Criminal Procedure Act 2004 (WA), s 98, s 133(3)

Evidence Act 1906 (WA), s 31A

Applications by the State for propensity/tendency evidence granted

Asplin v The State of Western Australia [2013] WASCA 72

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

CGF v The State of Western Australia [2023] WASCA 187

Chuguna v The State of Western Australia [2024] WASCA 134

Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385

Di Lena v The State of Western Australia [2006] WASCA 162

Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644

DKA v The State of Western Australia [2017] WASCA 44

Donaldson v The State of Western Australia [2005] WASCA 196

Flessas v The State of Western Australia [2018] WASCA 210

GNW v The State of Western Australia [2024] WASCA 164

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338

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

NTH v The State of Western Australia [2020] WASCA 22

Onekawa v The State of Western Australia [2012] WASCA 105

Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347

R v Bishop [2012] WASC 390

RMD v The State of Western Australia [2017] WASCA 70

The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285

The State of Western Australia v JHN [2021] WASCA 225

The State of Western Australia v Wark [2017] WASC 154

1. GJS (the accused) is charged on indictment 832 of 2024 (the indictment) with two offences contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) of possessing a prohibited drug, namely methylamphetamine with intent to sell or supply it to another.
2. Both counts on the indictment involve a trafficable quantity of methylamphetamine.
3. Count 1 relates to 158.14 g of methylamphetamine found on 6 May 2023 in a magnetic box in the car park area of the High Wycombe Village Shopping Centre at 530 Kalamunda Road in High Wycombe.
4. Count 2 relates to 111.2 g of methylamphetamine found on 23 May 2023 in a black satchel bag inside a room of the Great Eastern Motor Lodge in Rivervale.
5. The matter is listed for a trial commencing on 12 August 2025.
6. By application dated 8 August 2024, the State has applied to adduce evidence of:
   1. The conduct of the accused person relating to an offence contained in indictment KAR 26 of 2014 (KH 533/14) in respect of which the accused pleaded guilty in the District Court held in Karratha on 14 December 2014;
   2. The conduct of the accused person relating to an offence contained in indictment KAR 50 of 2014 (KH 2889/14) in respect of which the accused pleaded guilty in the District Court held in Perth on 24 April 2015;
   3. The conduct of the accused person relating to an offence contained in Prosecution Notice KAR 2418/20 in respect of which the accused pleaded guilty in the Magistrates Court held at Karratha on 12 May 2022;
   4. The conduct of the accused person relating to an offence contained in Prosecution Notice KAR 2420/20 in respect of which the accused pleaded guilty in the Magistrates Court held at Karratha on 12 May·2022; and
   5. The conduct of the accused person relating to an offence contained in Prosecution Notice KAR 1968/20 in respect of which the accused pleaded guilty in the Magistrates Court at Karratha on 12 May 2022.

(Collectively, the Proposed Historical Conduct Propensity Evidence).

1. By the same application dated 8 August 2024, the State has also applied for an order that each count on the indictment be cross-admissible with the other count on the indictment (the Proposed Cross-Admissible Tendency Evidence).
2. Both of the State's applications are made pursuant to s 31A of the Evidence Act 1906 (WA).
3. The accused by an application dated 13 January 2025 seeks an order that the two counts on the indictment be severed and tried separately (Severance Application).
4. The accused's application for severance is made pursuant to s 98 and s 133(3) of the Criminal Procedure Act 2004 (WA).
5. At the hearing before me on 3 February 2025 counsel for both parties agreed that the applications should be decided in the following order:
   1. The State's Proposed Cross-Admissible Tendency Evidence.
   2. The accused's Severance Application.
   3. The State's Proposed Historical Conduct Propensity Evidence.
6. At the hearing before me on 3 February 2025 counsel for both parties agreed that if the State's application for Proposed Cross-Admissible Tendency Evidence succeeds, the accused's application for severance of the two counts on the indictment should be dismissed.
7. In relation to the State's application for Proposed Cross-Admissible Tendency Evidence, the State submits the evidence shows a tendency by the accused to be associated with prohibited drugs namely methylamphetamine in substantial amounts, and a tendency to distribute methylamphetamine for financial gain. Therefore, the evidence of count 1 is cross-admissible in relation to the jury determination of count 2 and vice versa. The State also relies upon the close temporal connection in time between count 1 and count 2 and the significant quantities of methylamphetamine involved in each count.
8. The Proposed Cross-Admissible Tendency Evidence relating to count 1 or count 2 the State submits, is circumstantial evidence which the jury can consider along with all the other evidence relevant to that other count to decide if that other count on the indictment has been proved by the State.
9. In relation to the State's application for the Proposed Historical Conduct Propensity Evidence, the State submits the evidence shows a tendency by the accused to be associated with prohibited drugs, namely, methylamphetamine and a tendency to distribute the methylamphetamine for financial gain.
10. In relation to both types of tendency or propensity evidence, the State submits it is admissible under s 31A of the Evidence Act as:

(a) it is significantly probative as it goes to a fact in issue, namely, whether the accused was in possession of the methylamphetamine and his intention in respect of that methylamphetamine; and

(b) the risk of unfairness is low considering the relevant facts in issue, and as such, fair-minded people would conclude that the public interest is in favour of adducing the evidence.

1. The accused has not indicated he will make any admissions at his trial. As a result at this stage, I approach these applications in relation to the tendency or propensity evidence on the basis the State must prove all elements of both charges on the indictment.
2. The written and oral submissions of the accused in response to the State's applications indicated the issues which will likely be in dispute at the accused's trial as follows:
   1. Did the accused have possession of the relevant amounts of methylamphetamine found the subject of counts 1 and 2?
   2. Did the accused have knowledge of this methylamphetamine and exercise dominion or control over it and intended to possess it?
   3. If the accused did possess the methylamphetamine the subject of counts 1 and 2, did he possess it with intent to sell or supply some of it to another person?
   4. In relation to count 1 was the accused an occupant of the Range Rover motor vehicle when the small black magnetic box fell from it?
3. Both parties accept the prosecution case for counts 1 and 2 on the indictment are based on circumstantial evidence and will require the jury to engage in inferential reasoning. The accused accepts the State's circumstantial case is stronger for count 2.
4. The trial judge will therefore be required to give directions to the jury at the accused's trial on circumstantial evidence and inferential reasoning.
5. I have considered the following material in deciding the various applications.
   1. The amended statement of material facts dated 12 August 2024.
   2. The prosecution brief.
   3. The State's submissions dated 8 January 2025 and 21 January 2025. Annexed to the submissions of 8 January 2025 are the court transcripts relating to the accused's five historical convictions, certifications of the court outcomes for these convictions and the accused's criminal history.
   4. The accused submissions dated 13 January 2025.
   5. The oral submissions made by counsel at the hearing on 3 February 2025.

1. The accused resides in Nickol, Western Australia. He is the manager for a family business. A 2010 silver Land Rover Range Rover station sedan vehicle, registration **** 872 (Range Rover).

1. On 6 May 2023, the accused was staying at the Crown Casino in Burswood where closed-circuit television (CCTV) footage shows him walking to the Range Rover.
2. Later the same day, the accused or someone else, was driving the Range Rover through the car park of the High Wycombe Village Shopping Centre. After the Range Rover went over a speed bump, a witness heard something fall from the vehicle and, as the accused or the driver drove off, the witness saw a box on the ground. The witness became suspicious of the contents of the box after a brief examination and took it home with him and called police.
3. After seizing the box and contents, police officers identified that it contained three separate bags of methylamphetamine. Certificates of approved analyst confirm the contents of the black magnetic box as:

(a) 27.7 g of methylamphetamine at 78% purity;[1]

(b) 46.4 g of methylamphetamine at 73% purity;[2]

(c) 83.3 g of methylamphetamine at 73% purity;[3] and

1. The total amount of methylamphetamine was 158.14 g.
2. A forensic examination was conducted and a wet swab taken from the sealing strip and top edge of the clip seal bag containing 46.4 g of methylamphetamine confirmed the accused was a contributor to the DNA profile (MXT (3) - 100 billion times more likely if the accused is a contributor).

1. On 22 May 2023, the accused checked into the Great Eastern Motor Lodge (Motor Lodge) in Perth and was under surveillance by police officers. He was staying in a room with his partner. On two occasions on this day, police undercover operatives captured photographs of the accused carrying a black satchel bag. CCTV footage from the Motor Lodge also shows the accused wearing the black satchel bag.
2. In the afternoon of 23 May 2023, the accused departed the Motor Lodge and was arrested by police officers during a traffic stop at 135 Great Eastern Highway. The accused was not carrying his mobile telephone at the time of his arrest.
3. Twenty minutes after arresting the accused, police officers executed a search warrant at a room at the Motor Lodge where the accused's partner was sleeping. During the search warrant a black satchel bag was seized from a single bed next to a handwritten note that read, 'Baby gone to Repco to get spot light Don't worry Love you [GJS]'. The black satchel bag was found to contain two clip seal bags of methylamphetamine. These were later confirmed by certificates of approved analyst to contain:

(a) 49.3 g of methylamphetamine at 80% purity;[5] and

(b) 61.9 g of methylamphetamine at 77% purity.[6]

1. The total amount of methylamphetamine was 111.2 g.
2. The black satchel bag was also found to contain:

(d) a key to the accused's vehicle (Ford Ranger in Karratha); and

1. Three bottles of clear liquid were also seized from the hotel room by police officers. These were later found to contain 1,4-Butanediol.[7]
2. Forensic examination was undertaken and returned the following results.
   1. In relation to the black satchel bag containing the two clip seal bags of methylamphetamine:

(a) CBE1/tape lift taken from the fabric strap - MXT (3) 880 million in favour of the accused being a contributor;

(b) CBE2/wet swab from external and internal zip tags - MXT (3) 14 billion in favour of the accused being a contributor; and

(c) CBE3/wet swab from edges of external pocket - MXT (3) >100 billion in favour of the accused being a contributor.

1. In relation to the blue BIC lighter found inside the black satchel bag, CBE4 wet swab taken from the flint and handling areas - MXT (2) >100 billion in favour of the accused being a contributor.
2. In relation to the clip seal bag containing 61.9 g of methylamphetamine, CBE5 wet swab taken from zip lock area and external surface - MXT (3) 8.7 million in favour of the accused being a contributor.
3. On 15 August 2023, Karratha detectives conducted a search of the accused's residence and business in Karratha. During the search of the accused's residence in Nickol, police officers seized multiple glass smoking implements which the accused admitted he used to smoke methylamphetamine. During the search, the accused admitted to police officers that he was a 'drug addict'.[8]
4. In relation to count 1 the circumstantial evidence the State relies upon is:

(a) the accused's connection with the Range Rover motor vehicle; and

(b) the accused's DNA profile being in the mixed DNA profile found in the swab taken from the sealing strip on the top edge of the clip seal bag containing 46.4 g of methylamphetamine which was in the box; and

(c) the admissions the accused made to police officers on 15 August 2023 concerning his association with methylamphetamine.

1. In relation to count 2, the circumstantial evidence the State relies upon is:

(a) various surveillance and CCTV evidence where the accused is carrying a black satchel bag;

(b) evidence associating the accused with the hotel room where the black satchel bag containing the methylamphetamine was found;

(c) the accused's DNA profile found in the mixed DNA profile from the fabric strap, the external and internal zip tags and the external pocket of the black satchel bag;

(d) the accused's DNA profile being in the mixed DNA profile found on the BIC lighter flint in the black satchel bag;

(e) the accused mixed DNA profile found on the zip lock area and external surface of the clip seal bag containing 61.9 g of methylamphetamine;

(f) cash in the sum of $1,405 found on the accused;

(g) the accused's Range Rover keys in the black satchel bag; and

(h) the admissions the accused made to police officers on 15 August 2023 concerning his association with methylamphetamine.

1. Neither party has submitted that any piece of the circumstantial evidence in relation to the State case against the accused on either count is 'an indispensable link in the chain'.

The Proposed Historical Conduct Propensity Evidence

1. At 9.00 am on Friday, 21 February 2014, detectives from the West Pilbara Detectives Office executed a Misuse of Drugs Act 1981 (WA) search warrant at an address in Baynton. The accused was present along with his partner, child and two other occupants. The accused declared to police officers that there were several drug items in his main bedroom.
2. The accused directed the police officers to a red camera case located on a bedside unit in the master bedroom. Inside the case was a plastic bag containing 100 tablets. These tablets were identified as 3,4-Methylenedioxyamphetamine (MDA).
3. Also located and seized inside the case were three clip seal bags each containing methylamphetamine. The first bag contained 3.03 g, with a purity of 62%; the second 0.91 g and the third 0.46 g. The total weight of the methylamphetamine was 4.30 g.
4. In the accused's wallet next to the drugs was $1,570 in Australian currency, which was seized.
5. The accused was interviewed on video at the scene and admitted ownership of the MDA tablets and methylamphetamine but declined to comment on whether he intended to sell or supply the drugs to another or how he came into possession of the Australian currency.
6. Police officers located electronic scales in the kitchen, rear bedroom and garage. In the rear bedroom, police officers also located more than 20 used and unused clip seal bags. In the garage, police officers also located a bag of MSM, which is a cutting agent, and more clip seal bags.
7. In the home theatre room, police officers observed a CCTV security camera setup connected to the television and a further packet containing approximately 100 unused clip seal bags.
8. On the main bed was a glass smoking pipe with heavy traces of methylamphetamine. The accused admitted to owning and using the pipe.
9. The accused entered a plea of guilty to count 2 on indictment KAR 26 of 2014 on 12 December 2014. The accused was sentenced by his Honour Judge McCann on the basis that he was a very low-level dealer and that some of the methylamphetamine was for personal use, some for supply to his partner and some for sale to others.[9]

1. At 8.30 am on Friday, 21 November 2014, detectives from West Pilbara Detectives office attended at an address in Bulgarra, where they executed a search warrant issued under the provisions of the Misuse of Drugs Act. Also present at the location was the accused and his partner.
2. Prior to commencing a search of the premises, the accused voluntarily declared and directed police officers to a small plastic clip seal sandwich bag containing 13.4 g of methylamphetamine on the lounge, with a purity of 58%. Next to the methylamphetamine was a large number of small clip seal bags and a set of digital scales.
3. When questioned, which was captured on audio-visual recording, the accused stated the contents of the bag was amphetamine. He did not elaborate when questioned further about the possession of methylamphetamine. The accused also directed police officers to a number of other drug items throughout the search of the premises.
4. The accused entered a plea of guilty to the single count on indictment KAR 50 of 2014 on 21 April 2015. The accused was sentenced on 24 April 2015 by her Honour Judge Stewart on the basis he was a user/dealer.[10]

1. On 23 July 2020, following the receipt of telephone intercept material, a search warrant was executed at a residence where the accused was staying in Perth. In the bedroom, police officers found a total of 2.25 g of methylamphetamine in the form of three clip seal bags containing 1.75 g, 0.21 g and 0.3 g respectively.
2. The accused entered a plea of guilty to the charge on 6 April 2022 and was sentenced on 12 May 2022 by Magistrate Tavener on the basis that he intended to use some of the methylamphetamine and supply the majority of it (1.75 g) to a friend.[11]

1. On 7 May 2020 while in Perth, police officers obtained telephone intercept material whereby the accused offered to supply 0.25 g of methylamphetamine to another.
2. The accused entered a plea of guilty to the charge on 6 April 2022 and was sentenced on 12 May 2022 by Magistrate Tavener.

1. On 15 July 2020 while in Perth, police officers obtained telephone intercept material whereby the accused offered to supply 0.25 g of methylamphetamine to another.
2. The accused entered a plea of guilty to the charge on 6 April 2022 and was sentenced on 12 May 2022 by Magistrate Tavener.

1. There are three requirements for the evidence to be admissible under s 31A of the Evidence Act:[12]
   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.
2. Whether evidence meets the requirements of s 31A of the Evidence Act is a question of law. Once the requirements of the section are met, the evidence must be admitted.[13]
3. In The State of Western Australia v Jackson,[14] the Court of Appeal observed that:
   1. [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.

1. The applicable law has been comprehensively summarised in cases such as RMD v The State of Western Australia; The State of Western Australia v Jackson; NTH v The State of Western Australia and The State of Western Australia v JHN.[15] These principles were again recently summarised and applied by the Court of Appeal in Chuguna v The State of Western Australia.[16]
2. Last year in the Director of Public Prosecutions v Benjamin Roder (a pseudonym),[17] the High Court stated that tendency evidence arising from other charges on the indictment is just a piece of circumstantial evidence the jury can consider in deciding whether the charge they are considering has been proved by the prosecution. The High Court held that any assessment of whether evidence has 'significant probative value' as tendency evidence is to be undertaken having regard to other evidence adduced or to be adduced, including the evidence of the charged act.[18]
3. The High Court in Roder held that trial judges should not ordinarily direct a jury that, before they may act on evidence of charged acts to support an alleged tendency on the part of the accused, they must be satisfied of proof of the charged acts beyond reasonable doubt.
4. Further, the High Court in Roder[19] identified the correct approach to a tendency direction to be as follows:
   1. The jury should have regard to all of the evidence relied upon to support the alleged tendency.
   2. They should consider whether they are satisfied of the alleged tendency.
   3. If they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he is charged.

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?

1. The definitions of this type of evidence are wide.[20] It includes more than common law similar fact evidence. As stated by Buss JA in Onekawa v The State of Western Australia:[21]

... '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. ...

And by Pritchard J in The State of Western Australia v Wark:[22]

[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.

1. 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.[23]
2. In HML v The Queen[24] Gleeson CJ made the following observation, which is useful in determining the issue of relevance:
   1. 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. ...

Does the evidence either by itself or having regard to other evidence to be adduced have 'significant probative value'?

1. For evidence to possess significant probative value:[25]

... 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'. ...

1. Significant probative value is not merely just relevant evidence.[26]
2. 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.
3. Factors relevant to the assessment of the probative value of evidence include the nature, quality, extent and duration, together with nature and extent of any rational connection between the proposed propensity evidence and the charged acts.[27]
4. The assessment of whether evidence has significant probative value requires consideration of two interrelated but separate matters:[28]

(a) the extent to which the evidence is capable of proving the propensity evidence; and

(b) the extent to which the propensity increases the likelihood of a fact in issue.

1. A propensity expressed at a high level of generality may mean that the propensity evidence provides significant support for the existence of that propensity, but that the propensity itself does not provide significant support for proof of the fact in issue.[29]
2. As the two charges on the indictment involve alleged offences of possession of prohibited drugs with intent to sell or supply to another, I have referred to what Martin CJ said in Bennett v The State of Western Australia[30] in relation to propensity evidence of this type. The tendency or propensity the State relies upon is generally a disposition by the accused to engage in drug dealing, but in particular relating to the drug, methylamphetamine.

C. The fair-minded person test and risk to the accused of an unfair trial (s 31A(2)(b) of the Evidence Act)

1. In Dair [64] and [66], the Court of Appeal considered the questions a court is required to consider in deciding the fair-minded person test.
2. The relevant risk is the concern that the risk arises because a jury might use the propensity evidence in an impermissible way.[31]
3. In Mansell v The State of Western Australia[32] 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.
4. 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.[33]
5. 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.[34]
6. 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. The accused submits that this is an inappropriate basis for using the proposed tendency evidence.
7. The risk of an unfair trial to an accused if propensity evidence is led, will always depend on the particular circumstances of each case.

Ruling on the Cross-Admissible Tendency Evidence

1. The accused in opposing the cross-admissible tendency evidence submits that the evidence should not be admitted as all it does is fill a hole in a weak circumstantial case by the prosecution on both counts on the indictment. The accused submits that this is an inappropriate basis for using or admitting the proposed tendency evidence.
2. The accused has not made any submission to the prosecuting entity that based on the circumstantial evidence without the proposed tendency evidence there is no reasonable prospect of conviction.
3. It is open to the accused to challenge the various pieces of circumstantial evidence the State relies upon at his trial. For example, whether his bodily material could have got onto the sealing strip and top edge of the clip seal bag containing the 46.4 g of methylamphetamine by transference, or was it there at a much earlier stage than when methylamphetamine was placed in the bag. The same challenge could arise with the DNA evidence referred to at [34] for count 2.
4. For the proposed tendency evidence to be admitted pursuant to s 31A of the Evidence Act it must meet the three requirements I have set out in [58]. This is the only relevant test for admissibility.
5. The accused relies upon La Bianca v The State of Western Australia[35] as an authority to support its submission the proposed tendency evidence should not be admitted. This is a decision of the Court of Appeal before the High Court's decision in Roder.
6. The decision in La Bianca is distinguishable from the accused's case for the following reasons:
   1. Mr La Bianca was only charged with one offence and there was therefore no cross-admissible tendency evidence.
   2. In La Bianca[36] the prosecution case was on a very specified and narrow basis. Mr La Bianca was prosecuted on the basis he was in joint possession of the methylamphetamine or in the alternative, aiding the co-accused.
   3. The circumstantial evidence the prosecution relied upon in each case is different. There was no DNA evidence linking Mr La Bianca to the package the methylamphetamine was contained in.
7. The propensity that the State relies upon in [13] is not too general in its nature. It reflects a propensity that is often ruled as admissible propensity evidence in relation to cases involving allegations of prohibited drug dealing activity.[37]
8. The Proposed Cross-Admissible Propensity Evidence does not only have probative value but significant probative value as it evidences the accused's conduct as a tendency to possess the prohibited drug methylamphetamine in substantial amounts with intent to distribute it to others.
9. I am satisfied the directions a trial judge will give as to how such evidence can be used and not be used, will mitigate significantly some of the prejudice to the accused. These types of directions are regularly given in cases of this type and are not complicated. The trial judge will also give directions as to inferential reasoning and circumstantial evidence.
10. I proceed on the basis these directions will be followed faithfully by the jury.
11. I am satisfied that the probative value of the evidence compared to the degree of risk of an unfair trial to the accused is such that fair-minded people would think that the public interest adducing the tendency evidence of the accused must have priority over the risk of an unfair trial to him.

Ruling on the accused's application for severance of the indictment

1. As I have granted the State's application for cross-admissible tendency evidence between counts 1 and 2 on the indictment the accused's application for severance of the indictment is dismissed.[38]
2. There is no submission by the accused that counts 1 and 2 on the indictment were not properly joined.

Ruling on the Proposed Historical Conduct Propensity Evidence

1. The facts of the Proposed Historical Conduct Propensity Evidence have the following similarity with the two alleged offences on the indictment:
   1. The behaviour of the accused involves his previous association with the prohibited drug, methylamphetamine.
   2. They indicate a previous intent of the accused to deal in methylamphetamine by selling or supplying to others or actually selling or supplying methylamphetamine to others.
2. All the convictions and facts of the Proposed Historical Conduct Propensity evidence does meet the wide definition of propensity under s 31A(1)(b) of the Evidence Act. The propensity that the State relies upon in [15] is not too general in its nature. It reflects a propensity that is often ruled as admissible propensity evidence in relation to cases involving allegations of prohibited drug dealing activity.[39]
3. The Proposed Historical Propensity Evidence does not only have probative value but significant probative value as it evidences the accused's conduct as a tendency to possess the prohibited drug methylamphetamine with intent to distribute it to others or actually sell or supply it to others.
4. The previous occasions the accused possessed methylamphetamine with intent to sell or supply to another or offered to sell or supply to another methylamphetamine range from 21 February 2014 - 15 July 2020. These dates are in relatively close proximity to May 2023 when the accused is alleged to have committed the two offences on the indictment. It is also evidence of continuing offending of this type just over a 6-year time period. I also weigh in the fact that for some of the time period between February 2014 and July 2020, the accused was serving sentences of imprisonment or on parole. The Proposed Historical Conduct Propensity Evidence points strongly to an established and enduring disposition by the accused to engage in dealing with methylamphetamine.
5. The facts of all these previous convictions makes it more likely the accused possessed the two amounts of methylamphetamine found, the subject of counts 1 and 2, also an intention by the accused to sell or supply some of the methylamphetamine to others. The evidence of the accused's previous convictions rebuts any suggestion the accused has an innocent association with the various items found, in particular, those which contain methylamphetamine and no knowledge of the methylamphetamine. There is a substantial and rational connection between the subject of the previous convictions and the conduct the subject of counts 1 and 2. The probative value of the accused's previous convictions is significant.
6. There is always some risk of prejudice or unfairness to the accused when propensity evidence is admitted.
7. I am satisfied the directions a trial judge will give as to how such evidence can be used and not be used, will mitigate significantly some of the prejudice to the accused. The trial judge will also give directions as to inferential reasoning and circumstantial evidence.
8. I proceed on the basis these directions will be followed faithfully by the jury.
9. I am satisfied that the probative value of the evidence compared to the degree of risk of an unfair trial to the accused is such that fair-minded people would think that the public interest adducing the tendency evidence of the accused must have priority over the risk of an unfair trial to him.

1. I grant the State's application dated 8 August 2024 for cross-admissible and historical conduct tendency or propensity evidence.
2. I dismiss the accused's application dated 13 January 2025 for severance of the indictment.
3. I order the parties confer before the trial to discuss what propensity evidence will be led by the State consistent with these reasons and how it should be admitted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Certificate of analysis 23F0513001 dated 23 January 2024.

[2] Certificate of analysis 23F0513002 dated 23 January 2024.

[3] Certificate of analysis 23F0513003 dated 23 January 2024.

[4] Certificate of analysis 23F0513004 dated 23 January 2024.

[5] Certificate of analysis 22F1565004 dated 10 August 2023.

[6] Certificate of analysis 22F1565005 dated 10 August 2023.

[7] Certificates of analyst 22F1565006, 22F1565007 and 22F1565008.

[9] Karratha District Court ts 19 - ts 20 (12 December 2014).

[10] ts 28, Karratha District Court (24 April 2015).

[11] ts 7, Karratha Magistrates Court (11 May 2022).

[12] Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385 [171] (Dair); Asplin v The State of Western Australia [2013] WASCA 72 [30] - [33] (Asplin).

[13] Asplin [28] (Mazza JA with whom Martin CJ & Pullin JA agreed); Di Lena v The State of Western Australia [2006] WASCA 162 [60], [94] (Roberts-Smith JA with whom Wheeler & Pullin JJA agreed).

[14] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [49] (Jackson).

[15] RMD v The State of Western Australia [2017] WASCA 70; NTH v The State of Western Australia [2020] WASCA 22 (NTH); The State of Western Australia v JHN [2021] WASCA 225.

[16] Chuguna v The State of Western Australia [2024] WASCA 134 [119] - [127].

[17] Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 [1] - [2] (Roder).

[18] Roder as applied in GNW v The State of Western Australia [2024] WASCA 164 [63] - [70].

[19] Roder [27] - [28], [37].

[20] Jackson [20]; Asplin [30].

[21] Onekawa v The State of Western Australia [2012] WASCA 105 [43] (Buss JA).

[22] The State of Western Australia v Wark [2017] WASC 154 [41] (Pritchard J).

[24] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6].

[26] Dair [60] - [61] (Steytler P).

[28] DKA v The State of Western Australia [2017] WASCA 44 [43].

[29] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.

[30] Bennett v The State of Western Australia [2012] WASCA 70 [34] - [36] (Bennett).

[31] 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].

[32] Mansell v The State of Western Australia [2009] WASCA 140 [49].

[33] McPhillamy v The Queen [2017] NSWCCA 130 [83].

[34] R v Bishop [2012] WASC 390 [69] (Hall J).

[35] La Bianca v The State of Western Australia [2019] WASCA 105 (La Bianca).

[36] La Bianca [33] - [36], [40] - [42], [58], [149] - [150].

[37] Flessas v The State of Western Australia [2018] WASCA 210 (Flessas); Bennett (referred to in [73] above); Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 (Preston).

[38] CGF v The State of Western Australia [2023] WASCA 187 [125].

[39] Flessas; Bennett; Preston.