The State of Western Australia v Keen
[2016] WASC 126
•22 APRIL 2016
THE STATE OF WESTERN AUSTRALIA -v- KEEN [2016] WASC 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 126 | |
| 22/04/2016 | |||
| Case No: | INS:342/2015 | 15 APRIL 2016 | |
| Coram: | FIANNACA J | 15/04/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA TOBY JAMES KEEN |
Catchwords: | Criminal law and procedure Application to adduce propensity evidence Arson Prior conviction Similar fact Public interest in adducing all relevant evidence |
Legislation: | Criminal Code (WA), s 444 Evidence Act 1906 (WA), s 31A |
Case References: | 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 LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 Preston v The State of Western Australia [2012] WASCA 64 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
TOBY JAMES KEEN
Defence
Catchwords:
Criminal law and procedure - Application to adduce propensity evidence - Arson - Prior conviction - Similar fact - Public interest in adducing all relevant evidence
Legislation:
Criminal Code (WA), s 444
Evidence Act 1906 (WA), s 31A
Result:
Application allowed
Category: B
Representation:
Counsel:
Prosecution : Ms K I Goddard-Borger
Defence : Mr M D Cuomo
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Legal Aid (WA)
Case(s) referred to in judgment(s):
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
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
Preston v The State of Western Australia [2012] WASCA 64
- FIANNACA J:
(This judgment was delivered extemporaneously on 15 April 2016 and has been edited from the transcript.)
Introduction
1 The accused is charged on indictment with one count of criminal destruction by fire under s 444 of the Criminal Code (WA), an offence commonly referred to as arson. Specifically, he is alleged to have wilfully and unlawfully destroyed bush. The offence is alleged to have occurred on or about 9 July 2015 at a train station in Kelmscott. The accused has pleaded not guilty and the trial has been listed on a preliminary basis to commence on 18 July 2016.
2 The State has applied for an order that it be permitted, pursuant to s 31A of the Evidence Act 1906 (WA), to lead evidence of the conduct of the accused concerning offences of criminal damage by fire and trespass, which occurred on 3 July 2015 at the same train station in Kelmscott. The accused was convicted of those offences in the Supreme Court in Perth on his pleas of guilty on 14 December 2015. They were contained on indictment 247 of 2015. The State submits that the evidence of the conduct the subject of those convictions is admissible as propensity evidence.
The prosecution case
3 I have read the prosecution brief of evidence and have been provided with further information about the prosecution case during the hearing.
4 The case against the accused on the present indictment is that at about 11.55 pm on 9 July 2015 he was at the Challis Train Station in Kelmscott, and that, as he was leaving the train station, he used an unknown source of ignition to set fire to a large bush that was adjacent to the Railway Avenue entrance to the station.
5 The fire was seen by two police officers at about 12.05 am as they were driving south along Railway Avenue. It was extinguished soon after by one of those officers. A railway official then drew the attention of the police officers to a CCTV video recording that had been made shortly before the fire was seen. It was from CCTV cameras showing the platform at the train station. The accused had been captured by those cameras. I have not viewed the recording, although I have seen stills taken from it.
6 It is accepted on behalf of the accused that he is the person shown on the footage. The parties agree that the video shows the following.
7 The accused walks onto the platform from the direction of the only point of access, and then remains on the platform for a period of about 40 seconds. He then leaves the platform in the same direction from which he had come, that is towards the entrance, which was the only point of access. There were no trains running at that time. No one else is seen on the platform.
8 The fire that was seen and extinguished by the police officers was next to the access walkway by which the accused left the station.
9 The accused was subsequently interviewed by police on video. He admitted being at the train station on the night of 9 July 2015 and identified himself in a still image from the CCTV footage. However, he denied that he lit the fire, and suggested it must have started by magic.
10 The principal issue at trial will be whether the accused lit the fire. As no formal admission has been made at this stage, another issue at trial may be whether the accused wilfully destroyed the bush; that is, whether he wilfully lit the fire.
Prior offending
11 The evidence that is proposed to be adduced of the offences on 3 July 2015 would be presented by an agreed statement of facts.
12 The essence of those facts is that at 10.52 pm on 3 July 2015, the accused was at the Challis Train Station on the platform when he dropped something onto the tracks. He jumped down onto the tracks to retrieve the item. That was the subject of the trespass charge. He then got back onto the platform and eventually lit a fire inside a metal rubbish bin that was mounted to the platform, gathering material from a nearby garden bed to put into the bin until flames could be seen to come out of the bin. The accused then lay down against the dividing fence, put his arm under the fence and lit a grass tree on fire. The grass tree became engulfed with large flames. Two minutes later, at about 11.10 pm, the accused pushed the emergency contact button at the train station to alert staff to the fire.
13 During the hearing of the application, I was informed that the State will also rely on the fact that the accused was captured on CCTV on that occasion, and that the jury will be asked to infer that the accused knew that the platform was under CCTV surveillance, and that this time he chose to light the bush in an area that was not under surveillance. It may be necessary for the State to tender the CCTV footage of 3 July 2015 if it is permitted to adduce the evidence of the conduct on that night. If so, that will be a matter for further consideration.
The relevant principles
14 Section 31A of the Evidence Act prescribes the circumstances under which the court may admit propensity evidence. Propensity evidence is defined in section 31A(1) as meaning:
(a) similar fact evidence or other evidence of the conduct of the accused; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.
15 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 guilty must have priority over the risk of an unfair trial.
(Section 31A(3) is not relevant for the purposes of this application.)
16 It is admitted on behalf of the accused that the evidence of his conduct on 3 July 2015, the subject of the earlier convictions, is propensity evidence and that it has significant probative value, as required by s 31A(2)(a). The accused's argument is that the evidence should not be admitted because the fair-minded people test in s 31A(2)(b) is not satisfied.
Significant probative value
17 The concession in respect section of s 31A(2)(a) is properly made, having regard to the principles outlined in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 (Steytler P), and subsequently in Preston v The State of Western Australia [2012] WASCA 64 and LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178. The evidence of the previous conduct is evidence that I consider would rationally affect, in combination with other evidence, the assessment of the probability of the existence of facts in issue, namely, whether the accused lit the fire on 9 July 2015 and whether he did so wilfully. It would affect that assessment in a significant way, that is, in a manner that is important or of consequence. That is because the evidence:
(1) demonstrates that the accused had at the relevant time a tendency to deliberately light fires at Challis station, and
(2) is similar fact evidence in terms of the time of night at which the fires were lit, and the fact that one of the fires involved setting alight a bush that was on the road side of the fence at the station.
18 The other evidence to which I have referred, which must be considered in combination with the propensity evidence, is the CCTV footage showing the accused on the station platform on 9 July 2015, walking in a direction consistent with leaving the train station at a time very proximate to when the bush near the Railway Avenue entrance was seen to be on fire, together with the accused's admission that he was at the train station that night and that he is the person in the still image. The fact that there was no train running and that the accused remained on the platform for a very short period of time are both matters that should also be taken into account.
Fair minded person test
19 The question then is whether the fair-minded person test is satisfied. The effect of s 31A(2)(b) was explained by Buss JA in LFG [291], by reference to points made by Steytler P in Dair:
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 I adopt also the opinion expressed by Roberts-Smith JA in Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, about the meaning of 'the risk of an unfair trial' in s 31A(2)(b). His Honour said:
The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative value 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 [127].
21 In APC v The State of Western Australia [2012] WASCA 159, Pullin JA made the following observations which provide further guidance as to what constitutes the risk of an unfair trial:
The risk of an unfair trial when propensity 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 [15].
22 I note that some of the examples referred to in Dair [63] by Steytler P, such as revulsion stemming from the nature of the prior offending, or the potential for confusion, are not relevant to the circumstances of the present case. 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.
The State's submissions
23 The State submits that fair minded people will think that it is in the public interest for the propensity evidence in this case to be adduced despite its risks. It submits that to leave the jury in ignorance of the accused's 'markedly similar prior conduct' would deprive them of the proper context in which the accused is alleged to have committed the offence on the indictment.
24 It further submits that the risk of an unfair trial can be neutralised by directions, including the direction that the propensity evidence could not, by itself, prove the case against the accused.
The accused's submission
25 The accused submits that, if the evidence is admitted, the risk is that the jury will place undue weight on the prior convictions and reach a conclusion of guilt based on that evidence rather than evaluating the evidence in respect of the present charge. He submits that the jury is likely to take a very harsh view of the accused on the basis of those convictions, and that their consideration of the direct evidence in the trial will be compromised.
26 He submits further that the very nexus in time and place, and the similarity of the conduct, is likely to result in the jury giving undue weight to the propensity evidence, in effect, to be blinded by that evidence and be distracted from whether the circumstantial evidence establishes that he lit the fire.
27 Finally, he submits that directions from the trial judge would not be sufficient to displace the 'prejudiced view' of the accused that is likely to be formed, and that, notwithstanding any direction that will be given, the jury would have the prior convictions uppermost in its mind.
28 I disagree. The law has long placed reliance on the capacity of a jury to be faithful to a trial judge's directions, and it must be assumed the jury will do so in this case. Of course, the authorities to which I have referred recognise that sometimes a jury might uncritically overvalue the probative effect of propensity evidence and fail to confine the use of the evidence to a process of dispassionate, logical reasoning. The assessment of whether that is likely to occur depends on the particular circumstances of the case, and ultimately it is a matter of comparing the probative value of the evidence to the degree of risk of an unfair trial. Where the probative value is objectively high, it is less likely that a jury will overvalue the probative effect of the evidence.
Conclusion
29 In my opinion, assessed objectively, the probative value of the propensity evidence in the present case is high. The accused demonstrated, less than a week before the offence of 9 July 2015 is alleged to have occurred, a preparedness to light fires at the very train station where a fire was lit that night. Further, he demonstrated a more specific preparedness to set alight bush immediately adjacent to the station. The proximity of time, the correlation of place, and the similarity of conduct would, in combination, be significant factors in a jury's assessment of whether the accused, who was at the train station a matter of minutes before the fire was discovered, was responsible for this arson on 9 July 2015.
30 There is a strong public interest in ensuring that the jury has, as part of the circumstantial evidence on which it can assess the probability of whether the accused lit the fire on 9 July 2015 and whether he did so wilfully, not only the evidence that establishes that a fire was lit and that the accused was at the train station, but also evidence that may be relevant to the accused's state of mind. The propensity evidence is relevant in that way. It provides significant further context for the jury's assessment of the facts in issue. Without the evidence the jury would not have the complete picture.
31 If it were to be suggested that the accused was coincidentally at the Challis Train Station for an innocent purpose at a time proximate to when someone else lit the fire in the bush, a jury would be entitled to conclude, in light of the propensity evidence, that such an explanation is not tenable as a matter of human experience: see Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, where Dixon CJ referred to putting 'an incredible strain on human experience' (243). That is to say, the propensity evidence tends to establish the objective improbability of such a coincidence.
32 Whether the jury is satisfied beyond reasonable doubt that it was not a coincidence, and that the accused was responsible for the fire with the relevant state of mind, will obviously depend on its assessment of all the evidence. That will include consideration of the likelihood of the accused committing the offence after he had already been apprehended and charged with the arson on 3 July 2015. It will also include a consideration of whether the accused, knowing that he was captured on CCTV on 3 July 2015, would then commit this offence on 9 July 2015. Although, as the State has submitted, it would wish to rely on his knowledge that the platform was under surveillance to persuade the jury that the accused chose a location to light the fire on this occasion that was not under surveillance.
33 In any event, these are matters for the jury to consider in assessing the likelihood that the accused would light the fire on this occasion.
34 Notwithstanding that the evidence of the prior offence may give rise to competing considerations, the evidence is relevant and, in my opinion, for the reasons I have outlined, the public interest in adducing all relevant evidence must take priority over the risk of an unfair trial.
35 That risk can be guarded against, in my view, by directions that explain to the jury the manner in which the evidence can be used, and which instruct the jury that it could not find the accused guilty on the basis solely of the propensity evidence.
36 Accordingly, the State will be permitted to adduce the evidence.
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