The State of Western Australia v JHN - [2021] WASCA 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JHN [2021] WASCA 225
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   3 DECEMBER 2021
DELIVERED          :   3 DECEMBER 2021
PUBLISHED           :   26 MAY 2022
FILE NO/S:   CACR 174 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JHN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 516 of 2020

Catchwords:

Criminal law - State appeal against an order for the separate trial of two counts on an indictment - Section 26(1)(a) of the Criminal Appeals Act 2004 (WA) - Whether evidence on each count cross-admissible on the other count as propensity evidence - Section 31A of the Evidence Act 1906 (WA) - Whether severance of the counts on the indictment required to ensure that the respondent receives a fair trial - Section 133(3)(a) of the Criminal Procedure Act 2004 (WA) - Whether the appeal was an invalid attempt by the State to seek review of the primary judge's decision as to the admission of evidence under s 31A of the Evidence Act cloaked as an appeal against the severance order made under s 133(3)(a) of the Criminal Procedure Act - Whether the primary judge erred in deciding that the evidence the subject of each count was not admissible in the trial of the other count - Whether the primary judge's exercise of the power conferred by s 133(3)(a) of the Criminal Procedure Act miscarried

Legislation:

Criminal Appeals Act 2004 (WA), s 26
Criminal Code (WA), s 563A(1)
Criminal Procedure Act 2004 (WA), s 85, s 133, cl 2(3), cl 7 and cl 9(1) of sch 1
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal granted
Appeal allowed
Primary judge's order for severance of the counts on the indictment set aside
Respondent's application for severance in the District Court dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr L M Fox SC & Mr A C Ebell
Respondent	:	Ms J Condon QC & Mr R Kashyap

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	AP Legal Criminal Lawyers Pty Ltd

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

CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Dass v The State of Western Australia [2021] WASCA 212
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
La Bianca v The State of Western Australia [2019] WASCA 105
Lilley v The State of Western Australia [2019] WASCA 164
R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Micalizzi [2010] WASCA 147

REASONS OF THE COURT:

The State has appealed to this court pursuant to s 26(1)(a) of the Criminal Appeals Act 2004 (WA).
The respondent has been charged on indictment with two counts.
Count 1 alleges that on 2 April 2018, at Morley, the respondent dealt with money that was the proceeds of an offence, contrary to s 563A(1)(a) of the Criminal Code (WA) (the Code).
Count 2 alleges that on 28 February 2019, at Seville Grove, the respondent possessed money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Code.
The respondent has pleaded not guilty to the charges. A trial of the respondent was listed to begin on 6 December 2021.
On 28 September 2021, the respondent made an application, pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA) (the CP Act), for an order that count 1 on the indictment be severed and tried separately from count 2.
On 18 November 2021, Gillan DCJ heard the respondent's application. At the conclusion of the hearing her Honour reserved her decision. On 24 November 2021, her Honour gave oral reasons for decision and made the order for severance sought by the respondent in his application.
On 25 November 2021, the State filed its appeal notice. The hearing of the appeal was expedited. On 3 December 2021, the appeal was heard.
At the conclusion of the hearing this court made the following orders:
(1)leave to appeal granted;
(2)appeal allowed;
(3)the order of Gillan DCJ made on 24 November 2021 that count 1 on the indictment be severed and tried separately from count 2 is set aside; and
(4)the respondent's application for severance dated 28 September 2021 in the District Court is dismissed.
At the conclusion of the hearing, we gave brief reasons for making those orders. We said that detailed reasons for judgment would be published at a later date. These are our detailed reasons.

The State's case as to the facts and circumstances of the charged offences

The facts and circumstances of the charged offences, as alleged by the State, are as follows.
On 3 January 2018, police commenced an investigation into a criminal network that was involved in sophisticated drug trafficking and money laundering.
The initial focus of the investigation was RO. During the investigation the respondent was identified as an associate of RO.
RO's cousin, TP, lived at residential premises in Morley (the Morley property). RO used the Morley property as a safe house from which to conduct his drug trafficking and related activities.
TP has cooperated with police. He has provided a detailed written statement to police and is a willing witness for the State. TP's statement outlines his involvement with methylamphetamine, including how he obtained that drug from RO.
TP has a prior criminal record. In 2009, he was convicted on his plea of guilty of possession of a prohibited drug with intent to sell or supply. TP was sentenced to 2 years 6 months' immediate imprisonment. He was released from prison on 29 January 2012.
In 2018, TP was convicted on his plea of guilty that on 2 April 2018 he possessed money that was the proceeds of an offence (being the same money as in count 1 on the indictment against the respondent), contrary to s 417(1) of the Code. On 20 December 2018, TP was sentenced to a suspended term of imprisonment.
TP will give evidence to the effect that RO asked him whether he could use a rear shed at the Morley property to 'meet people'. TP was present on several occasions when RO met with people in the shed. RO and the people with whom he met would have discussions at some distance from TP. Although TP did not know these people, he was aware that most of them had nicknames.
The State alleges that the respondent was a member of the criminal network and that he acted as a courier in connection with the collection, safekeeping and delivery of cash on behalf of the network.
As to count 1, the State's case is that on 2 April 2018 RO attended at the Morley property and asked TP whether one of his friends could visit the property.
CCTV footage seized by police on 4 April 2018, when police executed a search warrant at the Morley property, reveals that:
(a)On 2 April 2018, at about 5.27 pm, a white Mercedes vehicle driven by RO arrived at the Morley property.
(b)On 2 April 2018, at about 5.41 pm, a black Infiniti vehicle driven by the respondent arrived at the Morley property.
(c)Both vehicles were parked next to each other at the rear of the Morley property. TP and the respondent shook hands outside their vehicles. A female passenger in the black Infiniti vehicle remained inside the vehicle.
(d)Next, the respondent removed an item from the passenger side of the black Infiniti vehicle and walked into the shed. The nature of the item is not apparent. RO was in the shed. The respondent walked into the shed. The door to the shed was then closed.
(e)Later, the respondent left the shed and returned to the black Infiniti vehicle without the item. RO waved goodbye to the respondent. The respondent departed from the Morley property in the black Infiniti vehicle.
(f)RO and TP entered the shed. After a period, RO and TP left the shed and went into the house on the Morley property. Later, RO departed from the Morley property in the white Mercedes vehicle.
As we have mentioned, on 4 April 2018 police executed a search warrant at the Morley property. Police located $188,000 cash in a bag under a burgundy Holden Commodore vehicle that was parked in the shed, as well as the CCTV footage.
TP will give evidence to the effect that on 2 April 2018 he saw the respondent remove a bag from the black Infiniti vehicle. TP saw the bag a few minutes later on a bench in the shed. TP will assert that, on the basis of the outline of the bag, he believed the bag contained money.
Immediately before police executed the search warrant at the Morley property on 4 April 2018, CCTV footage at the Morley property revealed that on 4 April 2018 a man known as 'Striker' visited the property. The CCTV footage of Striker's visit does not depict any item being delivered to or taken from the property. TP's recollection of the visit by Striker is as follows:
(a)When Striker arrived at the Morley property he told TP that he could not contact RO and asked TP to contact RO.
(b)TP telephoned RO and told him that Striker was at the Morley property.
(c)After completing that call, TP and Striker went inside the house and smoked some methylamphetamine.
(d)About 40 minutes later, RO arrived and went into the shed with Striker while TP remained inside the house.
(e)After some time, RO told TP that RO and Striker were leaving the property. Both of them departed.
(f)About 10 minutes later, police arrived at the Morley property and located the $188,000 cash in the bag under the burgundy Holden Commodore vehicle parked in the shed, as well as two BlackBerry mobile telephones that had been left by Striker.
The State will also adduce evidence to the effect that:
(a)At all material times, RO was involved in the distribution of methylamphetamine.
(b)Between 12 March 2018 and 10 April 2018, the respondent hired a black Infiniti vehicle from a motor vehicle rental business, even though he had access during that period to another vehicle. The other vehicle was registered in his name.
(c)CCTV footage at the Morley property shows that between the respondent departing from the Morley property on 2 April 2018 and Striker arriving at the Morley property on 4 April 2018 no person went into the shed. Striker was stopped by police shortly after he left the Morley property. Police searched Striker and found nothing of relevance.
(d)The respondent's taxation records show that in the three‑year period between 2016 and 2018 his total declared taxable income was less than $150,000; in the 2019 taxation year his declared taxable income was about $106,000; and between 2016 and 2019 his total declared taxable income was about $250,000.
Further, the State will adduce expert evidence which explains the manner in which illicit drug dealing is carried on in Western Australia, including evidence to the effect that the illicit drug trade involves the use of safe houses and large amounts of cash.
The State alleges that the cash the subject of count 1 and count 2 was the proceeds of an offence; probably the sale of illicit drugs.
The State's case in relation to count 1 is that the only reasonable inference open in the circumstances is that:
(a)the bag which (on TP's evidence) the respondent removed from the black Infiniti vehicle and placed on the bench in the shed on 2 April 2018 was the bag which police located on 4 April 2018; and
(b)the $188,000 cash found by police in the bag on 4 April 2018 was in the bag when the respondent removed the bag from the black Infiniti vehicle and placed the bag on the bench in the shed.
As to count 2, on 28 February 2019 (that is, about 10 months after the occurrence of count 1) police executed a search warrant at residential premises in Seville Grove. The respondent lived at that address. During the search, police located a shoe box containing $300,200 cash. The box was concealed within an ottoman sofa in the rear living area of the premises. The cash was packaged in 27 bundles, secured with elastic bands. The majority of the bundles contained $10,000 cash each. A separate larger bundle was wrapped in a black garbage bag with a yellow note affixed and '$26000' written on the note. The respondent's fingerprints were located on a Coles brand bag that contained the shoe box. Police also located clothing allegedly worn by the respondent on 2 April 2018 at the Morley property, prohibited drugs (namely anabolic steroids) and electronic devices. The respondent was interviewed by police in relation to those items. He admitted ownership of the clothing, the prohibited drugs and the electronic devices, but made no comment in relation to the cash.
The State contends that its evidence in relation to each count is admissible as propensity evidence in relation to the other count, pursuant to s 31A of the Evidence Act 1906 (WA).
The State asserts that its evidence in relation to count 1 has significant probative value in relation to count 2, and vice versa.
The alleged propensity of the respondent is a tendency to deal with, or to be in possession of, large sums of cash which are not explicable by available income records and which are inferentially the proceeds of an offence.
The State asserts that the fact that in count 1 the respondent is charged with 'dealing' with money whereas in count 2 the respondent is charged with 'possessing' money is of no importance in determining whether the evidence has significant probative value.
The State will bear the burden of proving all of the elements of each of the charged offences.
The facts that will be in issue in relation to count 1 include:
(a)Is it the respondent who alights from the black Infiniti vehicle?
(b)If the jury is satisfied that the respondent alighted and removed a bag from the black Infiniti vehicle and took the bag into the shed on 2 April 2018, was that the bag containing the $188,000 cash which police found on 4 April 2018?
(c)Is TP's evidence truthful and reliable in relation to the respondent's delivery of the bag?
(d)If the jury is satisfied that the respondent did deliver a bag, was the $188,000 cash in the bag when the respondent delivered the bag or was the cash put in the bag later?
(e)If the jury is satisfied that the respondent did deliver a bag containing $188,000 cash, was that money the proceeds of an offence?
On the State's case, the fact that the respondent was in legal possession of $300,200 cash about 10 months later could rationally affect to a significant degree the jury's assessment of the probability of one or more of the facts in issue specified at [35] above.
For example, if the jury were to find that the respondent did deliver $188,000 cash on 2 April 2018, the jury might not be willing to discount as a reasonable possibility that it was cash which the respondent had saved or accumulated through legitimate endeavours. The jury may, however, consider that hypothesis to be significantly less likely if the jury were to find that about 10 months later the respondent was in possession of an additional $300,200 cash.
The facts that will be in issue in relation to count 2 include:
(a)Did the respondent have legal possession of the $300,200 cash?
(b)If so, was that money the proceeds of an offence?
On the State's case, the fact that the respondent was in possession of $188,000 cash about 10 months earlier, which he delivered to premises used by a known drug dealer (RO) as a safe house from which to conduct his drug trafficking and related activities, could rationally affect to a significant degree the jury's assessment of the probability of one or more of the facts in issue specified at [38] above.
The State contends that the evidence which is directly relevant to count 1 is capable of negativing an innocent association between the respondent and the $300,200 cash located by police when they searched the respondent's home on 28 February 2019.
For example, if the jury were required to consider the evidence directly relevant to count 2 in isolation, the jury might not be willing to discount as a reasonable possibility that the respondent had saved or accumulated the $300,200 cash through legitimate endeavours. The jury may, however, consider that hypothesis to be significantly less likely if the jury were to find that, about 10 months earlier, the respondent had delivered $188,000 cash to premises used by a known drug dealer (RO) as a safe house from which to conduct his drug trafficking and related activities.
Similarly, by way of example, in considering count 2, the jury will be required to assess whether the respondent had knowledge of the $300,200 located by police when they searched the respondent's home on 28 February 2019 or whether that cash may have been concealed within the ottoman sofa by another person without the respondent's knowledge. The jury may consider that the possibility that the respondent did not have knowledge of the $300,200 is significantly diminished if the jury were to find that, about 10 months earlier, the respondent had delivered $188,000 cash to premises used by a known drug dealer (RO) as a safe house from which to conduct his drug trafficking and related activities.
On the State's case, whether or not its evidence in relation to count 1 does or does not negative an innocent association between the respondent and the cash the subject of count 2, and vice versa, is a matter for the jury. It would be artificial if the evidence adduced in relation to count 1 and the evidence adduced in relation to count 2 were to be considered in isolation or a vacuum by two separate juries. Consistent with the nature of circumstantial evidence and the directions that will be given to the jury in relation to the assessment of the evidence, any doubts that the jury may have in relation to one piece of evidence may be resolved by consideration of another piece of evidence.
The State contends that, in the circumstances, the public interest favours the adducing of evidence in relation to both counts at a single trial.
The State asserts that any impermissible prejudice arising from the joint trial of count 1 and count 2 can be guarded against satisfactorily by the trial judge's directions.
Accordingly, a fair-minded person would conclude that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

The statutory provisions with respect to joinder and severance

Section 85(1) of the CP Act provides that sch 1 to the Act has effect in relation to indictments and charges in them.
Clause 2(3) of sch 1 provides, relevantly, that an indictment must contain one charge only, unless cl 7 or another written law permits otherwise.
Clause 7(1) provides, relevantly, that an indictment may charge two or more offences as alternatives to one another. By cl 7(2), relevantly, unless two or more charges are expressly said by an indictment to be alternatives to one another, they are not.
Clause 7(3) provides, relevantly:
[An] indictment may charge one or more persons with 2 or more offences if the offences ‑
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.

Clause 9(1) of sch 1 provides, relevantly and in effect, that if two or more charges are properly joined in an indictment those charges must be tried together unless a court orders otherwise under the CP Act.
Section 133(3)(a) of the CP Act provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of an indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
By s 133(5), relevantly:

In deciding whether to make an order under subsection (3) … in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if ‑
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,

as the case requires.

Section 26(1) of the Criminal Appeals Act provides:
If an accused is charged in one indictment with 2 or more offences -
(a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the charges; and
(b)the accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges.
By s 26(7) of the Criminal Appeals Act, on an appeal against a decision to grant or to refuse a separate trial (as the case may be) this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.

The statutory provisions with respect to propensity evidence

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.
(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.

The primary judge's reasons

The primary judge said, in her reasons for decision, that 'if the State proves beyond a reasonable doubt either of the counts alleged against [the respondent] then some but not all of the evidence supporting that proven count of money laundering is capable of establishing a tendency on the part of [the respondent] within the meaning of the definition of propensity contained in s 31A [of the Evidence Act]' (ts 125).
Her Honour concluded that the State's evidence concerning count 2 would have significant probative value in the trial concerning count 1 (ts 126 ‑ 127). In particular, her Honour said that '[t]he facts established by the evidence underlying a conviction for count 2 would in my view meet the requirements of having significant probative value when taken together with the other evidence, including the evidence of [TP], the CCTV [footage] and the evidence of hiring the black Infiniti and the proposed expert evidence in supporting … the State case, on count 1 as to it being [the respondent] delivering the money' at the Morley property (ts 126 ‑ 127).
The primary judge was of the view that the State's case on count 2 is 'generally a comparatively weaker case' than the State's case on count 1 'given the lack of proximity both in time and location to the Morley [property] and [RO's] drug undertaking from that house' (ts 127). For that reason, her Honour concluded that 'the facts underlying a conviction on count 1 would be of even greater significant probative value when taken together with the other facts in supporting the State case on count 2' (ts 127). Her Honour elaborated:
(a)the place where the cash the subject of count 2 was found, combined with the respondent's fingerprint on the outside of the bag containing that cash, 'because [of] [the respondent's] previous involvement in dealing with a significant amount of money, the proceeds of the sale of illicit drugs, makes it more likely that it was [the respondent] rather than anyone else who lived in or had access to his house, who was in possession of the $300,200 secreted in the ottoman' (ts 127); and
(b)other facts supporting a conviction on count 1 'also make it more likely that [the cash] secreted in the ottoman [is] proceeds of crime because of the inherent unlikelihood of [the respondent] dealing in $188,000, which if [it] were found to be the sale of illicit drugs, and then only 10 months later being in possession of a further $300,200 by reason of legitimate means, that the facts underlying a conviction on count 1 add particular weight to the proof of [the cash] being from a criminal enterprise or offence' (ts 127 ‑ 128).
Her Honour made these observations about the relevance, for the purposes of the respondent's severance application, of her view that the State's case on count 2 was a 'comparatively weaker case' than the State's case on count 1:
In my view in circumstances where a conviction on either one of the other counts has already been secured, and the facts articulated for the purposes of say sentencing, in those circumstances it would be possible for a judge instructing a reasonable jury to craft a direction that makes it clear the purposes to which the evidence could be used, vis-à-vis the remaining count, and to ensure that a jury is properly instructed. So not just simply engaging in appropriate propensity reasoning, that if the accused has done it once, he must have done it again.
To put it another way, some of the facts capable of supporting a conviction on either count 1 or count 2 would be admissible as tendency evidence in the trial of the other count, prima facie, suggesting a sufficient nexus to establish that the two counts are properly joined on the indictment.
As I have said above, counsel for [the respondent] made the concession that if the evidence, the facts underlying the conviction, were admissible, then the severance action should not succeed. The problem with that is that it is far from certain to me that all of the evidence led [on] either … count would be admissible in respect to the other count.
Despite that concession I'm concerned that a significant prejudice will arise because of the relative strengths of the prosecution case on count 1 as compared with count 2. In particular in respect to count 1, if the evidence of [TP] as to the drug-related business being conducted by [RO] associated with the shed at the Morley [property] is accepted by the jury, there is a clear connection between the business of the sale of illicit drugs and that place where the dealing is said to have occurred.
That connection is not there in count 2. There is a very real risk that the jury will overestimate the cogency of the tendency evidence and that a single jury may act illogically by giving too much weight to the evidence of the conviction of the connection with the drug-related activities of [RO] in the Morley [property].
…
There is the further risk that when fine distinctions are sought to be drawn, that the jury might become confused or distracted as it concentrates on resolving whether [the respondent] actually committed the similar acts. …
In this case, because I'm not convinced that all of the evidence would be cross-admissible, it would be necessary for the trial judge to carefully tease out what evidence is admissible and able to be relied upon as tendency evidence, and the purposes for which it is and is not able to be used in a way that is different to the situation where a conviction had already been secured and the facts relevant to establish the tendency [are] settled on in advance (ts 128 - 129).
Although the primary judge stated that it was 'far from certain to [her Honour] that all of the evidence led [on each count] would be admissible in respect of the other count' (ts 129), her Honour did not identify the evidence in question.
Her Honour said that 'in an ordinary case a properly instructed jury is capable of distinguishing between evidence that is admissible in respect to one count but not admissible in respect to another', but there are cases in which 'the prejudice is so great that it cannot confidently be concluded that it would be overcome' (ts 130).
The primary judge was of the view that, in the present case, the counts on the indictment should be severed because 'the evidence in support of count 1 is considerably stronger than the evidence in support of count 2'; in particular, 'by reason of the connection with the Morley [property]'. Consequently, her Honour was of the view that 'proof of count 1 beyond reasonable doubt would provide substantially greater support in a circumstantial evidence [case] with respect to count 2 than in the alternative situation' (ts 130).
Her Honour sought to explain that conclusion as follows:
Where there is a disparity in the relevant strength of the prosecution case on each count, there is a prejudice to the accused in that a jury might overestimate the cogency of the tendency evidence or act illogically by giving too much weight to that evidence, might be distracted when being asked to determine if the accused has in fact committed those similar acts in respect to say count 1, the stronger count, and so too readily can conclude that count 2 is made out.
In my view the proven facts in respect to count 1 would have a relatively greater importance in the proof of count 2 which makes it much more difficult for any direction by any trial judge to draw a sufficient distinction between evidence supporting the two counts, the use to which it might be put and the use to which it not be put and about the appropriate process of reasoning.
Regardless of the two counts being properly joined on the indictment, it is the disparity in importance of the tendency or propensity evidence in the resolution of count 2 that in this case gives rise to, in my view, an impermissible prejudice (ts 130).
After delivering her reasons, the primary judge ordered that count 1 on the indictment be severed and tried separately from count 2.

The State's sole ground of appeal

The State's sole ground of appeal alleges that the primary judge erred in the exercise of her discretion under s 133(3)(a) of the CP Act by ordering that count 2 on the indictment be tried separately from count 1.

The respondent's objection to the competence of the appeal

Counsel for the respondent contended in her written submissions, as a threshold issue, that the appeal is incompetent because the appeal is, in essence, an appeal against 'a decision of the learned primary judge under s 31A of the Evidence Act'.
It was submitted that the right of appeal under s 26 of the Criminal Appeals Act is confined to decisions regarding s 133 of the CP Act. No right of appeal is conferred regarding decisions under s 31A of the Evidence Act.
According to counsel, although the State's sole ground of appeal alleges that the primary judge erred in the exercise of her discretion under s 133(3)(a) of the CP Act, the particulars of the ground reveal that the State is, in substance, endeavouring to impugn her Honour's conclusions in relation to the application of s 31A of the Evidence Act. Counsel asserted that the appeal is 'an invalid attempt to seek review of a decision [by her Honour] as to the admission of evidence under s 31A [of the Evidence Act], cloaked as an appeal against a severance order made under s 133(3)(a) of [the CP Act]'.
Counsel for the respondent referred to this statement by the prosecutor in his submissions to the primary judge:
If your Honour was to find that the evidence is not cross‑admissible by application of s 31A then we would effectively concede the severance application. We would run it through separate trials (ts 99).
The prosecutor then submitted to her Honour:
If [the evidence is not] cross‑admissible, [there is] no commonality of witnesses, [there is] no good reason to have two charges on the indictment, though the counterpoint to that is, of course, if the evidence is cross‑admissible then no prejudice is occasioned by the joinder and [there is] no … basis for severance (ts 99 - 100).
Counsel for the respondent contended that it was implicit in the prosecutor's concession before the primary judge that 'absent cross‑admissibility, joinder of these charges on the same indictment was simply not justified and [the respondent] was liable to be prejudiced by a joint trial'.
According to counsel, the State's reliance on cl 7(3)(a) of sch 1 to the CP Act as the foundation for joinder 'must be viewed in light of [the prosecutor's] subsequent concession'.
It was submitted that, absent cross‑admissibility of the evidence under s 31A, severance would be reasonable because there would be, in reality, no legitimate basis for joinder of the counts.
Counsel asserted that the issue 'sought to be agitated by the State [in the appeal] is not severance [per se] and the reasonableness or otherwise of [the primary judge's] decision under s 133 [of the CP Act]'. Rather, 'it is the correctness of [her Honour's] decision under s 31A of the Evidence Act'.
However, at the hearing of the appeal, counsel for the respondent, after debate with the court, abandoned the objection to the competence of the appeal (appeal ts 4).
Despite the abandonment, we will explain why counsel's objection in her written submissions is without merit.

The merits of the respondent's objection to the competence of the appeal

It is trite that appeals are creatures of statute. See Grierson v The King;[1] and Da Costa v Cockburn Salvage & Trading Pty Ltd.[2]
[1] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 ‑ 436 (Dixon J).
[2] Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192, 201 ‑ 202 (Windeyer J).
The nature and content of an appeal is determined by construing the terms of the particular statutory grant of the right of appeal. See CDJ v VAJ;[3] Elliott v The Queen;[4] and Dwyer v Calco Timbers Pty Ltd.[5]
[3] CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 [95] (McHugh, Gummow & Callinan JJ).
[4] Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 [7] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ).
[5] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 [2] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
It is also trite that appeals are ordinarily conferred in relation to the primary decision‑maker's judgment or orders and not in relation to the primary decision‑maker's reasons.
Section 26(1)(a) of the Criminal Appeals Act provides that if an accused is charged in one indictment with two or more offences, the prosecutor may appeal to this court against 'any order made by a judge of a superior court that there be a separate trial of any of the charges'.
In the present case, the primary judge ordered that count 1 on the indictment be severed and tried separately from count 2.
The State contended in its appeal notice that it applied for leave to appeal against the order as made by her Honour. The orders wanted by the State in the appeal are that the appeal be allowed and that '[t]he order of [her Honour] that count 1 be severed and tried separately from count 2 [be] set aside'.
As we have mentioned, the sole ground of appeal alleges that the primary judge erred in the exercise of her discretion under s 133(3)(a) of the CP Act by ordering that count 2 of the indictment be tried separately from count 1.
The particulars of the ground assert, relevantly, that:
(a)her Honour ought to have found that the admission of the evidence the subject of count 1 in the trial of count 2 satisfied the 'fair‑minded people' test as set out in s 31A(2)(b) of the Evidence Act, and vice versa, and her Honour ought also to have found that there could be no relevant prejudice from the joinder of the charges in circumstances where the evidence the subject of each charge is admissible on the other; and
(b)had her Honour correctly found in accordance with par (a), then it would not have been reasonably open to her Honour to have exercised her discretion under s 133(3) of the CP Act to sever the indictment.
The State's focus, in its particulars of the ground of appeal and in its written submissions, was upon the primary judge's reasons for making the order that count 1 on the indictment be severed and tried separately from count 2.
The fundamental proposition advanced by the State before her Honour and in the appeal is that if the evidence on each count in the indictment is cross‑admissible, then the counts are properly joined and there cannot be any relevant impermissible prejudice to the respondent from the joinder of the counts which cannot be overcome or guarded against by the trial judge's directions to the jury.
The State's fundamental proposition is supported by the nature of the prejudice with which s 133(3) of the CP Act is concerned. It is well established that the relevant prejudice, for the purposes of s 133(3), is prejudice arising from the counts being tried together. Any such prejudice can only arise from the jury hearing about other conduct that they would not hear about if the counts were dealt with in separate trials. So, in the present case, if the evidence on each count is cross‑admissible, the ordering of separate trials would achieve nothing and there would be no proper basis for claiming that the respondent would be unfairly prejudiced by a joint trial. See Dass v The State of Western Australia.[6]
[6] Dass v The State of Western Australia [2021] WASCA 212 [42] - [44] (Buss P, Beech JA & Hall J).
In the circumstances, whether the evidence in relation to count 1 is admissible in relation to count 2 and vice versa, pursuant to s 31A of the Evidence Act, was of central importance in determining the respondent's application for severance. If the evidence was cross‑admissible, pursuant to s 31A, then there would be no relevant impermissible prejudice to the respondent from the joint trial of the counts, and severance would be pointless, because if there were separate trials on count 1 and count 2 the jury in each separate trial would hear the propensity evidence.
It was therefore essential to resolve the issue of cross‑admissibility in the course of determining whether there should be severance or not. The decision on cross‑admissibility necessarily involved a consideration of the proper construction and application of s 31A having regard to the competing contentions of the State and the respondent; in particular, whether the test under each of the first and second limbs of s 31A(2) was satisfied.
In the circumstances, there is no merit in counsel for the respondent's assertion, in her written submissions, that the appeal is an invalid attempt to seek review of the primary judge's decision as to the admission of evidence under s 31A, cloaked as an appeal against the severance order made under s 133(3)(a).

The appeal is in form and substance an appeal within s 26(1)(a) of the Criminal Appeals Act against the severance order made by the primary judge.
The appeal is competent.

Counsel for the State's submissions on the ground of appeal

Counsel for the State submitted that the primary judge concluded, correctly, that the evidence the subject of each count in the indictment was propensity evidence and had significant probative value, in accordance with s 31A of the Evidence Act, in the trial of the other count.
It was submitted that her Honour appears to have found that:
(a)the evidence the subject of count 1 was not admissible in the trial concerning count 2 because of the application of the 'fair‑minded people' test in s 31A(2)(b) of the Evidence Act; or
(b)the evidence the subject of count 2 was not admissible in the trial concerning count 1 because of the application of the 'fair‑minded people' test as set out in s 31A(2)(b); or
(c)the charges were not properly joined because the respondent was likely to suffer prejudice in the trial in accordance with s 133(3)(a) of the CP Act; or
(d)a combination of the above.
Counsel contended that the primary judge ought to have found that:
(a)the admission of the evidence the subject of count 1 in the trial concerning count 2 satisfied the 'fair‑minded people' test as set out in s 31A(2)(b) of the Evidence Act, and vice versa; and
(b)there can be no relevant prejudice from the joinder of the charges in circumstances where the evidence the subject of each count was admissible on the other.
It was submitted that had her Honour correctly found in accordance with [96] above, then it would not have been reasonably open to her Honour to have exercised her discretion under s 133(3) of the CP Act to sever the indictment.

Counsel for the respondent's submissions on the ground of appeal

Counsel for the respondent noted that the elements of the charged offence in count 1 require that the State prove:
(a)identity;
(b)that the respondent engaged in a transaction involving the cash the subject of the count;
(c)that the cash was the proceeds of an offence; and
(d)that the respondent had knowledge that the cash was the proceeds of an offence.
Counsel submitted in relation to count 2 that the State must prove the same elements as in count 1, with the exception that on count 2 the State must prove that the respondent possessed the cash the subject of the count rather than that the respondent engaged in a transaction involving that cash.
Counsel noted that the State's case is that the cash the subject of count 1 and count 2 is probably the proceeds of the sale of illicit drugs. According to counsel, that aspect of the State's case impacts upon an assessment of the relative strength or otherwise of the evidence the State proposes to adduce in support of each count.
Counsel submitted that the State's case on count 1 is that the respondent was a courier of the cash and that the cash was probably the proceeds of the sale of illicit drugs. It was also submitted that, absent that evidence being admissible on count 2, the State has no evidence from which a jury could draw a reasonable and rational inference that the cash found in the ottoman was probably the proceeds of the sale of illicit drugs. That was, in essence, why the primary judge found that the State's case on count 2 was weaker than its case on count 1. According to counsel, her Honour was correct in making that finding.
Counsel contended that, apart from the mere existence of count 1, the State does not propose to adduce any evidence to establish a connection between count 1 and count 2.
Counsel argued in relation to count 1 that if the jury were to find that the respondent did in fact deliver the bag which contained the $188,000 cash, the jury would be entitled to take into account that the respondent delivered the cash to RO and that RO was known to TP as a person involved in illicit drug dealing, in considering whether the cash was the proceeds of an offence (probably the proceeds of the sale of illicit drugs). According to counsel, the 'live issue' in count 1 is 'really whether [the respondent] was in possession of the cash, as opposed to where the money came from'.
Counsel argued in relation to count 2 that the relevant issue for determination is 'whether the [$300,200 cash] is derived from an offence'; in particular, whether the cash is probably the proceeds of the sale of illicit drugs. Counsel submitted that the State is unable to call any evidence as to the origin of that cash. Indeed, the State is 'wholly reliant on inferences to be drawn from the amount of cash and the mode of its storage'.
As to the State's reliance on propensity reasoning to bolster its case on count 2, counsel contended that the State intends to use evidence of the respondent's association with RO on count 1 'to fill a gap' in the State's capacity to discharge its burden of proving that the respondent had knowledge that the cash the subject of count 2 was the proceeds of an offence; probably the sale of illicit drugs. According to counsel, that is why the evidence of the respondent's association with RO is liable to be misused by the jury.
Counsel accepted that the primary judge stated that it was 'far from certain to [her Honour] that all of the evidence led [on each count] would be admissible in respect of the other count' (ts 129), but her Honour did not identify the evidence in question. However, counsel referred to debate between counsel for the respondent and her Honour at the hearing of the severance application about whether the respondent's income tax returns would be admissible on count 1.
Counsel rejected any criticism of her Honour's reasons concerning whether the lack of cross‑admissibility in relation to the whole of the evidence was referrable to her Honour's consideration of the fair‑minded person test within s 31A or her Honour's consideration of the test of prejudice under s 133 of the CP Act. According to counsel, there is no doubt that her Honour understood the State's submission as requiring her Honour to assess the evidence primarily in the context of s 31A (which necessarily incorporates and requires a consideration of the fair‑minded person test).
Counsel contended that the primary judge's approach to the assessment of the fair‑minded person test was correct.
It was submitted that:
(a)her Honour found, correctly, that there was no connection between the alleged underlying unlawful activity in count 2 and the alleged underlying unlawful activity in count 1;
(b)her Honour found, correctly, that in the absence of a nexus between count 1 and count 2, the effect of the evidence relating to the alleged underlying illicit drug dealing the subject of count 1 was that the jury might overestimate the cogency of the tendency evidence or act illogically by giving too much weight to the tendency evidence; and
(c)it was open to her Honour to conclude that, given the difficulties in drawing a sufficient distinction between the evidence supporting count 1 and count 2 and the risk that the jury might overestimate the cogency of the tendency evidence or act illogically by giving too much weight to the tendency evidence, no direction by the trial judge would be able to cure any impermissible prejudice to the respondent.
Accordingly, so it was submitted, the State had failed to establish that the primary judge had erred in the exercise of her discretion in accordance with House v The King.[7]
[7] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).

The merits of the ground of appeal

It is convenient, first, to deal with the issue of the cross‑admissibility of the evidence.
In s 31A(1) of the Evidence Act, the term 'propensity evidence' is defined to mean:
(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.
Section 31A(2) states, relevantly, 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.
The principles governing the admission of propensity evidence, pursuant to s 31A, are well established.
In RMD v The State of Western Australia,[8] Beech JA summarised various principles, enunciated in the case law, that are relevant in determining whether propensity evidence has significant probative value within s 31A(2)(a), as follows:
[8] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also RMD [50] ‑ [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA); Lilley v The State of Western Australia [2019] WASCA 164 [59] (Buss P, Mazza & Beech JJA).
(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,[9] Buss P, Mitchell and Beech JJA made these observations concerning the determination of whether propensity evidence has significant probative value within s 31A(2)(a):
First, 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 to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, 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.
Thirdly, 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 (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, 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)
[9] The State of Western Australia v Jackson [2019] WASCA 118 [20] ‑ [23].
In Jackson [52] - [53], the court also said:
(a)An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.
(b)Whether propensity evidence has significant probative value depends upon the nature of the fact or facts in issue to which it is allegedly 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.
(c)If propensity evidence is allegedly relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be carried out separately in relation to each fact in issue.
(d)The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to assess the different value of propensity evidence in relation to different facts in issue in deciding whether, having regard to the nature and significance of those facts in issue, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, at the trial of the relevant offence or offences.
Some other points may be made:
(a)The question of whether propensity evidence has significant probative value can only have one correct answer, although reasonable minds may sometimes differ as to the answer. An appellate court must determine for itself whether propensity evidence possesses significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (A Pseudonym).[10]
(b)Propensity evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of the propensity evidence to support the credibility of a State witness's account of the charged acts. See RMD [52] (Buss P).
(c)The concept of propensity evidence and whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context; namely, the fact or facts in issue at the trial and the other evidence (including the other propensity evidence) adduced or to be adduced at the trial. See Lilley [61].
(d)Section 31A substantially altered the common law. Propensity evidence is admissible under s 31A if the court considers that the test under each of the first and second limbs of s 31A(2) is satisfied. See Dair v The State of Western Australia.[11]
[10] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[11] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [59] (Steytler P).
In Dair [62] ‑ [67], Steytler P made these comments about the comparison which s 31A(2)(b) requires. 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.[12]
[12] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
In Dair [63], Steytler P accepted the statement by G Flatman QC and Dr M Bagaric, 'Non‑similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 ALJ 190, 199, that possible sources of prejudice that might be occasioned by the admission of propensity evidence at a criminal trial include:
(a)the jury might believe that the accused is guilty merely because he was a person likely to do the charged acts;
(b)the jury might tend to condemn the accused, not because he or she is guilty of the charged offence, but because the accused has escaped punishment for other offences; and
(c)the jury might become confused or distracted from deciding whether the accused is guilty of the charged offence because of the jury's concentration upon resolving whether the accused committed the acts the subject of the propensity evidence.
In the present case, the State contends that, at all material times, the respondent had a tendency to deal with, or to be in possession of, large sums of cash which are not explicable by available income records and which are inferentially the proceeds of crime. That is the tendency which the State alleges the respondent had, at all material times, for the purposes of the definition of 'propensity evidence' in s 31A(1).
It is, of course, essential that the State prove, as an element of each count, that the cash in question was the proceeds of an offence. However, it is not essential that the State prove that the cash in question was the proceeds of the sale of illicit drugs. The State's case is that the cash the subject of each count was the proceeds of an offence; probably the sale of illicit drugs.
We are satisfied, having regard to the evidence which the State proposes to adduce in relation to the respondent's alleged tendency and taking the evidence at its highest from the perspective of the prosecution, that the evidence is capable of proving the alleged tendency.
In our opinion, if the jury is satisfied that:
(a)on 2 April 2018 the respondent alighted from the Infiniti vehicle at the Morley property; and
(b)on 2 April 2018 the respondent delivered a bag to RO at the Morley property,
then the evidence relating to count 2 has significant probative value in the trial of count 1 as follows.
First, if the jury is satisfied of the matters stated at [124] above, the evidence that on 28 February 2019 (that is, about 10 months after the alleged occurrence of count 1) police located the shoebox containing $300,200 cash concealed within the ottoman sofa at the respondent's home is (having regard to TP's evidence, the respondent's declared taxable income between 2016 and 2019 as revealed by his taxation returns, and the images recorded on the CCTV footage at the Morley property) significantly probative of the alleged fact that, when the respondent delivered the bag to RO (who, on TP's evidence, is a drug dealer), the bag contained the $188,000 cash found by police on 4 April 2018.

Secondly, if the jury is satisfied of the matters stated at [124] above and that, when the respondent delivered the bag to RO, the bag contained the $188,000 cash, the evidence that on 28 February 2019 (that is, about 10 months after the alleged occurrence of count 1) police located the shoebox containing $300,200 cash concealed within the ottoman sofa at the respondent's home is (having regard to TP's evidence, the respondent's declared taxable income between 2016 and 2019 as revealed by his taxation returns, and the images recorded on the CCTV footage at the Morley property) significantly probative of the alleged fact that the $188,000 cash was the proceeds of an offence (probably the sale of illicit drugs) and that the respondent had knowledge that the cash was the proceeds of an offence (probably the sale of illicit drugs).
In our opinion, if the jury is satisfied:
(a)of the matters stated at [124] above; and
(b)that, when the respondent delivered the bag to RO, the bag contained the $188,000 cash found by police on 4 April 2018,
then the evidence relating to count 1 has significant probative value in the trial of count 2 as follows.
First, the evidence that on 2 April 2018 (that is, about 10 months before the alleged occurrence of count 2) the respondent delivered to RO a bag containing $188,000 cash is (having regard to TP's evidence that RO is a drug dealer and to the respondent's declared taxable income between 2016 and 2019 as revealed by his taxation returns) significantly probative of the alleged fact that the respondent had legal possession of the $300,200 cash located by police on 28 February 2019 in the shoebox concealed within the ottoman sofa at the respondent's home.
Secondly, if the jury is satisfied that the respondent had legal possession of the $300,200 cash located by police on 28 February 2019 at the respondent's home, the evidence that the respondent delivered a bag to RO containing $188,000 cash on 2 April 2018 (that is, about 10 months before the alleged occurrence of count 2) is (having regard to TP's evidence that RO is a drug dealer and to the respondent's declared taxable income between 2016 and 2019 as revealed by his taxation returns) significantly probative of the alleged fact that the $300,200 cash was the proceeds of an offence (probably the sale of illicit drugs) and that the respondent had knowledge that the cash was the proceeds of an offence (probably the sale of illicit drugs).
Proof of the respondent's alleged tendency is significant or important, having regard to other evidence to be adduced by the State, in proving the alleged facts to which we have referred at [125], [126], [128] and [129] above. Proof of the respondent's alleged tendency increases, to an extent that is significant or important, the likelihood of the respondent having committed each of the charged offences.
The differences in time and location in relation to the alleged offending the subject of count 1 and the alleged offending the subject of count 2 do not preclude the conclusion that the evidence of the respondent's alleged tendency has significant probative value in proving the alleged facts to which we have referred at [125], [126], [128] and [129] above. Dealing in or possessing very substantial amounts of cash, having regard to the other evidence to be adduced by the State (in particular, the respondent's declared taxable income between 2016 and 2019 as revealed by his taxation returns), is a striking feature of the respondent's alleged tendency. That feature, having regard to other evidence to be adduced by the State, is capable of supporting an inference that the cash the subject of each count is the proceeds of an offence (probably the sale of illicit drugs) and not the product of legitimate, non‑criminal endeavours. The respondent's declared taxable income, as revealed by his income tax returns, is plainly relevant and admissible in relation to count 1 and count 2.
We are satisfied that appropriate directions by the trial judge will be sufficient to overcome or guard against any impermissible prejudice to the respondent arising from the cross‑admissibility of the evidence.
In particular:
(a)The jury will be instructed that the counts on the indictment are separate charges which require separate consideration and separate verdicts.
(b)The jury will be instructed that the verdict on one count does not need to be the same as the verdict on the other count.
(c)The jury will be instructed that no adverse inference may be drawn against the respondent arising from the indictment containing more than one count.
(d)The jury will be instructed as to the use which the jury may make (and must not make) of the propensity evidence adduced on each count.
(e)The jury will be instructed not to reason that the respondent is guilty of a count merely because the jury might form the view that he was a person likely to do the charged acts.
(f)The jury will be instructed that it is irrelevant to proof of the charged offences that the jury might form the view that the respondent has escaped punishment for other offences.
(g)The jury will be instructed that it must not convict the respondent of either of the counts unless the State has proved beyond reasonable doubt each of the legal and factual elements of the count the jury is considering.
In our opinion, the jury will be capable of performing the tasks referred to at [133] above in accordance with the trial judge's directions. For example, it is reasonable to expect that the jury will be capable of understanding the use which the jury may make (and must not make) of the propensity evidence adduced on each count and to evaluate and deal with the propensity evidence in accordance with the trial judge's directions. There is no reasonable possibility that the jury, properly directed, will overestimate the cogency of the propensity evidence. Also, there is no reasonable possibility that the jury, properly directed, may act illogically in its assessment of the propensity evidence or may fail to give appropriate weight to the propensity evidence. Further, there is no reasonable possibility that the jury, properly directed, may become confused or distracted by the trial judge's directions or may fail to give appropriate consideration to whether the respondent actually committed the charged offences as distinct from whether he merely committed acts which establish the alleged tendency. In addition, there is no reasonable possibility that the jury, properly directed, may misuse the propensity evidence because of any difference in the strength of the State's case on count 1 compared to count 2. No doubt, the trial judge will reflect upon whether the jury would be assisted by the provision of a written aide‑memoire.
In our opinion, the probative value of the propensity evidence relied upon by the State, 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 on each count must have priority over the risk of an unfair trial.
The circumstance that the State will seek to prove the respondent's alleged tendency by evidence to be adduced at the joint trial of the counts, as distinct from adducing evidence of facts underpinning a previous conviction, does not require the conclusion (either by itself or in combination with any of the other arguments put on behalf of the respondent) that the 'fair‑minded people' test as set out in s 31A(2)(b) is not satisfied.
The nature and extent of any connection or absence of connection between the alleged criminality and elements of the offence charged in count 1 and the alleged criminality and elements of the offence charged in count 2 does not require the conclusion (either by itself or in combination with any of the other arguments put on behalf of the respondent) that the 'fair-minded people' test as set out in s 31A(2)(b) is not satisfied.
The primary judge was in error in deciding that the evidence the subject of count 1 was not admissible in the trial concerning count 2, and vice versa.
The evidence the subject of each count is cross‑admissible in relation to the other count, pursuant to s 31A, in the manner and to the extent that we have explained.
The relevant legal principles relating to the exercise of the court's power under s 133 of the CP Act to order separate trials are well established. See, for example, The State of Western Australia v Bowen;[13] The State of Western Australia v Micalizzi;[14] and Russell v The State of Western Australia.[15]
[13] The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81.
[14] The State of Western Australia v Micalizzi [2010] WASCA 147.
[15] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326.
In the present case, it is unnecessary to make any observation about the differences of view expressed by Buss P in Bowen and McLure P in Micalizzi, on the one hand, and by Roberts‑Smith JA and Pullin JA in Bowen, on the other.
A consequence of the cross‑admissibility of the evidence is that there is no relevant impermissible prejudice to the respondent from the joint trial of count 1 and count 2 because if there were separate trials on count 1 and count 2 the jury in each separate trial would hear the propensity evidence. Severance is not required to ensure that the respondent receives a fair trial. As we have mentioned, appropriate directions by the trial judge will be sufficient to overcome or guard against any impermissible prejudice to the respondent arising from the cross‑admissibility of the evidence. Also, as we have mentioned, the jury will be capable of following and giving effect to those directions.
In the circumstances, it was not reasonably open to her Honour to exercise the power conferred by s 133(3)(a) of the CP Act and order that the respondent be tried separately on each of the counts. In particular, it was not reasonably open to her Honour to decide that any likelihood of the respondent being prejudiced by the joint trial of count 1 and count 2 could not be overcome or guarded against by directions to the jury.
The primary judge's exercise of the power conferred by s 133(3)(a) therefore miscarried.
Accordingly, for the reasons we have given, at the conclusion of the hearing of the appeal we made the orders specified at [9] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
26 MAY 2022