HAYDON-WOOD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 259 (31 August 2017)

3 The accused are obviously related. Kane and Sharee are cousins. Linda is the mother of Sharee and the aunt of Kane. For the sake of simplicity I will refer to them throughout these reasons by their first names.

4 Kane and Sharee have both filed applications seeking a ruling that evidence proposed to be led by the State is inadmissible. The evidence in issue relates to two separate incidents some weeks after the alleged robbery when Kane and Sharee were found in the vicinity of modified, unlicensed firearms.

5 The prosecution case is that on Sunday 13 March 2016, Kane, Sharee and Linda travelled together in a black Holden Commodore sedan to a house in Ballajura. Sharee and Linda got out of the car, walked up to the house and entered via a garage door. Shortly after, Kane also entered the premises carrying a black bag. The State alleges that this bag contained two firearms.

6 It is alleged that once inside the premises Kane produced a sawnoff shotgun. Sharee produced a second weapon, described as a sawnoff rifle. All three accused then demanded that the owner of the house, Sharon Moyle, give them the keys to a vehicle that was parked at the front of the house. The vehicle belonged to a man named Robbie Edwards and was being kept by Ms Moyle at her house with the agreement of Mr Edwards.

7 Ms Moyle refused to hand over the keys. During the ensuing confrontation Sharee hit another occupant of the house in the head with the firearm that she was brandishing. Eventually Ms Moyle handed over the keys.

8 The three accused then went out to the front of the premises. Kane and Sharee got back into the black Commodore and drove away. Linda got into the vehicle belonging to Mr Edwards and drove off. The taking of the car was not consented to and it is alleged therefore that it was stolen.

9 The prosecution case is that the three accused were acting together and that they are all responsible for the use of the firearms. It would appear from this that the prosecution alleges that they were acting in concert to commit an offence and are each responsible as principal offenders under s 7(a) of the Criminal Code (WA).

10 On 30 June 2016, Linda participated in a video interview in which she admitted going to the house in Ballajura with Kane and Sharee. However, she said that they simply 'borrowed' the car. She denied that there was any armed robbery.

11 On 30 April 2016, police conducting an unrelated investigation attended a house in Bayswater. On arrival they observed a purple Commodore parked in the driveway. There were four occupants in the car, of whom the two rear passengers were Kane and Sharee. A pistol was observed on the floor in the rear of the vehicle.

12 As a consequence of seeing the pistol, police arrested the occupants and searched the car. The middle section of the rear seat was able to be folded down to obtain access to the boot. When a police officer folded down this part of the seat, a .22 calibre cutdown rifle was observed in close proximity to the access hatch. For reasons that are not presently relevant, Kane and Sharee were not charged with the armed robbery at this point. Forensic examination later established that DNA consistent to a high degree of probability with that of Kane was found on the rifle.

13 On 27 July 2016, Kane and Sharee were arrested at the Marracoonda Motel in Redcliffe. On entering the room, police observed a sawnoff rifle on a bag which was on the bed. Sharee was asleep on the bed and Kane was asleep on a couch in the same room. When asked about the rifle, both Kane and Sharee declined to make any comment, however they both admitted that clothes belonging to them were in the bag.

14 It is not the State case that either of the sawnoff rifles seized by the police in April and July were used in the alleged armed robbery in March. Both guns have been forensically examined and whilst it is possible that one or other of them was used in the robbery there is nothing sufficiently distinctive about them that would enable such a conclusion to be drawn. However, the State relies on this evidence as circumstantial evidence.

15 The State submits that the fact that Sharee and Kane were found on two occasions in close proximity to unregistered sawnoff rifles and relatively close in time to each other and the alleged robbery shows that they have access to such weapons. This is said to be relevant because it shows that they have the ability to obtain weapons that are of a type similar to those used in the armed robbery and that are not freely available.

16 Although the State said that it also intended to rely on the pistol found in the car in April, the rationale for saying that the other firearms are relevant does not apply to the pistol. The pistol does not appear to be modified and is not a weapon of a type similar to those alleged to have been used in the robbery.

17 Both Kane and Sharee object to the evidence. Both accused submit that the evidence is not admissible under s 31A of the Evidence Act 1906 (WA) because:

1. It is not propensity evidence within the meaning of s 31A.
2. The evidence has little relevance or probative value.
3. The evidence would be so prejudicial compared to any probative value that no direction would be sufficient to ensure that the trial was fair.

18 The prosecution submits that the evidence is admissible and relevant circumstantial evidence without any need to rely on s 31A of the Evidence Act. However, the State submits that s 31A provides an alternative basis for admission of the evidence.

19 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); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 503 [50]. Evidence may be relevant in assessing the probability of a fact in issue by assisting in the evaluation of other evidence: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ). It may explain an event that would otherwise seem curious or unlikely. It may reinforce the plausibility of something that a witness has said: HML [6]. Circumstantial evidence is evidence that, together with other evidence, is capable of supporting an inference of guilt.

20 In the present case, the three accused will not deny that they attended at the Ballajura house. No issue of identity arises. The issue will be what occurred in the house and in particular whether there was a stealing accompanied by violence and whether the accused were armed with two firearms. Three of the witnesses present on that day state in their witness statements that Kane and Sharee had firearms.

21 Sharon Moyle, the complainant, states that Kane was holding a sawnoff shotgun with a wooden handle that was between 30 and 50 cm in length. She says that she also saw Sharee holding a gun that looked the same as the one that Kane had (prosecution brief, page 4, pars 26 28).

22 Glen Moyle states that he saw Kane pointing a gun in his face. He describes the gun as a 'doublebarrel shotgun'. He said that it looked like a shotgun but was shorter than a 'normal one'. He said that he saw Sharee also holding a gun and that this was a singlebarrel gun that was old and wornlooking. He said that this gun was 25 to 30 cm in length and looked like a rifle or a shotgun from the shape. He said that he thought that the barrel had been shortened and that it had a brown handle (prosecution brief, pages 13 15, pars 35 36 and 45 47).

23 Justin Massandy states that he saw Kane holding a chrome or shinylooking 'short doublebarrelled shotgun'. He says that the shotgun either had a short barrel or was sawn off. He said that Sharee was holding a 'sawnoff .22 rifle' and that it had a wooden stock and almost no barrel. Mr Massandy states that he has had previous experience with guns as he has gone hunting on farms (prosecution brief, page 23, pars 15 17).

24 The evidence of sawnoff rifles being found in close proximity to Kane and Sharee in April and July is capable of supporting an inference that they are able to obtain access to guns of this type and possess them for their own use. In assessing the relevance of the evidence it is pertinent to take into account that:

(1) on each occasion Kane and Sharee were together;

(2) the guns found on each occasion were of a similar type to one of those described by witnesses as having been used in the robbery;

(3) both guns were unlicensed and modified by being sawn off.

25 Whilst this is not evidence that in itself could establish that Kane and Sharee were in possession of guns at the time of the alleged robbery, it is evidence that, taken together with the other evidence in the case, is capable of supporting such an inference. They are people who have a proven association with guns of the same type as one of those that was used in the alleged robbery. The jury would be entitled to rely upon that evidence as establishing that Kane and Sharee are people who have an ability to obtain access to guns of this specific type. This would assist in evaluating the evidence of the witnesses who were present at the alleged robbery. It is capable of reinforcing the plausibility of the evidence of those witnesses.

26 In my view, the evidence is admissible as relevant circumstantial evidence without any need to rely upon s 31A of the Evidence Act. Further, I would not exclude that evidence in the exercise of the discretion to exclude admissible evidence because its probative value is outweighed by its likely prejudicial effect. In any event, if I am wrong in that regard I consider that s 31A provides an alternative basis for admissibility.

27 Section 31A provides for the admissibility, in some circumstances, of propensity evidence and relationship evidence. Propensity evidence includes evidence of the character or reputation of an accused person or the tendency that the accused person has or had. In order to be admissible the court must consider that it meets two criteria. Firstly, that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value (s 31A(2)(a)). Secondly, that the probative value of the evidence compared to the degree of risk of an unfair trial is such that fairminded people would think that the public interest in adducing the relevant evidence of guilt must take priority over the risk of an unfair trial (s 31A(2)(b)).

28 The principles relevant to s 31A were recently and conveniently summarised in RMD v The State of Western Australia [2017] WASCA 70 by Beech JA (with whom Mazza JA relevantly agreed). The principles were distilled from a number of appellate decisions and were summarised as follows:

(1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.

(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.

(3) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.

(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.

(6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

(7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.

(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.

29 In my view, the evidence meets the definition of propensity evidence because it is evidence of the character of both accused and of a tendency that they have. It is character evidence because it shows that both accused have as a characteristic a willingness to be in the presence of and possess guns of a particular type, being modified unregistered firearms. It is also evidence of a tendency to be in possession of such firearms. Taking this evidence at its highest from the perspective of the prosecution it makes it more likely that Kane and Sharee were in possession of modified firearms at the time of the robbery because they are by character and tendency likely to possess such weapons. The fact that two sawnoff rifles were in the possession of the accused on two separate occasions within a relatively short time of the armed robbery is a relevant factor to take into account. Having regard to other evidence that will be adduced, in particular the evidence of the witnesses who were present at the Ballajura house, I am satisfied that this is evidence that would have significant probative value. It is evidence that would rationally affect to a significant extent the assessment of the probability that the accused were armed with sawnoff firearms at the time of the alleged offence.

30 As I have noted, the mere possession of modified firearms on two later occasions does not in itself prove that Kane and Sharee committed the offence as alleged. It is evidence which could only be relevant when taken together with the evidence of the witnesses who were present at the Ballajura house. The question for the jury will be whether the evidence, if accepted, lends weight to the direct evidence regarding the use of modified firearms.

31 There is no suggestion that on either of the subsequent occasions where firearms were found that they had been used by the accused in the course of a robbery. There is a risk of prejudice to the accused that the jury will assume that one of the weapons subsequently found was one of those used in the alleged robbery. There is also a risk that the jury will simply assume that because the accused were found in possession of modified weapons on subsequent occasions that they must therefore be guilty of the armed robbery.

32 These are risks that, in my view, can be ameliorated by appropriate directions. Directions could be given as to the relevance of this evidence and for what purposes it can and cannot be used. The jury could be warned against inappropriate reasoning. In these circumstances, I am satisfied that the probative value of the evidence as compared to the degree of risk of an unfair trial is such that fairminded people would think that the public interest in adducing this evidence must have priority over the risk of an unfair trial.

33 For these reasons, the objections raised by Kane and Sharee are overruled. In my view, the evidence regarding the two modified weapons found in April and July is admissible. However, I do not accept that evidence as to the pistol found in the car in April is relevant and that evidence should not be led.