The State of Western Australia v Newton
[2014] WADC 6
•24 JANUARY 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [2014] WADC 6
CORAM: BOWDEN DCJ
HEARD: 16 JANUARY 2014
DELIVERED : 24 JANUARY 2014
FILE NO/S: IND 30 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SHAWN ADAM NEWTON
Catchwords:
Application to sever counts 1 and 2 from count 3
Legislation:
Criminal Procedure Act 2004
Evidence Act 1906
Result:
Application to sever refused
Representation:
Counsel:
State of Western Australia : Mr D Carlson
Accused: Ms J Gibbs
Solicitors:
State of Western Australia : State Director of Public Prosecutions
Accused: Gibbs Legal
Case(s) referred to in judgment(s):
AJE v The State of Western Australia [2012] WASCA 185
Asplin v The State of Western Australia [2013] WASCA 72
Beck & Smith v The Queen [1984] WAR 127
Bennett v The State of Western Australia [2012] WASCA 70
Buiks v The State of Western Australia [2008] WASCA 194
Cookson v The Queen (1989) 45 A Crim R 121
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
De Jesus v The Queen (1986) 22 A Crim R 375
Donaldson v The State of Western Australia (2005) 31 WAR 122
KRM v The Queen (2001) 206 CLR 221
Lancaster v The Queen [1989] WAR 83
Mansell v The State of Western Australia [2009] WASCA 140
Phillips v The Queen [2006] HCA 4
Roncevic v The State of Western Australia [2010] WASCA 213
Stubley v The State of Western Australia [2011] HCA 7
Sutton v The Queen (1984) 152 CLR 528
Tasmania v Martin (No 2) 213 A Crim R 226
The Queen v Anderson [1994] 2 Qd R 409
The State of Western Australia v Cleminson [2013] WADC 137
The State of Western Australia v Osborne [2007] WASCA 183
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
BOWDEN DCJ: The accused has been indicted on the following offences.
1.Between 27 June 2011 and 30 June 2011 at Craigie and elsewhere he unlawfully detained Michelle Lorraine Hyland.
2.On 28 June 2011 at Craigie and elsewhere he unlawfully assaulted Michelle Lorraine Hyland and thereby did her bodily harm.
And that he was in a family and domestic relationship with her.
And that a child was present, namely Paige Newton.
3.On 11 October 2011 at Woodvale, he, while in the place of Desmond Norman Hyland without his consent, committed the offence of stealing. And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place.
And that the place was ordinary used for human habitation.
The application
The accused seeks an order pursuant to s 133 of the Criminal Procedure Act 2004 that counts 1 and 2 be tried separately from count 3.
Facts relating to the counts on the indictment
The accused and Ms Hyland were in a defacto relationship, which on the State's case, ended in approximately May 2011. They shared custody of their daughter, Paige, born in March 2010.
In June 2011 Ms Hyland left the relationship and returned to live with her parents at her parent's house. The accused resided with the Paige in a unit and it is said that he refused to allow Ms Hyland to take Paige to live with her.
After the separation in June 2011, Ms Hyland and the accused met at various places on various dates to discuss their relationship but Ms Hyland was not prepared to commit to returning.
On 28 June 2011 Ms Hyland and the accused met at about 9.00 pm at a McDonalds store. The accused brought Paige to that meeting.
Ms Hyland then drove with the accused and their daughter to a pizza shop in Padbury and then drove towards her parent's house. While she was driving, the accused asked about their relationship and where it was heading.
Ms Hyland effectively told him that their personal relationship was finished and the accused told her to pull over because he wanted to get out of the car and call a taxi.
Ms Hyland drove the vehicle into a car park. When she stopped the car, the accused punched her in the head and face then climbed over on top of her and pushed her into the passenger seat and commenced to drive the vehicle. He told her that she was not going anywhere until they talked about things. The State says that commences the deprivation of liberty (count 1).
The State say that Ms Hyland begged the accused to drive her to her parent's house, he refused and told her to sit on her hands and to give him her phone and when she could not find it, he punched her in the head.
Ms Hyland, the state say, was continually asking to be let go but the accused was telling her he wanted to talk about the relationship and when she would not talk, he punched and slapped her.
After they had been driving for some time, Ms Hyland endeavoured to escape from the vehicle by opening the door and trying to get out, however the accused grabbed her by the hair from behind and tried to pull her back in, whilst telling her to stop being stupid and to get back into the car.
Ms Hyland, it is said, was yelling at him to let her go and the accused lost his grip and she fell onto the road. She then tried to run to a house, however the accused stopped the car ran after her, caught her and dragged her back to the car, pushed her into the passenger seat, climbed into the driver's seat and drove off. Count 2 is constituted by the punches and slaps occurring before she jumped from the car.
Ms Hyland says that she was screaming and the accused eventually parked at a carpark in Burns Beach Road and whilst they were there, a security officer and later a police van pulled into the carpark. The accused got out of the car and spoke to the police officer who noticed blood on the accused top, walked over to the accused's vehicle and saw the young child and Ms Hyland, whose face was swollen and covered in blood, and the accused was then arrested.
As to count 3, the State says that on 11 October 2011 sometime between midnight and 10.00 am the accused attended the address where Ms Hyland and her daughter were living, which was the property occupied by her parents.
They say that the accused entered the premises, through the rear laundry door which was unlocked but closed, without Mr Hyland's (the owners) consent, stole a purse, some cash and other papers and went to the bedroom where Paige was sleeping and removed her.
The State say that the accused and Paige were seen on 11 October in a variety of locations by a number of witnesses and around about 8.30 pm. On 11 October the accused was arrested by police when he was found sitting in a motor vehicle with his daughter on his lap. It is said that after he handed his daughter to the police officers, was also seen in possession of a black handled knife. The State says that inside the vehicle was a white blanket taken from Paige's bedroom.
Police also say that some time before Paige was taken, the tyres on Ms Hyland's new partners vehicle were slashed and a person resembling the accused was seen in that area.
The accused was interviewed by the police officers, allegedly admitted that he was in the vehicle with Paige and that a black handled silver knife had been in the vehicle. The accused told the police that he was going to return Paige to her grandfather (Ms Hyland's father) and he had 'received Paige in the early hours of the morning' and although not sure of the exact time, it was possibly 5.00 am or 6.00 am. He said that when he received Paige she was wrapped in the blanket that the police had located.
A note allegedly written by the accused stating that Ms Hyland was 'perfect to' him and referring to the 'beautiful person that (Ms Hyland) had become which I am honoured to be part of' and referring to other aspects of their relationship was located in the car.
Joined of the counts
An indictment is permitted to contain only one charge unless cl 7 of the Criminal Procedure Act 2004 permits otherwise.
Ms Gibbs submits that count 3 is not properly joined on the indictment with counts 1 and 2.
When considering the question of joinder the court does not examine the strength of the evidence: Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [46] but approaches its task on the basis that the State's case as revealed by the brief may be accepted by the jury: Phillips v The Queen [2006] HCA 4 [63].
Clause 7(3) of the Criminal Procedure Act 2004 provides that:
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences —
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
Do the offences form or are they part of a series of offences of the same or a similar character ?
For an offence to constitute a series of the same or similar character there must be a significant nexus between them.
The offences must be both legally and factually similar: Zammit v The State of Western Australia [22] – [34].
The section does not countenance the joinder of counts which are legally the same or similar in character but which, in their factual setting, are disparate.
What is required is a sufficient correlation to enable the offences to be described as a series without straining the words beyond the meaning which it is reasonably capable of bearing.
Although counts 1 and 2 can be said to form part of a series of events of the same or similar character, count 3 insofar as its legal and factual component are concerned, they are not of the same or similar character as counts 1 and 2 and a joinder under cl 7(3)(a) would not be justified.
Are the offences alleged to have arisen substantially out of the same or closely related acts or omissions?
In Zammit Steytler P said the expression 'arise substantially out of … the same or closely related acts or omissions' is intended to have a relatively wide reach …' and that the provisions are not to be given an unduly restrictive meaning, especially when regard is had to the broad discretion given to the court by s 133 of the Act or equivalent provisions' [39].
Cases referred to in Zammit note the requirement for the offences to be traceable either in time, place or circumstance to common events or related in time, place, nature, the identity of the victim and the circumstances in which offence were allegedly committed.
In The State of Western Australia v Cleminson [2013] WADC 137 (Davis DCJ) is an example where an assault charge and a sexual assault charge were said, given the width of the meaning of cl 7(3)(b), to arise substantially out of closely related acts or occasions as they are both arising from the relationship between the accused and the complainant and were acts committed upon the breakdown of the relationship between them. That given the width of the meaning of cl 7(3)(b).
My preliminary view is that all three offences are traceable to a common event and arise substantially out of the same or closely related acts as factually, they all arise from the breakdown of the accused relationship with Ms Hyland, notwithstanding that count 3 is an offence of a different nature to and committed some three and a half months later than counts 1 and 2. However, it is not necessary for me to decide whether the joinder is justified under cl 7(3)(b) as I am satisfied it is justified under cl 7(3)(c).
Are the offences alleged to have arisen from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose?
Although it was unnecessary to consider this point in Zammit [41], Steytler P examined the authorities and his honour drew attention to Beck & Smith v The Queen [1984] WAR 127, (1984) 10 A Crim R 168 (Brinsden J); Lancaster v The Queen [1989] WAR 83 (Malcolm CJ & Smith J); Cookson v The Queen (1989) 45 A Crim R 121, 129 where the word 'purpose' was given a broad meaning, whilst acknowledging that in The Queen v Anderson [1994] 2 Qd R 409 Lee J favoured a narrow approach.
The broad meaning of 'purpose' is consistent with the sections and the authorities I have cited.
In this case, each of the three offences is alleged to arise from a series of acts done in the prosecution of a single purpose. Each alleged offence was on the state's case committed as a result of the breakdown of his relationship with Ms Hyland, however that itself is not sufficient as cl 7(3) requires that the acts are done in the prosecution of a single purpose.
Whilst each of the offences can be regarded as having a separate immediate purpose, they were all part of or incidental to a wider purpose. The wider purpose was, on the state's case, the accused's efforts to continue his relationship with Ms Hyland and his daughter. Counts 1 and 2 were allegedly committed for the purpose of discussing his relationship with Ms Hyland and count 3 was allegedly committed incidentally to his act of taking the child, and the purpose of that act was to continue his relationship with his daughter.
All alleged offences arise from acts done in the prosecution of a single purpose being the accused's efforts to continue his relationship with Ms Hyland and his daughter. There is sufficient nexus in the relationships between the parties and the acts done pursuant to that relationship to permit the joinder of all counts.
I am satisfied the joinder of all three charges was authorised by cl 7(3) and therefore the charges are properly joined in the one indictment.
Should there be severance?
I have found that all counts are properly joined, notwithstanding this, the court has discretion under s 133 of the Act to order separate trials.
The section recognises that it is open to decline to order severance even if the evidence on one of the charges is inadmissible on another (s 133(5)).
However, the discretion to sever is not enlivened unless the accused is likely to be prejudiced in his trial and that prejudice is cause by the indictment containing two or more counts, and the likely prejudice cannot be guarded against by judicial direction.
In my view, the evidence relating to counts 1 and 2 is admissible pursuant to s 31A of the Evidence Act on the trial of count 3. That is because the evidence relating to counts 1 and 2 is:
1.relationship and/or propensity evidence;
2.has significant probative value; and
3.the probative value of the evidence compared to the degree of risk of an unfair trial must be 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.
Is it propensity evidence?
The Evidence Act defines propensity evidence, inter alia, as 'other evidence of the conduct of the accused' and relationship evidence as, evidence of the attitude or conduct of the accused person towards another person, or a class of persons over a period of time'.
This definition is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
The evidence of what occurred on counts 1 and 2 is evidence of the conduct of the accused and is clearly propensity evidence.
Is the evidence of significant probative value?
To be of probative value, the evidence must be evidence that 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings and explain a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P).
To have significant probative value, the evidence must be more than merely relevant, it must be evidence that's probative value is important or of consequences, and evidence that rationally affects, directly or indirectly, the assessment of probability of a relevant fact in issue to a significant extent: Dair (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194 (Miller & Buss JJA); Stubley v The State of Western Australia [2011] HCA 7 [11].
The probative value of the evidence may 'lie in the fact that it discloses some feature which raises as a matter of common sense and experience the objective improbability of its bearing any explanation consistent with the accused's innocence'.
In determining whether the evidence has significant probative value, the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) 213 A Crim R 226 [35].
The probative value of the evidence must be considered in all of the circumstances of the case and will depend on a variety of circumstances which cannot be exhaustively defined: Bennett v The State of Western Australia [2012] WASCA 70 [33], [36] (Martin CJ).
It is for a jury to decide whether evidence is to be accepted, and if so, what weight to give it. In assessing whether the evidence has significant prohibitive value, the evidence is to be taken at its highest from the prosecutions perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
Evidence can have significant probative value even though the acts are not identical or similar to the charged acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66]
The accused has made no formal admission in relation to any fact in issue at the trial and absent such admission, the State is entitled to present its case on the basis that all facts are in dispute.
Ms Gibbs says that although the evidence may have some probative value, that probative value cannot be said to be significant.
Evidence of the conduct of the accused towards Ms Hyland displayed in counts 1 and 2 is of importance in showing the nature of the relationship between them and to negate any suggestion that he 'received the child' pursuant to some pre-arrangement without entering the house.
An element of count 3 that the state must prove is that the accused was in the place of Mr Hyland. It is clearly relevant to show that he was in the house and took Paige either shortly before or shortly after he allegedly took the purse.
Although the accused is not charged with anything to do with taking the child, the question of whether he received the child without entering the house or entered the house and took the child, is directly relevant to whether he was in the 'place' as alleged in the indictment and so evidence to rebut the suggestion that he did not enter the house to collect Paige as she was handed to him outside, is important evidence for the juries consideration on the issue of whether he was in the house.
Evidence that some months before he had assaulted Ms Hyland and deprived her of her liberty, even some three and a half months previously, makes it less likely Ms Hyland would have handed the child over to him and more likely that he obtained the child by entering the house and that is directly relevant to the question of whether he was in the house when the purse was taken.
The time gap is a factor to be considered. Sometimes a large time gap will lead to the evidence lacking the required nexus, other times it will not. However, the three and a half month delay between the alleged deprivation of liberty, assault occasioning bodily harm and the burglary offence does not deprive that evidence of its significant probative value.
The evidence of counts 1 and 2 does have significant probative value in relation to count 3.
Is the probative value compared to the degree of risk of an unfair trial such that a fair-minded person would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial?
Section 31A requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial. The risk of an unfair trial is not one which should be downplayed: Preston.
The weighing process in s 31A(2)(b) requires weighing incommensurable matters, and making an assessment of what a hypothetical fair-minded person would think and not what the presiding judicial officer would think: Asplin v The State of Western Australia [32].
There is no common law discretion to exclude evidence that satisfies the s 31A criteria, on the grounds that its admission would be unfair or because its probative value is substantially outweighed by its prejudicial effect: Donaldson v The State of Western Australia (2005) 31 WAR 122 [140] (Roberts-Smith JA).
The introduction of propensity/tendency evidence is always likely to involve the risk of an unfair trial: Di Lena.
The unfairness does not mean the increased ability of the prosecution to prove their case by asking a jury to draw rational inferences. However, it does include a two-fold risk that firstly, it may have an adverse effect on the juries perception of the accused and they may reason that they can convict the accused because he behaved in the way alleged in the propensity evidence and therefore he must have committed the offences alleged, and secondly, it also encompasses the risk that the jury will decide the case on an improper or irrational basis rather than a logical one connected with the issues, and particularly that they may put more weight than is logically justified on the propensity evidence or be overwhelmed by it: Tasmania v Martin (No 2) [63]; Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts‑Smith JA).
However, a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [65] (Steytler P); Mansell v The State of Western Australia [2009] WASCA 140 [49] (Martin CJ).
In almost all cases the risk can be overcome by an appropriate direction to the jury about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA); Mansell.
Fair‑minded people are 'members of the public who are not lawyers, who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all relevant circumstances': Dair (Steytler P) [66].
For a jury not to be been informed that some three and a half months before the alleged offence the accused person had allegedly assaulted Ms Hyland and deprived her of her liberty, would lead the jury to consider her relationship with the accused without full knowledge of the circumstances of that relationship.
Similarly, it is important evidence for a jury to consider in rebutting the proposition that he received the child from Ms Hyland without entering the house and directly relevant to whether he was in the 'place' as alleged, and I consider fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The evidence of counts 1 and 2 is therefore admissible on the trial of count 3.
However, the evidence of count 3 is not admissible on counts 1 and 2.
Conclusion
I have found that all counts are properly joined, notwithstanding this the court has discretion under s 133 of the Act to order separate trials and that the evidence on counts 1 and 2 is admissible on count 3 but the evidence of count 3 is not admissible on counts 1 and 2.
In Zammit [59 ‑ 61] Steytler P referred to a number of cases which established that for policy reasons the courts have long adopted as a general rule that matters which can be joined without prejudice to the accused or generally to be joined and that this prima facie rule promoted consistency in decision‑making and facilitated a single and final enquiry into matters which arise out of or essentially involve common issues of fact or law, promote due and expedient administration of criminal justice and encompass a saving in court time and public expense and greater convenience for witnesses.
However, his Honour also referred to Sutton v The Queen (1984) 152 CLR 528 and De Jesus v The Queen (1986) 22 A Crim R 375 which recognised that where evidence is not admissible on some counts in the indictment, some step must be taken to protect the accused against the risk of impermissible prejudice, and that sometimes a direction would be sufficient to guard against such a risk, sometimes it is not.
It is however recognised that juries do follow instructions given by a trial judge and it is not uncommon for evidence to be admissible on some counts but not admissible on other counts, and juries regularly deal with such instructions: Roncevic v The State of Western Australia [2010] WASCA 213, is one such example.
The prejudice to the accused can be guarded against by the trial judge, inter alia, instructing that each count is to be considered only having regard to the evidence admissible on that count and that the evidence on count 3 is not admissible on counts 1 and 2 and they cannot be prejudiced against the accused because of the number of counts on the indictment or reason that if he is found guilty on count 3 he is the type of person to have committed the offences alleged in counts 1 or 2 and that any verdict reached on count 3 is irrelevant when considering count 1 and 2 and such other directions as are tailored to the specific evidence given at the trial.
I therefore dismiss the application for severance.
0
18
2