The State of Western Australia v Samura [No 4]

[2021] WASC 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SAMURA [No 4] [2021] WASC 71

CORAM:   DERRICK J

HEARD:   12 MARCH 2021

DELIVERED          :   15 MARCH 2021

FILE NO/S:   INS 241 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

SANNAH JR SAMURA

Accused Samura

AMIRALI FARSIJANI

Accused Farsijani

PORIA AKHBARI SADIQI

Accused Akhbari Sadiqi

WILLIAM WADE KICKETT

Accused Kickett

Catchwords:

Criminal law - Evidence - Whether evidence of statements by an accused admissible as evidence of an admission - Whether other associated evidence admissible - Relevance - Exercise of discretion to exclude evidence on the ground that probative value exceeded by prejudicial effect

Legislation:

Criminal Code (WA)

Result:

Application to exclude evidence allowed in part

Category:    B

Representation:

Counsel:

Prosecution	:	Ms L E Christian SC & Ms S M Cerqui
Accused Samura	:	Mr D C McCallum & Mr H T Gawley
Accused Farsijani	:	Mr M Trowell QC & Mr R Kan
Accused Akhbari Sadiqi	:	Ms H E Prince & Mr R Kashyap
Accused Kickett	:	Mr A G Elliott & Mr F P Merenda

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused Samura	:	Holborn Lenhoff Massey
Accused Farsijani	:	Legal Aid (WA)
Accused Akhbari Sadiqi	:	Legal Aid (WA)
Accused Kickett	:	Not applicable

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

HCP v The State of Western Australia [2019] WASCA 38

Kenworthy v The Queen [No 2] [2016] WASCA 207

Le-Ta v The State of Western Australia [2020] WASCA 14

Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359

Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403

R v Baden-Clay [2016] HCA 35

R v Williams [1987] 2 QDR 777

The State of Western Australia v McBride [2015] WASC 275

The State of Western Australia v Rehu [2016] WASC 112

DERRICK J:

(These reasons were delivered orally and have been edited from the transcript.)

Introduction

1. Mr William Kickett (the accused) and his three co‑accused, Mr Sannah Samura, Mr Amirali Farsijani and Mr Poria Akhbari Sadiqi are charged with the offence of murdering Mr Dejan Dimitrovski (the deceased).  They are alleged to have committed the offence on 4 August 2017. 

2. The trial of the accused and his co‑accused commenced on 22 February 2021.  The trial is scheduled to run for three months.  Approximately 70 of the State's foreshadowed 584 witnesses have been called to give evidence.

3. By an application dated 10 March 2021 the accused applies for a ruling that the evidence of the prosecution witness Ms Jade Stillwell (Stillwell) of an alleged admission made by him, and as to the narrative of events that led to the making of the alleged admission, is inadmissible (the application).  The application is made on the ground that the evidence is irrelevant, or alternatively on the ground that the probative value of the evidence is exceeded by its prejudicial effect. 

4. The application should have been made well before the commencement of the trial at a pre‑trial directions hearing.  This is particularly so given that in the first trial of the accused and the co‑accused, which commenced in early 2020, the jury was discharged and the trial discontinued on the application of the accused's then counsel as a result of the late disclosure by the State of Stillwell's proposed evidence.  The making of the application during the trial has significantly interrupted the smooth and efficient running of the trial.  In short, the timing of the application is unacceptable. 

The State's case

1. The prosecutor commenced her opening address to the jury in the following terms:[1]

   On Friday, 4 August 2017, between 7.55 and 8.32 pm, [the deceased] was subjected to a violent bashing that led to his death.  The State says that the four accused men and at least one other man were all involved in the attack on [the deceased].  They were all his friends or associates.

   [1] ts 1020, 23 February 2021.

2. The other man referred to by the prosecutor is Saied Akbar Hussaini (Akbar Hussaini).  Akbar Hussaini fled the country before being charged.

3. Towards the end of her closing address the prosecutor provided further detail about the bases on which the State alleges that the accused and the co‑accused are guilty of the charged offence.  In essence, the prosecutor told the jury that the State's case against the accused is as follows:[2]

   1.The accused was a principal offender in that he was involved in the assault on the deceased during which he did, with the required intent, an act or acts in a series of acts that caused the death of the deceased;[3]

   2.If the accused was not a principal offender he aided the principal offender or principal offenders to murder the deceased by restraining or assisting in the restraining of the deceased, by assaulting or assisting in the assault of the deceased, by obtaining items used to restrain the deceased or to otherwise render the deceased incapable of defending himself, by being physically present and available to overcome any resistance offered by the deceased, and by being physically present to prevent the deceased's escape or any attempt by the deceased to obtain assistance;[4] and

   3.If the accused was not a principal offender or an aider he formed a common intention with at least one other person to prosecute an unlawful purpose, specifically to inflict serious injury on the deceased or to demand something from the deceased with a threat of violence, and that in the prosecution of the unlawful purpose an offence was committed, specifically the murder of the deceased, that was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.[5]

   [2] ts 1045 ‑ 1047, 23 February 2021.

   [3] Criminal Code (Code), s 7(a).

   [4] Code, s 7(c).

   [5] Code, s 8.

The evidence of Stillwell the subject of the application

1. The prosecution brief contains three statements made by Stillwell.  The statements are dated 14 August 2017, 8 February 2020 and 13 February 2020.  However, it is the proposed evidence contained in the latter two statements that is the subject of the application.

2. In the 16 page statement dated 8 February 2020 Stillwell asserts that on a date in late 2017, after late August 2017 and most likely in November 2017, the accused told her that 'Dejan was a dog, he had been fucking my sister.  I popped that dog in the head'.  It is the evidence of Stillwell that the accused made these statements to her that is at the heart of the application. 

3. The State proposes to adduce the evidence of the accused's statements to Stillwell on the basis that it is evidence of an admission against interest made by the accused.  More specifically, the State proposes to adduce the evidence on the basis that the accused's statements amount to an admission by him that he engaged in at least some of the alleged conduct the subject of the charged offence.  The State does not propose to adduce the evidence on the basis that the statements amount to an admission by the accused to all of the elements of the charged offence.

4. The balance of Stillwell's statement dated 8 February 2020, and the statement dated 13 February 2020, relate to the narrative of events leading up to and surrounding the alleged admission by the accused.  In general the narrative provided by Stillwell is to the following effect:

   1.In late 2017 she began associating with a person named Buddy Riley (Riley) and another person named Dennis Jovanovski (Jovanovski).  She met Riley through her friend Tom Daly (Daly);

   2.At the time she was a heavy user of the drugs fantasy and methylamphetamine;

   3.On an unknown date Riley introduced her to a person named Craig Christian (Christian).  Christian asked her if she could set up Jovanovski.  She understood that by asking her to set up Jovanovski, Riley and Christian wanted her to lure Jovanovski somewhere so that they could stand over him for money and drugs.  She was offered a reward of $15,000 for her assistance;

   4.She told Riley and Christian that the 'best way to do it was through [Daly] who owed money to [Joavanovksi] for drugs';

   5.She spoke with her father about the issue because she was put in a difficult position by the request.  She later told Jovanovski about the plan to set him up;

   6.After an argument with Jovanovski one morning she was dropped at home by Jovanovski.  She immediately went to Riley's apartment and told him that Jovanovski was planning to meet with Daly to 'get his money'.  That same day Daly attended Riley's apartment.  Riley asked Daly if he would assist to set up Jovanovski.  Daly agreed to do so.  She, Riley and Daly later went to Daly's parents' house in Waterford;

   7.Within ten minutes of arriving at Daly's parents' house Christian arrived at the house with the accused.  Christian and the accused began to 'have a good look around' the house;

   8.The group then began to consume methylamphetamine and fantasy.  At some point the accused and Christian placed black gloves on and Riley asked Daly if he had a bum bag 'to put his piece into' which she understood to mean a gun.  Daly asked her to retrieve a Gucci bum bag from his bedroom which she did.  She gave the bum bag to Riley.  Riley then put his gun into the bum bag;

   9.She became scared and went into an upstairs bedroom.  At around 5.00 pm the accused came into the room.  The accused looked as though he was under the influence of drugs.  The accused had a discussion with her about mutual friends including Akhbar Hussaini, known as AK, and Danika Colvell (Colvell).  She asked the accused whether Colvell was his cousin.  The accused said that Colvell was not his cousin.  The accused also said that Colvell 'was no good and that AK had taken her to Iran for a reason';

   10.The accused told her that he 'loved AK like a brother' and asked her how she had met AK.  She told the accused that she had met AK through the deceased at which point the accused looked agitated and disgusted and said, 'Dejan was a dog, he was fucking my sister.  I popped that dog in the head'.  The conversation continued for a bit longer and then the accused said, 'Don't tell old mate that I mentioned anything, he told me to never talk about that situation'.  She understood the accused's reference to 'old mate' to be a reference to Christian.  The accused then went back downstairs;

   11.Approximately one hour later the police conducted a bail curfew check on Daly.  Riley, Christian and the accused left shortly thereafter.

The accused's objection to the evidence on the ground of relevance

Legal principles

1. The legal principles relevant to the determination of the accused's objection to the evidence on the ground of relevance may be stated as follows.

2. In order for evidence to be admissible it must be relevant.  In order for evidence to be relevant it must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[6]

   [6] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [23]; HCP v The State of Western Australia [2019] WASCA 38 [46].

3. It follows that the evidence proposed to be adduced from Stillwell that the accused told her that he had 'popped' the deceased 'in the head' will only be relevant if it is reasonably open to the jury to find that the accused's statement amounted to an admission by him to having engaged in some aspect of the conduct alleged against him the subject of the charged offence.[7]  To put the matter another way, the evidence must be capable of permitting the inference to be drawn by the jury that the accused made an admission to having engaged in some aspect of the conduct alleged against him the subject of the charged offence.[8]   This is the only basis on which it can be said that the proposed evidence is capable of rationally affecting, directly or indirectly, the probability of the existence of a fact in issue in the proceedings.[9]

   [7] The State of Western Australia v McBride [2015] WASC 275 [14] (Corboy J); The State of Western Australia v Rehu [2016] WASC 112 [29], [32] ‑ [33] (Fiannaca J).

   [8] The State of Western Australia v McBride [11(c)] (Corboy J).

   [9] In her opening address the prosecutor told the jury that the State's case was that the evidence of the statement allegedly made by the accused was 'something that [they could] take into account when … considering the case against [the accused]' and that the statement was an admission by the accused that he 'did something' to the deceased:  ts 1043, 23 February 2021.  As is apparent from what I have said, the fact that the alleged statement may be interpreted as an admission by the accused that he 'did something' to the deceased is not sufficient to justify the conclusion that the evidence of the statement is relevant and admissible.

4. It is for the trial judge to determine if it is reasonably open to a jury to find that a statement made by an accused amounts to an admission to having engaged in conduct the subject of a charged offence.  However, it is for a jury to determine if the statement in fact amounted to an admission having regard to all of the evidence and the burden and standard of proof.[10]

   [10] The State of Western Australia v Rehu [32] (Fiannaca J).

5. In determining if it is reasonably open to a jury to find that a statement made by an accused amounts to an admission to having engaged in conduct the subject of the offence with which they are charged, the statement should be considered in the context in which it was made and in light of other evidence to be adduced.  Whereas a statement, if viewed in isolation, may appear ambiguous or equivocal, viewing the statement in context and in light of other evidence to be adduced may shed light on the meaning of the statement with the result that it can be concluded that it will be reasonably open to a jury to find that the statement amounted to an admission.[11]

   [11] The State of Western Australia v Rehu [30] (Fiannaca J).

6. Evidence of an admission is not automatically excluded because of the possibility of alternative explanations.  Rather, the question on admissibility is whether the relevant statement and the circumstances in which it was made are such that a jury might reasonably infer that the statement constituted an admission.[12] 

   [12] The State of Western Australia v McBride [14].

7. I note that in support of the application the accused places particular reliance on the following statements made by Andrews CJ in R v Williams:[13]

   Where however, nothing in the surrounding circumstances is shown which could reasonably be thought to compel a denial by a person interrogated or where he gives an answer which is ambiguous, neutral, equivocal or otherwise not plainly inconsistent with a consciousness of innocence it ought not to be left to the jury with a direction to the effect that it is left to them as a fact for their consideration and thus that they might regard it as probative and press it into service of the Crown.

   As a rule it would be excluded because it is irrelevant.  If, however, it is only by some tenuous reasoning as to its relevance that a ruling that it is technically admissible might be made, which could happen in some circumstances, its sheer lack of weight would cry out for its exclusion in the proper exercise of a judicial discretion.

   [13] R v Williams [1987] 2 Qd R 777, 780 ‑ 781; cited with approval in The State of Western Australia v McBride [11(h)] (Corboy J).

8. The State in its submissions points out that R v Williams concerned the admissibility of denials made by an accused to police during an interview which the prosecution relied upon as lies that amounted to consciousness of guilt.  The State submits that the above cited statements made by Andrews CJ must be viewed in this context and that there 'is no basis in logic or principle to attempt to extend them to the present circumstances'.[14]  For my part I do not see any material inconsistency between Andrews CJ's statements and my statement of the applicable legal principles. 

The accused's submissions

[14] State's Submissions, [2].

1. On behalf of the accused it is submitted that it is not reasonably open to the jury to find that the statement allegedly made by the accused to Stillwell amounted to an admission by the accused to having engaged in any of the alleged conduct the subject of the charged offence.  It is submitted that the statement allegedly made by the accused does not permit any inference to be drawn other than that at some unknown point in time and at some unknown location and in some unspecified way the accused assaulted the deceased.  It is submitted that the statement allegedly made is ambiguous as to the nature of the assault in that the word 'popped' could refer to the deceased being punched but could equally refer to the deceased being shot, something which did not occur during the assault on the deceased that led to his death.  It is submitted that in these circumstances the evidence of the accused's statement to Stillwell is so lacking in particularity or context that it is incapable of being used by the jury to permissibly reason that the accused was admitting to some fact relating to his involvement in the killing of the deceased.  It is submitted that to allow the evidence to go before the jury would be to invite impermissible reasoning based on conjecture and speculation.[15]

   [15] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 307 [46] ‑ [47]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18] ‑ [21].

2. On behalf of the accused it is further submitted that even if I decide that Stillwell's evidence of the alleged admission is relevant I should nonetheless conclude that her evidence of the narrative of events is irrelevant.

The State's submissions

1. The State submits that the statement alleged to have been made by the accused does not contain any relevant ambiguity.  The State submits that the alleged statement is an admission by the accused to having assaulted the deceased in the head.

2. The State further submits that in determining if it will be reasonably open to the jury to find that the alleged statement of the accused that he 'popped' the deceased in the head amounted to an admission by him that he engaged in any aspect of the conduct the subject of the charged offence, it is necessary to consider the statement in light of not only the other statements allegedly made by the accused at the time but also other circumstantial evidence that the State intends to adduce.  In this regard the State submits that there is other evidence to be adduced which will link the deceased's involvement with the accused's sister to the timing of the incident that resulted in his death.  Specifically, the evidence to be adduced will consist of the following:

   1.Evidence that the accused had a sister named Rahmese Kickett;[16]

   2.Evidence that on the day that he was killed the deceased had telephone contact with a person using the phone number 0437 738 721;[17]

   3.Evidence that the number 0437 738 721 was stored in the deceased's phone contacts as 'RK';[18]

   4.Evidence of messages sent by RK to the deceased on the day he was killed which suggest that the pair were, or at least had been, arguing;[19]

   5.Evidence that the phone number 0437 738 721 was used by a woman who identified herself as Rahmese Kickett to call triple zero on 9 February 2018;[20] and

   6.Evidence that there were mixed DNA profiles found on some surfaces of a water bottle (BME 40) seized from the deceased's residence (at which the incident resulting in the deceased's death occurred) with one of the contributing DNA profiles matching the profile of  Rahmese Kickett.[21]

   [16] Prosecution Brief (PB) 4509‑4512.

   [17] PB 2080 and 2088, lines 95 and 96; PB 3596 and 3599, lines 29 and 30.

   [18] PB 4509‑4512.

   [19] PB 3596 and 3599, lines 29 and 30.

   [20] PB 4917‑4926.

   [21] PB 1349‑1350.

1. The State further submits that the jury will be entitled to consider the evidence of the alleged admission in conjunction with other evidence against the accused as part of the circumstantial case against him.[22]

   [22] R v Baden‑Clay [47].

2. The State further submits that the evidence of Stillwell as to the narrative of events leading up to and surrounding her encounter with the accused at Daly's parents' house is relevant to the assessment of her credibility, particularly in circumstances where the accused may be intending to attempt to undermine her reliability on the basis of her drug use.  Thus, the State submits, the evidence of the narrative is relevant.  However, the State has undertaken not to lead the evidence relating to the accused putting on gloves while at Daly's parents' house.

Decision

1. In my opinion the word 'popped', at least when read in isolation, does carry with it a degree of ambiguity.  While it may be interpreted as referring to a punch or the striking of a blow, it may also, in my view, be interpreted as referring to a shooting.  It is, of course, not part of the State's case that the deceased was shot during the course of the assault that led to his death.

2. Despite the ambiguity of the meaning of the word 'popped' if viewed in isolation, it is my opinion that it would be reasonably open to the jury to find that the alleged statement of the accused amounted to an admission by him that he participated in the assault of the deceased that resulted in the deceased's death.  I am of this opinion taking into account the following circumstances considered in combination with each other.

3. First, the word 'popped' is, as the accused concedes, capable of being interpreted as referring to a punch or the striking of a blow.

4. Second, the evidence already adduced from the forensic pathologist, Dr Clive Cooke, is to the effect that the mechanism of the deceased's death was cardiac arrhythmia and that the most significant or substantial causes of the cardiac arrhythmia, or in other words the death, was the combined effect of the severe blunt force fracture injuries suffered by the deceased to the central part of his face and a thyroid cartilage (neck) fracture injury.[23]  In other words, the statement allegedly made by the accused that he 'popped' the deceased 'in the head' is consistent with the location of the death causing injuries suffered by the deceased.

   [23] ts 1605 ‑ 1613, 3 March 2021.

5. Third, the accused is alleged to have made the statement at a point in time that was relatively close to the killing of the deceased, specifically within approximately three months of the deceased's death.

6. Fourth, the accused is alleged to have made the statement that he 'popped' the deceased 'in the head' in the context of describing the deceased as a 'dog' because he had 'been fucking' his sister.  That is, the statements allegedly made by the accused assert a causal connection between the conduct engaged in by the deceased towards the accused's sister and the accused's conduct in 'popping' the deceased in the head.

7. Fifth, the other evidence to be adduced by the State to which I have referred above is capable of proving to the jury that the deceased was in contact with the accused's sister on the day of his death and that he was involved in a disagreement with the accused's sister.  Therefore, it will be open to the jury to conclude that the relationship that according to the statements allegedly made by the accused was causally connected to his decision to 'pop' the deceased in the head was, at the time of the deceased's death, in existence and arguably under some strain.

8. In my opinion, the combined effect of the above specified circumstances is that it would be reasonably open for the jury to conclude that the statement allegedly made by the accused that he had 'popped' the deceased 'in the head' related to the fatal assault on the deceased and therefore amounted to an admission by him to having participated in the assault.  Accordingly, in my opinion the evidence of the statement, together with the statement 'Dejan was a dog, he had been fucking my sister' is relevant.

9. Of course, my decision does not mean that the jury will ultimately decide that the alleged statement of the accused was in fact an admission to participating in the assault on the deceased that led to the deceased's death.  If the jury find that the alleged statement was in fact made by the accused, it will be for them to decide, in accordance with directions of law that I will give to them, whether the statement did amount to a truthful admission by the accused that he did participate in the assault on the deceased that led to the deceased's death.

10. I turn to the objection on the ground of relevance to Stillwell's evidence comprised of her narrative of the events leading up to the alleged conversation with the accused.

11. I am not persuaded that all of the evidence as set out in Stillwell's statements is relevant.  In particular, I am not persuaded that the evidence proposed to be adduced from Stillwell which relates to the reason why she and the other persons including the accused were at Daly's parents' house on the day that the accused is alleged to have made the admission is relevant.  I do not see how this evidence is capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.  I do not accept the State's submission that this evidence of Stillwell is relevant to the assessment of the credibility of Stillwell's evidence relating to the accused's alleged admission, although I accept that it might become so as a result of the nature of any cross-examination of Stillwell.

12. In summary, I am satisfied that the evidence to be adduced from Stillwell as to when and how she came to meet the various people who were at Daly's parents' house on the day the accused is alleged to have made the admission, as to her attendance at the house on the day the accused is alleged to have made the admission, and as to the use of drugs by her and others at the house on the day the accused is alleged to have made the admission is relevant.  However, I am not, as things currently stand, satisfied that Stillwell's evidence relating to being asked to 'set up' Jovanovski, or her evidence relating to the reason for her and the other persons attending Daly's parents' house, or her evidence relating to the accused putting on gloves while at Daly's parents' house, or her evidence relating to Riley's possession of a gun while at Daly's parents' house is relevant.  In my view these aspects of Stillwell's evidence are irrelevant and inadmissible.

13. I will, if necessary, hear from counsel further in relation to the paragraphs of Stillwell's statements that contain the material that should not, in order to give effect to my ruling, be adduced.

14. I repeat the point made above, namely that my ruling that certain aspects of the narrative evidence are irrelevant will not preclude the State seeking to argue that the evidence has been rendered admissible by the nature of any cross‑examination of Stillwell.

The objection on the ground of probative value being exceeded by prejudicial effect

1. I turn to the objection to the admissibility of Stillwell's evidence on the ground that its probative value is exceeded by its prejudicial effect. 

Legal principles

1. In Le‑Ta v The State of Western Australia[24] the court said the following (citations omitted):

   A trial judge's discretion to exclude admissible evidence where the prejudicial effect of the evidence outweighs its probative value is well established.  In this context, it is important to understand what is meant by 'prejudice'.  Evidence is not prejudicial simply because it tends to prove the guilt of the accused.  Prejudice arises from the risk of improper use of the evidence.  Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.  As Nettle J has explained, by this discretion, evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt.

   [24] Le-Ta v The State of Western Australia [2020] WASCA 14 [44].

2. The court's above reference to the explanation provided by Nettle J is a reference to statements made by his Honour in Police v Dunstall.[25]

The accused's submissions

[25] Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26].

1. On behalf of the accused it is submitted that even if it is accepted that the evidence of the alleged admission is relevant, its lack of particularity and context has such a significant impact upon its probative value that it should be excluded on the basis that its probative value is exceeded by its prejudicial effect.

2. On behalf of the accused it is further submitted that even if it is accepted that the evidence of the narrative of events is relevant, the probative value of the evidence is exceeded by its prejudicial effect because the evidence will reveal that the accused was involved in a plan to trap a person in order to use violence to extort that person for money or drugs.  It is submitted that the irresistible conclusion to be drawn from the narrative evidence, regardless of whether or not the evidence relating to the accused wearing gloves while in Daly's parents' house is adduced, is that the accused was part of a group that was preparing to trap and then extort Jovanovski.  It is submitted that in these circumstances the prejudicial effect of the evidence is plain, particularly when one bears in mind the nature of the State's case advanced against the accused in reliance on s 8 of the Code. 

The State's submissions

1. In relation to the evidence of the alleged admission, the State submits that the evidence is highly probative of a fact in issue and that there is no basis for excluding the evidence on the ground that its probative value is exceeded by its prejudicial effect.

2. In relation to Stillwell's narrative evidence, the State submits that there is limited evidence to be given by her from which a jury could infer that the accused was a party to the plan to harm Jovanovski, and that the evidence will reveal that the architects of the plan were Christian and Riley.  The State submits that any potential prejudice to the accused will be removed by the State not adducing from Stillwell the evidence relating to the accused wearing gloves while he was at Daly's parents' house and by me giving a direction to the jury to the effect that they must not engage in propensity type reasoning.

Decision

1. When account is taken of the directions that I will ultimately give to the jury in relation to the evidence of the alleged admission there is, in my opinion, no basis for concluding that the probative value of the evidence will be exceeded by its prejudicial effect.  In my opinion the proposed evidence of Stillwell as to the alleged admission does not carry with it any prejudice in the relevant sense.

2. As to the narrative evidence of Stillwell, I have already ruled that the aspects of the evidence relating to the reasons for her attendance at Daly's parents' house is irrelevant and is therefore inadmissible.  However, if contrary to my conclusion the evidence is relevant, I am satisfied that the relevance is so marginal that the probative value of the evidence is, for the reasons put forward on behalf of the accused, exceeded by its prejudicial effect.  I do not accept the State's submission that there is little in the aspects of the evidence that I have identified that will enable a jury to infer that the accused was part of the plan to extort and harm Jovanovski.  In my view the fact that the accused was part of the plan will be an almost irresistible inference in the event that the evidence is permitted to be adduced. 

3. In summary, if contrary to my above expressed conclusion the aspects of the proposed narrative evidence that I have ruled to be irrelevant are relevant, I exercise my discretion to exclude these aspects of the evidence on the basis that the probative value of the evidence is exceeded by its prejudicial effect.

4. As to the balance of the narrative evidence that I have ruled is relevant, there is in my view no basis for concluding that the evidence should be excluded on the basis that the probative value of the evidence is exceeded by its prejudicial effect.  The balance of the narrative evidence is, in my opinion, admissible. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP

Associate to the Honourable Justice Derrick

17 MARCH 2021