The State of Western Australia v Penny - [2016] WADC 19

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENNY [2016] WADC 19

CORAM: BOWDEN DCJ

HEARD: 12 FEBRUARY 2016

DELIVERED : 12 FEBRUARY 2016

FILE NO/S: IND 1069 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
TINA MARIE PENNY

Catchwords:

Propensity/relationship evidence - Proposed evidence - Convictions for burglary offences

Legislation:

Evidence Act 1906 s 31A

Result:

Leave granted to lead propensity evidence

Representation:

Counsel:

The State of Western Australia : Mr P Cavagin
Accused: Mr I L K Marshall

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Legal Aid Commission

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
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Mansell v The State of Western Australia [2009] WASCA 140
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) (2011) 213 A Crim R 226
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Osborne [2007] WASCA 183

BOWDEN DCJ: Ms Penny is to stand trial on 8 – 10 March 2016 on an indictment alleging that on or about 1 March 2014 at Melville whilst in the place of PVC without her consent she committed the offence of stealing and that place was ordinarily used for human habitation.

Brief overview of the case against Ms Penny

The State allege that between 9.15 am on 1 March and 12.27 pm on Sunday 2 March 2014 the accused smashed the rear glass door of a house in Melville and entered that house and whilst inside stole various items of property including jewellery, electronics, foreign currency, antiques and cosmetics valued at approximately $34,292.
When police investigated this burglary they located a sock near the rear glass door. A forensic examination of that sock revealed a DNA profile matching the accused's DNA profile. Similarly, a DNA profile was located on a cigarette lighter inside the house which had a similar match with the DNA profile of the accused.
The accused was interviewed on 2 April 2014 and denied any involvement in the offence.

The proposed evidence

The State wish to lead evidence of the following conduct of the accused:

Burglary – 21 March 2014

The accused pleaded guilty to a burglary offence where the facts alleged were that on 21 March 2014 she entered a property in Applecross by climbing over a side fence, gained entry into the house and once inside stole jewellery, cash, laptop computer, the victim's wallet, and credit cards to the total value of $62,000.

Burglary – 16 November 2013

The accused pleaded guilty to a burglary offence where the facts alleged were that on 16 November 2013 she entered a dwelling in East Victoria Park by smashing a living room glass sliding door and once inside the premises stole various items and cash.

Burglary – 4 January 2012

The accused pleaded guilty to a burglary where the facts alleged were that on 4 January 2012 she entered a property in Victoria Park by smashing a window, cutting the flywire and climbing through the window and once inside stole numerous items including jewellery, computer equipment, mobile telephones and the key to a motor vehicle. The motor vehicle was then stolen from the driveway.

Burglary – 7 December 2011

The accused pleaded guilty to a burglary where the facts alleged were that between 7 and 13 December 2011 she entered a residence at Ascot and stole numerous items including jewellery, computer equipment, mobile telephones and personal effects.

Burglary – 13 August 2011

The accused pleaded guilty to a burglary where the facts alleged were that on 13 August 2011 at Mill Point Road, South Perth she entered a house through a smashed window and once inside the house searched the premises, opening draws and cupboards before leaving.

Burglary – 24 March 2011

The accused pleaded guilty to a burglary where the facts alleged were that on 24 March 2011 in company with another she went to a property at St James, used a brick to smash the glass window in the bathroom and entered the residence, once inside ransacking cupboards and draws stealing cash, jewellery, house, car and boat keys, portable PlayStation and various other items to the value of $9,350.
As indicated the accused has pleaded guilty to each of these offences.

The State's submission

The State says that the evidence of the prior criminal conduct leading to the convictions will be significant in establishing the that the accused was the burglar because it demonstrates the accused has a propensity to commit offences of the kind charged and this in conjunction with the DNA located at the residence will go towards negating the innocent explanation she gave in her electronic record of interview that she did not commit the burglary.

The defence submissions

The defence say that the prior convictions are not significantly probative, that is, they do not provide significant proof that Ms Penny committed the indictable act in question.
The defence say that proving the six prior convictions for burglary is not evidence of guilt on the indictable matter even if it is submitted as proof going to the likelihood of guilt because establishing the likelihood of guilt is not sufficient in criminal law.
They say that once the jury hear the evidence relating to the six convictions they will not be able to apply their minds objectively to the evidence in support of the charged offence and to admit the propensity evidence would create such prejudice that no direction from the court could eliminate.

Section 31A of the Evidence Act 1906

Section 31A of the Evidence Act1906 requires the evidence to be:
(a)relationship and/or propensity evidence;
(b)have significant probative value; and
(c)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.
The proposed evidence is evidence of the conduct of the accused and is propensity evidence and it is also evidence of a tendency that she has or had and is also relationship evidence. The definition of relationship and propensity evidence is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
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) (2011) 213 A Crim R 226 [35].
The evidence is of significant probative value if it is more than merely relevant and its probative value is important or of consequence and rationally affects, directly or indirectly, the assessment of the probability of a relevant fact in issue to a significant extent and/or explains 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); Stubley v The State of Western Australia [2011] HCA 7 [11].
The accused has not made any formal admission of any fact in issue and the State is entitled to present its case on the basis that all facts are in dispute. The State will need to establish, inter alia, that it was the accused who committed the burglary. The probative value of the disputed evidence is to be taken at its highest from the prosecution's perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
The proposed evidence shows that Ms Penny has a tendency to commit burglaries on premises and as such, is evidence of significant probative value because it makes it more likely that her DNA was on objects located at the scene of the burglary because she was the burglar and not because of some past innocent association with those items.
The defence contend that the six prior convictions are not evidence of guilt on the charged matter, and even if it is characterised as showing a likelihood of guilt that is not sufficient at criminal law. This submission overlooks the fact that the jury will be told that the fact that Ms Penny has committed prior burglaries is incapable by itself of establishing she is guilty of the charged offence. However, the fact that she has a propensity to commit burglaries is relevant when they consider her potential explanation as to why her DNA was located on the items at the burglary scene. It goes to rebut an innocent explanation. It is also evidence which, whilst by itself proving nothing, in combination with other evidence may be assessed by the jury in considering whether they are satisfied beyond reasonable doubt that the accused committed this burglary.
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: The State of Western Australia v Atherton [2009] WASCA 148.
The proposed propensity evidence goes toward proving a fact in issue, namely that it was Ms Penny who committed the burglary. It tends to rebut any claim of innocent association with objects found at the scene of the burglary with her DNA.
Fair-minded people who are members of the public and not lawyers, and who have informed themselves at least of the most basic considerations relevant to arrive at a conclusion founded on a fair understanding of all relevant circumstances would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: Dair [66] (Steytler P).
The risk that the proposed evidence will be misused is generally that a jury will have a strong tendency to believe Ms Penny is guilty of the charge because they will reason she is a person likely to do such acts and will have a tendency to condemn because of her past convictions. Further the jury may become confused or distracted as a result of the disputed evidence and may condemn the accused because of a fear that she has escaped punishment for past offences.
In this case the jury will be aware that Ms Penny has been dealt with for the past offences.
I do not agree with the defence submission that once the jury hear of the six prior convictions they will not be able to apply their minds objectively to the evidence led in this case. Experience shows that juries do follow judge's directions of the law and notwithstanding that evidence of prior convictions is regularly led in, for example, cases alleging sexual impropriety or violent acts or burglaries, accused are often acquitted of the charges they face.
The jury will, no doubt, be instructed that by itself the propensity evidence proves nothing but it can be used by them in considering a question of how the DNA came to be on objects located at the crime scene and in considering whether the accused is guilty of this particular offence.
Any risk of the evidence's misuse can be overcome by a jury direction 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]. It is accepted that a jury will accept and faithfully apply the directions of a trial judge: Mansell v The State of Western Australia [2009] WASCA 140 [49].
For the jury not to be informed of the tendency of Ms Penny to commit burglaries would lead the jury to consider her claim of innocent association with objects found at the scene of the burglary with her DNA on them in a vacuum. In those circumstances, 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.
I grant leave to the State to lead the proposed evidence.