The State of Western Australia v Langdon - [2015] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LANGDON [2015] WASC 26

CORAM: SIMMONDS J

HEARD: 10 NOVEMBER 2014

DELIVERED : 14 NOVEMBER 2014

PUBLISHED : 27 JANUARY 2015

FILE NO/S: INS 54 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SOLOMON JABANUNGA LANGDON
Respondent

Catchwords:

Criminal law - Application to exclude evidence - Section 155 of the Criminal Investigation Act 2006 (WA) - Propensity evidence

Legislation:

Nil

Result:

Application not granted

Category: B

Representation:

Counsel:

Applicant: Ms A J Burrows
Respondent: Mr R F Owen

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)

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

Evans v The State of Western Australia [2010] WASCA 34
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
R v Etherington (1982) 32 SASR 230
R v Lobban [2000] SASC 48; (2000) 77 SASR 24
R v PAB [2008] 1 Qd R 184
T (a child) v The Queen (1998) 20 WAR 130
The State of Western Australia v Atherton [2009] WASCA 148
Upton v The State of Western Australia [2008] WASCA 54
SIMMONDS J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

Introduction

This matter came before me on 10 November 2014. These reasons will be suppressed until the conclusion of the trial or further order, unless both parties agree that the reasons should not be suppressed.
This is an application for directions for an upcoming trial. The trial is on indictment with a single charge of murder. It is alleged that the accused, on 5 February 2013, murdered the deceased, Flora Nelson, in Kununurra. I regret that it is necessary for me from time to time - but as little as I can arrange - to name the deceased. The defence applies for directions by an application dated 7 November 2014. They seek the following rulings:
(1)A ruling that the disputed edits in the Accused's Video Record of Interview dated 6 February 2013 commencing at 7.06am is inadmissible on the basis that:
i.The prejudicial effect of the evidence outweighs its probative value;
and further, or in the alternative
ii.It would be unfair to the accused to admit the evidence against him at his trial;
and further, or in the alternative
iii.It was evidence obtained in breach of section 138(2)(a) of Criminal Investigation Act ('the CIA') and is inadmissible pursuant to section 154 of the CIA.
(2)A ruling that the relationship evidence between the Accused and the deceased is inadmissible on the basis that:
i.The prejudicial effect of the evidence outweighs its probative value.
and further, or in the alternative
ii.It would be unfair to the accused to admit the evidence against him at his trial.
I heard this application on 10 November 2014, as I have indicated, and reserved judgment then for delivery today. Among other things, I took the opportunity thereby presented to me to watch the video record of interview in its latest edited form. I was invited to do so by counsel for the State. That form includes the 'disputed edits'. From this point on, I call the video record of interview the electronic record of interview (the EROI).
I am the presiding judge for the trial in this matter, listed to take place in Kununurra between 17 and 28 November 2014.
I should indicate at the outset that, for the following reasons, I would not make either of the rulings sought by the defence. I first set out my understanding of the prosecution case; I then describe the application in more detail so as to indicate what it relates to. Then, separately, for each of the two parts of the application, I consider the cases put to me by the parties and apply the relevant law.
I turn, then, to the prosecution case. On 5 February 2013, the accused had been drinking throughout the day. He returned to the home in Kununurra at which he had been staying. He became enraged when he could not find the deceased, his de facto partner of about five years. The accused's anger was manifested in altercations with a number of persons. He then went in search of the deceased and had an altercation with her before the two of them returned to their home. The deceased had also been drinking heavily that day.
At the home, at about 10.00 pm, the accused assaulted the deceased. He administered a number of severe blows to her face by punching and kicking her, and hitting her with a shovel. She became unconscious at some point in this process. The police and an ambulance arrived not long afterwards. The deceased was taken to hospital first in Kununurra and then in Darwin. She died in hospital in Darwin on 7 February 2013. The post‑mortem examination showed that the cause of death was blunt force head injury.
On 6 February 2013, the accused participated in an electronically recorded interview with detectives in Kununurra. He made extensive admissions in that interview, including to punching and kicking the deceased and hitting her with a shovel in the course of an altercation with her while they were both drunk. I turn, then, to the application.
At the hearing, the parties indicated that following the making of the application dated 7 November 2014 there had been further agreement and clarification between them. As a result, I understand the application to relate to the following.
As to number (1) in the application, the 'disputed edits' of the interview for which the defence seeks a ruling that they are inadmissible appear in the as presently edited ts 30 ‑ 33.
The objected to portions concern the accused's statements there and related questions as to his having tried to have sex with the deceased that night and her saying no. The portions, more specifically, are those for which the transcript references begin at ts 30 with:
A:Yeah. We were going to have sex ...
to page 32:
A:I had only sex with her on the Sunday.
Q:Mm.
A:That's all.
and page 32, beginning:
Q:No. A couple more. ... Um - you said that - ah - you were trying to have sex with her. ...
to page 33:
A:I'm not just do - but I don't do that for my own wife.
I call this material the objected to EROI material.
As to (2) on the application, the relationship evidence for which the defence seeks a ruling it is inadmissible is of two kinds. One kind is the evidence of one Betty Joelene Nelson as to the character of the relationship between the accused and the deceased, as she had witnessed it. The deceased was one of Betty Nelson's sisters.
Betty Nelson, in her witness statement in the prosecution brief, between pages 3 ‑ 9, describes the relationship in, broadly, the following terms. (I choose particular passages in order to indicate what it is that she says that is sought to be ruled inadmissible.) The accused was 'always jealous' (page 3, par 9) and 'would get mad if [the deceased] was sitting around talking even though it was with family members' (page 3, par 10). 'He didn't like her talking to other men' (page 4, par 11). They 'had a bad relationship' and he was a 'dangerous man' (page 5, par 20). He would sometimes 'use things to hit her with' (page 5, par 21). The accused and the deceased were 'good when they were sober' (page 6, par 35). They 'really only fought when they were drinking', but both were 'heavy drinkers' (page 4, par 36).
I note that not all of the matters in the witness statement of Ms Betty Nelson were objected to. I understand that matter in prosecution brief pages 7 ‑ 8, pars 44 ‑ 53 was not objected to. I leave that matter aside accordingly.
The other kind of relationship evidence is evidence of conduct of the accused in relation to, but not his convictions for, prior assaults upon the deceased documented in records from the Northern Territory in prosecution brief pages 313 ‑ 358. That conduct was described in an annexure to the State's submissions as follows:
Aggravated assault, Katherine CJS, CN20944203 (offence date 29/12/09)
l.On 29 December 2009 the accused was drinking beer with his cousins and the deceased. At about 10:00 pm, after they had finished drinking, the accused and the deceased returned to the Warlpiri Camp in Katherine.
2.The accused became jealous of the deceased over her cousins, brothers and sisters. The accused pushed the deceased to the ground and pinned her down by pushing his knee in her throat. He struck her twice to the mouth and twice to the nose using a closed fist. The deceased began to bleed from her nose.
3.The deceased freed herself and walked away. The accused followed her. When he caught up with her he threw her to the ground. The accused straddled the deceased and began to choke her around the neck using both of his hands.
4.Police officers arrived and found the accused on top of the deceased. The deceased was trying to fight him off. A police officer struck the accused's face using their forearm and ordered the accused to get off the deceased. The accused continued to choke the victim around the neck.
5.Police officer then struck the accused twice to the face using a closed fist. The accused released his grip on the deceased and she freed herself from underneath him.
Engage in conduct that contravenes DVO, Darwin CJS, 21043726 (offence date 31/12/10)
6.On 31 December 2010 the accused and the deceased were at Lot 369 in the Lajamanu Community. The accused became enraged at the deceased and started abusing her and their children. The deceased became upset and she hit the accused once to his head. He sustained a minor laceration on his head.
7.The accused picked up a frying pan and hit the deceased with the frying pan to the head. He did that three times. The deceased sustained three large lacerations to the top of her head. She received medical treatment, which comprised eight staples being placed into her head to close up the wounds.
8.The accused was breath tested by police. His blood alcohol concentration was .187 per cent.
Engage in conduct that contravenes DVO, Katherine CJS, CN21240357 (offence date 29/10/12)
9.On 29 October 2012 the accused was at the Bucking Bull Café in Katherine. The deceased entered the café and she and accused talked to each other. The accused told the deceased to walk with him back to the Warlpiri Camp.
10.Once at the camp, the accused picked up a stick from a fire. The accused struck the deceased with the stick twice in the left forearm, causing her pain and discomfort.
11.The deceased began to walk to the BP service station. The accused followed her and, when he caught up with her, he pushed her in the back causing her to fall over. The deceased landed on a large limestone, causing her further pain and discomfort.
I call these two kinds of evidence together the relationship evidence. I describe the first kind of relationship evidence as the objected to Betty Nelson evidence, and I call the second kind of relationship evidence the prior conduct evidence. I turn, now, to consider application parts (1) and (2) separately.
Turning to the objected to EROI material, counsel for the defence put to me that there are questions in the EROI, including some forming part of agreed edits, which indicate that the accused was an arrested suspect who had not been informed as to an offence that he was suspected of having committed.
He was entitled to be so informed under Criminal Investigation Act 2006 (WA), s 138. For the defence, it was said that as a result of that failure, the objected to EROI material, as evidence derived from a contravention of s 138, was inadmissible under s 154. As a consequence, the prosecution had the burden of showing me that I might nonetheless admit that evidence under s 155. Counsel for the defence submits that I should conclude that the prosecution has not discharged that burden.
Criminal Investigation Act s 138 provides so far as material as follows:
138.Arrested suspects, rights of
(1)...
(2)In addition to the rights in section 137 an arrested suspect is entitled -
(a)to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed;
(b)...
(c)...
(d)...
(3)The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect -
(a)inform the suspect of his or her rights under section 137(3)(c) and subsection (2)(c); and
(b)afford the suspect his or her other rights under section 137 and subsection (2).
The EROI commenced after questions to elicit identifying information from Mr Langdon as follows:
Q:... Solomon - um - the reason that we brought you back here to speak to us today is in relation to an offence of grievous bodily harm and it's alleged to have occurred on a Flora Neilson [sic] and I believe that's your de facto partner. ... (ts 2).
See also ts 5 ‑ 6 (the accused's understanding of the reason for his arrest which he explains as 'fighting with my wife'); and:
Q:... the reason for this interview. ... it's alleged you assaulted [the deceased] last night (ts 8).
At the time of the interview, of course, the deceased was still alive.
It appears to be common ground that the first time the matter potentially relevant to a sexual assault or attempted sexual assault by the accused on the deceased, or to any demand or request for sex by him to her, arose in the interview was when a question was asked of the accused:
Q:But did you remove any of her clothing after? (ts 27)
He replied 'No', adding 'It was broken before. I never breaking those clothes. Someone did'. He immediately went on to say, in a passage edited out of the transcript by agreement 'I don't rape my wife', adding, not long afterwards, 'I leave it as it is'. Which was immediately followed by this exchange:
Q:Yeah. No, I'm just asking a question about it. Like, I mean we've just got to cover everything because she - when I saw her her shorts were torn.
A:Yeah.
Q:I'm just trying to get your side of what happened. You know? Did you tear her shorts?
A:I did. Because I was wild.
Q:You did. You did tear her shorts. Why did you do that?
A:I was upset.
Q:Oh, okay. So you were upset. So did you pull her shorts down? (This is the cup squashing incident)
A:No.
Q:Why did you - why did you tear her shorts Solomon?
A:She was there. She couldn't talk so because she had to she needed to have a wee too.
Q:Yeah. Yeah.
A:She needed to go the toilet and that's why then she - (indistinct) I pulled her shorts down (ts 27 ‑ 28).
This was followed by questions about whether the deceased was wearing other clothes when the accused last had sex with her and, not long afterwards, the following exchange, an exchange which was also edited out by agreement:
Q:Oh, okay. All right. Now, when we talked to Flora we haven't been able to talk to her now because she's she's not well enough for us to talk to but when we talked with her obviously one of the things that we're going to ask her is if you forced her to have sex or anything like that what do you think she would say? She would be okay?
A:I - she'd be (indistinct)
Q:Will she say that you forced her to have sex, Solomon?
A:No. I didn't.
Q:Are you sure?
A:I want to leave that.
Q:All right. Look, we won't now but we've just got to ask those questions. Okay?
A:Yeah, I didn't have sex with her from - from Sunday.
Q:Yeah. Did you - did you do anything to her tonight? Did you touch her at all?
A:No, no, no.
Q:Nothing like that?
A:No I didn't have six [sic] with her or nothing.
Q:No. But you did tear her shorts?
A:Yeah.
Q:And I've just got to ask you about that (ts 29 ‑ 30).
For the prosecution, it was put to me that the matter of the ripped or torn state of the shorts that the deceased was wearing had been the subject of the investigation from the outset. My attention was drawn to the witness statement of Sergeant Daniel Walkerden (prosecution brief, pages 139 ‑ 150, see particularly page 141, par 26). I understand this to be a contention that there was no contravention of s 138, as the matter of how the shorts came to be ripped or torn simply formed part of the matter of the grievous bodily harm offence then suspected.
However, I am unable to accept that contention. I do so on the basis that the matter of the sexual assault or attempted sexual assault was also a feature of the investigation as indicated by the witness statement of Officer Walkerden recounting his questioning of the accused at the scene. The police officer said he asked him, inter alia, 'Did you mun her' (page 144, par 58), which the prosecution indicated to me meant, did he have sex with her, to which he replied 'No', after which the police officer stated the following occurred:
I said 'Did you try having sex with her?'
He said 'Yeah I tried too'.
I then advised the accused that he would be taken back to the Kununurra Police Station where we would have another talk with him (page 144, pars 60 ‑ 62).
That line of questioning, in my view, gives context to the exchanges in the EROI previously quoted, a context tending to confirm that the accused was also suspected of a sexual assault or attempted sexual assault. There was thus a contravention of s 138 as the accused was not informed 'as soon as practicable' after the arrest that there were offences other than grievous bodily harm of which he was suspected. In the case of such a contravention, there is provision for the inadmissibility of evidence derived as a consequence in s 154.
As I understand the position of the prosecution, it was not in contest that, if s 138 was contravened in my finding, s 154 cast a burden on the prosecution to persuade the court to decide otherwise under s 155. Section 155 reads as follows:
155.Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it. I am so satisfied, taking account in particular of s 155(3)(b), (c), (d)(i) and (e), after taking account of s 155(3)(a).
As to par (a), I understand that the objection of the defence is based on the exercise of the general discretion to exclude evidence the prejudicial effect of which outweighs its probative value, or, to the extent that there were grounds for the exercise of the residual or unfairness discretion that did not fall within that general discretion, those grounds that fell under that residual discretion: see application part 1, (i) and (ii), and see on the two discretions R v Lobban [2000] SASC 48; (2000) 77 SASR 24 [79] ‑ [86] (Martin J, Doyle CJ & Bleby J agreeing). Indeed, I accept that the exercise of either discretion would be sufficient without reliance or exclusive reliance on Criminal Investigation Act s 154 to exclude the objected to EROI material. However, I consider that the objected to EROI material should not be excluded in the exercise of either discretion for the following reasons.

I consider that the probative value of the objected to EROI material is threefold. First, the objected to EROI material is relevant to what the accused could remember of the night of 5 February 2013 at the time of the assaults on the deceased. This is, in turn, relevant to the level of the intoxication of the accused. It is not in contest that the principal and likely only significant issue at the trial will be whether the accused had the intent necessary for the offence of murder, being the intent under Criminal Code (WA) s 279(1)(a) or (b). Whether the jury is satisfied beyond reasonable doubt that the accused's level of intoxication did not prevent or otherwise sufficiently interfere with the formation of such an intent is likely to be of prime importance in that regard: see Criminal Law In Western Australia (29 October 2014) s 28.10.
Second, the objected to EROI material includes what are capable of being taken as competing accounts as to whether the deceased could or could not talk following her being punched and kicked in the face:
A:I was trying to but I was trying my best [to have sex] (ts 31).
read with ts 33, he asked:
A:... 'We have - we have sex now?'
to which she replied:
No. No.
Compare with ts 32:
A:... we weren't trying to have a sex because she was talking and I wasn't going to do anything else because we was arguing and fighting.
and ts 33:
A:... she could hardly talk to me ...
...
A:... I wouldn't have a sex with her. I didn't have any chance.
Third, the objected to EROI material is capable of being taken as evidence of a motivation, in the evidence of the rebuff of the accused's wishes for sex, for the accused to intentionally act towards the deceased more vigorously than his statements elsewhere in the EROI would suggest. That motivation is capable of being seen as a contributor to the rage against the deceased expressed by the accused and as giving it a deeper dimension. See, particularly, ts 26:
A:... I hit her softly.
...
A:With the kick I never used my power with that.
And see his evidence as to the deceased remaining 'all right' after being kicked four times in the face (ts 25).
For the defence, it was put to me that any such view of the objected to EROI material would be mere speculation. I disagree. It seems to me a rational inference is open that the accused had such a motivation. I am of that view having regard to the nature of the assault, involving punching, kicking and the use of a shovel, on the other evidence in the EROI material.
For the defence, it was said that the objected to EROI material was incapable of being seen as rationally probative of the accused's motivation as to any of the assaults as, on the accused's account, the rebuff came after they had ended. However, I note that the accused's account includes that there was an assault - 'I had to punch her again' - at the conclusion of his exchange with the deceased:
A:... when the police came and that's it I had to stop it (ts 37).
I consider the threefold probative value of the objected to EROI material to be significant and clear. Of course, it would be for the jury to assign what weight it might give to this evidence. It would have the benefit of a general direction as to how to weigh evidence in an electronically recorded interview.
I consider that there would be prejudice to the accused from the admission of the objected to EROI material. As the defence put to me, the objected to EROI material includes an attempt by the accused to have sex with the deceased when she was bloodied, in a disabled condition and possibly lapsing into unconsciousness.
However, the edited EROI does not contain exchanges in which it was put to the accused that he had gone further than calling for sex; and it is not put to him that he had indecently assaulted the deceased. Any risk that the jury might take the evidence in the objected to EROI material to the contrary could, in my view, be sufficiently protected against by an appropriate specific direction.
I conclude that the probative value that I have identified clearly outweighs the prejudicial effect of the objected to EROI material, allowing for that direction.
As to the general unfairness discretion, allowing for the specific direction I have referred to, I conclude that it does not provide a basis for the ruling that the defence seeks in respect of the objected to EROI material. With that allowance, I do not consider the evidence in it to be of a particularly inflammatory kind. Nor do I see any other reason to conclude that the admission of the objected to EROI material would create a perceptible risk of miscarriage of justice that could not be adequately dealt with by an appropriate direction to the jury: see Lobban [82].
I turn to the remainder of s 155.
As to s 155(3)(b), it cannot be doubted that the present is a most serious offence. As to s 155(3) (c), on a fair viewing of the edited EROI as a whole, reading in the relevant portions edited out by agreement, the contravention of s 138 was not a serious one in my view. I am of that view having regard to the way the matter in the objected to EROI material proceeded in the questioning in the interview, out of matter, the deceased's ripped shorts, bound up in the evidence of the grievous bodily harm offence; and the way the questioning proceeded, in not pressing the possibility of an attempted indecent assault.
As to s 155(3)(d)(i), I consider that the contravention of s 138 was not intentional or reckless. I consider that a fair viewing of the EROI as a whole - again, reading in the relevant portions edited out by agreement - indicates that the interviewers' consideration of the possibility that the accused had committed an indecent assault or attempted indecent assault was not a matter of substantial significance to them.
I note in that regard that no charge of either kind was ultimately laid and I note, again, that the possibility was not pressed in questioning. I consider that while the contravention of s 138 was undoubtedly negligent, it was not more than that.
As to s 155(3)(e), I have already reviewed this matter.
As to s 155(4), I note that my conclusion as to probative value does not, by itself, justify the admission of the objected to EROI material, and I do not so proceed.
My conclusion, then, on the objected to EROI material is as follows. Assessing the matters I have reviewed, I would not rule as inadmissible on any of the bases in the application the objected to EROI material. I would thus not grant the application (1).
Turning to the relationship evidence.
As to the objected to Betty Nelson evidence, counsel for the defence put to me that that evidence as to any specific incident was too remote in time to 5 February 2013 to have any rational bearing on the issue at trial of the accused's state of mind at that later time. The only incident specified involved the accused hitting the deceased with a frying pan in 'around 2008' (see prosecution brief, page 5, par 26). I note that was 'the last time [Ms Nelson] saw them fighting' (page 5, par 22). Further, counsel for the defence put to me that the rest of the evidence in the witness statement was of a very general and indeed partisan character, again, leaving out the portion not objected to.
The prosecution accepted that it was not seeking the admission of the evidence under Evidence Act 1906 (WA) s 31A as propensity or relationship evidence. However, it reserved its position at trial were any of the identity, unlawfulness or self‑defence aspects of the matters here to be raised. I do not say anything here in relation to any application under s 31A that might be made in such a case.
The prosecution put the admission of the objected to Betty Nelson evidence and, indeed, the prior conduct evidence on the basis of its tendency to prove why or how on the occasion in question the offence occurred in the circumstances alleged. The conduct was violence by the accused to the deceased in circumstances where the deceased had, notwithstanding that violence, not severed or had returned to the relationship with the accused. I consider this evidence to be relevant to the issue of intention in the trial indirectly. The evidence goes to show that the deceased had gone with the accused on the occasion in question not because she was not fearful of him, but because of the character of their relationship.
Relatedly, it is evidence relevant to the credibility of evidence in the EROI from the accused that the deceased had accompanied him back to the place where the incident in question occurred, notwithstanding arguments between them, as they 'were settling down' (ts 20). I note in this respect submissions for the defence that there was no direct evidence that the deceased did not sever or had returned to the relationship with the accused after violence between them. I consider, in fact, that there is such evidence in the objected to Betty Nelson evidence. Further, I consider that the prior conduct evidence of repeated incidents founds a rational inference that the deceased did not sever or had returned to the relationship with the accused notwithstanding previous such incidents.
The prosecution drew my attention to authorities on admissibility of previous acts of sexual intercourse and indecent assault and of uncharged acts of violent and physical discipline: see R v Etherington (1982) 32 SASR 230, 235 (Walters J, Millhouse J agreeing); and R v PAB [2008] 1 Qd R 184 [21], [24] ‑ [25] (Keane JA, McMurdo P & Muir JA agreeing).
It is not in contest that the test for admissibility of evidence of that kind is whether the probative force of the evidence clearly transcends its merely prejudicial effect: see Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 632 (McHugh J); and Evans v The State of Western Australia [2010] WASCA 34 [75] ‑ [76] (Wheeler JA, McLure P & Owen JA agreeing).
Although counsel for the defence might have been taken to contend that the law was otherwise, at least at some points, I consider that on authority the relationship evidence may be admissible even though it is evidence of a propensity kind. However, in such a case, a propensity warning would likely be required: see Upton v The State of Western Australia [2008] WASCA 54, as discussed in Criminal Law In Western Australia, s 30,167.40. At the same time, the fact it was propensity evidence would undoubtedly be relevant to the matter of prejudice.
Further, the fact that the relationship evidence is of incidents relatively remote in time to the occasion in question is relevant to the assessment of probative value, although it is not necessarily determinative: see T (a child) v The Queen (1998) 20 WAR 130, 134 (Pidgeon J); The State of Western Australia v Atherton [2009] WASCA 148 [12] (Pullen JA) on s 131A of the Evidence Act (but of application in this area too, in my view); and Criminal Law In Western Australia s 30,167.40.
I consider one way in which such evidence may be probative, notwithstanding such remoteness, is its tendency to show a pattern of conduct that is continuing. I consider that the objected to Betty Nelson evidence shows a pattern of violence in the relationship between the accused and the deceased in circumstances where the deceased had, notwithstanding the violence, not severed or had returned to the relationship.
However, in my view, considered on its own, the objected to Betty Nelson evidence, having regard to its generality and remoteness in time to the occasion in question, is not sufficiently probative to transcend its prejudicial effect. That effect lies in its character as propensity evidence. Whilst a propensity warning would be appropriate, I do not consider it would be sufficient to reduce the prejudicial effect of the evidence for this purpose.
However, it is not proposed to lead the objected to Betty Nelson evidence on its own. In my view, it must be considered in the context of the prior conduct evidence. That evidence also shows a pattern of violence in the relationship between the accused and the deceased in circumstances where the deceased had, notwithstanding that violence, not severed or had returned to her relationship with the accused. That prior conduct evidence is specific and, leaving aside matters of possible overlap, less remote in time than the evidence of the specific incident in the objected to Betty Nelson evidence.
It may be accepted that only two of the three prior incidents - and, in particular, not the most recent one - appear to have involved the accused having recently consumed alcohol. However, in my view, that does not prevent the evidence being clearly probative so as to transcend its prejudicial effect. The prior conduct evidence is, in my view, even more clearly probative when considered with the objected to Betty Nelson evidence.
The defence submits that there is ample contemporaneous evidence that the relationship of the accused to the deceased as at 5 December 2013 was one of aggression, and that that aggression was capable of manifesting itself in repeated blows to her. However, in my view, this does not go to the matter of the position of the deceased in their relationship, as the objected to Betty Nelson evidence and the prior conduct evidence go to indicate.
Of course, it would be for the jury to assign what weight it might to the relationship evidence, or any part of it, assisted by suitable general directions as to its powers as the sole finder of fact. Further, as to the matter of prejudice, there would be a propensity evidence warning, which I have already indicated would be appropriate in this case. Therefore, I conclude that the relationship evidence is admissible on the principle in Harriman. That conclusion prevents me granting the application (2) on the basis in (i), that the prejudicial effect of the evidence outweighs its probative value.
However, that leaves the basis in (ii), the residual unfairness discretion. As I have indicated above, this may have an operation beyond the basis in (i), the general discretion. It was in this light that I understood the submissions for the accused that, it seemed to me, focussed my attention on the fact that all of the relationship evidence concerned matters where the intentions of the accused towards the deceased were unclear. This fact would tend to leave the disreputable character of the conduct itself prominent, and the intention of the accused at those times a matter which would divert the jury from their task in this trial.
However, I consider that those matters are ones which an appropriate propensity direction could sufficiently address so as to ensure a fair trial.
My conclusion on the relationship evidence, and therefore on the remainder of the application, is that I would not rule as inadmissible, on either of the bases in the application, the relationship evidence. Thus, I would not grant the application in (2).