The State of Western Australia v Narkle
[2021] WADC 95
•11 OCTOBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARKLE [2021] WADC 95
CORAM: PRIOR DCJ
HEARD: 3 SEPTEMBER 2021
DELIVERED : 11 OCTOBER 2021
PUBLISHED : 11 OCTOBER 2021
FILE NO/S: IND 327 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
AARON MICHAEL NARKLE
JUSINTA LEE CHAMPION
Catchwords:
Evidence - Propensity evidence - Alleged robberies and aggravated armed robberies - Application under s 31A of the Evidence Act 1906 (WA) to adduce propensity evidence of each count as cross-admissible
Evidence - Identification evidence - The displacement effect - Whether probative value exceeds prejudice to the accused
Criminal law and procedure - Applications for separate trials for each count and each accused - Whether likely prejudice to each accused - Whether direction could guard against likely prejudice
Legislation:
Criminal Procedure Act 2004 (WA), s 133 sch 1 cl 7(3)
Evidence Act 1906 (WA), s 31A
Result:
State's application for propensity evidence dismissed
Accused's application for digiboard identification evidence on count 2 to be ruled inadmissible is dismissed
Accuseds' applications for separate trials refused
Representation:
Counsel:
| Applicant | : | Ms S V Jessup |
| First Accused | : | Ms F M Hugo |
| Second Accused | : | Ms A S Rogers |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| First Accused | : | Tehan Legal |
| Second Accused | : | Abigail Rogers Barristers and Solicitors |
Case(s) referred to in decision(s):
Alexander v The Queen (1981) 145 CLR 395
Asplin v The State of Western Australia [2013] WASCA 72
Atherton v The State of Western Australia [2009] WASCA 148; (2009) 197 A Crim R 119
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 R Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
La Bianca v The State of Western Australia [2019] WASCA 105
Mansell v The State of Western Australia [2009] WASCA 140
Onekawa v The State of Western Australia [2012] WASCA 105
R v Bishop [2012] WASC 390
R v Smith [No 3] [2014] NSWSC 771
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Walker [No 2] [2019] WASC 321
The State of Western Australia v Wark [2017] WASC 154
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
PRIOR DCJ:
Introduction
On the indictment dated 18 May 2021, Aaron Michael Narkle (Mr Narkle) is charged with offences of robbery and aggravated armed robbery in counts 1, 2 and 3. Mr Narkle and Justina Lee Champion (Ms Champion) are jointly charged with aggravated robbery in company in count 4.
The State by its application dated 19 May 2021 seeks orders that in relation to the accused Mr Narkle:
1.counts 1 - 4 be cross-admissible in relation to one another; and
2.it be permitted to rely on the conduct of the accused Aaron Michael Narkle in counts 1 - 4 as propensity evidence.
Mr Narkle opposes the State's applications.
Mr Narkle by his applications dated 9June 2021 and 31 August 2021 seeks orders that:
1.counts 2 and 4 be tried separately from counts 1 and 3;
2.counts 1 and 3 be tried separately; and
3.the digiboard conducted by Caleb Vicary on 18 June 2018 be ruled inadmissible in count 2.
The applications by Mr Narkle for separate trials is only pursued by Mr Narkle if the State is unsuccessful in its propensity application.
The State opposes Mr Narkle's applications.
The accused Ms Champion by her application dated 14 June 2021 seeks an order that she be tried separately on count 4.
The State opposes Ms Champion's application.
Summary of relevant prosecution facts
In count 1 it is alleged Mr Narkle and an associate attended the Bottlemart liquor store in Como on the night of Sunday 22 March 2020. They both walked to the rear of the store and selected a 10 pack of Jack Daniels American Serve. As they walked to the front of the store, a staff member asked for the 10 pack to scan them. Mr Narkle said 'No' and told the staff member 'if you grab this, I will stick you'. Mr Narkle and his associate left the store without paying for the alcohol.
In count 2 it is alleged Mr Narkle attended the 'drive-through' area of the Thirsty Camel liquor store within the Whale and Ale Tavern in Clarkson on the night of Tuesday 31 March 2020. Mr Narkle took two four packs of Woodstock and Cola cans from a fridge and walked out of the shop without paying for them. An off duty staff member ran after Mr Narkle and confronted him. Mr Narkle challenged the staff member to fight him. The staff member attempted to grab the cans and Mr Narkle dropped them. Mr Narkle then grabbed one can and threw it at the staff member striking him in the face. Mr Narkle then left.
In count 3 it is alleged Mr Narkle attended Dan Murphy's liquor store in Balga on the night of Saturday 11 April 2020. He selected two bottles of spirits. A security officer was watching Mr Narkle and Mr Narkle abused him. Mr Narkle put one bottle on the cashier counter and attempted to leave the store without paying for the other bottle. The security officer asked Mr Narkle to pay for the bottle and Mr Narkle threatened to hit him in the head with the bottle if he attempted to stop him. The security officer followed Mr Narkle who unzipped a bag he was carrying and showed him the handle of an axe. Mr Narkle said 'If you don't stop following me I will use this axe on you'. Mr Narkle then walked off in a northerly direction. He was arrested by police officers in the immediate vicinity.
In count 4 it is alleged Mr Narkle, Ms Champion and a male juvenile attended the 'drive‑through' area of the Thirsty Camel liquor store within the Whale and Ale Tavern in Clarkson on the night of Wednesday 17 June 2020. They selected various packs of pre-mixed spirits from the fridge. As they walked to the 'drive‑through' exit they were confronted by two staff members. One staff member told them that they had to pay for the liquor. Mr Narkle responded in an aggressive manner and stated 'Do you remember what I did last time, I'll do it to you again'. The staff member then recognised Mr Narkle from a similar previous incident. Ms Champion stated 'Yeah do you remember what he did, he will fuck you up'. Both Mr Narkle and Ms Champion then further threatened the staff member including threats to kill him and the other staff member. Mr Narkle, Ms Champion and the juvenile then left the 'drive‑through' without paying for the alcohol. The next day both Mr Narkle and Ms Champion were arrested in Clarkson. Clothing similar to what they were wearing and alcohol matching to what was stolen were found. Mr Narkle was also identified by a staff member in a digiboard process.
All four offences were captured on CCTV.
Mr Narkle did not participate in records of interview in relation to any of the four counts.
Cross-admissibility propensity application - Aaron Michael Narkle
The application for cross-admissible propensity evidence to be admitted against Mr Narkle relates to all four counts on the indictment.
The State submits that the proposed propensity evidence is admissible under s 31A of the Evidence Act as:
(a)It constitutes propensity evidence as evidence of the conduct of Mr Narkle which shows a tendency by him to steal alcohol from liquor stores and threaten to or actually commit acts of violence in order to overcome resistance when leaving the stores.
(b)It is significantly probative as the evidence of the potential facts in issues, in that it:
isupports the conclusion that it was the accused Mr Narkle who committed each of the offences;
iitends to negate any innocent explanation for the accused's conduct; and
iiitends to negate any explanation for the accused's conduct that purports to separate the stealing of the items from the associated violence.
(c)The risk of unfairness in the present case is low considering the relevant facts in issue, and as such fair-minded people would conclude that the public interest is in favour of adducing the proposed propensity evidence.
Mr Narkle has not admitted any elements of the four charges against him on the indictment. I therefore consider the State's application on the basis of all elements of all charges, must be proved by the State at trial beyond reasonable doubt.
The relevant facts which will most likely be in issue in relation to each count are:
1.whether Mr Narkle stole the alcohol;
2.whether Mr Narkle committed the relevant acts of violence, or made the relevant threats; and
3.whether Mr Narkle's acts of violence or threatened acts of violence, were committed in order to steal or overcome resistance for the stealing.
In respect of each of the counts 2 - 4, the State also anticipates that the facts constituting the circumstances of aggravation of the charges will be in issue. These are:
1.in respect of count 2, that Mr Narkle was armed with an offensive instrument, and that he did bodily harm to Caleb Graeme Vicary;
2.in respect of count 3, that Mr Narkle was armed with an offensive instrument and an offensive weapon; and
3.in respect of count 4, that Mr Narkle was in company, and that Mr Narkle threatened to kill Caleb Graeme vicary.
It is not submitted on behalf of the State that the propensity evidence is relevant to establishing these circumstances of aggravation.
The State accepts that if identity is the only issue at trial in relation to each of the counts, then its application does lose some of its force. The State submits that it is the offender's tendency to instinctively resort to forms of violence when he is confronted, is the significant tendency which supports its application.
There are three requirements for the evidence to be admissible under s 31A of the Evidence Act.[1]
1.The first requirement is that the evidence comes within either or both of the definitions of propensity evidence and relationship evidence.
2.The second requirement is that the court must consider that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
3.The third requirement is 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.
[1] Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 R Crim R 385 [171]; Asplin v The State of Western Australia [2013] WASCA 72 [30] - [33].
Mr Narkle opposes the State's application on the basis that the evidence does not meet the second and third requirements for the evidence to be admissible under s 31A of the Evidence Act.
Mr Narkle submits that the tendency conduct that the State seeks to be admitted is at an extremely high level of generality and therefore reduces its probative value. Mr Narkle submits that the tendency that the State have expressed is simply describing the conduct of a robbery.
Mr Narkle also submits that the propensity conduct on each of the four counts is significantly different. There is a paucity of unique features or consistency of conduct that would mark the proposed propensity conduct as being significantly probative.
Mr Narkle submits the propensity conduct refused by Derrick J in The State of Western Australia v Walker [No 2][2] had more similar features than this case.
[2] The State of Western Australia v Walker [No 2] [2019] WASC 321.
Whether evidence meets the requirements of s 31A of the Evidence Act is a question of law. Once the requirements of the section are met, the evidence must be admitted.[3]
[3] Asplin v The State of Western Australia [28] Mazza JA with whom Martin CJ & Pullin JA agreed); Di Lena v The State of Western Australia [2006] WASCA 162 [60], [94] (Roberts-Smith JA with whom Wheeler & Pullin JJA agreed).
In The State of Western Australia v Jackson,[4] the Court of Appeal observed that:
49[I]t is for the prosecution to prove each element of the offence, and to do so without the defence being required to disclose its answer(s) to the charge. In doing so, the prosecution must present the whole of its case foreseeing, so far as it reasonable can, any issue which the accused might raise, for the prosecution will not, generally speaking, be permitted to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.
(footnotes omitted)
A. Does the evidence meet the definition of propensity or relationship evidence under s 31A(1)(a) or (b) Evidence Act?
[4] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [49].
The definitions of this type of evidence are wide.[5] It includes more than common law similar fact evidence. As stated by Buss JA in Onekawa v The State of Western Australia:[6]
'Propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence.
[5] The State of Western Australia v Jackson [20]; Asplin [30].
[6] Onekawa v The State of Western Australia [2012] WASCA 105 [43] (Buss JA).
Propensity evidence is:[7]
[E]vidence which shows that a person has a natural or habitual inclination, or tendency, to do something, or to behave in a particular way or a predisposition or inclination towards a particular action, habit or quality.
[7] The State of Western Australia v Wark [2017] WASC 154 [41] (Pritchard J).
I am satisfied the evidence in relation to each of the four counts on the indictment constituting the propensity or tendency of Mr Narkle described in [16(a)] is propensity or tendency evidence that meets the definition under s 31A(1)(b) of the Evidence Act.
B. Does the evidence either by itself or having regard to other evidence to be adduced have 'significant probative value'?
To possess[8]
significant probative value, evidence must be such as could rationally affect the assessment of the probability of a fact in issue to a significant extent. … significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance. It is probative value which is 'important' or 'of consequence'. …
[8] Dair v The State of Western Australia [61].
The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A(2)(a) of the Evidence Act were summarised by Beech J in RMD v The State of Western Australia[9] referring to DKA v The State of Western Australia[10] as follows:
[9] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]; La Bianca v The State of Western Australia [2019] WASCA 105 [24] - [26], [144].
[10] DKA v The State of Western Australia [2017] WASCA 44.
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 [the] 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.
(footnotes omitted)
In Jackson[11] the Court of Appeal considered the following four points were also relevant:
[11] Jackson [20] - [23].
20First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had.' The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
21Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
22Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
23Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.
(footnotes omitted)
Significant probative value is not merely just relevant evidence.[12]
[12] Dair [60] - [61] (Steytler P).
Deciding whether evidence is significant will depend upon what facts are in issue at the trial and the importance that evidence has to the proof of that fact.
In my view, the facts in relation to all four counts on the indictment are common to offences of armed robbery or robbery. Offences of these type commonly occur at liquor stores where people in the process of stealing liquor from a liquor store, when confronted by staff members, resort to threatened or actual violence with or without weapons.
There is no suggestion in the evidence that the clothing worn by the alleged offenders in each offence was similar. There was no attempt by the alleged offenders to conceal their identity and if so, in a distinct way in each offence. The offenders were not all armed in each offence.
The words used by each offender in each offence when confronted by the staff members are not distinct or similar. The conduct of the offender in each robbery is not consistent or similar. There is nothing distinct or notable in the offender's conduct.
Different type, style and quantity of liquor was stolen at each of the four robberies.
The four offences occurred within a four‑month period but in three different suburbs of the Perth metropolitan area, Clarkson, Balga and Como. There is no similarity between each of the three liquor stores where the robberies occurred. The offences the subject of counts 2 and 4 occurred at the same location.
When I consider the generic nature of the offending at the four liquor stores and the lack of anything unique which is similar in the way each of the offences were committed, I do not consider the evidence in relation to each of the four counts has significant probative value in relation to the facts in issue in each count.
I therefore rule the propensity evidence and its cross-admissibility on each of the four counts as inadmissible in this case.
C. The fair-minded person test and risk to the accused of unfair trial (s 31A(2)(b) of the Evidence Act).
In Dair, the Court of Appeal considered this question and directed that a court is required to do the following:
•Assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence (the court having already found that it has significant probative value).[13]
•Consider the conclusion that fair-minded people (being reasonable members of the general public who are not lawyers, who have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding[14] of the relevant circumstances) would draw from a comparison of these issues.
•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.[15]
[13] Dair [62].
[14] Dair [66].
[15] Dair [64].
The relevant risk is the concern that the risk arises because a jury might use the propensity evidence in an impermissible way.[16]
[16] Di Lena v The State of Western Australia [52], [59]; Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127] - [130]; Dair [62] - [67]; Atherton v The State of Western Australia [2009] WASCA 148; (2009) 197 A Crim R 119 [327].
In Mansell v The State of Western Australia[17] the Court of Appeal said: 'A jury will accept and faithfully apply the directions of a trial judge until the contrary is demonstrated'. There will be cases in which the prejudice is too great that it cannot confidently be concluded that it will be overcome.[18]
[17] Mansell v The State of Western Australia [2009] WASCA 140 [49].
[18] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] (Steytler P).
In considering the risk of an unfair trial to Mr Narkle, the probative value of the proposed propensity evidence should be considered in the context of the evidence as a whole.[19]
[19] R v Bishop [2012] WASC 390 [69] (Hall J).
In order to exclude evidence which has significant probative value the Court must conclude that the prejudicial value of the propensity evidence is so great that it is difficult to be satisfied that even the strongest of warnings would be enough to overcome it.
The risk of an unfair trial to an accused if propensity evidence is led, will always depend on the particular circumstances of each case.
The risk of an unfair trial in the context of the present case is that the jury could impermissibly reason that simply because Mr Narkle has been convicted of a similar type of offence, he must have committed all the offences charged. The risks generally identified by Steytler P in Dair [63] - [67] could arise.
If I had found the evidence in relation to each count on the indictment had significant probative value in relation to the facts in issue on each count, I am satisfied the prejudice to Mr Narkle could be minimised by the directions which would be given to the jury about how the propensity evidence could and could not be used. The jury would be directed that they could not use the evidence on any count as propensity evidence until they had first found the relevant count proved by the State beyond reasonable doubt.
Giving appropriate directions to the jury would, in my view, reduce the risk of an unfair trial to such an extent that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
For the reasons I have stated, I dismiss the State's propensity and cross‑admissibility evidence application dated 19 May 2021 for the orders sought in [1] and [2].
Digiboard identification
The State intends to rely on evidence of a digiboard identification process conducted by Caleb Vicary on 18 June 2018 for both counts 2 and 4.
Caleb Vicary is the same staff member who was robbed at the Whale and Ale Tavern 'drive‑thru' liquor store in Clarkson on the nights of 31 March 2020 and 17 June 2020 the subject of counts 2 and 4.
Mr Narkle objects to the admissibility of Mr Vicary's digiboard evidence in relation to count 2 as he submits it was affected by the 'displacement effect' and therefore the risk if admitted is that its prejudicial effect will outweigh the probative value.
In the digiboard identification process at the Clarkson Police Station on the afternoon of 17 June 2020 the police officer conducting the process refers to the police investigation of a robbery which occurred at about 10.20 pm on 17 June 2020 at Clarkson. The police officer gives Mr Vicary standard instructions about the digiboard identification process. Mr Vicary after looking at the digiboard says 'I am pretty darn sure its number 5. Yep, definitely number 5'. He then signs and dates the digiboard. The whole process is recorded on DVD. No mention is made of the police investigation of the count 2 robbery offence. No digiboard identification process is conducted with Mr Vicary in relation to the count 2 offence. Number 5 on the digiboard is Mr Narkle.
Mr Vicary made a statement to the police on 18 June 2020 in relation to the count 4 offence. In pars 21, 22 and 23 Mr Vicary makes comments about recognising the male adult offender from the previous count 2 offence. He states he had not seen the male in the time between the two offences. In his statement Mr Vicary also gives identifying details of the male adult offender and his ability to observe him during the robbery. In the statement at pars 29 and 30 he said the adult male offender said words to the effect of, 'Do you remember what I did last time? I'll do it to you again, I'll fucking kill you'. The female offender said words to the effect of, 'yeah, do you remember what he did? He will fuck you up'.
Mr Vicary made a statement about the count 2 offence on 2 April 2020. In that first statement he gives a general description of the offender and his ability to observe him.
The 'displacement effect' in relation to the identification evidence was referred to by the High Court in Alexander v The Queen:[20]
Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory.
[20] Alexander v The Queen (1981) 145 CLR 395 [2].
Mr Narkle submits that there is a distinct possibility that Mr Vicary is mistaken when he identified the offender for count 4 as being the same offender as count 2. He may have substituted his memory of the count 4 offender he has identified in the digiboard process as also the count 2 offender.
Mr Narkle submits that a potential displacement effect and mistaken identification by Mr Vicary as to the count 2 offender may not be acknowledged in cross-examination by Mr Vicary because he may now be confidently but unintentionally mistaken and the risk of unfair prejudice to Mr Narkle will not be overcome by a direction of the judge to the jury.[21]
[21] R v Smith [No 3] [2014] NSWSC 771 [34] (Garling J).
I accept there is some risk that Mr Vicary in identifying the offender in the count 4 digiboard process has also possibly displaced that identification as the count 2 offender, but this is not the only evidence that he was the same offender. There is also the comment the offender allegedly makes to Mr Vicary about his involvement in an offence previously at the same location. Mr Vicary also gives recognition evidence of the two offenders being the same person. There is also CCTV footage of the count 2 offence.
In my view, the risks associated with a mistaken identification by Mr Vicary as to the count 2 offender can be adequately outlined in a direction to the jury by the trial judge about the identification evidence including the possibilities of mistake, displacement and substitution.
The trial judge will be obliged to identify any weaknesses and differences in the evidence of Mr Vicary as to the identification of the offenders in counts 2 and 4.
The jury will also be directed by the trial judge as to what evidence is relevant for the consideration of count 2 and told to give separate consideration to the evidence applicable to each count when considering whether the State has proved each count beyond reasonable doubt.
There is a presumption that juries will understand and faithfully follow directions of a trial judge. In those circumstances I am not satisfied the probative value of the evidence of the digiboard identification will be exceeded by any unfair prejudice to Mr Narkle at his trial.
The application by Mr Narkle to exclude the digiboard evidence of Mr Vicary in relation to count 2 is dismissed.
Severance applications
In relation to both Mr Narkle and Ms Champion's applications for severance of the indictment it is accepted by both of them that the four counts were properly joined pursuant to cl 7(3) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA). Each accused submits the court should exercise the discretion conferred by s 133(3) of the CPA in that the court should be satisfied that each accused was likely to be prejudiced in the trial of the indictment and accordingly, the applications for severance and separate trials should be granted.
As Steytler P (Wheeler JA relevantly agreeing & Pullin JA agreeing) noted in Zammit v The State of Western Australia,[22] the courts have consistently held, for policy reasons, that multiple charged offences which can be joined without prejudice to the accused should generally be joined. The relevant policy reasons include promoting consistency in decision making and facilitating a single and final enquiry into alleged offences which arise out of or essentially involve common issues of fact or law. Also, joinder promotes the proper and efficient administration of criminal justice, including a saving in court time and public expense, and greater convenience for witnesses.
[22] Zammit v The State of Western Australia [59].
Section 133(3), s 133(4) and s 133(5) of the CPA states the following:
133Separate trials, court may order
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
The principles in relation to the exercise of the court's discretionary power under s 133(3) of the CPA to order that an accused be tried separately on one or more charges was referred to by the Court of Appeal in The State of Western Australia v Karolides.[23]
[23] The State of Western Australia v Karolides [2017] WASCA 111 [22] - [30].
Severance application - Narkle
It is common for dishonesty type offences such as stealing, burglaries and robberies notwithstanding each offence may involve different dates, locations and complainants to be joined on the same indictment against an accused pursuant to cl 7(3)(a) of sch 1 of the CPA because they constitute a series of offences of a similar character.
Mr Narkle submits if all counts proceed as a joint trial the jury will be made aware that he faces other charges which implies persistent bad behaviour which is prejudicial to him. There is also a risk because of the number of charges he 'must be guilty of something'.
The evidence of the comment alleged to have been made by the male offender to the staff member in count 4 would be cross‑admissible as circumstantial evidence in relation to count 2 and vice versa. Both offences are alleged to have occurred at the same 'drive-through' liquor store in Clarkson and involve the same complainant.
I accept there will be some prejudice to Mr Narkle if the four counts on the indictment proceed as a joint trial.
In The State of Western Australia v Karolides the Court of Appeal said it is common in a trial of more than one charge against an accused that evidence may be admissible in respect of only one of the charges.[24]
[24] The State of Western Australia v Karolides [32].
If the trial proceeded as four joint counts, a standard separate consideration of the evidence of each count direction will be given by the trial judge to the jury. Directions will also be given by the trial judge about identity evidence of the offender and the difference in this evidence on each count.
I have no doubt that the jury will be capable of performing its fact finding in accordance with the direction requiring separate consideration of the evidence relevant to each count.[25] The evidence of the circumstances relating to each count are not so strikingly similar that the only available conclusion is the same person committed all four offences.
[25] Zammit [65].
I am satisfied that any relevant prejudice to Mr Narkle arising from the joinder of the four counts on the indictment described in [74] could be guarded against adequately by judicial direction to the jury. In those circumstances I am satisfied Mr Narkle could receive a fair trial.
The applications for severance of the indictment by Mr Narkle dated 9 June 2021 and 31 August 2021 are dismissed.
Severance application - Champion
The evidence in relation to counts 1, 2 and 3 where Mr Narkle is solely charged is not admissible against Ms Champion in count 4 where she is jointly charged with Mr Narkle. The State case does not suggest Ms Champion was present when any of the offences the subject of counts 1 - 3 were committed.
In The State of Western Australia v Karolides the Court of Appeal said:[26]
The fact that evidence is admissible against one accused, but not against another, or that evidence is admissible on one charge, but not in relation to another, is not of itself a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one of two or more accused is received into evidence. Similarly, it is common in a trial of more than one charge against an accused that evidence may be admissible in respect of only one of the charges.
[26] Karolides [32].
The trial judge will be obliged to give directions requiring a jury to give separate consideration in relation to the admissible evidence against each accused in relation to count 4.
Ms Champion has not demonstrated any real prejudice to her by the joinder of count 4 with the three counts against Mr Narkle only. Ms Champion merely suggests impermissible prejudice in a general sense due to a concern of 'guilt by association' with Mr Narkle. I do not consider the State case against Ms Champion in count 4 is significantly weaker than that against Mr Narkle.
The direction the trial judge will give in relation to the separate consideration in relation to the evidence admissible against each accused will cure any prejudice arising. There is a general presumption at law that the jury will accept and faithfully apply the trial judge's directions of this type.
The prejudice Ms Champion submits in relation to the propensity and cross-admissible evidence against Mr Narkle does not arise as I have ruled against the State as to the admissibility of this evidence.
The application for severance of the indictment by Ms Champion dated 14 June 2021 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Associate to the Judge
11 OCTOBER 2021
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