The State of Western Australia v Lovett
[2012] WASC 177
•29 MAY 2012
THE STATE OF WESTERN AUSTRALIA -v- LOVETT [2012] WASC 177
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 177 | |
| 29/05/2012 | |||
| Case No: | INS:51/2012 | 22 MAY 2012 | |
| Coram: | HALL J | 22/05/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Ruling that propensity evidence admissible Leave granted to State to admit evidence | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DAVID TIMOTHY LOVETT |
Catchwords: | Criminal law Propensity evidence Criminal damage by fire (arson) Whether circumstances of prior offence have significant probative value Whether the probative value is such that when compared to the risk of an unfair trial fair-minded people would think that the public interest in admitting the evidence must have priority |
Legislation: | Evidence Act 1906 (WA), s 31A |
Case References: | Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 Dair v The State of Western Australia [2008] WASCA 72 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] WASCA 196; (2005) 31 WAR 122 Horsman v The State of Western Australia [2008] WASCA 190 Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 Onekawa v The State of Western Australia [2012] WASCA 105 Roncevic v The State of Western Australia [2010] WASCA 213 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
DAVID TIMOTHY LOVETT
Accused
Catchwords:
Criminal law - Propensity evidence - Criminal damage by fire (arson) - Whether circumstances of prior offence have significant probative value - Whether the probative value is such that when compared to the risk of an unfair trial fair-minded people would think that the public interest in admitting the evidence must have priority
Legislation:
Evidence Act 1906 (WA), s 31A
(Page 2)
Result:
Ruling that propensity evidence admissible
Leave granted to State to admit evidence
Category: B
Representation:
Counsel:
Prosecution : Mr C J Henderson
Accused : Mr D J McKenzie
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Dair v The State of Western Australia [2008] WASCA 72
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] WASCA 196; (2005) 31 WAR 122
Horsman v The State of Western Australia [2008] WASCA 190
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Onekawa v The State of Western Australia [2012] WASCA 105
Roncevic v The State of Western Australia [2010] WASCA 213
(Page 3)
- HALL J:
Introduction
1 The accused is charged on indictment that on 15 September 2011 he wilfully and unlawfully damaged a building by fire contrary to s 444 of the Criminal Code (WA). He is due to stand trial commencing on 26 June 2012.
2 By application dated 6 May 2012, the State has sought leave pursuant to s 31A of the Evidence Act 1906 (WA) to adduce evidence of a prior conviction for criminal damage by fire. I have concluded that the evidence is admissible and that leave should be granted. My reasons for that conclusion follow.
The prosecution case
3 In determining an application of this type it is necessary to assume that the evidence will be that which is contained in the prosecution brief.
4 The prosecution case is that in September 2011 the accused was employed at the Raine Square construction site in Perth. He was formally employed by Global Industrial Services (Australia) Pty Ltd which was responsible for window installations on the project.
5 On Thursday, 15 September 2011 at approximately 7.00 am, several workers employed by Global were advised that they were no longer required on the project and were given 48 hours' notice of termination of employment. The accused was one of those workers and he finished his shift on 15 September 2011 at approximately 3.30 pm.
6 At 11.27 pm on 15 September 2011, a person entered the building site and lit a fire outside the door of the Global site office. The person was wearing a high visibility work shirt. Turpentine from a 20 litre drum was poured on to the flames as an accelerant.
7 Security guards at the site reported the fire. Fire and Emergency Services officers and police attended and the fire was extinguished. The cost of the damage was estimated at approximately $30,000.
8 The actions of the person who lit the fire were captured on CCTV. Subsequently, two other persons who had worked closely with the accused viewed the CCTV footage and gave statements that they recognised him. One of them also recognised the work shirt worn by the person who lit the fire as being similar to one worn by the accused.
(Page 4)
9 The bank and telephone records of the accused were obtained by the police. The bank records show transactions occurring at licensed premises in close proximity to the Raine Square site at 4.26 pm and 6.36 pm on 15 September 2011. The telephone records show a call made from the accused's mobile telephone at 8.51 pm on 15 September 2011 whilst in an area near to the site.
The propensity evidence
10 The prosecution seeks leave to adduce, as propensity evidence, the facts relating to a conviction of the accused on one count of criminal damage by fire on 5 May 2009. The prosecution seeks to tender a certificate of conviction and to read a relevant portion of the statement of material facts as read to the court on 5 May 2009. The relevant portion is as follows:
On Thursday, 27 November 2008, the offender was residing at Beatty Lodge Backpackers and student accommodation in Vincent Street, West Perth. The offender had been residing there since 12 November 2008 and had been allocated room number 77. He intended to stay to 3 December 2008.
On the morning in question the manager of the premises, [Mr] Dowling, became aware that the offender had breached several of the rules and regulations of the lodge. He subsequently located the offender on the grounds of the premises and advised the offender that he would be required to pack up his belongings and leave as he was being evicted. Mr Dowling escorted the offender to his room, number 77, where he watched the offender pack his belongings. Mr Dowling requested and was given the room key and then he returned to the reception area.
On[c]e alone the offender ignited combustible material located within the room. He then [closed] the door and left the premises via the front reception area. A fire quickly developed in the room and caused substantial damage to both the building and the contents in it. FESA personnel were alerted and extinguished the fire. Fire, smoke and water caused approximately $50,000 damage to the structure of the room and the contents.
The application
11 The State submits that the evidence in relation to the 2009 conviction is propensity evidence because it shows that the accused has a tendency to react to dismissal, or an order to leave, by setting fire to the premises concerned. It is submitted that the evidence has significant probative value because it could rationally affect the jury's assessment of the
(Page 5)
- probability that the accused set fire to the building following his dismissal as alleged.
12 On behalf of the accused it is conceded that the evidence falls within the definition of propensity evidence under s 31A(1) but it is submitted that the evidence does not have significant probative value. In particular, it is submitted that there is no 'particular identity, special feature or unique stamp' which would give the evidence such significance: Dair v The State of Western Australia [2008] WASCA 72 [275] (Heenan AJA).
The relevant principles
13 Section 31A of the Evidence Act confers on the courts the power to admit propensity and relationship evidence. In the present case, the prosecution submits that the evidence of the prior conviction is propensity evidence. Propensity evidence is defined in s 31A(1) as meaning:
(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.
- Evidence will be admissible under s 31A 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.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance
(Page 6)
- which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
15 As regards the second test, Steytler P examined the comparison which s 31A(2)(b) requires in Dair. The points made by his Honour were recently referred to by Buss JA in Onekawa v The State of Western Australia [2012] WASCA 105 [45] as follows:
First, s 31A(2)(b) requires the court, having already found under s 31A(2)(a) that the evidence has significant probative value, to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a person likely to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, 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 [64]. Fourthly, 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 [66]. 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' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
16 See also Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457, Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482, Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 and Roncevic v The State of Western Australia [2010] WASCA 213.
The merits of the application
17 On behalf of the accused it is suggested that the facts in Dair are sufficiently similar to the present case as to lead to a conclusion that the
(Page 7)
- propensity evidence here does not have significant probative value or, alternatively, that its probative value does not outweigh the risk of an unfair trial.
18 In Dair, the appellant was convicted of unlawfully doing grievous bodily harm. The offence was alleged to have occurred after the appellant was pursued by an off-duty policeman after stealing an item from a parked car. The appellant was alleged to have stopped, confronted the police officer and stabbed him in the neck with a knife. The prosecution led evidence of four other convictions on the basis that it was propensity evidence. Each of those previous offences involved the theft of a car, a high speed pursuit and violent resistance when attempts were made to apprehend the appellant. Heenan AJA concluded that the evidence of the prior offences did not have significant probative effect because there was no 'particular identity, special feature or unique stamp' that would assist in identifying the appellant as the offender. Steytler P, however, considered that the evidence did have significant probative value.
19 However, Steytler P concluded that the evidence in Dair failed the second test. He said that this was because the prosecution case depended critically upon the evidence of a witness who had identified the appellant from CCTV footage and to whom the appellant had allegedly made admissions. His Honour said that the propensity evidence could not assist the jury in determining whether the evidence of the critical witness should be accepted. His Honour considered that there was a risk, which could not be obviated by directions, that the jury might not accept the evidence of the witness but still convict on the basis of propensity evidence which was in itself insufficient to establish the appellant's guilt.
20 In the present case, two witnesses have given statements that they can positively identify the accused from CCTV footage taken at the site. Both of these witnesses state that they worked closely with the accused and are familiar with his appearance including body type, mannerisms and gait. This evidence is, therefore, in the nature of recognition evidence. The prosecution case depends critically upon this evidence.
21 There is some evidence by way of Eftpos transactions and telephone records to indicate that the accused was in the general area of the site between approximately 4.30 pm and 8.50 pm on the relevant night. That, of course, is several hours before the fire was lit.
(Page 8)
22 There is also some forensic evidence that mineral oil was found on the clothing of the accused. However, there is no forensic evidence by way of DNA or fingerprints identifying the accused as the offender.
23 To the extent that this, like Dair, involves recognition evidence based upon CCTV footage there are superficial similarities between the two cases. However, there are important differences. First, the propensity evidence in Dair related to a series of prior offences that by their nature and number presented a more significant risk of unfairness. Secondly, there was a risk that presented with an array of factual circumstances arising from five different incidents (including the one that was the subject of the trial) the jury might have become confused or distracted in Dair. That is not a realistic risk here. Thirdly, the facts in Dair made the giving of meaningful directions to the jury very difficult (as proved to be the case). That is not true of the present case. Fourthly, the circumstances of the prior offending in Dair were only broadly similar, whereas in the present case they are more clearly comparable both as to the alleged facts and the likely motivation. For these reasons I am unable to accept that the result in Dair dictates a conclusion that the propensity evidence in this case is not admissible. Rather it is necessary to apply the statutory tests to the particular circumstances of this case.
24 As regards whether the evidence in this case meets the first test as having significant probative value, the prosecution relies upon the fact that on the earlier occasion the accused lit a fire after being asked to leave the premises at which he was then residing. It is said that this is similar to the present case because the accused was dismissed from his job at the building site earlier on the day on which the fire was lit. The prosecution also rely upon the fact that the fire was lit outside the door of the site office of the subcontractor who directly employed the accused.
25 There is no evidence of the reaction of the accused to receiving his notice on the morning of 15 September 2011. However, it is reasonable to infer that this was not news that would have been welcome. The loss of employment might well result in a person feeling upset or aggrieved - whether or not those feelings were displayed.
26 In my view, the evidence of the prior conviction is highly probative because it reveals a tendency of the accused to act in the way alleged. It is evidence which could be used by the jury in determining the identity of the offender. The position in England that where propensity evidence is to be used as evidence of identity it must reveal a signature or some other special feature pointing to the accused has not been accepted in Australia:
(Page 9)
- See Horsman v The State of Western Australia [2008] WASCA 190 [27] (Buss JA).
27 As regards the second test, it is submitted on behalf of the accused that because this case, like Dair, includes significant recognition evidence there is a risk that the jury might convict the accused even though they do not accept the recognition evidence because they unfairly reason that he must be guilty simply because he has committed an offence of a similar nature before. This predicates a course of reasoning that a jury could be specifically directed not to follow. I see no reason to think that a jury in this case would be any less likely to follow directions than in any other case.
28 Importantly, this is a circumstantial case and as in any such case it is necessary for the jury to consider the collective force of the circumstances rather than considering each of them in isolation in deciding whether they are satisfied beyond reasonable doubt of the guilt of the accused. The propensity evidence could not on its own lead to a conclusion of guilt, but that does not mean that it would not be evidence that could rationally affect the probability that the accused lit the fire. Its use in that way would be entirely consistent with the way in which propensity evidence is properly able to be used.
29 In the circumstances of this case, I am satisfied that the evidence meets the test of having significant probative value and I am also satisfied that its probative value as 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. In coming to this conclusion I have taken into account the fact that the jury could receive directions as to the use of the propensity evidence. Accordingly, the application by the prosecution is granted.
0
13
1