The State of Western Australia v Newport
[2014] WASC 428
•14 NOVEMBER 2014
THE STATE OF WESTERN AUSTRALIA -v- NEWPORT [2014] WASC 428
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 428 | |
| 14/11/2014 | |||
| Case No: | INS:228/2013 | 12 SEPTEMBER 2014 | |
| Coram: | SIMMONDS J | 17/09/14 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to lead evidence granted, in part | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARK JOHN NEWPORT |
Catchwords: | Criminal law and procedure Indictment for burglary, stealing, receiving and arson Application for permission to lead propensity evidence in forthcoming trial Evidence Previous offending of stealing with reckless use of motorcycle Admission of burglary and stealing offences on indictment and related evidence Propensity evidence under Evidence Act 1906 (WA) s 31A Whether previous offending, admissions and related evidence propensity evidence Whether propensity evidence relevant Whether propensity evidence has significant probative value What degree of risk of unfair prejudice at trial Comparison of that value and that risk taking account of possible trial directions |
Legislation: | Criminal Code (WA), s 371A, s 378, s 401, s 414, s 444 Evidence Act 1906 (WA), s 31A Road Traffic Act 1974 (WA), s 60 |
Case References: | Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
MARK JOHN NEWPORT
Respondent
Catchwords:
Criminal law and procedure - Indictment for burglary, stealing, receiving and arson - Application for permission to lead propensity evidence in forthcoming trial
Evidence - Previous offending of stealing with reckless use of motorcycle - Admission of burglary and stealing offences on indictment and related evidence - Propensity evidence under Evidence Act 1906 (WA) s 31A - Whether previous offending, admissions and related evidence propensity evidence - Whether propensity evidence relevant - Whether propensity evidence has significant probative value - What degree of risk of unfair prejudice at trial - Comparison of that value and that risk taking account of possible trial directions
Legislation:
Criminal Code (WA), s 371A, s 378, s 401, s 414, s 444
Evidence Act 1906 (WA), s 31A
Road Traffic Act 1974 (WA), s 60
Result:
Application for leave to lead evidence granted, in part
Category: B
Representation:
Counsel:
Applicant : Mr B F Stanwix
Respondent : Mr A D Sullivan
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
- SIMMONDS J:
Introduction
1 This is an application by the State for orders to permit it to lead certain evidence at a five day trial by jury before me, listed to commence on 22 September 2014, on the present indictment. The basis for the application is that the evidence is propensity evidence admissible under Evidence Act 1906 (WA) s 31A.
2 I have concluded that the application should be granted, in part. The following are my reasons.
3 In these reasons I first describe the matter the subject of the present indictment.
4 Then I describe the State's application in more detail and the evidence to which that application relates.
5 Next, I describe the applicable legal principles, including the statutory background relevant to determining that application.
6 I then apply those legal principles.
7 The concluding section of these reasons contains my conclusion and orders.
The matter the subject of the present indictment
8 The present indictment, INS 228 of 2013, is dated 19 March 2014. It contains 11 counts, as follows:
1. Contrary to Criminal Code (WA) s 401(2)(b), on 14 January 2013 at Cooloongup the accused while in the place of Carol Jean Chitty without her consent committed the offence of stealing; and that the place was ordinarily used for human habitation.
2. Contrary to Code s 371A read with s 378, on the same date and at the same place as in count 1 the accused stole a motor-vehicle, namely, a Suzuki Swift registration number 1BYR 561, the property of Ms Chitty.
3. Contrary to Code s 414, on a date unknown between 31 January 2013 and 9 February 2013 at Port Kennedy the accused received a Stinger electrical circuit tester, the property of Kristoffer David Eames, which had then lately been obtained as part of the proceeds of an indictable offence, namely, burglary, then well knowing the same to have been so obtained.
4. Contrary to Code s 414, on a date unknown between 31 January 2013 and 9 February 2013 at Port Kennedy the accused received a Yamaha motorcycle registration number 1AB 020, the property of Mr Eames, which had been lately been stolen knowing the same to have been stolen.
5. Contrary to Code s 414, on a date unknown between 31 January 2013 and 9 February 2013 at Port Kennedy the accused received a Toyota Hiace van registration number MH 69570, the property of Mr Eames, which had been lately been stolen knowing the same to have been stolen.
6. Contrary to Code s 444(1)(a), on 2 February 2013 at Port Kennedy the accused wilfully and unlawfully damaged the Toyota Hiace; and that the Toyota Hiace was damaged by fire.
7. Contrary to Code s 414, on a date unknown between 31 January 2013 and 9 February 2013 at Port Kennedy the accused received a PlayStation 3, a Karcher high-pressure water spray, a metal ute cover and a Pioneer amplifier, the property of Alex Mark Goodwin, which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, knowing the same to have been so obtained.
8. Contrary to Code s 414, on a date unknown between 1 February 2013 and 9 February 2013 at Port Kennedy the accused received a cheque, a ceramic egg, a brooch, and an ASUS laptop, the property of Colleen Elaine Mills, which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, knowing the same to have been so obtained.
9. Contrary to Code s 414, on a date unknown between 2 February 2013 and 9 February 2013 at Port Kennedy the accused received a Samsung laptop, the property of Christopher Brian Warren, which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, knowing the same to have been so obtained.
10. Contrary to Code s 414, on a date unknown between 3 February 2013 and 9 February 2013 at Port Kennedy the accused received naval identification tags, the property of Nicole Elizabeth Stoltenberg, which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, knowing the same to have been so obtained.
11. Contrary to Code s 414, on a date unknown between 8 January 2013 and 9 February 2013 at Port Kennedy the accused received a Nokia mobile telephone and DJ equipment, the property of Shan Maui Ruakere, which had then lately been obtained as part of the proceeds of an indictable offence, namely burglary, knowing the same to have been so obtained.
9 It will be noted that most of these offences are ones of receiving property that either had formed part of the proceeds of a burglary (count 3 and counts 7 - 11) or had lately been stolen (counts 4 and 5).
10 Of the remaining counts, count 1 is of home burglary, count 2 is of steal motor vehicle and count 6 is of arson involving the vehicle the subject of count 5 which was the property of the person whose property is also the subject of count 4.
11 It will further be noted that all of these offences are alleged to have been committed between 14 January 2013 and 9 February 2013.
12 There is no statement of material facts for the receiving offences. However, both counsel appear to have accepted that a sufficient statement of the material facts of all of the offences, including the receiving offences, and of certain matters of evidence relating to those facts of significance to me, appear in the State's outline of submissions to lead propensity evidence dated 8 September 2014.
13 I set out in somewhat abbreviated form those matters so appearing.
Counts 1 and 2
14 At about 12.30 pm on 14 January 2013, police executed a search warrant at 2 Sheridan Way in Port Kennedy (the Sheridan Way residence). At the time of the search a Ms SC, who was the accused's housemate, and her partner, Mr DF, were present at the house. The accused was not present. The accused, Ms SC and her children lived at the Sheridan Way residence at the time of the search. The Sheridan Way residence belonged to the parents of the accused.
15 During the search, police found the Suzuki Swift from count 2 in the rear shed as well as property in the dining room, the lounge room and the main bedroom. The accused was staying in the main bedroom. All of this property was later linked to the offences in counts 1 and 2.
16 Partially burnt cheque books stolen during the offence in count 1 were found on the fireplace in the lounge room.
17 The offences in counts 1 and 2 had occurred between 5.30 am and 12.20 pm on 14 January 2013, the same day the search warrant was executed. Those offences had occurred at the home of Colin Chitty and Ms Chitty. That home was located at 31 Sunningdale Circle in Cooloongup.
18 The Chitty home on Sunningdale Circle had been accessed through a smashed rear bedroom window after the fly screen had been removed. On the window ledge, police located a pair of secateurs, a black handled knife and a pair of black handled scissors. Those items appeared to have been used to gain access to the house. They belonged to the Chittys and were usually kept in the outdoor bar area. A forensic examination of the Chitty home on Sunningdale Circle resulted in the location of trace DNA matched to DNA of the accused. The trace DNA was taken from the handle of a knife on the floor outside the point of entry, the handle of a pair of scissors on the window ledge outside the point of entry and the mouth area of the partially drunk ginger beer can in the linen cupboard.
19 A forensic examination of the stolen Suzuki from count 2 did not, however, result in any matches to the accused.
20 One or two days after the offence in count 1, a neighbour of the Chittys was walking in nearby bushland where he located a biscuit tin containing partially burnt papers in the name of the Chittys (bills and insurance documents). He returned the papers to Ms Chitty.
21 Ms SE was questioned about the property found by police. She denied that any of the property belonged to her or Mr DF. She also advised that she had been admitted to the Emergency Department of the Rockingham Hospital the day before, following a suicide attempt.
22 At about 5.00 pm on 8 February 2013, the accused was interviewed about the offences in Counts 1 and 2. He stated as follows:
• his mother and nephew lived on Timberlane Loop, which adjoined Sunningdale Circle in Cooloongup;
• he did not know an elderly lady by the name of Carol Chitty;
• he had not seen any 2005 blue Suzuki Swifts around;
• he did not remember sitting in a Suzuki Swift in January; and
• there was no reason why his DNA or fingerprints would be in the stolen Suzuki Swift.
23 During that same interview, the accused indicated that he had hardly been at the Sheridan Way residence of late.
Counts 3 to 6
24 A burglary occurred between 8.20 am and 1.30 pm 1 February 2013 at 14 Leisure way in Waikiki. This was the home of Jodie Yule and her partner, Mr Eames. Access to the house was gained by forcing the side gate before smashing back sliding door with a rock. The shed had been accessed by forcing the lock to the roller door and jimmying up the roller door.
25 During the burglary and associated steal motor vehicle offences the following items of property were stolen:
• a 1994 white Toyota Hiace van, registration MH 69570 from the front of the house: this was the Toyota Hiace van in counts 5 and 6;
• a Stinger electrical circuit tester and explosive initiator, which had been in the Toyota Hiace van: the Stinger electrical circuit tester was the device in count 3;
• a Kawasaki KLX 125 off road motorcycle (green and white in colour with a number holder on the front and a number '7' and 'DC' stickers on the side) from a reinforced shed;
• a Honda CRF 450 off-road motorcycle (red and white in colour with gold forks and a 'DC' sticker on the rear side panel) from a reinforced shed;
• a Yamaha R1 sports motorcycle registration number 1AB 080 (red and white with a Chinese symbol on a white background) from a reinforced shed: this was the Yamaha motorcycle in count 4;
• spare keys to the shed from the main bedroom;
• a charm bracelet from within the house; and
• a money tin containing about $500 in notes and coins from within the house.
26 At about 6.00 pm on 2 February 2013, the stolen white Toyota Hiace van was located burning at Cote d'Azur Gardens in Port Kennedy. Inside the van were the remains of documents and property which were later linked to the burglary of the house of Colleen Mills (see count 8, below). Fire services attended to put out the blaze.
27 Police executed a search warrant at the Sheridan Way residence, at about 8.00 am on 8 February 2013. At the time of the search, the accused, a Ms KT, Ms SE and Mr DF were present. Ms KT and Mr DF lived elsewhere and only stayed at the Sheridan Way residence on occasion.
28 During the search police located the following relevant items of property:
• a side wing mirror, ignition barrel guard and brake lever belonging to Yamaha R1 motorcycle in the rear garden shed; and
• the stinger electrical circuit and explosive initiator on the shelf behind the bar in the garage.
29 The Yamaha R1 motorcycle parts found during the search of the house on 8 February 2013 were matched to the stolen Yamaha R1 motorcycle the subject of count 4. The other property found was also linked to the burglary at the home of Ms Yule and Mr Eames referred to in count 3.
30 During the search, police located most of the property of Ms SE boxed up and moved outside. Ms SE stated that she was in the process of moving out. She denied ownership of the stolen property as did Ms KT.
31 During the search 8 February 2013, the accused was asked about the ignition barrel guard found in the shed, which appeared to have been snapped off. The accused said he did not know anything about that item and that he had not done any car maintenance recently. He said that if he was not there he was at another house and so someone could have come into the shed without his knowledge. He then asked police if it could have come from his old car, but police informed him that it looked to have come from a motorcycle, not a car. The accused replied that he did not know anything about it in that circumstance. The accused was then asked about the motorcycle mirror, also in the shed. The accused said he had not seen it and he had not touched it. The accused was then asked about the brake lever and the accused said he did not know anything about that; that he had never seen a motorcycle in the shed; and that he had never had a motorcycle. In relation to the Stinger explosive initiator, the accused said he had never seen it before and that he did not even know what it was. He did not know to whom the item belonged.
32 After the search was completed, the accused was interviewed by police at about 5.00 pm on 8 February 2013 (the same day as the search) at the Rockingham Police Station. He stated as follows:
• he had not seen a red and white Yamaha R1 motorcycle; a red and white off-road Honda CRF 450 or a green and white Kawasaki 125 at his house in the last week; he had not seen anyone coming or going from his house with any motorcycle;
• police told him that there had been reports of motorcycles coming and going from his house in the previous few days: the accused maintained that he was not aware of this and did not see them;
• he had not seen a white Toyota Hiace van in the previous week; no one had visited his house in such a vehicle; he did not see the van coming and going from his house; he had not been there;
• the motorcycle parts found in the shed should not be there because he did not own a road bike; the bike parts were not his; he did not put them there; and he did not know how they ended up in the shed;
• he had nothing to do with motorcycles;
• he went into the shed, but not often; he was last in the shed some weeks earlier; the last time he was in the shed motorcycle parts were not there; he had not been in the shed for a long time; it was all Ms SP's and Mr DF's 'shit';
• Ms SC and Mr DF did stuff and he was stupid enough to get involved with it; that was all he wanted to say;
• he did not know anything about the white van being burnt; he did not burn it; he did not drive the van; he did not touch it; he did not drive the white van; he did not drive - he rode a pushbike; and
• he was not the only person who lived at the house.
33 During that same interview, on 8 February 2014 the accused was asked about his connection to the Sheridan Way residence where the search was executed. He stated that his current address was on Timberlane Loop in Cooloongup and that it was only sometimes he stayed at the Sheridan Way residence.
34 On 8 February 2013, Ms SE made a witness statement concerning what she knew about the offences and the stolen white Toyota Hiace van. She stated:
• On or about 2 February 2014 she was at the Sheridan Way residence and the accused was also there in a white van. She took a note of this at the time. This was because she had been charged with some criminal offences relating to hocking stolen items of jewellery, which she partly attributed to the accused, she wanted to keep an eye on him and pay more attention to what was going on, so as not to get into any further trouble. A note was handed to police during the search conducted 8 February 2013. The note stated: '2.2 Feb 3 DIF ones CRF 450, R1 white red seat, van van seen flames 2.2.13'.
• The van was a regular van, but there were no seats in the back, only seats at the front for the front passenger and driver. The van was not smashed up and looked quite well looked after. It was sitting under the carport in the driveway.
• Throughout the day the accused was in and out of the house in the van. While at the house, the accused was in the big shed. She did not know what the accused was doing in the shed. However, she did see three motorcycles in the shed at some point during the day.
• One of the motorcycles was an R1 red and white in colour. It had R1 written on the side of the tank. The second motorcycle was a blue road bike. The third motorcycle was a red and white CRF 450. She knew that make of bike as it was her favourite type of bike. She saw the accused tinkering with the bikes when she walked past the shed and looked in.
• The accused was bringing different stuff back and forth to the house in the van throughout the day.
• Later in the afternoon, and in the early evening, the accused went out in the van. Short time later, the accused returned to the house on foot. The accused came inside the house and into the lounge room. The accused was huffing and puffing and look flustered, as if he had been running. Ms SE asked the accused how he had got home and where the van was. The accused told her that he had parked the van up at Warnbro Beach Car Park and burned it. The accused also told her that the police were everywhere. She did not ask the accused any more questions about the matter because she did not want to get involved.
35 Mr DF made a witness statement dated 29 November 2013, stating as follows:
• At the beginning of February 2013, he was staying over with Ms SE at the Sheridan Way residence. He woke up at around midday and looked out Ms SE's window, which faced towards the carport and the shed. He saw a white van in the carport; the van was a few years old and looked like a Toyota or Mitsubishi; the van had a cargo area in the back and seats in the front.
• Mr DF saw the accused and a man Mr DF did not know unloading stuff from the van into the shed and carport. There were boxes of material.
• After about an hour, Mr DF went outside and walked to the shed. There were lots of boxes full of paperwork and knitting things. The accused looked up. Mr DF asked the accused what he was doing. The accused mumbled something and began sorting through boxes.
• After a bit, the accused held up a cheque, which Mr DF thought was for around $1,000.
• There were a lot of moneybags and donation bags belonging to a church. Mr DF had a go at the accused because he thought this was a bit off.
• The accused had his missus (Mr DF did not know her name but knew she was the mother of the accused's children) with him in the shed.
• Mr DF went back inside and came back about an hour later. They had loaded the boxes back into the white van.
• The accused asked Mr DF to follow him, so he could get rid of the van. Mr DF thought that the accused was just going to dump the van because it was stolen. Mr DF thought the van might be stolen because he had never seen the van before and he knew that the accused was out stealing. He did not want to get involved because of Ms SE and the children and the trouble it would cause. Mr DF agreed to help.
• Mr DF followed the van out of the house in Ms SP's Ford. The van drove around for a bit before heading towards the beach and car parks.
• Mr DF did not want to get involved, so he took his chance to drive away, leaving the accused and the other male to it. Mr DF drove back to the house.
• Mr DF received a phone call from the accused. The accused was out of breath and said 'Where are you?'. Mr DF did not answer and the phone cut out.
• About an hour later, the accused got home and said '[w]hat happened to you?'. Mr DF could not remember the exact words the accused used. However the accused told him that he had burnt the van. Mr DF told the accused that that was dumb.
• A couple of days later, police came to the house and searched it.
Count 7
36 During the search conducted on 8 February 2013, police located the following items of property:
• a PlayStation 3 console on shelves in the bedroom where Ms SE had been staying;
• a Karcher high-pressure water spray in the garage next to the bar and parts of which were also located in the rear garden shed;
• a green metal ute cover behind the rear garden shed; and
• a Pioneer amplifier in a hallway linen closet.
37 Those items of property were later linked to the burglary of Mr Goodwin's house on Bordeaux Ramble in Port Kennedy on 2 February 2013.
38 The burglary was discovered by Mr Goodwin when he woke up at 8.30 am on 2 February 2013. There were no signs of forced entry. Mr Goodwin believed that access was gained to the house through an open kitchen door that he left open for his dog.
39 During the burglary, the following items of property were stolen:
• a television set;
• a camera;
• an Xbox console;
• a PlayStation console;
• about 16 games belonging to the PlayStation and Xbox consoles;
• golf clubs and equipment;
• a green metal ute cover;
• a blue and white Yamaha motorcycle registration 1EB 442; and
• a Pioneer amplifier.
40 The accused was asked about his knowledge of the PlayStation 3 from the chest of drawers. He said that he had never seen the PlayStation before; he was not aware of any other PlayStation is in the house except the one for his children; and he did not know how the item got there.
41 In relation to the Karcher high-pressure water spray, part of which was located in the shed and part which was located in the garage, the accused stated that the Karcher had been there three years and he thought it belonged to his father. He said that he thought his father had left the Karcher there; and that he had used it before. His father would be able to confirm with police that it was his. The accused was positive that it was his father's and he first remembered seeing the part located in the garage about three years previously. His parents had not lived at the address for over 10 years. The accused had lived at the house for about three years.
42 In relation to the green metal ute cover found behind the rear garden shed, the accused told police during the search that he had never seen it before and that he had not been behind the shed. The ute cover could have been there when the accused moved in. He did not know. He had never touched the ute cover.
43 The accused was further interviewed about those items of property at the police station following the search. He said he was pretty sure the Karcher was his father's: his father had one just like it, which his father had got ages ago at a swap meet. The Karcher did not work, but 'Deano' had fixed it. The accused used it to clean up a bit. He then said that his father had the 'fucking same one', which was used for spraying the roof the previous year, and it worked. When challenged about the inconsistency between his father's one working and then not working, the accused said it did not work recently but did back then.
44 In relation to the green ute cover, the accused maintained that he did not know how it got there and did not know anything about it.
45 In relation to the PlayStation, the accused said that he had seen a PlayStation 3 in the house, but he did not know if it was the one that had been stolen. He had not seen the PlayStation 3 located in the chest of drawers in the bedroom of Ms SE before. He was not sure which PlayStation was which. He did not sleep in that bedroom. He did not put the item there.
46 The accused also stated that he had not seen the blue Yamaha motorcycle that had been stolen during a burglary anywhere in the last week.
Count 8
47 During the police search of the Sheridan Way residence on 8 February 2013, police located and seized the following items of property:
• partially burned documents and photographs in the fireplace in the lounge room;
• a Westpac Seventh Day Adventist Church cheque in the accused's wallet in a black bag in the kitchen;
• a decorative ceramic egg in an iPhone 3G case also containing jewellery, in the wardrobe of the accused's bedroom;
• a gold metal flower brooch on top of the tallboy in the accused's bedroom; and
• an ASUS laptop and bag with cords in the rear garden shed.
48 The ASUS laptop bag was forensically examined and the accused's fingerprint was located on the screen of the ASUS laptop.
49 Those listed items of property were linked to a burglary of the home of Ms Mills at an address on La Manche in Port Kennedy on 2 February 2013. Property from that burglary was also located in the burnt out white van from counts 5 and 6 by police on 2 February 2013.
50 On 2 February 2013 Ms Mills had moved into that address on La Manche. All of her property was still boxed from the move. She had left the house between 8.30 am and 9.00 am that day to go to the Seven Day Adventist Church where she volunteered as Treasurer. At 4.15 pm that day she received a telephone call on her mobile telling her that her pet dog was wandering around on Grand Ocean Boulevard. She had locked the dog up before leaving the house. She drove past the house on La Manche at 5.30 pm on the way to collect her dog and noticed that the garage roller door was up. When she got back at 5.45 pm she realised that the house had been broken into. The family room sliding door was open and the fly screen had been pulled off a rear bedroom window before the window was forced open. During the burglary boxes containing her clothes and jewellery, as well as her family heirlooms, were stolen.
51 During the search, various items of paperwork and some photographs were located burnt in the fireplace in the lounge room. Ms Mills confirmed with police that these belonged to her.
52 During the search, the accused was asked about the burnt documents and photographs. He said that he did not use the fireplace and that he had not seen it alight during the winter. He further stated he had never seen the documents and did not know how they got into the fireplace.
53 During the search 8 February 2013, the accused's wallet was found in a black bag in the kitchen. The accused said that he had never seen the black bag before, but admitted that the wallet found inside the black bag was his. He confirmed that the cards found in the wallet in his name were his. He said he did not know how his wallet got into the black bag. However, later he said that he probably put the wallet in the black bag.
54 The accused was then asked about a Seven Day Adventist Church cheque made out to 'Fountain in the City' in the amount of $1,702.60 which was located in his wallet. The accused told police that he found the cheque on the 558 bus about a week prior to that time and that he was planning to hand it back to the police when he was near a police station.
55 Inside the black bag with the wallet containing the cheque was also an iPad in bubble wrap. In relation to the iPad, the accused told police that he found it in a park along with a mobile telephone that police found in his bedroom. He found it under a bush in a suitcase with some other things.
56 Inside the black bag, police also found some commemorative coins, a ring and a SIM card in a glasses case. The accused told police that he found those items in the black bag in the park under the bush with the other items found. He said he had found those items the previous day.
57 In the black bag, police also found some 'Cheetah' brand gloves, which the accused said he used to ride his pushbike. The accused said he found the work gloves a couple of weeks previously on the road or something like that.
58 Also inside the black bag, police located house keys; cigarettes; and a $5 Burswood casino chip, which the accused said were his.
59 When police were searching the accused's bedroom they found a number of men's watches, jewellery, and a mobile telephone.
60 The accused said that he had found those items along with the other items he had found under a bush in the park the day before. When he was asked why those items had been separated from the other items found in the black bag in the kitchen, the accused said that it was because he was using the contacts on the phone to try to identify an owner, in his room, before he fell asleep. The accused said that the iPhone 3G case containing the decorative egg and jewellery belonged to him. However, he said he had found the decorative egg in the black bag in the kitchen along with the other items he found under a bush in the park. He had put the decorative egg in the iPhone box to keep it safe, and to keep it from breaking before he handed it in. As regards the brooch, he said he had found it on the bus and he thought he would give it to someone, or give it to the police.
61 During the search the accused denied any knowledge of the ASUS laptop and cords found in the rear garden shed.
62 The accused was interviewed at a police station following the search. In that interview:
• he maintained he had found the Seventh Day Adventist Church cheque on the bus;
• he said he did not know anything about the items of property found in the burnt out van;
• he maintained that he had never seen the burnt photographs in the fireplace before;
• he said Mr DF did stuff and so did Ms SE and he was just stupid enough to get involved with it;
• he said he had found a cheque on the bus a couple of days previously at about 8.30 am; he could not say which day for sure; he hopped on the 550 bus at the end of Chelmsford and got off about 10 minutes later at Warnbro Sound;
• as to the school certificates and truck infringement in his name found in the shed, he said that they should not have been there and that someone must have been throwing his stuff out; he could not tell police anything about the laptop found inside a bag in the shed; he did not know if he had ever touched a laptop or if police would find his fingerprints on it; he did not know because he touched a lot of that stuff;
• he said it was a fucking setup; and
• he said he had never driven the white van.
63 Mr DF and Ms SE both described seeing the accused unloading property from a white van on the day it was burnt (on or about 2 February 2013). Further, Mr DF described the accused being in the shed going through boxes of property and holding up a cheque to the value of around $1,000. Mr DF also described seeing moneybags and donation bags from a church on the same day.
Counts 9 and 10
64 During the search on 8 February 2013, police also located a Samsung laptop with a Dell laptop computer on top of a black suitcase situated in front of the breakfast bar that separated the kitchen from the dining area. The Samsung laptop computer was linked to a burglary that occurred between 12.00 pm and 1.00 pm on 3 February 2013 at an address on Tyrell Avenue in Port Kennedy. The owner of the laptop was Mr Warren. Inside the black suitcase police also located DJ equipment and a mobile telephone. The DJ equipment and mobile telephone along with the suitcase that they were in was linked to a burglary that occurred between 9 January 2013 and 8 February 2013. The burglary occurred at an address on Sepia Court in Rockingham. The owner of those items was Shan Ruakere.
65 During the search, the accused was asked about those items of property. He stated that:
• he had bought the Dell laptop and Samsung laptop computers along with the DJ equipment;
• he had not charged the computers or looked through them yet;
• he had bought them the previous day in the car park at Warnbro Fair from a man who had a white Mitsubishi van;
• he was supposed to pay the man $500 for the computers and some DJ equipment when the accused was paid his dole money;
• he was supposed to meet the man next week on Thursday at about 10.00 am (between 10.00 am and 10.30 am) to pay him the money; the man just trusted him to come back and pay the money; the accused had not shown the man any identification;
• the man had a bald head and a goatee; the man was fair skinned, in his 30s and had tattoos;
• the accused did not think the items were stolen but thought that they might not work because of the price; he thought he had got them cheaply because he was buying them without knowing whether they worked or not; he did not think they would work because of the price but he thought that he would still be able to use them in some way; he was taking his chances - they might have worked;
• the accused did not know how much a laptop usually cost;
• the accused bought the mobile telephone (with a cracked screen) from Emtech in Rockingham City for $50;
• the phone was not purchased new but second-hand;
• the accused had used the phone;
• he had bought the phone the previous week;
• the phone had the accused's SIM card in it; and
• he did not know what his telephone number was.
66 During his interview, following the police search, the accused said that the Samsung laptop on the suitcase and the other stuff was not his. The items were obviously Mr DF's and Ms SE's. They had stolen that stuff and brought it into the house. He did not know when that had been. He did not keep tabs on them.
Count 11
67 During the search 8 February 2013, police located naval identification tags in the name of 'N E STOLTENBERG' in a black bag behind the bed in the main bedroom. This was the bedroom being used by the accused. That item belonged to Ms Stoltenberg and was linked to a burglary at an address on Rheims Lane in Port Kennedy that had occurred between 1.10 pm and 1.50 pm on 4 February 2013.
68 In relation to those items, the accused told police during the search that he found them the day before in the park in a suitcase under a bush, with the mobile telephone also located in his bedroom, the iPad in bubblewrap and the commemorative coins.
Issues for the trial arising from the indictment
69 It is not in contest that at the trial there will be at least three significant issues.
70 The first issue is as to some, but by no means all, of the received property and is whether it was the accused who received the property and was in possession of it, rather than some other occupant of or visitor to the Sheridan Way residence. The accused has admitted to being in possession of some, but not more than the smaller part, of the property.
71 That issue is directly relevant to the receiving offences. It is also at least indirectly relevant (through counts 3, 4 and 5) to the arson offence (count 6).
72 The second issue is as to all of the property and is whether the accused received and possessed the property in the knowledge it had been obtained in the commission of an indictable offence. That issue is directly relevant to the receiving offences. That issue is also at least indirectly relevant (through counts 3, 4 and 5) to the arson offence (count 6).
73 The third issue is that of the identification of the accused as the offender in relation to the arson offence (count 6). That issue is one that is not dependent for its resolution upon the issues relevant to the resolution of the related receiving offences (counts 3, 4 and 5), although, as noted, there are likely to be evidentiary connections in respect of those resolutions.
74 Further, it is not in contest before me that the property the subject of counts 3 - 11 was all obtained unlawfully in the circumstances described in the receiving counts respectively.
The State's application
75 The State's application is dated 11 September 2014 and is in the following terms:
1. In any trial on indictment 228 of 2013 the State is permitted to lead, as propensity evidence, evidence of the conduct of the accused person relating to the offence contained in charge PE55925/12, the details of which are set out in Annexure A to this application (the Source Material).
2. The parties are to confer with a view to deriving a set of agreed facts from the Source Material for use in any trial on indictment 228 of 2013.
3. In any trial on indictment 228 of 2013 the State is permitted to lead, as propensity evidence going to Counts (3) to (11), evidence of the conduct of the accused person relating to the offences contained in Counts (1) and (2) on indictment 228 of 2013.
4. In any trial on indictment 228 of 2013 the State is permitted to lead, as propensity evidence, evidence of the conduct of the accused person relating to the destruction by fire of photographs and other documents linked to stolen property.
76 As to application 1 above, the source material includes the prosecution notice for that offence. That prosecution notice is to the effect that, on 9 December 2012, the accused, contrary to Code s 378(2)(a), stole a motor vehicle, namely, a Kawasaki motorcycle bearing the stipulated chassis number and valued at $5,500 the property of another; and on the said date wilfully drove the said motor vehicle in a manner that constituted an offence, namely, reckless driving under Road Traffic Act 1974 (WA) s 60.
77 It may be noted that the form of stealing is that in Code s 378 without reference to s 371A, which provides for stealing a motor vehicle inter alia by its use without the consent of the owner. However, there is some tension between this notice and the statement of material facts which is also part of the source material. That statement is to the following effect.
78 Between 6.00 pm Tuesday 4 December 2012, and 11.00 pm Saturday 8 December 2012 the complainant had left the Kawasaki motorcycle at the side of a dwelling in Waikiki. During that period the motorcycle had been stolen from that location.
79 At about 4.44 pm on Sunday, 9 December 2012, police observed the accused riding the motorcycle, without the owner's knowledge or consent, in a northerly direction along The Avenue, Warnboro.
80 Police activated the emergency lights and sirens of their marked police vehicle, conducted a U-turn and attempted to stop the accused. He heavily accelerated the motorcycle in a built-up residential area, to which a 50 km/h speed limit applied. He reached speeds estimated to be in excess of 80 km/h.
81 As the accused approached the intersection of Safety Bay Road, he braked heavily and caused the rear wheel to lock up and skid. The motorcycle skidded sideways on to Safety Bay Road and forced vehicles travelling along the road to brake heavily to avoid colliding with him.
82 The accused rode on to the incorrect side of the road, contrary to the flow of traffic, and caused vehicles travelling in an easterly direction along Safety Bay Road to brake to avoid colliding with him.
83 The accused turned right off Safety Bay Road into another residential estate, crossed a grassed verge and across all four lanes of traffic on Safety Bay Road, again causing other motorists to take evasive action to avoid colliding with him.
84 The accused drove on to The Avenue, turned off a side street to access a bush road reserve and abandoned the motorcycle a short distance away.
85 It was not in contest that the offence occurred no more than about 1.7 km from the Sheridan Way residence.
86 At 10.00 pm that evening police arrested the accused at the Sheridan Way residence and conveyed him to Rockingham Police Station. There he participated in an electronically recorded interview. During the course of that interview the accused declined to make any comment. The accused was subsequently charged with the present matter.
87 It was common ground before me that the accused was expected to plead guilty to this charge in the Magistrates Court where it is pending.
88 The State provided written submissions in support of the present application dated 8 September 2014 (the State's written submissions). I note, as counsel for the State before me appeared to acknowledge, that those submissions, prepared before the preparation of the application, did not go, or clearly go, to application 3 (the use of expected admissions as to counts 1 and 2) and count 4 (use of fire). The State's oral submissions addressed those other matters, among other things.
89 For the accused written submissions were provided dated 10 September 2014 (the accused's written submissions). The accused's written submissions did go to the other two matters. Further counsel for the accused in oral submissions also addressed them.
The applicable legal principles
90 Evidence Act 1906 (WA) s 31A in relevant parts is as follows:
31A. Propensity and relationship evidence
(1) In this section
propensityevidence 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;
…
(2) 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.
(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.
91 On the authorities cited to me 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; (2006) 165 A Crim R 482 [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 embraces 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; (2012) 220 A Crim R 347 [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; (2005) 31 WAR 122 [120] - [122] (Roberts-Smith JA, Wheeler JA agreeing).
(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; (2008) 36 WAR 413 [60] (Steytler P), which I note was quoted in Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [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. 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 fact in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: see Dair [61] (Steytler P); Daniels [47] (Buss JA).
(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); 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 has a reputation for 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) 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); Daniels [50] (Buss JA).
(8) 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 also explaining 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'.
(9) At the same time, a particular warning might be required in the circumstances of the individual case. Whether such a warning is required, and its terms, will depend upon those circumstances: see Dair [65].
(10) 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. 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); Daniels [50] (Buss JA).
92 It is not clear from the authorities with which I am familiar, including those listed above, what the position is where a court is left in doubt as to the result of the comparison described in proposition 10. I consider that the language of Evidence Act s 31A(2) ('considers') in its plain meaning is that in such a case the State's application should fail. It is only where the court arrives at a conclusion in terms of s 31A(2)(b) that propensity evidence is admissible under the section.
93 It will be evident from proposition 3 above 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.
94 The State has identified for those purposes the facts to do with possession and knowledge referred to above and the identification of the accused for the purposes of count 6.
Application: propensity evidence
95 In my view it is necessary to clearly identify what the propensity evidence is said to be. This identification will permit me to assess whether or not what is identified is within the definition of propensity evidence in the Evidence Act s 31A(1); if it is within that definition, whether or the propensity evidence as identified is relevant to a fact in issue in the case (see proposition 3); and whether or not it has 'significant probative value' within s 31A (2)(a) (see proposition 4).
96 As counsel for the State developed the matter in his oral submissions, the evidence in application 1, concerning an offence involving a motorcycle, specifically as to the way the accused rode the motorcycle in the circumstances, was propensity evidence in two ways. One was that it indicated the accused was sufficiently familiar with riding such a vehicle as to be able to ride it in that way. The other was that that conduct involved the possession and use of property known to be stolen or at least property the accused did not have the consent of the owner to use.
97 I note here that application 2 dealt with consequential orders were application 1 to be allowed.
98 As counsel for the State developed the matter in his oral submissions, the evidence in application 3, concerning the conduct of the accused relating to the offences contained in counts 1 and 2 on the indictment, was propensity evidence in that it was evidence of possession by the accused of property, which the accused knew to be unlawfully obtained, at the Sheridan Way residence, where property from the burglary and stealing, being counts 1 and 2 in the indictment to which the accused will plead guilty, was found.
99 As counsel for the State developed the matter in his oral submissions, the evidence in application 4, concerning the destruction by fire of photographs and other documents linked to stolen property, was propensity evidence in that it was evidence of the attempted destruction by the accused by fire of property which might link the accused forensically to the offending.
100 I note that the evidence of possession and of destruction relied upon is necessarily circumstantial. I understood that evidence to be the accused's commission of the burglary and stealing offences and his connection with the Sheridan Way residence, put at its lowest, as a place owned by his parents who had moved out and where there was a bedroom he had had, together with the evidence of the partially burnt cheque-books found in the fire place in the Sheridan Way residence and of the partially burnt documents in the name of the Chitty's in the biscuit tin found in bushland near the Chitty home on Sunningdale Circle.
101 It may be noted that none of that partially burnt property included the photographs. The photographs are referred to separately in application 4. That reference appears to be to part of the property from the burglary referred to in count 8. I understood the position of the State, were its application 4 to be granted, to be that the jury could use the propensity evidence, being the partial burning of the cheque book and of the contents of the biscuit tin with evidence of the partially burnt photographs in determining whether or not the accused was guilty of count 8 as well as of count 6, involving the damaging by fire of the white van, being the property the subject of the stealing referred to in count 5. That was because the photographs were property from the same indictable offence the subject of count 8 and property from which was found in the van.
102 I did not understand counsel for the accused to take issue with the State's classification of the evidence as propensity evidence within Evidence Act s 31A, save in a respect which relates to the State's submissions as to the relevance of the evidence in application 1. That respect goes, it is said, to whether or not the evidence is propensity evidence as so defined.
103 When I reach the State's submissions in that respect below I will indicate that I disagree with the submissions for the accused.
104 I also note what appears to have been a submission from the accused's counsel that propensity evidence cannot cover, or readily cover, evidence of a single incident. However no authority was cited to support that proposition; and it does not commend itself to me given the definition of the term 'propensity evidence' in the Act.
105 In view of the width of the term 'propensity evidence' (see proposition 2), I agree with the State's classification.
Application: relevance
106 The State's submissions with respect to the relevance of the propensity evidence were these.
Application 1
107 As to application 1, concerning an offence involving a motorcycle, as to the way the accused rode the motorcycle in the circumstances, the relevance of the propensity evidence in each of the two ways described was as follows.
108 As to the accused being sufficiently familiar with riding such a vehicle as to be able to ride it in that way, I understood the State's submission to be that the evidence of that was relevant to the issue of whether the accused was in possession of the Yamaha motorcycle in count 4. It will be recalled that when the accused was interviewed by police at about 5.00 pm on 8 February 2013 at the Rockingham police station in relation to that offence amongst others, and asked about motorcycle parts found in the shed at the Sheridan Way residence including parts linked to the Yamaha, he had said the parts were not his, he had not put them there, he did not know how they ended up in the shed and he had nothing to do with motorcycles. The last assertion would be relied upon by the prosecution as a lie of the sort associated with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, as a lie proceeding from a consciousness of guilt.
109 For the accused, it was submitted that the evidence said to be so relevant is not capable of being propensity evidence within Evidence Act s 31A. However, no authority was cited for this proposition. Nor does it commend itself to me. Again I note the breadth of the definition of propensity evidence: see proposition 2.
110 Further, I note that propensity evidence may be such as could indirectly rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: see proposition 3 above.
111 As to the conduct of the accused involving the possession and use of property known to be stolen or at least property the accused did not have the consent of the owner to use, I understood the State's submission to be that the evidence of that was relevant to the issue of the knowledge of the accused as to how the relevant property had been obtained.
112 I agree with the state's position, as to relevance in those two respects.
Application 3
113 As to application 3, concerning the conduct of the accused relating to the offences contained in counts 1 and 2, the evidence of that conduct was relevant to the issues of possession and knowledge in relation to all of the receiving offences (all of the counts except count 6). That evidence was so relevant by being capable of showing that the accused had stored at the Sheridan Way residence property he knew to be linked to offending, where that offending was of the same kind as the offending by which the property in all of the receiving offences had been obtained.
114 Further, that evidence was, as I understood the State's submissions, at least indirectly relevant to the arson offence (count 6), through counts 3, 4 and 5.
115 Counsel for the accused put to me that the evidence in application 3 could only be relevant to possession, not to knowledge. However, I disagree. I consider that the evidence is relevant in the latter respect as circumstantial evidence, which when considered with evidence of the accused's connection with the Sheridan Way residence is capable of showing the storage described.
116 I agree with the State's position, as to relevance in those two respects.
Application 4
117 As to application 4, concerning the destruction by fire of documents linked to stolen property, the evidence of the attempted destruction was relevant to the issue of identification of the accused as the offender in relation to the arson offence (count 6) and the issues of possession and knowledge in relation to the receiving offence (count 8) involving property found in the vehicle damaged by fire in that offence.
118 As I understood the submissions for the accused, it was contended that none of the evidence was relevant in the ways the state submitted. Alternatively it was said the measure of relevance did not reach the threshold of significant probative value for the purposes of Evidence Act s 31A(2)(a). As counsel for the accused placed his emphasis on the latter, I will consider it in that context.
119 In any event, it seems to me that the evidence is relevant in the ways the State submitted. However, as stressed by counsel for the accused, it is a separate question whether the threshold of significant probative value has been reached.
Application: significant probative value
120 The State's submissions with respect to the significant probative value of the propensity evidence appeared to be these.
Application 1
121 As to the evidence in application 1, concerning the offence involving the motor cycle, that evidence should be seen to have significant probative value by reference to the combination of the following:
(1) having regard to its relevance to the offence in count 4 as tending to show that the denial as to having anything to do with motorcycles was a lie proceeding from a consciousness of guilt;
(2) having regard to the accused's statements to police implicating Ms SE and Mr DF as responsible for much of the stolen property in the Sheridan Way residence and to the likelihood that as State witnesses at trial they would be cross-examined on their convictions of numerous property-type offences;
(3) having regard to the fact that following that offence involving the motorcycle he was located by police at the Sheridan Way residence, his involvement with which he had sought to minimise;
(4) having regard to the fact that offence showed that at a time proximate to the offending and at a place reasonably proximate to the Sheridan Way residence the accused had been willing to involve himself in the use of obviously stolen property, or property being used without the consent of the owner; and
(5) having regard to the fact of his detention for that offence, the accused would have been alerted to the need to be cautious about being inadvertently in possession of stolen property.
122 In my view the evidence in application 1 does not have significant probative value.
123 Of particular moment is (2) and (4). This is because of the differences in the type of offence the motorcycle offending represents from the offences in the indictment and, to a lesser degree, the difference in time.
124 Unlike the motor cycle offence none of the offences in the indictment involved offending by use of the property unlawfully obtained, while on the evidence in application 1 the motorcycle offence did not involve storage of that property at the Sheridan Way residence (at least on the evidence before me the motorcycle had been stored there). In addition, the motorcycle offending occurred more than four weeks before the earliest of the offending in the indictment.
125 In my view neither (3) nor (5), separately or together, add significantly to the probative value of the evidence in (1). The location of the accused at the Sheridan Way residence was on that occasion, which might in view of its proximity to the motorcycle offending be seen as singular. The alerting of the accused to the need to be cautious about being inadvertently in possession of stolen property was more than four weeks before the earliest of the receiving offences in the indictment.
126 I understood the State to submit that the motorcycle offending derived probative value from its circumstantial relevance to offending in the indictment involving receiving a motorcycle (count 4). While I accept that the probative value in respect of count 4 is greater than for any of the other counts for this reason, it is not in my view, having regard to the differences I have referred to, a significant probative value.
127 As to the matter in (1), it will be recalled the questioning of the accused was as to motorcycle parts found in a shed. The accused's response, that he had nothing to do with motorcycles, might readily be understood in that context to relate to motorcycle parts, the property apparently being stored.
Application 3
128 As to the evidence in application 3, concerning the conduct of the accused relating to the offences contained in counts 1 and 2, the State's submissions appeared to be that that evidence had significant probative value as to all of the other offences in the indictment. This was by reference to the combination of the following:
(1) the proximity in time to the earliest of the other offending in the indictment;
(2) the common feature of the use of the Sheridan Way residence for storage of property involved in the offending;
(3) the similarity in items of property involved; and
(4) the similarity in the type of offending involved, after taking account of the link by the origin of the property involved between counts 3, 4 and 5 with count 6, and having regard to the fact that property involved in counts 1 and 2 was also found at the Sheridan Way residence.
129 For the accused it was contended these were not sufficient to show significant probative value as counts 1 and 2 were not of receiving.
130 However, I disagree, noting (4).
131 For the accused it was contended in respect of (2) that it made no contribution to probative value as there was no uniqueness to such a use of the Sheridan Way residence, and, in any event, there was no, or no sufficient, evidence that the accused had done the storing in any of the offending.
132 As to the latter, I have already dealt with that matter under relevance, above. I accept that if there were direct evidence the accused had done the storing in counts 1 and 2 that would add to the probative value. However, the lack of that direct evidence does not prevent there being significant probative value in the evidence in application 3.
133 As to the matter of uniqueness, that also would increase the probative value in question. However, its lack does not prevent the evidence having significant probative value. Other matter may go, in combination with the matter in question, to that value: cf Dair [70] - [71]. Here I discern such other matter in (1), (3) and (4).
134 Overall, I am of the view that the evidence in application 3 does have significant probative value as submitted by the State.
Application 4
135 As to the evidence in application 4, concerning the destruction by fire of photographs and other documents linked to stolen property, the State's submissions appeared to be that that evidence had significant probative value as to the issue of identification of the accused as the offender in relation to the arson offence (count 6) and the issues of possession and knowledge in relation to the receiving offence (count 8) for the following reasons:
(1) the common feature of property involved in the burning or attempted burning being of a kind of property of relatively little monetary value but that would forensically link the person responsible to offending by which the property was obtained; and
(2) the proximity in time of the burning, or attempted burning in each case.
136 For the accused, it was contended that any probative value was not significant having regard to:
(a) the fact the burnings of items from counts 1 and 2, being the property in the biscuit tin and the chequebook, were partial burnings only, while the burning in count 6 was of other property in which property from count 8 was located;
(b) each of the burnings and attempted burnings was in a separate location; and
(c) there was no evidence the accused had sought to avoid, or remove evidence of, the leaving of matter at the burglary in count 1 that linked him forensically to that offending.
137 I accept that if each of (a) to (c) were otherwise, there would be greater probative value.
138 However, I do not consider (a) to (c), taken separately or together, are sufficient to prevent the evidence in (4) having significant probative value. That is because of the combination of (1) and (2), having regard to other evidence linking the accused to the offending.
139 That other evidence, in the case of count 6, is the evidence of Ms SE and Mr DF as well as evidence from a witness providing a description of the appearance of the person seen to be destroying the van, where that appearance so described is consistent with that of the accused.
140 That other evidence, in the case of count 8, is the fingerprint evidence in respect of the ASUS laptop linked to that offence.
Application: degree of risk of unfairness at trial
141 I leave aside the evidence in application 1, which I have determined does not meet the threshold of having significant probative value.
142 That leaves as the propensity evidence for present purposes the evidence in application 3 and application 4, as I have described it, which I have determined does meet that threshold.
143 It appears to me that the propensity evidence carries a significant risk of prejudice. The risk derives from three factors.
144 One factor is that the jury would overestimate the value of the probative evidence to reason that, because the accused had committed the offences in counts 1 and 2, he must have been the person who committed the other offences.
145 Another factor is that the jury would fail to properly weigh the propensity evidence by reference to what it did not include, being direct evidence of storage of stolen property and the burning or attempted burning of property.
146 Finally, the propensity evidence might cause them to be biased against the accused as a person who had committed the offences in counts 1 and 2: see Dair [73].
Application: the balancing of that value and that degree of risk
147 I accept that the significant probative value I have found would be greater if there were not the evidentiary gaps I have identified in the section before last.
148 I further accept that fair-minded people, having regard to the degree of the risk that I have identified in the last section, would conclude that, unless the risk could be adequately guarded against by directions from the trial judge, the public interest in producing the evidence with such gaps should not have priority over that risk of unfairness.
149 Further there must be an evaluation of the likely effect of those directions on the jury: see proposition 7.
150 In my view directions from the trial judge so evaluated could adequately guard against the risk referred to.
151 Those directions would remind the jury of the need to avoid reasoning that, because the accused had committed offences in counts 1 and 2, he must have been the person who committed the other offences; would remind the jury in weighing the probative evidence of the lack of direct evidence of storage of stolen property and the burning or attempted burning of property; and address the need to avoid bias, by sympathy or prejudice, both generally, and with particular reference to the offending in counts 1 and 2.
152 I consider that the likely effect of those directions on the jury, given the nature and degree of the risks I have identified, would be such that the direction should be seen to adequately guard against those risks.
Conclusion and orders
153 It is for these reasons I have concluded that the evidence in application 3 and in application 4 should be admitted under Evidence Act s 31A; but that the evidence in application 1 should not be so admitted.
154 My conclusion as to the evidence in application 3 and 4 should in my view be understood to relate to the evidence in counts 1 and 2 in the respects I have indicated when I considered the State's position as to relevance.
155 Further, my conclusion and orders mean that it will be necessary for the parties to come to an agreement as to those facts associated with those counts which should be put before the jury as the propensity evidence.
0
10
3