The State of Western Australia v Vo
[2015] WASC 389
•14 OCTOBER 2015
THE STATE OF WESTERN AUSTRALIA -v- VO [2015] WASC 389
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 389 | |
| 14/10/2015 | |||
| Case No: | INS:16/2015 | 29 SEPTEMBER 2015 | |
| Coram: | FIANNACA J | 29/09/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce evidence granted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JORDAN QUONG VO |
Catchwords: | Criminal law and procedure Evidence Propensity evidence Application of principles Admissibility of past convictions to rebut innocent explanation for DNA evidence on burglary and arson charges |
Legislation: | Criminal Code (WA), s 401, s 444 Evidence Act 1906 (WA), s 31A |
Case References: | APC v The State of Western Australia [2012] WASCA 159 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 LFG v The State of Western Australia [2015] WASCA 88 Plomp v The Queen (1963) 110 CLR 234 Preston v The State of Western Australia [2012] WASCA 64 R v Bishop [2012] WASC 390 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 The State of Western Australia v Brennan [2015] WASC 214 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
JORDAN QUONG VO
Accused
Catchwords:
Criminal law and procedure - Evidence - Propensity evidence - Application of principles - Admissibility of past convictions to rebut innocent explanation for DNA evidence on burglary and arson charges
Legislation:
Criminal Code (WA), s 401, s 444
Evidence Act 1906 (WA), s 31A
Result:
Leave to adduce evidence granted
Category: B
Representation:
Counsel:
Prosecution : Ms L J Keane
Accused : Mr P N Bevilacqua
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : PN Bevilacqua
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
LFG v The State of Western Australia [2015] WASCA 88
Plomp v The Queen (1963) 110 CLR 234
Preston v The State of Western Australia [2012] WASCA 64
R v Bishop [2012] WASC 390
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
The State of Western Australia v Brennan [2015] WASC 214
- FIANNACA J:
Introduction
1 These are the reasons in full for the decision I made at the end of the hearing of this application. These reasons elaborate on the brief reasons I gave at that time.
2 The accused is charged on indictment with one count of wilfully and unlawfully damaging a house by fire, contrary to s 444(1)(a) of the Criminal Code (WA) (the arson offence) and one count of burglary on a place ordinarily used for human habitation, contrary to s 401(2)(b) of the Criminal Code (the burglary offence). Both offences are alleged to have occurred on 29 June 2014 and concern the same house in Willetton. The accused has pleaded not guilty to both charges and a trial is listed to commence on 26 October 2015.
3 It is evident from the conduct of the matter so far that the accused does not dispute that the two offences occurred. Rather, the issue at trial will be whether the accused was the person who committed the offences.
4 By application dated 10 June 2015, the State applied for an order that it be permitted to lead evidence pursuant to s 31A of the Evidence Act 1906 (WA) of the conduct of the accused relating to 26 prior convictions for burglary, which were committed between 12 June 2007 and 25 April 2012, and a conviction for trespass, which was committed on 23 April 2012, on the basis that the conduct is propensity evidence that would have significant probative value in the proceedings on indictment. In written submissions dated 31 August 2015 in support of the application, the State sought to amend its application so that the order would be confined to evidence of the accused's conduct relevant only to the conviction for trespass committed on 23 April 2012 and the conviction for burglary committed on 25 April 2012. The application was listed for hearing on 15 September 2015. Prior to that date, the State informed the court that it would apply to amend the application to include convictions for nine additional offences, all of which occurred after the offences charged in the indictment. These included offences of burglary, stealing, trespass, stealing a motor vehicle, attempted aggravated burglary and aggravated burglary. On 15 September 2015 the amendment was allowed and the matter was adjourned so that counsel for the accused could obtain instructions in relation to the additional matters.
5 Subsequently, in new submissions filed in support of the amended application, the State indicated that it was no longer seeking to adduce evidence of the accused's conduct in respect of the trespass committed on 23 April 2012 (charge no. 6585/12).
6 The hearing of the application proceeded on 29 September 2015. Counsel for the State on that occasion informed the court that the State was no longer seeking to adduce evidence of the accused's conduct in respect of the two offences of stealing a motor vehicle which occurred on 15 July 2014 (charge no. 105948/14) and between 19 and 21 July 2014 (charge no. 6706/14). The application was abandoned to the extent that it referred to that conduct.
7 Accordingly, the application as determined on 29 September 2015 was that the State be permitted to lead evidence of the conduct of the accused relating to the following prior convictions recorded in the Magistrates Court of Western Australia:
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8 At the conclusion of proceedings on 29 September 2015, I allowed the application in those terms. These are my reasons.
The prosecution case
9 The prosecution case in respect of the charges in the indictment is as follows. The house at 18 Cameron Court, Willetton, was broken into sometime between 11.00 pm on Friday 27 June 2014 and 1.30 pm on Sunday 29 June 2014. A fire was lit in a rear bedroom, which served as a study, resulting in significant fire and smoke damage to the contents and structure of the house. The house had been occupied by the complainant, Jaganathan Govindasamy, his daughter and her husband, Suresh Murthy, but at the time of the alleged offences they were in the process of moving out and the house was unoccupied. Mr Murthy was the last occupant to be present inside the house. That was at approximately 11.00 pm on 27 June 2014.
10 Shortly before 1.30 pm on 29 June 2014, witnesses saw smoke coming from the direction of the house. A call was made to the Department of Fire and Emergency Services while neighbours attempted to douse the fire, using garden hoses. The fire brigade attended soon after and the fire was extinguished. An arson investigator formed the opinion that the fire originated in the bedroom located in the south-west corner of the residence. He concluded that the fire was caused by human intervention, the probable cause being the introduction of a mobile heat source to combustible materials. On inspecting the house, the occupants noted that various items that had been arranged for removal had been disturbed, while other items were damaged by the fire or missing. Although a number of specific items are referred to in the statements of the complainant, his daughter Rebekah Murthy and Mr Murthy (prosecution brief pages 7, 14 - 15, 21), it is not clear from the statements which items were likely to have been stolen and which were likely to have been destroyed or damaged in the fire. However, some of the property was found in a skip bin at business premises in Pilbara Street, Welshpool on 30 June 2014 and was recovered by the police. The property included three suitcases with various items of clothing and a 'toilet bag' which contained personal items (including cards) belonging to Mr Murthy (prosecution brief pages 72, 81).
11 Forensic investigators found that the security screen and wooden door that led from the carport to the kitchen of the house were damaged in a way that appeared to be consistent with a forced entry at that location. Forensic analysis of a swab taken from the exterior doorhandle of the security screen revealed a mixed DNA profile consistent with there being three contributors to the profile, one of whom was the accused. The DNA report states a likelihood ratio of 140 million in favour of the accused being a contributor to the profile from the swab (prosecution brief page 117). The accused was not known to the occupants of the house and, to their knowledge, he has never been to the house before the time at which the offences are alleged to have been committed. It is agreed between the prosecution and the defence that the accused could not have deposited or left DNA at the house between 13 December 2013 and 19 June 2014.
12 When arrested, the accused did not participate in a video record of interview. Further, no formal admissions have been made on his behalf.
13 The prosecution case against the accused is circumstantial. It relies upon the DNA evidence to identify the accused as an offender who has forced entry into the house without consent. It relies upon the jury finding that the only reasonable inference is that the accused then stole property from the house, some of which was later found in Welshpool, and that he lit the fire in order to destroy evidence that might connect him to the burglary.
14 The defence have provided notice of alibi to the effect that a friend of the accused, Nicole Collard, will testify that the accused was in her company at the home of a mutual friend, Juliette Sewell, from approximately 10.30 am to 8.00 pm or 9.00 pm on Sunday 29 June 2014. At the hearing on 29 September 2015, counsel indicated that Ms Sewell's home was in Kelmscott.
15 The arson report does not provide any information as to the rate at which the fire is likely to have progressed. It provides no assistance, therefore, as to when the fire may have started or for how long it may have been burning by the time firefighters arrived.
Prior offending
16 The facts for the prior offences sought to be led by the State are set out in a document filed by the State on 25 September 2015 titled 'Facts Proposed to be Read to the Jury Pursuant to s 31A Evidence Act'(the Facts document). The hearing of the application proceeded on the basis that this would be the agreed form in which those facts would be adduced at trial. The Facts document commences in the following terms:
The evidence relied on by the State includes earlier conduct of Mr Vo which has been admitted by Mr Vo. This conduct was admitted by him through his pleading guilty to it at other earlier court proceedings. These proceedings were in the Magistrates Court of Western Australia on 15 April 2013 and on 2 December 2014.
17 The Facts document then sets out the facts admitted on each of those occasions. In relation to charge no. 6713/14 and onwards there is reference to a vehicle that was used in the course of committing those offences. The vehicle was stolen and was the subject of one of the offences of stealing a motor vehicle that were previously included in the application. The State has now indicated that, while the use of the vehicle will be referred to, there will be no mention of it being stolen. The Facts document will need to be amended accordingly. Otherwise, subject to comments which I will make in relation to charge no. 6710/14, the substance of the facts to be read to the jury is as follows.
Burglary - charge no. 6583/12
18 At 2.48 am on Wednesday 25 April 2012 Mr Vo was at St Stephen's School, Duncraig. He smashed a side and rear window of the library and gained entry to the premises. Once inside, he took 11 Apple laptop computers and a 55 inch Sony LCD television. Forensic officers attended and matched Mr Vo's DNA profile to swabs taken at the scene.
Burglary in dwelling - charge no. 91168/14
19 Between 7.30 am and 3.45 pm on Tuesday, 1 July 2014, Mr Vo went to a house at 41 Commonwealth Avenue, North Perth. At this location Mr Vo went to the rear of the premises where he gained entry to the house through an unlocked door. Once inside, Mr Vo rummaged through various rooms, stealing property including a television, three amplifiers, a compact disk player, a Blue Ray DVD player, two Canon cameras and other electrical items, including a Dyson vacuum cleaner, Garmin watch, Apple iPad and Apple iPod. Mr Vo then left. Later that day a complaint was made by the homeowner to police. A forensic examination of the house was conducted and Mr Vo's fingerprints were found.
Stealing - charge no. 91169/14
20 This offence relates to the theft of property during the burglary the subject of charge no. 91168/14.
Trespass - charge no. 6713/14
21 On Wednesday, 23 July 2014, at 4.50 pm, Mr Vo and a co-offender drove a Subaru Forester to 14 Blundell Street, West Swan.
22 Mr Vo and the co-offender walked from the vehicle to a rear shed at the property and entered the shed, removing two sledge hammers, a screwdriver, two small tool kits, two fluorescent jackets and a battery charger.
Stealing - charge no. 6707/14
23 This offence relates to the theft of property during the trespass the subject of charge no. 6713/14. The offence described in the next paragraph followed.
Attempted aggravated burglary - charge no. 6708/14
24 Mr Vo went to the front door of the house and smashed the glass panel next to the front door to gain entry. The occupants, who were home at the time, heard the glass smash and went to investigate, disturbing Mr Vo. The accused and his co-offender got back into the vehicle and left the property.
Aggravated burglary in dwelling - charge no. 6709/14
25 On Wednesday, 23 July 2014, at 5.06 pm, Mr Vo and the co-offender drove the Subaru Forester to 26 Harrow Street, West Swan. Mr Vo and the co-offender backed the vehicle up to the front door of the house. Mr Vo and the co-offender forced open the front door and gained access to the house. Once inside, Mr Vo and the co-offender searched throughout the house, removing various items, including a receipt book, telephone, oriental plates, an air conditioner remote, portable DVD player, camera flashes, leather handbag, travel mug, three computers, laptops, an iPod, a mobile telephone, Bluetooth speaker and headphones. Mr Vo and the co-offender took the property and placed it in the Subaru Forester. The owner arrived home to discover the motor vehicle in the driveway and parked her own car in front of it. Mr Vo and the co-offender, seeing the owner, ran out of the house. They approached the owner and told her to remove her car from blocking their exit. The owner complied and Mr Vo and the co-offender left the house.
Stealing - charge no. 6710/14
26 This offence relates to the theft of property during the burglary the subject of charge no. 6709/14.
27 The Facts document indicates that the facts in respect of this matter are taken from the transcript of proceedings in the Magistrates Court on 2 December 2014. However, that transcript reveals that when the facts were read in respect of the aggravated burglary (charge no. 6709/14) and this matter, the magistrate interrupted the recitation of the facts by the prosecutor to say she did not need to go through all the items that were stolen, but he was prepared to be informed of 'the nature of the items' (ts 22). It is apparent from that exchange, and from the subsequent exchange concerning the burglary on 1 July 2014 (charge no. 91168/14) (ts 26) that the magistrate had before him the statement of material facts from which the prosecutor was reading in each instance, and did not consider it necessary for all of the items of stolen property to be read out. It is equally apparent that his Honour had regard to the full description in the statement of material facts each time. Before the Facts document was filed on 25 September 2015, the State had provided the court with copies of the statements of material facts in respect of all the offences that were the subject of the application as at 15 September 2015.
28 The statement of material facts in respect of the aggravated burglary and related stealing offence committed on 23 July 2013 lists among the items stolen from 26 Harrow Street: a toiletry bag, a briefcase and a suitcase. These are not specifically referred to in the Facts document, although the list of stolen property in the facts to be read to the jury is inclusive. The items have some significance in considering whether the conduct the subject of these offences has significant probative value in the proceedings on indictment. As the Facts document purports to convey the facts before the magistrate, I consider it appropriate to have regard to the full list of stolen items to which the magistrate had regard.
The relevant principles
29 Section 31A of the Evidence Act prescribes the circumstances under which the court may admit propensity and relationship evidence. In the present case, the prosecution submits that the evidence of the conduct relating to the prior convictions is propensity evidence.
30 'Propensity evidence' is defined in s 31A(1) as meaning:
(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.
31 Section 31A(2) provides that propensity 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.
- (Section 31A(3) is not relevant for the purposes of this application.)
32 The definition of propensity evidence has been described as being extraordinarily wide: Preston v The State of Western Australia [2012] WASCA 64 [36] (Mazza JA, Martin CJ & Buss JA agreeing). It goes beyond what the common law understood by that term. By its terms it includes considerably more than similar fact evidence. In particular, it does not require the existence of striking similarities between the previous conduct and the offence charged.
33 The effect of s 31A(2)(a) was explained by Buss JA in LFG v The State of Western Australia [2015] WASCA 88, relying on the analysis undertaken by Steytler P in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, as follows:
(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 [290].
34 The effect of s 31A(2)(b) was explained by his Honour [291], again by reference to points made by Steytler P in Dair, as follows:
First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at 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 risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who 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': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
35 In Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, Roberts-Smith JA expressed the following opinion about the meaning of 'the risk of an unfair trial' in s 31A(2)(b):
The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning [127].
36 In APC v The State of Western Australia[2012] WASCA 159, Pullin JA made the following observations about the risk of an unfair trial:
The risk of an unfair trial when propensity evidence is led, depends on the particular circumstances of the case. Examples are given in Dair at [63]. Speaking generally, such a risk may arise from the tendency in a jury to believe that the defendant is guilty of the charge, merely because he is a person likely to do such acts [15].
37 I note that some of the examples referred to in Dair [63] (Steytler P) are not relevant to the circumstances of the present case. In essence, all of the examples that have been identified in the authorities involve the risk of a jury not confining the use of the evidence to a process of dispassionate, logical reasoning, as described by Roberts-Smith JA in Donaldson.
38 In dealing with the principles in respect of s 31A(2)(a), Martin CJ pointed out in LFG [161] that the application of the principles will depend critically upon the facts and circumstances of the individual case. Reference to other cases in which it was concluded that the particular evidence did not have significant probative value in the context of that case is of little assistance, other than providing illustrations of the manner in which the established principles are applied in particular cases: LFG[161] (Martin CJ). In my opinion, it is evident from the manner in which the authorities have dealt with s 31A(2)(b) that the same is true of conclusions reached in other cases about whether 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.
Context for consideration of the parties' submissions
39 As I have already stated, the accused does not dispute that the offences charged in the indictment occurred. The issue at trial will be whether the accused was the person who committed the offences.
40 Further, at the hearing before me, counsel for the accused confirmed that the DNA evidence will not be challenged. It will still be necessary, of course, for the jury to be satisfied that the conclusion to be drawn from the DNA profile match is that the accused was in fact a contributor to the DNA material located on the screen door. However, that is clearly open on the evidence. The question that would then arise is how the accused's DNA came to be on the door. Put in the context of the onus and standard of proof, the question will be whether the only reasonable explanation for the presence of the accused's DNA on the door is that he was a person who broke into the house. The State does not allege that the accused acted alone, and is not required to do so. However, in my opinion, to find the accused guilty of the counts in the indictment, the jury would need to be satisfied that the accused entered the house.
The State's submissions
41 The State submits that evidence that the accused committed the property offences before and after the date of the burglary and arson at the Willetton address is relevant propensity evidence, because it shows a willingness on his part to unlawfully force entry into premises (as opposed to, for example, committing opportunistic burglaries on unsecured buildings), and the conduct constituting the burglary offence shows a tendency to do so in order to steal property.
42 Further, it is submitted by the State that the chronology of all of the combined offences, allowing for the period when the accused could not have attended at the Willetton address (because he was in prison, although that fact will not be mentioned), makes it objectively improbable that the accused's DNA was deposited at the scene other than by the accused doing so in person at the time of the alleged offending on 29 June 2014 (notwithstanding one cannot determine the 'age' of a DNA deposit).
43 In relation to the proposed alibi evidence, the State will be challenging the credibility of the two witnesses identified by the defence, but submits in any event that it remains possible on the evidence currently available that the accused committed the offences in Willetton and was in the company of Ms Collard at the time she refers to.
44 The State contends that the propensity evidence has significant probative value in that the accused's propensity, both before and after the offences alleged in the indictment, to unlawfully force entry into premises, most likely with a view to stealing property, tends to rebut any suggestion that he had 'innocent' contact with the security screen handle or that he is somehow the victim of secondary transfer. Secondary transfer is the phenomenon whereby one's DNA may be transferred to an item with which they have had no contact by the person having transferred their DNA, through contact, to an intermediary, who has then transferred the first person's DNA to that item by coming into contact with it.
45 There is no evidence within the prosecution brief or in anything put forward by the defence to suggest positively that secondary transfer is a possibility in this case. Although counsel for the accused has informed the court that the DNA evidence will not be challenged, he has not indicated what submission might be made to the jury in due course about the DNA evidence. The defence is under no obligation to disclose its position in that regard at this stage. The DNA report of Christine Yoke Bing Chin dated 18 May 2015 (prosecution brief pages 115 - 128) includes an appendix in which appears the following proviso: 'Unless specifically stated, there are no assumptions made regarding when, or by what mechanism, the cellular material has been deposited onto the exhibit' (prosecution brief page 124). The possibility that secondary transfer may arise as an explanation for the accused's DNA on the security screen door handle cannot be discounted at this stage, although it is not known what the scientific evidence would be about the plausibility of that explanation. In my opinion, it is a relevant consideration in determining whether the propensity evidence has significant probative value.
46 In essence, the State's argument is that evidence of the accused's earlier and later criminal conduct is necessary to provide the jury with the full context in which to assess the plausibility of any innocent explanation for the accused's DNA being on the door handle. That assessment will depend, in part, on the qualities of the person whose DNA has been found. The State would submit to the jury that it is implausible that the accused, a man convicted of unlawfully forcing entry into other people's premises to steal property, would be so unlucky as to have 'innocent' contact with the point of forced entry of a home that was then the subject of a burglary.
47 It is to be remembered that in determining whether propensity evidence has significant probative value, the question is whether it does so either by itself or having regard to other evidence to be adduced. The other evidence relied on by the State is not just the presence of DNA on the security door handle, but the fact that:
(a) the door was at the location that was determined to be the point of entry for the burglary;
(b) it had been forced open; and
(c) it was the carport door, not the front door of the house, where one might expect someone could have some reason to approach a house for legitimate (innocent) reasons.
48 In relation to the burglary on the school in Duncraig, the State submits that the passage of time of approximately two years between when that offence occurred and when the offences in the indictment occurred will not necessarily mean that the evidence does not have 'significant probative value'. The State relies on the decision in Preston, which involved offending from 10 years earlier, where Mazza JA said that, while closeness in time is a factor in determining relevance and, if the evidence is relevant, whether it has significant probative value, each case must be decided on its own facts [57]. His Honour then referred to examples where conduct which occurred a long time before the commission of an alleged offence would be admissible. Those examples concerned conduct involving the use of a distinctive modus operandi, but I do not take his Honour to be suggesting that similarities of that kind would always be necessary. In any event the passage of time with which his Honour was dealing was of an order much greater than in the present case.
49 The State submits that the question under s 31A(2)(b) should be answered in the affirmative. If it is to be suggested that another or others were responsible for the offending, then fair-minded people would consider that the public interest in adducing all evidence relevant to assessing the plausibility of an innocent explanation for the accused's DNA at the point of forced entry must have priority over the risk of an unfair trial. The State submits that the proposed evidence is not unusual in terms of the types of evidence routinely admitted under s 31A of the Evidence Act both in this Court and the District Court. Further, no 'unfair' or 'severe' prejudice is readily identifiable. The State submits that any prejudicial effect arises only from the evidence having significant probative value.
The accused's submissions
50 The accused's submissions can be summarised by the following propositions:
1. The evidence in respect of the burglary on the school in Duncraig is not propensity evidence for the purposes of the offences alleged in the indictment, and in any event does not have significant probative value, because:
(a) it concerns conduct of a very different nature to that alleged in the indictment, in that it involved a public building as opposed to a residence; and
(b) the time span between the prior conduct and the alleged offences is significant.
2. The trespass the subject of charge no. 6713/14 is not propensity evidence for the purposes of the offences alleged in the indictment, and in any event does not have significant probative value, because it concerns conduct of a very different nature to that alleged in the indictment;
3. While the evidence in respect of the subsequent burglaries on dwellings does constitute propensity evidence for the purposes of the offences alleged in the indictment, burglary is a very common offence and there is nothing of any distinguishing or 'linking' nature between the propensity offences and the indictment offences that could constitute the level of similarity required to render the evidence of significant probative value;
4. Even if the propensity evidence has significant probative value, it does not meet the 'fair-minded people' test for admission in s 31A(2)(b).
Accused's first proposition
51 The first proposition proceeds from the premise that there has to be 'sufficient similarity' before propensity evidence will be admissible. The accused relies on the following comments of Hall J in R v Bishop[2012] WASC 390:
Whilst it is not necessary that there be a striking similarity for propensity evidence to be admissible, propensity reasoning does require that there be sufficient similarity between past and alleged conduct for there to be a basis for reasoning that it is more likely that the accused did what is alleged because of his past conduct. Where there are significant differences in the conduct and it is of a seriously reprehensible nature there must be a high risk that it will encourage a jury to reason that the accused committed the offence alleged simply because he is generally of a bad character, rather than because he has some proven relevant disposition [55].
52 In Bishop, Hall J was dealing with a case in which it was alleged that the accused and others conspired to commit sexual offences against children abroad. The prosecution intended to rely on the accused's previous sexual offending to give meaning to discussions between him and the alleged co-conspirators, and to prove intention. The reference to 'significant differences in … conduct' must be understood in that context, although I would respectfully regard his Honour's general propositions as unexceptional. The question in any particular case will be what is 'sufficient similarity' and, conversely, what is a 'significant difference'? These questions must be determined according to the specific facts of the case.
53 The accused's first proposition in this case relies on the assumption that a burglary on a public building, such as a school, is of such a different nature to a burglary on a home that the conduct could not rationally affect, directly or indirectly, the assessment of the probability that an accused has committed a burglary on a home. In the context of the specific issue in this case, the argument must be that it could not rationally affect the assessment of whether the accused's DNA on the door handle can be explained only by his having committed the burglary.
54 As developed at the hearing, the argument was that:
Breaking into a school where there's unlikely to be any people at a time when the school is not occupied is quite different from breaking into a house that could be occupied, and that sort of invasion, of public versus private, is quite different and requires quite a different mindset on the person involved, and that affects the nature of the propensity reasoning as such that we say it's not significant (ts 42).
55 In my opinion, while the potential for a home to be occupied is undoubtedly a reason, generally, to treat home burglaries objectively as being more serious than those on a public building, it does not follow that it requires 'quite a different mindset' on the part of the offender. In the present case, the home in Willetton was unoccupied, and there is no suggestion that the burglar or burglars would have had any reason to believe there might be occupants in the house. I note that in respect of charge no. 6708/14, when the accused was disturbed by the occupants of the house, he fled. It is not apparent to me that his mindset would be any different when breaking into a school from when breaking into houses. As the accused's counsel agreed, the essential aspect of the conduct in each case is breaking into premises without the consent of the owner of those premises for the purposes of stealing.
56 The second aspect of the first proposition is the time span between the burglary on the school and the burglary on the Willetton home. It was submitted on behalf of the accused that the gap was significant, and that in such circumstances, for the evidence to have significant probative value, something like a unique modus operandi would need to exist to bridge the gap. The accused refers to Preston as an example, but, in my opinion, while Mazza JA referred to what he regarded as striking similarities between the appellant's prior conduct and the alleged conduct in that case, the facts relied upon by his Honour could not be described reasonably as a 'unique modus operandi'. In any event, as I indicated earlier, the time gap in Preston was much greater than in the present case.
57 In my opinion, having regard to the purpose for which the evidence is sought to be led, namely to rebut an innocent explanation for the accused's DNA being on the security screen handle, the time gap between the burglary on the school (charge no. 6583/12) and the burglary in Willetton, being a little over two years, is not such as to deprive the evidence of the first burglary of significant probative value as propensity evidence. The gap needs to be abridged, in any event, because the accused was not able to commit any offence for a period of some six months during that period (from 13 December 2013), as noted above. Further, the probative value of the evidence is to be assessed having regard to other evidence to be adduced (s 31A(2)(a)). If the evidence of the accused's subsequent conduct in committing burglaries on homes from 1 July 2014 is admitted, the earlier burglary takes on significance to establish that his propensity to forcefully break into premises to steal property pre-dated the Willetton burglary; it did not commence on 1 July 2014.
Accused's second proposition
58 The accused's second proposition relies on the same argument as the first proposition, that previous conduct must have sufficient similarity to the alleged conduct to be admissible as propensity evidence. The argument relies on the distinction between the offences of trespass and burglary, and on the fact that there was no forced entry into the shed in the commission of the trespass (charge no. 6713/14). However, that offence immediately preceded the stealing and attempted aggravated burglary that were charge numbers 6707/14 and 6708/14. It was part of the overall offending conduct on that occasion and was integral to it, in that it was the means by which the accused armed himself to break into the house. He then commenced to break into the house by smashing the glass panel next to the front door, but desisted when he was disturbed by the occupants.
59 In my opinion, the accused's submission would have more force if the conduct that preceded the attempted aggravated burglary on that occasion were unrelated unlawful conduct (for instance, the stealing of the motor vehicle, or if he had supplied drugs to his co-offender while in the back shed), rather than conduct that involved going into a building without consent and stealing property with the very intention of then breaking into the house. It seems to me that the submission in the present case involves an artificial distinction. There is not the kind of significant difference referred to by Hall J in Bishop whereby the admission of the evidence would create a high risk that it will encourage a jury to reason that the accused committed the offence alleged simply because he is generally of a bad character, rather than because he has some proven relevant disposition.
Accused's third proposition
60 The accused's third proposition is to the effect that the burglary alleged to have been committed in this case, viewed alone, is an instance of what was referred to as a 'common offence' or 'high-volume crime' for which there is a 'large pool of potential offenders' (ts 48). It is submitted on behalf of the accused that, when dealing with such an offence, and where the issue is identity of the offender, in order for propensity evidence to have significant probative value, it must have some distinguishing feature that links it to the offence with which the accused is charged. The accused relies on the decision in The State of Western Australia v Brennan [2015] WASC 214 (Corboy J) and references in that case to Dair.
61 As I have already observed, reliance on decisions in other cases has been held to be of little assistance, except to illustrate the manner in which relevant principles have been applied in particular cases. Such illustrations may provide guidance, but do not determine the outcome in another case. The level of guidance will depend on the degree of similarity between the circumstances of different cases. The circumstances of the present case are distinguishable from those in Brennan and Dair.
Brennan distinguished
62 In Brennan, the accused was charged with robbery, stealing and armed robbery. Identity of the offender was in issue. Brennan was alleged to have stolen a motor vehicle from the Scarborough Beach carpark on 25 April 2014, in circumstances where he initially got into the passenger's seat and demanded that the female driver drive off, but then pushed her out of the vehicle and drove away when she refused and screamed for help. It was also alleged that the following day, 26 April 2014, Brennan, while still in possession of the stolen vehicle, stole fuel from a service station in Leederville early in the morning and, later, at 4.17 pm, with threats of violence, while armed with a tyre lever, stole cash from a woman who had just withdrawn the money from an automatic teller machine at a shopping centre in Floreat. It seems the offender used the vehicle to leave the scene. The vehicle was found that evening in Subiaco. He was located nearby by police, and the keys to the vehicle were found in a walled garden bed at that location. There was forensic evidence that DNA matching Brennan's profile was found on the steering wheel of the stolen vehicle, on an item located in the vehicle, and on the keys to the vehicle.
63 The propensity evidence sought to be relied on in Brennan concerned offences committed some five years earlier in which he stole a vehicle from its driver and passenger in Northbridge, with the use of violence and threats of violence while armed with a screwdriver, and then, while in possession of the vehicle and using it to get away, he stole a handbag from a female pedestrian in Subiaco, with threats of violence and while armed with the screwdriver.
64 The prosecution submitted in Brennan that the likelihood of the accused's DNA being found on three separate items located in or connected with the stolen vehicle, together with the tendency that his past convictions demonstrated, made it 'highly unlikely' that he was not the offender: Brennan [16]. It was argued that the propensity evidence would negate any suggestion that his DNA was deposited on those items 'other than because [he] was the offender', including any claim that he was a passenger or 'drove the vehicle other than when the offences occurred': Brennan [15]. However, Corboy J considered there was a fundamental problem with that argument, in that there was evidence in the prosecution brief that a man was seen to get into the vehicle at a beach carpark in Hillarys late on the afternoon of 26 April 2014 and drive away. His Honour considered that it must be the State's case that it was Brennan who was seen to get into the vehicle. His Honour also appears to have proceeded on the basis that this sighting was after the offence that occurred at 4.17 pm in Floreat. As there was evidence that Brennan 'may well have driven the vehicle on occasions that are not the subject of any charge - at and from the beach carpark to Subiaco', his Honour considered that Brennan's past offending had little probative value in rebutting any claim that he drove the car 'other than when the offences occurred': Brennan [31]. It could not assist in proving that the DNA was deposited on relevant items when the vehicle was stolen or allegedly used in the commission of the other offences with which Brennan was charged.
65 Having rejected the specific 'rebuttal' argument because of the particular circumstances of that case, Corboy J went on to find that the propensity evidence was not admissible 'generally on the issue of identity'. It was in that context that his Honour concluded the evidence did not have significant probative value because of the 'frequency of the kind of offending for which Mr Brennan [was] to be tried', which he considered to be a 'common form of criminal conduct': Brennan [32] - [36]. His Honour commented that this was especially so as the State relied on only a single episode to prove the alleged tendency.
66 It may be noted immediately that the State in the present application relies on more than one episode. Secondly, there is no evidence within the prosecution brief in the present case that might explain the accused's DNA being on the door frame of the house in Willetton as a result of his attendance there on some occasion other than when the house was broken into and set alight. Although in Brennan it might be thought that the accused's possession of the car at a time between when the offences were committed and when he was apprehended by police was to be expected if he was the offender, there was nevertheless a possibility that his connection with the car commenced at a time after the last of the offences (in Floreat) if he was the person seen to get into the car in Hillarys. There is no comparable circumstance in the present case that would detract from the argument relied on by the State that the propensity evidence tends to rebut any innocent explanation for the accused's DNA on the screen door. The evidence is to be led for a specific forensic purpose, not on the basis that it is admissible generally on the issue of identity. In such circumstances, the argument that the evidence lacks significant probative value because it concerns 'common offences' or 'high-volume crime' loses force. Dair, which was referred to by Corboy J in Brennan, and is also relied on by the accused in the present application, is an illustration of this point.
Dair - significant probative value and common form of criminal conduct
67 In Dair the appellant was convicted of doing grievous bodily harm with intent. The issue at trial was identification. It was alleged Dair stabbed an off-duty police officer who had tried to prevent his escape after he was caught breaking into a vehicle and took flight. Eye witnesses were not able to make a positive identification, but said that the offender looked similar to Dair. The State relied on evidence of four previous convictions for offences that were said to establish a tendency to steal cars and to violently attempt to evade arrest if subsequently confronted and pursued. That evidence was relied on to support the tentative identifications. Steytler P and Miller JA were of the view that the evidence of the past offending had significant probative value. However, Steytler P held that the prejudicial effect of the evidence was such that it did not pass the fair-minded people test in s 31A(2)(b). Miller JA (who dissented in the outcome) was of the contrary view on that issue, concluding that the evidence had been properly admitted. On the other hand, EM Heenan J was of the view that the evidence did not have significant probative value, essentially because he characterised it as a common form of offence that lacked 'any particular identity, special feature or unique stamp': Dair [275].
68 For different reasons, therefore, the propensity evidence in Dair was held to have been wrongly admitted. However, to the extent that the case provides guidance on the question of significant probative value, the majority view on that issue in that case was that the evidence met that criterion.
69 The analysis undertaken by Steytler P of the probative value of the evidence took into account the 'common offence' consideration, as appears in the following passages:
Had the evidence stood on its own, I very much doubt that it could, to any significant extent, rationally have affected the assessment of the probability that the appellant was the man who had broken into Mr Yap's car and subsequently stabbed Constable Giocas. Experience reveals that there are many criminals who steal cars and subsequently attempt to evade arrest, if pursued. The fact that the appellant was one of these (and it is not suggested that there is anything unique about his modus operandi) did little to establish that he committed the present offence. As I have said, what it did was include him in a class of persons who were more likely than others to have committed an offence of this kind. However, given that the class very probably encompasses a large number of people, that, of itself, could not carry a great deal of weight.
The fact that the appellant, when challenged, had a tendency to resort to violence made it more likely that he was the offender. However, the class of car thieves who are prepared to use violence to evade arrest, while smaller than the first class to which I have referred, may nonetheless consist of a sufficient number of people to render that evidence, taken on its own, of limited value. Importantly, the violent means used by the appellant had never encompassed a stabbing, or even the infliction of grievous bodily harm, and, although he had previously brandished a knife, this had happened on only one occasion.
Nevertheless, it was significant, in the context of this case, that the witnesses had picked out (albeit tentatively) a man who belonged to the smaller class to which I have referred. The fact that the appellant was a member of this class made it more likely that these witnesses had picked out the right man. It seems to me that the propensity evidence consequently had significant probative value [70] - [72].
70 The 'tentative' nature of the identification evidence in Dair had a bearing on the conclusion subsequently reached by Steytler P in relation to the test under s 31A(2)(b). In the present case, the identification evidence is of a different kind and requires a process of reasoning that is more akin to that discussed in Brennan. There is nothing tentative about the forensic evidence, which is not in dispute. The question is not whether the right man has been 'picked out', but whether there is an innocent explanation for the accused's DNA being at the scene. In my opinion, it is not necessary that the accused belong to a subset of burglars before the propensity evidence could have significant probative value to rebut an innocent explanation for the presence of his DNA at the scene. However, as I will explain later, there are aspects of the accused's previous offending that tend to narrow the class of burglar to which he belongs.
Geographical location of the offences
71 As well as arguing that there is a lack of distinguishing features to link the offences the subject of the application to the offences in the indictment, counsel for the accused relied on a point of distinction to reinforce his argument that the propensity evidence lacks significant probative value. He pointed out that the burglary offences in July 2014 occurred in North Perth and West Swan, being areas north of the river, whereas the offences alleged in the indictment occurred in an area south of the river. The State responded by pointing out that, when one adds Duncraig to the locations where offences were committed by the accused, he has shown a propensity to commit burglaries over a substantial part of the metropolitan area, so that the fact the alleged offences occurred in Willetton is not particularly significant. Also, the alibi evidence to be adduced by the accused would place him in Kelmscott, a suburb in the south-east metropolitan area, at the relevant time. Finally, he had on previous occasions had access to a motor vehicle, which would provide opportunity to travel to any part of the metropolitan area.
72 In my opinion, the offending for which the accused has been convicted does not demonstrate a propensity to offend within a specific area. I do not consider that the geographical difference between the offences has any bearing on the probative value of the propensity evidence.
Accused's fourth proposition - s 31A(2)(b)
73 The argument put on behalf of the accused under s 31A(2)(b) is that if the propensity evidence were to be admitted, it would have a disproportionate effect on what the accused submits is an otherwise weak State case in relation to both the burglary and arson charges. The accused relies on the fact that the only evidence (independent of the propensity evidence) that connects the accused to the alleged offences is the presence of DNA, to which the accused is alleged to be a contributor, on the outside of the security door. The accused relies on the absence of any forensic or other evidence linking the accused to:
(a) the inside of the house;
(b) the property of the home owner that was found in the bin in Welshpool; or
(c) the arson.
74 It is submitted on his behalf that, in those circumstances, the prior burglary will assume an unfair significance in the State's case, and that, accordingly, the risk inherent in propensity evidence is significantly heightened in this case.
Ruling
75 In my opinion, the evidence sought to be adduced by the State is admissible as propensity evidence under s 31A.
Relevance of charge numbers 6583/14 and 6713/14
76 For the reasons I have given above, in dealing with the first and second of the accused's propositions, I am of the view that the conduct the subject of the burglary on the school in Duncraig on 25 April 2012 (charge no. 6583/14) and the trespass in West Swan on 23 July 2014 (charge no. 6713/14) is relevant propensity evidence for the purposes of the burglary charge in the indictment, and, in combination with other evidence in the case, including the balance of the propensity evidence that post-dates the offences in the indictment, does have significant probative value.
77 In relation to the burglary on the school, I do not accept that the distinction which the accused has sought to draw between burglaries on public buildings and those on dwellings is apt, having regard to the circumstances and issues in this case. The burglary, having occurred in 2012, demonstrates that the accused's tendency to break into premises by force, without the owner's consent, for the purpose of stealing property commenced before the offences in the indictment. Further, having regard to the similarities discussed in [79] below, the evidence tends to reinforce the proposition that the accused's propensity was to steal large items and large amounts of property.
78 In relation to the trespass offence, it was inextricably connected with the attempt to break into the house that was on the same property as the shed. That attempt followed immediately after items were stolen from the shed, and one of those items was used in the attempt to break into the house. Again, it seems to me that the distinction the accused seeks to draw between the trespass offence, when viewed in context, and the burglary charged in the indictment is artificial. I am of the view that allowing the evidence to be adduced is not likely to carry the risk identified by Hall J in Bishop: see [51] above.
Significant probative value
79 The accused has accepted that the burglary and stealing offences that post-date the offences in the indictment are relevant propensity evidence, but has argued that they lack significant probative value because they are prevalent offences, for which there is a very large class of potential offenders, and there are no distinguishing features that would place the accused in a narrower class of burglar who could be said to be responsible for the burglary offence in Willetton. As I indicated in dealing with the accused's third proposition, I consider that the admissibility of the evidence does not depend on identifying distinguishing features, given the manner in which the evidence is sought to be relied on in this case, namely to rebut any innocent explanation for forensic evidence that links the accused to the point of forced entry at the Willetton house. However, there are noteworthy similarities between the latter offence and all of the burglaries that constitute the propensity evidence:
1. Charge numbers 91168/14, 6708/14 and 6709/14 involved entry being gained, or attempted to be gained, to a dwelling through a door. The latter two involved the use of force to gain or attempt to gain entry. Charge no. 6583/12 involved a forced entry to a school by breaking a window;
2. Each of the completed burglaries involved the theft of a large number of items, in particular electrical goods. While it is unclear from the complainant's statement in the present case which items were lost in the fire and which were stolen, the items listed include computer equipment and numerous other belongings, including three suitcases, which contained clothing and other items, and a toiletry bag. The suitcases and toiletry bag were recovered from an industrial bin in Welshpool;
3. The accused had the means to transport from the premises, in each case, a large amount of property, including large items such as televisions, computers, amplifiers, a vacuum cleaner and other similar goods. In the present case it is reasonable to infer that the offender or offenders had means of transport, as three suitcases from the Willetton house were subsequently found in Welshpool;
4. As discussed above, the property stolen in the course of the offences constituting charge numbers 6709/14 and 6710/14 included a suitcase and a toiletry bag.
80 To identify these factors is not to suggest that the propensity evidence is admissible on the basis of similar fact, but it provides a counterweight to the accused's argument based on the prevalence of offending of this kind. Burglaries occur in a variety of ways, and the amount and size of property taken covers a wide spectrum. The prevalence of burglaries involving thefts of such large amounts of property, and such large items, as occurred in the propensity offences in this case, is necessarily less than the prevalence of burglary offences generally. The extent to which the former constitutes a smaller class is not the subject of any evidence, and may not be readily ascertained. However, in my opinion there are sufficient similarities in the present case to negate the argument that the alleged offence is so commonplace that the propensity evidence is necessarily deprived of significant probative value. The question ultimately is whether the test in s 31A(2)(a) is satisfied.
81 I consider that, having regard to other evidence that is to be adduced in the prosecution case, the conduct the subject of each of the offences included in the application would rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue, namely whether the accused was a person who entered the home and committed the burglary.
82 The other evidence is the finding of DNA material at the scene which returned profiles consistent with at least three contributors, one such profile being consistent with the accused's DNA profile. There are a number of aspects of the forensic evidence that are relevant to the assessment of whether the propensity evidence has significant probative value:
1. The likelihood ratio statistic in favour of the accused being a contributor to the DNA material is high, at 140 million;
2. The door was at the location that was determined to be the point of entry for the burglary;
3. The door had been forced open; and
4. The door led into the house from the carport. As the State submitted, it was not the front door, where one might expect someone to approach if they were attending the house for an innocent reason.
83 Having regard to that context, the evidence that the State seeks to adduce under s 31A is evidence that tends to disprove any innocent explanation for a DNA profile, matching the accused, being found at the point of forced entry for the burglary. I agree with the State's submission that the jury's assessment of the plausibility of any innocent explanation for such a match will be affected by knowledge of the qualities of the person whose profile was found. In my opinion, that knowledge would rationally affect in a significant or important way the assessment of how the accused's DNA came to be on the door handle.
84 I have noted that, in relation to the question under s 31A(2)(b), it is submitted on behalf of the accused that the evidence would have a disproportionate effect on what is an 'otherwise weak State case'. It is not clear whether that characterisation of the State's case relates to the identification of the accused as a contributor to the DNA material, or to the significance that can be placed on the accused's DNA being on the door handle, or both. As I stated earlier, at this stage the defence has not disclosed what submission it will make about the DNA evidence, except to say that the evidence will not be challenged. It is difficult, on the available evidence, to see on what basis it might be suggested that, notwithstanding the DNA profile and the likelihood ratio, the jury should be left with a reasonable doubt about whether the accused was a contributor to the DNA material. However, if that were to form part of the defence case, then it may be accepted that one effect of admitting the propensity evidence could be to strengthen the conclusion open on the forensic evidence that the accused contributed to the DNA material on the door handle. That is because a jury could reason that it would be an unlikely coincidence that there would be someone else with the same profile whose DNA would be left at the point of a forced entry for a burglary, when it is known that the accused has a propensity for committing burglaries, including home burglaries, by forcing entry. The two issues - identification of the contributor to the DNA material and the circumstances in which it came to be deposited - would be intertwined. However, this does not detract from the conclusion that the propensity evidence has significant probative value. The jury will be directed that the circumstantial evidence is not to be considered in a piecemeal fashion; rather the significance and weight to be given to each item of evidence will need to be determined in the light of all of the evidence: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] - [48]. The propensity evidence will be part of the circumstantial evidence in this case. In my view, the jury could properly have regard to it in determining the significance of the DNA evidence both in terms of whether it identifies the accused as a contributor to the biological material on the door handle and what that says about his involvement in the burglary and arson.
85 In concluding that the propensity evidence is significantly probative because it would tend to rebut an innocent explanation for the presence of the accused's DNA on the door handle, I have taken into account the possibility that secondary transfer may arise as an explanation for that fact, as discussed above. Whether that is proffered as an explanation, or it is suggested that the accused may have attended the house for an innocent purpose, a jury could conclude, in light of the propensity evidence, that such explanations are not tenable as a matter of human experience: see Plomp v The Queen (1963) 110 CLR 234, where Dixon CJ referred to putting 'an incredible strain on human experience' (243).
86 What I have said so far relates the probative value of the evidence to proving the burglary. It will be open to the jury to conclude that the arson offence was inextricably linked to the burglary, particularly given the short timeframe within which the offences occurred. That is, a jury would be entitled to consider that it is not a reasonable likelihood that there were two separate, unrelated intrusions within a day and a half in which the house was not occupied, one of which resulted in the arson. Whether the jury will be satisfied beyond reasonable doubt that the same person or persons who committed the burglary also committed the arson will depend, obviously, on its assessment of the whole of the evidence, including any evidence adduced by the defence. At this stage, however, because of the circumstantial nature of the case, I consider that, because the propensity evidence rationally affects the assessment of the probability that the accused was a person who committed the burglary, it would similarly affect the assessment of the probability that he was responsible for the criminal damage by fire. Even if that were not so, the evidence would still be admissible, in my opinion, on the basis that it is significantly probative of the accused's guilt of the burglary offence.
Consideration of s 31A(2)(b)
87 Having concluded that the evidence has significant probative value, I must weigh the probative value of the evidence against the degree of risk of an unfair trial and determine, under s 31A(2)(b), whether fair-minded people would consider that the public interest in adducing all relevant evidence of the accused's guilt must have priority over the risk of an unfair trial.
88 I consider that the probative value of the propensity evidence is high in providing a proper context in which the jury can assess the significance of the DNA evidence. I agree with the State's submission that the proposed evidence is not unusual in terms of the types of evidence routinely admitted under s 31A of the Evidence Act.
89 If I have correctly understood the accused's argument that the propensity evidence would assume an unfair significance in what is 'an otherwise weak State case' (see [73] and [84] above), there are two points to be made. First, the characterisation of the case as 'otherwise weak' is contentious, in light of the DNA evidence. Secondly, to the extent that the contention assumes that the potential use of the propensity evidence by the jury to bolster the DNA evidence would be improper, I am of the opinion that the assumption is wrong, for the reasons set out in [84] above. In my view, the significance of the evidence is to provide the jury with a complete and fair context in which to determine what conclusions can be drawn from the DNA evidence.
90 In assessing the degree of risk of an unfair trial, I must have regard to any directions that might be given to a jury. Appropriate directions in this case would identify the potential relevance of the evidence and the very specific way in which it was being relied upon. The jury would be instructed of the need to critically analyse the forensic evidence presented by the State. It would be directed that propensity evidence could not, by itself, prove the case against the accused. The jury would also be warned against reasoning that the accused must have committed the offences charged simply because he or she has committed other offences. In my opinion, such directions would guard against the prospect that a jury might uncritically overvalue the probative effect of the evidence, or engage in improper prejudicial reasoning. In the circumstances of this case, I do not consider the risk of an unfair trial to be high if the evidence is admitted and appropriate directions are given. A jury, properly instructed, would consider the differences between the offences of which the accused has been convicted and those in the indictment, as identified in the accused's argument on this application. It may consider the fact that none of the other offences involved arson. It would, of course, take into account any alibi evidence that may be led.
91 Section 31A(2)(b) does not require me to be satisfied that the risk of an unfair trial will be entirely eliminated. It recognises that there may remain a risk of an unfair trial, even after appropriate directions, but that fair-minded people would consider that the public interest in adducing the evidence must have priority.
92 Having weighed the probative value of the proposed evidence against the risk of an unfair trial, I am of the view that properly informed fair-minded people would consider that the public interest in adducing all evidence relevant to assessing the plausibility of an innocent explanation for the accused's DNA at the point of forced entry, and thus relevant to identification, must have priority over such a risk.
93 Accordingly, the evidence is admissible.
Order
94 Leave is granted to the State to adduce the evidence in terms of the amended application, as set out in [7] above.
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