The State of Western Australia v Wark

[2017] WASC 154

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WARK [2017] WASC 154

CORAM:   PRITCHARD J

HEARD:   22 MAY 2017

DELIVERED          :   7 JUNE 2017

FILE NO/S:   INS 370 of 2016

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

FRANCIS JOHN WARK
Respondent

Catchwords:

Evidence - Propensity and relationship evidence - Evidence Act 1906 (WA) s 31A - Meaning of propensity - Whether significant probative value - Whether risk of unfair trial outweighs public interest - Evidence of subsequent conviction - Evidence of prior statements by the accused

Criminal procedure - Trial by judge alone - Criminal Procedure Act 2004 (WA) s 118 - Pre-trial publicity - Where trial by judge alone in the interests of justice

Criminal procedure - Evidence - Criminal Procedure Act 2004 (WA) s 158 - Adducing witness statements of deceased witnesses

Legislation:

Criminal Procedure Act 2004 (WA), s 118, s 158, sch 3 cl 4, sch 3 cl 7
Evidence Act 1906 (WA), s 31A

Result:

Application to admit propensity evidence granted in part
Application for trial by judge alone granted
Application to rely on statements of dead witnesses granted

Category:    B

Representation:

Counsel:

Applicant:     Ms A Forrester SC

Respondent:     Mr D Ryan

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Chelmsford Legal

Cases referred to in judgment:

Arthurs v The State of Western Australia [2007] WASC 182

Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419

Chapman v Jansen (1990) 100 FLR 66

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

DKA v The State of Western Australia [2017] WASCA 44

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323

FB v The Queen [2011] NSWCCA 217

Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Hughes v The Queen [2015] NSWCCA 330

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

Mickelberg v The Queen [No 3] (1992) 8 WAR 236

Onekawa v The State of Western Australia [2012] WASCA 105

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347

R v Cox [1960] VR 665

RMD v The State of Western Australia [2017] WASCA 70

The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380

The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383

The State of Western Australia v Veskovich [2005] WADC 111

TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183

Table of Contents

(1) The s 31A application

(a) The evidence the subject of the s 31A application

(i)      Ms D's evidence
(ii)      Ms Woodford's evidence
(iii)    Mr Balchin's evidence

(b) The requirements of s 31A of the Evidence Act 1906 (WA)

(c)      The State's case against Mr Wark

(d) Whether Ms D's evidence is admissible as propensity evidence pursuant to s 31A of the Evidence Act

Whether Ms D's evidence constitutes evidence of the propensity for which the State contends
Whether Ms D's evidence would have significant probative value in the State's case that Mr Wark killed Ms Dodd, and that he intended to do so
Mr Wark's request for the earring as propensity evidence
Whether the requirement in s 31A(2)(b) is satisfied in relation to Ms D's evidence

(e)      Whether the Woodford evidence is admissible as propensity evidence

Whether the Woodford evidence is propensity evidence
Whether the requirements of s 31A(2) are satisfied in relation to the Woodford evidence

(f)      Whether the Balchin evidence is admissible as propensity evidence

(2) The s 118 application

(a) The requirements of s 118 of the Criminal Procedure Act 2004 (WA)

(b)      The basis for the application

(c)      The State's response to the application

(d)      The interests of justice in this case

(3) The s 158 application

1. PRITCHARD J:  These reasons deal with three pre-trial applications made in relation to the prosecution of Mr Wark for the wilful murder of Hayley Marie Stephenson (also known as Hayley Marie Dodd):

   (1)An application by the State to rely on certain evidence ‑ contained in witness statements of Ms Woodford, Mr Balchin and Ms D ‑ as propensity or relationship evidence, pursuant to s 31A of the Evidence Act 1906 (WA) (the s 31A application);

   (2)An application by Mr Wark for a trial by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (the s 118 application); and

   (3)An application by the State to lead evidence in the form of five witness statements prepared by witnesses who have since died, pursuant to s 158 of the Criminal Procedure Act 2004 (WA) together with cl 7 of sch 3 to that Act (the s 158 application).

2. For the reasons set out below, the s 31A application will be granted in part. The evidence of Ms D is admissible as propensity evidence, but the evidence of Ms Woodford and Mr Balchin is not admissible as propensity evidence. In addition, the s 118 application will be granted, so that there will be an order that Mr Wark's trial be conducted by judge alone. Finally, the s 158 application will be granted, so that the State will be permitted to rely on the witness statements of the five witnesses referred to in that application, who are deceased.

1. The s 31A application

1. In this section of my reasons, I deal with the following matters:

   (a)the evidence the subject of the s 31A application;

   (b)the requirements of s 31A of the Evidence Act 1906 (WA);

   (c)the State's case against Mr Wark;

   (d)whether the evidence of Mr Wark's conduct towards Ms D is admissible as propensity evidence pursuant to s 31A of the Evidence Act;

   (e)whether the evidence of Ms Woodford of statements made by Mr Wark is admissible as propensity evidence pursuant to s 31A of the Evidence Act; and

   (f)whether the evidence of Mr Balchin of statements made by Mr Wark is admissible as propensity evidence pursuant to s 31A of the Evidence Act.

(a) The evidence the subject of the s 31A application

In the s 31A application, the State seeks to adduce evidence of certain conduct of, and statements made by, Mr Wark, namely:

(i)evidence of Mr Wark's conduct towards Ms D in June 2007, which is described in a witness statement made by Ms D dated 2 June 2007, and a witness statement made by Ms D dated 28 November 2013 (PB 1568 ‑ 1588) (Ms D's evidence);

(ii)evidence of statements made by Mr Wark to Ms Lee‑Anne Woodford (the Woodford evidence);[1] and

(iii)evidence of statements made by Mr Wark to Mr John Balchin (the Balchin evidence).[2]

[1] PB 1522 & ff.

[2] PB 1564 & ff.

1. It is not necessary to set out the totality of the evidence the subject of the s 31A application, particularly Ms D's evidence. Rather, the salient features of that evidence are summarised below.

1. Ms D's evidence

1. Mr Wark's conduct towards Ms D resulted in Mr Wark being convicted in the District Court of Queensland, following his plea of guilty, of a number of offences, including one count of assault occasioning bodily harm whilst armed, one count of assault with intent to rape, one count of deprivation of liberty, five counts of rape, and five counts of sexual assault. 

2. Ms D's statement of 2 June 2007 was prepared for the purpose of the prosecution of Mr Wark for those offences.  That statement recounts in detail a sustained course of conduct by Mr Wark over several hours commencing shortly after midnight on 2 June 2007.  In summary, Ms D was walking home alone along a country road, and Mr Wark (whom she did not know) happened to drive past, pulled up in his car, and offered her a lift into a nearby town.  On the way they chatted, and she agreed to go back to his house.  After having a drink at his house, she indicated that she wanted to leave.  When she left his house, he proceeded to follow her and hit her twice on her head with a large piece of wood.  When she asked why he was doing this he replied 'this is rape'.  He then dragged her back into the house where he engaged in numerous incidents of sexual assault, during which he tied her wrists together with rope, tied her to a bed, and physically assaulted her.  The violent, denigrating and humiliating details of the assaults inflicted on Ms D need not be set out here.  In the course of that conduct, Mr Wark made Ms D take all her clothes off.  He later told her to take an earring out of her ear, and she gave it to him.  Later the same morning, Ms D managed to escape and ran to a nearby house. 

3. In 2013, Ms D provided a statement to the police investigating Ms Dodd's disappearance.  She referred to the incident where Mr Wark told her to take an earring out of her ear.  Ms D recalled that when Mr Wark told her to do so he told her 'I wanna keep it'.  She gave the earring to him but did not know what he did with it.  However, it was not amongst her property which was located at Mr Wark's house and returned to her by the police.

1. Ms Woodford's evidence

1. Ms Woodford's statement deals with contact she had with Mr Wark in 1994 or 1995 when she and her boyfriend were working in the Moora area.  During that time they met a man called Frank (who the State says was Mr Wark) in a social context, and visited his house in Badgingarra on five or six occasions, where they would drink and smoke marijuana.  She recalled that Frank's house was very run down, and had a large hole in the middle of the living room floor.  Ms Woodford says that on one occasion, she made a comment to Frank about looking in the hole to see what was there, to which Frank 'made comments along the lines of that I might end up down the hole'.  She also says that there were 'comments like "that's a good spot for women once you have finished with them"' and that 'Frank also said "if I put you in a hole in the ground nobody would be able to hear you"'. 

1. Mr Balchin's evidence

1. Mr Balchin's evidence was that he used to know a man called Frank (again, the State says that is Mr Wark) through his work.  Mr Balchin recalled having been to Frank's house in Badgingarra, and that Frank used to park five or six motorbikes in the kitchen area of the house. 

2. Mr Balchin recalled having a conversation with Frank, at Frank's house, just after Ms Dodd went missing, in which they discussed what might have happened to her.  Mr Balchin recalls that he asked Frank 'where do you think she'd be?' to which Frank replied 'well if it was me I'd throw her under here' and he pointed to the kitchen area where he used to park all his motorbikes.  Mr Balchin says that he 'didn't think [Frank] was joking but I thought he would be stupid if he did do something to [Ms Dodd] and put her there'.

(b) The requirements of s 31A of the Evidence Act 1906 (WA)

1. Section 31A of the Evidence Act provides:

   (1)In this section ‑

   propensity evidence means ‑

   (a)similar fact evidence or other evidence of the conduct of the accused person; or

   (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

   relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

   (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

   (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

2. Before propensity or relationship evidence is admissible, each of the requirements in s 31A(2)(a) and (b) must be satisfied.

3. Further, provided that the requirements of s 31A(2)(a) and (b) are met, propensity or relationship evidence may be admitted as part of the State's case, even if it is disputed by the accused.[3]

   [3] RMD v The State of Western Australia [2017] WASCA 70 [48] (Buss P).

4. The principles applicable to the requirement in s 31A(2)(a) ‑ whether evidence has a 'significant probative value' ‑ were summarised and reiterated by the Court of Appeal in DKA v The State of Western Australia[4] and in RMD v The State of Western Australia.[5]Those principles are set out below:

   [4] DKA v The State of Western Australia [2017] WASCA 44 [30], [35], [36], [37], [42], [43] (case references omitted).

   [5] RMD v The State of Western Australia [2017] WASCA 70 [44] ‑ [49] (Buss P), [185] (Beech J, Mazza JA agreeing) (case references omitted).

   (i)In order to assess whether propensity or relationship evidence has a 'significant probative value' the Court must begin by identifying the fact in issue to which the evidence is said to be relevant.

   (ii)Evidence will have a 'probative value' if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue.

   (iii)In order for the requirement in s 31A(2)(a) to be satisfied, the Court must reach the view that the propensity or relationship evidence would, either by itself or having regard to other evidence which is to be adduced, 'rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue'.[6]

   (iv)In order to have a 'significant' probative value, the evidence must be important or of consequence in the assessment of the probability of the existence of a fact in issue.

   (v)Whether the probative value of the evidence is 'significant' will depend upon the nature of the fact in issue to which it is said to be relevant, and the significance or importance which the propensity or relationship evidence has in proving that fact. 

   (vi)As s 31A(2)(a) itself makes clear, in assessing whether the propensity or relationship evidence would have a significant probative value, that evidence is not to be viewed in isolation. That assessment is to be made having regard to both the propensity or relationship evidence, and the other evidence to be adduced.

   (vii)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest, because it will ultimately be for the jury to decide whether the evidence is to be accepted, and if so, what weight to give to it.

   (viii)The question whether the propensity evidence has a significant probative value may depend on the degree of generality or specificity with which the propensity is identified.  If the propensity is identified at a high level of generality, that may be an obstacle to it having significant probative value, whereas the closer and more particular the similarity between the alleged propensity and the charged act or acts, the greater the likelihood that the propensity evidence will have significant probative value.

   (ix)However, even if the propensity is identified at a high level of generality, the evidence must nevertheless be examined in detail, in conjunction with other evidence to be adduced, to assess whether it is properly able to be characterised as having a significant probative value.  All the facts and circumstances alleged by other evidence must be considered in making that assessment.  The matters which must be examined include the nature, quality, extent and duration of the conduct the subject of the proposed propensity evidence, on the one hand, and the nature, quality, extent and duration of the conduct the subject of the charge(s), on the other, and the nature and extent of any rational connection between the conduct the subject of the proposed propensity evidence and the conduct the subject of the charge(s).

   [6] DKA v The State of Western Australia [2017] WASCA 44 [30].

5. Section 31A(2)(b) involves a comparison between the probative value of the propensity or relationship evidence and the degree of risk of an unfair trial if it is admitted. The risk of an unfair trial is the risk that the jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offence, simply because he or she has the propensity identified (for example, because he or she committed other offences) or simply because he or she has demonstrated a particular attitude towards a person or class of persons, rather than confining the use of the evidence to a process of dispassionate and logical reasoning.[7]  Other aspects of the potential prejudice which may arise from the admission of propensity or relationship evidence include the potential tendency that the jury may punish the accused for past misconduct by finding the accused guilty of the offence charged, and that the evidence may confuse or distract the jury from its task of resolving whether the accused person actually committed the conduct the subject of the charge.[8]

   [7] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127]; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413[63] (Steytler P).

   [8] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [63] (Steytler P).

6. The analysis which is required in relation to s 31A(2)(b) was discussed by the Court of Appeal in DKA.[9]The process of the analysis which must be undertaken was outlined by the Court as follows:

   (i)Consideration of the requirement in s 31A(2)(b) arises after the court has found that the evidence has a significant probative value. Section 31A(2)(b) then requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of that evidence in question.

   (ii)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. 

   (iii)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.  It is to be assumed that such fair-minded people will 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'.[10]

   (iv)That balancing exercise is a difficult one because 'it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fair‑minded person'.[11] 

(c)     The State's case against Mr Wark

[9] DKA v The State of Western Australia [2017] WASCA 44 [31], [32], citing Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [62] ‑ [67]; Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [50]; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [291]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

[10] DKA v State of Western Australia [2017] WASCA 44 [31].

[11] DKA v State of Western Australia [2017] WASCA 44 [32] citing Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [67]; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [39].

1. The State case was outlined in some detail in the State's submissions dated 5 May 2017.  I do not propose to repeat all of that detail here. 

1. The State's case is that on 29 July 1999, Ms Dodd was hitchhiking to visit a friend who lived on a farm on the North West Road between Badgingarra and Dandaragan.  She had been dropped off along North West Road between Badgingarra and Moora.  In July 1999, Mr Wark was living in a house nearby to that location.  He shared the house with another man, John McConnell. 

2. Ms Dodd was last seen between 11.00 am and 11.45 am at a location on the North West Road just east of Mr Wark's property.  Motorists who were driving along that part of North West Road shortly thereafter ‑ at about noon that day ‑ did not see her there.

3. The State's case is that on the morning of 29 July 1999, Mr Wark went into Moora to do some shopping.  He was driving a white Holden HQ utility (the ute), which was owned by Mr McConnell, who was at work.  Mr Wark had told friends he was going to drive to Perth later that day.  Mr Wark was seen in Moora by a number of people that day, including at the post office between 10.30 am and 11.00 am. 

4. Two witnesses saw Ms Dodd on the North West Road at about 11.40 am.  The same two witnesses say that at least 10 minutes later, east of Mungedar Road, they saw a white Holden 4WD utility.  The State says that that was the ute driven by Mr Wark, who was by that time on his way back to his house from Moora. 

5. The State has evidence that places Mr Wark at the Badgingarra roadhouse at about 1.30 pm.  (Later that afternoon, Mr Wark was injured in a motorcycle accident while riding to Perth, and was admitted to hospital, and was not discharged until 1 August 1999.) 

6. The State says that on the evening of 29 July 1999, Mr McConnell found the ute parked in a shed at his property.  That was unusual, because the ute would ordinarily be parked outside.  Mr McConnell found that the indicator lever had been broken off and was lying on the floor of the ute.

7. The State says that sometime between when witnesses saw the ute east of Mungedar Road (at about 11.50am) and 1.30pm, Mr Wark picked up Ms Dodd in the ute, that he killed her, and that he intended to do so.  The State says Mr Wark then disposed of Ms Dodd's body in an unknown location.  Ms Dodd's body has never been found.

8. Police seized the ute on 5 August 1999.  It was forensically examined.  No DNA or blood was recovered from swabs taken from the ute, nor from a car seat cover which was seized from the ute, but a hair was found in the ute.  In addition, the car seat cover was subsequently examined, at which point an earring was found to be caught up in the fabric.  The State says that that earring matches a drawing, made by a friend of Ms Dodd's, of earrings which Ms Dodd was believed to have been wearing at the time of her disappearance.  The State says that the hook on the earring was damaged.  No DNA was recovered from the earring.

9. The hair which was recovered from the ute was forensically examined and produced a mitochondrial profile which the State says was consistent with Ms Dodd and her mother.  The opinion of an expert witness the State proposes to call is that that result provides 'moderate support' for the conclusion that the sample originated from Ms Dodd or someone in her maternal line.  In addition, the sample was also subject to nuclear DNA testing.  Another expert on whose evidence the State relies says that the result of that testing provides 'extremely strong support' for the conclusion that the majority of the DNA within the sample originated from Ms Dodd.

10. Mr Wark told police that he heard about Ms Dodd's disappearance while he was in hospital after his motorcycle accident.  After he was released from hospital, he rang police, and subsequently provided a witness statement to them.  He told police that at about 9.30 am he drove the ute into Moora (a 30 to 45‑minute drive) to do some shopping.  He said he did not see anyone on the road but acknowledged that if he had seen a hitchhiker, he would have picked them up.  He told the police that after going to the post office, he went to the supermarket and to the bakery.  He told them he was 'pretty sure' that it was after 12.00 pm when he went into the bakery.  He said he then drove back to his home, which he said would take no longer than 45 minutes, and arrived home at about 1pm.  He denied seeing any hitchhikers along the way.  He said he then unpacked his shopping, and left for Perth, riding his motorcycle, at about 1.30 pm. 

11. In a subsequent interview with police, Mr Wark denied that he had anything to do with Ms Dodd's disappearance.

12. The State's case is a wholly circumstantial one.  Given Ms Dodd has disappeared, and her body has not been found, the State needs to prove beyond a reasonable doubt that it was Mr Wark who killed Ms Dodd, and that he intended to do so. 

13. One plank of Mr Wark's defence is that he was not on the North West Road when the State says he was, nor was he there within any time frame in which it would have been possible for him to pick up Ms Dodd, kill her, dispose of her body, get home, get his motorcycle and get to the Badgingarra roadhouse by 1.30 pm.  Mr Wark says that the evidence given by the witnesses who saw a white utility on North West Road is not reliable, as their descriptions did not match the ute being driven by Mr Wark, and in so far as they described it as a 'farm ute' it would hardly be surprising to see a vehicle of that description in the rural area where they were.[12] 

    [12] Defence submissions [54(a) ‑ (c)].

14. It appears that Mr Wark will also rely on other evidence which suggests that he was in Moora until some time after 12.00 pm.[13]  As I have mentioned, Mr Wark told the police that he was in the bakery at Moora at about noon.  The State does not have evidence as to the specific time when Mr Wark was in the bakery.  Counsel for Mr Wark submitted that there is also evidence that Mr Wark went into the butcher in Moora between 12.00 pm and 1.00 pm, and that he was in the shop for about 10 to 15 minutes.  Counsel for Mr Wark submitted that this evidence corroborates Mr Wark's evidence that he did not leave Moora until after 12.00 noon.  As it would take 30 to 40 minutes to drive back to Badgingarra, counsel for Mr Wark says that acceptance of this evidence will mean that Mr Wark could not have been driving the white utility that was seen by witnesses on North West Road at around 11.50 am.[14]

    [13] Defence submissions [54(d) ‑ (e)].

    [14] Defence submissions [54(f)].

15. Clearly, any evidence which is relevant to establishing whether Mr Wark was on the North West Road at 11.50 am or thereafter will be highly probative to the State's case that it was Mr Wark who was responsible for Ms Dodd's disappearance and death. 

16. It is also apparent that any evidence which links Ms Dodd to the ute will be highly probative in proving that Mr Wark killed her.  I have already mentioned the earring found in the ute.  Counsel for Mr Wark submitted that that evidence could not be conclusively linked to Ms Dodd, as there was no DNA found on it, and earrings of the same description were sold in the area.  It appears that Mr Wark will also challenge the evidence that the earring came from the ute, on the basis that there is a lack of continuity in the State's carriage of that evidence.

17. Finally, it appears likely that Mr Wark will challenge the State's evidence concerning the DNA tests on the hair found in the ute.  Mr Wark's case is that the DNA evidence is flawed and should not be accepted.[15] 

(d) Whether Ms D's evidence is admissible as propensity evidence pursuant to s 31A of the Evidence Act

[15] Defence submissions [52].

1. Counsel for the State submitted that Ms D's evidence was evidence of propensity of two kinds.  First, she submitted that that evidence demonstrates that Mr Wark 'has a propensity to pick up women from the side of the road, offer them a lift under a pretext, and to subsequently subject them to violent, sexually motivated, assaults'.[16]  Secondly, she submitted that within that context, Mr Wark 'has a particular propensity to seek an earring as a trophy of his conduct'.[17] The State says that the requirements of s 31A(2) are satisfied in relation to Ms D's evidence.

   [16] State's submissions [50].

   [17] State's submissions [50].

2. Mr Wark says that Ms D's evidence does not constitute evidence of the propensity for which the State contends, and that that evidence would not have a significant probative value in the State's case that Mr Wark killed Ms Dodd, with the intent to do so.

Whether Ms D's evidence constitutes evidence of the propensity for which the State contends

1. Counsel for Mr Wark submitted that Ms D's evidence was not propensity evidence.  He submitted Ms D's evidence did not disclose a tendency by Mr Wark to engage in a unique or distinctive course of conduct, because picking up a female who is walking along the road or hitchhiking is not, of itself, a unique or distinctive course of conduct.[18] That submission raises for consideration the meaning of 'propensity evidence' in s 31A(1), and whether Ms D's evidence can properly be described as evidence of that kind.

   [18] Defence submissions [43].

2. There is little authority in relation to what it is that is contemplated by the definition of 'propensity evidence' in s 31A, and the meaning of the term 'propensity evidence' in s 31A(1) was not the subject of any detailed analysis in the submissions of either counsel. Although it is not necessary to engage in a lengthy analysis for present purposes, it is appropriate to explain why in my view Ms D's evidence clearly falls within the definition of 'propensity evidence' in s 31A(1) and is evidence of the propensity for which the State contends.

3. In construing the definition of 'propensity evidence' in s 31A(1) it is necessary to have regard to the meaning of the words used, within their legislative context, which includes the legislative history and the purpose of the provision.[19]

   [19] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ)

4. The starting point is that the definition of 'propensity evidence' does not describe the nature of that evidence, but merely defines that term by reference to other kinds of evidence: similar fact evidence, evidence of the conduct of the accused person, evidence of the character or reputation of the accused person, and evidence of a tendency that the accused person has or had. However, nothing in the definition of 'propensity evidence' conveys why it is that, for example, evidence of a tendency that the accused person has or had would have any relevance to proving a charge against an accused person. Accordingly, although the term 'propensity evidence' is defined in s 31A(1) by reference to various other kinds of evidence, in order to ascertain what evidence falls within the description of propensity evidence in s 31A(1), it is necessary to also bear in mind the meaning of the term 'propensity'.

5. The ordinary meaning of the word 'propensity' is 'a natural or habitual inclination or tendency'[20] and 'a predisposition or inclination to, towards, or for a particular action, habit, quality, etc.; a tendency to do something'.[21]  'Propensity' evidence is thus evidence which shows that a person has a natural or habitual inclination, or tendency, to do something, or to behave in a particular way, or a predisposition or inclination towards a particular action, habit or quality. 

   [20] Macquarie Dictionary Online.

   [21] Oxford English Dictionary Online.

6. The next step in understanding what is propensity evidence in s 31A is to notice that s 31A(1) refers to forms of propensity evidence which are well recognised at common law, such as similar fact evidence and tendency evidence. At common law, propensity evidence is evidence of the character, or of the conduct or misconduct, of the accused on other occasions apart from that which is the subject of the charge, and which is led by the prosecution to show that the accused had a propensity (that is, an inclination or tendency) to commit crime or crime of a particular kind, or alternatively which is led because the evidence is capable of supporting an inference that the accused is the sort of person likely to have committed the crime charged.[22]  Propensity evidence can take a variety of forms, including similar fact evidence, relationship evidence, identity evidence[23] and tendency evidence. 

   [22] Heydon J D, Cross on Evidence (10th ed, 2015) [21010].

   [23] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 464-5 (Mason CJ, Deane & Dawson JJ).

7. Propensity evidence must, of course, be relevant to establishing that an accused engaged in conduct the subject of the charge before any question will arise as to whether it should be admitted.  So, for example, similar fact evidence ‑ that is, evidence of a striking similarity between evidence of the accused's criminal conduct, or misconduct, on another occasion, and the conduct the subject of the charge ‑ is evidence which is relevant to whether an accused committed the offence charged because of the objective improbability that there is any reasonable explanation for those similarities other than the inculpation of the accused in the offence charged.[24]  Similarly, tendency evidence ‑ that is, evidence which shows that the accused had a tendency to behave in a certain way in a particular situation ‑ is relevant to whether an accused engaged in the conduct the subject of the charge because of the 'inferential reasoning that people behave consistently in similar situations'.[25]  Consequently, evidence that an accused had a particular tendency can be used as a 'stepping stone'[26] in a chain of reasoning to support the drawing of an inference, namely that the accused was more likely to act in a particular way, or to have had a relevant state of mind, on the particular occasion that is the subject of the charge.[27] 

   [24] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 294 (Mason CJ, Wilson & Gaudron JJ).

   [25] FB v The Queen [2011] NSWCCA 217 [23] (Whealy JA, Buddin & Harrison JJ agreeing); Hughes v The Queen [2015] NSWCCA 330 [161] (the Court).

   [26] Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323 [359] (the Court); Hughes v The Queen [2015] NSWCCA 330 [160] (the Court).

   [27] Gardiner v The Queen [2006] NSWCCA 190; (2006) 162 A Crim R 233 [124] (Simpson J); Hughes v The Queen [2015] NSWCCA 330 [160] (the Court).

8. The content of the definition of 'propensity evidence' in s 31A(1) thus appears to reflect all of the forms of propensity evidence which are well recognised at common law, other than 'relationship evidence' which is separately defined in s 31A(1). That is hardly surprising, because the rationale for the inclusion of s 31A in the Evidence Act was to give the courts greater capacity to admit propensity and relationship evidence than they had had at common law.[28] 

   [28] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [54] (Steytler P), [179] (Miller JA).

9. However, the definition of 'propensity evidence' in s 31A(1) appears to be broad enough to encompass evidence which would not necessarily have fallen within one of those categories of propensity evidence which were well recognised at common law. That is so because the definition of propensity evidence includes 'other evidence of the conduct of the accused person'. Those are extremely broad words. It is clear that such 'other evidence' will be evidence which would not fall within the other forms of propensity evidence referred to in the definition of 'propensity evidence', or within the definition of 'relationship evidence'.[29] And clearly the words 'other evidence of the conduct of the accused person' cannot simply refer to evidence of the conduct of the accused person which is directly relevant to establishing that the accused committed the alleged offence, because that evidence would be admissible in the absence of s 31A. Accordingly, having regard to that legislative context, the words 'other evidence of the conduct of the accused person' must be construed as any evidence of the conduct of the accused person which demonstrates, or is capable of demonstrating the accused's propensity – that is, an inclination to commit crime, or crime of a particular kind, or an inclination to behave in a particular way - which is capable of supporting an inference that the accused is the person, or the sort of person, likely to have committed the alleged offence.

   [29] Cf Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [48].

10. The definition of 'propensity evidence' in s 31A(1) is thus very broad in its scope. Of course, that does not mean that any evidence falling within that description is admissible evidence. Such evidence is only admissible if it meets the requirements set out in s 31A(2). For that reason, debate about whether particular evidence constitutes 'propensity evidence' or 'relationship evidence' under s 31A(1) may not ordinarily require too much attention in and of itself, because similar issues will arise in assessing whether the evidence has significant probative value under s 31A(2)(a).

11. Two other points should be borne in mind. First, the categories of 'propensity evidence' and 'relationship evidence' as defined in s 31A(1) are not mutually exclusive. That much is clear from the fact that the definition of both terms encompasses 'evidence of the conduct of the accused person'. And it has been recognised that particular evidence may constitute both propensity evidence and relationship evidence.[30]  Secondly, however, the categories of propensity evidence and relationship evidence are not entirely co-extensive, because while propensity may be demonstrated by a single episode of conduct,[31] or more than one episode of conduct, 'relationship evidence' is defined in s 31A(1) to mean evidence of the attitude or conduct of the accused towards another person or persons 'over a period of time'.

    [30] RMD v The State of Western Australia [2017] WASCA 70 [44] (Buss P).

    [31] Onekawa v The State of Western Australia [2012] WASCA 105 [55] (Buss JA, as his Honour then was).

12. In my view, Ms D's evidence is clearly evidence of the kind described in the definition of 'propensity evidence' in s 31A(1). It is conduct of Mr Wark, and it is conduct which is capable of demonstrating a particular propensity on his part, namely to commit a crime or crimes of violence against a woman, in circumstances where he has given a lift to that woman, who was walking or hitchhiking on a road in an isolated rural area.

13. Counsel for Mr Wark submitted that Ms D's evidence was not propensity evidence, in that it did not disclose a tendency by Mr Wark to engage in a unique or distinctive course of conduct, because 'picking up a female who is walking along a road or hitchhiking is not, of itself, a unique or distinctive course of conduct'.[32] I am unable to accept that submission, for two reasons. First, the submission does not accurately reflect the propensity which the State says is demonstrated by Ms D's evidence. That propensity is not said to be a propensity merely to give lifts to female hitchhikers. The State says that Ms D's evidence demonstrates a propensity to commit crimes of violence against a woman, in particular circumstances, namely where the woman has been hitchhiking along an isolated road, and to whom Mr Wark has given a lift. Secondly, implicit in the submission is the notion that in order for a single occasion of conduct to constitute evidence that a person has a tendency to behave in a particular way, the conduct must be unique or distinctive, and that Ms D's evidence was not of that character. In my view, Ms D's evidence is evidence of conduct which is so far outside the realms of ordinary human behaviour, and outside the bounds of behaviour which is within the law, that that evidence is capable of demonstrating an inclination on Mr Wark's part to engage in violent crimes against women in those circumstances, and of demonstrating that Mr Wark is the sort of person likely to have committed an offence of that kind. In my view, Ms D's evidence is either evidence of a tendency on Mr Wark's part, or alternatively it is 'other evidence of the conduct' of Mr Wark which shows an inclination to behave in a particular way, but in either event, it is 'propensity evidence' within the scope of s 31A(1).

    [32] Defence submissions [43].

1. Counsel for Mr Wark also submitted that Ms D's evidence that Mr Wark asked for one of Ms D's earrings was not evidence of a propensity to seek an earring as a trophy of his conduct. I do not accept that submission. Ms D's evidence was that Mr Wark told her to take the earring out of her ear as he wanted to keep it. In my view, the evidence of Mr Wark's conduct in this respect is so distinct and unusual that even that one instance of such conduct is capable of constituting evidence that Mr Wark has a tendency to keep a trophy of his violent, sexually motivated, conduct towards women. Alternatively, Ms D's evidence is evidence of 'other conduct' on Mr Wark's part which is capable of supporting the inference that Mr Wark would behave in a similar way in a similar situation. Accordingly, that part of Ms D's evidence constitutes propensity evidence within s 31A(1).

Whether Ms D's evidence would have significant probative value in the State's case that Mr Wark killed Ms Dodd, and that he intended to do so

1. In considering the requirements of s 31A(2)(a) of the Evidence Act, it is necessary to start by identifying the fact in issue to which Ms D's evidence is relevant.  Ms D's evidence is clearly relevant to the question whether it was Mr Wark who killed Ms Dodd.  It will also be relevant to the question whether he intended to do so. 

2. Ms D's evidence is capable of rationally affecting the assessment of the probability that Mr Wark killed Ms Dodd, and of whether he intended to do so.  Clearly the State's case will depend on whether it can establish that Mr Wark had finished his shopping in Moora and was on the North West Road in the vicinity of where Ms Dodd was last seen within a timeframe within which it was possible for him to pick her up, kill her, and dispose of her body, leave the ute at his house, get his motorcycle, and ride to the Badgingarra roadhouse to arrive by 1.30 pm.  In addition or in the alternative, the State will need to establish that Ms Dodd was in the ute driven by Mr Wark.  If the State is unable to establish either of those planks of its case, then Ms D's evidence will be of no assistance to it.  If, however, the State can establish that Mr Wark was on North West Road within such a timeframe, or that Ms Dodd was in the ute, then the fact that he is a person with an inclination to pick up women who are hitchhiking, and then to violently assault them, with a sexual motivation, will clearly be an important consideration in assessing the probability that it was he who murdered Ms Dodd and that he intended to do so. 

3. Of course, Ms D's evidence is not the only evidence on which the State relies.  On the State's case, other evidence ‑ for example, the evidence of the witnesses who saw a white ute on the North West Road at 11.50 am, the DNA evidence, the discovery of the earring in the car seat cover ‑ will also be important considerations in determining whether Mr Wark killed Ms Dodd and intended to do so.  All of these pieces of evidence will need to be assessed individually and collectively, but there is no doubt that Ms D's evidence would be an important consideration in the overall assessment of the probability that Mr Wark killed Ms Dodd, and that he intended to do so.  Further, if any of that other evidence is held to be inadmissible, or is given little or no weight, Ms D's evidence may be very significant in the assessment of the probability that Mr Wark killed Ms Dodd, and that he intended to do so.

4. Counsel for Mr Wark submitted that Ms D's evidence could not rationally affect the assessment of the probability of whether it was Mr Wark who killed Ms Dodd because there were considerable differences between Mr Wark's conduct towards Ms D, and the circumstances of Ms Dodd's disappearance.  These were said to be that Mr Wark's conduct towards Ms D was directed towards her sexual assault, that Mr Wark took Ms D back to his house, that Mr Wark deprived Ms D of her liberty for an extended period, and that Ms D was much older than Ms Dodd.  In contrast, he pointed out that in this case there was no evidence that Ms Dodd was sexually assaulted, or was at Mr Wark's house, on the day she disappeared, that clearly the State's case does not involve Ms Dodd being deprived of her liberty for an extended period, and finally, that Ms Dodd's petite build was such that she looked much younger than her age (and thus much younger than Ms D was).  Counsel for Mr Wark also submitted that Mr Wark formed the intention to rape Ms D only after she refused to stay the night with him, and that as the circumstances in which Ms Dodd was killed were not known, there was nothing to suggest that her death involved similar circumstances to Ms D's evidence.  Further, counsel for Mr Wark submitted that the conduct the subject of Ms D's evidence occurred in the middle of the night, whereas Ms Dodd disappeared in the middle of the day, and that there was evidence to suggest that Mr Wark had been drinking before he committed the offences against Ms D, whereas there was no evidence that Mr Wark was intoxicated by alcohol on 29 July 1999. 

5. I am unable to accept these submissions.  It is not necessary that propensity evidence be identical to the circumstances of the charged conduct before it will have a significant probative value.  While not all of the circumstances surrounding Mr Wark's conduct towards Ms D are similar to the circumstances the State alleges in relation to Ms Dodd's murder, Ms D's evidence nevertheless bears some significant similarities to the disappearance of Ms Dodd.  Ms D was a woman walking along a road, alone, in an isolated rural area, who was picked up by Mr Wark and subsequently violently assaulted and sexually assaulted.  Ms Dodd was a woman walking along a road, alone, in a rural area, and on the State's case was picked up by a person who subsequently killed her.  In my view, the differences identified by counsel for Mr Wark are not such as to render Ms D's evidence unimportant, or of no consequence, in assessing the probability that Mr Wark gave Ms Dodd a lift, and subsequently killed her. 

6. Counsel for Mr Wark submitted that Ms D's evidence could not have significant probative value in this case because the conduct of Mr Wark which was disclosed by Ms D's evidence was properly characterised as conduct of a sexual nature, and that the violence to which Ms D was subjected was sexual violence.  I am unable to accept that submission.  It is true that it is not part of the State's case that Mr Wark sexually assaulted Ms Dodd.  All that the State says is that Ms Dodd was unlawfully killed, that Mr Wark killed her, and that he killed her with the intention of doing so.  To that end, the State says that Mr Wark must have violently assaulted Ms Dodd and brought about her death.[33]  Evidence that Mr Wark had a tendency to engage in violent assaults on women hitchhikers to whom he had given a lift will clearly be important, or of consequence, in assessing the probability that Mr Wark violently assaulted Ms Dodd and killed her. 

   [33] ts 66.

7. To say that Mr Wark's conduct towards Ms D was directed solely to her sexual assault is not, in my view, a fair characterisation of the totality of his conduct.  The conduct in which Mr Wark engaged with respect to Ms D was committed over the course of several hours.  It involved quite discrete and very deliberate acts of violence, which were engaged in prior to the sexual assaults and associated violence inflicted on Ms D.  Indeed, quite apart from the sexual offences of which he was convicted, Mr Wark was convicted of one count of assault occasioning bodily harm while armed, arising from his conduct towards Ms D.  Mr Wark's violent assault on Ms D, with a piece of wood, before he commenced the series of sexual assaults on her, is evidence that demonstrates that Mr Wark is a person who has an inclination to violently assault women.  The fact that Mr Wark demonstrated such an inclination in relation to Ms D is clearly of consequence in assessing the probability that Mr Wark engaged in an act or acts of violence with respect to Ms Dodd which brought about her death, irrespective of whether that violence was engaged in with any sexual motive. 

8. Counsel for Mr Wark also submitted that Ms D's evidence could not rationally affect the assessment of the probability of whether Mr Wark intended to kill Ms Dodd because Mr Wark's conduct towards Ms D was inconsistent with an intention to kill her.  I do not accept that submission.  Ms D's evidence does not demonstrate that Mr Wark has an inclination to pick up female hitchhikers, before violently assaulting them, and then releasing them.  Ms D was not released by Mr Wark, but escaped. 

9. Counsel for Mr Wark also submitted that Ms D's evidence could not be said to have significant probative value in assessing whether Mr Wark murdered Ms Dodd because there was a significant lapse of time between the alleged wilful murder of Ms Dodd on 29 July 1999, and the offences committed against Ms D (in June 2007).  I am unable to accept that submission.  While the lapse of time between the events the subject of proposed propensity evidence, and the alleged conduct the subject of a charge, will be relevant to assessing the probative value of that propensity evidence, it will not necessarily be determinative of that assessment, particularly as the significance of the proposed propensity evidence falls to be considered in the context of all of the circumstances of the case.  If there are strikingly similar characteristics between the conduct the subject of the proposed propensity evidence and that of the alleged offence, the lapse of a significant period of time will be less significant, whereas if the connection between the conduct is more tenuous, a lapse of a significant period will attain a greater significance.[34]  In my view, there are strikingly similar characteristics between the conduct of Mr Wark which is disclosed by Ms D's evidence, and the circumstances which, on the State's case, surrounded her murder.  Consequently, the lapse of time between Ms Dodd's death and the conduct the subject of Ms D's evidence does not diminish the probative value of Ms D's evidence.  That is all the more so given that the conduct the subject of Ms D's evidence ‑ serious violence and sexual assaults ‑ is of a kind that could not be frequently engaged in by a person without the risk of apprehension by the authorities.  In that context, a lengthy gap between the occurrence of the conduct the subject of propensity evidence, and an alleged offence, would hardly be surprising.

   [34] Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 [33] (Martin CJ, Buss & Mazza JJA agreeing).

10. Counsel for Mr Wark submitted that there is evidence that at the time of Ms Dodd's disappearance, there were a large number of men in the Badgingarra and Moora area who had been convicted of sexual offences, particularly child sexual offences, or who had a history of violent behaviour towards women.[35]  He therefore submitted that evidence that demonstrated that Mr Wark had a tendency to be sexually violent towards women, or had a sexually violent attitude, could not rationally affect the assessment of whether he killed Ms Dodd.  I am unable to accept that submission.  Ms D's evidence is not said to be evidence simply of Mr Wark's tendency to be sexually violent towards women.  It is evidence of a much more particular propensity than that.  Further, to say that there were other persons in the area with a propensity to engage in violence, sexual violence, or sexual assault, towards children or women, cannot mean that Ms D's evidence is not rationally capable of affecting the assessment of the probability that Mr Wark killed Ms Dodd.  In this respect, Ms D's evidence must be considered in conjunction with all of the other evidence which the State intends to adduce, which it says will demonstrate that it was Mr Wark who had the opportunity to commit the offence.  Considered in conjunction with evidence that, of all those persons who might have been in the area at the time when Ms Dodd went missing, it was Mr Wark who had the opportunity to commit Ms Dodd's murder, evidence that he had a propensity to pick up a woman walking along the road and to engage in violent acts against her for a sexual purpose, will be highly important in assessing the probability that it was Mr Wark who picked up Ms Dodd and murdered her.

Mr Wark's request for the earring as propensity evidence

[35] Defence submissions [44].

1. In relation to Ms D's evidence that Mr Wark requested an earring from her, counsel for Mr Wark sought to highlight some weaknesses in that evidence, namely that Ms D did not give detailed evidence about that matter in her original statement to the police. No weight can be attached to those submissions for present purposes. As I have noted above, in assessing propensity evidence under s 31A(2), the evidence must be taken at its highest from the perspective of the prosecution. Whether it is accepted, and what weight is given to it, will be a matter for the jury (or trial judge).

2. Counsel for Mr Wark also submitted that this aspect of Ms D's evidence could not be probative because of deficiencies in the State's evidence in relation to the earring found in the ute. Those deficiencies appear to be directed to whether the State will be permitted to adduce evidence that the earring was in the ute and whether the State can establish that the earring which was found belonged to Ms Dodd. If the evidence of the earring found in the ute is inadmissible, then clearly Ms D's evidence in relation to the earring will not be probative of anything. However, s 31A(2)(a) requires the Court to assess the propensity evidence having regard to the other evidence which is to be adduced. Accordingly, in considering a s 31A application made at this stage, it is necessary to consider the prosecution case in its totality, and thus to assume that the evidence of the earring in the ute will be admissible.

3. The weight to be attached to the evidence of the earring located in the ute will be a matter for the jury (or the trial judge).  If that evidence is regarded by the jury (or the trial judge) as evidence which assists in establishing that Ms Dodd was in the ute at some stage, then the fact that Mr Wark has a propensity to keep an earring as a trophy of his violent conduct towards women will clearly be of importance in assessing the probability not only that it was Mr Wark who picked up Ms Dodd in the ute, but also that he killed her. 

4. Counsel for Mr Wark also submitted that the fact that the earring was found in the ute was inconsistent with any propensity to take an earring as a trophy.  Again, that is a matter for the jury (or trial judge) to assess in determining the weight to be given to Ms D's evidence, but it does not mean that Ms D's evidence concerning the earring would not be important or of consequence in assessing the probability that Mr Wark picked up Ms Dodd in the ute and subsequently killed her. 

5. In my view, Ms D's evidence meets the requirements of s 31A(2)(a) of the Evidence Act.

Whether the requirement in s 31A(2)(b) is satisfied in relation to Ms D's evidence

1. I turn to consider whether Ms D's evidence meets the requirements of s 31A(2)(b) of the Evidence Act. 

2. Counsel for Mr Wark accepted that if the Court found that the trial should be before a judge alone, that would mitigate against the risk of an unfair trial if the propensity evidence were admitted.  Clearly, that is so. 

3. Given I have found that the trial in this case should be before a judge alone, which will ameliorate the risk of an unfair trial which might otherwise arise by virtue of the admission of Ms D's evidence as propensity evidence, I am satisfied that the probative value of Ms D's evidence is such that fair‑minded people would think that the public interest in adducing all relevant evidence, including that evidence, warrants the admission of Ms D's evidence.

(e)     Whether the Woodford evidence is admissible as propensity evidence

1. Counsel for the State submitted that Ms Woodford's evidence was admissible at common law as circumstantial evidence.[36] However, the State also seeks that that evidence be admitted as propensity evidence, pursuant to s 31A of the Evidence Act. 

   [36] State's submissions [51].

2. For the reasons which follow, I am not persuaded that Ms Woodford's evidence is propensity evidence within s 31A(1), or that it meets the requirements of s 31A(2)(a) of the Evidence Act.  Consequently the evidence should not be admitted as propensity evidence. 

Whether the Woodford evidence is propensity evidence

1. Counsel for the State submitted that Ms Woodford's evidence is propensity evidence because it 'contributes' to the evidence of Mr Wark's propensity to violence towards women.[37]  She submitted that it demonstrated that Mr Wark 'has, and has long had, a propensity to contemplate violence against women'.[38] In contrast, some of the submissions made by counsel for Mr Wark contended that the evidence the State sought to adduce was not 'propensity evidence' for the purposes of s 31A.

   [37] State's submissions [51].

   [38] State's submissions [58].

2. Having regard to the matters discussed at [39] ‑ [47] above, I am not persuaded that the Woodford evidence constitutes propensity evidence, within s 31A(1), in that I am not persuaded that the remarks made by Mr Wark constitute evidence of a predisposition or inclination on his part to engage in violence towards women. That is because the context in which Mr Wark's statements were made was such that I am not satisfied that they can be said, of themselves, to indicate that Mr Wark contemplated actually engaging in violence against women. To some extent, that is due to the fact that Ms Woodford's evidence in relation to the precise circumstances in which the statements were made is quite vague. It appears that Mr Wark's statements were made in a social context, in which both Mr Wark and Ms Woodford were likely to have been drinking and smoking cannabis, Mr Wark's remarks were made in the presence of other people, the conversation between Ms Woodford and Mr Wark was in the nature of banter or repartée, Ms Woodford herself acknowledged that Mr Wark's remarks were said in such a way as to '[make] it sound like black humour' and she also acknowledged that her boyfriend was 'laughing like an idiot when Frank was saying these things'. Those circumstances give rise to a considerable degree of ambiguity about what was really contemplated by Mr Wark's remarks, and raise real doubt that those remarks were indicative of any serious or genuine intent to engage in violence towards women.

3. Furthermore, although it is the case that propensity can be demonstrated by a single episode of conduct, I am not persuaded that that is so in this case.  It might be said that Mr Wark's remarks demonstrate an inclination to make offensive or deeply disrespectful remarks to women, or a propensity for attempting humour which is in extremely poor taste.  However, in light of the context in which Mr Wark's remarks were made, I am not persuaded that they are sufficiently unambiguous to demonstrate a propensity to contemplate actually engaging in violence against women.  Common human experience tells us that people often make off-hand remarks in a social context without intending that those remarks reflect their genuinely held views, or any intention to engage in particular conduct. 

4. It appeared that the State's position may also have been that the Woodford evidence could be characterised as 'relationship evidence' for the purposes of s 31A(1).[39] I do not consider that the Woodford evidence constitutes relationship evidence either. For the reasons set out above, the ambiguity in the Woodford evidence is such that it cannot be said that the Woodford evidence demonstrates that Mr Wark has a particular attitude of intending to actually engage in violence towards women. Furthermore, the Woodford evidence is not evidence of an attitude of Mr Wark towards women which has manifested 'over a period of time', as is required by the definition of 'relationship evidence' in s 31A(1). Ms Woodford's evidence concerns a single conversation she had with Mr Wark.

Whether the requirements of s 31A(2) are satisfied in relation to the Woodford evidence

[39] State's submissions [51], [58].

1. The State's position is that the Woodford evidence is relevant to establishing that Mr Wark was the person who killed Ms Dodd, and is also relevant to establishing that he intended to do so.  Even if the Woodford evidence can be said to constitute propensity evidence, I am not persuaded that it can be said that that evidence could rationally affect the assessment of the probability that Mr Wark picked up Ms Dodd as she walked along the road, and then killed her, much less that the Woodford evidence would be of importance or of consequence in that assessment, for the following reasons.

2. First, the ambiguity in the meaning of Mr Wark's remarks, which arises from the context in which those remarks were made, is such that in my view, no jury (or trial judge) would consider that those remarks could properly be given any weight as a serious or genuine indication that Mr Wark contemplated doing actual violence to women. 

3. Secondly, the propensity which the Woodford evidence is said to demonstrate is expressed at an extremely high level of generality, namely that Mr Wark has a propensity to contemplate violence against women generally. Expressed in that very general way, such a propensity has little in the way of similar characteristics to link it to the circumstances of Ms Dodd's disappearance.  Furthermore, the Woodford evidence concerns statements made by Mr Wark in either late 1994 or 1995, over four years before Ms Dodd disappeared.  The fact that Mr Wark made the remarks in question on a single occasion over four years before Ms Dodd went missing, also supports the conclusion that Mr Wark's remarks would not be a consideration of importance or consequence in assessing the probability that Mr Wark picked up Ms Dodd at some point along the North West Road, and subsequently killed her. 

4. The State submitted that the evidence had a strong probative force when considered in conjunction with other evidence, including the Balchin evidence and Ms D's evidence. That submission presupposed that in applying s 31A(2), the admissibility of a piece of propensity evidence may be supported by a consideration of other propensity evidence which is also the subject of an application under s 31A. I do not see how the import of one piece of propensity evidence can be taken into account in assessing the admissibility of another piece of propensity evidence, at least until the former is held to be admissible under s 31A. In this case, I have concluded that the Balchin evidence is not admissible under s 31A.

5. Even when the Woodford evidence is considered in conjunction with the other evidence the State seeks to adduce, including Ms D's evidence (which is admissible as propensity evidence under s 31A), I am not persuaded that the Woodford evidence assumes any greater consequence or importance in assessing the probability that Mr Wark killed Ms Dodd.

6. The outcome of the s 31A application with respect to the Woodford evidence might well have been different if it were known what happened to Ms Dodd, and in particular, how her killer disposed of her body. If, for example, this was a case where it was known that Ms Dodd's body had been buried, or hidden under the floor of a house, then the Woodford evidence may have taken on a very different complexion. But that is not this case.

7. The Woodford evidence is not admissible under s 31A of the Evidence Act.

(f)     Whether the Balchin evidence is admissible as propensity evidence

1. Counsel for the State submitted that Mr Balchin's evidence is propensity evidence within s 31A of the Evidence Act because it also 'contributes to' the evidence of Mr Wark's propensity to violence towards women. 

2. I am not satisfied that the Balchin evidence constitutes propensity evidence as described in s 31A(1). Having regard to the content of Mr Wark's remark to Mr Balchin, and the context in which it was made, I am not satisfied that Mr Wark's remark can properly be said to indicate an inclination or tendency to engage in violence against women, for the following reasons.

3. First, Mr Wark's remark was made in the context of a hypothetical discussion between Mr Balchin and Mr Wark about what might have happened to Ms Dodd, and about where she might be.  I agree with the submission of Mr Wark's counsel that there is nothing significant in the fact that Mr Balchin and Mr Wark were discussing that topic, given the wide publicity about Ms Dodd's disappearance.  In high profile cases involving the disappearance of victims, it is very common for people to speculate on what may have happened to the victim.  That kind of speculation does not, without more, indicate any propensity to engage in violence, to the victim or to people generally. 

4. Secondly, Mr Wark's remark itself implied that he did not do anything to Ms Dodd ('if it was me I [would]').  Again, that is consistent with the hypothetical nature of the conversation, and does not suggest a particular inclination or tendency to engage in violence, or to kill a person and dispose of their body by burying it under a house.

5. Thirdly, Mr Balchin's reaction to Mr Wark's remark does not assist the State's application.  Mr Balchin says that he 'didn't think' that Mr Wark was joking but thought 'he would be stupid if he did do something to [Ms Dodd] and put her there'.  Counsel for the State submitted that this indicated that Mr Wark was not joking and that it was of significance that Mr Wark had reflected on how to conceal a body.[40]  I am unable to agree with that interpretation of Mr Balchin's evidence.  In my view, Mr Balchin's evidence in this respect is highly ambiguous.  Mr Balchin was clearly surmising about what Mr Wark meant by the remark.  And Mr Balchin's reaction was that what Mr Wark said was quite absurd.  This aspect of Mr Balchin's evidence also undermines the State's claim that the Balchin evidence constitutes evidence of a tendency on Mr Wark's part to contemplate violence against women.

   [40] ts 34.

6. Furthermore, I do not consider that the Balchin evidence, of itself, constitutes 'relationship evidence' as defined in s 31A(1). The Balchin evidence is evidence of a remark made by Mr Wark on one occasion. It is not evidence of Mr Wark's attitude or conduct towards women over a period of time.

7. However, even if I am wrong in my conclusion that the Balchin evidence is not propensity or relationship evidence, I am not persuaded that that evidence meets the requirement of s 31A(2)(a). Like the Woodford evidence, the State says that the Balchin evidence is relevant to establishing that Mr Wark killed Ms Dodd and that he intended to do so. Largely for the same reasons as I have already outlined in relation to the Woodford evidence, and for the reasons set out above at [76] ‑ [80], I am not persuaded that the Balchin evidence could rationally affect the assessment of the probability that Mr Wark picked up Ms Dodd as she walked along the road, and then killed her, or that the Balchin evidence would be of importance or of consequence in that assessment.

8. The Balchin evidence is of a single remark made by Mr Wark in the context of a hypothetical discussion about what may have happened to Ms Dodd.  Counsel for the State submitted that in circumstances where the State had to prove that Mr Wark was the person who killed Ms Dodd and disposed of her body, his statements ‑ made at the time when she was missing and when her safety was the subject of grave fears ‑ which indicated that he had contemplated disposing of a body and where no body had been recovered, were of significant probative value.[41]  That submission would have had considerable force had this been a case where Ms Dodd's body was found, particularly if her body had been found in similar circumstances to those which Mr Wark discussed with Mr Balchin.  But not only has Ms Dodd's body never been found, this is a case in which a search of Mr Wark's house did not find any evidence to link Mr Wark with Ms Dodd. 

   [41] ts 33.

9. Furthermore, while Mr Wark's remark was made at the time when Ms Dodd had disappeared, that is also precisely the point in time when speculation by members of the public about what had happened to Ms Dodd is likely to have been at its highest.  In those circumstances, I am not persuaded that Mr Wark's remark to Mr Balchin can carry any greater weight than mere speculation about what might have happened to her, and thus is not evidence which would be of consequence or importance in assessing the likelihood that Mr Wark killed Ms Dodd. 

10. Counsel for the State emphasised the fact that Mr Balchin's evidence was that the statement made by Mr Wark was not said in a joking fashion and thus has a significant probative value.[42]  However, for the reasons set out at [86], the ambiguity of Mr Balchin's evidence in this respect is such that, without more, it would not be regarded as evidence of consequence or importance in considering the likelihood that Mr Wark murdered Ms Dodd. 

    [42] ts 34.

11. Furthermore, the propensity which the State says is demonstrated by Mr Wark's remark to Mr Balchin is a propensity of a very high level of generality, namely a propensity to engage in violence towards women.  There is no particular similarity between a propensity of that kind, and the circumstances of Ms Dodd's disappearance, other than that on the State's case, Ms Dodd was killed by an act of violence. 

12. Finally, in so far as counsel for the State submitted that the Balchin evidence gained strength from the Woodford evidence as propensity evidence, by virtue of the commonality of the conduct involved in each incident,[43] I do not consider that the Woodford evidence assists as it is inadmissible as propensity evidence under s 31A.

    [43] ts 32.

13. Having taken into account all of the evidence the State intends to adduce, and the nature, quality and extent of the Balchin evidence, I am not persuaded that the Balchin evidence would, either by itself, or having regard to that other evidence, have a significant probative value in the assessment of the probability that Mr Wark killed Ms Dodd. 

14. The Balchin evidence is therefore not admissible under s 31A of the Evidence Act.

15. There is one final argument that I should mention.  Counsel for the State submitted that when the Balchin evidence, the Woodford evidence, and Ms D's evidence were considered together, they reflected a continuing attitude towards women.[44] I understood this to be a submission that those three pieces of evidence together comprised 'relationship evidence'. The very different nature of these pieces of evidence, especially Ms D's evidence on the one hand, as compared with the Woodford and Balchin evidence on the other hand, is such that I doubt that they can properly be viewed as together comprising evidence of the attitude or conduct of Mr Wark towards women generally, over a period of time. But it is not necessary to decide that point, because even if the Woodford evidence and the Balchin evidence, considered in that way, constitute relationship evidence, I am not persuaded that that evidence meets the requirements of s 31A(2)(a), for the reasons already given.

    [44] ts 37.

1. The s 118 application

1. In this section of my reasons I deal with the following matters:

   (a)The requirements of s 118 of the Criminal Procedure Act 2004 (WA);

   (b)The basis for the application;

   (c)The State's response to the application;

   (d)The interests of justice in this case.

(a) The requirements of s 118 of the Criminal Procedure Act 2004 (WA)

1. Section 118 of the Criminal Procedure Act 2004 (WA) relevantly provides:

   (1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.

   (2)Any such application must be made before the identity of the trial judge is known to the parties.

   (3)On such an application, the court may inform itself in any way it thinks fit.

   (4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.

   (5)Without limiting subsection (4), the court may make the order if it considers ‑

   (a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or

   (b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.

   (6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

   …

2. The operation of s 118 has been considered in a number of decisions of this Court, from which the following principles may be distilled.

3. Ordinarily, criminal trials in this State are conducted before a jury.  Any departure from that course requires an application to be made by one of the parties (and in the case of an application by the prosecution, the application cannot be granted unless the accused consents). 

4. The starting point in the analysis of s 118 is that the discretion is to allow a trial by judge alone. If the Court determines not to exercise its discretion to permit a trial by judge alone, the trial will remain a trial by jury.[45] 

   [45] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [10] (Commissioner Sleight).

5. Some differences of view have been expressed by the judges of this court as to whether consideration of an application under s 118 begins from a neutral position or from a position that trial by jury is generally preferable.[46]  I respectfully agree with the observations made by Commissioner Sleight in The State of Western Australia v Rayney that those expressions of difference do not carry any significant consequence.  As his Honour observed:[47]

   [W]hen considering what is in the interests of justice there is not a starting notion that trial by jury is generally preferable to trial by judge alone. Notwithstanding this neutral position, the applicant has the burden of convincing the court that it is in the interests of justice that an order be made for a trial by judge alone and that the discretion should be exercised in favour of such a trial.

   [46] The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [26] (EM Heenan J); Arthurs v The State of Western Australia [2007] WASC 182 [67] (Martin CJ); TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [19] ‑ [20] (McKechnie J).

   [47] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [17] (Commissioner Sleight).

6. As s 118(2) makes clear, an application for a trial by judge alone must be made before the identity of the trial judge is known to the parties.

7. Subsection 118(4) of the Criminal Procedure Act requires the court to do two things.  First, the court must consider ‑ on the basis of the information in the application, and if necessary, by informing itself in any way it thinks fit ‑ whether it is in the interests of justice to grant an application for trial by judge alone.  Next, if the court decides that it is in the interests of justice to grant an application for trial by judge alone, the court must next consider whether to exercise its discretion to grant such an order.[48]  (It is difficult to envisage a circumstance where it would be appropriate to refuse an application if the court were satisfied that it would be in the interests of justice to grant the application.  However, it is not necessary to resolve that question in this case.)

   [48] Cf TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21] (McKechnie J).

8. The concept of the interests of justice is one which should not be narrowly defined and what is in the interests of justice will vary from case to case.[49]  The factors which will be relevant to an assessment of the interests of justice are not capable of exhaustive definition, and a number of factors will require consideration in any given case.[50] 

   [49] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [11], citing Chapman v Jansen (1990) 100 FLR 66, 74 (Nicholson CJ).

   [50] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [11]; TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [25] (McKechnie J).

9. While the factors referred to in s 118(5) and (6) provide some guidance as to what might be relevant to whether it is in the interests of justice to grant an application for a trial by judge alone, those factors are merely examples and are not exhaustive of all the factors which may be relevant to the concept of the interests of justice.[51]

   [51] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [12]; The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [5] (EM Heenan J).

10. The subjective view of the accused as to whether or not he or she would receive a fair trial from a jury will be relevant, but not determinative, of what is in the interests of justice.  The views of the accused should, however, not be given undue weight, because the interests of justice are not coterminous with the interest of an accused.[52]  As McKechnie J observed in TVM, 'the accused's perception in favour of or against trial by jury is a very insecure basis upon which to judge the interests of justice'.[53]  As that case demonstrated, the subjective view of the accused that he or she would not receive a fair trial if tried by jury may not be supported by any facts. 

    [52] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [30] ‑ [32] (McKechnie J), citing R v Cox [1960] VR 665.

    [53] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [34] (McKechnie J).

11. The fact that a trial by judge alone will result in the publication of the trial judge's reasons for decision is not, in my view, ordinarily a factor which weighs in support of a trial by judge alone.[54] In cases where the evidence is likely to be complex or technical, no doubt the publication of reasons will assist the accused and the public to be confident that the verdict was based on a correct comprehension of such complex or technical evidence. However, in those cases, s 118(5) makes clear that it is the complexity of the issues or the evidence, rather than the desirability of reasons per se, that supports the conclusion that a trial by judge alone would be in the interests of justice. If the interests of justice were equated with the provision of written reasons by a trial judge, the interests of justice may be said to warrant a trial by judge alone in every criminal trial of an indictable offence. Yet it is apparent, from the existence of the discretion in s 118 itself, that a trial before a jury, and a trial by judge alone, are equally valid modes of trial.[55]

    [54] Cf Arthurs v The State of Western Australia [2007] WASC 182 [73] ‑ [76]; TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [32].

    [55] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [32].

12. The length of the trial may be a consideration relevant to the interests of justice.[56]  That is because trials of an extreme length may give rise to difficulties for jurors who must necessarily forego other commitments to hear a lengthy trial, or on whom the length of the trial may place a physical, mental or emotional burden which is too great.[57]  However, cases where the length of the trial is likely to be an issue are relatively rare.

    [56] Criminal Procedure Act 2004 (WA) s 118(5)(a).

    [57] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [37].

1. The fact that the State's case is based on circumstantial evidence is not a factor relevant to the assessment of the interests of justice, or which supports the exercise of discretion against an application by trial by judge alone.  There is no reason why either mode of trial is preferable simply because the State's case is based on circumstantial evidence.[58]

   [58] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [39] (Commissioner Sleight); Arthurs v The State of Western Australia [2007] WASC 182 [61] ‑ [67] (Martin CJ); TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [15] (McKechnie J); cf The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [36] (EM Heenan J).

2. An overarching consideration in determining whether it is in the interests of justice to grant a request for trial by judge alone is whether the accused can receive a fair trial by jury.[59]  The existence of extensive pre‑trial publicity, which has resulted in a public climate of hostility or prejudice towards an accused, has been regarded in a number of cases as supporting the conclusion that it would be in the interests of justice to proceed by trial by judge alone.[60]  In such cases, a trial by judge alone may be an effective antidote to the risk that the accused would not receive a fair trial if tried by jury, by virtue of the hostile climate created by that pre‑trial publicity.[61]  As McKechnie J observed in TVM, '[i]t can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone'.[62] 

   [59] The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [30] (Commissioner Sleight), citing Mickelberg v The Queen [No 3] (1992) 8 WAR 236, 251; The State of Western Australia v Veskovich [2005] WADC 111 [5]; TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29] (McKechnie J).

   [60] The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [33] (EM Heenan J); TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29] (McKechnie J); Arthurs v The State of Western Australia [2007] WASC 182 [86] ‑ [87] (Martin CJ); The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [31] ‑ [34] (Commissioner Sleight).

   [61] The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [33] (EM Heenan J).

   [62] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29] (McKechnie J).

3. It is not necessary for an applicant to demonstrate an extreme, corrosive and prejudicial effect of pre‑trial publicity in order to persuade a court that it would be in the interests of justice for a trial to be by judge alone, in order to overcome any 'lingering prejudice'[63] which members of the jury might feel notwithstanding directions of the trial judge.  The question in the end, having regard to the information before the court, is simply whether a trial by judge alone is in the interests of justice.  Pre‑trial publicity, particularly in respect of the kinds of criminal cases within the jurisdiction of this Court, is not unusual and, ordinarily, the risk of any prejudice from such pre‑trial publicity can be adequately ameliorated by a detailed warning to any jury empanelled, both at the commencement of the trial and in the judge's summation, that any verdict of the jury is to be based solely on the evidence adduced at the trial and any information from any other source must be disregarded.  In order to warrant the conclusion that it would be in the interests of justice for the trial to be by judge alone, the nature and extent of any pre‑trial publicity would need to be of such a nature that even with a detailed and emphatic warning of that kind, the risk of pre‑judgment, prejudice or hostility to the accused could not be ameliorated.[64]

(b)     The basis for the application

[63] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29] (McKechnie J).

[64] The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [31] ‑ [34] (EM Heenan J).

1. Mr Wark applies for a trial by judge alone on the grounds[65] that:

   (i)the extent and nature of the pre-trial publicity has created prejudice against Mr Wark;

   (ii)Mr Wark is of the view that he will not receive a fair trial; and

   (iii)this is not a case which involves a factual issue that requires the application of objective community standards, and which might warrant a jury trial irrespective of other considerations militating in favour of a trial by judge alone.

   [65] Defence submissions in relation to s 118 application [5].

2. The s 118 application has been made before the identity of the trial judge has been made known to the parties. It is consequently made within the timeframe contemplated by s 118(2) of the Criminal Procedure Act.

3. The s 118 application was supported by an affidavit sworn by one of the solicitors acting for Mr Wark. The solicitor annexed to his affidavit copies of numerous articles published in newspapers and online news sites in relation to the disappearance of Ms Dodd in 1999. Media articles which initially appeared in 1999 through to 2004 not surprisingly concerned Ms Dodd's disappearance and such information as was then available in relation to the police investigation of her disappearance.

4. However, in November 2013, articles began emerging which identified Mr Wark as a person of interest in the police investigation of Ms Dodd's disappearance.  From late 2013 through 2014, there were a number of articles referring to the fact that the police had spoken to Mr Ward in relation to Ms Dodd's disappearance and detailing the fact that Mr Wark had lived in the Badgingarra area at the date of Ms Dodd's disappearance.  Articles published at around that time also mentioned that Mr Wark had shared a house with a convicted paedophile.  In addition, in 2014, articles were published which stated that Mr Wark was to be questioned in relation to a separate murder in Queensland ‑ the murder of Ms O'Shea, who disappeared from Atherton in Queensland, not far from where Mr Wark was living in 2005.

5. In May 2015, the West Australian newspaper published a front page article under the title 'Hayley Dodd murder arrest' which indicated that a warrant had been issued for Mr Wark's arrest in respect of Ms Dodd's murder.  A further article in the same newspaper referred to the fact that Mr Wark was serving a 12‑year sentence in a Queensland prison for a brutal attack on a hitchhiker (Ms D).  The article also indicated that Mr Wark had been identified as a suspect for the murder of Ms O'Shea.  The article indicated that Mr Wark had been a witness at the inquest into the death of Ms O'Shea but had denied involvement in her death.

6. Since that point, there have been numerous articles published on a regular basis referring to Mr Wark's arrest and to the fact that he would face trial for Ms Dodd's murder. 

7. In addition, the solicitor for Mr Wark deposed to the fact that internet searches of terms relating to Mr Wark, and to Ms Dodd's disappearance, revealed results in the hundreds of thousands.

8. Further, Mr Wark's solicitor deposed to a number of internet forums on which contributors appeared to link Mr Wark to other unsolved high profile murders.  Mr Wark's solicitor also deposed to the results of Facebook searches which revealed numerous comments, in discussions about media reports concerning the investigation of Ms Dodd's disappearance, which linked Mr Wark to her disappearance and which expressed views as to Mr Wark's guilt in highly inflammatory terms.  Some of those comments also linked Mr Wark to other unsolved high profile murder investigations in Western Australia, including murders attributed to the Claremont serial killer, and contained information in relation to the offences against Ms D of which Mr Wark had been convicted. 

9. Finally, Mr Wark's solicitor deposed to the fact that searches of Twitter, Instagram and YouTube disclosed numerous results for searches connected with Mr Wark and with Ms Dodd.

10. Also annexed to the affidavit of Mr Wark's solicitor was a copy of an affidavit sworn by Mr Wark himself in which he deposed that he believes the media attention that is focussed on his case would 'skew any decision of the jury'.  Mr Wark also deposed that he has had to seek protection in prison because of threats and violence he has received which he believes have been influenced by media reports in relation to this case.

11. Counsel for Mr Wark submitted that the material annexed to the affidavit filed in support of the s 118 application indicated that the disappearance of Ms Dodd had received publicity since 1999, that Mr Wark was first publicly named in November 2013, and there had been publicity about him since then, even though he was not officially charged until December 2015.

12. Counsel for Mr Wark submitted that this pre‑trial publicity, that over a sustained period had consistently referred to Mr Wark's previous conviction for rape and his association with a convicted paedophile, 'has created a well‑entrenched public climate of hostility and prejudice against [Mr Wark]'.[66]  He submitted that that hostility and prejudice was apparent from the various internet sites and forums which had been referred to in the supporting affidavit.  He submitted that the media reports and internet sites and forums referring to Mr Wark should not be read in isolation, 'but as constituents of a narrative of pre‑trial publicity that has engendered prejudice against [Mr Wark]'.[67]

(c)     The State's response to the application

[66] Defence submissions in relation to s 118 application [49].

[67] Defence submissions in relation to s 118 application [51].

1. The State's position was that it does not oppose the application for a trial by judge alone, but that its position was based solely on the publicity concerning the fact that Mr Wark had been questioned about, and called to give evidence in an inquest in respect of, the disappearance of Ms O'Shea.  Counsel for the State submitted that the information itself was so prejudicial that, were a member of the jury to come across it, it would so gravely affect the prospects of a fair trial that the interests of justice would be served by a trial by judge alone.[68]

   [68] ts 30.

2. Counsel for the State submitted that online content regarding the fact that Mr Wark was living with a convicted paedophile at the time that Ms Dodd went missing, accusations in online forums as to Mr Wark's involvement in other murders and any connection between Mr Wark and the Claremont serial killings were of no significance to the court's determination of the application. 

3. However, counsel for the State submitted that the reporting of two matters were of significance in this case.  The first was Mr Wark's prior conviction for sexual offences against Ms D and his lengthy sentence for those offences.  Secondly, the State points to reports which connect Mr Wark with investigations into the death of Ms O'Shea, to the extent that he was called to give evidence at the inquest into her death.  Counsel for the State submitted that due to the information involved and the nature of the allegations in that matter, it would be difficult to prevent unfairly prejudicial reasoning on the part of jurors where they, too, became aware of that matter.  Counsel did not accept that it would be impossible to eliminate the risk, but accepted that it would be difficult to do so and that the likely impact of any potential prejudicial reasoning would be significant.

(d)     The interests of justice in this case

1. I have carefully considered the annexures to the affidavit of Mr Wark's solicitor.  But for the reports linking Mr Wark to the investigation of Ms O'Shea's disappearance and suspected murder, I would not have been inclined to conclude that the pre‑trial publicity concerning Mr Wark would give rise to such prejudice that it could not be ameliorated by the usual directions to a jury. 

2. In so far as the pre-trial publicity concerns the fact that Mr Wark has for some time been suspected of involvement in Ms Dodd's disappearance, that publicity is not, of itself, particularly unusual, nor does it support the conclusion that the interests of justice warrant a trial by judge alone. 

3. In so far as the publicity concerned the fact that Mr Wark had been convicted of sexual offences in Queensland, the prejudicial effect of that publicity would be ameliorated by the fact that Ms D's evidence will be admissible at the trial.  The import of that evidence would thus be a matter for submissions by counsel, and a direction by the trial judge.

4. In so far as there was evidence of speculation within internet discussion groups about this case, in my view considerable care needs to be taken in assessing the potential prejudice of publicity from such sources.  There is a significant distinction between information available to the public through major news outlets, whether in print or online, and the views that may be expressed by much smaller groups of people in such online discussion forums.  It cannot be assumed that the latter represent information or views which have become entrenched in the public consciousness, or would be likely to create such an atmosphere of pervading prejudice against an accused person as to give rise to the risk of an unfair trial which could not be ameliorated by a detailed and emphatic warning by a trial judge. 

5. Where the prejudicial pre‑trial publicity is confined to material located on internet websites such as blogs and discussion fora, especially if those sites or fora can only be located by an internet search for that information, it will in my view be difficult to establish a real risk of the prejudice of an unfair trial.  In my view, members of the community can be assumed to be quite discerning about the veracity and reliability of information which may be obtained from sites of that nature, and thus will be more likely to appreciate the importance of the trial directions given by trial judges concerning the importance of relying only on the evidence actually adduced at the trial.  In my view, that will be so even though information from sites of that nature may be shared through other avenues with people who do not seek it out, for instance, by posting links to such websites to Facebook accounts. 

6. Furthermore, to the extent that some of the speculation and rumours circulating on those sites about Ms Dodd's disappearance connected Mr Wark with other high profile murders, such as the Claremont serial killings, I accept the State's submission that the potential prejudicial impact of those references (if any) is now very likely to have been negated by the fact that another person has been arrested in respect of those matters. 

7. I have taken into account Mr Wark's own concern about the risk of an unfair trial, in view of the pre-trial publicity in this case.  However, that is not determinative, as it was a concern based on the pre-trial publicity as a whole.

8. Having said all of that, what is of significance in this case, and the tipping point in the s 118 application, is the prejudicial impact of reports, including in the mainstream media, that Mr Wark was suspected of involvement in the disappearance of Ms O'Shea and that he was questioned about her disappearance at an inquest into her death. The link between Mr Wark and that investigation was made before 2015, but in my view, was firmly established by the report of Mr Wark's arrest for Ms Dodd's murder, which featured on the front page, and subsequent pages, of the West Australian newspaper in May 2015 (discussed at [117] above). What is so significant for present purposes is the link drawn in those reports, between Mr Wark's arrest for Ms Dodd's murder, and his suspected involvement in Ms O'Shea's disappearance, which had been sufficient to warrant the step of requiring him to give evidence at the inquest into her death.

9. I accept the submission by counsel for the State that the risk of prejudice to Mr Wark by his association with the O'Shea investigation has not lessened by the fact that the reports indicated that Mr Wark denied any involvement in Ms O'Shea's death and that there was nothing to suggest any further action had been taken against him in respect of Ms O'Shea's death.  Calling a person to give evidence at an inquest suggests a seriously held suspicion.  In circumstances where there does not appear to have been any countervailing publicity indicating that Mr Wark is no longer suspected of involvement in Ms O'Shea's disappearance, there is a not insignificant risk that that association will have lingered in the public consciousness.  Furthermore, that association is likely to have been reinforced by the cumulative effect of the publicity about Mr Wark's suspected involvement in the present case, even in the absence of any further express link with Ms O'Shea's disappearance.

10. In my view, the risk that there is now a well-established association in the public consciousness between Mr Wark, and the disappearance, and suspected murder, of Ms O'Shea, carries with it the risk that jurors in the trial of Mr Wark for Ms Dodd's murder would be unable to put that knowledge aside, even with a strong, and repeated, warning from the trial judge.  That risk arises from the fact that at the time that the jury would be considering the evidence relating to Mr Wark's alleged involvement in Ms Dodd's disappearance, from an area near where Mr Wark was living at the time, they may have knowledge of Mr Wark's suspected involvement in the disappearance of Ms O'Shea from a place near to where Mr Wark was living at the time.  At the same time, the jury would have before them Ms D's evidence, which concerns very serious violence and sexual assault against Ms D.  In those circumstances, I accept that by virtue of the publicised link between Mr Wark and the O'Shea case, together with the cumulative impact of the pre‑trial publicity linking Mr Wark with the disappearance of Ms Dodd, it would be very difficult to safeguard against the possibility of a lingering prejudice by the jury concerning the O'Shea matter, notwithstanding any direction which might be given by the trial judge. 

11. Given that the risk of an unfair trial can be avoided entirely by a trial by a judge alone, I accept that it would be in the interests of justice for Mr Wark's trial to be by judge alone in this case.

12. There being no other factors which would warrant a contrary conclusion, I accept that this is a case in which the Court's discretion should be exercised to require a trial by judge alone, and I will so order.

1. The s 158 application

1. The State seeks to be permitted to adduce evidence in the form of witness statements prepared by 5 witnesses, namely Stanley Keith Hammond, Leonard John Hale, Lorna Christine Andrijich, Peter Andrew Boucher, and John Robert McConnell, without calling those persons to give evidence, because each of those persons is dead.

2. Section 158 of the Criminal Procedure Act 2004 (WA) gives effect to sch 3 to that Act. Clause 7 of sch 3 to that Act deals with the use which may be made of statements and recordings of a witness' evidence prepared before trial, without the need for the witness to attend to give the evidence. Subclause 7(1) permits a court dealing with a charge to admit into evidence a statement of a witness if the court is satisfied that the statement complies with cl 4 of sch 3 and one of a variety of other criteria are satisfied. One of those criteria is that the witness is dead.

3. Clause 4 of sch 3 sets out certain formal requirements with which written witness statements must comply (including that the statement identifies the maker of the statement, and records their age (if under 18), purports to bear the signature of the maker of the statement (unless the statement is in electronic form) and contains a declaration in the form of subclause 4(5) of sch 3). Each of the statements the subject of the present application complies with those formal requirements.

1. The application is supported by an affidavit sworn by Ms Forrester SC to which she annexes a copy of the death certificates of Mr Hammond, Mr Hale, Ms Andrijich, Mr Boucher and Mr McConnell. 

2. The State filed its application on 18 April 2016.  The application was made on notice to Mr Wark.  Counsel for Mr Wark did not object to the State being permitted to adduce the witness statements the subject of the application.

3. There is no suggestion that the admission of the statements would be unfair to Mr Wark.

4. I am satisfied that the requirements of cl 7 of sch 3 to the Criminal Procedure Act have been met.

5. The State will be permitted to rely on the witness statements of the witnesses referred to in the s 158 application.