The State of Western Australia v Walker [No 2]
[2019] WASC 321
•3 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WALKER [No 2] [2019] WASC 321
CORAM: DERRICK J
HEARD: 3 SEPTEMBER 2019
DELIVERED : 3 SEPTEMBER 2019
FILE NO/S: INS 288 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHINGYA GENE WALKER
Accused
Catchwords:
Evidence - Alleged armed robbery - Application under s 31A of the Evidence Act 1906 (WA) to adduce evidence of prior offences
Legislation:
Criminal Code (WA)
Evidence Act 1906 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Applicant | : | Ms Z M Burgess |
| Accused | : | Mr D M Fernandez & Mr J I Brash |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid Commission |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Mansell v The State of Western Australia [2009] WASCA 140
Preston v The State of Western Australia [2012] WASCA 64
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Walker [2019] WASC 64
DERRICK J:
(This judgment was delivered extemporaneously on 3 September 2019 and has been edited from the transcript.)
Introduction
The accused is charged on an indictment dated 13 December 2018 with one offence of armed robbery contrary to s 392 of the Criminal Code (WA) (the Code) (the charged offence). The accused's trial on the charged offence is listed to commence today.
On 1 March 2019 the State made an application under s 31A of the Evidence Act 1906 (WA) (the Act) to adduce at the accused’s trial on the charged offence evidence of the accused's prior conviction for an offence of armed robbery (stealing with threats of violence while pretending to be armed - PE 36592/16). The accused committed this offence on 16 June 2016 and was convicted of the offence on 13 December 2016. The application was heard by McGrath J. His Honour refused the application.[1]
[1] The State of Western Australia v Walker [2019] WASC 64.
The State has now made a further application under s 31A of the Act dated 28 August 2019 to adduce at the accused's trial on the charged offence evidence of other offences committed by the accused (the application). The application is opposed by the accused.
The alleged facts of the State's case
The alleged facts of the State's case against the accused on the charged offence may be summarised as follows.
At about 11.00 pm on Monday, 5 February 2018 the accused entered the Puma Service Station located on the corner of North Beach Road and Wishart Street in Gwelup. The accused was wearing a dark jumper, light trousers, pink gloves, sunglasses and a light coloured T‑shirt wrapped around his head.
At the time that the accused entered the service station three people were present, the station attendant, Mr Maulikkumar Patel, and two customers.
The accused approached the service station counter, jumped over the counter, and took out a syringe which he held in his right hand. The accused uncapped the syringe needle and pointed it towards Mr Patel while demanding that he open the cash register. The accused at the time of doing this said words to the effect of, 'Sorry, I didn't want to do this, but I had to', 'I don't want to hurt anyone, just give me the money', and 'I'm sorry, I'm desperate'.
Mr Patel opened the cash register. This allowed the accused to remove $160.60 in cash.
The accused demanded that Mr Patel open the service station safe. Mr Patel advised the accused that he could not open the safe as he did not have the keys.
The accused opened the cigarette cabinet and stole three packets of cigarettes, valued at $28.95 each.
Having obtained the money and the cigarettes the accused ran out of the service station in a southerly direction on North Beach Road towards Lake Gwelup. The accused attended the residence of Ms Donna McQueen at 38 Paine Court in Karrinyup where he spent the night. Ms McQueen's residence is in close proximity to the service station.
After the accused ran out of the service station store Mr Patel pressed the hold‑up alarm which caused the police to attend. On attending at the service station the police located a syringe cap behind the service station counter.
On 6 February 2018 the accused utilised his bank card at Woolworths Karrinyup to make a $1 purchase and to take $34 cash out of his account.
On 14 May 2018 the syringe cap was subjected to DNA analysis. The accused’s DNA was located in the inside of the syringe cap. A mixed DNA profile assumed to have originated from three individuals with one of the contributors being the accused was located on the outside of the syringe cap.
No results were obtained from fingerprint analysis of the syringe cap.
On 2 August 2018 the accused was arrested. He participated in an electronic record of interview but declined to make any comment.
The accused's bank records show that as at 2 February 2018 he had only 55 cents in his bank account. The records also show that a Centrelink payment of $642.10, paid into the accused's account on 31 January 2018, was withdrawn immediately.
Issue at trial and evidence to be relied upon by the State
I am informed that the accused will not dispute at trial that the charged offence was committed but that he will dispute that he was the person who committed the offence. Therefore, the issue at trial will be identity; that is, whether it was the accused who was the offender.
Putting to one side for the moment the evidence the subject of the application, the evidence that the State will rely upon at trial as going to prove the accused's guilt consists in essence of the evidence that the accused's DNA profile was found on the external and internal surfaces of the syringe cap, the evidence of Ms McQueen that on a night in early February 2018 (probably a weekend night) the accused spent a night at her house, the evidence that the accused’s bank card was used on the day after the charged offence at a location in relatively close proximity to the service station, the evidence of the accused's financial situation as revealed by his bank records and the evidence that the offender told Mr Patel that he was committing the offence because he was desperate.
It is apparent from the submissions made by the accused on the application that he does not accept that the evidence to be adduced by the State is capable of establishing that he spent the night of 5 and 6 February 2018 at Ms McQueen's house or that he was the person who used his bank card on the day after the commission of the charged offence.
Evidence sought to be adduced under s 31A
On 19 December 2016 the accused was convicted in the Perth Magistrates Court on his pleas of guilty of the following seven offences (the prior offences):
PE 34714/16 – stealing;
PE 34715/16 – attempted stealing;
PE 34716/16 - stealing;
PE 35777/16 – stealing;
PE 35778/16 – stealing;
PE 36591/16 - stealing; and
PE 36593/16 - stealing.
The accused was sentenced to a global fine of $5,000 for the prior offences.
The evidence which the State by the application seeks to adduce under s 31A is evidence of the accused's conduct in committing, and convictions for, the prior offences.
The facts of the prior offences are as follows.
PE 34714/16
On 29 May 2016 at 6.55 pm the accused entered the IGA store in Morris Place Innaloo. The accused walked up to the cash register and reached for the drawer. He took $200 cash from the register.
On 21 June 2016 the accused was arrested and made full admissions. The explanation that he gave to the police for committing the offence was, 'I had issues with Centrelink. I needed it for food and just to get by'.
PE 34715/16
On 5 June 2016 at 6.55 pm the accused entered the KFC store on Karrinyup Road in Karrinyup. He walked up to the cash register and reached for the open drawer. The accused took $100 from the cash register. The manager grabbed the money from the accused's hands and the accused dropped the money. The accused ran from the store.
On 21 June 2016 the accused was arrested and made full admissions. The explanation he gave to the police for committing the offence was, 'I had issues with Centrelink. I needed it for food and just to get by'.
PE 34716/16
On 20 June 2016 at 10.25 am the accused entered the IGA store in Morris Place Innaloo. The accused walked up to purchase a can of Pepsi. When the cash register drawer was open he reached over to the drawer and removed $300 cash and ran out of the store.
On 21 June 2016 the accused was arrested and made full admissions. The explanation he gave to the police for committing the offence was, 'I had issues with Centrelink. I needed it for food and just to get by'.
PE 35777/16
On 24 April 2016 at 1.14 pm the accused entered the Westminster IGA in Westminster. The accused approached the checkout of the store and spoke to the cashier. The cashier opened the till and the accused grabbed $180 in cash and left the store.
PE 35778/16
On 1 June 2016 at 7.45 pm the accused walked into Farmer Jack's Woodlands located in Woodlands. The accused approached the front checkout and requested some cigarette papers. The accused handed over some cash in payment of the cigarette papers. When the till was open he reached over and took $300 cash.
PE 36591/16
On 27 April 2016 at about 8.42 pm the accused was outside Balga Pizza Hut situated in Balga. After concealing his identity with a black hooded jumper, a beanie and a black hat, the accused entered the Pizza Hut. The accused approached and knocked on the counter to draw the attention of staff to him. There was a staff member at the counter. The accused said to the staff member, 'Open the till'. The staff member, fearing for his safety, did so. The accused removed $500 in notes from the till. The accused apologised to the victim and fled out of the store on foot. On 29 June 2016 the accused was arrested and participated in an interview.
PE 36593/16
On 23 June 2016 at about 12.16 pm the accused was outside Greg's Discount Chemist Canning Bridge situated at 906 Canning Highway in Applecross. After concealing his identity by covering his face with a black hooded jumper, a dark blue cloth and sunglasses the accused entered the chemist. The accused approached the counter. The accused spoke to an attendant and said, 'Open the till'. The attendant opened the till and the accused removed approximately $240 in cash. The accused apologised to the attendant and fled out of the store on foot. On 29 June 2016 the accused was arrested by the police. He participated in an interview and made admissions to the offence.
Legal principles
I turn to the legal principles that I must apply in determining the application.
In order for the evidence sought to be adduced to be admissible under s 31A of the Act it must meet the requirements for admissibility stipulated in s 31A(2). The requirements for admissibility, so far as is relevant to the application, are as follows:
1.The evidence is 'propensity evidence' as defined in s 31A(1);
2.The court considers that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
3.The court considers 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.
As to the first of the requirements for admissibility, the term 'propensity evidence' is relevantly defined in s 31A(1) to mean 'similar fact evidence' or 'evidence of the conduct of the accused person', or 'evidence of a tendency that the accused person has or had'. The word 'conduct' in this context refers, so far as is presently relevant, to the manner in which the accused person behaves or has behaved.[2] The words 'a tendency' in this context, so far as is presently relevant, refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.[3]
[2] The State of Western Australia v Jackson [2019] WASCA 118 [20].
[3] The State of Western Australia v Jackson [20].
The principles relevant to whether propensity evidence has significant probative value within the meaning of s 31A(2) were summarised by Beech JA in RMD v The State of Western Australia[4] as follows:
[4] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Mazza JA agreeing). Beech J's statement of the relevant principles was recently adopted in The State of Western Australia v Jackson [18].
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)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.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
As to the third of the requirements for admissibility, fair‑minded people are reasonable members of the general community who are not lawyers but who it must be assumed 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.[5]
[5] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] ‑ [49]; Preston v The State of Western Australia [2012] WASCA 64 [45]; DKA v The State of Western Australia [2017] WASCA 44 [30]; RMD v The State of Western Australia [49] ‑ [50].
In Dair v The State of Western Australia[6] Steytler P identified the three aspects of prejudice that may arise as a result of the admission of propensity evidence and which consequently may give rise to the risk of an unfair trial. The three aspects of prejudice identified by Steytler P are as follows:
1.The over strong tendency of the jury to believe that the accused is guilty of the charge merely because he is a person likely to do such acts;
2.The tendency of the jury to condemn, not because the accused is believed guilty of the offence charged, but because he has escaped punishment for other offences; and
3.The possibility that the jury will become confused or distracted as it concentrates on resolving whether the accused actually committed other offences.
[6] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [62] ‑ [67].
The first of the aspects of prejudice identified by Steytler P has also been put in terms of the risk that the jury will uncritically overvalue the propensity evidence and reason impermissibly that because an accused has committed other offences or has done (or has a reputation for doing) other discreditable things they must also have committed the charged offence.[7]
[7] Donaldson v The State of Western Australia[2005] WASCA 196; (2005) 31 WAR 122 [126] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [52], [59].
Steytler P also pointed out in Dair[8] that when assessing the risk of an unfair trial for the purposes of the hypothetical comparison provided for by s 31A(2)(b) 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.[9]
[8] Dair v The State of Western Australia [64].
[9] See also Preston [41]; DKA [31].
It can be accepted that a jury will accept and faithfully apply the directions of the trial judge until the contrary is demonstrated.[10] A direction against impermissible reasoning is likely to be accepted by the jury.[11]
[10] Mansell v The State of Western Australia[2009] WASCA 140 [49].
[11] The State of Western Australia v Osborne [2007] WASCA 183 [39].
Analysis
Is the proposed evidence propensity evidence?
The first question to be determined is whether the evidence of the prior offences is propensity evidence within the meaning of s 31A(1).
The State submits that the evidence of the prior offences is propensity evidence for two reasons. First, because the evidence of the prior offences demonstrates a tendency on the part of the accused to steal money from cash registers in commercial premises when he is in financial difficulty. Second, because the evidence of the prior offences is similar fact evidence in that the prior offences were committed in similar circumstances.
The accused does not accept that the evidence of the prior offences is similar fact evidence. However, he does not attempt to argue with any force that the evidence of the prior offences does not fall within the other limbs of the definition of 'propensity evidence' contained in s 31A(1).
I am satisfied that the evidence of the prior offences is propensity evidence within the meaning of s 31A(1). In my view the evidence is propensity evidence because:
1.it is evidence of the conduct of the accused, that is, evidence of the manner in which the accused has behaved; and
2.it is evidence of a tendency that the accused has to steal money from cash registers in commercial premises.
Does the evidence have significant probative value?
I turn to the second question for my determination, namely whether the evidence of the prior offences would, either by itself or having regard to other evidence to be adduced, have significant probative value.
The State submits, in essence, that the nature and extent of similarities between the accused's conduct the subject of the prior offences and the conduct the subject of the charged offence is such that the evidence of the prior offences is significantly probative of the fact in issue, namely whether it was the accused who committed the charged offence. The asserted similarities between the conduct the subject of the prior offences and the conduct the subject of the charged offence identified by the State are as follows:
1.During the commission of the prior offences and the charged offence money was stolen from a cash register in commercial premises;
2.During the commission of two of the prior offences (PE 36591/16 and PE 36593/16) and the commission of the charged offence the accused and the alleged offender respectively concealed their identity with items of clothing;
3.During the commission of two of the prior offences (PE 36591/16 and PE 36593/16) and the commission of the charged offence the accused and the alleged offender respectively apologised to the store attendant; and
4.The accused's disclosed motive for committing three of the prior offences (PE 34714/16, PE 34715/16 and PE 34716/16), namely his financial situation, is the same as the motive of the person who committed the charged offence as revealed by the person's statement that he was 'desperate'.
I am not satisfied that the similarities pointed to by the State, viewed individually and collectively, are such as to justify the conclusion that evidence of any one or more of the prior offences is significantly probative of the fact in issue, namely whether it was the accused who committed the charged offence. I am not so satisfied for the following two reasons.
First, three of the asserted similarities pointed to by the State are common to many armed robbery offences. Many armed robberies are committed on commercial premises and involve the taking of money from the cash register within the premises. Many armed robberies are committed because the offender is in financial difficulty. Many armed robberies involve the offender attempting to conceal their face and their identity generally by the use of various items of clothing including sunglasses. I note in this context that there is no particular similarity between the items of clothing and material that the accused used to conceal his identity in committing two of the prior offences and the clothing used by the person who committed the charged offence to conceal his identity. Nor is it suggested that the sunglasses used by the accused in committing the last of the prior offences were particularly similar in appearance to the sunglasses worn by the person who committed the charged offence. In short, there is nothing particularly unusual or distinctive about any of these three asserted similarities.
Second, there are some significant differences between the accused's conduct the subject of the prior offences and the conduct the subject of the charged offence. The conduct the subject of the charged offence involved a far greater degree of aggression, threat of violence and persistence than was exhibited by the accused in the commission of any of the prior offences. More specifically, the conduct the subject of the charged offence involved the following:
1.The offender jumping over the service counter;
2.The offender being armed with an offensive instrument, namely the syringe;
3.The offender producing the syringe, uncapping it in the presence of Mr Patel, and pointing it at Mr Patel in a threatening manner during the commission of the offence;
4.The offender demanding not only money from the cash register but also that Mr Patel open the shop safe; and
5.The offender, having obtained money from the cash register, proceeding to steal packets of cigarettes.
In my opinion, when the commonality to armed robberies of the three above referred to similarities is considered in conjunction with the significant differences between the accused's conduct in committing the prior offences and the conduct of the offender in committing the charged offence, it cannot be said that the evidence of any one or more of the prior offences would, either by itself or having regard to the evidence to be adduced, materially affect to a significant extent the assessment of the probability of the fact in issue, namely whether it was the accused who committed the charged offence.
In arriving at the above conclusion I have not overlooked the reliance placed by the State on the fact that the person who committed the charged offence, like the accused during the commission of two of the prior offences, apologised to the store attendant for his conduct. However, in light of the matters to which I have referred I do not consider that this conduct, even though it might be said to be a less common occurrence in the commission of stealing and robbery offences than the other similarities identified by the State, is sufficient to justify the conclusion that the evidence of the two prior offences or any of the other prior offences is significantly probative of the fact in issue. I note in this regard that this is not a case in which the State contends that the accused in committing the two prior offences and the offender in committing the charged offence used a particular phrase or particular wording in making the apology.
The charged offence is alleged to have been committed by the accused approximately 19 months after the commission of the last of the prior offences. However, for at least 12 months of this 19 month period the accused was serving a term of 2 years imprisonment with eligibility for parole imposed for the previously referred to offence of armed robbery of which he was convicted on 13 December 2016 (the commencement date of the sentence having been backdated to 29 June 2016). I have therefore not placed any reliance on the time lapse between the accused's commission of the prior offences and his alleged commission of the charged offence in concluding that the propensity evidence the subject of the application would not have significant probative value.
Probative value compared to risk of unfair trial
In light of my above expressed conclusion it is not strictly necessary for me to deal with the question whether the probative value of the evidence of the prior offences 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. However, for the purposes of completeness I will deal with this question briefly.
Given that the propensity evidence, if it was permitted to be adduced, would be that the accused had been convicted of the prior offences, and given that the material facts of the prior offences would be read or provided to the jury, the second and third possible aspects of prejudice identified by Steytler P in Dair would not arise in the accused's trial. The only aspect of prejudice identified by Steytler P which would be relevant in the present case would be the tendency of the jury to believe that the accused is guilty of the charged offence merely because he is a person likely to do such acts, or in other words, to uncritically overvalue the propensity evidence and reason impermissibly that because the accused committed the prior offences he must also have committed the charged offence.
There would, if the evidence of the prior offences was admitted, obviously be a risk that the jury would uncritically overvalue the probative effect of the evidence and reason impermissibly from the fact of the accused's commission of the prior offences alone that he was the person who committed the charged offence. The question is whether the risk of the jury engaging in this type of impermissible reasoning could, by an appropriate direction given by me, be reduced sufficiently so as to justify the conclusion that the probative value of the propensity evidence compared to the relevant risk 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.
Relevant to this question is whether the State's case that the accused was the person who committed the charged offence is so tenuous or weak that there would be a real risk that the jury would uncritically overvalue the evidence of the prior offences to shore up weaknesses in the State's case regardless of any direction given by me.
The accused submits that fair minded people would not think that the probative value of the evidence of the prior offences compared to the degree of risk of an unfair trial is such that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. In support of this submission the accused contends that the State’s case on the charged offence is a weak circumstantial case and points to the significant factual differences between the prior offences and the charged offence.
I have already referred to the evidence other than the evidence of the prior offences that the State intends to adduce and rely upon at the accused’s trial in support of its case that the accused was the offender. In light of this evidence viewed in its totality, I do not consider that it can be said that the State's case that the accused was the person who committed the charged offence is so tenuous or weak that there would, if the evidence of the prior offences was admitted, be a real risk that the jury would uncritically overvalue the evidence of the prior offences to shore up weaknesses in the State's case regardless of any direction given by me. In these circumstances, if I had come to the view that the evidence of the prior offences was significantly probative of the fact in issue, I would have concluded that the risk of admitting the evidence of the prior offences would be able to be adequately guarded against by the giving of an appropriate direction to the jury as to the purpose for which the evidence could be used. Such a direction would necessarily draw the jury's attention to the significant factual differences between the accused’s conduct in committing the prior offences and the conduct the subject of the charged offence. In short, if I had come to the view that the evidence of the prior offences was significantly probative of the fact in issue I would have concluded that the giving of appropriate directions to the jury would reduce the risk of an unfair trial to such an extent 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.
Conclusion
For the reasons I have stated I dismiss the State's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick5 SEPTEMBER 2019
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