnesses' statements on the brief and the assumption that evidence will be given in accordance with those statements.
Non-publication
These reasons may not be published until the conclusion of the proceedings on indictment, except to the parties and only for the purposes of those proceeding.
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