The State of Western Australia v Wimbridge - [2020] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WIMBRIDGE [2020] WADC 29
CORAM:   BOWDEN DCJ
HEARD:   4 MARCH 2020
DELIVERED          :   13 MARCH 2020
FILE NO/S:   IND 1000 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
RONALD PATRICK WIMBRIDGE

Catchwords:

Joinder of drug charges - Propensity evidence - Legislation - Evidence Act 1906 (WA) - Criminal Procedure Act 2004 (WA) - Criminal law - Admissibility of propensity evidence - Severance application

Legislation:

Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Propensity evidence admissible
Severance application dismissed

Representation:

Counsel:

The State of Western Australia	:	Mr J Nicholls
Accused	:	Mr K Bates

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Mr K Bates Barrister And Solicitor

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

Asplin v The State of Western Australia [2013] WASCA 72
Bennett v The State of Western Australia [2012] WASCA 70
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia (2005) 31 WAR 122
Flessas v The State of Western Australia [2018] WASCA 210
JAW v The State of Western Australia [2016] WASCA 40
Kalani v The State of Western Australia [2013] WASCA 132
Leaman v The Queen (1987) 28 A Crim R 104
Mansell v The State of Western Australia [2009] WASCA 140
NTH v The State of Western Australia [2020] WASCA 22
Preston v The State of Western Australia [2012] WASCA 64
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Collins; Ex parte Attorney‑General [1996] 1 Qd R 631
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Tasmania v Martin (No 2) (2011) 213 A Crim R 226
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Edwards [2019] WASC 87
The State of Western Australia v Jackson [2019] WASCA 118
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

BOWDEN DCJ:

Mr Wimbridge is charged on indictment 1000 of 2019 with the following offences:
1.on 11 September 2017 at Rivervale he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another;
2.on the same date and at the same place as in count 1, he had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another;
3.on 2 February 2018 at Rivervale, he offered to sell or supply a prohibited drug, namely methylamphetamine, to another; and
4.on 5 March 2018 at Rivervale, he offered to sell or supply a prohibited drug, namely methylamphetamine, to another; and
5.on 5 April 2018 at Rivervale, he offered to sell or supply a prohibited drug, namely cannabis, to another.
The matter is listed for a trial commencing on 18 May 2020.

The State's application

The State seek an order that the evidence advanced in support of counts 1 and 2 is cross-admissible with counts 3, 4 and 5, and vice versa.
The State also seek an order that Mr Wimbridge's conviction for offering to supply MDMA in 2005 is admitted pursuant to s 31A of the Evidence Act 1906 (WA) in the prosecution of counts 1 - 5.

The defence application

The defence apply to sever counts 1 and 2 from counts 3, 4 and 5 pursuant to s 133 of the Criminal Procedure Act 2004 (WA) (CPA).
The defence also applied for a directed acquittal on count 5 on the basis that a properly instructed jury could not convict Mr Wimbridge of that count. There is no need for that issue to be determined as the State have advised that they intend to discontinue that count.

Brief overview of the State's case

On 11 September 2017 a mother was dropping her daughter off to school at St Augustine's Primary School and parked her car at the church car park. When she returned to her vehicle the window had been smashed and her handbag had been stolen.
She and others began to search the school and church grounds for the handbag. During the search a large black bag was located in the church's garden.
Inside that large black bag there was a grey coloured bag containing a sandwich bag with 219 g of cannabis and a brown and black leather toilet bag containing 443.19 g of methylamphetamine.
Police were advised by GH that Mr Wimbridge had searched for the handbag but had been injured when he slipped and had left the scene to obtain medical assistance. Later on Mr Wimbridge spoke to the police stating that he was at Royal Perth Hospital and this is confirmed by medical reports.
Mr GH was later discovered in the church car park garden in the vicinity of where the black bag was located and said he was just doing what Mr Wimbridge had asked him to.
Later that day Mr Wimbridge returned to the scene and spoke to the principal of the primary school to enquire whether the lady's handbag had been found.
DNA was obtained from the brown and black leather type toilet bag and various bags located within that bag. Mr Wimbridge is identified as a significant contributor to the DNA mixtures found on various clipseal bags and the brown and black leather toilet bag and it was statistically 100 billion times more likely that it was his DNA that contributed to the mixed DNA profile than if the DNA was contributed to by a person unrelated to Mr Wimbridge.
Count 1 relates to the 219 g of cannabis located in the grey coloured bag. Count 2 relates to the 443.19 g of methylamphetamine located in the brown and black leather type bag.
Count 3 alleges that on 2 February 2018 Mr Wimbridge offered to supply a half ball (approximately 1.75 g) of methylamphetamine to another during the course of a telephone call. The State say that during this call coded language was used to describe the drugs being offered.
Count 4 alleges that on 5 March 2018 Mr Wimbridge offered to sell or supply half an ounce of methylamphetamine to another. It is said that offer was made via SMS communications. The State say that during this call coded language was used to describe the drugs being offered.

The proposed propensity evidence

The State propose to lead evidence that in July 2005 Mr Wimbridge offered to sell or supply MDMA to another. Mr Wimbridge was convicted of this offence on 8 November 2007.
The circumstances were that in July 2005 Mr Wimbridge sent text messages to a Mr McCread referring to 'your little dove' and 'have you got your lollies yet'. There was subsequent telephone calls between Mr Wimbridge and Mr McCread and there were discussions about the sale of 200 doves at $30 each. (Hereinafter referred to as the proposed evidence). The State say that during the messaging coded language was used to describe the drugs being offered.
I shall first determine whether the proposed evidence is admissible in relation to counts 1, 2, 3 or 4 or any of those charges.

Section 31A of the Evidence Act 1906 (WA)

(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.

To be admitted the proposed evidence must be:
(1)propensity or relationship evidence;
(2)have significant probative value; and
(3)the probative value must be such that the public interest in adducing the evidence of guilt has a priority over the risk of an unfair trial.
The general principals applicable to s 31A have been extensively dealt with in a number of cases and are well established.
Those principles were summarised in RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 as follows [136]:
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.
(footnotes omitted)
Four further points has been referred to in The State of Western Australia v Jackson [2019] WASCA 118; NTH v The State of Western Australia [2020] WASCA 22:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.

Is the proposed evidence propensity evidence?

As can be seen the definition of both propensity and relationship evidence is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
The proposed evidence is at the very minimum evidence of the conduct of the accused as thus propensity. In my view it also establishes a tendency for Mr Wimbridge to be prepared to be involved in the distribution of prohibited drugs for reward.

Does the evidence have significant probative value?

In determining whether the evidence has significant probative value the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) (2011) 213 A Crim R 226.
The defence say that the issue in relation to counts 1 and 2 is the identity of the offender that is, whether Mr Wimbridge possessed the drugs the subject of those counts.
The other evidence to be considered includes that a mixed DNA profile was found on items found within the large black bag, which is expressed as being 100 billion times more likely that Mr Wimbridge was a contributor to that profile than the contributor was an unknown individual. In addition Mr Wimbridge lived in close proximity to where the large black bag was found, and he searched the school grounds along with others looking for the lost lady's handbag, and that on the same afternoon he had discussions with the school principal as to whether the lady's handbag had been recovered.
The defence say that there is no striking or close similarity between the proposed evidence and the evidence the subject in counts 1 and 2.
The defence say the proposed evidence demonstrating that the accused has been involved in the distribution of illegal drugs on one occasion in excess of 12 years before the charged offence in circumstances where a telephone service was used in the attempted distribution of those drugs. The defence say this shows a generic general tendency to be involved in the distribution by offer of small amounts of a prohibited drug.
The defence stress that the proposed evidence occurred over 12 years before the charged offences and whilst the lapse in time is not determinative, a single episode of drug dealing more than 12 years ago previously has less probative value than an event much closer in time to the charged offences. They say that the lapse of time weakens the strength of the probative value of the proposed evidence.
They also point out that proposed evidence related to an offer to sell 200 ecstasy tablets at $30 each being a total value of $600 whereas count 1 relates to possession of a large quantity of methylamphetamine 443.19 g and count 2 relates to 243.6 g of a different type of drug, namely cannabis , valued at many thousands of dollars
The defence say that the circumstances of the offending disclose that the proposed evidence relate to offering to sell drugs over a telephone and leaving those drugs in the letterbox of his premises whereas counts 1 and 2 alleged Mr Wimbridge possessed large amounts of drugs that he stored in an area removed from his property ie the church yard.
The defence points to the different types of drugs involved that is, counts 1 and 2 relates to methylamphetamine and cannabis as opposed to MDMA in the proposed evidence ecstasy. The defence say there is no striking similarity between the proposed evidence and counts 1 and 2 and that, at most, what is established is a tendency to offer a relatively small quantity of MDMA on one occasion more than 12 years ago and by itself or in conjunction with other evidence it is not significantly probative value, of the question of whether Mr Wimbridge was in possession of the methylamphetamine and cannabis located in 2017.
The State say that the proposed evidence is significantly probative because it show a tendency and willingness on the part of Mr Wimbridge to be involved in the distribution of prohibited drugs for reward.
The State say the proposed evidence also shows Mr Wimbridge has a tendency and willingness to be involved in the distribution of prohibited drugs for reward by using a telephone service and coded words to refer to prohibited drugs.
The State says the proposed evidence has significant probative value because those tendencies increases the likelihood that Mr Wimbridge possessed the drugs the subject of counts 1 and 2.
Further the State says the tendency established by the proposed evidence negates any innocent explanation for Mr Wimbridge's DNA being located on items within the bag within which the prohibited drugs were located. In addition the State says it negates any suggestion that another person who was searching for the drugs in the church carpark, whom I am told in an unchallenged assertion from the bar table has drug convictions, was the sole possessor of the drugs.
The State accept that there is a lengthy lapse in time between the proposed evidence and the current offences but say that this factor alone is not determinative.
They point to cases such as Preston v The State of Western Australia [2012] WASCA 64 and Bennettv The State of Western Australia [2012] WASCA 70 where lengthy gaps between the offences the subject of the propensity evidence and the charged offence were said not to rob the propensity evidence of its significant probative value.
The fact that Mr Wimbridge some 12 years and 3 months earlier offered to supply ecstasy for reward is relevant to the jury's assessment of whether he was in possession of these drugs as, it shows that he had a tendency and willingness on the part of to be involved in the distribution of prohibited drugs for reward.
The lapse of time, the different nature of the drugs, the different value and quantities of the drugs, the difference in the general surrounding circumstances of the proposed evidence and the lack of any strikingly similarities or modus operandi in the mode of offending and the charged offences are all matters which tend to diminish the probative value of the evidence.
However the significant probative value of the evidence is found not just in the tendency that it establishes but also in its significance in rebutting the suggestion that his DNA was innocently found on the items within the black bag clipseal bags and sandwich bag).
The existence of Mr Wimbridge's tendency and willingness to be involved in the distribution of prohibited drugs for reward is evidence of significance when the jury consider whether Mr Wimbridge's DNA was on those bags as a result of an innocent association with those items or as a result of his involvement in drug dealing.
The proposed evidence is part of the circumstantial evidence that increases significantly the likelihood that his DNA is on those items because of his involvement in drug dealing. Not to allow that evidence to be led would result in the jury acting in a vacuum. Similarly it has relevance when the jury consider whether his assistance in searching the church grounds was because he was a 'good samaritan' or because of an interest in the prohibited drugs found in the church yard.
It is also relevant to the State's case in rebutting the potential defence suggestion that as one of the other searches had convictions for drug related matters the drugs were that searches alone.

Establishing Mr Wimbridge's tendency and willingness to be involved in the distribution of prohibited drugs for reward is of significant probative value when the jury considers each of those matters.
The proposed evidence would both by itself and having regard to the other evidence to be adduced rationally effect to a significant extent the probability of the existence of a fact in issue, that is whether or not Mr Wimbridge possessed the drugs the submit of counts 1 and 2.
Notwithstanding the generality of the tendency and that tendency is in excess of 12 years from the proposed evidence to the charged offence, the proposed evidence is capable of proving a tendency and willingness on the part of Mr Wimbridge to be involved in the distribution of prohibited drugs for reward.
Proof of that tendency does increase significantly the likelihood that Mr Wimbridge was in possession of the drugs the subject of counts 1 and 2 and is significantly probative in proving the identity of the person alleged to have committed those offence.
The propensity is identified at a high level of generality. However having regard to the other evidence to be adduced, (that is that Mr Wimbridge lived in close proximity to where the drugs were found, that he was involved in searching for the drugs on the day in question, that his DNA was found on items in the same bag with which the drugs were located including on some clipseal bags) the proposed evidence can be characterised as having significant probative value.
The interval of 12½ years between the proposed evidence and the counts on the indictment, does not deprive the proposed evidence of the significant probative value. Mere passage in time is not inconsistent with the proposed evidence having the tendency to which I have referred to and having significant probative value.
The differences between the scale of the drug dealing shown in the proposed evidence and the alleged current offences does not either alone or in combination with any other evidence deprive the proposed evidence of significant probative value.
The criminality displayed in the counts on the indictment is clearly greater than the objective criminality associated with the proposed evidence but that factor alone or in combination with other facts does not diminish the importance of the proposed evidence. Indeed on the State's case Mr Wimbridge's propensity has not only continued but has developed, intensified and flourished: Flessas v The State of Western Australia [2018] WASCA 210.
For a jury not to hear this evidence that Mr Wimbridge has an association in the past with the distribution of drugs for reward would leave them to consider the issue referred to above in a vacuum.
Accordingly, I am of the view that the proposed evidence has significant probative value in respect of counts 1 and 2.
In relation to counts 3 and 4 it seems from what was said at the directions hearing that the live issue is whether what was said by Mr Wimbridge was an offer to sell or supply drugs. That is the issue is whether the words used related to drugs dealing.
I note that no formal admission has been made that the author of the SMSs and the voice on the telephonic intercepts was Mr Wimbridge however I shall proceed on the basis that counsel has correctly identified the issues in relation to counts 3 and 4.
The defence repeats its previous arguments and points out that the counts 3 and 4 relate to offences involving methylamphetamine or cannabis and the proposed evidence relates to offering to sell or supply MDMA.
The State repeat their previous arguments and says that the proposed evidence also shows that Mr Wimbridge used codes when offering to sell or supply the drugs the subject of counts 3 and 4. In count 3 the State say the reference to the car and its sale is a coded reference in the context in which it was used to methylamphetamine (Brief pages 482.1 ‑ 482.3). In count 4 the state say the reference to the complete car is a coded reference to an ounce of methylamphetamine (Brief pages 550).
The proposed evidence is capable of proving that Mr Wimbridge has a tendency and willingness to be involved in the distribution of prohibited drugs for reward and proof of that significantly increase the likelihood that what was being discussed in the calls the subject of counts 3, 4 was drugs.
In addition the proposed evidence is capable of proving that Mr Wimbridge has a tendency and willingness to be involved in the distribution of prohibited drugs for reward and refer in his communications to those drugs in code. The proposed evidence has significant probative value.
I do not consider that the difference in the drug (the proposed evidence relates to MDMA and counts 3 and 4 relate to methylamphetamine is of any meaningful significance. That difference is a matter to consider as are the different quantities and value of the drugs, the lapse of time and the absence of any striking similarity in the manner in which the offers are made. Notwithstanding those limitations the proposed evidence does have significant probative value.
The likelihood that what Mr Wimbridge was discussing in the telephone calls or in SMSs was drugs increases substantially the probability that he committed the offence alleged in counts 3 and 4.
The time gap between the proposed evidence and counts 3 and 4 and the difference between the scale and magnitude of the proposed evidence and counts 3 and 4 does not deprive the proposed evidence of significant probative value. The differences between the scale or magnitude of Mr Wimbridge's drug dealing activities as shown in the proposed evidence as compared to counts 3 and 4 is not that significant. Similarly the objective criminality associated with counts 3 and 4 is not much different to the objective criminality associated with the proposed evidence.

Fair‑minded test

Having found that the proposed evidence has significant probative value, the court is required to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question and, whether 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.
DKA v The State of Western Australia [2017] WASCA 44 referred to a number of factors as being relevant to the fair-minded test.
Firstly, the court is required to assess the degree of risk of unfairness at trial that would be occasioned by the admission of the evidence in question.
Secondly, when assessing the risk the court must take into account any direction that might be given to the jury in attempting to overcome the prejudice and the 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 the comparison of the issues. Fair-minded people are reasonable members of the general community who are not lawyers, however it must be assumed that such people have informed themselves of at least the most basic consideration relevant to arriving at a conclusion founded on a fair understanding of all relevant facts.
The risk that the proposed evidence will be misused is that the jury may be believe that the accused is guilty of the charged offences merely because of the prior conviction or that the jury could become confused as they concentrate on resolving whether the accused actually committed the past offences or that they could condemn him because he escaped punishment from other offences.
In this case Mr Wimbridge did not escape punishment for the conduct the subject of the proposed evidence as he pleaded guilty to that offence accordingly the jury will not be required to spend time resolving the issue of whether he actually committed those offences.
Nevertheless, the risk remains that the evidence could be misused because a jury may have a strong tendency to believe the accused as guilty of the counts that he is charged with because they may reason that he is a person likely to do such acts because of the evidence led in respect of his past drug dealing.
The jury can be instructed in the proper use of the evidence.
The risk of the evidence misuse can be overcome by a jury direction about the basis of admissibility and the manner in which the evidence may and may not be used. It is well accepted the jury will accept and faithfully apply the directions of a trial judge.
If the proposed propensity evidence is not led the jury would be considering the case in a vacuum. 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.

Cross-admissibility of counts 1 - 4 inclusive

The defence argued in there written submissions that the difference between the conduct alleged in counts 1 and 2 and counts 3 and 4 and the different issues that the two sets of charges raise means that there is no cross-admissibility between the counts. At the directions hearing Mr Bates accepted that the evidence in relation to counts is cross‑admissible on the basis as outlined below
If the jury were satisfied beyond reasonable doubt that Mr Wimbridge was guilty of one count on the indictment that would be incapable in law of proving his guilty on any other count.
However if the jury were satisfied of guilt on one count and satisfied that showed Mr Wimbridge had a tendency to be involved in drug dealing and satisfied that he had that tendency at the time of the count they were then considering, that tendency is a piece of circumstantial evidence that the jury is entitled to take into account with all the other evidence admissible on that count in determining whether they are satisfied on the whole of the evidence that Mr Wimbridge is guilty of the count they are then considering.
Such a tendency could clearly be established by a finding of guilt on one count and would be propensity evidence and be evidence of significant probative value as to the issues in relation to the count or counts then being considered by the jury irrespective of whether that count is a possession based count such as counts 1 or 2 or an offer to sell or supply count such as counts 3 or 4. The tendency would significantly increase the likelihood that Mr Wimbridge possessed the drugs in counts 1 and 2 and that what was being referred to in the communication relevant to counts 3 and 4 was drugs. The fair-minded person test would for reasons previously expressed consider the public interest in the admission of that tendency evidence outweighed the risk of an unfair trial.
On that basis the evidence is cross-admissible in respect of the various counts on the indictment Mr Bates accepted that there was no basis to sever any of the counts on the indictment.
I shall however consider the severance application irrespective of that concession.

Severance

An indictment must contain only one charge unless the CPA or another written law permits otherwise: s 85 CPA. An indictment containing two or more charges must be tried together unless a court orders otherwise: CPA cl 9 sch 1.
Schedule 1 cl 7 of the CPA provides:
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)     form or are a part of a series of offences of the same or a similar character; or
(b)     are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)     are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.

Are the counts properly joined?

In determining this question the facts are taken at their highest from the State's point of view: Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302.

Do the offences form or are they part of a series of offences of the same or a similar character?

Offences are not required to be a string of closely connected offences to be considered a 'series of offences': Zammit [34]. Individual charges can be properly joined as a 'series of offences' even though they take place over a significant period of time or against a number of different victims: Donaldson v The State of Western Australia (2005) 31 WAR 122.
For offences to be of the same or similar character so as to permit joinder pursuant to cl 7(3)(a) a sufficient connection or nexus must exists between them. The words 'same or similar character' have a relatively wide reach: Zammit.
A nexus is established if the offences are so connected that the evidence on other counts would be admissible on the count the accused faces. A nexus can be established in ways other than the cross‑admissibility of evidence: Zammit, JAW v The State of Western Australia [2016] WASCA 40.
In Mansell v The State of Western Australia [2009] WASCA 140, Miller JA said [26]:
… What is required is a sufficient correlation to enable the offences to be described as a 'series', without straining the word beyond the meaning which it is reasonably capable of bearing: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 … the provision allowing joinder (cl 7(3)) should not be given 'an unduly restricted meaning': Zammit per Steytler P, at [27].
A nexus can be established by a connection between the facts relating to the offence, such as the time, place and other circumstances, as well as the legal character of the offences.
Counts 1 and 2 clearly have sufficient factual nexus. Both counts relate to prohibited drugs concealed within the same bag at the same location. They have sufficient legal nexus as both are counts of possession of a prohibited drug with intent to sell or supply.
Counts 3 and 4 are of the same factual and legal basis as each other.
There is sufficient nexus displayed in the facts, place, time or character of counts 3 and 4 for them to be said to be part of a series of offences of the same or similar character of counts 1, 2 within sch 1 cl 7(3)(a).
Possession of drugs with intent to sell or supply is a necessary step to making an offer to sell or supply a prohibited drug. The quantities of the drugs in counts 1 and 2 are such that the inference can be drawn that they were possessed for sale or supply. Significantly, the facts disclose that accompanying the drugs the subject of counts 1 and 2 where 23 unused clipseal bags from which a clear inference could be drawn that the drugs were to be broken down into smaller quantities and then offered for sale. Mr Wimbridge's DNA was found on some of those bags.
The nature of the drugs in counts 1, 3 and 4 is the same.
Factual and legally the charges all form part of a series of offences of the same or similar character. The offence of possession of a prohibited drug with intent to sell or supply is an offence of a similar kind to that of offering to sell or supply a prohibited drug. Before you can offer the drugs for sale you must, in most cases, possess them. The offering for sale or supply of smaller quantities of drugs than were allegedly possessed is quite consistent with the drugs being possessed being the stock in trade to be sold in smaller amounts. Charges associated with the possession of drugs such as possession of money reasonably suspected of being unlawfully obtained are regularly joined with possession with intent charges: Flessas v The State of Western Australia and joining offers to sell prohibited drugs with possession with intent charges in no different.
Counts 3 and 4 are properly joined with counts 1 and 2 pursuant to cl 7(3)(a).

Are the offences alleged to arise substantially out of the same or closely related acts or omissions?

The words 'arise substantially out of … the same or closely related acts or omissions' have a wide reach: Zammit. The question of whether the facts are closely related is one of degree but it appears that what is required is that the offences are traceable either in time, place or circumstance to common events: R v Collins; Ex parte Attorney‑General [1996] 1 Qd R 631, 637; Zammit.
There is a clear nexus in relation to counts 1 and 2, the nexus being provided by the time and place of those offences and nature of both charges. There is a clear temporal nexus between counts 3 and 4 as the alleged offences were committed within five weeks of each other and relate to offers made to sell or supply prohibited drugs and those offers were made by way of electronic communications and code was used.
However counts 1 and 2 and counts 3 and 4 cannot be said to arise 'substantially out of ... the same or closely related acts or omissions'.
In those circumstances I am not satisfied that sch 1 cl 7(3)(b) is satisfied.

Do the alleged offences arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose?

I am satisfied that counts 1 to 4 can be said to arise from a series of acts or omissions done in the prosecution of a single purpose pursuant to sch 1 cl 7(3). The purpose referred to in sch 1 cl 7(3)(c) has a broad meaning.
All counts on the indictment are offences which on the State's case arise from a series of acts done in a prosecution of a single purpose, that is Mr Wimbridge's drug dealing
All four offences are properly joined on the indictment pursuant to cl 7(3)(c) as acts done in the prosecution of a single purpose that is Mr Wimbridge's drug dealing enterprise.

Is there prejudice to Mr Wimbridge?

Even if charges are properly joined there are some circumstances where an accused is likely to be prejudiced by a joint trial and the court may sever the indictment. The prejudice referred to is a prejudice to the fairness of the trial.
In The State of Western Australia v Edwards [2019] WASC 87, Hall J stated:
It does not necessarily follow that because charges have been properly joined as forming a series of offences of the same or similar character, there must inevitably be a joint trial. The fact that there may be a nexus between charges does not exclude the possibility that, in some circumstances, a joint trial will be prejudicial to an accused and justify the exercise of the discretion to order separate trials pursuant to s 133 of the Criminal Procedure Act. The test to be applied in exercising this discretion differs from the requirements for charges to be joined on the same indictment.
Section 133 of the CPA provides:
133.   Separate trials, court may order
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order -
(a)     that the accused be tried separately on one or more of the charges; and
(b)     the prosecutor to tell the court the order in which the charges will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)     to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)     to so decide irrespective of the nature of the offence or offences charged; and
(c)     to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
When a court is called upon to exercise the discretion under s 133(3) to order a separate trial, it is necessary to consider whether there are reasonable grounds on which the court could properly be satisfied that an accused is likely to be prejudiced in the trial and that the likely prejudice is caused by the fact that the indictment also includes other charges or other accused. The matters that are said to give rise to the likely prejudice must be actual and not assumed and be likely to affect what happens in the trial itself.

A conclusion that an accused would be likely to be prejudiced at a joint trial does not necessarily require that a separate trial be ordered. It merely enlivens the discretion to make such an order. In considering whether to exercise that discretion regard must be had to whether any prejudice can be adequately guarded against by the giving of appropriate instructions to the jury.
The fact that evidence is admissible in respect of one count but not in respect of another is not, of itself, a sufficient reason to order separate trials. It is common in a joint trial that evidence admissible against only one accused or on only one count is received into evidence. Ordinarily, a properly instructed jury is capable of distinguishing between evidence admissible in only one respect. There will, however, be cases in which the prejudice is so great that it cannot be overcome.
On the other hand, if evidence on one charge is admissible in relation to another, no impermissible prejudice can arise. In Donaldson v The State of Western Australia, the evidence in respect of the charges was cross-admissible on a propensity basis: The State of Western Australia v) Edwards [184] - [187] (Hall J) (citations omitted).
In my view, the evidence is cross-admissible on a propensity basis for reasons which I have outlined. I would not order severance.
In exercising that discretion, regard must be given to whether the prejudice can be removed by a direction to the jury irrespective of the nature of the offence and irrespective of whether the evidence is admissible or cross‑admissible as the case may be: s 133(5) CPA; R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109.
Generally it is accepted that a properly instructed jury is capable of following the trial judge's direction: Kalani v The State of Western Australia[2013] WASCA 132. However it is acknowledged that there are some cases where the prejudice cannot be overcome by a direction: Zammit [65]; Leaman v The Queen (1987) 28 A Crim R 104, 112 ‑ 113.
There is the likelihood of some prejudice flowing because an uninstructed jury may consider that if Mr Wimbridge has committed some of the offences on the indictment he is therefore the type of person who is likely to have committed other offences or is a person of such bad character that the jury should convict irrespective of the evidence.
I am satisfied that this prejudice can be cured by direction. It is accepted that juries faithfully follow judges' directions.
The overriding question is whether separate trials are required to ensure a fair trial. That involves a consideration of the interests of the accused and the public interest: The State of Western Australia v Bowen[2006] WASCA 133; (2006) 32 WAR 81 [67] (Buss JA).
As Zammit points out, a single trial promotes consistency in decision‑making, promotes due and expedient administration of criminal justice, saves court time and expense and the convenience of witnesses.
I am satisfied that the counts are properly joined and the evidence in relation to each count is cross admissible on a propensity basis and that any prejudice to Mr Wimbridge can be remedied by judicial direction.
I find there to be no basis to sever the indictment.
The orders I make therefore are as follows:
1.The proposed evidence is admissible in respect of counts 1 to 4.
2.Subject to any ruling of the trial judge, the evidence advanced in relation to counts 1 and 2 is cross-admissible with counts 3 and 4 and vice versa.
3.The severance application be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
13 MARCH 2020