The State of Western Australia v Webster

[2013] WADC 45

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WEBSTER [2013] WADC 45

CORAM:   STAUDE DCJ

HEARD:   28 MARCH 2013

DELIVERED          :   28 MARCH 2013

FILE NO/S:   IND 182 of 2011

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JAMES WEBSTER

Catchwords:

Criminal law - Evidence - Propensity evidence - Accused charged with multiple counts of possession prohibited drugs with intent to sell or supply - Admissibility of evidence of other drugs - Dealing offences - Whether 'fair-minded person' test satisfied - Turns on own facts

Legislation:

Evidence Act 1906, s 31A

Result:

Leave to adduce propensity evidence granted

Representation:

Counsel:

The State of Western Australia  :    Mr G J Huggins

Accused:    Mr D J McKenzie

Solicitors:

The State of Western Australia  :    State Director of Public Prosecutions

Accused:    D J McKenzie

Case(s) referred to in judgment(s):

Bennett v The State of Western Australia [2012] WASCA 70

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

1. STAUDE DCJ:  (This judgment was delivered extemporaneously on 28 March 2013 and edited from transcript.)

2. This is an application on behalf of the State for leave to adduce propensity evidence pursuant to s 31A of the Evidence Act1906.

3. Mr Webster is charged with two other accused persons with a number of offences contrary to the Misuse of Drugs Act1981.  These offences were allegedly committed in December 2009.  The indictment contains six counts.

4. Counts 1 and 2 are of possession of methylamphetamine with intent to sell or supply it to another.  Count 1 arises from the apprehension of Mr Webster at Perth Airport on 13 December 2009 upon his arrival there with another person who was found to be carrying 613 g of methylamphetamine.  The State case in respect of count 1 is that the accused had joint possession of the drug.  That is the issue in relation to that count.  Count 2 arises from the same incident, the accused having been found to be in possession of 1.41 g of methylamphetamine located on his person.  The issue in relation to this count is whether the accused had an intent to sell or supply it to another.  His position is that it was for his own use.

5. Counts 3 to 6 are also of possession of prohibited drugs with intent to sell or supply to another.  These counts arise from the execution of a search warrant at premises at Osborne Park where the quantities of drugs, the subject to each count were found.  The State case in relation to counts 3 to 6 is that the accused had access to, and control over, a storage unit in which the drugs were found and was in possession of them.  That is the issue.

6. The trial of Mr Webster and the two other accused is listed to commence in this court on 15 April this year.  Evidence to be led at the trial by the prosecution includes telephone intercept material and listening device product as well as covert surveillance evidence.

7. The evidence sought to be adduced as propensity evidence is of the material facts supporting Mr Webster's conviction of three offences contrary to the Commonwealth Criminal Code which relate to drug dealing.

8. On 1 November 2012 Mr Webster pleaded guilty to one charge of dealing in proceeds of crime of more than $100,000, attempting to traffic a commercial quantity of controlled drugs and possessing a controlled drug.  Subsequent to his entry of pleas of guilty to these charges he applied unsuccessfully to withdraw his pleas.  That application was refused.

9. An appeal has been lodged in respect of that decision.  At this stage, however, Mr Webster stands convicted of the Commonwealth offences.  Those convictions enable the State to prove propensity to deal in drugs by evidence of the material facts upon which the convictions were based:  see Bennettv The State of Western Australia [2012] WASCA 70.

10. The material facts are that in December 2010 an undercover police operative engaged Mr Webster who communicated to the operative his intention to import cocaine with the assistance of the operative.  At some later time the accused indicated to the operative that he wanted to purchase a kilogram of methylamphetamine for which he was prepared to pay $160,000.  In July 2011 Mr Webster was arrested after a meeting with the police operative at which he delivered $320,000 in exchange for two 1 kg bags of what he believed was methylamphetamine.

11. On behalf of Mr Webster it is conceded that the proposed evidence of the commission of the Commonwealth offences is propensity evidence and that it does have significant probative value in relation to the counts to be tried.  Those concessions, in my view, are appropriately made.

12. The issue in this application is, therefore, whether the fair-minded person test can be satisfied as the remaining criterion of admissibility.

13. Mr Webster submits that the admission of the evidence would result in an unfair trial.  The evidence would so overwhelm the jury that no direction could cure or avoid the risk of impermissible reasoning by the jury.  The court must be satisfied 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.

14. The risk of an unfair trial in this case is the risk that a jury would reason impermissibly that, because the accused committed drug dealing offences on another occasion, he must be guilty of the offences charged.

15. The probative effect of the proposed evidence is that it shows that the accused is a person who has dealt in drugs on another occasion and is therefore the type of person who is likely to have committed the offences charged.  It is circumstantial evidence of a fact, namely, tendency, which may, with other proved facts, support an inference of possession or intention as the case may be.  However, it cannot be relied upon as a substitute for evidence that the charged offences were committed.

16. Juries are routinely warned not to engage in impermissible reasoning. A jury may not conclude automatically, as it were, that because an accused person has committed a similar offence on another occasion he is therefore guilty of the offence charged.  The risk of an unfair trial in that sense is therefore managed by giving the jury appropriate directions. Cases to which reference has been made in argument support the proposition that a jury should be taken to be capable of understanding and applying such directions.

17. It is recognised in the terms of s 31A that there may be cases in which the risk of an unfair trial due to impermissible reasoning is disproportionate to the probative value of the evidence. In such a case the court is bound to apply the fair-minded person test.

18. In my view, the proposed propensity evidence has considerable probative value in that it shows the accused’s willingness and capacity to engage in drug dealing at a high level of sophistication and monetary value.  The evidence is capable of being dealt with rationally by the jury in determining whether, in relation to the charged offences, the accused was in possession of the drugs which are the subject of counts 1, 3, 4, 5 and 6, and had the intention to sell or supply with respect to the drug the subject of count 2.  The propensity evidence rationally affects the assessment of the probability of the existence of those facts to a significant extent.

19. Fair-minded people are reasonable members of the general public who are not lawyers, but who would 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: Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66] (Steytler P).

20. Steytler P in Dair accepted that the making of a comparison by such persons is problematic as the risk of an unfair trial, on the one hand, and the probative value of the evidence, on the other, are incommensurable.  What this criterion boils down to is whether fair‑minded people would think that the interests of justice require that the evidence be admitted.

21. In my view, the proposed evidence is reliable and probative of a tendency which is relevant to the issues to be tried. The public interest lies in the admission of the evidence, notwithstanding the risk of unfairness. I am therefore satisfied that the criteria set out in s 31A are satisfied and that the application should be allowed.

22. To the extent that there is a question about whether the convictions in the Supreme Court may be set aside on appeal, that is a separate matter that is not appropriate for me to decide.  It probably involves procedural considerations such as the expedition of the appeal and whether the trial should be adjourned pending the result of the appeal.  It would otherwise require the State to consider in what manner this evidence could be given.  They are matters for the parties to address in consequence of this decision.