The State of Western Australia v Vandersnoek
[2017] WADC 56
•28 APRIL 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- VANDERSNOEK [2017] WADC 56
CORAM: LEVY DCJ
HEARD: 6 APRIL 2017
DELIVERED : 28 APRIL 2017
FILE NO/S: IND ALB 33 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
NATHAN VANDERSNOEK
Catchwords:
Criminal law - Evidence - Section 31A propensity evidence - 'Significant probative value' - 'Risk of an unfair trial'
Legislation:
Evidence Act 1906 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Application allowed in part
Representation:
Counsel:
The State of Western Australia : Ms J B Winter
Accused: Mr A M Chilvers
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Chilvers Legal
Case(s) referred to in judgment(s):
Bennett v The State of Western Australia [2012] WASCA 70
Daniels v The State of Western Australia (2012) 226 A Crim R 61
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia (2005) 31 WAR 122
LEVY DCJ:
Introduction
On Thursday 6 April 2017 I heard the State's application to lead evidence relating to the accused's prior convictions at his trial listed to commence on 19 June 2016. As at 6 April 2017 the accused faced a trial in relation to the following offences:
Count 1That between 20 May 2015 and 10 June 2015 at Ocean Beach, he cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another.
Count 2That on 10 June 2015 at Ocean Beach, he had in his possession a prohibited drug, namely cannabis with intent to sell or supply to another.
Count 3On the same day and at the same place as in count 2, he had in his possession a prohibited drug, namely Alpha‑Pyrrolidinovalerophenone (Alpha‑PVP), with intent to sell or supply it to another.
Count 4On the same day and at the same place as in count 2, he had in his possession a prohibited drug, namely 1‑(5‑Fluoropentyl)‑3‑(2‑Iodobemzoyl)indole (AM‑694) with intent to sell or supply it to another.
Count 5On the same day and at the same place as in count 2, he had in his possession a prohibited drug, namely 1‑Pentyl‑3‑(4‑ethyl‑1‑naphthoyl)indole (JWH‑210) with intent to sell or supply it to another.
Count 6On the same day and at the same place as in count 2, he had in his possession a prohibited drug, namely 1‑Pentyl‑3‑(4‑methyl‑1‑napthoyl)indole (JWH‑122) with intent to sell or supply it to another.
Count 7On the same day and at the same place as in count 2, he had in his possession a prohibited drug, namely 1‑(5‑Fluoropentyl)‑3(1‑naphthoyl)indole (AM‑2201) with intent to sell or supply it to another.
Summary of the State's case
At approximately 9.10 am on Wednesday, 10 June 2015, police from Albany, Denmark and Walpole executed a search warrant at 17 Heather Road, Ocean Beach, being the property then occupied by the accused. The state's case is that the accused lived alone at that property, although his children occasionally stayed with him.
The accused was not present when the police executed the search warrant at the property. The property was subsequently searched in the presence of an independent police officer.
During the search, police officers located a greenhouse which had been erected at the rear of the property. The structure appeared to be purpose‑built for cultivating cannabis. Inside the greenhouse police officers located a number of foam boxes containing cannabis seedlings. A total of 222 cannabis seedlings were removed from the greenhouse. The 222 cannabis seedlings forms count 1 on the indictment.
The house on the property was subsequently searched. During the search police officers located various quantities of cannabis. All of the cannabis was in dry form and of varying quality and amounts. In total, a dry weight of 4.3 kg of cannabis was seized. This is the subject of count 2 on the indictment. The cannabis was variously located as follows:
(a)Bucket 1 – a 10 litre capacity green bucket was found in the dishwasher. The cannabis material in that bucket was separated as follows:
(i)cannabis contained in a large clip-seal bag and appeared to be cannabis head;
(ii)cannabis contained in a white plastic shopping bag and appeared to be leaf material; and
(iii)cannabis contained in a black plastic garbage bag and appeared to be leaf material.
The total cannabis in Bucket 1 was approximately 1.38 kg.
(b)Bucket 2 – a 5 litre capacity white bucket was located behind cupboards above the fridge. It contained a large quantity of cannabis material as follows:
(i)cannabis contained in a grey plastic shopping bag and appeared to be leaf material;
(ii)cannabis contained in a white plastic shopping bag and appeared to be leaf material;
(iii)cannabis contained in a yellow plastic dog excrement bag and appeared to contain leaf material; and
(iv)cannabis contained in a yellow/green shopping bag and appeared to be leaf material.
The total quantity of cannabis in Bucket 2 was 972 g.
(c)Bucket 3 was a 5 litre capacity green bucket which was located in A cupboard above the fridge. Like Bucket 2, it contained a large quantity of cannabis material which was separated as follows:
(i)cannabis contained in a white plastic shopping bag and appeared to be cannabis head;
(ii)cannabis contained in three white plastic shopping bags and appeared to be cannabis head;
(iii)cannabis contained in a black plastic garbage bag and appeared to be head and leaf material with no storks; and
(iv)cannabis contained in a black plastic garbage bag and appeared to be head and leaf material with no storks.
The total quantity of cannabis in Bucket 3 was 792 g.
(d)Bucket 4 was a 5 litre capacity green bucket located in a cupboard above the fridge. Like the other buckets, it contained a quantity of cannabis material. The cannabis was found underneath a 'Blanquita' brand dishwashing tablets bag and was separated as follows:
(i)cannabis contained in a clip-seal bag which contained two further clip-seal bags of cannabis of finely ground cannabis material;
(ii)cannabis contained in a clip-seal bag which contained two further clip-seal bags, one which contained cannabis head material and some seeds and the other cannabis seeds;
(iii)cannabis contained in a clip-seal bag along with some paper, on which the words 'paper bag monsteria' were marked, a piece of alfoil and a piece of paper both of which contained small quantities of cannabis seeds. The cannabis material appeared to be cannabis head;
(iv)cannabis contained in a black plastic garbage bag with a piece of paper marked '628' which appeared to be cannabis head; and
(v)cannabis contained in a black plastic garbage bag, found with a piece of paper marked 'pig trap,' which appeared to be mostly cannabis head with some stork and seed.
The total quantity of cannabis in Bucket 4 was 874.84 g.
(e)Bucket 5 was a 5 litre capacity white bucket which was located in a laundry cupboard and contained cannabis material as follows:
(i)cannabis contained in a clip-seal bag which appeared to be cannabis leaf;
(ii)cannabis contained in a white plastic garbage bag inside a black plastic bag and appeared to be cannabis leaf; and
(iii)cannabis contained in a black plastic garbage bag and appeared to be cannabis leaf.
The total quantity of cannabis in Bucket 5 was 283.1 g.
It is clear from the above summary of the cannabis located in the house that not all of the cannabis alleged to have been in the possession of the accused was cannabis head/bud material. The cannabis seized included seeds, leaf and stork.
The prohibited drugs the subjects of counts 3 – 7 were located inside the 'Blanquita' dishwashing tablet bag found in Bucket 4. The prohibited drugs the subject of counts 3 – 7 are as follows:
| Count 3 | Alpha‑PVP | (a) Five sealed sachets marked 'Quicksilver' containing an off‑white powder. The total weight of this powder was 1.48 g; and (b) Six sealed sachets and one unsealed sachet marked 'sextacy' containing brown powder, weighing a total of 0.90 g. The total weight of the prohibited drug the subject of count 3 is therefore 2.38 g. |
| Count 4 | AM‑694 | (a) Nine sealed sachets marked 'atomic bomb' containing plant material commonly referred to as a synthetic cannabinoid. The total weight in relation to count 4 is 4.82 g. |
| Count 5 | (a) Five sealed sachets marked 'platinum star' – (JWH‑210). The total weight of the plant material is 2.97 g (synthetic cannabinoid) | |
| Count 6 | (a) Eight sealed sachets marked 'Ja Rugh' containing plant material (JW‑122). The weight of the material is 0.26 g; (b) A sealed sachet marked 'ice bud' containing traces of plant material (JWH‑122). The total weight of the material is 0.42 g; (c) Two sealed sachets marked 'extreme smoke' containing plant material (JWH‑122). The weight of the material being 0.5 g. The total weight of the synthetic cannabinoid material the subject of count 6 is 0.802 g. | |
| Count 7 | 10 x sealed sachets marked 'nuclear reactor' containing plant material – (AM‑2201) being a synthetic cannabinoid. The total weight of material the subject of count 7 is 4.90 g. | |
| The total weight of all of the prohibited drugs the subject of counts 3 – 7 is 15.872 g. |
During the course of the search, police officers also located 14 further aluminium branded sachets in the 'Blanquita' dish washing tablets bag which were not the subject of a specific charge. They included:
•bags marked 'radioactive' which were already opened and contained traces of AM‑2201; and
•10 sachets marked 'mind charge' which were found open and, upon analysis, contained a substance that was not a scheduled prohibited drug.
A further quantity of approximately 3 g of cannabis material was found in a kitchen cupboard. The accused was charged with a simple offence in relation to the 3 g of cannabis.
Apart from certain items associated with the greenhouse, no other evidence or indicia of dealing was located by the police.
The propensity evidence sought to be led by the prosecution
The State originally applied, pursuant to s 31A of the Evidence Act 1906 (WA), to lead evidence relating to the accused's prior convictions for drug offences in relation to all offences on the indictment. As will be explained later, the prosecution's position changed after the hearing of the application. The evidence sought to be led by the prosecution is as follows:
(a)on 5 April 2012 at Denmark, the accused had in his possession a prohibited drug, namely cannabis with intent to sell or supply it to another (the Cannabis Prior Conviction); and
(b)on the same date and at the same place he had in his possession a prohibited drug, namely ethylamphetamine, with intent to sell or supply it to another (the Ethylamphetamine Prior Conviction).
On 18 March 2013 the accused pleaded guilty to the above offences before his Honour Judge Sleight (as he then was) in the District Court at Albany. The sentencing transcript of those proceedings reveals that the accused entered his plea of guilty and was sentenced on the basis that:
(a)the drugs were essentially for his own use and to be given to others if they happened to request them (I note that the State accepted the basis upon which the plea was entered);
(b)there was no commerciality to either offence; and
(c)the accused had no intention to sell any of the prohibited drugs found in his possession.
I further note that the cannabis the subject of the Cannabis Prior Conviction was found in the accused's home in a green plastic tub or bucket which was located on the top of the wardrobe. That tub contained two black garbage bags which in turn held a total of 710 g of dry cannabis head material. Police also found in that tub 20 g of cannabis seeds in a zip lock bag. The seeds were the subject of a charge of simple possession.
The prohibited drugs the subject of the Ethylamphetamine Prior Conviction were 274 pink pills containing between 5% – 6% purity of ethylamphetamine. The total weight of the ethylamphetamine was 96.19 g. The ethylamphetamine pills were also located in the green bucket on top of the wardrobe in a Spanish laundry powder bag.
The proposed defence case at trial
At the outset of the hearing, Mr Chilvers, who appeared as counsel for the accused, made it clear that the accused's anticipated case at trial will be that the cultivation of the cannabis on count 1 and the possession of all of the prohibited drugs the subject of counts 2 – 7 will be admitted. Consequently, the only anticipated issue at the trial of each one of the offences will be the issue of whether or not the accused had the requisite intent to sell or supply the various prohibited drugs the subject of the indictment.
Having made the concessions with respect to the anticipated defence case at trial, the State's application proceeded on a narrower basis than originally contained in the State's written outline of submissions dated 23 January 2017. The matter proceeded before me on the basis that, acknowledging the defence concession with respect to the issues of cultivation and possession, the proposed propensity evidence could only go to the issue of whether or not the accused had the requisite intent to sell or supply the relevant prohibited drugs.
The law
Section 31A of the Evidence Act 1906: general principles
Section 31A of the Evidence Act (the Act) provides as follows:
31A. Propensity and relationship evidence
(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;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(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.
…
The accused accepts that, given the broad definition of propensity evidence, the evidence the subject of his prior convictions would amount to propensity evidence. The accused however, disputes that the propensity evidence has significant probative value. The defence also submits that any probative value of the evidence, compared to the degree of risk of an unfair trial, is such that it does not satisfy the requirements of s 31A(2)(b) of the Act. The question of whether evidence has significant probative value has been considered in numerous Court of Appeal decisions and is now well established. See, for example, Daniels v The State of Western Australia (2012) 226 A Crim R 61 and Donaldson v The State of Western Australia (2005) 31 WAR 122. More recently, the Court of Appeal summarised the relevant general principles in DKA v The State of Western Australia [2017] WASCA 44 [30] ‑ [32] as follows:
As to whether evidence has significant probative value, the following is well‑established:
(a)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(c)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence';
(d)If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
The authorities establish the following points as to the comparison required by s 31A(2)(b). First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at a trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of a risk of an unfair trial, the court must consider the conclusion that fair‑minded people would draw from the comparison of these issues. Although fair‑minded people are reasonable members of the general community or are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances'
The weighing process required by s 31A(2)(b) is a difficult one, as it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair‑minded person.
In light of the accused's anticipated admissions at trial, the way in which the application proceeded before me was that the only live issue at trial will be the element of intent to sell or supply. Consequently, the State submitted that the evidence of the prior convictions will have significant probative value because it is capable of:
(a)demonstrating that the accused has a tendency, and a willingness or preparedness, to distribute quantities of cannabis to others;
(b)to demonstrate that the accused has a tendency, and a willingness or preparedness, to distribute quantities of synthetic compound drugs, marketed as legalised variations of prohibited drugs to others;
(c)it demonstrates that the accused had a tendency to distribute prohibited drugs at a time that was relatively proximate to the time of the offences the subject of the indictment; and
(d)it demonstrated that the accused had a tendency to package and store his drugs in buckets with cannabis material including the manner in which they were packaged, separated and stored. In this regard the State points to the similarities in the manner in which the drugs were stored, including in plastic buckets, together with foreign laundry tablet bags.
Looking at the last of these points, being (d), it seems to me that the pattern or method by which he stored his drugs could only go to the issue of possession and not intent to sell or supply. There is nothing about the manner in which the drugs were kept, stored or packaged on either this indictment or the evidence of the previous convictions that would of itself support a contention of an intent to sell or supply. In any event, I note what Martin CJ said in Bennett v The State of Western Australia [2012] WASCA 70 [34]:
In cases involving possession of prohibited drugs with intent to sell or supply, propensity evidence revealing a personalised or strikingly characteristic modus operandi is inherently less likely. That is because the practices of those charged with such offences have a certain similarity, including the location of drugs in clip seal bags and differing hiding places, the usual presence of scales and other paraphernalia associated with drug dealing --- . In these cases the propensity evidence will usually go no further than establishing a disposition on the part of the accused person to engage in drug dealing.
Does the proposed propensity evidence have 'significant probative value' in relation to counts 1 and 2 (the cannabis counts) on the indictment?
As has been properly conceded by Mr Chilvers on behalf of the accused, the evidence relating to the accused's prior convictions can properly be described as propensity evidence. The real issues relate to whether or not s 31A(2)(a) and s 31A(2)(b) of the Act are satisfied.
Looking firstly at the issue of whether or not the proposed propensity evidence has significant probative value, I note the following:
(a)the convictions imposed with respect to the earlier offences were on the basis of an intention to supply (not sell) others if requested to do so. That was the basis upon which the accused, the State and ultimately, the learned sentencing Judge proceeded; and
(b)the Ethylamphetamine Prior Conviction was with respect to 274 pink pills weighing a total of 96.19 g.
In my view, the earlier convictions could only be of significant probative value with respect to the question of whether or not the accused intended to supply any portion of the cannabis he either cultivated or possessed. The proposed propensity evidence does not, nor could it be of significant probative value with respect to the question of whether he intended to sell any of the cannabis the subject of counts 1 and 2.
So far as the Ethylamphetamine Prior Conviction is concerned, whilst it could either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of existence of a fact in issue, in my view it would not (as distinct from could) be sufficient to satisfy s 31A(2)(a) of the Act. This flows from the fact that ethylamphetamine is not only clearly a different type of drug, but also that the conviction related to a significantly greater quantity than the drugs the subject of counts 3 ‑ 7. Furthermore, even if the evidence relating to the conviction with respect to the accused's conviction for possession with intent to supply the ethylamphetamine would amount to evidence of a significant probative value with respect to any count on the indictment, I nonetheless would have excluded it on the basis that the admission of such evidence would, so far as the cannabis charges are concerned, give rise to a significant risk of an unfair trial. The admission of the Ethylamphetamine Prior Conviction would carry with it a real risk of causing the jury to be overwhelmed by the evidence when they come to consider the issue of intent to sell or supply. No direction could properly be given with respect to the manner in which the jury could use the evidence relating to the accused's prior conviction with respect to the ethylamphetamine charge.
On the other hand, I am of the view that the accused's prior conviction in relation to the Cannabis Prior Conviction would of itself amount to evidence of a significant probative value. It is evidence that the prosecution is entitled to lead in anticipation of any defence that the accused may rely upon at trial. It is evidence that goes directly to the question of what the accused's intention was with respect to the cannabis the subject of counts 1 and 2 on the indictment. Unlike counts 3 ‑ 7 (as they were before me as at 6 April 2017) on the indictment, both counts 1 and 2 involve quantities of prohibited plants or cannabis that would enliven s 11 of the Misuse of Drugs Act. Consequently, the accused will be deemed to have cultivated the cannabis the subject of count 1 (222 plants) and to have been in possession of the cannabis the subject of count 2 (approximately 4.3 kg) with an intent to sell or supply to another, unless the accused satisfies the court, on the balance of probabilities, that he did not so intend to sell or supply any part of the cannabis seized by the police.
In relation to the question of whether there is such a risk of an unfair trial that the evidence should not be led, in my view an appropriate direction can be given to the jury about the manner in which the Cannabis Prior Conviction, namely possession of cannabis with an intent to supply (but not sell) can be used by the jury. Since it is assumed that juries follow directions of law, a properly instructed jury would be capable of understanding and following a direction that the evidence of the Cannabis Prior Conviction evidence could only be used to support an inference that the accused cultivated and/or possessed the cannabis with an intention to supply all or some of it to another.
Does the prior conviction evidence have significant probative value with respect to counts 3 – 7 on the indictment?
I note that during the course of the application, I pointed out to the learned prosecutor that counts 4 ‑ 7 on the indictment involved prohibited drugs that were listed in sch III and sch V of the Misuse of Drugs Act. In relation to each of counts 4 ‑ 7, the relevant amount of the prohibited drug determining the court of trial was 500 g (sch III). The relevant amount of the prohibited drug giving rise to a presumption of intention to sell or supply pursuant to s 11 of the Misuses of Drugs Act is 100 g (sch V).
Unlike counts 1 and 2 on the indictment, counts 3 – 7 will not enliven s 11 of the Misuse of Drugs Act. Bearing in mind the relevant schedules referred to above, I noted that counts 4 ‑ 7 were all alleged to involve relatively small quantities of prohibited drugs that did not come close to enlivening the presumption on intent to sell or supply to another:
Count 4 – (AM‑694) 4.82 g.
Count 5 – (JWH‑210) 2.97 g.
Count 6- (JW‑122) 0.802 g.
Count 7 – (AM‑2201) 4.9 g.
Whilst count 3 did not involve a prohibited drug the subject of sch III or sch V of the Misuse of Drugs Act, it too involved a very small quantity of a synthetic drug, being Alpha‑PVP weighing 2.38 g.
Having raised the above issues with the learned prosecutor, I was subsequently informed that the prosecution had decided, in light of the small quantities involved and the accused's anticipated admission to possession of the drugs the subject of counts 3 ‑ 7, to amend those charges to simple offences of possession only. It is anticipated that the accused will plead guilty to the amended charges on the morning of the trial. Consequently, I was also informed that the State's application to lead the propensity evidence with respect to counts 3 ‑ 7 no longer remains on foot. It is therefore not necessary to now determine the application with respect to those counts. However, for the sake of completeness and in case the position of either the defence or prosecution changes, I note that I would not have allowed the state's application to lead the propensity evidence in relation to counts 3 ‑ 7 on the indictment.
Conclusion
The accused's Cannabis Prior Conviction (in relation to possession of cannabis with an intent to supply) and the evidence relating thereto is admissible at his trial in relation to counts 1 and 2 on the current indictment. It is admissible on the basis that it is evidence that would of itself rationally affect, to a significant extent, the assessment of the probability of whether or not the accused intended to supply any of the cannabis the subject of counts 1 and 2 on the indictment. It is not otherwise admissible.
Neither the Ethylamphetamine Prior Conviction nor the evidence relating thereto is admissible at his trial in relation to any of the counts on the indictment.
In relation to the form and wording of the evidence to be adduced at the accused's trial, I will leave it to the prosecution and defence to work out the appropriate wording and would give liberty to either party to apply for a further ruling if there is any dispute about the facts relating to the prior conviction to be led at the trial.
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