The State of Western Australia v Pope
[2019] WASC 338
•12 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- POPE [2019] WASC 338
CORAM: CORBOY J
HEARD: 5 & 11 SEPTEMBER 2019
DELIVERED : 12 SEPTEMBER 2019
FILE NO/S: INS 260 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MARINA GERTIE POPE
Accused
Catchwords:
Evidence - Propensity evidence - Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) - Where accused's prior offence result of delusion - Where delusion not present in alleged offence
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA), s 62
Evidence Act 1906 (WA), s 31A
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | Mr L Hobson |
| Accused | : | Ms H E Prince |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Helen Muhling |
Case(s) referred to in decision(s):
El‑Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93
La Bianca v The State of Western Australia [2019] WASCA 105
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118
CORBOY J:
(These reasons were delivered orally on 12 September 2019 and have been edited from the transcript.)
The application
The accused has been committed to stand trial on an indictment alleging four counts:
(1)on 7 April 2017, at Nollamara she murdered Travis Patrick Wicker;
(2)on the same date and at the same place as in count (1), she made a threat to unlawfully kill Pamela Roslyn Morrison;
(3)on the same date and at the same place as in count (1), she made a threat to unlawfully kill Douglas Elvis McArthur; and
(4)on the same date and at the same place as in count (1), she made a threat to unlawfully kill Neil Edward Gerardi.
The State applies for an order under s 31A of the Evidence Act 1906 (WA) that it be permitted to lead evidence of the accused's conduct relating to an offence for which she was convicted in the District Court in November 2014.
The State's case
Briefly summarised, the State's case against the accused is that:
(1)On the evening of 6 April 2017, she stayed at Unit 3, 54 St Albans Road, Nollamara (the Unit). Mr Wicker, Ms Morrison, Mr McArthur, Mr Gerardi were present at the Unit.
(2)The accused left the Unit briefly the next morning but returned, entered the kitchen, collected a knife and went into another room where Mr Wicker was sitting on a sofa watching television. Mr McArthur, Ms Morrison and Mr Gerardi were also in the room.
(3)The accused approached Mr Wicker and without warning plunged a knife into his chest. She did not withdraw the knife. She then attempted to stab Mr Gerardi with another knife.
(4)Mr Wicker, Mr Gerardi, Ms Morrison and Mr McArthur fled from the room to a bedroom. The accused attempted to stab Mr Gerardi as he endeavoured to close the bedroom door. The accused tried to force her way into the bedroom screaming out as she did so, 'I'll kill you all' and 'I'll kill you cunts'.
(5)Mr Wicker collapsed to the floor of the bedroom and the knife fell from a jumper that he was wearing and blood appeared. An ambulance was called and he was taken to Royal Perth Hospital where he underwent surgery. He died four days later. A post‑mortem examination was conducted by Dr Cooke who gave as the cause of death, 'organ failure following penetrating injury to the chest'.
(6)The accused left the Unit and was located by police a few hours later elsewhere in Nollamara. She was arrested and conveyed to a police station. On being searched, a knife was located in the waistband of her clothing. A jumper that the accused was wearing was seized.
It is accepted for the purpose of the application that the accused was at the Unit during the evening of 6 April 2017. However, she maintains she left the Unit before the next morning and prior to Mr Wicker being stabbed.
A notice of alibi has been filed under s 62 of the Criminal Procedure Act 2004 (WA) in which it is stated that the accused was walking around the vicinity of St Albans Road, Nollamara and nearby streets at the time of the events alleged by the State. The notice further states that the accused does not intend to call or adduce evidence in support of the alibi other than her own testimony.
The August 2013 Offence
On 18 November 2014, the accused pleaded guilty to a charge that on 12 August 2013, at Balcatta, she unlawfully did grievous bodily harm to Delphine Judith Anne Dodd (the August 2013 Offence). The accused was sentenced to 9 months' imprisonment, suspended for 12 months.
The facts alleged by the State and admitted by the accused in respect of the August 2013 Offence were:
(1)The accused and her victim resided at a unit in Balcatta. A few days prior to the offence, the accused had requested the victim leave the unit. The victim complied with that request and on the day of the offence she had gone to the unit to collect her belongings.
(2)At the time of the offence, the victim was sitting on a sofa packing her belongings into a suitcase. The accused overheard a comment made by the victim while on the phone to another person which the accused interpreted as a threat to her family. The accused took a knife from a kitchen drawer and walked over to the victim. She placed the victim in a headlock with her left arm and stabbed the victim with the knife that she was holding in her right hand.
(3)There was a struggle between the accused and the victim during which the victim managed to break free and to run out of the unit. She was pursued by the accused for a short distance before the accused returned to her unit.
(4)The victim suffered three puncture wounds to the upper back as a result of the accused's assaults.
The State's contentions
The State contends that the facts of the August 2013 Offence are so similar to the facts alleged by the State in this prosecution that evidence of the accused's conduct in committing the August 2013 Offence is similar fact evidence or evidence of a tendency that the accused has; that is, the evidence is 'propensity evidence' as that expression is defined by s 31A(1) of the Evidence Act.
The State alleges the accused has a tendency to, either in anger or for some other reason, take a knife from the kitchen and use the knife to stab a victim. The State contends that the alleged tendency, as similar fact evidence or as propensity evidence, is relevant to proof of the accused's intention when, on the State's case, she stabbed Mr Wicker.
In oral submissions, counsel for the State confirmed that the evidence that the State would seek to adduce under s 31A of the Evidence Act is the facts that have been outlined. As will become apparent, it is relevant that the facts on which the State would rely are confined to those matters.
The accused's contentions
The accused contends that the tendency alleged by the State is expressed at a high degree of generality that limits its probative value. Reference was made to the decision of the New South Wales Court of Appeal in El‑Haddad v The Queen[1] for the proposition that it will be difficult to find that an alleged propensity has a significant probative value when the propensity can only be identified at a high level of generality.
[1] El‑Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93.
The accused further contends that:
(a)The August 2013 Offence does not establish that the accused had a tendency to stab people in anger or for some other reason. Rather, the circumstances of the August 2013 Offence established no more than that the accused had acted in self‑defence to protect herself and her children, although her belief that it was necessary to do so was based on delusional thinking related to a mental illness.
(b)There were significant differences between the facts of the August 2013 Offence and the facts alleged by the State in this prosecution. In particular, there had been disagreements between the accused and the victim in the August 2013 Offence, the victim was well known to the accused and the accused contacted the police almost immediately after the offence and made full admissions.
In sentencing the accused for the August 2013 Offence, the sentencing judge found that:
(a)the accused in her 'own mind' understood that the victim had made a comment during a telephone call to the effect that somebody would kill the accused and her children (ts 33);
(b)the assaults committed by the accused were triggered by her mental illness (ts 73);
(c)the accused was operating under the impression or understanding that there was a real threat to the life of her children and the accused did not fully appreciate the seriousness of what had happened (ts 34);
(d)the accused fully cooperated with the police and made full and frank admissions at all times about what had occurred (ts 34);
(e)the accused suffers from paranoid schizophrenia with a differential diagnosis of schizoaffective disorder (ts 35);
(f)the offence was committed at a 'high point' in the accused's personal life following a recent separation from her husband and uncertainty about her accommodation (ts 36); and
(g)there was no other explanation for the accused's offending apart from her delusional belief that the victim had made threats to the accused and her family (ts 36).
The relevant principles
The principles relevant to whether propensity or relationship evidence has significant probative value within the meaning of s 31A of the Evidence Act were summarised in RMD v The State of Western Australia[2]. It is not necessary to reproduce in full the principles identified by the Court of Appeal in RMD.
[2] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also La Bianca vThe State of Western Australia [2019] WASCA 105 and The State of Western Australia v Jackson [2019] WASCA 118.
In The State of Western Australia v Jackson, the Court of Appeal affirmed the principles stated in RMD and noted four further points about the meaning and effect of s 31A[3]:
(a)The word 'conduct' in s 31A(1) refers to the manner in which the accused person behaves or has behaved. The words 'a tendency' refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
(b)An assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(i)the evidence is capable of proving the propensity;
(ii)proof of the propensity increases the likelihood of the commission of the alleged offence.
(c)An evaluation of the extent of the probative value of propensity evidence requires the purpose for which the evidence is sought to be admitted to be identified – that is, it is necessary to consider what work the propensity evidence is tendered to do.
(d)Even where a propensity is identified at a higher level of generality, it is necessary to examine the proposed propensity evidence in detail in a course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. In that context, it should also be noted that in RMD, the Court of Appeal noted that the high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
[3] The State of Western Australia v Jackson [2019] WASCA 118 [20] – [23].
Disposition
As noted, the State contends that the appellant's conduct in committing the August 2013 Offence establishes a tendency for the accused to take a knife from a kitchen and use the knife to stab a victim in anger or for some other reason. The tendency is said to be relevant to proof of the accused's intention at the time she allegedly stabbed Mr Wicker ‑ that is, whether she intended to kill Mr Wicker or to cause bodily injury of such a nature as to endanger or be likely to endanger his life.
However, it is not possible to draw any inference about the accused's mental state at the time of committing the August 2013 Offence without taking into account all of the circumstances in which the offence was committed. The sentencing judge found that the accused believed that she was acting in self‑defence by stabbing the victim. The belief was delusional but it was accepted by the sentencing judge to be a belief that was actually held by the accused. The State did not contest those matters for the purpose of sentencing the accused for the August 2013 Offence.
It is to be noted that the August 2013 Offence was an offence against s 297 of the Criminal Code (being grievous bodily harm) and not s 294 of the Criminal Code (being grievous bodily harm with an intention to maim, disfigure or disable a person). Consequently, the offence as charged and to which the accused pleaded guilty did not allege an element of intent. Further, the State accepted that the accused's act in stabbing the victim was not an unexplained and gratuitous act of violence. Rather, the accused was 'in her own mind' acting to defend herself and her family ‑ albeit, her actions were in response to a delusional belief that the victim posed a threat. There was evidence that the accused's conduct was rational when assessed according to her beliefs; if she acted out of anger, her emotion is explained by her delusional belief that she and her family had been threatened by the victim.
Obviously, there is a superficial similarity between circumstances of the August 2013 Offence and the facts alleged by the State in this prosecution. However, the State seeks to rely on the accused's conduct in committing the August 2013 Offence as a circumstance relevant to proof of her intention at the time that she allegedly stabbed Mr Wickers. In my view, the appellant's conduct in committing the August 2013 Offence has little, if any, probative value on the element of intention for the charge of murder alleged against the accused in this prosecution when all of the circumstances of the August 2013 Offence are considered. Further, there are substantial differences between the circumstances of the August 2013 Offence and the facts alleged by the State in this prosecution. In this case, the State alleges that the accused stabbed Mr Wickers suddenly and without warning and without any apparent provocation or explanation. On the State's case, the accused's act in stabbing Mr Wickers was spontaneous, gratuitous and rational. As has been emphasised, the accused's act in stabbing the victim in the August 2013 Offence was not gratuitous and unexplained. The mental states involved are significantly different.
Taking the evidence of the accused's conduct in committing the August 2013 Offence at its highest from the State's perspective, I do not consider that the evidence has significant probative value on the issue of the accused's intention when, on the State's case, she stabbed Mr Wicker. It would be unfair to the accused for the evidence to be adduced without additional evidence concerning the accused's mental state at the time of the offence also being admitted. The additional evidence would not only substantially qualify the probative value of the evidence proposed to be adduced by the State but it would risk distracting the jury from the issues that they are likely to be required to decide on the State's case in this prosecution. There is a risk the evidence would result in speculation that would be prejudicial to the accused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy17 SEPTEMBER 2019
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