The State of Western Australia v Zuideveld
[2023] WADC 91
•14 AUGUST 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ZUIDEVELD [2023] WADC 91
CORAM: LEVY DCJ
HEARD: 27 JULY 2023
DELIVERED : 3 AUGUST 2023
PUBLISHED : 14 AUGUST 2023
FILE NO/S: IND 612 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
BEN ZUIDEVELD
Catchwords:
Criminal law - Application for severance of the indictment - Whether counts properly joined on the indictment - Whether charges form part of a series of offences of same or similar character - Whether evidence constitutes 'propensity evidence' - Whether counts on the indictment cross-admissible - Whether counts should be severed
Legislation:
Criminal Code (WA), s 1, s 417
Criminal Procedure Act 2004 (WA), s 85, s 133, sch 1 div 2 cl 7
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6, s 11
Result:
Accused's application for severance refused
Representation:
Counsel:
| The State of Western Australia | : | Mr S Azad |
| Accused | : | Mr H Gawley |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Andrews Legal |
Case(s) referred to in decision(s):
Beck v The Queen; Smith v The Queen [1984] WAR 127
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Hoskins v Ramsden [2008] WASC 28
Hoskins v Ramsden [No 2] [2009] WASCA 90
Huggins v The State of Western Australia [2018] WASCA 61
Lau v The State of Western Australia [2017] WASCA 16
McLennan v Campbell [2003] WASCA 145
Packett v The King (1937) 58 CLR 190
R v Falzon [2018] HCA 29; (2018) 357 ALR 394
R v Kray [1970] 1 QB 125
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Ryan v Dimitrovski (1996) 16 WAR 457
Seiler v The Queen [1978] WAR 27
Sultana (1994) 74 A Crim R 27
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Karolides [2017] WASCA 111
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v WCM [2014] WASCA 38
Zammit v The State of Western Australia [2007] WASCA 66
LEVY DCJ:
[This decision was delivered extemporaneously on 3 August 2023 and has been edited from the transcript to correct matters of grammar, add headings and include complete references.]
The accused, Ben Zuideveld, stands charged on indictment 612 of 2022 with seven counts namely that:
Count 1 -
On 7 January 2021 at Bibra Lake [he] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another.
Count 2 -
On the same date and at the same place as in Count (1) [he] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another.
Count 3 -
On the same date and at the same place as in Count (1) [he] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another.
Count 4 -
On the same date and at the same place as in Count (1) [he] was in possession of a thing capable of being stolen, namely a sum of money, that is reasonably suspected to have been unlawfully obtained.
Count 5 -
On 20 January 2021 at East Victoria Park [he] was in possession of a thing capable of being stolen, namely a Rolex watch, that is reasonably suspected to have been unlawfully obtained.
Count 6 -
On the same date and at the same place as in Count (5) [he] was in possession of a thing capable of being stolen, namely a Patek Philippe watch, that is reasonably suspected to have been unlawfully obtained.
Count 7 -
On the same date and at the same place as in Count (5) [he] was in possession of a thing capable of being stolen, namely assorted gemstones, that are reasonably suspected to have been unlawfully obtained.
The accused now applies for severance of the indictment and seeks an order that Counts 1 to 4 be tried separately from Counts 5 to 7.
The State opposes the application and submits that all charges are properly joined on the indictment and that all charges should be dealt with together.
There are essentially two issues to be resolved. They are:
1.Are all counts on the indictment properly joined?
2.If they are properly joined, should the two sets be severed so that Counts 1 to 4 are dealt with separately to Counts 5 to 7?
The materials and submissions considered on the application
In determining the severance application, I have considered:
1.The State's Brief for Prosecution as of 26 July 2023.
2.The additional 38 photographs relating to a Samsung mobile phone, provided by the State under cover of an email dated 28 July 2023.
3.The accused's written submissions filed in support of the severance application (and application to abridge the return date of a summons) dated 20 July 2023 (Accused's First Written Submissions).
4.The State's written outline of submissions in relation to the accused's severance application dated 26 July 2023 (State's First Written Submissions).
5.The State's further outline of submissions filed after the hearing dated 28 July 2023 (State's Second Written Submissions).
6.The accused's further written submissions filed in response to issues raised by the State during the hearing of the accused's severance application on 26 July 2023 (Accused's Second Written Submissions).
7.The oral submissions made by counsel for the State and counsel for the accused at the hearing of the accused's application on 26 July 2023.
For the reasons that follow, I am satisfied that all charges are properly joined on the indictment and that any prejudice that may arise by their joinder can be properly dealt with by appropriate directions to the jury from the trial judge.
Summary of the State's Case
The State seeks to prove each offence in reliance upon both direct evidence and a body of circumstantial evidence. The State's case, particularly in relation to Counts 3, 4, 5, 6 and 7, is substantially a circumstantial one.
Counts 1 - 4: Offences allegedly committed on 7 January 2021
The State alleges that at about 12.45 pm on Thursday, 7 January 2021, the accused drove a white Mercedes sedan bearing very identifiable personal registration plates (referred to as XXXX for the purpose of these reasons) to a location outside an Australia Post building in Bibra Lake. At that location he was arrested by police.
It is alleged that, upon searching a bag found to be on the accused at the time, police found a small clip seal bag containing 5.12 g of methylamphetamine later analysed to be 71% purity. (Count 1)
It is alleged that police found a further quantity of methylamphetamine, located in a clip seal bag together with a smoking pipe, in the centre console of the accused's vehicle. This quantity is alleged to be 4.43 g at 65% purity. (Count 2)
It is alleged that the accused was also found to be in possession of a number of mobile phones, including a Samsung Galaxy, at the time. It is alleged that he had an encrypted communications device in his possession.
Following the search of the accused and the Mercedes, police executed a search warrant at a nearby commercial workshop in Bibra Lake. At this address police located a four-wheel-drive Ford Ranger utility bearing registration plates (referred to as YYY for the purposes of these reasons). It was locked within the workshop.
The State alleges that a search of the Ford Ranger revealed a magnetic box attached to its chassis. Inside the magnetic box, police allegedly found three further quantities of methylamphetamine being:1.24 g; 4.18 g at 72% purity and 8.71 g at 54% purity. (Count 3)
Within the workshop police located numerous clip seal bags, electronic scales, an expandable batten, a taser and bullets. The workshop also had a sophisticated security camera system outside and inside the premises.
The white Mercedes was also searched at the workshop in Bibra Lake. It is alleged that within the boot-lining of that vehicle, police located two large bundles of Australian currency totalling $20,915. (Count 4)
The State's case is that the accused was in possession of each quantity of the methylamphetamine the subject of Counts 1 to 3 with an intent to sell or supply it to another.
The money the subject of Count 4 is, on the State's case, money that the State alleges in reasonably suspected to have been unlawfully obtained by the accused through drug dealing.
Counts 5 - 7: Offences allegedly committed on 20 January 2021
At about 9.30 am on 20 January 2021, it is alleged that the accused was stopped in Como driving the Ford Ranger bearing a personal number plate (simply referred to as YYY for the purposes of these reasons). He was arrested on suspicion of being in possession of methylamphetamine with intent to sell or supply to another. The accused was conveyed to his home address in East Victoria Park where police conducted a search of the premises.
The State alleges that in the Ford Ranger police located the following:
•3 three Samsung mobile phones;
•a white Apple iPhone; and
•a Google mobile phone.
The State alleges that on one of those Samsung mobile phones, various messages associated with drug dealing were located (see pages 1 to 38, photographs of a Samsung Galaxy mobile phone and various messages allegedly located on the device, sent under cover of an email from Mr Shaban Azad, State Prosecutor, dated 28 July 2023). The State submits that these messages, especially those with someone identified as 'hanZyl', demonstrate the accused's ongoing connection with illicit drug activity.[1]
[1] State's Second Written Submissions, par 2.
A search of the ceiling space of the accused's residence allegedly revealed the following items that were seized by police:
1.A Rolex watch - estimated value $17,900. (Count 5)
2.A Patek Philippe watch - estimated value $16,500. (Count 6)
3.Gemstones - estimated to be worth $20,238. (Count 7)
The State's case is that, in relation to each of Counts 5 to 7, the property is reasonably suspected to have been obtained by the accused unlawfully, namely through drug dealing.[2]
[2] Mr Azad, counsel for the State, oral submissions, 27 July 2023, ts 47.
Defence case in relation to Counts 1 - 3
The accused has indicated his intention to plead not guilty to each count on the indictment at his trial listed to commence on 18 September 2023. No admissions have been made by the accused. Consequently, the State will be required to prove all elements of each offence and any fact relevant to the proof of such element.
It is relevant to set out the elements of the offences that the State is required to prove.
In relation to each of Counts 1 to 3 (the drug offences brought pursuant to s 6(1) of the Misuse of Drugs Act 1981 (WA)) (MDA), the State is required to prove the following elements beyond reasonable doubt:
1.That the accused was in possession of the substance relevant to each count.
2.That the substance was a prohibited drug.
3.That the accused intended to sell or supply the substance (being a prohibited drug) to another person.
On each of Counts 1 to 3, given that the quantity alleged is more than 2 g, subject to the State proving beyond reasonable doubt that the accused was in possession of the relevant substance and that it was a prohibited drug, he will be deemed to have been in possession of a prohibited drug with intent to sell supply to another, unless he proves on the balance of probabilities that he did not intend to sell or supply all or any part of the drug in question (s 11 of the MDA).
The onus of proof in relation to the defence is on the accused on the lesser standard of the balance of probabilities.
In relation to each of Counts 4 to 7 (offences charged under s 417(1) of the Criminal Code (WA)) (the Code), the elements of each offence are as follows:
1.That the accused was in possession of the money or property alleged (including that the accused intended to possess the thing in question[3]).
2.The money or property is a thing that is capable of being stolen.
3.The money or property is reasonably suspected of being unlawfully obtained (underlining and emphasis added).
[3] See Lau v The State of Western Australia [2017] WASCA 16 [74] in relation to possession as defined pursuant to s 1 of the Criminal Code.
In the event that the State proves each of the above elements beyond reasonable doubt, the law provides for a defence, namely that at the time an accused was in possession of the money or property, he had no reasonable grounds for suspecting that the thing was unlawfully obtained. If he proves that on the balance of probabilities, he is not guilty (s 417(2) of the Code).
The onus of proof is on the accused on the lesser standard of the balance of probabilities.
I have set out the elements of each offence and the statutory defences that may apply because, as things currently stand, the accused has not made any admissions or advised the State of any matter which he contends that the State cannot prove with respect to the factual elements of the offences with which he is charged (s 96(3)(c) of the Criminal Procedure Act 2004 (WA)) (CPA). Consequently, the State must lead all relevant evidence, including evidence that may be relevant to any potential defence raised by the accused.[4]
[4] The State of Western Australia v Jackson [2019] WASCA 118 [49].
The State's submissions
The State originally filed written submissions filed on 26 July 2023 opposing the accused's application for severance. Those submissions were to the effect that:
1.Each of the offences on the indictment were 'cross‑admissible with one another'.[5]
2.That if the jury were satisfied beyond reasonable doubt that the accused committed,[6]
one or more of the drug or property offences on either date, then proof of that offence(s) is capable of establishing that the accused had a tendency to:
a)deal in drugs, specifically methylamphetamine: and
b)accumulate cash and other valuable items, connected to drug dealing in drugs.'
[5] State's First Written Submissions, par 3.
[6] State's First Written Submissions, par 5.
Consequently, the State originally applied for the evidence of each count to be led as propensity evidence on each of the other counts on the indictment. The application was brought pursuant to s 31A of the Evidence Act1906 (WA) (EA).
At the hearing of the accused's application for severance however, although the State contended that all counts on the indictment were properly joined, the State took a different position as to the basis for the admissibility of the evidence relating to the two separate blocks of charges.
First, the State's position with respect to whether the evidence on each count constitutes 'propensity evidence' was somewhat equivocal. Obviously, the State's First Written Submissions alleged all of the evidence was cross-admissible as propensity evidence pursuant to s 31A of the Evidence Act.
Secondly, at one stage during oral submissions, the learned State prosecutor appeared to abandon any reliance upon the relevant evidence on one count as being propensity evidence on another count.[7] Later however, the learned prosecutor seemed to be suggesting that although not forcefully pressed, the propensity application was not entirely abandoned, albeit it may need to be 'narrowed' to 'the counts of like offending.'[8] Consequently, I will proceed on the basis that the State has not abandoned its application to rely upon the evidence of all counts as propensity evidence pursuant to s 31A of the EA at the trial. However, it will be a question for the trial judge to determine whether any evidence does constitute propensity evidence and if so, what directions may be appropriate at the end of the evidence.
[7] Mr Azad, counsel for the State, oral submissions, 27 July 2023, ts 33.
[8] Mr Azad, counsel for the State, oral submissions, 27 July 2023, ts 43.
Thirdly, so far as the severance application is concerned, despite not abandoning its propensity evidence application pursuant to s 31A of the EA, the State does not now rely upon the evidence on each count as being cross-admissible as propensity evidence as a basis for the court concluding that the charges are all properly joined. Rather, the State's position is that the evidence relating to each count was relevant and admissible as circumstantial evidence going to the following issues:[9]
1.Whether the accused was in possession of either drugs or the money or property (all counts).
2.Whether there is a reasonable suspicion that the money or property was unlawfully obtained through drug dealing (Counts 4 to 7).
3.Any defence that the accused may raise to the effect that at the time he was in possession of the money or property, he had no reasonable grounds for suspecting that the money or property was unlawfully obtained (Counts 4 to 7).
[9] Mr Azad, counsel for the State, oral submissions, 27 July 2023, ts 37 and ts 38.
The State did not, as erroneously submitted by the accused's counsel,[10] abandon reliance upon Counts 5 to 7 as being admissible in relation to Counts 1 to 4.[11] However, as I understand the State's position, the substantive argument as to why it contends that all the charges are properly joined is based upon the submission that the evidence in relation to Counts 1 to 4 is circumstantial evidence relevant to the charges on Counts 5 to 7 and vice versa.
[10] Accused's Second Written Submissions, pars 12
[11] Mr Azad, ts 64.
In any event, merely because circumstantial evidence may also in fact be propensity evidence does not mean that, in the absence of a court ruling that the evidence be admitted for propensity purposes, the circumstantial evidence is therefore inadmissible.[12]
[12] Sultana (1994) 74 A Crim R 27, 29 (Gleeson CJ), cited with approval by the High Court in R v Falzon[2018] HCA 29; (2018) 357 ALR 394 [37] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ). .
The accused's submissions
The accused submits that:
1.The charges are not properly joined for various reasons.
2.The accused will be unfairly prejudiced at his trial if all the offences are tried together.[13]
[13] Accused's First Written Submissions, par 41.
So far as the prejudice issue is concerned, the accused submits that there is a real risk that the jury will engage in impermissible propensity reasoning if the property offences are tried together with the drug offences.
Although the Accused's First Written Submissions appear to suggest that the Counts 1 to 3 should be tried separately from all of the property offences (because of the prejudice and risk of impermissible propensity reasoning by the jury arising in circumstances where, if the accused were convicted of the property offences, they might reason that that the accused was of bad character[14]), the accused does not contend that Counts 1 to 3 should not be tried together with Count 4.[15]
[14] Accused's First Written Submissions, par 43.
[15] Accused's First Written Submissions, par 1.
The accused also submits that 'a finding of Guilt in respect to Counts 1, 2 and 3 and potentially Count 4, cannot be relevant circumstantial evidence which a jury could have regard to for the purpose of its deliberations and verdict in respect to Counts 5 -7'.[16]
[16] Accused's Second Written Submissions, par 4.
The accused's submission is that, since the State is required to prove that 'at the time of the alleged offence, investigating Police had a reasonable suspicion that the accused was in possession of a thing which was stolen/unlawfully obtained'.[17] (emphasis and underlining added)
[17] Accused's Second Written Submissions, par 7.
Consequently, the accused submits that any evidence, information, or matter that occurs later, or comes to the attention of the investigating officer or officers after the date of the alleged offence cannot be relevant to the question of the reasonableness of the suspicion they held at the time of the offence.[18]
[18] Accused's Second Written Submissions, pars 4 - 11.
The accused's counsel fundamentally misunderstands both the elements required to be proved and the basis for the admissibility of the evidence.
First, the issue of whether there is a reasonable suspicion that the money or property was unlawfully obtained by the accused is a question for the jury to determine, based upon all of the relevant evidence, at the time of the prosecution.[19] The State is not required to prove, as an element of the offence, that the investigating officer had a reasonable suspicion at the time he arrested the accused or seized the thing.
[19] Ryan v Dimitrovski (1996) 16 WAR 457 (Steytler J (as he was then)); and Hoskins v Ramsden [2008] WASC 28 [14] - [16]; McLennan v Campbell[2003] WASCA 145 [27].
Furthermore, the admissibility of the evidence relevant to the question of whether the accused was in possession of methylamphetamine is not predicated upon whether the accused is convicted of a drug offence. That is because the State is not required to prove beyond reasonable doubt that the thing the subject of each property offence was actually stolen or otherwise unlawfully obtained. The section does not require any certainty greater than suspicion to be established.
Consequently, the State is only required to prove beyond reasonable doubt that a reasonable suspicion, open on the evidence before the court, is that the thing was unlawfully obtained.[20]
[20] Hoskins v Ramsden [No 2] [2009] WASCA 90 [29].
The evidence that the accused was in possession of methylamphetamine, for reasons elaborated upon below, is admissible as circumstantial evidence going to the question of whether there is a reasonable suspicion that the property the subject of Counts 5 to 7 was unlawfully obtained.
The law relating to the joinder of charges
Section 85 and sch 1, div 2 of the CPA set out the requirements relating to indictments brought in Western Australia.
Section 85 makes clear that sch 1 has effect in relation to indictments and charges in them. It also mandates that an indictment must:
(a)be in writing in a prescribed form; and
(b) must comply with Schedule 1 Division 2.
Clause 2(3) prescribes that:
A prosecution notice or indictment must contain one charge only, unless clause 7 or another written law permits otherwise.
Clause 7(3) permits one or more charges to be brought against a person on the one indictment 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.
Clause 9(1) of sch 1 provides, relevantly and in effect, that if two or more charges are properly joined on an indictment those charges must be tried together unless a court orders otherwise under the Criminal Procedure Act.
Section 133(3) of the CPA provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of an indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges. The application of s 133 of the CPA is considered further below in the context of the second issue, namely whether if the charges are properly joined, Counts 5 to 7 should nonetheless be severed from the indictment.
First issue: Are all the counts properly joined on the indictment?
Relevantly, as far as this application is concerned, the State submits that all counts are properly joined on the one indictment.[21]
[21] Mr Azad, counsel for the State's oral submissions, 27 July 2023, ts 30 -31.
The accused objects to the joinder of the two sets of charges.
The joinder of Counts 1 to 4 with Counts 6 to 7; cl 7(3)(a)
Clause 7(3)(a) allows joinder if the charges 'form or are a part of a series of offences of the same or a similar character'.
In Zammit v The State of Western Australia,[22] Steytler P as he then was, noted that '[t]he meaning of the words "series of offences of the same or a similar character", which appear in cl 7(3)(a), has been considered in cases in Australia and in the United Kingdom'. Steytler P considered many of the relevant cases. In my view, the following propositions can be distilled from the relevant cases.
[22] Zammit v The State of Western Australia [2007] WASCA 66.
Firstly, as far as the question of what amounts to a series of offences of the same or similar character, both the law and the facts 'should be taken into account in deciding whether the offences are similar or dissimilar in character.'
Secondly, if the offences are the same or similar in character, they may constitute a series. However, for them to constitute a 'series of offences' there needs to be 'some connection between the alleged offences.'[23]
[23] Packett v The King (1937) 58 CLR 190, 207 (Dixon J).
Thirdly, leaving aside offences of the same character, where a court is considering whether the similarity between the offences justifies their joinder, a conclusion that they are properly joined may arise from a consideration of the nature of the offences charged themselves, without there being a need for any factual connection between them.[24] However, the conclusion that two or more offences are properly joined as being part of a series of offences of the same or similar character will obviously be strengthened if there is not only a similarity between them in terms of the law but also some factual nexus between the offences, in effect establishing 'a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'.[25]
[24] Seiler v The Queen [1978] WAR 27, 32.
[25] Beck v The Queen; Smith v The Queen [1984] WAR 127, 133.
Furthermore, as Steytler P noted in Zammit with reference to R v Kray,[26] a nexus between charges will be established if the evidence on one count is cross-admissible on another.
[26] R v Kray [1970] 1 QB 125.
There is no dispute that:
1. Counts 1 to 4 (the drug and property offences alleged to have occurred on 7 January 2021) are properly joined with each other.
2. Counts 1 to 3 (drug offences) are a series of offences of the same or similar character - cl 7(3)(a).
3. Count 4 (property offence) is properly joined with Counts 1 to 3 as they are alleged to arise substantially out of the same or closely related acts or omissions; arise out of - cl 7(3)(b)).
(In any event, the evidence in relation to Count 4, namely whether the accused possessed $20,915 at the time he was allegedly in possession of prohibited drugs, is clearly relevant and admissible circumstantial evidence in relation to the issue of whether he intended to sell or supply any or all of the drugs.)[27]
4. Counts 5 to 7 (the property offences alleged to have occurred on 20 January 2021) are properly joined as they are a series of offences of the same or similar character pursuant to cl 7(3)(a).
[27] R v Falzon [1] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ).
In his oral submissions on the hearing of the accused's severance application, Mr Azad for the State submitted that:[28]
•Counts 1 to 3, the drug offences, are each cross‑admissible against each other; and
•Counts 4 to 7, albeit they were not all committed on the same day, are each cross-admissible against each other; and
•Counts 4 to 7 are, as group, cross-admissible against Counts 1 to 3.
[28] Mr Azad, counsel for the State, oral submissions, 27 July 2023, ts 32.
I am satisfied that the two sets of charges are properly joined on the indictment for the reasons that are explained below.
When the words of cl 7(3)(a) are properly analysed, the focus is on whether the joined offences 'form or are a part of a series of offences of the same or a similar character'.
As far as Count 4 on the first set and Counts 5 to 7 on the second set are concerned, they are clearly each of the same character. Each is an offence charged pursuant to s 417 of the Code. Each charged offence alleges that the accused was in possession of either money or property alleged by the State to have been unlawfully obtained through drug dealing.
Whilst there are different things alleged to have been in the accused's possession on each of Counts 4 to 7, they are all offences of the same character.
Even if they are not, they are at the very least offences of a 'similar character'. The word 'similar' is to be given its ordinary English meaning and applied to the context of the case. 'Similar' is defined by the Shorter Oxford Dictionary to include 'of the same nature or kind'.[29]
[29] Shorter Oxford English Dictionary, 1993, Vol 2, page 2865.
Neither the fact that the thing alleged to have been in the accused's possession is different on each count, nor the separation in time between the events the subject of Counts 4 and Counts 5 to 7 (a period of 13 days) either alone or in combination is sufficient to deny the offences their proper interpretation. Counts 4 to 7 are a 'series of offences of the same or similar character'.
Furthermore, leaving aside the question of whether the evidence in relation to Counts 5 to 7 (property offences) is admissible in relation to any of the counts on the first set (Counts 1 to 4), the evidence in relation to at least Counts 1 to 3 is relevant and admissible as common law circumstantial evidence in relation to each of Counts 5 to 7.
As already noted above, the State alleges that the various things alleged to have been possessed by the accused on each of Counts 5 to 7 was unlawfully obtained by him through drug dealing. Consequently, proof that the accused is guilty of any of Counts 1 to 3 (drug offences) would be powerful circumstantial evidence relevant to proving that the various things possessed by the accused on 20 January 2021 is suspected to have been unlawfully obtained. If proved, that establishes a clear nexus between Counts 1 to 3 on the first set, with Counts 5 to 7 on the second set.
All counts on the indictment are properly joined.
Second issue: Should Counts 5 to 7 be severed from the indictment pursuant to s 133 of the CPA?
I turn to s 133 of the CPA which provides, relevantly, as follows:
(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.
As already noted above, the accused submits that he will suffer 'unacceptable prejudice' if both sets of charges are dealt with together because there is a risk that the jury will engage in impermissible propensity reasoning.
In Huggins v The State of Western Australia[30] the court considered the meaning and effect of s 133(3). Relevantly the Court of Appeal noted:
1.The discretion to order separate trials under s 133(3) is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges.[31]
2.The words 'in the trial' means in the hearing at which the verdict on each charge the subject of a prosecution notice or indictment is determined on the evidence adduced at that hearing.[32]
3.The likely prejudice must be actual, not assumed, and must be in the trial itself.[33]
4.Significantly, s 133(3) is only concerned with impermissible or improper prejudice, not prejudice that may flow from the strength of admissible evidence.[34] Thus, in this case, if the evidence the subject of Counts 5 to 7 is otherwise admissible against the accused on any of Counts 1 to 4, then it could not be said to be 'impermissible or improper prejudice'.
5.Furthermore, s 133(5)(a) provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment containing two or more charges, and the court is considering whether to order separate trials of the charges, it is open to the court to decide that any likelihood of prejudice 'can be guarded against' by direction to the jury and, in consequence, to decline to order separate trials.[35] That is so even if the evidence on one of the charges is inadmissible on another.
[30] Huggins v The State of Western Australia [2018] WASCA 61.
[31] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [94]; The State of Western Australia v Micalizzi [2010] WASCA 147 [23]; Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326, referring to s 133(4); [335]; In Huggins v The State of Western Australia.
[32] In Huggins v The State of Western Australia.
[33] The State of Western Australia v Micalizzi [25].
[34] The State of Western Australia v WCM [2014] WASCA 38 [32], [40].
[35] Donaldson v The State of Western Australia [95], [98]; Russell v The State of Western Australia [336].
To that end, even if I find that the evidence on counts 5 to 7 is not admissible on one or more of the other counts, it would not prevent me from refusing the application for Counts 5 to 7 to be severed if I concluded that a proper direction to the jury would adequately remove any likely prejudice arising from it remaining on the indictment.[36]
[36] The State of Western Australia v Karolides [2017] WASCA 111 [32].
I am not presently satisfied that the evidence in relation to Counts 5 to 7 is admissible in relation to Counts 1 to 3 on the indictment. I am therefore satisfied that there is a risk that the jury will impermissibly take into account the evidence on Counts 5 to 7 when considering Counts 1 to 3.[37]
[37] Donaldson v The State of Western Australia [94]; Russell v The State of Western Australia, referring to s 133(4); [335]; In Huggins v The State of Western Australia.
I am also satisfied that the likely prejudice is actual, not assumed, and will arise in the trial itself.[38]
[38] The State of Western Australia v Micalizzi [25].
However, it is well established that s 133(3) is only concerned with impermissible or improper prejudice, not prejudice that may flow from the strength of admissible evidence.[39]
[39] The State of Western Australia v WCM [32], [40].
In circumstances where the evidence on Counts 1 to 3 (and indeed Count 4) is admissible as relevant circumstantial evidence it cannot be said that the joinder of the charges themselves gives rise to impermissible prejudice.
The State's case, both in relation to the first set and second set of charges is that the accused was involved in dealing with illicit drugs during the entire period spanning all charges. The State is entitled to lead all relevant evidence to prove that contention in circumstances where such evidence is central to all counts on the indictment.
Any risk of an unfair trial can be adequately dealt with by proper directions from the trial judge.
The accused's application for severance of the indictment is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
11 AUGUST 2023
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