The State of Western Australia v Reeves - [2016] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- REEVES [2016] WADC 29

CORAM: BOWDEN DCJ

HEARD: 8 MARCH 2016

DELIVERED : 11 MARCH 2016

FILE NO/S: IND BUN 50 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
RIKKI DANA REEVES

Catchwords:

Application to lead propensity evidence

Legislation:

Evidence Act 1906 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Application granted

Representation:

Counsel:

The State of Western Australia : Ms L Howells
Accused: Mr I MacFarlane

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Ian MacFarlane

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
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 Reeves is charged with the following offences:
1.On 13 October 2014 at Eaton she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
2.On the same date and at the same place as in count 1 she had in her possession a prohibited drug, namely dexamphetamine, with intent to sell or supply it to another.
3.On 27 November 2014 at Carey Park she made a threat with intent to gain a benefit for herself.
The trial is listed for 16 May 2016.

The applications

The State's application is that they be permitted to lead evidence of a search under the Misuse of Drugs Act 1981 conducted on a property the accused was residing at in Eaton on 27 October 2014.
The defence had applied to exclude the DVDs of the search warrants of 13 October 2014 and 27 October 2014. Sensibly the parties have agreed the portions of the search DVDs which are to be played before the jury and no orders are required.

Brief overview of the State's case

Counts 1 and 2 arise from a search warrant executed at the accused's home address on 13 October 2014.
On that date the accused was at the residence and the police located, inter alia, $4,130 cash, clipseal bags containing methylamphetamine, clipseal bags containing a cutting agent, electronic scales, empty clipseal bags, a clipseal bag containing dexamphetamine tablets, and a number of phones one of which was an iPhone containing the contact details of a number of people, which when downloaded allegedly contained text messages relating to the sale of drugs and debts owed in relation to those drugs.
During that portion of the search DVD which the parties agree is admissible, Ms Reeves admits that the dexamphetamine tablets are hers and says they had been prescribed by her doctor.
In relation to count 3 the State says that Mr Cook was a regular user of methyl amphetamine who purchased drugs from Ms Reeves on credit.
The State alleges that on 27 November 2014 Mr JT and Ms Reeves went to Mr Cook's address and told him they were going to get his car for the money he owed Ms Reeves. Mr JT is alleged to have sprayed Mr Cook with something through the screen door and verbally abused him and stabbed the flyscreen door with a knife before opening it. Mr Cook was able to shut the wooden door and when he looked through the window he saw Mr JT throw a bottle at the front bedroom window causing it to shatter. Mr Cook says Mr JT threatened to come back and shoot him.
Mr Cook says he then saw Ms Reeves leave in a blue Holden Commodore and Mr JT leave in a white Land Rover.
Police attended the scene and located a knife and a shattered bottle. Mr JT's DNA profile matched the DNA on both the knife and bottle.
The State also intends to rely on CCTV footage from cameras located at Mr Cook's house and the IGA store across the road.
About two hours after this incident, the police stopped a vehicle being driven by Ms Reeves and she was wearing the same clothing as described by Mr Cook and depicted in the CCTV footage. The police searched the vehicle and located a handwritten list of names and addresses said to be a tick list in Ms Reeves' handbag (27 November tick list). One entry is said to relate to Mr Cook and indicated that he lived across the road from the IGA and made reference to 10,000. The police also located a metal rod and blank vehicle transfer papers.
Ms Reeves was arrested on 11 February 2015 and the police located a can of pepper spray in her handbag. When interviewed she admitted she had the pepper spray in her handbag on the night of the alleged offence, saying it was for self-protection.
Ms Reeves told the police that she had known Mr Cook for two years and he was a drug dealer. She said that earlier on the day of the alleged offence she had a fight with Mr Cook in the Big W carpark and he threw a piece of paper at her (the 27 November tick list) containing a list of names and prices and claimed she owed him money.
She said she went to Mr Cook's house to give the list back. Ms Reeves also told the police she had gone to the IGA with Ms A to get food. Ms A's boyfriend, Mr JT, arrived at the shopping centre and she saw Mr Cook standing at the front of his house saying he was going to kill them. She denied speaking to Mr Cook and said she did not go much further than past the white picket fence. She also said she remained behind the trees near the white picket fence while an argument between Mr JT and Mr Cook occurred.
She admitted she used methyl amphetamine and denied that she had ever seen the knife that had been seized by the police. She said the metal pole which was taken from her vehicle on the night of the offence was a trolley jack belonging to her former partner and denied that she used it as a weapon. She told the police the transfer papers that were in her car because she intended to sell the vehicle in order to pay her debt to Mr Cook.

The proposed evidence

The State wish to lead evidence that on 27 October 2014 the police searched a residence at Eaton. The accused and a third person were present.
At the address the police located a black iPhone (B1) in a Great Wall motor vehicle at the front of the property, three clipseal bags containing methylamphetamine in a laundry basket in the front room of the residence, two sets of electronic scales, one located in a blue Holden Commodore parked at the front of the residence and the other in the lounge room of the residence, $1,770 cash in a purse located in the blue Holden Commodore, a black Telstra phone and a second black iPhone located in the lounge room.
Ms Reeves was charged with simple possession of the methylamphetamine and is yet to be dealt with for that charge.

The State's submissions

The State say that the proposed evidence shows that Ms Reeves possessed methyl amphetamine just 11 days after the events resulting in counts 1 and 2, and it therefore shows she has a tendency to possess prohibited drugs and this is significantly probative on the issue of whether she possessed the drugs the subject of counts 1 and 2.
The State point out that when the black iPhone (B1) was downloaded it contained an electronic note dated 23 October 2014 (the electronic tick list) which the State alleges is a drug dealing tick list containing the names and amounts owed, some which are similar to those on the 27 November tick list. They say the contents of the two tick lists show the accused was involved in an ongoing drug dealing business and the downloaded contents of black iPhone (B1) show a link between the accused and people named on the electronic tick list and the 27 November tick list.
The State points out the black iPhone (B1) was found in the Great Wall motor vehicle and Ms Reeves was observed sitting in the driver's seat of that vehicle at the time of the search, and the vehicle was registered to her former husband. The State says the contents of the phone when downloaded show that she was using the phone to send and receive messages and she had given the black iPhone's number to the police as her contact number on previous occasions. Further, the contact list on that phone is almost identical to the contact list on the iPhone seized from her on 13 October 2014.
The State points out that one set of scales and the cash were located in the blue Holden Commodore which was registered in her name, and which she admitted was hers and had been seen driving by the police on other occasions. The cash was located in a purse with her driver's licence.
The State say that her possession of methylamphetamine on 27 October is significantly probative of whether she possessed the drugs the subject of count 1 and 2 on the 13 October 2014.
Whilst the State accepts the drugs Ms Reeves possessed on 27 October 2014 were for her own use, they say that the possession on that date of cash, scales and a black iPhone with a tick list indicates that she was involved in an ongoing drug dealing business. The State say that if the jury accepts she was in an ongoing drug dealing business on that date, it is significantly probative of whether she possessed the drugs the subject of counts 1 and 2 with the intent to sell or supply those drugs.
They also say it is relevant to count 3 because it supports Mr Cook's evidence that he was buying methyl amphetamine from Ms Reeves and owed a debt to her and shows she had a motive to attend his residence to collect that debt.
The State also say the proposed evidence can be used to rebut any assertion by Ms Reeves that she had no knowledge of the drugs the subject of counts 1 and 2 and was not involved in drug dealing or that the drugs were solely for her personal use.
The State also say the evidence is relevant to rebutting any suggestion that the 27 November 2014 tick list belonged to Mr Cook.

The defence submissions

The defence say the evidence gathered during the search of 27 October 2014 is insufficient to provide a basis for a propensity to deal in drugs.
The defence submit that the presence of methylamphetamine at the Eaton address where Ms Reeves and another person were present is not proof that Ms Reeves was in possession of the methylamphetamine. They point out that Ms Reeves made no admission relating to the methylamphetamine or the cash located in the Holden Commodore or the set of scales.
They point out the three clipseal bags were found to contain 0.04 grams and 0.09 grams of powder of which methylamphetamine was a component.
The defence submit that there is nothing to suggest the black iPhone (B1) or the Great Wall vehicle in which it was found were connected to Ms Reeves and absent any connection between the black iPhone and Ms Reeves the alleged tick list found on B1 cannot be linked to Ms Reeves.
In any event they say the electronic list located on the black iPhone (B1) located in the Great Wall vehicle at the front of the Eaton property and the 27 November tick list are not similar because some names appear on one of the tick lists but not the other (six examples cited in the defence submissions) and some of the names which appear on both lists have different amounts next on each of the lists (three examples cited).
Further, they say there is nothing that shows the scales seized on 27 October were associated with drugs and that because there were two people at the address at the time of the raid, it is not uncommon to find two phones.
The defence say the proposed evidence should not be allowed because it is not probative of drug dealing and there is a very real risk of unfairness if it is admitted.
Further, the defence say to allow the proposed evidence would distract the jury from their task of considering the indictment and hijack the trial as much time would be devoted to the 27 October events.

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, it is also evidence of a tendency that she has or had and is therefore 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].
Ms Reeves 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 Ms Reeves who possessed the drugs in counts 1 and 2 and that her intent was to sell or supply them. In so far as count 3 is concerned the whole essence of the State case is that Ms Reeves intended to take Mr Cook's car in part satisfaction of the debt he owed her for drugs and therefore the State need to establish that Ms Reeves was dealing drugs to Mr Cook.
The defence submissions, with respect, overlook the circumstantial nature of the proposed evidence.
The matters that the defence point to, that is, that the accused made no admissions relating to the methylamphetamine, that there was another person present at the residence, and there are differences between the tick list of 27 November and the tick list of 27 October are all matters that are properly put before the jury and may cast doubt as to whether the accused was in possession of the 27 October methylamphetamine or involved in ongoing drug dealing as of that date. However, when considering applications of this type the probative value of the proposed evidence is to be taken at its highest from the prosecution's perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
Showing that Ms Reeves was in possession of methylamphetamine as at 27 October 2014 is significantly probative of whether she possessed the prohibited drugs the subject of counts 1 and 2 on 13 October 2014.
Taken at its highest, a jury could be satisfied the she possessed the 27 October methamphetamines. The jury could draw the inference that she possessed that methamphetamines from the facts that she was a methamphetamine user, the drug was found at her residence and in a laundry basket that was also found to contain methamphetamines on a prior occasion when located at a residence where she was then staying.
In my opinion establishing that Ms Reeves had access on 27 October 2014 to scales, cash, a mobile phone (B1) containing an electronic tick list and text messages that relate to drugs is capable of establishing that she was in the ongoing business as of drug dealing.
A jury could draw the inference that Ms Reeves possessed the scales from the fact they were located in a vehicle registered to her and which she admitted was hers and had been seen driving. They could infer the cash was hers from the fact it was located in the same car in a purse that contained her driver's licence. They could infer from the messages sent and received and the contents page that the black iPhone (B2) was used by her and contained not only an electronic tick list but entries relating to drug dealing. Significantly, there appears to be more drug related entries on the black iPhone B1 than the phones seized in the 13 October raid. The electronic tick list is dated 23 October 2014 and a jury could infer that she was drug dealing as at that date. The combined weight of these facts could lead a jury to infer that Ms Reeves was in an ongoing drug business as at 27 October, even though the methylamphetamine found on that date was for Ms Reeves' personal use. The trial judge would, in my opinion, need to instruct the jury specifically on that later point.
The proposed evidence does have significant probative value in respect of all three counts on the indictment.
Establishing that Ms Reeves was in the business of ongoing drug dealing as at 27 October 2014 is significantly probative of whether she possessed the drugs the subject of counts 1 and 2 with an intent to sell or supply and is also significantly probative as to whether or not she was a drug dealer as alleged by Mr Cook in relation to count 3, the offence of 27 November 2014.
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.
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 Reeves 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 misconduct. Further, the jury may become confused or distracted as a result of the disputed evidence and may concentrate on resolving whether she was dealing on 27 October 2014 or in possession of the drugs on that date instead of concentrating on the counts on the indictment.
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.
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 hear evidence, which at its highest is capable of showing ongoing drug dealing of Ms Reeves or possession of methylamphetamine by her on 27 October 2014 would lead the jury to consider the case 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.
I order that these reasons be provided to the solicitors for the parties but are not otherwise published until the conclusion of Ms Reeves' trial on the indictment the subject of this application.