The State of Western Australia v McCabe
[2016] WASC 226
•26 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- McCABE [2016] WASC 226
CORAM: FIANNACA J
HEARD: 23 JUNE 2016 & 18 JULY 2016
DELIVERED : 26 JULY 2016
FILE NO/S: INS 56 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JUSTIN CARL McCABE
Accused
Catchwords:
Criminal law and procedure - Application to adduce propensity evidence - Prior offending - evidence of a tendency the accused had - probative value - public interest - degree of risk of unfair trial
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Application allowed
Category: B
Representation:
Counsel:
Prosecution : Mr J L C Rivalland
Accused: Mr G C Christou
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Preston v The State of Western Australia [2012] WASCA 64
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
R v Bishop [2012] WASC 390
The State of Western Australia v Vo [2015] WASC 389
FIANNACA J:
Introduction
The accused is charged on indictment with one count of armed robbery, under s 392 Criminal Code (WA). Specifically, he is alleged to have stolen from the complainant (Mr Smith), with threats of violence and while armed with a broken glass bottle, alcohol, the property of the owner of a tavern in Balga. The offence is alleged to have occurred on or about 19 July 2015. The accused has pleaded not guilty to the charge and the matter is expected to proceed to trial.
The State has applied for an order that it be permitted to lead evidence, pursuant to s 31A of the Evidence Act 1906 (WA), of the conduct of the accused concerning an offence of armed robbery which occurred on 17 July 2015 at a Subway store in Balcatta, and which is the subject of Indictment 119 of 2016. The accused was convicted of that offence in the Supreme Court in Perth on his plea of guilty on 23 May 2016, but he has not yet been sentenced. The State submits that the evidence of the conduct the subject of that conviction is admissible as propensity evidence.
The prosecution case
The materials on which I must determine the application consist of the prosecution brief of evidence and the accused's electronically recorded interview (video interview) with the police, together with a transcript of that recording.
The case against the accused in respect of the offence charged on the present indictment ('the alleged offence') is that, at about 8.40 pm on 19 July 2015, he went to the bottle shop of the Princess Road Tavern in Balga, where he was a regular customer. While the shop attendant, Mr Smith, was obtaining a bottle of beer for him, the accused went to a fridge and removed a six‑pack of cans of pre-mixed whisky drink and a six‑pack of glass stubbies of the same drink. He then stole those items by leaving the shop without paying for them. The attendant followed him, and the accused then ran. The attendant gave chase until the accused stopped and turned to face him. The accused dropped the six‑pack of cans to the ground before grasping one of the stubby bottles by the neck and smashing it on the kerb. He then held the broken bottle out towards the shop attendant, with the jagged edge near his throat. The accused is alleged to have said, 'What are you going to do? I'm going to fucking kill you.' The shop attendant turned around and returned to the bottle shop, fearing for his safety.
The accused was arrested on 26 July 2015, after he was seen by the shop attendant at the Balga Shopping Centre. He took part in an interview with the police, during which he admitted stealing the items of alcohol to which I have referred, admitted that he was chased by the shop attendant, but denied smashing a bottle and using it as a weapon. He also denied making any threat to Mr Smith. Significantly, however, he admitted that he took all of the items he had stolen home and consumed them with another person.
The issue at trial
It is clear from the submissions of counsel for the accused during the hearing of the application that the following facts will not be in dispute at trial:
1.The accused stole the two six‑packs of alcohol from the tavern bottle shop.
2.Mr Smith followed the accused.
3.The accused left the scene to which he had been followed by Mr Smith.
4.When he left that scene, he still had the stolen bottles.
That is consistent with what the accused said in the video interview.
The issue at trial will be whether the accused was armed with a broken bottle or made any threats to Mr Smith. The accused denies smashing a bottle or arming himself with a bottle. He also denies making any threat.
If the jury were to accept that the accused made the threat alleged by Mr Smith, and that he was armed with a broken bottle, then it would be open to the jury to find that the threat and the use of the bottle were intended to prevent or overcome any resistance by Mr Smith to the theft of the alcohol by the accused, for the following reasons. It will be obvious from the evidence that Mr Smith followed the accused to recover the alcohol the accused had taken from the shop. As the accused left the scene with the alcohol after making the threat, it will be open to the jury to conclude that, at the time he armed himself with the broken bottle and made the threat to Mr Smith, it was his intention to persist with the stealing of the alcohol and to prevent or overcome resistance to the theft.
Prior offending
The evidence that is proposed to be adduced of the offence on 17 July 2015 would be presented by an agreed statement of facts.
The essence of those facts is that, at about 8.00 pm on 17 July 2015, the accused went to the Subway store on Wanneroo Road in Balcatta, armed with a broken glass beer bottle. He went to the counter, leaned over it and thrust the jagged edge of the broken bottle towards the store attendant, demanding money. He held the broken bottle by its neck. The store attendant complied with the demand and handed him cash from the till. The accused then left.
The store attendant was a 14‑year‑old girl. The demand was, 'Give me the money, you bitch', and the accused is also said to have said, 'Hurry up or I'll jump', when he became impatient. However, neither the description of the store attendant, nor the terms of the demand or threat, would be relevant as part of the proposed propensity evidence, and the State does not intend to adduce any of those specific facts.
The statutory provisions
Section 31A of the Evidence Act prescribes the circumstances under which the court may admit 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.
Section 31A(2) provides that propensity evidence is admissible in proceedings for an offence if the court considers ‑
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(Section 31A(3) is not relevant for the purposes of this application.)
Whether the evidence is propensity evidence
The State submits that the evidence in respect of the Subway offence is propensity evidence, as defined. This is because it demonstrates that the accused had, at the relevant time:
1.a tendency to arm himself with broken glass bottles; and
2.a tendency to threaten violence to facilitate stealing offences.
The accused submits that the proposed evidence does not qualify as propensity evidence, as it goes no further than tending to show that the accused has committed a similar offence, and the circumstances of the alleged offence are distinguishable from those of the Subway offence. In particular, the accused relies on the following propositions:
1.the Subway offence was premeditated, whereas the stealing of the alcohol from the bottle shop was opportunistic;
2.the accused was already armed when he entered the Subway store, whereas in relation to the alleged offence it is not alleged that he was armed from the outset; and
3.in the Subway offence, the accused committed the robbery by making demands for money, whereas in the alleged offence he made no such demands. The alleged threat did not include a demand. The accused had already stolen the alcohol.
In short, the accused argues that the Subway offence is significantly factually different because it was an armed robbery from the outset, whereas the alleged offence, even on the State's case, was a 'stealing gone wrong'.
In my opinion, the accused's submissions wrongly assume that the basis of the application is that the proposed evidence is sought to be led as similar fact evidence, and that there needs to be sufficient similarity between the overall past and alleged conduct to provide a basis for reasoning that it is more likely that the accused did what is alleged because of his past conduct.
I dealt with a similar argument in The State of Western Australia v Vo [2015] WASC 389 [51] - [57]. In that case, the accused relied on comments of Hall J in R v Bishop [2012] WASC 390. As I said in Vo, while it may be accepted that there needs to be sufficient similarity between past and alleged conduct, the question in any particular case will be what is 'sufficient similarity' and, conversely, what is a 'significant difference'. I would add that it is necessary to consider the precise basis on which the evidence is sought to be adduced.
The definition of propensity evidence has been described as being extraordinarily wide: Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [36] (Mazza JA, Martin CJ and Buss JA agreeing). It goes beyond what the common law understood by that term. By its terms, it includes considerably more than similar fact evidence.
In the present case, the State is relying on a tendency by the accused to arm himself with a broken bottle and to threaten violence while so armed in order to steal property. The basis for seeking to lead the evidence is that his previous conduct in that regard renders it more likely that he would use a broken bottle as a weapon to make threats in the circumstances of the alleged offence. It is not relying on the general circumstances of the offending to prove that the accused committed the alleged offence. Reliance on a number of similar features of the offending will ordinarily occur where the question is the identity of the offender, rather than whether he did particular acts (where the accused admits he has been properly identified as the offender, as in this case).
In my opinion, the distinguishing features identified by the accused do not preclude the proposed evidence from being propensity evidence, in the sense of 'evidence of a tendency the accused had'.
A question arises, however, whether one prior instance of the accused using a broken bottle to make a threat in order to steal property is sufficient to establish a tendency. The definition of 'tendency' in the Oxford English Dictionary (OED) includes 'inclination'. The Macquarie Dictionary defines 'tendency' to mean, for relevant purposes, 'an inclination, bent or predisposition to something'. 'Inclination' is defined in the Macquarie Dictionary to mean, relevantly, 'a set or bent; a liking or preference'. 'Incline' is defined in the same dictionary to mean, relevantly, 'to have a mental tendency; be disposed', and in the OED to mean 'be disposed; tend'. It can be seen that a synonym for 'tendency' can be 'disposition'. The Macquarie Dictionary defines 'disposition' relevantly to mean 'mental inclination; willingness'.
In my opinion, in order to establish that the accused had a tendency to act in a certain way, it may be sufficient to show that he had a willingness to do so on a previous occasion, even if it is the only occasion on which that willingness was demonstrated. Whether it is sufficient in any particular case will depend on the circumstances. Proximity in time between the previous occasion and the event the subject of the alleged offence will be a relevant consideration in determining whether the accused had the relevant tendency at the time of the alleged offence.
In the present case, the occasion on which the accused demonstrated a willingness to use a broken bottle as a weapon to make a threat in order to steal property was two days before the alleged offence. In my opinion, the very close proximity in time renders the evidence of the previous offence capable of establishing a tendency that the accused had at the time of the alleged offence.
Whether the evidence has significant probative value
The principles relevant to determining whether evidence has significant probative value were outlined in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385 by Steytler P, and subsequently in Preston v The State of Western Australia [2012] WASCA 64 [33] ‑ [38] (Mazza JA) and LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [290] (Buss JA, as he then was). The evidence must be able to rationally affect, in combination with other evidence, the assessment of the probability of the existence of a fact in issue in a significant way; that is, in a manner that is important or of consequence.
Accepting that the Subway offence demonstrates that the accused had a tendency to use a broken bottle as a weapon to make threats in order to steal property, the question remains whether that evidence can rationally affect in a significant way the assessment of the evidence of Mr Smith that the accused used a broken bottle to threaten him. The accused relies on the same propositions identifying distinguishing features between the prior offence and the alleged offence to argue that the evidence does not have significant probative value. For the reasons I gave in the previous section, I consider that the propositions would be apt if the evidence of the Subway offence was being relied on as similar fact evidence, but I do not consider that the distinguishing features detract from the probative value of the evidence in demonstrating that the accused had the relevant tendency.
The probative value of the evidence is that it shows the accused was someone who was willing to use a broken bottle as a weapon, to convey a threat, in order to enable him to steal property. It shows he had been willing to do so only two days before the alleged offence. Assuming Mr Smith gives evidence in accordance with his statement, the propensity evidence can rationally affect, in a manner that is important or of consequence, the jury's assessment of the probability of the accused having used a broken bottle to threaten Mr Smith, as described by him. It goes to that very issue, which is at the core of an element of the offence (the making of a threat), and a circumstance of aggravation (being armed). Proof of those matters will depend on the jury being satisfied that Mr Smith is a truthful and reliable witness. It would be open to the jury to conclude that it is unlikely that Mr Smith has, by coincidence, either falsely or inaccurately described the accused using a broken bottle as a weapon, when the accused had done just that two days earlier. Such a conclusion would be a matter of logical reasoning, relying on ordinary human experience.
Of course, the jury will need to be satisfied beyond reasonable doubt that Mr Smith is truthful and reliable in describing the accused's use of the broken bottle and the threat, but the propensity evidence has the capacity to affect the jury's assessment in that regard.
In my opinion, the distinguishing features of the Subway offence, in that it was premeditated, involved the use of a broken bottle as a weapon from the outset, and involved a demand for money rather than the surreptitious taking of property, do not diminish the probative value of the propensity evidence, given the manner in which it is intended to be used. The jury may well find that the theft of the alcohol in the alleged offence was premeditated, but I accept there is no suggestion that the use of violence or a threat of violence was premeditated, or in the accused's mind, when he made off with the alcohol from the bottle shop. However, that is not to the point.
What is significant is the accused's willingness to use threats of violence, and to wield a weapon to underscore those threats, in order for him to be able to effect the stealing of property. In my view, it does not matter whether the stealing is achieved by the making of a demand with a physical threat of violence, as in the Subway offence, or by initially using stealthy means to remove the property from the business premises, and then using a threat of violence to prevent resistance to the stealing, which is a continuing offence.
The difference in approach can be explained by the different nature of the businesses he targeted. Obviously, the Subway offence involved an intention to steal money. There was no opportunity to steal any other property, whether stealthily or openly, from that store. The theft of money could only be achieved by the making of a demand. He did so by threatening the attendant with a broken bottle. On the other hand, the alleged offence, commencing in the bottle shop, involved an intention to steal alcohol. It would appear from the accused's video interview that he has an alcohol abuse problem. He could achieve his intention in the bottle shop by taking items that were readily available to the public. The threat of violence became necessary only after he was chased, and in order to prevent or overcome resistance to his theft of the alcohol.
Differences in the execution of the offences do not detract from the proposition that, in each case, the accused used the threat of a broken bottle, in close proximity to the alleged victim, to achieve his intention of stealing property.
The propensity evidence has significant probative value.
Fair‑minded person test
The question then is whether the fair-minded person test is satisfied. The effect of s 31A(2)(b) was explained by Buss JA in LFG, by reference to points made by Steytler P in Dair:
First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). [291]
I adopt also the opinion expressed by Roberts‑Smith JA in Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, about the meaning of 'the risk of an unfair trial' in s 31A(2)(b). His Honour said:
The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning. [127]
The nature and degree of the risk of an unfair trial will depend on the particular circumstances of the case under consideration: APC v The State of Western Australia[2012] WASCA 159; (2012) 224 A Crim R 59 [15] (Pullin JA).
Counsel for the accused referred to the examples identified by Steytler P in Dair at [63] as illustrative of the kinds of risk that may result in an unfair trial in this case. In my opinion, the examples of such risk that have been identified in the authorities, including Dair, can be summed up as involving the risk of a jury not confining the use of the evidence to a process of dispassionate, logical reasoning, as described by Roberts‑Smith JA in Donaldson.
The State's submissions
The State submits that fair-minded people would think that it is in the public interest for the propensity evidence in this case to be adduced, despite its risks. It submits that to leave the jury in ignorance of the accused's 'markedly similar prior conduct' would deprive them of the proper context in which the accused is alleged to have committed the offence on the indictment.
It further submits that the risk of an unfair trial can be neutralised by appropriate directions to the jury. Although the content of such a direction was not particularised, a jury would invariably be given a direction that the propensity evidence could not, by itself, prove the case against the accused. It would also be instructed about the very specific way in which the evidence could be used, which in this case would reflect the basis on which I have found the evidence has significant probative value.
The accused's submission
The accused submits that the propensity evidence in this case is extremely prejudicial, and that there is a risk the jury will place undue weight on the prior offence and reach a conclusion of guilt in respect of the alleged offence on a basis other than by way of logical, dispassionate reasoning. In particular, the accused submits that:
1.given the violent nature of the offence the subject of the Subway offence, the jury will seek to punish the accused for his previous violent conduct; and
2.a jury would, in all likelihood, form a negative view of the accused, and it is difficult to see how any reasonable jury could put those thoughts aside when considering the case against the accused.
The accused submits that the prejudice is of such a type and degree that it far outweighs any probative value the propensity evidence may have, and fair‑minded people would think that, having regard to the risk of an unfair trial, it is not in the public interest for the evidence to be adduced.
Conclusion in respect of the fair-minded person test
In my opinion, assessed objectively, the probative value of the propensity evidence in the present case is high. The accused demonstrated two days before the alleged offence that he was willing to arm himself with a broken bottle to threaten violence to a shop assistant in order to steal money. By the application of logical and dispassionate reasoning, a jury could regard that evidence as rendering more probable the evidence of Mr Smith that the accused broke a bottle and used it as a weapon to threaten to him, in effect, to back off. While the propensity evidence could only be said to demonstrate 'markedly similar prior conduct' in a very narrow aspect of the case, I accept the State's submission that to leave the jury in ignorance of that evidence would deprive them of the proper context in which to consider Mr Smith's evidence and the issue of whether the accused threatened violence and was armed with a broken bottle.
No doubt, any evidence of an accused's prior violent offending carries with it the potential of prejudice and a risk of an unfair trial. However, I do not accept the accused's primary basis for arguing the risk is so substantial as to outweigh the probative value of the evidence in the assessment to be made by the fair‑minded person. First, the aggression and violence threatened in the Subway offence was not substantially greater than the aggression towards, and violence threatened to, Mr Smith. He states that the jagged edge of the broken bottle was held near his throat. Secondly, for reasons which follow, it is difficult to accept that the jury will seek to punish the accused for his previous violent conduct.
The jury will be informed that the accused has pleaded guilty to the Subway offence. That is the basis on which the facts are being put in an agreed form. The jury will either be told, or it will be apparent to them in any event, that the accused will be punished for that offence. This is not a case in which propensity evidence is in respect of conduct for which an accused has not been punished, and is not likely to be punished. Further, the jury will no doubt be invited by the defence to consider that the accused's admission of guilt in respect of the Subway offence demonstrates that he is prepared to admit his use of a weapon and the making of threats when those things have happened. The point is that, in the circumstances of this case, little weight can be given, in my view, to a submission that attributes to the jury a likely punitive mindset.
In any event, I am of the view that the risk that the jury might use the propensity evidence in an improper way can be guarded against by directions that explain to the jury the manner in which the evidence can be used and instruct the jury that it could not find the accused guilty on the basis solely of the propensity evidence.
In my opinion, 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.
Conclusion
In my opinion, the proposed evidence has significant probative value and it satisfies the fair-minded person test in s 31A(2)(b) of the Evidence Act.
Accordingly, the State will be permitted to adduce the evidence.
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