The State of Western Australia v Walker
[2019] WASC 64
•1 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WALKER [2019] WASC 64
CORAM: MCGRATH J
HEARD: 1 MARCH 2019
DELIVERED : 1 MARCH 2019
FILE NO/S: INS 288 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHINGYA GENE WALKER
Accused
Catchwords:
Criminal law - Propensity evidence - Armed robbery - Whether circumstances of prior offence have significant probative value - Whether the probative value is such that when compared to the risk of an unfair trial, fair-minded people would think that the public interest in admitting the evidence must have priority
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
The propensity evidence is not admissible
Leave not granted to State to admit propensity evidence
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Chu |
| Accused | : | Mr J Brash |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid Commission |
Case(s) referred to in decision(s):
APC v The State of Western Australia [2012] WASCA 159
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Onekawa v The State of Western Australia [2012] WASCA 105
Roncevic v The State of Western Australia [2010] WASCA 213
The State of Western Australia v Walker [2016] WASCSR 244
MCGRATH J:
(This judgment was delivered extemporaneously on 1 March 2019 and has been edited from the transcript).
The accused is charged on indictment that, on 5 February 2018, he stole from Puma Energy (Australia Fuels Pty Ltd), with threats of violence, money and cigarettes, contrary to s 392 of the Criminal Code (WA). The circumstance of aggravation pleaded on the indictment is that the accused was armed with an offensive instrument, namely a syringe.
The accused has pleaded not guilty to that count and will appear for trial on 3 September 2019.
By application, undated but filed 14 December 2018, the State seeks leave to adduce evidence of a prior conviction for armed robbery, pursuant to s 31A of the Evidence Act 1906 (WA). I have determined that the evidence is inadmissible and that, therefore, leave should not be granted. In these reasons for decision, I will consider the following:
(a)The State case;
(b)The propensity evidence;
(c)The s 31A application;
(d)The relevant legal principles; and
(e)The merits of the application.
The State case
In determining an application of this nature, it is necessary to assume that the evidence will be that which is contained in the State's brief of evidence. I have considered the State's brief of evidence and, further, the statement of material facts prepared by the police investigators. The State's case was summarised in the written outline of submissions on behalf of the State in the following terms:[1]
[1] State's Written Outline of Submissions [6] - [19].
At about 11.00 pm on Monday, 5 February 2018, the accused entered the Puma Service Station located at the corner of North Beach Road and Wishart Street, Gwelup. Present in the store at that time were the attendant, Maulikkumar Patel, and two further witnesses. The accused wore a dark jumper, light trousers, pink gloves, sunglasses and a light‑coloured T‑shirt wrapped around his head.
The accused approached the service station, jumped over it, and took out a syringe, which he held in his right hand. The accused uncapped the needle and pointed it towards the attendant, while demanding that he open the cash register.
The accused said words to the effect of "Sorry, I didn't want to do this, but I had to". Further, he stated, "I don't want to hurt anyone, just give me the money", and "I'm sorry, I'm desperate".
Accordingly, the attendant opened the cash register, allowing the accused to remove $160.60 in cash. The accused then demanded that the attendant open the safe. The attendant advised him that he could not as he did not have the keys.
The accused then opened the cigarette cabinet and stole three packets of Peter Jackson Original Blue 20 cigarettes, valued at $28.95 each. The total value of property and cash stolen was $248.45.
The accused then ran out of the store and ran in a southerly direction on North Beach Road towards Lake Gwelup. The accused attended the residence of another person, where he spent the night.
Following the accused's departure from the store, the attendant pressed the holdup alarm causing the police to attend. At that time, police located the syringe cap behind the service counter, which was subject to fingerprint and DNA analysis.
On 6 February 2018, the accused utilised his bank card at Woolworths Karrinyup, making a dollar purchase and a $34.00 cash out.
On 14 May 2018, the syringe cap was analysed. The accused's DNA was located on the inside of the syringe cap. No results were obtained from the fingerprint analysis.
On 2 August 2018, the accused was arrested and participated in a video record of interview, in which he made no comment.
At the time of the offence, the accused had been released on parole for the prior offending, his postal address being the address of the person with whom he spent the night.
The accused states that at trial it will not be disputed that an armed robbery occurred on 5 February 2018.[2] However, it is denied that the accused was the offender. Therefore, the issue at trial will be identity.[3]
[2] Accused’s Written Outline of Submissions [6].
[3] Accused’s Written Outline of Submissions [6].
The State’s case comprises, in part, firstly the DNA evidence being the finding of the accused’s DNA on a syringe cap located in very close proximity to the counter at the Puma service station. Second that the accused stayed the night of the offence at a residence in close proximity to the Puma service station and third, that the accused used a bankcard the next day after the incident at a point of transaction in close proximity to the Puma service station.
The propensity evidence
The State seeks leave to adduce, as propensity evidence, the facts relating to the conviction of the accused for one count of armed robbery on 13 December 2016 (the 2016 conviction). The State seeks to tender a certificate of conviction and to rely upon the material facts as read to the court on 13 December 2016, being the facts upon which the sentencing judge imposed sentence.[4]
[4] The State of Western Australia v Walker [2016] WASCSR 244 [5].
The facts upon which the accused was convicted on 13 December 2016 were outlined by the sentencing judge in his sentencing remarks as follows:[5]
You have admitted the facts as alleged by the prosecution, and they are as follows. That at 9.20 pm on Thursday, 16 June 2016, you entered the Balga Pizza Hut store, having first concealed your identity by covering your face with a black cloth, black glasses and a black hooded jumper. You approached the counter and held your right hand against your belt line, partly concealing it under your jumper so as to give the impression that you were in possession of a weapon.
You then held out a brown paper bag in your left hand and said to the person behind the counter, "Open the till." You then stepped past the counter into the kitchen area and spoke to another employee and said, "Open the till and the safe." That employee, fearing for his safety, went to the till and opened it. You then removed $1,000 in notes, apologised to the employee and fled from the store. On 29 June 2016, you were arrested by the police and, subsequently, you participated in an interview in which you admitted the offence. You have been in custody since 29 June 2016.
[5] The State of Western Australia v Walker [2016] WASCSR 244 [5].
The s 31A application
The State's application, undated but filed 14 December 2018, is in the following terms:[6]
In any trial on indictment 288 of 2018 the State is permitted to lead evidence of the conduct of the accused person relating to offences contained in indictment 280 of 2016 in respect of which the accused pleaded guilty in the Supreme Court at Perth on 13 December 2016.
[6] State's Application filed 14 December 2018.
The State's application is that the 2016 offending should be received as propensity evidence because it is similar fact evidence and, further, it is evidence that the accused has a propensity or tendency to commit armed robberies at commercial businesses during the night, close to his residence.[7] It is submitted that the evidence has significant probative value because it could rationally affect the jury's assessment of the probability that the accused committed the offence.
[7] State's Written Outline of Submissions [34].
On behalf of the accused, it was conceded that there are similarities between the 2016 offending and the offending the subject of the count and that the evidence does show that the accused has the tendency contended by the State.[8] Accordingly, the accused accepts that the 2016 conviction evidence falls within the definition of propensity evidence under s 31A(1). However, the accused contends that the evidence does not have significant probative value and is, therefore, inadmissible.[9]
[8] Accused's Written Outline of Submissions [10].
[9] Accused's Written Outline of Submissions [10].
The relevant principles
Section 31A of the Evidence Act confers on the court the power to admit propensity and relationship evidence.
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.
Evidence will be admissible under s 31A 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.
Both of those tests must be satisfied in order for the propensity evidence to be admissible. As regards the first test being whether the proposed evidence has significant probative value, in Dair v The State of Western Australia[10] Steytler P said [61]:
Before evidence can have significant probative value it must be such as "could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance": Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175 ‑ 176. Heydon (at [21245]) suggests that significant probative value is something more than mere relevance but something less than a "substantial" degree of relevance and that it is a probative value which is "important" or "of consequence". He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: R v Lockyer (1996) 89 A Crim R 457, 459; R v Lock (1997) 91 A Crim R 356, 360 ‑ 361; R v Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] ‑ [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
[10] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385.
The effect of s 31A(2)(a) was explained by Buss JA in LFG v The State of Western Australia[11], relying on the analysis undertaken by Steytler P in Dair v The State of Western Australia,[12] 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.
[11] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [290] (Buss JA).
[12] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385.
In respect of the second test, Steytler P considered and explained the comparison which s 31A(2)(b) requires in Dair. The examination made by Steytler P was referred to by Buss JA in Onekawa v The State of Western Australia as follows:[13]
First, s 31A(2)(b) requires the court, having already found under s 31A(2)(a) that the evidence has significant probative value, to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a person likely to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, 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 [64]. Fourthly, 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 [66]. 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' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
[13] Onekawa v The State of Western Australia [2012] WASCA 105 [45]. See also Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457, Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482, Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 and Roncevic v The State of Western Australia [2010] WASCA 213.
In Donaldson v The State of Western Australia, Roberts‑Smith JA expressed the following opinion about the meaning of 'the risk of an unfair trial' in s 31A(2)(b):[14]
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.
[14] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127] (Roberts‑Smith JA).
In APC v The State of Western Australia, Pullin JA made the following observations about the risk of an unfair trial:[15]
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] APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59 [15] (Pullin JA).
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.
The merits of the application
The State anticipates that the issues at trial will be identity and that ‘an innocent explanation will be proffered in respect of the accused's DNA being located on the cap of the syringe used in the commission of the offence.'[16]
[16] State's Written Outline of Submissions [21].
The State contends that there are similar features in both the 2016 offending and the offending the subject of the count. The similar features are:[17]
(i)The commission of both offences at night in commercial businesses within close proximity of the accused's respective residences at the time;
(ii)The wrapping of a shirt or cloth around the head together with wearing dark sunglasses and gloves; and
(iii)The apologies made to the attendants during the commission of both offences.
[17] State's Written Outline of Submissions [56].
The tendency contended by the State is that the accused attends commercial businesses, in close proximity to his residence, at night whilst armed in order to steal cash.[18]
[18] State's Written Outline of Submissions [39] - [41].
The State submits that fair-minded people will think that it is in the public interest for the propensity evidence in this case to be adduced notwithstanding its risks. The State contends that the risk of an unfair trial can be neutralised by directions, including that the propensity evidence could not, by itself, prove the case against the accused.
The accused submits that the 2016 offending is not significantly probative and further that the evidence is so prejudicial that fair-minded people would think that it is not in the public interest to adduce this evidence.[19]
[19] Accused's Written Outline of Submissions [17], [23].
There are difficulties with the State's contention that the 2016 offending is significantly probative. The features that are relied upon to distinguish the offending from other armed robberies are not compelling.
The fact that commercial businesses are targeted is a most common characteristic of armed robberies. The contention that the 2016 offending occurred in close proximity to the present allegation must be scrutinised. This is not a case where the two commercial businesses form part of the same complex. Rather, the two commercial complexes are situated in different suburbs, though in the same general region.
Further, the contention that both the 2016 offending and the present allegation occurred in close proximity to the accused’s residence at the respective times of the offending does not support a conclusion that the 2016 offending is significantly probative. The accused did not have a fixed address at the time of the present allegation.[20] The State alleges that the accused spent the night of the offence in the suburb in which the Puma service station is located. The 2016 offending, as I have observed, occurred in a different suburb. The accused lived in that suburb. I do not accept the State’s submission that this factor, when considered with the other factors relied upon, supports the contended tendency.
[20] ts 15 (01/03/2019).
The use of a means of concealment by the accused is unremarkable. In the 2016 offending the accused concealed his identity with black cloth, black sunglasses and a black hooded jumper. He also wore gloves. In the present case it is alleged the accused had a light coloured t-shirt wrapped around his head, wore sunglasses and wore pink gloves. It is most common for an offender in an armed robbery to endeavour to conceal their face. I am unpersuaded that this feature supports a finding that the 2016 offending is significantly probative.
The final feature being the apology feature is a characteristic that is certainly not shared by other offenders. However, this is not a case where the State contends that an accused has used a particular phrase or language during the commission of an offence. Rather, it is said that the accused in dissimilar language proffered an apology. I must give this feature full weight in light of the entire evidence.
There are clear distinguishing features. The 2016 offending involved the accused pretending to be armed. In the present offence it is alleged the accused was armed with a syringe. The type of concealment cannot be said to have particular similarities such as an identifiable facemask. The 2016 offending occurred over two years prior to the offending the subject of the indictment. Though, the State in submissions observed that the accused was serving his term of imprisonment during much of that period.
I do not consider that the 2016 offending is significantly probative. That is because the similarities contended to be shared by the 2016 offending and the count on the indictment does not distinguish that offending from other armed robberies. The armed robbery of a commercial business at night by a person who is concealing his identity is, regrettably, far too common. The offering of an apology when considered in light of the other features relied upon by the State is insufficient for a finding that the 2016 offending is significantly probative. I have considered all other evidence upon which the State relies in making that finding.
I also consider that the prejudicial effect if the evidence was admitted would be significant. I do not consider that the prejudicial effect could be effectively neutralised by directions. In my view, if this evidence was admitted the trial would be unfair. Fair-minded people would not think that the evidence should be admitted give the high risk that the trial would be unfair.
Accordingly, the evidence is inadmissible and the State application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
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Associate7 MARCH 2019
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