Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal - Evidence - Accused charged with multiple offences involving the use of a firearm - Admissibility of propensity and relationship evidence - Whether evidence would be of significant probative value - Risk of an unfair trial - Whether any likelihood of prejudice could be guarded against by directions to the jury - Whether any ground of appeal has a reasonable prospect of success - Leave to appeal refused

Criminal Procedure Act 2004 (WA), s 133

Evidence Act 1906 (WA), s 31A

Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

The State of Western Australia v Osborne [2007] WASCA 183

Upton v The State of Western Australia [2008] WASCA 54

Wood v The State of Western Australia [2005] WASCA 179

Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

1 McLURE P: I joined in the order refusing leave to appeal because the grounds of appeal were without merit generally for the reasons given by Buss JA.

2 BUSS JA: The appellant has been charged with eight counts on an indictment dated 23 December 2009. The counts allege:

(1) On 17 April 2009 at Attadale Ivan John Roncevic, with intent to harm Christopher Than-Htay or others, unlawfully did an act as a result of which the life, health or safety of Christopher Than-Htay was, or was likely to be, endangered.

(2) In the alternative to Count (1) on 17 April 2009 at Attadale Ivan John Roncevic unlawfully did grievous bodily harm to Christopher Than-Htay.

(3) On the same date and same place Ivan John Roncevic unlawfully did an act as a result of which the life, health or safety of Stephen Than-Htay or others was, or was likely to be, endangered.

(4) On 1 May 2009 at Coodanup Ivan John Roncevic assaulted Adam Jason Van Lierop, a public officer who was then performing a function of his office or employment.

And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.

(5) On the same date and same place as in Count (4) Ivan John Roncevic assaulted Nicole Ann McCallum, a public officer who was then performing a function of her office or employment.

And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.

(6) On the same date and same place as in Count (4) Ivan John Roncevic again assaulted Nicole Ann McCallum, a public officer who was then performing a function of her office or employment.

And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.

(7) On the same date and same place as in Count (4) Ivan John Roncevic again assaulted Adam Jason Van Lierop, a public officer who was then performing a function of his office or employment.

And that Ivan John Roncevic was armed with a dangerous weapon, namely a firearm.

(8) On the same date and same place as in Count (4) Ivan John Roncevic had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

3 The appellant has pleaded not guilty on each count. The State must prove beyond reasonable doubt each element of each count in the indictment, and exclude any defence which might arise.

4 On 15 April 2010, the appellant made application in the District Court for an order, relevantly, that the indictment be severed 'such that counts 1, 2 and 3 be heard in a separate trial to counts 4, 5, 6, 7 and 8'. The application was made pursuant to s 133 of the Criminal Procedure Act 2004 (WA).

5 On 11 May 2010, Sleight DCJ heard the appellant's application for severance, and dismissed it.

6 The appellant applied for leave to appeal. On 3 September 2010, this court heard the application. At the conclusion of the hearing, leave to appeal was refused. The court said that reasons for decision would be published later. These are my reasons.

The circumstances of the offences as alleged by the State

7 The circumstances of the offences, as alleged by the State, are, relevantly, as follows.

8 On 17 April 2009, and for several months before that date, the appellant resided at 33a Hislop Road, Attadale (the Attadale home). The property was owned by Adriano Scafetta, who also resided there.

9 Subsequently, Mr Scafetta was convicted of several drug-related offences. He is currently a sentenced prisoner.

10 Before 17 April 2009, the appellant and Mr Scafetta had been involved in a dispute with Stephen Than-Htay and Christopher Than-Htay. This dispute had been conducted in telephone discussions and text messages.

11 On 17 April 2009, Stephen and Christopher Than-Htay, together with three other men, went to the front door of the Attadale home. Christopher Than-Htay was shot in the leg by the appellant, who fired a gun through the security screen door. The five men returned to two motor vehicles which were parked at the front of and adjacent to the Attadale home respectively. They were followed by the appellant, who was armed with a gun and shot at Stephen Than-Htay's vehicle. The appellant then left the Attadale home in another vehicle.

12 Police were called and attended at the Attadale home. A police officer spoke by telephone with the appellant. The appellant told the police officer that he was not in the Attadale home.

13 The appellant did not return to the Attadale home. Police continued to search for him in relation to the Attadale shooting. They visited the appellant's family and friends. The Attadale shooting and the police search received wide coverage in the media.

14 On 1 May 2009, Constable Van Lierop and Constable McCallum were on traffic patrol in Coodanup. They noticed a motor vehicle with a work inspection order, and required the driver of the vehicle to stop. The appellant was the driver. The police officers spoke with him briefly. He then sped away. The officers chased him in their vehicle, but abandoned the chase after the appellant hit another vehicle and clipped a gutter.

15 The police officers found the appellant's vehicle. When they approached and instructed the appellant to get out of his vehicle, the appellant pointed a gun at each of them. The appellant then alighted from his vehicle and ran away, armed with the gun. Both officers gave chase. Once again, the appellant pointed the gun at each of them. He racked the gun. Constable Van Lierop then shot the appellant.

16 Police found $47,000 cash in the appellant's vehicle.

17 The drugs, the subject of count 8 on the indictment (being 5.4g of methylamphetamine), were found by police about 40 m from the appellant's vehicle. The State alleges that he abandoned the drugs during his attempt to escape.

18 The primary judge proceeded on the basis that the material in the State brief will be proven at the trial. He said in relation to the severance application:

That application is based upon the State's case, as revealed by the papers. The application is made on the assumption that the evidence of Constable Van Lierop and Constable McCallum would be accepted as true, in that the State's case as revealed by the State brief may be accepted by the jury. See Phillips v [The Queen] [2006] HCA 4 [63].

Accordingly, I conclude that the additional material sought to be presented by the defence has no impact on the merit of its severance application, and I will now proceed to make my ruling on that question (ts 59).

19 The correctness of this approach, purportedly in reliance on the observations of Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [63] in the context of the common law principles relating to the admissibility of similar fact evidence, is not challenged by the appellant in the proposed grounds of appeal. Indeed, counsel for the appellant expressly said in oral argument before this court that he did not assert that his Honour's approach was wrong (appeal ts 8 - 9).

20 The primary judge held that the evidence of the incidents on 17 April 2009 was admissible under s 31A of the Evidence Act 1906 (WA) as evidence not only in relation to the counts which allegedly occurred on 17 April 2009, but also as evidence in relation to the counts which allegedly occurred on 1 May 2009 (ts 68 - 69).

21 His Honour held, however, that the evidence of the incidents on 1 May 2009 was not admissible as evidence in relation to the counts which occurred on 17 April 2009 (ts 69).

22 The primary judge decided that the evidence of the shooting incident on 17 April 2009 was significantly probative in relation to whether the appellant committed the alleged assaults against Constable Van Lierop and Constable McCallum on 1 May 2009. His reasons were as follows:

Firstly, it provides contextual evidence for the reason why the [appellant] might take the drastic step of taking out a gun, but leaving behind in the vehicle $47,000 cash, and whilst taking flight, pointing the gun at the police who were making pursuit.

A jury might find it difficult to accept the [appellant] would take the drastic step of pulling out a gun and pointing it at the police to avoid being caught with 5.4 grams of methylamphetamine, particularly as he left behind $47,000 cash in the car.

Such a drastic action by the [appellant] is more readily explained if the jury is presented [with] evidence of the fact that the [appellant], at the time, was wanted by the police in relation to the serious matter of shooting somebody.

Further, the evidence of the shooting by the [appellant] on 17 April 2009 is relevant to rebut a suggestion that the defence may raise that Constable Van Lierop had unjustifiably shot [the appellant], and to justify this shooting, he and Constable McCallum conspired to make up a story claiming they were threatened by a gun - by [the appellant].

The evidence of [the appellant's] use of a gun on 17 April 2009 suggests that [the appellant] had access to guns and was prepared to use a gun. This makes the evidence of the police constables as to what occurred, of being threatened with a gun, more likely (ts 66).

23 His Honour also decided that the probative value of the evidence in question, compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt (in particular, the evidence of the incidents on 17 April 2009) in relation to the offences which allegedly occurred on 1 May 2009 must have priority over the risk of an unfair trial. His Honour's reasons on this point were as follows:

Mr Kaufman, counsel appearing for the [appellant], has argued before me that the effect of allowing the evidence of the use of the gun by the [appellant] on 17 April 2009 carries such a high risk that the jury will either over-estimate its cogency or be [affected] by a bias against the [appellant] which would deflect it from a rational dispassionate assessment of the evidence.

I am not persuaded that a jury is likely to be overwhelmed by this evidence so as to over-estimate its cogency or to create a bias against the [appellant] so as to deflect it from the task of dispassionately assessing the evidence. The evidence of 17 April 2009 has a high level of cogency as contextual evidence which explains the alleged desperate acts of the [appellant], of abandoning $47,000 cash in his car, leaving the car and using a firearm in order to prevent police from continuing a pursuit of him.

The most rational explanation for such behaviour is that the [appellant] feared that he was about to be arrested in relation to the serious alleged offence of shooting somebody.

This evidence ... which supports the allegation of the evidence that [the appellant] pointed a gun at the two constables is also relevant and significantly probative to rebutting any suggestion that the police officers fabricated the story that a gun had been pointed at them.

In my opinion, without the evidence of what occurred on 17 April 2009, the jury will be deprived of essential background so as to properly assess the issues of whether the [appellant] produced a gun and threatened the police on 1 May 2009 as alleged. As to the admissibility of essential background material see the decision of Upton v The State of Western Australia [2008] WASCA 54 (ts 68 - 69).

24 The primary judge decided that the evidence of the incidents on 1 May 2009 was not significantly probative in relation to the counts which allegedly occurred on 17 April 2009. After noting that the appellant had indicated, through his counsel, that, in relation to counts 1, 2 and 3, it was not disputed that the appellant had used a gun and shot Christopher Than-Htay, his Honour said:

In my opinion, it is difficult to see how the evidence of the incident on 1 May 2009 has significant value to the incident on 17 April 2009 when the [appellant] has indicated that it would not be in issue that he used a gun on 17 April 2009.

Also, I am not convinced that the evidence of the [appellant's] possession of methylamphetamine on 1 May 2009 is significantly probative of the commission of the alleged offences on 17 April 2009.

Accordingly, I conclude that the evidence of the incident on 1 May 2009 is not admissible as evidence in relation to the incident on 17 April 2009 given the nature of the concessions that the [appellant] is prepared to make at trial. If the [appellant] changes his position and disputes the use of a firearm on 17 April 2009 then I believe my ruling will need to be reconsidered (ts 69).

25 His Honour held that any relevant prejudice that might be caused to the appellant, arising from the hearing of the counts concerning the incidents on 17 April 2009 with the counts concerning the incidents on 1 May 2009, could be overcome by directions from the trial judge. He explained:

Since the introduction of the provisions of the Criminal Procedure Act concerning the joinder on the indictment of more than one charge or more than one complainant and the introduction of section 31A of the Evidence Act we have seen an increasing number of cases in this court involving multiple complainants, multiple charges of incidents on different dates and propensity evidence often in the form of uncharged acts.

The verdicts returned by juries consistently demonstrate that they follow judges' directions to exclude consideration of evidence if it is not relevant to a particular charge. Further, that they are not overwhelmed by potentially prejudicial evidence even though it may demonstrate that the accused [has] committed other offences or has committed other offences against other complainants.

I conclude that a direction by the trial judge can correct any prejudice that ... might arise in the hearing of counts 1 to 3 on the indictment by the production of evidence relating to counts 4 to 8 (ts 70).

26 The primary judge's opinion in relation to admissibility must be understood as a provisional view based on the facts and circumstances then known to his Honour. See Wood v The State of Western Australia [2005] WASCA 179 [12] - [13] (Steytler P). I will also deal with the issue of admissibility on that basis.

27 There are three proposed grounds of appeal. They read, without the supporting particulars:

1. The Court erred in its assessment that the evidence of the shooting incident of 17 April 2009 was significantly probative of the possession and use of a gun by the [appellant] on 1 May 2009.

1. The Court erred in its determination that the probative value of the evidence of the incident of 17 April 2009 was such that the public interest in adducing all relevant evidence of guilt (of the alleged offences of 1 May 2009) must have priority over the risk of an unfair trial.

1. The Court erred in its conclusion that, whilst evidence of the incident of 1 May was not admissible in relation to the charges arising from 17 April 2009, any prejudice that might arise from joinder could be overcome by a direction from the trial judge.

28 None of the grounds of appeal alleges that the counts were not properly joined in the indictment. See s 23(2)(b) of the Criminal Procedure Act and cl 2(3) and cl 7(3) of sch 1 to that Act.

The appellant's submissions: ground 1 of the appeal

29 Counsel for the appellant submitted that the primary judge's assessment that the evidence of the shooting incident on 17 April 2009 is significantly probative of the possession and use of a gun by the appellant on 1 May 2009 was flawed. Two broad submissions were made in support of this proposition.

30 First, it was argued that there is not necessarily any logic to be found in the appellant's conduct on 1 May 2009 because he had recently injected himself with amphetamine and had been subjected to 'a full 5 second cycle of a taser' by one of the police officers. According to counsel, attempting to impose a rational analysis of the appellant's conduct in these circumstances is 'fraught with potential error'. It was said that it will be necessary for the State to establish that the appellant, having been subjected to a 'full taser cycle', was capable of voluntary action. Further, it was argued that the primary judge's analysis did not take into account the fact that, as at 1 May 2009, the appellant had been charged with possession of methylamphetamine with intent to sell or supply (IND 1132 of 2009). This alleged offence was said to have been committed while he was on parole. His parole term does not expire until 2013. Further, it was said that, apart from the shooting incident on 17 April 2009, the appellant was aware that police had executed a search warrant at the Attadale home and had located significant quantities of methylamphetamine, cocaine and cash. According to counsel, it is 'logical' to assume that the appellant, as a resident of the Attadale home, had some concern that he would be charged with offences arising out of these matters. Also, counsel referred to the fact that, as at 1 May 2009, it was the State's case that the appellant was in possession of 5.4 g of methylamphetamine and $47,000 cash.

31 Counsel for the appellant contended that the appellant's conduct on 1 May 2009 was much more readily (and logically) to be explained, on the State's case, by the fact that he wished to evade police so as to avoid the possibility of a further drug charge in relation to a bag containing the 5.4 g of methylamphetamine which the State alleges was found about 40 m from his motor vehicle.

32 Counsel then contended, in the alternative, that if the court determines that the evidence of the shooting incident on 17 April 2009 is significantly probative of the possession and use of a gun by the appellant on 1 May 2009, then 'the whole of the contextual evidence should be supplied'. According to counsel, this course would 'exponentially magnify' the prejudice to the appellant and would lead to the 'inevitable determination' that the second limb of s 31A could not be satisfied.

33 Secondly, it was argued on behalf of the appellant that the evidence of the shooting incident on 17 April 2009 is not capable of generating any inference as to the appellant's propensity to use a gun as the circumstances of the use of the gun and the manner of its use on 17 April 2009 were 'entirely and compellingly' different from the circumstances on 1 May 2009.

34 Counsel argued that on 17 April 2009, after a series of threatening text messages and upon being confronted by five persons at his front door, one of them being a person central to the dispute and (now) a convicted drug dealer, the appellant discharged a gun in what he alleges was self-defence.

35 It was then argued on behalf of the appellant that the circumstances on 1 May 2009 could not be 'more disparate'. The appellant's conduct with a person whom he knows is a drug dealer, in threatening circumstances, can only be relevant to his conduct with 'like persons'. The Attadale incident could only have significant probative value in relation to the Coodanup incident if it had been an incident involving the use of a gun against a person in authority.

36 Next, counsel contended that the incident on 17 April 2009 involved the actual discharge of a gun as opposed to the incident on 1 May 2009 which, on the State's case, involved 'mere posturing' with a gun. Also, on 1 May 2009, the appellant could not have elected to discharge the gun because evidence in the prosecution brief establishes that the gun did not contain an ammunition magazine.

37 Further, it was contended that since the occurrence of the alleged offences, a number of matters have become known to the appellant which raise issues as to the credit of each of the police officers involved in the 1 May 2009 incident. The appellant's written submissions contain this summary of these matters:

1. No supplementary statement was provided when review of the police radio communications revealed ... that Constable McCallum had stated that [the appellant] was getting out of his vehicle before police approached the vehicle.
2. The appellant was advised by the State in a letter dated 18 May 2010 Constables McCallum and Van Lierop were married, 'recently'. The State has not seen fit to advise what 'recently' means and in particular whether or not the officers were in a relationship as at 1 May 2009.

1. The Browning pistol said to have been located close to [the appellant] on his arrest was not loaded. Further, swabs taken from the trigger, trigger guard, stock and barrel did not produce reportable DNA profiles. (Nor did swabs taken of the magazine or ammunition.)

1. No DNA report is produced to explain how, when [the appellant] was not wearing gloves and in circumstances where it is reasonable to anticipate that his adrenal glands were pumping, he did not secrete any or sufficient fluid for reportable DNA analysis.
2. The police whilst advising neighbouring householders of the situation concerning [the appellant], produce no statement to identify whether or not any person in any of the neighbouring properties was able to give independent evidence of any part or all of the Coodanup incident. Other issues of police procedure are also relevant.

38 According to counsel, the State should not be permitted to take advantage of s 31A of the Evidence Act in circumstances where a rational view might be taken that the State has the resources to rebut allegations by the defence 'via the employment of thorough and appropriate investigative techniques'. Counsel submitted that the court should be 'extremely vigilant' to prevent the State from 'increasingly resorting to the use of "questionable" propensity evidence' when the State could secure a conviction by 'standard and thorough police work'.

The appellant's submissions: ground 2 of the appeal

39 Counsel for the appellant referred to this passage from the reasons of Steytler P in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413:

All of this had to be considered together with the risks to which I have referred that would arise out of the introduction of the propensity evidence. In my opinion, fair-minded people would undoubtedly consider that impermissible reasoning of the kind that I have earlier identified would result in an unfair trial. They would also conclude that, if Mr Strachan's evidence was regarded by the jury as credible and reliable, the disputed evidence was unnecessary. Next, they would consider that, if his evidence was not so regarded (and, as I have said, in my opinion any finding of unreliability concerning his evidence of the confession would necessarily have extended to his positive identification of the appellant), the propensity evidence was probably insufficient to establish the appellant's guilt, when considered together with all of the other evidence. Those conclusions would, in turn, drive these fair-minded people to the conclusion that, unless the potential unfairness could be adequately guarded against by a direction from the trial judge, the public interest in adducing the evidence should not have priority over the risk of unfairness [78].

Although [Steytler P] had earlier found at [72] that the propensity evidence [in question] had significant probative value, the passage at [78] appears to be a backhanded way of saying that the propensity evidence did not have significant probative value.

41 In any event, counsel contended that where, as in the present case, the two primary witnesses for the State are police officers who are, by virtue of their office, ordinarily to be regarded as credible and reliable, the prejudice to the appellant by the admission of the propensity evidence is magnified to such an extent that fair-minded people would determine that the public interest in adducing all relevant evidence of guilt ought not have priority over the risk of an unfair trial.

42 Counsel argued that the court, when determining the balance of the factors required by the second limb of s 31A, must consider, first, whether the so-called propensity evidence is necessary in view of other evidence available to the State. According to counsel, the court should, in the course of this consideration, determine not only what evidence is actually available, but also what other evidence might have been secured by the State on a thorough and appropriate investigation.

43 It was submitted that when this review process is undertaken, the proper conclusion is that the proposed propensity evidence ought to be excluded.

The appellant's submissions: ground 3 of the appeal

44 Counsel for the appellant submitted that ground 3 was included 'for the sake of completeness'. It was conceded, in essence, that if there was no merit in grounds 1 and 2, then the court must necessarily find that ground 3 is not made out.

45 By s 133 of the Criminal Procedure Act, relevantly:

(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) ... 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;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) ...

(6) In considering, for the purposes of this section, the likelihood of an accused being prejudiced in the trial by a jury of an indictment that contains 2 or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.

46 Section 31A of the Evidence Act provides:

(1) In this section -

propensity evidence means -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

Section 133 of the Criminal Procedure Act: relevant legal principles

47 The power of a court under s 133(3) of the Criminal Procedure Act to order that an accused be tried separately on one or more of the charges in an indictment is not enlivened unless the court is satisfied that the accused is likely to be prejudiced if all of the charges are tried together. If the court is satisfied that the accused is likely to be so prejudiced, the court may, in its discretion, order that the accused be tried separately on one or more of the charges and order the prosecutor to tell the court the order in which the charges will be tried.

48 Section 133(5)(a) of the Criminal Procedure Act provides, in effect, that if a court is satisfied that an accused is likely to be prejudiced if all of the charges in an indictment are tried together, and the court is deciding whether to order that the accused be tried separately on one or more of the charges, 'it is open' to the court to decide that any likelihood of prejudice 'can be guarded against' by a direction to the jury and, in consequence, to decline to order that the accused be tried separately on one or more of the charges.

49 The words 'to so decide' in pars (b) and (c) of s 133(5) refer to the decision under par (a) of that subsection that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [96] - [97] (Roberts-Smith JA, Wheeler JA & Miller AJA relevantly agreeing).

Section 31A of the Evidence Act: relevant legal principles

50 The Parliament's purpose in enacting s 31A of the Evidence Act was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4608. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461:

The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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 (529).

See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.

51 Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson [102] - [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of s 31A(2)(a) and (b) have been satisfied.

52 In Dair, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value' within s 31A(2)(a), at [60] - [61]:

The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].

53 The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] (Buss JA, Miller JA agreeing).

54 In Dair, Steytler P also examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

55 The observations of the President in Dair in relation to s 31A(2)(b) were approved in Horsman [23] and Buiks [46].

56 In s 31A(1), '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. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

57 The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

(a) the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

58 The court may decide, in a particular case, that the tests in s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:

(b) subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.

The instances I have given are examples. They are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.

59 Where 'propensity evidence' or 'relationship evidence' is disputed by the accused, it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.

60 Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.

61 This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto [26] - [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair [64] (Steytler P).

62 However, as Steytler P noted in Upton, it does not follow that if evidence is admitted generally as propensity evidence under s 31A, no warning of any kind is ever required in respect of the evidence [65]. His Honour explained:

Under the common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. That is because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the crime charged. A propensity direction would contradict the basis on which that evidence was admitted: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J). The same is true of evidence admitted as propensity or relationship evidence under s 31A. If that evidence satisfies the test for admissibility (as it must do), no propensity direction is required: Noto [26] - [28]. That is not to say that no warning of any kind is required in respect of the evidence. What needs to be said will necessarily depend upon the individual circumstances [65].

63 A warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of miscarriage of justice. However, as I have mentioned, a 'propensity warning' is not required in relation to propensity evidence or relationship evidence which is admitted generally under s 31A.

64 At the hearing before the primary judge, the appellant's counsel (who included counsel for the appellant in the appeal) did not adduce any evidence from the appellant or otherwise.

65 On the hearing of the appeal, counsel for the appellant did not make application for leave to adduce any new or fresh evidence.

66 In my opinion, the primary judge did not make any material error in deciding that, for the purposes of s 31A, the evidence of the shooting incident on 17 April 2009 was significantly probative in relation to whether the appellant committed the alleged assaults against Constable Van Lierop and Constable McCallum on 1 May 2009.

67 At the hearing before his Honour, the appellant's counsel did not make any submissions based on:

(a) The appellant having allegedly injected himself with amphetamine on 1 May 2009, shortly before his interaction with the police officers.

(b) The appellant having been subjected on 1 May 2009 to 'a full 5 second cycle of a taser' by one of the police officers.

(c) The appellant having been charged, as at 1 May 2009, with the offence of possession of methylamphetamine with intent to sell or supply it to another.

(d) This alleged offence having been said to have been committed while the appellant was on parole, his parole term not expiring until 2013.

(e) The appellant having allegedly been aware, as at 1 May 2009, that police had executed a search warrant at the Attadale home and had located significant quantities of methylamphetamine, cocaine and cash.

(f) It being allegedly appropriate to assume, on the basis of 'logic', that the appellant, as a resident of the Attadale home, had some concern, as at 1 May 2009, that he would be charged with offences arising out of these matters.

68 A judge does not make an error by failing to address or take into account evidence that has not been adduced or arguments that have not been made.

69 In any event, the contentions of counsel for the appellant before this court, as set out in his written submissions and as developed in oral argument, are without merit.

70 The evidence in question can rationally support the State's contention (which the appellant has not admitted) that on 1 May 2009 the appellant was armed with a gun. Also, the evidence of the shooting incident on 17 April 2007, in combination with the evidence directly relevant to the counts which allegedly occurred on 1 May 2009, can rationally support the State's contention that on 1 May 2009 the appellant, on two occasions, pointed a gun at each of Constable Van Lierop and Constable McCallum and, on the second occasion, racked the gun.

71 The willingness of the appellant on 17 April 2009 to use a gun, rather than merely producing it as a threat, is highly relevant to what is alleged to have occurred when the police officers attempted to arrest the appellant on 1 May 2009. The evidence of the shooting incident on 17 April 2009 is significantly probative in relation to the incident on 1 May 2009 in that it supports the evidence of the police officers that the appellant was in fact armed with a gun, and it increases the evidentiary foundation for the existence of Constable Van Lierop's alleged belief, based on reasonable grounds, that the appellant was preparing to fire at him or Constable McCallum. I do not accept that the differences in the circumstances between the appellant's admitted use of a gun on 17 April 2009 and his alleged use of a gun on 1 May 2009 require the conclusion that the evidence of the shooting incident on 17 April 2009 is not capable of generating any inference as to the appellant's propensity to use a gun on 1 May 2009. There is no rational basis for confining the appellant's apparent propensity to use a gun, to use against known drug dealers in what he perceives are threatening circumstances.

72 The fact that the appellant may have had other reasons for behaving in the manner he allegedly did on 1 May 2009 does not negative the significant probative value of the shooting incident on 17 April 2009. Even if the appellant's behaviour on 1 May 2009 was not motivated solely by the earlier shooting incident, his conduct in shooting Christopher Than-Htay has greater coincidence with what allegedly happened on 1 May 2009 than the other motivations asserted on his behalf. At best, from the appellant's stand point, there were multiple contributing motivations to his behaviour on 1 May 2009. At the oral hearing before this court, counsel for the appellant conceded (rightly, in my opinion) that there were multiple contributing motivations (appeal ts 5 - 6).

73 The submissions made on behalf of the appellant to this court suggest there is at least some prospect that the appellant will assert at the trial that the Browning pistol which, on the State's case, was pointed at the police officers on 1 May 2009 was 'planted' by police, and that the absence of the appellant's fingerprints and DNA on the weapon (when he was not wearing gloves and in circumstances where it is reasonable to anticipate that his adrenal glands 'were pumping') supports this assertion. In my opinion, the prospect of the appellant making this assertion increases the evidentiary importance, from the State's perspective, of the shooting incident on 17 April 2009, and increases its probative value.

74 Ground 1 of the appeal does not have any reasonable prospect of success.

75 In my opinion, the primary judge did not make any material error in deciding that the probative value of the evidence of the shooting incident on 17 April 2009 was such that the public interest in adducing all relevant evidence of guilt in relation to the counts which allegedly occurred on 1 May 2009 must have priority over the risk of an unfair trial.

76 Where the State adduces propensity evidence, the admission of that evidence is always likely to involve the risk of an unfair trial. See Di Lena [58]. The relevant unfairness is that the jury might reason, from the mere fact of established criminal propensity, that the accused is the offender. See Di Lena [59]. Section 31A(2)(b) requires the court to make a comparison between the significant probative value of the evidence in question on the one hand and the risk of an unfair trial on the other.

77 It will be necessary, in the present case, for the trial judge to direct the jury in relation to the evidence of the shooting incident on 17 April 2009 so as to at least reduce the risk of an unfair trial in relation to the counts which allegedly occurred on 1 May 2009. The nature and extent of the trial judge's directions to the jury will, of course, depend upon all the circumstances of the case, including the manner in which the evidence unfolds at the trial. See Upton [65].

78 It is well-established that a direction given by a trial judge to a jury against impermissible reasoning is likely to be acted on by the jury. See The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA). Also, it can be accepted that a jury will faithfully apply a trial judge's directions unless the contrary is shown. See Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] (Steytler P).

79 I do not accept that Steytler P said in Dair at [78] (either in a 'backhanded way', as asserted by counsel for the appellant in the present case, or at all) that the propensity evidence under consideration in Dair did not have significant probative value. In the passage at [78] his Honour decided that, in the circumstances he described, fair-minded people would conclude that, unless the potential unfairness to the accused could be adequately guarded against by a direction from the trial judge, then the public interest in adducing the propensity evidence should not have priority over the risk of an unfair trial. Steytler P did not say that the propensity evidence under consideration did not have significant probative value.

80 Nor do I accept that when the propensity evidence in question in the present case is combined with the evidence to be given by the police officers, the admission of the propensity evidence is magnified to such an extent that fair-minded people would determine that the public interest in adducing all relevant evidence of guilt ought not have priority over the risk of an unfair trial.

81 The mere fact (if, indeed, it is the fact, this being a matter which has not been established in the material before this court) that other evidence might have been secured by the State, on a thorough and appropriate investigation of the events on 1 May 2009, does not affect the probative value of the shooting incident on 17 April 2009. The State is not bound to investigate or rely on other matters. A judge is not required, in undertaking the comparison mandated by s 31A(2)(b), to take into account evidence which might have been secured by the State on a thorough and appropriate investigation. No such requirement can be discerned from the text of s 31A or the nature of the comparison which must be undertaken in applying s 31A(2)(b).

82 I am not persuaded that where, as in the present case, the State's principal witnesses are police officers, the prejudice to an accused by the admission of propensity evidence will be magnified to such an extent that fair-minded people would determine that the public interest in adducing all relevant evidence of guilt ought not have priority over the risk of an unfair trial.

83 Ground 2 of the appeal does not have any reasonable prospect of success.

84 As I have mentioned, counsel for the appellant conceded, in essence, that if there was no merit in grounds 1 and 2, then the court must necessarily find that ground 3 is not made out. This was a proper concession.

85 For the reasons I have given in the context of considering ground 2, I am satisfied that any relevant prejudice that might arise from all of the counts in the indictment being tried together can be overcome by appropriate directions from the trial judge.

86 Ground 3 of the appeal does not have any reasonable prospect of success.

87 For these reasons, I joined in the order of the court, made on 3 September 2010, refusing leave to appeal.

88 MAZZA J: On 3 September 2010, I joined with McLure P and Buss JA in the order of the court refusing leave to appeal. I have read Buss JA's draft reasons. I am in general agreement with them.