The State of Western Australia v Pham - [2013] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PHAM [2013] WADC 44

CORAM: GOETZE DCJ

HEARD: 21 MARCH 2013

DELIVERED : 28 MARCH 2013

FILE NO/S: IND 16 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KHANH HIEP PHAM
Respondent

Catchwords:

Application to lead propensity evidence pursuant to s 31A of the Evidence Act - Alleged offences of unlawful wounding and unlawfully doing grievous bodily harm - Turns on own facts

Legislation:

Evidence Act 1906

Result:

Application allowed

Representation:

Counsel:

Applicant: Mr A McC Dungey
Respondent: Mr M L Tudori

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Michael Tudori & Associates

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

APC v The State of Western Australia [2012] WASCA 159
Bennett v The State of Western Australia [2012] WASCA 70
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72
Donaldson v The State of Western Australia [2005] WASCA 196
Mansell v The State of Western Australia [2009] WASCA 140

GOETZE DCJ:

Introduction

By an indictment dated 8 February 2013, Khanh Hiep Pham is charged with two offences, namely that on 7 July 2012 at Ballajura, he unlawfully wounded and unlawfully did grievous bodily harm to Hieu Trung Nguyen. The State of Western Australia has made application as set out below.
The trial is listed for hearing on 8 April 2013. For that reason, I allowed the application at the hearing of it and said that I would later publish my reasons for so doing. These then are those reasons.

The application.

The State of Western Australia applied for an order that, at trial, propensity evidence be admitted pursuant to s 31A of the Evidence Act 1906.
The proposed propensity evidence concerns Mr Pham's four prior convictions that:
1.on 16 February 2002, he with intent to do grievous bodily harm, unlawfully wounded another person;
2.on 3 August 2002, he was armed in public without lawful occasion in such a manner as to cause fear; and
3.on 27 August 2006, he committed the acts of unlawful grievous bodily harm and also, unlawful wounding.
Mr Pham pleaded guilty to each of the above four offences, the details of which are more fully set out below at [11].

Elements of the alleged offences

In order to establish guilt on the present charges, it will be necessary for the State to prove beyond reasonable doubt each of the following elements of the offences:
1.that the offender was the accused;
2.that the complainant was wounded/suffered grievous bodily harm;
3.that the accused caused the wounding/grievous bodily harm; and
4.that the accused did so unlawfully.

The State case

The State case alleged against Mr Pham can be summarised as follows:
1.Mr Pham and Mr Nguyen were guests at a birthday party at a private house. The catering for that party included, in the garage, a lamb on a spit near to a table providing for the placement of other accompaniments for the meal and as a place to serve food.
2.Between 1.00 and 1.30 am, the complainant Mr Nguyen was seated next to the spit engaging in conversation with a third person. They were making fun of each other.
3.The third person mockingly abused Mr Nguyen because he had stopped drinking alcohol due to his requirement to work at 5.30 am. Mr Nguyen referred to the third person as a 'bitch' for arriving late at the party.
4.Mr Pham was standing nearby to Mr Nguyen and the third person.
5.Mr Pham overhead this conversation, or part of it, and picked up a knife from the table near the spit. He approached Mr Nguyen and said 'you call me a bitch?' He then raised the knife above his head and twice struck Mr Nguyen with it, thereby causing the alleged unlawful wounding and unlawful grievous bodily harm.

The defence case

The written defence submissions advised in respect of each count
that the only real issue at the trial will be whether [Mr Pham] did act in self‑defence.

Section 31A Evidence Act 1906

Section 31A of the Evidence Act provides:
(1)In this section ‑
propensity evidence means ‑
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
...
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
…
It was submitted by Mr Tudori, as counsel for Mr Pham, that the proposed evidence is not propensity evidence, it has no relevance and it is not probative, but if it is, then, it is not significantly probative. Mr Tudori further contended that if however the proposed evidence is all of those things, then the fair‑minded public interest test would not be met in respect of any of the proposed evidence and prejudice would follow from its reception into evidence which could not be met by any adequate direction from the trial judge.

The proposed propensity evidence

The State proposes to lead evidence relating to the facts behind the previous convictions as set out in its written submissions. First:
On 16 February 2002 there was a Chinese New Year festival at Hyde Park in North Perth which was a public family event. The festival was attended by a number of people including the accused who was a member of what was called the Spider Boys gang. Also at the festival was the M'Bros Asian Gang. The Spider Boys surrounded the M'Bros and began closing in on them. Hostility began to flare. One of the M'Bros approached a security guard who said he would call for backup and he did that, but the Spider Boys launched an attack on the M'Bros, one of whom was the complainant Quoc Tran. The accused, who was armed with a machete just prior to the attack, struck Mr Tran with it on the left thigh, causing a 4 centimetre laceration which required stitches. The accused took part in a video record of interview in which he admitted chopping the complainant twice in the leg with a machete.
Secondly:
At about 10.30 pm on Saturday 3 August 2002 one Duc Hai Nguyen, the complainant, was inside the Cyber‑Net Internet Café in Roe Street, Northbridge with his two younger brothers and a couple of their friends. An altercation took place between the accused and the complainant as a result of which the complainant and his associates walked away from the area to return to their vehicle. A short distance down the road the complainant was approached by the accused. The complainant observed the accused to be carrying a knife in his right hand. The knife had a silver blade approximately 10 centimetres in length. The accused lunged towards and waved it at the complainant and his family members. The knife narrowly missed inflicting injury. When interviewed by Police on 5 August 2002 the accused initially denied being involved in the incident but later admitted that he had threatened the complainant with a knife to scare him.
Thirdly:
At about 3.20 am on Sunday 27 August 2006 the accused was at the Church Nightclub in Northbridge. The accused was standing next to a cigarette machine located near the front exit of that club. He became involved in an altercation with a group of people. The complainant Jay Grace became involved in this altercation as he attempted to pass through this group to exit the premises. Mr Grace approached the accused and asked him 'Why are you hitting girls?'. The accused turned away from Mr Grace and ran out of the front exit and went to an unknown location to obtain a machete. At that time, the altercation which involved associates of the accused and the victims had progressed from inside the nightclub to the footpath outside the premises. The accused was seen by witnesses turning into Lake Street from Aberdeen Street and then running towards the front exit of the Church Nightclub, where Mr Grace was standing with the second complainant Sukit Senter. The accused ran towards both of these men holding the machete in his right hand. He swung the machete at Mr Grace in an overhead motion, aiming at his head and neck area. Mr Grace raised his left arm to protect his head and neck; whereupon the machete struck him between the thumb and forefinger of his left hand. The accused swung the machete with sufficient force to cut through Mr Grace's hand to a depth of between five to seven centimetres. That severed a tendon and caused severe damage to the muscle and bled severely.
Fourthly:
The accused then swung the machete in an overhead motion at the head and neck area of Sukit Senter, the second complainant. Mr Senter raised his right forearm to protect his head and neck area and the machete struck him just below the elbow on the rear of his right forearm. The accused swung the machete with sufficient force to cause a cut of about 10 centimetres in length and three to four centimetres in width. That severed an artery and caused severe muscle damage to Mr Senter's forearm.

Is the proposed evidence admissible?

The first requirement of the evidence proposed to be led by the State is relevance, as to which, Roberts‑Smith JA said in Donaldson v The State of Western Australia [2005] WASCA 196 [118]:
The threshold test for admissibility of any evidence is relevance (Smith v The Queen (2001) 206 CLR 650, [6]). Evidence is relevant if it tends to prove a fact in issue or a fact relevant to a fact in issue. The probative value of relevant evidence is the extent of the tendency of the evidence to do that.
The proposed evidence must be probative. It must be both relevant and material such that if accepted, it may assist in proof of the offence charged or some particular element of that offence. Its capacity to logically contribute to proof of the offence or an element thereof is what makes it probative – per E M Heenan AJA in Dair v The State of Western Australia [2008] WASCA 72 [260].
Further, in Donaldson Roberts‑Smith JA also said [118]:
Other than similar fact evidence, propensity evidence as defined in s 31A is clearly now admissible precisely because it shows the propensity of an accused to commit offences of the kind charged (in the sense that he or she is a person who has committed other offences).
It is also well established that propensity evidence can be used to negate possible defences, as to which see, for example, Bennett v The State of Western Australia [2012] WASCA 70 [35].
The State submitted that its purpose in leading the proposed propensity evidence at trial will be that:
it lends support to the complainant's (and other witnesses') version of events namely that the complainant was attacked without giving any provocation or cause to his assailant.
The State's submission as to relevance was that:
The relevance of the evidence sought to be adduced to the question of the unlawfulness of the assault is that the accused falls into a particular category of persons with a tendency to respond with armed aggression to any slight or offence which appears to him to have been given to him by any other person or persons, as it is alleged the accused did so on this occasion.
The defence submitted in respect of the four previous convictions that:
The first offence on the 27 August 2006 'Church Night Club' incident. This involved the accused leaving the Church night club, going to a location, arming himself with the machete and returning to commit the offences of grievous bodily harm and unlawful wounding to which he pleaded guilty. There was no issue of self‑defence.
The second offence occurred on the 16 February 2002 during an attack on a rival street gang during Chinese New Year celebrations at Hyde Park. 'The Hyde Park' incident. The accused was charged with doing grievous bodily harm. Again in this incident, the accused pre‑armed himself with a machete. He pleaded guilty to the offence. There was no issue of self‑defence.
The third offence occurred on the 3 August 2002 in which the accused approached an opposing street gang member and threatened him with a knife. 'Cyber Net Café' incident. The accused was charged with going armed in public. Again in this incident, the accused pre‑armed himself with a knife. He pleaded guilty to the offence. There was no issue of self‑defence. And the weapon was not a machete.
The accused submits in light of the only fact in issue is whether the accused acted in self‑defence, the proposed propensity evidence is not significantly probative of a fact in issue. It is important to consider that, if the real issue is the question of self‑defence, then in this case:
(a)The accused did not pre‑arm himself.
(b)The accused did not bring the weapon to the party.
(c)The amount of time passed between the propensity offences.
The following observations can be made:
1.Mr Pham has twice previously offended by use of a machete with three victims and he has also offended with a knife against a fourth victim. Little or nothing turns on any difference between the use of a machete or knife on previous occasions. They are not substantially different.
2.The use of a machete/knife on prior occasions reveals a mode of behaviour. Mr Pham was armed on both occasions in 2002. In 2006, he left the scene to obtain a weapon and then returned before offending. So too, in the present matter, he was not armed but became armed before attacking Mr Nguyen. The knife was conveniently situated on the table nearby to the spit and to Mr Nguyen.
3.Such prior mode of behaviour on three occasions against four people is capable of proving that Mr Pham has a propensity to use such a weapon in circumstances of any slight or appearance of offence having been directed at him by another person or persons. He again used a knife in the present matter involving an apparent slight or offence directed at him.
4.There are not large distinctions in the proposed propensity evidence in this case from the four prior offences in the sense outlined by Buss JA in Buiks v The State of Western Australia [2008] WASCA 194 [52] – [59] where, in that case, the peripheral involvement of the alleged offender in the propensity evidence was not significantly probative of his alleged involvement in the offending described in the indictment. In this case however, Mr Pham has resorted to the use of a weapon by way of reaction to the perceived threat on three previous occasions resulting in four convictions and he allegedly did so again in the present matter. He does not deny twice stabbing Mr Nguyen with the knife.
5.The alleged offending in the present matter is said to have occurred some six years after the last offending, which itself was four and four and a half years respectively after the earlier offences. However, this alone does not suggest that any prior offending is too remote in time by reason that there has been repeated offending on three separate occasions by resort to a machete/knife.
Further, in January 2003, Mr Pham was sentenced to 6 1/2 years imprisonment. He was released on parole, but reoffended such that in September 2007, he was sentenced to another 5 years imprisonment cumulative on the balance of the parole term from the 2003 sentence, which he was required to serve in custody. The gaps in offending are therefore explicable by reason of Mr Pham's lengthy incarceration.
The facts behind Mr Pham's four previous convictions are 'other evidence of the conduct of the accused person'. Further, they are capable of amounting to 'evidence of a tendency that the accused person has or had'. The suggested tendency is Mr Pham's use of a knife against another person in times of any perceived slight or offence given by such person. It is for the jury to determine whether it is satisfied the evidence proves the tendency advocated by the State.
It follows that the facts behind the previous convictions amount to propensity evidence as defined in s 31A.
The proposed propensity evidence suggests Mr Pham's alleged tendency to respond to a real or perceived slight with armed aggression. This is relevant and material to a fact in issue in this case, namely whether Mr Pham twice attacked Mr Nguyen without provocation or cause. Mr Pham admits the two acts of striking Mr Nguyen with the knife. The propensity evidence is logically capable of contributing to proof of both offences. It is probative of the issue of unlawfulness on both counts, including self‑defence.

Does the proposed evidence have significant probative value?

In Mansell v The State of Western Australia [2009] WASCA 140 [37], Miller JA said that:
For evidence to have significant probative value, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. This was made clear by Steytler P in Dair, at [60] - [61], where his Honour said:
'The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands (2002) 76 ALJR 1024 at [2] per Gleeson CJ; Phillips v The Queen (2006) 225 CLR 303 at [50]. It could otherwise have no probative value, let alone "significant" probative value.
Before evidence can have significant probative value it must be such as "could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance": Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175 - 176. Heydon (at [21245]) suggests that significant probative value is something more than mere relevance but something less than a "substantial" degree of relevance and that it is a probative value which is "important" or "of consequence". He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: R v Lockyer (1996) 89 A Crim R 457 at 459; R v Lock (1997) 91 A Crim R 356 at 360 - 361; R v Fordham (1997) 98 A Crim R 359 at 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at [77] - [82]; Western Australia v Osborne [2007] WASCA 183 at [13].'
In APC v The State of Western Australia [2012] WASCA 159, Mazza JA said [88]:
By the inclusion of the adjective 'significant', Parliament has clearly intended that the evidence sought to be adduced must be more than merely relevant. In Dair [61], Steytler P noted this and referred to Heydon, J D, Cross on Evidence (7^th Aust ed, 2004) par 21245, which suggested that 'significant' means 'important' or 'of consequence'. This coincides with the way the word 'significant' was treated by Wheeler JA in The State of Western Australia v Osborne [2007] WASCA 183 [13]. Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.
Further, Pullin JA said [12]:
… the legislature has put probative propensity evidence into a special category. It will not be admitted merely because it has probative value, it must be more than that. It must have 'significant' probative value. As Mazza JA points out in his reasons, the word 'significant' means 'important' or 'of consequence'. However, even that is not enough. McHugh J in Pfennig (528) explained why this is so:
'Plainly, [such evidence] cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of propensity reasoning is too great to allow such a low threshold of admissibility. Consequently ... as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect.'

In resolving the outcome of this issue of the significance of the proposed evidence, it is necessary to bear in mind the nature of the sole issue at trial ie, the requirement of the State to prove the unlawful nature of Mr Pham's two acts. This includes negating self‑defence. The two acts of stabbing are not disputed.
Mr Pham's prior offending behaviour shows a mode of behaviour which corresponds to a certain degree with his alleged offending in the present matter.
The facts behind the four earlier convictions may aid the jury in determining whether, in the present case, the State has proved beyond reasonable doubt the relevant issue of unlawfulness, including to negate self‑defence. Without that evidence concerning his prior misconduct being led at the forthcoming trial, the jury will be operating in a vacuum when determining its verdict. A properly instructed jury should have the benefit of evidence going to Mr Pham's alleged propensity to resort to the use of a weapon.
The proposed propensity evidence has significant probative value for all of the reasons outlined above.

Prejudice

A fair‑minded jury would require to know of the proposed evidence. There is a risk of prejudice, but it is not a significant one. Any possible prejudice can be cured by direction.
In these circumstances, I am of the view that the probative value of the proposed propensity evidence, compared to the 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.

Other matters

Mr Tudori's written submissions also contended that:
Additionally, and more importantly, even if it were significantly probative, two of the three issues raised by Steytler P in Dair would be relevant, namely:
a.The jury attaching too much weight to the evidence;
b.The jury being distracted from its principle [principal] task by concentrating on resolving whether the accused committed the prior acts.
As to the first point, the trial judge can direct the jury as to how it should properly consider and deal with the proposed evidence. It can be expected that the jury will follow such direction, so that the jury will not place too much weight upon the proposed propensity evidence.
As to the second point, Mr Pham was convicted on his own plea of guilty on each of the previous four offences. Statements of material facts were accepted by him upon each conviction. It will take little time at trial to read the respective statements of material facts to the jury. Given the pleas of guilty and the acceptance of the statements, the jury will not thereby be distracted from its principal task of resolving the issues in this case.

Conclusion

For these reasons, the significant probative force of the proposed propensity evidence compels its admission into evidence and notwithstanding the prejudicial effect of that evidence, it is just to admit it. The trial judge can direct the jury in respect of any prejudice on the facts as they emerge at trial.