Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Possession of methylamphetamine with intent to sell or supply - 59.3 g of methylamphetamine at 30% purity - Admissibility of evidence of prior drug conviction

Criminal Procedure Act 2004 (WA), s 98

Evidence Act 1906 (WA), s 31A, s 31A(1), s 31A(2)(b)

Misuse of Drugs Act 1981 (WA)

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

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370

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

PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

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

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA, with which I agree.

3 MAZZA JA: This is an appeal against conviction.

4 The appellant was charged with one count of possession of methylamphetamine with intent to sell or supply it to another. He was tried before Eaton DCJ and a jury, and, on 4 February 2011, was convicted. Later, he was sentenced to 3 years' imprisonment with eligibility for parole.

5 The issue at the heart of the appeal concerns the admissibility, pursuant to s 31A of the Evidence Act 1906 (WA), of the fact of, and the circumstances surrounding, the appellant's conviction on 17 March 2000 for another offence of possession of methylamphetamine with intent to sell or supply committed on 30 April 1999. The State was permitted to adduce this evidence, over objection, by Staude DCJ at a hearing, pursuant to s 98 of the Criminal Procedure Act 2004 (WA), on 28 September 2010.

6 The original ground of appeal for which leave was granted is in these terms:

The Learned Judge on 28 September [2010] erred in law in ruling that the Appellant's conviction on 17 March 2000 was admissible on the Appellant's trial on indictment number [BUN 18] of 2010, taking into account the lack of proximity, lack of probative value and lack of probative value compared to prejudice.

7 At the hearing of the appeal, and with the consent of the respondent, a second ground was added as follows:

The admission of evidence pursuant to s 31A of the Evidence Act 1906 (WA) resulted in a miscarriage of justice.

8 On 9 July 2009, police executed a Misuse of Drugs Act 1981 (WA) search warrant at the appellant's home at Boyanup. Those premises were shared with the appellant's son, Cameron Preston, and a boarder, Peter Wright.

9 The police discovered, in a pantry situated in the kitchen, a 40-centimetre long black plastic tube with a screw lid at one end. Upon

removing the lid, police discovered a total of $16,300 in cash, a clipseal bag containing smaller clipseal bags, a red plastic spoon, a bag containing 45.4 g of methylamphetamine with a purity of 30%, and another bag, which was vacuum sealed, containing 13.9 g of the same drug with the same purity. Thus the total weight of methylamphetamine in the tube was 59.3 g.

10 The appellant, who was present during the search, denied any knowledge of the drugs and the money.

11 DNA swabs were taken from some of the items that were seized by the police. The black plastic tube revealed a mixed DNA profile consistent with having come from at least two individuals. Cameron Preston and Peter Wright were excluded as possible contributors to that mixed profile, but the appellant could not be excluded as a contributor.

12 The swab taken from all the clipseal bags revealed a mixed profile consistent with having come from at least three individuals. Again, Cameron Preston and Peter Wright were excluded as contributors, but the appellant was not.

13 The State's case, as opened, was that the circumstances pointed to the appellant knowing about the drugs that were found in the pantry and that he possessed them, either exclusively or jointly, with another or others.

14 The prosecutor, in her opening address to the jury, raised the appellant's prior conviction. She said:

The [S]tate says that you can use it as evidence of a tendency or a propensity to deal in this particular drug, and also because it negates an innocent explanation: ts 27.

15 Defence counsel gave an opening address on behalf of the appellant. With respect to the appellant's prior conviction, she said:

What I want you to remember is, that conviction was from 10 years ago. People change, particularly as they get older. People make mistakes and they don't necessarily and automatically make the same mistake a second time: ts 28.

[T]he prosecution case is that [the appellant] lived at this home. Yes, he did, but he was not the only person living at that home. He had a flatmate, a Mr Peter Wright, that had his own room there. He also has a son, Cameron Preston, that was coming and going quite frequently from the property and up until recently was in fact living at the premises. This item of interest, this plastic tube, was found in the bottom of a pantry cupboard in the kitchen. Importantly, it was found in a public part of the house and secondly, it was found in the bottom corner of that pantry and located by police after an extensive search. It's a dark item in the corner of the pantry: ts 28.

17 There is no need to outline the evidence called at trial at any length.

18 The principal police officer in the investigation, Detective Constable Graham, testified about the search. Apart from the plastic tube and its contents, he said that in Peter Wright's bedroom the police came across a needle and syringe consistent with intravenous drug use: ts 46. Through Detective Constable Graham, the prosecution adduced evidence of a DVD recording of the search: exhibit 1. The appellant, Peter Wright, and a visitor to the house, Daniel Tait, were present during the recording. The appellant, under caution, denied any knowledge of the tube or its contents.

19 Melinda Heal, Cameron Preston's fiancée, testified that Cameron Preston had been staying with her for approximately six to seven weeks prior to her giving a statement to the police on 28 September 2009: ts 51. Prior to that, Cameron Preston had been living at his father's house. She was unsure whether Cameron Preston was living at his father's house around 9 July 2009: ts 54. She said that, in February 2010, Cameron Preston was sentenced on amphetamine and marijuana charges. In relation to the amphetamine charges, she was asked about the nature of those charges and whether, in particular, it was alleged that he was selling the drug. She replied, 'I think they were trying to say he was selling it': ts 55.

20 The prosecution called Daniel Tait. He denied going into the kitchen or the pantry on that day. He said that he did not see the 40-centimetre black plastic tube at the house.

21 Another police officer, Senior Constable Bower, who searched the pantry and actually found the black tubing, said that it was discovered on the floor of the pantry behind some cat food.

22 Detective Senior Constable Greene gave expert evidence that street-level methylamphetamine was about 10% pure: ts 92; and that methylamphetamine at 30% purity would be cut prior to sale in the street. She estimated that the potential value of the drug, cut to 10% and sold in 0.1 g lots, was approximately $87,600: ts 94. She explained that some of the things commonly found in drug investigations were spoons and scales: ts 94.

23 Just prior to the State closing its case, and with the consent of defence counsel, the prosecutor read to the jury a statement concerning the prior drug offence.

At about 7 am on Friday, 30 April 1999 police executed a drug search warrant at the [appellant's] home address ... Whilst conducting a search of the [appellant's] bedroom, police located a blue, metal money tin. Contained inside this tin was approximately 55.5 grams of methylamphetamine powder, at approximately 20 per cent purity. This methylamphetamine was separated into five smaller bags.

Also inside this tin were two metal spoons which contained traces of methylamphetamine, a small plastic bag containing traces of methylamphetamine, 20 plastic bags, each containing one white tablet, a set of digital scales and numerous empty plastic bags. The total weight of the tablets was 4.76 grams and they were found to contain methylamphetamine at approximately 4.5 per cent purity.

Located in a top be[d]side drawer police located a small wooden box containing two small plastic bags, one containing 0.27 grams and the other 0.34 grams of methylamphetamine powder. The methylamphetamine in these bags was approximately 24 per cent purity. In this same drawer police located a metal cigar tin, inside of which was a small plastic bag containing 0.17 grams of methylamphetamine powder of approximately 18 per cent purity. The total amount of methylamphetamine located by police at the [appellant's] residence was 61.04 grams, being 56.28 grams of methylamphetamine powder and 4.76 [grams] of tablets which contained methylamphetamine.

While searching the [appellant's] bedroom, police also located a quantity of cash in two separate bedside drawers. In one drawer police located $2000 cash in $50 denominations. In the other drawer, police located $1055 in cash. The total amount of cash in the [appellant's] bedroom was $3055. [The appellant] was convicted of possession of methylamphetamine with intent to sell or supply it to another person and the date of the conviction was 17 March 2000: ts 129 - 130.

25 The appellant elected not to give evidence, but called Dr McDonald in connection with the DNA evidence. That evidence is not material to this appeal.

26 In her closing address, the prosecutor submitted that, given the value of the drugs in the tube found in the pantry, it was unlikely to have been left 'by any random person': ts 150. She submitted that the drugs were put there by the appellant alone, or by the appellant and others, and that it could be, on the evidence, that Cameron Preston or Peter Wright were involved: ts 150.

27 The question posed by the prosecutor was, 'Did he [the appellant] possess it[?]': ts 151. It was submitted that the appellant was the main occupant of the house, and that as the main occupant the jury could infer that he was aware of what was in the pantry as he would have accessed the pantry, it was said, on a daily basis. The prosecutor suggested to the jury that the appellant must have had knowledge of its presence and what it was: ts 152.

28 With respect to the prior offence, the prosecutor said that it was capable of being regarded by the jury as evidence that the appellant has, or at least had, at some point, a tendency to be in possession of drugs with the intention to sell or supply: ts 156.

29 Defence counsel, in her closing address, emphasised that the appellant was not living in the house alone. She noted that a syringe had been located in Peter Wright's room, and that injection was a common method of using methylamphetamine: ts 158. She emphasised the evidence of Ms Heal, that Cameron Preston had been convicted, as she put it, 'of either sell or supply methylamphetamines' in 2010: ts 158. The point clearly being made by defence counsel was that the other two occupiers of the house had a connection with methylamphetamine and, by implication, could have possessed the drug without the knowledge of the appellant.

30 Defence counsel submitted to the jury that the prior offence was 'meaningless' because it was 'too long ago'. She contrasted the situation with Cameron Preston's conviction which she described as 'recent': ts 159.

The trial judge's direction with respect to the prior offence

31 The trial judge's direction with respect to the prior offence is, if the evidence is admissible, comprehensive, balanced and accurate. It clearly identified the potential relevance of the evidence. His Honour told the jury that it could not, by itself, prove the case against the appellant. His Honour highlighted the period of time between the commission of the prior offence and the alleged offence: ts 172 - 173. The direction is not challenged in this appeal.

Section 31A of the Evidence Act

32 The admissibility of the evidence the subject of this appeal is governed by s 31A of the Evidence Act. That section provides:

31A**. Propensity and relationship evidence**

(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.

33 The history and proper interpretation of this section has been dealt with in this court in a substantial number of cases including Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; 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; and PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489.

34 The purpose of s 31A is to provide courts with greater capacity to admit propensity and relationship evidence. The section altered the common law in this area by abolishing the principle that such evidence was inadmissible if the court formed the opinion that there was a rational view of the evidence inconsistent with the guilt of the accused.

35 Evidence will be admissible under s 31A if:

(a) it comes within either or both of the definitions of propensity evidence and relationship evidence;

(b) it is considered that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. In assessing whether the evidence in question has significant probative value, the court is not permitted to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion; and

(c) 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.

36 The definition of propensity evidence in s 31A(1) is extraordinarily wide and goes beyond what the common law understood by that category of evidence. It embraces not just similar fact evidence, but also evidence of the character or reputation of the accused or of a tendency that he or she has or had, as well as 'other evidence of the conduct of the accused person'.

37 Assuming that evidence comes within the definition of propensity evidence, the question of its admissibility will go no further unless it is demonstrated that it has significant probative value. Of course, for evidence to be probative of something, let alone significantly probative, it must be relevant. If it is not relevant, it is inadmissible. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2] (Gleeson CJ).

38 By the inclusion of the adjective 'significant', Parliament clearly intended that the evidence sought to be adduced must be more than merely relevant. In Dair [61], Steytler P noted this and referred to Heydon, Cross on Evidence (7th Aust ed, 2004) [21245], where it is suggested that 'significant' means 'important' or 'of consequence'. This coincides with the way the word 'significant' was treated by Wheeler JA in The State of Western Australia v Osborne [2007] WASCA 183 [13]. The words 'important' and 'of consequence' are, in my opinion, consistent with the ordinary meaning of the word 'significant'. Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.

39 If the evidence has significant probative value, the court must then weigh the probative value of the evidence against the risk that the trial will be rendered unfair by its admission. Of the processes required by s 31A, the weighing process in (2)(b) is arguably the most difficult. It requires not just a weighing of things which are incommensurable, but it requires an assessment, not of what the presiding judicial officer would think, but what the hypothetical fair-minded person would think.

40 Section 31A(2)(b) makes plain what is well-known about propensity evidence - that its admission will, almost always, give rise to a risk of an unfair trial. The potential risk most relevant to this case is the risk that a jury will act illogically and reason that, merely because the accused engaged in similar criminal conduct in the past, he must be guilty of the offence charged.

41 A factor which must be included in the assessment of the risk of an unfair trial is any direction which could be given to neutralise that risk.

42 The fair-minded person is presumed to be a reasonable member of the general public who is not a lawyer, but who has informed him or herself 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).

43 The process required in s 31A(2)(b) is as Steytler P said in Dair [67]. That is, the court must, in effect, decide whether fair-minded people would think that the interests of justice required the admission of the evidence despite its risks.

44 It was not in dispute before Staude DCJ that the proposed evidence was propensity evidence within the meaning of that expression in s 31A(1). His Honour held that the evidence had significant probative value because it tended to rebut a defence of innocent association. He considered that the circumstances of the prior offending had 'some striking similarities with the facts alleged in this case': green AB 21.

45 He said that he was satisfied that a fair-minded person would think that the public interest in adducing all relevant evidence of guilt would have priority over the risk of an unfair trial. He considered that a direction could be given to the jury 'to warn against impermissible reasoning' which would obviate the risk of an unfair trial: green AB 21.

46 It is as well to recognise from the outset that although before this court and in the court below, there was a tendency to talk about the appellant's past conduct in terms of his conviction, such references were really a shorthand way of describing the conduct engaged in by the appellant that led to his conviction on 17 March 2000. The conviction was not disputed at trial and was disclosed to the jury without objection. It was not argued on appeal that the admission of the fact of the conviction was a miscarriage of justice. Both at trial and on appeal, the really significant evidence was the conduct in which the appellant engaged in 1999, as set out in the statement that the prosecutor read to the jury (the conduct).

47 There was only one live issue at trial - did the appellant solely or jointly, with either or both of Peter Wright and Cameron Preston, possess the methylamphetamine found secreted in the tube in the pantry? The answer to this question required the State to prove beyond reasonable doubt, amongst other things, that the appellant had knowledge of the drugs inside the tube. The defence case was that the appellant had no knowledge of the drugs and that they might rationally have belonged to, and been put there by, one or both of Peter Wright and Cameron Preston, each of whom had a connection with methylamphetamine.

48 The first question to be answered is whether the conduct was propensity evidence. There was no issue either before Staude DCJ or this court that the conduct was propensity evidence as defined in s 31A(1). Beyond this, the parties did not specify within which part of the definition of propensity evidence the conduct came. In light of the similarities between the conduct and the facts of the present case, to which I will shortly refer, it might well be argued that the conduct was similar fact evidence. However, as the question of the precise characterisation of the evidence was not argued by counsel, it is, I think, appropriate to deal with the conduct on the basis that it was, at the very least, within the ambit of 'other evidence of the conduct of the accused person'.

49 The next question is whether the conduct was evidence that had significant probative value. The appellant submitted that it was irrelevant, but that if it was relevant its probative value was not significant. The respondent submitted that it was both relevant and of significant probative value.

50 In oral submissions before this court, the respondent submitted that the conduct was relevant to the issue of the appellant's knowledge of the drugs in the pantry. The submission was that the probability of the appellant having no knowledge of the drugs was rendered less likely by the fact that the appellant had possessed, in the past, a similar quantity of the drug in his home with similar associated paraphernalia, namely cash and a spoon.

51 The appellant submitted that the key factor was the 10 years which had elapsed between the occurrence of the conduct and the discovery of the drugs in the pantry by the police. Counsel pointed out that there was no evidence of any continued or recent connection, on the appellant's part, with methylamphetamine. Counsel submitted that given the 10-year period, the conduct said nothing about the appellant's knowledge of the drug on the day it was discovered by the police, and thus was irrelevant or not significantly probative.

52 In my opinion, the evidence was relevant and significantly probative.

53 The clear implication of the appellant's defence at trial was that he had no connection with methylamphetamine, but the two other occupiers of the premises, Peter Wright and his son Cameron Preston, did. The fact that the appellant had previously, albeit 10 years before, possessed, with an intention to sell or supply, a considerable quantity of methylamphetamine, was relevant to the jury's assessment of this defence. To deprive the jury of this knowledge would have left them with the misapprehension that while the other two occupiers of the house had a connection with methylamphetamine, the appellant did not.

54 Moreover, acknowledging that cases of possession of prohibited drugs with an intent to sell or supply often have certain common features which will not usually give rise to a conclusion of striking similarity, a comparison of the circumstances between the conduct in 1999 and what occurred in 2009 reveals a striking degree of similarity. The common aspects are:

(d) the purity of the drug exceeded street level purity; and

(e) on each occasion, cash and a spoon were discovered with or near the drug.

55 It is true that there are some differences in the circumstances. For example, in 1999 the drug was found in the appellant's bedroom, while in 2009 it was found in the pantry. The amount of cash discovered on each occasion was different. Notwithstanding these differences, which I do not regard as material, the similarities are such as to render it more likely that the appellant possessed the methylamphetamine found in 2009.

56 As I have indicated, much was made by the appellant's counsel of the 10-year period between the conduct and the commission of the alleged offence. The appellant's counsel placed considerable reliance on Pullin JA's statement in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [12], where his Honour said:

Evidence that a person is in possession of prohibited drugs, either shortly before or after the charged offences, with intent to supply, is evidence of significant probative value in proving the charged offences. A person's propensity to possess prohibited drugs with intent to supply on one occasion is evidence of significant probative value in support of a charge of possession of prohibited drugs on another occasion close in time to the former or subsequent occasion. This is so because it tends to rebut any defence that the accused was innocently found in the presence, and in apparent control, of prohibited drugs.

57 Pullin JA was speaking in the factual context of the case before him and was not seeking to make any general statement, to the effect that possession of prohibited drugs will only have significant probative value if it occurred shortly before or after the charged offences. While closeness in time is a factor in determining relevance and, if the evidence is relevant, whether it has significant probative value, each case must be decided on its own facts. Examples where conduct which occurred a long time before the commission of an alleged offence would be admissible can be imagined. So, if an accused is proved to have offended many years ago, using a distinctive modus operandi, it may be that such evidence will be seen as having significant probative value, where the offence in question is committed by use of that same modus operandi.

58 The final question to be determined is that raised by s 31A(2)(b). I recognise, at once, that the admission of the evidence would give rise to the risk which I referred to earlier in these reasons. It is not a risk which can or should be downplayed. However, it is a risk which could have been and was, in my opinion, neutralised by his Honour's directions to the jury. In my opinion, a fair-minded person would think that it was in the public interest for the evidence to be adduced despite the risk of an unfair trial. This is because to leave the jury in ignorance of the conduct would have given rise to a material misapprehension on its part as to the appellant's connection with methylamphetamine, particularly when the circumstances of the earlier offending were so similar to the case at hand.

59 For these reasons, I am satisfied that Staude DCJ did nor err in admitting the evidence of the appellant's conduct in 1999. Nor can it be said that any miscarriage of justice arose from its admission. I would grant leave on the additional ground of appeal. However, neither ground of appeal has been made out. Accordingly, the appeal must be dismissed.