The State of Western Australia v White
[2012] WASC 453
•15 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WHITE [2012] WASC 453
CORAM: SIMMONDS J
HEARD: 15 NOVEMBER 2012
DELIVERED : 15 NOVEMBER 2012
FILE NO/S: INS 142 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MICHAEL COLIN WHITE
Accused
Catchwords:
Criminal law and procedure - Application for directions concerning propensity evidence - Tendency to commit offences to service drug habit at about time of offending - Relevance of undisputed other evidence tending to connect accused to offending - Relevance of directions at trial
Legislation:
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 31A
Result:
Application granted
Directions made
Category: B
Representation:
Counsel:
Prosecution : Ms K Robinson
Accused: Mr D J McKenzie
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213
SIMMONDS J: It is my intention today both to rule on the application and to provide the reasons for the ruling. I can begin this statement, however, by indicating that I would grant the application of the prosecution and, having reflected on the matter, the determination as to admission is one that is not in provisional form, in view of what I was told by the defence as to the character of the case to be mounted at trial.
I should begin these reasons by stating it is an application under Criminal Procedure Act 2004 (WA), s 98 for certain directions. The directions applied for are as follows.
In any trial on indictment 142 of 2012 the State is permitted to lead evidence of the conduct of the accused person relating to offences contained in charge numbers 11906/12 and 11911/12 in respect of which the accused indicated a plea of guilty on 18 July 2012 in the Stirling Gardens Magistrates Court, and count 2 on INS 142 [of 2012] to which the accused pleaded guilty in the Supreme Court on 18 October 2012.
Indictment 142 of 2012 contains two counts. Count 1 alleges that on 28 December 2011 the accused stole money, medications and three cheques from the Marmion Pharmacy and threatened staff with a knife. On 18 October 2012 the accused pleaded not guilty to that count and the trial was listed to commence on 15 January 2013. I have no reason to believe that that trial will be otherwise than before a jury; and it would follow, of course, that these reasons would be suppressed until the completion of the trial process or further order.
Count 2 on the indictment alleges that on 4 February 2012 the accused stole a variety of lottery tickets from the Warwick Grove News and Lottery (the Warwick Grove Newsagency), by pretending to be armed with a syringe. On 18 October 2012 the accused pleaded guilty to count 2. I will call this the Warwick Grove Newsagency offence of 4 February 2012.
Charge number 11906 of 2012 alleges that on 12 December 2011 the accused was in the Glengarry Pharmacy where he stole medication worth more than $3,000, medication such as cold and flu tablets and Sudafed. The accused has indicated that he will plead guilty to this offence. I call this the Glengarry Pharmacy offence of 12 December 2011, and I should add that in respect of this indication I was given no reason to believe that the indication will not be acted upon.
Charge number 11911 of 2012 alleges that on 7 February 2012 the accused was in the Kingsley Newsagency where he stole cash in the amount of $460.95 as well as a number of packets of cigarettes. The accused has indicated that he will plead guilty to this offence. I call this the Kingsley Newsagency offence of 7 February 2012.
The basis of the present application is Evidence Act 1906 (WA), s 31A. That provision is concerned with the admissibility of propensity and relationship evidence. Only the principles for the admission of evidence as propensity evidence are material to me; and, in particular, only evidence of a tendency the accused person has or had is relevant to me.
So far then as the Evidence Act s 31A is relevant, I would reproduce it as follows:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)... ; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
...
(2)Propensity evidence ... is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
That takes me then to the applicable principles to resolve the present application. I note the recent review, statement and application of the principles applicable in this case in Daniels v The State of Western Australia [2012] WASCA 213. I particularly note the review and statement of the principles in Daniels [43] ‑ [51], as well as [93] ‑ [94], in the judgment of his Honour Buss JA (Martin CJ & Mazza JA agreeing), as follows:
The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:
(a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)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.
The court may decide, in a particular case, that the tests in s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:
(a)solely for a particular or limited purpose; or
(b)subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.
These examples are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.
Where 'propensity evidence' or 'relationship evidence' is disputed by the accused, it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] ‑ [61], Steytler P said in relation to the concept of 'significant probative value' within s 31A(2)(a):
'The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone "significant" probative value.
Before evidence can have significant probative value it must be such as "could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance": Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a "substantial" degree of relevance and that it is a probative value which is "important" or "of consequence". He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].'
This analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] (Buss JA, Miller JA agreeing).
So:
(a)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(c)The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d)If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
In Dair, Steytler P made these points about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
These observations were approved in Horsman [23] and Buiks [46].
...
Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.
This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] - [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair [64] (Steytler P).
I will consider shortly the lessons I would draw from Daniels as well as the case of Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 which were drawn to my attention.
I now turn to the application of those principles in this case.
It seems to me that it is difficult to contend that the evidence to be admitted - being the evidence of the Glengarry Pharmacy offence of 12 December 2011, the Warwick Grove Newsagency offence of 4 February 2012 and the Kingsley Newsagency offence of 7 February 2012 to list them in date order - is not probative or is not significantly probative.
This is given the times either side of the subject offending of those offences, the drug habit of the offender throughout the relevant period, the evidence from the video record of interview of the offender of 14 February 2012 which indicates a link between the drug habit in the sense of servicing it, and the offending in each case.
As well, as Daniels [49] makes plain, there is the significance of the other evidence in the case, evidence in this case which as I understand it is not challenged, that is to say it is accepted.
That evidence is of three kinds. The first is the evidence that the offender has admitted that he stole the scooter which was involved in the commission of the offence. The connection of the scooter stolen to the offence is established through other evidence, which of course must come out but which as I understand it will not be challenged. That evidence is of the coincidence of the description of the scooter on which the offender left the Marmion Pharmacy with the scooter stolen, the proximity and time of the theft of the scooter and the place from which it was stolen and the Marmion Pharmacy offence, and the finding of the scooter stolen not long after the Marmion Pharmacy offence and relatively close to it. As well, there is the fact that the scooter stolen included as part of the material with the scooter a motorcycle helmet, and the offender who committed the Marmion Pharmacy offence was wearing a motorcycle helmet.
In addition, there are fingerprints of the accused on financial instruments which were part of what was stolen from the Marmion Pharmacy. Further, the substance or part of the substances stolen from the Marmion Pharmacy included OxyContin and, in the video record of interview, the accused admits that when he woke up not long after the commission of the offence, there was OxyContin, whose presence was a matter of approval for the accused, nearby.
Finally, that body of other evidence in the case must also be considered with the fact that the accused has indicated, as I understand it, in his video record of interview that there was a co‑offender in relation to the scooter and provides in the video record of interview indications that that co‑offender might well - the accused is unable to say with any certainty - have committed the Marmion Pharmacy offence.
The significant probative value of the s 31A(1)(b) kind having been in my view established, the issue then becomes that described in s 31A(2)(b), to which Daniels [50] ‑ [51] refers. On the very able submissions of counsel for the defence, I need to attend particularly to that part of Dair upon which [50] from Daniels draws, being those paragraphs running from [73] ‑ [79].
Counsel for the defence put it to me that even if, which he did not concede, significant probative value were shown, it was not probative value of sufficient significance that a fair‑minded person would conclude, in view of the risk of impermissible reasoning, even one addressed by a strongly worded direction from the judge, was so great, and the degree of significance, even if important or of consequence, was so slight, that a fair‑minded person would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Counsel for the defence made that submission in view of what he said was the breadth of the class of persons identified by the evidence sought to be adduced to which the accused belonged. Counsel for the defence identified that class in terms of persons who committed offences of the kinds represented by the three the subject of the application to service a drug habit and did so at about the time of those offences; that is to say the period 12 December 2011 to 7 February 2012.
I accept that if that were the definition of the relevant class, it might indeed be difficult to see how that risk that I have referred to was outweighed by the probative value of the evidence in question. I say difficult without necessarily concluding that it would be impossible so to arrive at that conclusion. However, it seems to me, as counsel for the State put to me, that the significant difference in this case is made by the evidence as to the motor scooter.
The motor scooter represents, it seems to me as I understand it, unchallenged evidence which goes to connect the accused with the person who committed the offence at the Marmion Pharmacy, with the only other member of that relevant class being the other person to whom the video record of interview makes reference and who is identified on other evidence here as a Mr Kevin Paul Kehoe, for whom there is a witness statement in the prosecution brief.
It seems to me that that linkage puts the evidence of the prior convictions here into a category rather more like the relationship evidence in Daniels than the tendency evidence in Dair, being the evidence that the accused was a person who had a tendency to react violently when confronted with his commission of a theft or similar offence.
It follows from the analysis that I have provided here, however, that the trial judge will be required to give a warning about impermissible reasoning from the convictions which I have ruled are admissible, together with or in the context of an account, an accurate account of course, of the case of the defence in relation to the accused as being a person in respect of whom the jury should at the least entertain a reasonable doubt that he was the offender.
For this purpose, I would particularly note, without of course in any way confining the array of material upon which the trial judge might quite properly draw, the material in Daniels having to do with the warning which Buss JA considered had been suitably given by the trial judge in that case. I refer in particular to [108] ‑ [109] read with [36] in Daniels.
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