The State of Western Australia v Krishna
[2014] WADC 2
•15 JANUARY 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KRISHNA [2014] WADC 2
CORAM: BOWDEN DCJ
HEARD: 14 JANUARY 2014
DELIVERED : 15 JANUARY 2014
FILE NO/S: IND 989 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JOSHUA KRISHNA
Catchwords:
Application for leave to call propensity/relationship evidence - Accused charged with offence allegedly committed in 2009 - Proposed relationship/propensity evidence relates to convictions for drug offences occurring 13 years before the charged offence
Legislation:
Evidence Act 1906
Result:
Leave to admit propensity/relationship evidence granted
Representation:
Counsel:
State of Western Australia : Ms C Aynsley
Accused: Mr L Margaretic
Solicitors:
State of Western Australia : State Director of Public Prosecutions
Accused: Luka Anthony Margaretic
Case(s) referred to in judgment(s):
AJ v The State of Western Australia [2007] WASCA 228
AJE v The State of Western Australia [2012] WASCA 185
Asplin v The State of Western Australia [2013] WASCA 72
Bennett v The State of Western Australia [2012] WASCA 70
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia (2005) 31 WAR 122
KRM v The Queen (2001) 206 CLR 221
Mansell v The State of Western Australia [2009] WASCA 140
Preston v The State of Western Australia [2012] WASCA 64
SJX v The State of Western Australia [2010] WASCA 243
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) 213 A Crim R 226
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Osborne [2007] WASCA 183
Zammit v The State of Western Australia [2007] WASCA 66
BOWDEN DCJ:
Indictment
The accused is charged with supplying a prohibited drug, namely methylamphetamine to another on 26 October 2009.
The State alleges that on that date he went to a vehicle, removed a plastic shopping bag which contained approximately 778 grams of methylamphetamine and handed it to an associate.
To convict the accused the state will need to satisfy the jury beyond reasonable doubt that the accused was aware the bag contained a prohibited drug when he handed it to the associate.
The propensity evidence
On 12 December 1996 the accused collected a package from a courier business believing that it contained 2,000 LSD trips sent to him from New South Wales. Unknown to the accused, the drugs had been intercepted by the police and removed. The accused admitted he believed the package contained LSD and that he intended to deliver them to another for financial reward.
Subsequently, the accused's residence was searched and 168 LSD trips, 15 ecstasy tablets and approximately 50 grams of methylamphetamine and 168 grams of cannabis were located (the 1996 incident).
On 28 January 1997 he pleaded guilty to one count of attempting to possess a prohibited drug (LSD) with intent to sell or supply it to another and four counts of possession of a prohibited drug with intent to sell or supply it to another (LSD, MDMA, methylamphetamine and cannabis)
The State wishes to lead evidence of those convictions.
The State's submissions
The State says that the 1996 incident has 'significant probative value within the meaning of s 31A(2)(a) of the Evidence Act 1906 because the evidence shows the accused has a tendency:
(a)to deal with prohibited drugs including methylamphetamine;
(b)to possess drugs with an intent to supply them to others; and
(c)to do so in relation to significant quantities of prohibited drugs.
The Defence submission
The defence points to the different nature of conduct alleged in the 2009 incident, whereby the accused is alleged to have supplied a prohibited drug, and the 1996 incidents where the accused either possessed drugs with an intention to sell or supply it to another or went to collect the package containing drugs from a courier business.
Further, the defence rely on the 13 year time gap between the 1996 incidents and the 2009 incidents.
The defence say that the combination of the different nature of the 2009 incident and the 1996 incident and the efluxion of time mean that the 1996 incidents cannot be said to have significant probative value and even if it did, there is a high degree of risk of an unfair trial, such that a fair‑minded person would think the public interest in adducing all relevant evidence would not take priority over the risk of an unfair trial.
Section 31A of the Evidence Act
For evidence to be admitted pursuant to s 31A of the Evidence Act the evidence must be:
(1)relationship and/or propensity evidence;
(2)have significant probative value; and
(3)the probative value of the evidence compared to the degree of risk an unfair trial must be 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.
Is it propensity evidence?
The Evidence Act defines propensity evidence, inter alia, as 'other evidence of the conduct of the accused'.
This definition is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
The proposed evidence is evidence of the conduct of the accused and is clearly propensity evidence.
Is the evidence of significant probative value?
To be of probative value, the evidence must be evidence that 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings and explain a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P).
To have significant probative value, the evidence must be more than merely relevant, it must be evidence that is probative value is important or of consequences, and evidence that rationally affects, directly or indirectly, the assessment of probability of a relevant fact in issue to a significant extent: Dair (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194 (Miller & Buss JJA); Stubley v The State of Western Australia [2011] HCA 7 [11].
The probative value of the evidence may 'lie in the fact that it discloses some feature which raises as a matter of common sense and experience the objective improbability of its bearing any explanation consistent with the accused's innocence'.
In determining whether the evidence has significant probative value the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) 213 A Crim R 226 [35].
The accused has made no formal admission in relation to any fact in issue at the trial and absent such admission, the State is entitled to present its case on the basis that all facts are in dispute.
Mr Margaretic advised the court that the accused's position was that he had driven a work motor vehicle to the library where he was studying. One of his work associates rang and asked him to return the car as there was something the associate wished to retrieve from the car. The accused declined to return the car and was then advised by the associate that somebody would come to the library to obtain the parcel. When that person arrived, the accused gave the associate the package not knowing that it contained drugs.
The essential question in this trial is whether the accused knew the parcel contained methyl amphetamine when he handed it to his associate.
As in Preston v The State of Western Australia [2012] WASCA 64 the clear implication of the accused's defence will be that he had no connection with the methylamphetamine located in the parcel he handed to his associate. In Prestonthe court said the fact that the appellant had previously, albeit 10 years before, possessed with an intention to sell or supply a considerable quantity of methylamphetamine was relevant to the jury's assessment of his defence. The court said that to deprive the jury of this knowledge would have left them with a misapprehension on its part as to the appellant's connection with methylamphetamine.
It is for a jury to decide whether evidence is to be accepted, and if so, what weight to give it. In assessing whether the evidence has significant prohibitive value, the evidence is to be taken at its highest from the prosecutions perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: AJ v The State of Western Australia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; The State of Western Australia v Atherton [2009] WASCA 148.
The time gap is a factor to be considered. Sometimes a large time gap will lead to the evidence lacking the required nexus, other times it will not. The probative value of the evidence must be considered in all of the circumstances of the case and will depend on a variety of circumstances which cannot be exhaustively defined: Bennett v The State of Western Australia [2012] WASCA 70 [33] and [36] (Martin CJ). In SJX v The State of Western Australia [2010] WASCA 243 Propensity evidence was admitted consisting of offences occurring some 22 years previously. In Preston the time gap was 10 years.
Evidence can have significant probative value even though the acts are not identical or similar to the charged acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66], Onekawa [50] ‑ [55].
Clearly, there are differences in the circumstances between the offending in 1996 and the alleged offending in 2009. However, the 1996 offending is clearly capable of showing a tendency by the accused to be involved in drug dealing and establishing that tendency does have significant probative in considering whether he was drug dealing as alleged in 2009.
I am also conscious that the accused was 18 at the time of the commission of the 1996 offences, however it seems to me that the evidence does has significant probative value because it is important evidence for a jury to consider, in determining whether they are satisfied beyond reasonable doubt that the accused knew that the parcel contained methylamphetamine when he handed it to his associate. The evidence does make it more likely that the accused had that knowledge and is important evidence for the state to lead to rebut any assertion by the accused of an innocent association with the parcel.
Is the probative value compared to the degree of risk of an unfair trial such that a fair-minded person would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial?
Section 31A requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial. The risk of an unfair trial is not one which should be downplayed: Preston.
The weighing process in s 31A(2)(b) requires weighing incommensurable matters, and making an assessment of what a hypothetical fair-minded person would think and not what the presiding judicial officer would think: Asplin v The State of Western Australia [32].
There is no common law discretion to exclude evidence that satisfies the s 31A criteria, on the grounds that its admission would be unfair or because its probative value is substantially outweighed by its prejudicial effect: Donaldson v The State of Western Australia (2005) 31 WAR 122 [140] (Roberts-Smith JA).
The introduction of propensity/tendency evidence is always likely to involve the risk of an unfair trial: Di Lena.
The unfairness does not mean the increased ability of the prosecution to prove their case by asking a jury to draw rational inferences. However, it does include a two-fold risk that firstly, it may have an adverse effect on the juries perception of the accused and they may reason that they can convict the accused because he behaved in the way alleged in the propensity evidence and therefore he must have committed the offences alleged, and secondly, it also encompasses the risk that the jury will decide the case on an improper or irrational basis rather than a logical one connected with the issues, and particularly that they may put more weight than is logically justified on the propensity evidence or be overwhelmed by it: Tasmania v Martin (No 2) [63]; Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts‑Smith JA).
However, a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65] (Steytler P); Mansell v The State of Western Australia [2009] WASCA 140 [49] (Martin CJ).
In almost all cases the risk can be overcome by an appropriate direction to the jury about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA); Mansell.
Fair‑minded people are 'members of the public who are not lawyers, who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all relevant circumstances': Dair (Steytler P) [66].
For a jury not to be been informed that some 13 years before the alleged offence the accused person was in possession of drugs with intent to sell or supply and attempted to possess another drug with intent to sell or supply would lead the jury to consider the states proposition that the accused association with the parcel was not innocent without full knowledge of the accused's prior involvement with illicit drugs and in those circumstance, I consider fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I grant leave to the State to lead the proposed evidence.
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