The State of Western Australia v La Bianca - [2017] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LA BIANCA [2017] WADC 113

CORAM: O'NEAL DCJ

HEARD: 21 AUGUST 2017

DELIVERED : 25 AUGUST 2017

FILE NO/S: IND 455 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ANTHONY LA BIANCA

Catchwords:

Criminal law application in respect of propensity evidence - Proper construction of s 31A of the Evidence Act 1906 - Turns on own facts

Legislation:

Evidence Act 1906 s 31A

Result:

Application allowed

Representation:

Counsel:

Applicant: Mr E A McClintock
Respondent: Mr A G Elliott & Mr F P Merenda

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Legal Pathways

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

KRM v The Queen (2001) 206 CLR 221
La Bianca v The Queen [2003] WASCA 195
Noto v The State of Western Australia [2006] WASCA 278
RMD v The State of Western Australia [2017] WASCA 70

O'NEAL DCJ: The accused (respondent) is charged jointly with Angelos Papadopoulos with possession of a prohibited drug, namely methylamphetamine with intent to sell or supply it to another. The offences are alleged to have occurred on 9 July 2016 at Joondalup.
The matter is listed for trial in November of this year.
By an application dated 7 June 2017 the State applies pursuant to s 31A of the Evidence Act1906 for an order that at the trial of this matter the State be permitted to lead evidence of the conduct of Mr La Bianca on two prior occasions. That conduct, which I will refer to in more detail in a few moments, resulted in Mr La Bianca being convicted of offences against s 6(1) of the Misuse of Drugs Act 1981 in the District Court at Perth on 1 November 2002 and then again on 29 October 2009.
There is now a well-established line of jurisprudence with respect to s 31A. Inevitably, resolution of questions of the kind raised here, require the application of that authority, to the particular facts and the circumstances of an individual case.

Background

Regrettably, the material filed here in respect of the facts and the circumstances of this case, does not provide the assistance that the court is entitled to expect. I will however set out the facts as best they can be known at present, based on what is contained in the material filed by the parties and undisputed matters that I was told of from the bar table.
The offence alleged in the current indictment is summarised by the statement of material facts contained in the prosecution brief. In summary, at around 4.40 pm on Saturday 9 July 2016 Mr La Bianca and Mr Papadopoulos were the sole occupants of a Toyota LandCruiser. Mr La Bianca was driving. Mr Papadopoulos was in the front passenger seat. This vehicle was subjected to a traffic stop and it was later searched by police on the Mitchell Freeway south bound in Joondalup.
The LandCruiser was not registered. Neither Mr Papadopoulos nor Mr La Bianca was the owner of the vehicle. Mr La Bianca was not licensed to drive a motor vehicle. How Mr La Bianca came to be driving that particular vehicle is a matter of some mystery that is not assisted by a statement provided by the registered owner.
The search revealed what has been described as a 'green environmental' shopping bag. The green environmental bag was in plain view on the floor of the front passenger seat footwell. Within the green bag was a clear plastic bag containing 595 g of methylamphetamine with a purity ranging between 80 and 88%.
The police officer who began the search of the LandCruiser observed the green environmental bag in its original position on the footwell floor. The top of the bag was open. This officer has said 'I could clearly observe a plastic package approximately 30 cm x 20 cm within the green bag containing a large quantity of crystal material which I suspect was methamphetamine'. The significance of this evidence in my view is that if it is to be suggested that Mr Papadopoulos was the owner, or had the immediate physical custody of the green environmental bag and its contents, no effort had been made by him to attempt to conceal the contents of the bag from someone else sitting in the LandCruiser.
The police officer who conducted the search of the Toyota has said that Mr La Bianca, prior to the search, declared that there was approximately $3,000 in Australian currency in a green coloured satchel bag near the centre console of the vehicle.
Police in fact found slightly more than $5,000 in cash in total in the vehicle, a small clipseal bag containing about 1.69 g of methylamphetamine and mobile phones. I was not provided with any specific information as to where these items were found.
There is evidence that establishes that Mr La Bianca and Mr Papadopoulos had been together for at least an hour and a half prior to being stopped by police. That includes CCTV footage taken at a local TAB and a betting slip from the TAB. The betting slip is time marked at 15:41, or 3.41 pm. The CCTV footage shows both Mr La Bianca and Mr Papadopoulos at a time closer to 3 o'clock. Neither of them can be seen carrying anything.
Submissions filed on behalf of Mr La Bianca refer to these additional facts:
•The co‑accused Angelo Papadopoulos, with whom Mr La Bianca had spent a number of hours, remained in the front passenger seat of the vehicle. During that time (presumably the number of hours) the two had visited the Currambine TAB and the homes of certain friends.
•The methylamphetamine found in the green shopping bag was observed to be between the legs of Mr Papadopoulos on the floor of the front passenger seat footwell when police first noticed the presence of the bag.
•When forensically examined, a mixed DNA profile which matched the profile of Mr Papadopoulos was found on the outside surface of the bag and handles. Mr La Bianca was excluded as a contributor to that sample.

The prior convictions

The application brought by the State refers to two prior convictions that it wishes to rely on.
The first is an offence committed in June 1999. I was not provided with any sentencing remarks in respect of this offence. There is however the decision of the Court of Appeal (La Bianca v The Queen [2003] WASCA 195) in respect of an appeal of sentence. It is from that decision that I take the facts with respect to this offending.
1The applicant was charged on indictment with one offence of possession of methylamphetamine with intent to sell or supply it to another. He was originally charged with one Agostino, who was acquitted after trial. The indictment contained counts against others. One Stapleton was charged with the supply of methylamphetamine and men by the name of Sutton and Sokol were charged with conspiracy to possess the drug with intent to sell or supply. Both Stapleton and Sutton entered late pleas of guilty. Sokol went to trial and was convicted. The offences were all related and were centred around events which occurred on 18 June 1999.
2All four offenders were sentenced at the same time. The applicant and Stapleton were each sentenced to 9 years imprisonment with eligibility for parole. In the applicant's case the sentence was backdated to 23 May 2002. Sutton was already serving a 9 year term for a related offence and he was sentenced to 4 years cumulative, with parole, for the conspiracy. Sokol was also serving a sentence of 8-1/2 years’ imprisonment and for his role in the conspiracy he was sentenced to 3 years cumulative with parole eligibility.
…
9This was a business enterprise. Sutton was to be the ultimate distributor of the methylamphetamine. He sought to acquire it through the assistance of the applicant. Sokol was described by her Honour as an assistant and a colleague in Sutton's business, hence his somewhat reduced sentence. The applicant was to be the middle man. It was he who contacted Stapleton to obtain the drug in the eastern states and supply it to the applicant, which he did. The effective surveillance enabled the applicant to be arrested in a car in possession of the drug, contained in a vacuum-sealed bag in a thermos flask in the boot. There were 437 grams of 58 per cent pure methylamphetamine – a large quantity of a high degree of purity. In its present state it was worth about $40,000. As can be seen, when it was cut to the expected degree of purity of between 3 and 5 per cent, a substantial quantity of the drug could be introduced into the community. There can be no doubt that the strength of the Crown case, having regard to the nature of the evidence available, would have been well-known to the applicant as the matter proceeded through the Court of Petty Sessions, at least by the time of his committal for trial.
Mr La Bianca was also charged that on 20 September 2001, at Rivervale he attempted to possess a quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. This offence did not form part of the original application by the State because it was somehow overlooked. I assume that now that it has been discovered, and evidence of it is available, it will inevitably be sought to be relied on.
The facts with respect to this offending can be gleaned from the sentencing reasons of Williams DCJ on 1 November 2002. This offence was committed while Mr La Bianca was on bail for the first offence that I have referred to. These facts are taken from the sentencing reasons of Williams DCJ:
On 20 September 2001 a man arrived at the Perth airport. Police officers had cause to suspect that he was a drug courier. He was searched and he was found to be in possession of 849 grams of methylamphetamine of 53% purity. That person agreed to continue with the transaction. The drug was replaced with something else. That was the reason that Mr La Bianca was charged with an attempt to possess and not actual possession.
The courier attended at a motor lodge in Rivervale. The next morning Mr La Bianca attended on the courier. Police officers then executed a search warrant and Mr La Bianca was found to be in possession of the package that should have contained 849 grams of methylamphetamine.
For the first offence Mr La Bianca received a sentence of 9 years. For this second offence, having regard to time spent in custody, Williams DCJ imposed a further 3 years cumulative upon the 9 years.
The next conviction sought to be relied on in the application as propensity evidence came on 29 October 2009. On that date, Mr La Bianca was convicted of possession with intent to sell or supply a prohibited drug methylamphetamine. That offence occurred on 30 December 2008 at Scarborough. I take these facts from the sentencing reasons of Mazza DCJ on 29 October 2009:
On 30 December 2008 Mr La Bianca was in a hotel room at a hotel in Scarborough. About 3 o'clock on that date police entered the room with a search warrant under the Misuse of Drugs Act. Mr La Bianca was in the room with four other people.
Police conducted a search and found, among other things belonging to Mr La Bianca, a black Adidas shaving bag and inside the bag was a Glad clipseal bag that contained 8.16 g of methylamphetamine which was 7% pure.
This particular offending occurred while the accused was on parole in respect of the 12 year cumulative term I have previously referred to. For this offending Mazza DCJ sentenced Mr La Bianca to 2 years imprisonment. Of course Mr La Bianca's parole was breached by this offending. The net consequence, I was told from the bar table, was that Mr La Bianca was finally released from prison in mid‑2013.
One of the unsatisfactory aspects of this application is that a reading of the transcript of the sentencing before Mazza DCJ reveals that in addition to the three offences I have just described suggests that there are at least two other convictions in New South Wales. As appears at page 202 of that transcript, one involves an offence on 12 April 1999 of being knowingly concerned with the supply of a commercial quantity, some 693 g, of heroin. A further offence on 6 May 1999 involved the supply of a commercial quantity of what is described as methylamphetamine, but may in fact have been MDMA. The quantity was 2,610 tablets amounting to some 636 g. Both of these offences brought substantial sentences.
For the purpose of this application however I will proceed on the basis that it is the Western Australian offences that the wishes to rely on, in particular the two referred to in the application.

The law

Section 31A provides as follows:
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.
It is difficult to avoid referring to the 2002 conviction before Williams DCJ in discussing these issues. It introduces a degree of artificiality to not do so. It is not possible to see how or why the 2001 offence conviction should be treated differently from the 1999 and 2008 offences. For the moment however I will deal with the matter as it arises on the application.
Counsel for the respondent properly concedes that evidence relating to the Western Australian convictions that I have referred to would amount to propensity evidence within the meaning of s 31A. The two or three offences would in my view constitute propensity evidence within the meaning of s 31A of the Evidence Act 1906.
The next question that I have to determine is whether evidence of the facts relating to the circumstances of the prior offending would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
Whether it could or does have probative value depends of course on what will be in issue on the trial of the charge in the current indictment.
The State case is that the accused either jointly possessed these drugs with Mr Papadopoulos, or that he aided Mr Papadopoulos in his possession of the drugs.
Counsel for the respondent informs me, understandably perhaps in all of the circumstances, that 'the issue in the trial will be knowledge of the presence of drugs in the vehicle. An absence of knowledge negates both possession and aiding'.
The submission on behalf of the respondent is that the propensity evidence is not even relevant to the matter of knowledge, much less 'significantly probative' of it. This assertion that, absent the propensity evidence, the State case against the accused was so weak as to not even reach the standard of a prima facie case, was a theme that was frequently returned to in the course of the respondent’s submissions. Given the facts that I have already referred to, including the movements of the two men in the hours prior to the police stop, the presence of this substantial amount of methylamphetamine in the vehicle within arm's reach of the accused, and the absence of any attempt at disguise or concealment of the contents of the green environmental bag, it might be regarded as courageous to suggest that a properly instructed jury could not reach the conclusion that the accused man knew of the methylamphetamine in the green environmental bag, and possessed it in one of the ways alleged by the State.
The principles relevant to s 31A were conveniently summarised recently in RMD v The State of Western Australia [2017] WASCA 70 (Beech JA) [185].
(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.

Consideration

In considering whether Mr La Bianca knew of the presence of the methylamphetamine in the footwell of the vehicle he was driving, it is a relevant fact that Mr La Bianca has a prior association with methylamphetamine, as revealed by the conduct leading to his convictions. The evidence has probative force because it could rationally affect, inferentially, the assessment of the probability that Mr La Bianca knew of the existence of the substantial quantity of methylamphetamine within arm's reach in the vehicle he was driving. When regard is had to the fact that he has a conviction (or two) for his involvement in an organised effort to distribute a substantial quantity of methylamphetamine the probative force becomes even greater. The fact that there are two (or three) such convictions, admittedly one for a relatively modest amount, but each involving the same drug, each with an intention to sell or supply, result in the evidence of the prior convictions having significant probative value. In my view the jury would be entirely justified in inferring that, given his background as revealed by the conduct leading to the convictions, it is objectively improbable that Mr La Bianca did not know of the presence of methylamphetamine in the LandCruiser.
A matter raised in the respondent's written submissions is the question of the time that has elapsed in the 1999 offending to the allegation in the current indictment. Of course a significant passage of time between a prior conviction and a current allegation may well detract from the probative force that would otherwise arise from the prior conviction. That would be particularly so for example in the case of someone who was a very young offender at the time of the original conviction. In this case, the fact of the elapsed time between the June 1999 offence and that alleged in the current indictment might, at first blush, seem to diminish the force to be attributed to the conduct leading to the 1999 conviction.

Once it is appreciated that for a very substantial portion of the intervening time Mr La Bianca was in prison, and on parole when the third offence was committed, the significance of the passage of time can be seen to have little significance. If consideration is given to the fact another offence involving a substantial volume of methylamphetamine was committed in 2002, while Mr La Bianca was on bail for the first offence, the passage of time from 1999 to July 2016 can be seen to be of little significance in the assessment of probative value. What the prior convictions reveal is that Mr La Bianca was a man who has been involved in the organised distribution of a very substantial quantity (or of very substantial quantities) of methylamphetamine and that he is not deterred either by the fact that he was on parole or on bail.
The two offences relied on in the application are together significantly probative of knowledge of the drugs in the LandCruiser. The three prior offences reveal a deeply entrenched criminality relating to this specific kind of offending.
I do not accept a criticism made by counsel for the respondent that the 'propensity evidence to be adduced is of a highly general nature' or 'pitched' at a high level of generality. The respondent has by virtue of the prior convictions shown himself to be somebody who has been willing to involve himself in the distribution of a dangerous drug and at a level that on one (or two) occasions demonstrates that he has connections far beyond those commonly seen in prosecutions in this court.
The nature of drug trafficking is such that it will be rare for there to be anything particularly distinctive about the methods of drug traffickers. What is relevant here as revealed by the prior convictions is Mr La Bianca's willingness to persist with this kind of offending seemingly regardless of the consequences. This evidence can properly be said to demonstrate a tendency or propensity that he has or had.
Next, I need to consider whether the probative value of the evidence of prior convictions is such, compared to the degree of risk of an unfair trial, 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 respondent makes two submissions in this respect. First it is argued that 'the accused would be placed in the unenviable position of having to prove to the jury, notwithstanding the limited evidence in this matter associating him with the drugs, that his prior disposition was not a relevant matter at the time of the offending. Notwithstanding the general difficulty of proving such a contention, it is doubtful whether that 'smear of bad character could be neutralised by any evidence deployed for that purpose, regardless of the possibility that it might be true'.
Next, the respondent argues that there is
a real risk in the context of this case that the jury would put aside the evidential issues with the State's case and simply decide that the respondent is guilty due to his prior record for possessing drugs with intent to sell or supply. To that extent, there is a real risk that the evidence would take upon a level of importance extraneous to the limited evidence to be adduced against the respondent at trial, notwithstanding the incapacity of the evidence to render the allegation that the respondent possessed or aided in possessing the drugs 'more probable than not.
Dealing with the last reference to the notion that the propensity evidence lacks the capacity to make the allegation that Mr La Bianca possessed or aided in possessing the drugs 'more probable than not', that assertion misstates the proper construction of s 31A. It does arise from any orthodox construction of s 31A(2)(a).
Next, the idea that the State case absent the propensity evidence is a weak one is not borne out, when proper regard is had to all of the evidence of circumstances available to the State.
Third, the manner in which it is suggested the accused will be asked to approach issues at trial bears no resemblance to the real matters of burden and proof upon which juries are repeatedly instructed in the course of a trial.
Fourth, these submissions appear to overlook the very purpose for which s 31A was enacted. The whole point of s 31A is to allow a jury to have evidence of character, or reputation, or tendency or attitude or prior conduct of an accused person, in circumstances that the common law would not have allowed. The legislature has determined that where someone has demonstrated a prior criminality that bears on a matter in issue such that it can be characterised as having 'significant probative value', then the subject to the matters set out in s 31A(2)(b), a jury should be allowed to have regard to that evidence.
In this case, where a jury is going to be asked to infer that Mr La Bianca had knowledge of the methylamphetamine in the LandCruiser he was driving, in my view fair‑minded people would be taken aback at the idea that Mr La Bianca's history of possession with intent to sell or supply methylamphetamine would be kept from them.
The risk of impermissible reasoning is of course contemplated by s 31A(2)(b). That subsection requires a balancing of potential risk against the other matter described.
It is well established by authority that, in conducting the balancing exercise required by s 31A(2)(b), the court is entitled to have regard to directions likely to be given at trial with respect to the use of that particular evidence. Notwithstanding those authorities, the respondent urges that I have regard to certain recommendations of the Australian Law Reform Commission (ALRC).
The ALRC recommended that the Standing Committee of the Attorney General should 'initiate an inquiry into the operation of the jury system, including such matters as … warnings and directions to juries': ALRC, Uniform Evidence Law, Report No 102, 2006, [18.1] – [18.17].
That recommendation was based on some studies that were referred to, which were summarised in the respondent's submissions as follows,
•Whilst jurors were conscientious in their attempts to do so, they had difficulties with understanding or following particular types of directions, particularly those which were difficult or counterintuitive to common sense …
•Numerous studies indicated that directions to disregard inadmissible evidence or limit the use of evidence (like in the case of directions as to propensity evidence) were less likely to be effective, or in certain cases could be counterproductive …
I note that the words in parentheses 'like in the case of directions as to propensity evidence' are in fact a gloss added in the respondent's submissions and do not appear in the text of the ALRC report at [18.12].
Any trial judge who deals with juries would understand the concern that, in some cases, particular directions are not as helpful as they should be. In this State, the topic of ‘self-defence' readily springs to mind. But most directions and warnings that judges are required to give juries are relatively straight forward and easily understood, or should be.
There are some authorities (see for example KRM v The Queen (2001) 206 CLR 221, 235 (McHugh J); Noto v The State of Western Australia [2006] WASCA 278 [28] (McLure JA)) that provide that where evidence is admitted and relied on at trial as propensity evidence, a propensity warning is not in fact required. As McHugh J put it in KRM v The Queen:
And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted.
It may well be that the propensity evidence cases where no warning or limiting direction at all need be given are properly confined to those cases where the act or acts said to show a propensity are close in time or near contemporaneous with the acts charged. In any event, it is common in this court, when prior convictions are relied on as propensity evidence, to warn the jury against any process of 'automatic reasoning'. That is, juries are warned that they should not automatically reason from the fact that the accused has been convicted of an earlier offence that he is therefore necessarily guilty of the offence charged on the indictment. The use of the evidence for the purposes of inferential reasoning is invariably explained. Neither of these directions is complicated or difficult to understand.
The fact that the ALRC has made those recommendations, based on certain studies brought to its attention, does not detract from the common experience of this court. Juries routinely and properly adhere to the directions of law they are given. In the case of directions of the kind I have described here, there is no reason to doubt that a jury would apply them.
In my view the risk of a jury engaging in impermissible reasoning because of the evidence of the prior convictions here is negligible, particularly having regard to the inevitability of a warning against 'automatic reasoning'.
It follows that in my view the evidence of the prior convictions set out in the application is admissible and I so rule.