THE STATE OF WESTERN AUSTRALIA -v- DARKER [2024] WADC 57

Catchwords:
Evidence – Propensity evidence – Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) – Prior conduct – Cross-admissible conduct

[2024] WADC 57
[2024] WADC 57 [PB] Page 1
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION : PERTH
CITATION : THE STATE OF WESTERN AUSTRALIA -v- DARKER [2024] WADC 57
CORAM : PRIOR DCJ
HEARD : 15 JULY 2024
DELIVERED : 18 JULY 2024
PUBLISHED : 24 FEBRUARY 2025
FILE NO/S : IND 2287 of 2023
BETWEEN : THE STATE OF WESTERN AUSTRALIA
AND
MELISSA JANE DARKER
Catchwords:
Evidence – Propensity evidence – Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) – Prior conduct – Cross-admissible conduct
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
State’s application for propensity evidence granted
[2024] WADC 57
[2024] WADC 57 [PB] Page 2
Representation:
Counsel:
Applicant
:
Ms L G Hodson
Accused
:
Ms F M Lester
Solicitors:
Applicant
:
State Director of Public Prosecutions
Accused
:
Justine Fisher
Case(s) referred to in decision(s):
Asplin v The State of Western Australia [2013] WASCA 72
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Donaldson v The State of Western Australia [2005] WASCA 196
HML v R [2008] HCA 16; (2008) 235 CLR 334
La Bianca v The State of Western Australia [2019] WASCA 105
Mansell v The State of Western Australia [2009] WASCA 140
McPhillamy v The Queen [2017] NSWCCA 130
Onekawa v The State of Western Australia [2012] WASCA 105
R v Bishop [2012] WASC 390
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v JHN [2021] WASCA 225, 10
The State of Western Australia v Wark [2017] WASC 154
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PRIOR DCJ
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PRIOR DCJ:
Introduction
1
Melissa Jane Darker (the accused) is charged on indictment 2287 of 2023 with two counts of aggravated home burglary and commit.
2
By application dated 5 March 2024 the State applied for orders that in any trial on indictment 2287 of 2023, the State is permitted to adduce evidence of:
(a) the accused’s convictions, and conduct, on District Court indictment 1956 of 2022 as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA) (Evidence Act); and
(b) the alleged conduct of the accused relating to counts 1 and 2 on District Court indictment 2287 of 2023 as cross-admissible propensity evidence pursuant to s 31A of the Evidence Act (cross-admissible evidence).
3
With respect to the application to adduce evidence of the convictions and conduct of the accused on District Court indictment 1956 of 2022, the State pursues that application only in respect of counts 1 and 2 on indictment 1956 of 2022 (prior convictions).
4
Count 1 on indictment 1956 of 2022 is a charge of aggravated home burglary and commit and count 2 on indictment 1956 of 2022 is a charge of stealing. Both offences were committed on 2 August 2022 in Joondalup.
5
The State submits that the cross-admissible evidence and evidence of the prior convictions is admissible under s 31A of the Evidence Act as:
(a) it constitutes ‘propensity evidence’ as similar fact and/or other evidence of the conduct of the accused;
(b) it also constitutes ‘propensity evidence’ as evidence which shows the accused had a tendency to commit home burglary and commit offences (that is, enter into homes and steal items) in neighbouring streets in Joondalup between 1 and 2 August 2022;
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PRIOR DCJ
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(c) it is significantly probative as it goes to the facts in issues of whether the accused was the person that committed the alleged offences, because it tends to demonstrate that the accused was in very close vicinity to the location of the offences at the time of the alleged offending and that, at that time and in that location, she was entering into homes and stealing items; and
(d) the risk of unfairness in the present case can be adequately mitigated by the giving of appropriate directions to the jury and fair-minded persons would conclude that the public interest is in favour of adducing the cross-admissible evidence and prior convictions as evidence.
6
The State does not seek to admit the propensity evidence merely on the basis the accused has a propensity to commit home burglaries.
Summary of relevant prosecution facts
Count 1
7
Between 12.00 pm and 1.30 pm on 1 August 2022, the accused entered into the address at 22 Abitibi Turn Joondalup, where the complainant was home cleaning her house. The accused stole a number of items including the complainant’s Apple iPhone XS, cosmetic products and pink flannel pyjamas with a teddy bear print before leaving the property.
Count 2
8
At some time between the afternoon of 1 August 2022 and 9.00 am on 2 August 2022, the accused entered into 2 Curran Court, Joondalup. The complainant was home at the time. The accused stole a number of items including a black duffle bag the complainant had packed for an upcoming trip before leaving the property.
Prior convictions – indictment 2287 of 2023 – counts 1 and 2
9
At approximately 2.00 am on 2 August 2022, the accused entered into 9 Abitibi Turn, Joondalup by removing a flyscreen from a bedroom window and climbing into the room. The occupants of the house were asleep and awoke to the noise of the accused in the house. The male victim confronted the accused who was holding a backpack containing items from the bedroom. The victim escorted the accused from the property and called police. The accused stole shoes from the front of the property before leaving.
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PRIOR DCJ
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10
The accused was convicted following her guilty pleas and sentenced for offences of aggravated home burglary and stealing in the District Court on 1 August 2023.
11
The three addresses which are the subject of the indictment proceeding to trial and the previous convictions, are within a one-minute drive of each other.
12
Curran Court is a cul-de-sac that adjoins Abitibi Turn.
13
A walking bridge from Currambine Train Station connects to the closed end of the Curran Court cul-de-sac.
14
The accused and an unidentified male associate were seen on CCTV footage at Currambine Train Station at approximately 12.37 am on 2 August 2023 and at Joondalup Train Station at approximately 10.03 am on 2 August 2023.
Matters in issue
15
The accused has made no admissions at this stage but her counsel in her submissions has said, in respect of both counts on the indictment the live issue is the identity of the accused. The accused in her submissions accepts that an offence of burglary was committed for counts 1 and 2. The key question for the jury will then be, was the accused the principal offender or, criminally responsible for each home burglary the subject of counts 1 and 2 pursuant to s 7(c) or s 8 of the Criminal Code (WA).
16
The State case in relation to the identity of the accused as the offender in the offences the subject of counts 1 and 2, is based on circumstantial evidence.
17
If the propensity evidence is not admitted, the State will rely on some evidence as to the accused’s previous conviction as circumstantial evidence, that the accused was in the locality around the relevant days when the offences were committed. The State will also rely on some evidence in relation to count 1 as circumstantial evidence as to the burglar’s identity in count 2 and vice versa.
18
In considering this application, in addition to the oral submissions by both counsel, I have read:
(a) the prosecution brief;
(b) the State’s written submissions dated 5 March 2024;
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PRIOR DCJ
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(c) the accused’s written submissions dated 26 June 2024; and
(d) the transcript of the sentencing remarks by Flynn DCJ for the accused’s previous convictions in relation to indictment 1956 of 2022 dated 1 August 2023.
19
There are three requirements for the evidence to be admissible under s 31A of the Evidence Act:1

1. The first requirement is that the evidence comes within either or both of the definitions of propensity evidence and relationship evidence.
2. The second requirement is that the court must consider that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
3. The third requirement is 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.
   20
   The accused opposes the State’s application on the basis of each of the three requirements pursuant to s 31A of the Evidence Act have not been met by the State.
   21
   In The State of Western Australia v Jackson,2 the Court of Appeal observed that:
   49 [I]t is for the prosecution to prove each element of the offence, and to do so without the defence being required to disclose its answer(s) to the charge. In doing so, the prosecution must present the whole of its case foreseeing, so far as it reasonably can, any issue which the accused might raise, for the prosecution will not generally speaking, be permitted to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.
   (footnotes omitted)
   1 Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385 [171]; Asplin v The State of Western Australia [2013] WASCA 72 [30] – 33.
   2 The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 49.
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   PRIOR DCJ
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   A. Does the evidence meet the definition of propensity or relationship evidence under s 31A(1)(a) or s 31A(1)(b) of the Evidence Act?
   22
   The definitions of this type of evidence are wide.3 It includes more than common law similar fact evidence. As stated by Buss JA in Onekawa v The State of Western Australia:4
   … ‘propensity evidence’ is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. …
   23
   And by Pritchard J in The State of Western Australia v Wark:5
   [E]vidence which shows that a person has a natural or habitual inclination, or tendency, to do something, or to behave in a particular way, or a predisposition or inclination towards a particular action, habit or quality.
   24
   The threshold test for admissibility of any evidence is relevance. That is, the evidence 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.6
   25
   In HML v R7 Gleeson CJ made the following observation, which is useful in determining the issue of relevance:
   Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. …
   26
   In the accused’s submissions she has identified a number of factual differences between the offences the subject of counts 1 and 2 and the accused’s previous conviction for aggravated home burglary.
   27
   No home burglary is the same. The factual differences of home burglaries can vary widely. In my view, there are some significant similarities in relation to these three offences including:
4. All three offences occurred in a small discrete location in Joondalup.
   3 Jackson [20]; Asplin [30].
   4 Onekawa v The State of Western Australia [2012] WASCA 105 [43] (Buss JA).
   5 The State of Western Australia v Wark [2017] WASC 154 [41] (Pritchard J).
   6 Dair v The State of Western Australia [60].
   7 HML v R [2008] HCA 16; (2008) 235 CLR 334 [6].
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   PRIOR DCJ
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5. All three offences occurred within 24 hours on 1 – 2 August 2022.
6. Property was taken from all three homes.
7. The three homes were occupied when the burglaries occurred.
   28
   Given the width of the definition of the propensity evidence, I am satisfied the evidence, in particular the significant similarities I have described is propensity evidence for the two propensities, the State says it constitutes in [5(a)] and [5(b)] above.
   B. Does the evidence either by itself or having regard to other evidence to be adduced have ‘significant probative value’?
   29
   For evidence to possess significant probative value:8
   … it must be such as ‘could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: … 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’. …
   30
   The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A(2)(a) of the Evidence Act, were summarised by Beech JA in RMD v the State of Western Australia.9 I have taken into account those principles in deciding this application.
   31
   In Jackson10 the Court of Appeal made observations at [20] – [23] and [52] – [53] concerning the determination of whether propensity evidence has significant probative value within s 31A(2)(a) of the Evidence Act. I have taken into account those principles in deciding this application.
   32
   In The State of Western Australia v JHN,11 Buss P, Mazza and Vaughan JJA made these points:
   (a) The question of whether propensity evidence has significant probative value can only have one correct answer, although reasonable minds may sometimes differ as to the answer. An appellate court must determine for itself whether propensity
   8 Dair [61].
   9 RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]; La Bianca v The State of Western Australia [2019] WASCA 105 [24] – [26], [144].
   10 Jackson [20] – [23].
   11 The State of Western Australia v JHN [2021] WASCA 225 [118].
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   PRIOR DCJ
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   evidence possesses significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (A Pseudonym).
   (b) Propensity evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of the propensity evidence to support the credibility of a State witness’s account of the charged acts. See RMD [52] (Buss P).
   (c) The concept of propensity evidence and whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context; namely, the fact or facts in issue at the trial and the other evidence (including the other propensity evidence) adduced or to be adduced at the trial. See Lilley [61].
   (d) Section 31A substantially altered the common law. Propensity evidence is admissible under s 31A if the court considers that the test under each of the first and second limbs of s 31A(2) is satisfied. See Dair v The State of Western Australia.
   (footnotes omitted)
   33
   Significant probative value is not merely just relevant evidence.12
   34
   Deciding whether evidence is significant, will depend upon what facts are in issue at the trial, and the importance that the evidence has to the proof of those facts.
   35
   The proposed propensity evidence does have significant probative value in relation to the element on counts 1 and 2 that the accused was the person who burgled, or was an accessory to each burglary of the two homes in Joondalup on 2 August 2022. The evidence assists in placing her in close proximity and at a close time to when each home burglary was committed and therefore assists in the State proving her identity as the offender for each offence.
   36
   The evidence demonstrates that the accused had a tendency between 1 and 2 August 2022 to enter into homes and steal items in the neighbouring streets of Abitibi Turn and Curran Court in Joondalup.
   37
   The prior conviction propensity evidence also negates any proposition that the accused was not in the area around the time that the offences, the subject of counts 1 and 2 were committed. It may also rebut that she was in the area at the time for only lawful purposes.
   12 Dair [60] – [61] (Steytler P).
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   PRIOR DCJ
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   C. The fair-minded person test and risk to the accused of an unfair trial (s 31A(2)(b) of the Evidence Act)
   38
   In Dair, the Court of Appeal considered this question and directed that a court is required to do the following:13
   62 Once the evidence is found to have significant probative value, either by itself or taken with other evidence, the court must engage in the process contemplated by s 31A(2)(b). Because there will already have been an assessment of the probative value of the evidence (taking into account the purpose for which it is adduced and its likely effect when considered together with the other evidence), it is necessary, next, to assess the degree of risk of unfairness in the trial that will be brought about by the admission of the evidence.
   64 When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will 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. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto [27]. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, McHugh J said (235):
   If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning … And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment.
   (emphasis in original)
   13 Dair [62], [64], [66].
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   PRIOR DCJ
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   66 Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of ‘at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances’: Johnson [53] (Kirby J).
   39
   The relevant risk is the concern that the risk arises because a jury might use the propensity evidence in an impermissible way.14
   40
   In Mansell v The State of Western Australia15 the Court of Appeal said: ‘[A] jury will accept and faithfully apply the directions of a trial judge until the contrary is demonstrated’. There will be cases in which the prejudice is too great that it cannot confidently be concluded that it will be overcome.
   41
   In respect of the directions that might be given to minimise the risk of an unfair trial, it cannot be assumed such directions will in every case cure the prejudice.16
   42
   In considering the risk of an unfair trial to the accused, the probative value of the proposed propensity evidence should be considered in the context of the evidence as a whole.17
   43
   In order to exclude evidence which has significant probative value, the court must conclude that the prejudicial value of the propensity evidence is so great that it is difficult to be satisfied that even the strongest of warnings would be enough to overcome it.
   44
   The risk of an unfair trial to an accused if propensity evidence is led, will always depend on the particular circumstances of each case.
   14 Di Lena v The State of Western Australia [52], [59]; Donaldson v The State of Western Australia [2005] WASCA 196 [127] – [130]; Dair [62] – [67].
   15 Mansell v The State of Western Australia [2009] WASCA 140 [49].
   16 McPhillamy v The Queen [2017] NSWCCA 130 [83].
   17 R v Bishop [2012] WASC 390 [69] (Hall J).
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   PRIOR DCJ
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   45
   In considering the prejudice to the accused I am mindful that some of the evidence relating to the accused’s two previous convictions will be admissible as circumstantial evidence as to the accused being at the relevant location in close proximity in time when the burglaries the subject of count 1 and count 2 were committed. There is also common circumstantial evidence in relation to both count 1 and count 2. This means some of the proposed propensity evidence will be before the jury in any event as circumstantial evidence, but not necessarily as propensity evidence.
   46
   I consider fair-minded members of the community would expect to hear this evidence of the accused’s prior conduct, and also use the propensity evidence of each count as cross-admissible evidence in relation to each count, and the public interest of adducing this relevant evidence of guilt should have propriety over the degree of risk of an unfair trial in this case.
   47
   The directions the trial judge will give in this case as to how the propensity evidence can be used and not used, will not be too difficult for a jury to follow and comply with. These directions will mitigate the risk to the accused of an unfair trial.
   48
   I grant the State’s application for the propensity evidence it seeks to admit at the accused, Ms Darker’s trial.
   I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
   RR
   Associate to Judge Prior
   18 JULY 2024