The State of Western Australia v Turner - [2020] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TURNER [2020] WADC 39
CORAM:   BRADDOCK DCJ
HEARD:   ON THE PAPERS
DELIVERED          :   30 MARCH 2020
FILE NO/S:   IND 2220 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

AINSLEY DIANNA TURNER

Catchwords:

Crime - Practice and procedure - Pre-trial - Admissibility - Propensity - Prior convictions - S 31A Evidence Act 1906 (WA) - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6

Representation:

Counsel:

The State of Western Australia	:	Mr D Robinson
Accused	:	Mr S Rafferty

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Seamus Rafferty, Barrister & Solicitor

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

Dair v The State of Western Australia [2008] WASCA 72
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196
La Bianca v The State of Western Australia [2019] WASCA 105
The State of Western Australia v Jackson [2019] WASCA 118

BRADDOCK DCJ:

By an indictment dated 10 January 2020 Ms Turner is charged with one count of possession of a prohibited drug, namely amphetamine, with intent to sell or supply it to another. It is alleged that the offence occurred on 14 August 2018 at Wanneroo.
The trial is listed to commence in this court on 23 November 2020.
By an application dated 23 March 2020, the State seeks a ruling that prior convictions of the accused be admitted as propensity evidence at trial pursuant to s 31A of the Evidence Act 1906 (WA). The evidence sought to be adduced is of four prior convictions of Ms Turner set out below.
Taken chronologically, in terms of their commission the State seeks the admission of the accused's convictions after trial of two charges of possession with intent to sell or supply methylamphetamine on 21 June 2017. Both those charges were included in indictment 570 of 2018. Ms Turner was convicted on 17 October 2018 by a jury.
The second matters which the State seeks to lead also date from 14 August 2018. One is an allegation of possession with intent to sell or supply methylamphetamine, the other an allegation of offering to sell or supply methylamphetamine on indictment 1968 of 2018. In relation to both of those offences, Ms Turner pleaded guilty and was convicted on 9 November 2018.
On the current indictment, Ms Turner faces the sole count set out above. The allegation is that on 14 August 2018 at an address in Wanneroo, the police executed a search warrant under the Misuse of Drugs Act1981 (WA). Officers located a brown paste in a plastic container together with some oil, which had been carefully packaged and placed in a kitchen cupboard above the toaster.
The ChemCentre WA analysed the paste weighing 351 g as containing 9.86% amphetamine and 1.14% methylamphetamine. The oil was found to be 8 ml, of which 14.8% was identified as amphetamine and 1.16% methylamphetamine. The total quantity of amphetamine the subject of the current indictment is 28.1 g.
The drugs the subject of the first count, on indictment 1968 of 2018, were located during the same search in a clip seal bag in the toaster in the kitchen. The second count on the indictment relates to mobile phone messages that were located on an HTC mobile phone belonging to Ms Turner.
The offences from 21 June 2017 related to drugs found in the handbag of Ms Turner at an address in Noranda. The police arrived at those premises to make enquiries about a stolen car that she had driven to that location. In her handbag were two vacuum sealed packages. The larger package weighed 20.2 g and was found to be 64% methylamphetamine, and the smaller package weighed 1.6 g. When Ms Turner was later searched at the police station, she produced from her underwear three further vacuum sealed packages of methylamphetamine, which together weighed 5.01 g. She advised the police officer that those were for her own use, however she was convicted after trial, of possession with intent to sell or supply.
Gillan DCJ, sentencing, found that Ms Turner had purchased the drugs from the occupant of the house, a drug dealer, but that the drugs found in her underwear were likely, in part, to have been for her own personal use.
Section 31A of the Evidence Act defines propensity evidence to include similar fact evidence or other evidence of conduct of the accused or evidence of the character or reputation of the accused person or a tendency that the accused person has or had.
By s 31A(2):
(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.
On this application, the State submits that all the drugs found on 14 August 2018, were found within a short distance of each other near or in the toaster. They were therefore connected in time and place.
The State submits that the earlier offences, in June of 2017, were not so significantly separated in time as to reduce any probative value. That drug in June 2017 was also methylamphetamine. The State's argument was that the drugs and the offer to sell drugs show a propensity to possess ie. methylamphetamine and amphetamine and to possess such drugs with intent to sell or supply. Therefore, it is said, it would rationally increase the likelihood of Ms Turner being in possession of the drugs on this indictment and rebut any defence of innocent association or other intent.
In my view the evidence of the four prior convictions is propensity evidence, in that it demonstrates a tendency by Ms Turner to be in possession of methylamphetamine or amphetamine with intent to sell or supply and to actively pursue the sale or supply of the substance.
The provisions of s 31A have been considered in detail on many occasions in the Court of Appeal of Western Australia most recently in the decisions of Jackson and La Bianca.[1] I do not propose to repeat here all that has been said by the Court of Appeal in relation to the interpretation and application of this provision.
[1] The State of Western Australia v Jackson [2019] WASCA 118; La Bianca v The State of Western Australia [2019] WASCA 105.
On an application under s 31A the first issue is whether the evidence proposed to be led is relevant. The evidence must be probative, ie relevant material, which if accepted might assist in the proof of the offence charged or some particular element of the offences charged. It is its capacity logically to contribute to proof of the offence or an element thereof which makes it probative.[2]
[2] Donaldson v The State of Western Australia [2005] WASCA 196 [118] (Roberts‑Smith JA).
In my view this evidence is clearly relevant to the charge on the indictment. It is in each instance the same or a related substance with which Ms Turner was criminally connected.
Under s 31A such evidence must be significantly probative. It has been said the relevance and value of the propensity evidence, in the context of an indictment, has to be such as it could rationally affect the assessment of the probability of the existence of a relevant fact in issue, to a significant extent.[3]
[3] Dair v The State of Western Australia [2008] WASCA 72 [260] (Heenan J).
In my view, the evidence sought to be admitted by the State is in this case is significantly probative in relation to the offence on the current indictment. It would go to reduce the force of any assertion that there was an innocent connection with the drugs or that they were there by mischance. It would significantly increase the likelihood that not only was Ms Turner in possession, but also had an intention to sell or supply in relation to the drugs.
That is not the end of the matter, however, because the section requires a balancing effect of the admission of the evidence against the risk of an unfair trial. That exercise has to be conducted bearing in mind it is not the judge's view of the matter that is relevant, but that of fair minded persons.
If the evidence is probative, it will, by necessity, be prejudicial. There are risks in admitting evidence of this kind. One of which is that the jury might place more weight upon the evidence than is justified. Further a jury might erroneously reason that Ms Turner must have been in possession because of her prior convictions. There is a risk that the jury might consider that her prior intentions conditioned the position in relation to the drugs discovered in this instance.
In my view directions can be given adequately to guard against these risks and frequently are given. Juries are capable of distinguishing the use to which such evidence can be put, and are capable with a suitable direction, of giving it an appropriate weight.
There is nothing in these particular circumstances which would, in my view, lead to any risk of any particular confusion in the jury's minds nor present any particularly complicated issue to resolve.
The balancing exercise required under s 31A is a difficult one, because 'it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair minded person'.[4] It must be accepted that a jury will accept and apply the directions of the trial judge. In my view, fair minded persons would conclude, in this instance, that adducing the evidence of the prior history of Ms Turner must have priority over the risk of any fair trial. Accordingly, in my view, the evidence is admissible.
[4] DKA v The State of Western Australia [2017] WASCA 44 [31] - [32].

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to her Honour Judge Braddock
30 MARCH 2020