The State of Western Australia v Narrier

[2014] WASC 111

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NARRIER [2014] WASC 111

CORAM:   SIMMONDS J

HEARD:   12 MARCH 2014

DELIVERED          :   12 MARCH 2014

FILE NO/S:   INS 212 of 2013

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

GREGSON JAMES NARRIER
Respondent

Catchwords:

Criminal law and procedure - Application for leave to adduce propensity evidence for trial for stealing, armed robbery and attempted armed robbery - Offending on previous day of lesser seriousness with same co-offender

Evidence law - Admissibility of propensity evidence - Applicable principles

Legislation:

Criminal Code (WA), s 74A, s 378, s 392, s 444, s 552
Evidence Act 1906 (WA), s 31A
Weapons Act 1999 (WA), s 8, s 10

Result:

Leave to adduce evidence granted

Category:    B

Representation:

Counsel:

Applicant:     Ms D Mattock

Respondent:     Mr D C Rice

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Griffiths Rice & Co

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

Dair v The State of Western Australia [2008] WASCA 72

Daniels v The State of Western Australia [2012] WASCA 213

Di Lena v The State of Western Australia [2006] WASCA 162

Donaldson v The State of Western Australia [2005] WASCA 196

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Preston v The State of Western Australia [2012] WASCA 64

SIMMONDS J: 

Introduction

1. These are fuller reasons for the decision for which I gave shorter oral reasons at the conclusion of the hearing of the present application.  I indicated when I gave that decision that such fuller reasons would be provided.

2. The present application is by the state for leave to lead certain evidence at an upcoming trial on indictment.  It was evidence of a prior violent incident on the day before the incident the subject of the indictment.

3. The application was confirmed at a status conference on 23 January 2014 at which the hearing of the present application was initially listed.

4. The trial is listed to run for three days, commencing 14 April 2014 concluding on the 17 April.  At the status conference on 23 January 2014, before Hall J, counsel for the defence, who I understood was the same counsel as before me for the hearing of the present application, confirmed those dates were still suitable.

5. The present application was opposed.

6. I determined I would grant the application.

The present proceedings

1. By the indictment the respondent faces three charges.

2. Count 1 is that, on 18 June 2013 at Morley, contrary to Criminal Code (WA) (Code) s 378, the accused stole vehicle keys the property of Verity Grace Bignell.

3. Count 2 is that, on the same day at the same place, contrary to Code s 392 read with s 552, the accused stole from Kristin Jade Broadhurst, with violence, a mobile phone which was her property; and that he was armed with an offensive weapon, namely, a screwdriver; and that he was in company with another.

4. I note it was confirmed to me at the hearing that the reference to s 552 in the indictment count 2 is in error, as count 2 is of an armed robbery, not an attempted armed robbery.

5. Count 3 is that, on the same date and at the same place as in the previous two counts, contrary to Code s 392 read with s 552, the accused attempted to steal from Cameron David Hill, with threats of violence, a set of keys the property of him; and that the accused was armed with an offensive weapon, namely, a screwdriver; and that the accused was in company with another.

6. The statement of material facts for these offences is to the following effect.

7. On 18 June 2013, a Tuesday, at about 2.00 pm, the accused and the co‑accused, Ozac Dickerson, were walking through the Morley Market car park on Walter Road in Morley.

8. The accused and the co‑accused approached an unoccupied Nissan Pintara vehicle, registration number 8DM 714, parked close to the Les Hansman Community Centre.

9. The co‑accused looked through the driver's side window before smashing it to gain entry to the vehicle.  He rummaged through the vehicle and stole a pair of black sunglasses and singular Hyundai vehicle key, valued at approximately $100.

10. A short time later, the owner of the vehicle, Mr Hill, approached it and saw its driver's window was smashed.  He was approached by Ms Broadhurst.  She stated that she had seen the incident and taken photographs of the offenders on her mobile telephone.

11. The accused and the co‑accused, upon this occurring, approached both Mr Hill and Ms Broadhurst in an agitated manner.  The accused and the co‑accused demanded that Ms Broadhurst delete the images from her mobile telephone.

12. The co‑accused said to Ms Broadhurst 'Give me your keys'.  The accused grabbed Ms Broadhurst's left arm, causing her discomfort.  While holding Ms Broadhurst's arm, the accused said 'Give me your phone'.

13. The accused and the co‑accused grabbed the phone from Ms Broadhurst's hand, causing the phone's cover to be damaged.  She retrieved the phone from the co-accused.

14. The co‑accused then stated to her 'Give me your phone or I'll stab you'.

15. The co‑accused produced a screwdriver, approximately 30 cm in length, from his jacket and held it in front of him, towards Ms Broadhurst, in a threatening manner.

16. The co‑accused again said to her 'I'll stab you if you don't give me your phone'.

17. The accused for his part said 'I'll smash your car if you don't give me your phone'.

18. The accused and the co-accused then approached Mr Hill who was standing a short distance away, close to the Nissan Pintara.

19. The co‑accused held the screwdriver out in front of him with an extended arm and pointed it towards Mr Hill, saying 'Give me your keys or I will use this on you.  I have been to jail before'.

20. The accused then circled around to the rear of Mr Hill and said 'I'll bash you'.

21. Mr Hill took this opportunity to run from the car park and towards the shopping centre, where he contacted police.

22. The co‑accused was arrested by police after a foot chase with witnesses to a separate incident.  He was taken to Morley police station.  He participated in an electronically recorded interview in which he made partial admissions to the offence.

23. The co‑accused's explanation was 'I was off my face on weeds, piss and sniff.  I don't really remember what happened but I asked him for money and he said no so I got pissed off.  I wanted to make him piss.  You can't go around taking pictures of people so I got pissed off.  You have to pay famous people to their pictures and I'm a famous artist'.

24. The accused was arrested several hours later, hiding in the roof space or family member's house.  The accused refused to participate in an electronically recorded interview.

25. I will shortly return to the parties' expectations as to the issues at the trial.

26. I turn now to the present application.

The state's application

1. The state's application is dated 17 December 2013 and is as follows:

   In any trial on indictment 212 of 2013 the State is permitted to lead evidence of the conduct of the accused person relating to offences contained in PPE 30854, PPE 30855 and PPE 30856 in respect of which the accused pleaded guilty in the Perth Magistrates Court on 18 November 2013.

2. The prosecution notice PPE 30854 of 2013 was that, on 17 June 2013 at Mirabooka, contrary to Code s 74A(2)(a), the accused, being in a public place, behaved in a disorderly manner by fighting, using abusive/offensive language and sniffing solvents.

3. The prosecution notice PPE 30855 of 2013 was that, on 17 June 2013 at Mirabooka, contrary to Code s 444(1)(b), the accused wilfully and unlawfully damaged the rear windscreen of 1ANL 258, a Hyundai Lantra, being the property of Mahandra Kanji.

4. The prosecution notice PPE 30856 of 2013 was that, on 17 June 2013 at Mirabooka, contrary to Weapons Act 1999 (WA) s 8(1)(b), the accused, not being a person exempted under subsection (3), (5) or s 10, carried an article, namely a screwdriver, not being a firearm, a prohibited weapon, or controlled weapon, with the intention of using it to cause any person to fear that someone will be injured or disabled by its use.

5. On 18 November 2013 in the Perth Magistrates Court the accused pleaded guilty to those three charges.  The accused was unrepresented.  The transcript of the proceedings before Magistrate Bayly shows those pleas as follows, starting after the accused confirmed he was not represented:

   HIS HONOUR:  Right.  You're charged, firstly, 17 June 2013, being in a public place, behaving in a disorderly manner by fighting.  How do you plead?

   ACCUSED:  Guilty.

   HIS HONOUR:  Also charged on 17 January [sic] wilfully and unlawfully damaged the rear window of 1 ANL 258 [Hyundai Lantra], being the property of Maharunda Kanji; how do you plead?

   ACCUSED:  Guilty

   HIS HONOUR:  Also charged that on the same day not being a person exempt under section 35 or 10, carried an article, namely a screwdriver with intention of causing - using it to cause any person to fear that someone would be injured by its use.  How do you plead?

   ACCUSED:  Guilty.

6. The statements of material facts for these offences are to the following effect and are in terms which are largely those used by the prosecutor at the hearing in the Perth Magistrates Court on 18 November 2013.

7. On 17 June 2013, a Monday, at 2.45 pm, the accused and the co‑accused, also Mr Dickerson, were sniffing solvents in the car park at the front of Centrelink in Mirabooka.

8. The accused and the co-accused approached two males in the car park.  The group became involved in a fight.  The accused took off his shirt and armed himself with a screwdriver while yelling abuse at the two males.  At the time there were several members of the public in the car park watching the altercation.

9. During the fight the accused approached the Hyundai Lantra and stabbed the rear window, causing it to smash.

10. The entire incident was captured on CCTV.

11. Police arrived and the accused ran from the area.  However, he was immediately arrested.  He participated in a video recorded interview and made full admissions to all offences.

12. The accused apologised for causing the damage to the vehicle and offered to pay for the cost of the repair.

13. The accused stated that he carried a screwdriver for protection from his enemies.

14. At the hearing of the present application counsel for the state confirmed that there were some aspects of those facts which the state was not suggesting should be put before the jury by the terms of any leave granted pursuant to the present application.  In particular, the state referred to facts appearing in the statement of material facts for the prosecution notice offences that the accused was sniffing solvents; and that the accused ran from the area after the incident in question.

The applicable legal principles

1. It is not in contest that Evidence Act 1906 (WA) s 31A is the only basis upon which the state's application may be granted.

2. Evidence Act s 31A is as follows:

   31A.Propensity and relationship evidence

   (1)In this section -

   propensity evidence means -

   (a)similar fact evidence or other evidence of the conduct of the accused person; or

   (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

   relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

   (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

   (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

3. On what I consider to be the principal authorities on the application of these provisions I take the following propositions to be established:

   1.A determination by a trial judge to admit evidence under Evidence Act s 31A(2) is one of law, not of discretion. If the trial judge concludes that the evidence has significant probative value, and that fair minded people, comparing its probative value to the risk of an unfair trial, would think the public interest in producing relevant evidence of guilt must have priority over the risk of an unfair trial, then he or she is bound to admit it. See Di Lena v The State of Western Australia [2006] WASCA 162 [60] (Roberts‑Smith JA, Wheeler & Pullin JJA agreeing).

   2.The definition of propensity evidence in Evidence Act s 31A(1) is extraordinarily wide, going beyond what the common law understood by that category of evidence and embracing not just similar fact evidence, but also evidence of the character or reputation of the accused or of a tendency that he or she has or had, as well as 'other evidence of the conduct of the accused person'. See Preston v The State of Western Australia [2012] WASCA 64 [36] (Mazza JA, Martin CJ & Buss JA agreeing); see also Di Lena [52] (Roberts‑Smith JA). The evidence does not need to fall within the category of similar evidence, let alone strikingly similar evidence. See Donaldson v The State of Western Australia [2005] WASCA 196 [120] ‑ [122] (Roberts‑Smith JA, Wheeler JA agreeing). I note Miller AJA also agreed with Roberts‑Smith JA on the question of s 31A: see [185].

   3.The evidence in question must be relevant before it can be admitted into evidence.  This means it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of fact in issue in the proceeding.  See Dair v The State of Western Australia [2008] WASCA 72 [60] (Steytler P), which I note was quoted in Daniels v The State of Western Australia [2012] WASCA 213 [47] (Buss JA, Martin CJ & Mazza JA agreeing).

   4.The evidence in question must also be of significant probative value, meaning it must be such as could rationally effect the assessment of the probability of the relevant facts and issues to a significant extent: ie, more is required than mere relevance but less than a substantial degree of relevance.  It is a probative value which is important or of consequence.  Significance of the probative value of the tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have an establishing the fact.  See Dair [61] (Steytler P), quoted in Daniels [47] (Buss JA, Martin CJ & Mazza JA agreeing).

   5.Evidence Act 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. See Dair [62] (Steytler P), as described in Daniels [50] (Buss JA).

   6.The risk of an unfair trial includes the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude that an accused must have committed the offence charged simply because he or she has committed other offences, or has done, or his reputation to doing, other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.  See Donaldson [127] (Roberts‑Smith JA).

   7.The risk of an unfair trial also includes the risk that the jury will condemn the accused not because he is believed guilty of the present charge but because he has escaped punishment for other offences, that is, the reception of the evidence might result in a bias being formed against the accused which would taint the jury's decision.  See Dair [63] (Steytler P).

   8.The risk of an unfair trial also includes the risk that the jury might become confused or distracted as it concentrated on resolving whether an accused actually committed the similar acts.  See Dair [63] (Steytler P).

   9.When assessing the risk of an unfair trial for the purposes of Evidence Act s 31A(2)(b) the court will 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. See Dair [64] (Steytler P), as described in Daniels [50] (Buss JA).

   10.However, it is important to bear in mind in respect of the matter of directions that, when propensity evidence is admissible as such, because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required.  See Dair [64] (Steytler P). See also Daniels [94] (Buss JA), referring to Dair [64] among other authorities, and explaining that by 'standard propensity warning' is meant 'a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] ‑ [3]; and explaining also that the reason a standard propensity warning is not required is that 'the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged'.

   11.At the same time, when evidence is admissible under Evidence Act s 31A, but on the basis it was relationship evidence, a warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of a miscarriage of justice. See Daniels [95] (Buss JA).

   12.Having identified the probative value of the evidence, and the degree of risk of an unfair trial, the court must make the comparison referred to in Evidence Act s 31A(2)(b): that comparison requires an assessment to be made whether fair‑minded people would think that the interests of justice require the admission of the evidence despite the risk; and for that purpose fair‑minded people are to be regarded as reasonable members of the general public who are not lawyers and who have informed themselves of at least the most basic considerations relevant to arriving at their conclusion founded on a fair understanding of all the relevant circumstances. See Dair [66] ‑ [67] (Steytler P), referred to in Daniels [50] (Buss JA).

4. I have included propositions that refer to one part of s 31A which is not of relevance to me, namely, the admission of relationship evidence. I have done so because of the way in which s 31A deals with both propensity and relationship evidence. This, it seems to me, makes it is rather difficult to analyse the provision other than by taking account of what it has to say as to relationship evidence.

5. I did not understand any of the propositions to be in contest before me.

6. I note that, given the breadth of the definition of propensity evidence, as acknowledged in the authorities I rely upon or refer to for proposition 2, it is, in my view, impossible to resist the conclusion that the evidence the state seeks leave to adduce is propensity evidence within that definition.

7. It will be evident from proposition 3 that a fact or facts in issue in these proceedings must be identified by the state for the purposes of the application of Evidence Act s 31A.

8. Prior to the hearing the state had identified for those purposes the following issues for the trial:

   1.Was the accused one of the two males present at the time of the commission of the offences?

   2.If the accused was present, to what extent did he participate in the commission of the offences? The state explained that this was an issue going to the extent of his direct participation for the purpose of s 7 of the Code, or the extent of the participation by him as satisfying, if it did, the requirements of s 8 of the Code.

   3.If the accused was present, did he have knowledge of the existence and use of the screwdriver?  Of course on the statement of material facts for the prosecution notice offences, the screwdriver was used not by the accused but by his co‑accused.  His co‑accused, in the present matter, was also the co‑accused with the accused in respect of the previous matter.  In the previous matter, however, the accused used the screwdriver.  It is not contended before me that the same screwdriver was involved in both incidents.  Rather, the state relied upon the fact, which I did not understand to be contested, it was a screwdriver of the same general kind as the screwdriver in the present incident.

1. It became apparent, both from the written submissions for the defence, and what counsel for the defence indicated at the hearing before me, that there will be no issue 1.  Issue 1 was accordingly put aside.

2. At the hearing before me, as in the written submissions for the parties, the principal focus was on the first of the remaining two issues, issue 2.

The application of those principles:  whether the proposed evidence would have significant probative value

1. I remind myself again that the proposed evidence is in terms of the statement of material facts for the three prosecution notice offences, with the deletions that I have indicated.

2. The matter of significant probative value is, in terms of proposition 4, value such that the proposed evidence could rationally affect the assessment of the probability of the relevant facts and issues to a significant extent.

3. I note in passing that it was not pressed on me that the threshold question of relevance, from proposition 3, was in issue here.  That is to say, the matter the state sought to have led did have relevance.

4. But more is required than mere relevance, although less than a substantial degree of relevance.  It is a probative value which is important or of consequence.  The significance of the probative value of the relevant evidence must depend on the nature of the facts in issue to which it has relevance and the significance or importance of that evidence, being the significance or importance which it may have in establishing that fact.

5. It seems to me that, while there are indeed significant differences between the two sets of facts, the facts for the prior incident and the facts for the present incident as alleged, there is a significant probative value to the prior matters.

6. The differences are clearly the nature of the offences in the first case relative to the nature of the alleged offences in the second.  There are significant differences of seriousness.  Further, there is the fact that the previous incident did not involve an attempt to take, or the taking of, property.

7. As well, there are modus operandi differences between the two.  It was the accused in the earlier incident who produced a screwdriver, in the second it was the co‑accused.

8. Nonetheless it seems to me that, given the context to the offences in both cases being occurrence in a public place in daylight hours before members of the public in a position to witness what was going on, the fact that a screwdriver was involved, being used by one of those present at the time, and that the same co‑accused was involved in offending that involved property damage of a similar kind, is such as in my assessment to satisfy the requirement for significant probative value.

The application of those principles:  the degree of risk of an unfair trial were the proposed evidence to be admitted

1. I consider the degree of risk must be assessed, in accordance with proposition 6 above, as follows.

2. It seems to me that the differences I described under the previous heading highlight the degree of risk of an unfair trial were the proposed evidence to be admitted.

3. That risk is that because the accused had behaved in such a fashion on a previous occasion, indeed in a previous occasion so proximate in time and involving the same co‑accused, that in respect of an altogether more serious set of matters a jury might elide or not sufficiently take account of the differences and proceed down a line of analysis of the kind which the authorities indicate is the risk in more general terms of the admission of evidence of this kind.  That line of analysis is that, because the accused is that sort of person who did that sort of thing, he is the person who did this thing.

4. That degree of risk, it seems to me, is not insignificant.  At the same time it seems to me that that risk is reasonably self‑evident.  By that I mean it is reasonably clear, from the nature of the previous incident, or the nature of the previous matters, in what ways they differed from the present matters.

5. It also seems to me that a jury would, in a properly conducted and properly directed trial proceeding, have steadily before them those matters of difference, as well as those matters of similarity or connection.

The application of those principles:  whether fair minded people would think the interests of justice require the admission of the proposed evidence despite the risk

1. I consider the answer to this question is to be arrived at in accordance with proposition 12.

2. In that respect it seems to me that I must take it fair minded people would be attentive to considerations of the kind I have just rehearsed with respect to the appearance of difference as well as of similarity.

3. As well, fair minded people would take account of directions of the kind that might be given at the trial.

4. Counsel for the state, when I asked her what directions she considered might be appropriate, indicated, as perhaps I might have expected her to, they might be in the following terms.

5. Simply because the accused had been convicted of offending in respect of the conduct, the subject of the state's application should not lead the jury to conclude that he was guilty in respect of the present matter. Rather, those previous matters were one aspect of the evidence that the state relied upon as to what the state contended was the accused role or participation in the offending for the purpose of its case with respect to Code s 7 and s 8.

6. The state also drew my attention to the fact that there will be other evidence of a significant kind with respect to those matters, being the evidence of Mr Hill and Ms Broadhurst, who are referred to in the statement of material facts for the present alleged offending, as well as of a friend of Mr Hill who was present with him at the time and in the place of the incident.

7. Those matters, the state said, would assist in ensuring, first, that the jury had a clear understanding of the nature of the case the state was required to make in respect of s 7 and s 8 of the Code, but also, second, that the evidence of the previous incident would not be of such a character as to overwhelm the jury's proper assessment of all the evidence and what both the prosecution case and the defence had to say about it in relation to the present offending.

8. In my view the other evidence in the trial is relevant for the purpose of making that determination as to whether or not the proper assessment by a jury would be so overwhelmed, and that in making that assessment the giving of an appropriate direction should also be taken into account.

9. At the same time, of course, I note, as I did during the hearing, that it is not my task to indicate that any particular direction is necessarily appropriate for the trial.  The matter depends, it seems to me, on how the trial unfolds.

10. Nonetheless, the possibility of a direction of the kind the state commends is a matter that it seems to me that I can properly take into account in evaluating whether I am satisfied that fair-minded people would think the interests of justice required the admission of the proposed evidence despite the risk.

11. In those terms I am so satisfied.

Conclusions and orders

1. Having been satisfied then as to the three matters arising out of Evidence Act s 31A that I have addressed, I would grant the leave to the state that the state seeks by the present application.