MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 140 (6 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 140

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Joinder of drug charges - Application for separate trials - Appeal under s 26 Criminal Appeals Act 2004 (WA) - Section 133 Criminal Procedure Act 2004 (WA) - Whether charges properly joined - Whether prejudice occasioned from joinder - Whether risk of unfair trial - Propensity evidence - Section 31A Evidence Act 1906 (WA) - Whether evidence in respect of different charges cross­admissible

Criminal Appeals Act 2004 (WA), s 26, s 85

Criminal Procedure Act 2004 (WA), s 133

Evidence Act 1906 (WA), s 31A

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)

Leave to appeal refused and appeal dismissed on ground 1(a)

Leave to appeal granted but appeal dismissed on grounds 1(b), (c) and (d)

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

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

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

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

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

Lancaster v The Queen [1989] WAR 83

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

PIM v The State of Western Australia [2009] WASCA 131

R v Kray [1970] 1 QB 125

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

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

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

1 MARTIN CJ: On 21 July 2009 I joined in the orders made by the court dismissing this appeal for the reasons now given by Miller JA.

2 BUSS JA: I joined in the orders made by the court on 21 July 2009 for the reasons to be published by Miller JA.

3 MILLER JA: At the hearing of this appeal, the court was unanimously of the view that the appeal should be dismissed. The appellant is already on remand for trial in the District Court at Perth and no other orders were required.

4 The court undertook to give reasons for its decision to dismiss the appeal and the following are my reasons.

5 The appellant seeks leave to appeal a refusal of an application under s 133 of the Criminal Procedure Act 2004 (WA) for separate trials on count 1 and on counts 2 and 3 of the indictment. It is conceded that counts 2 and 3 are properly joined, but not count 1.

6 There is a single ground of appeal, contending that the trial judge erred in refusing an application for separate trials. Four particulars are given:

1. Count one was not properly joined with Counts two and three of the indictment in accordance with the provisions of clause 7(3) of the First Schedule of the Criminal Procedure Act 2004.
2. The evidence proposed to be led by the prosecution in support of count one is not significantly probative of the allegations in counts two and three to be admissible under s31A (2)(a) of the Evidence Act.

1. The evidence proposed to be led by the prosecution in support of the allegations in counts two and three is not significantly probative of the allegations in count one to be admissible under s31A (2)(a) of the Evidence Act.

1. If, in the alternative, the evidence to be led in respect of the respective counts is sufficiently probative to be cross-admissible as propensity evidence under s31A (2)(a) of the Evidence Act there is a significant and unacceptably high risk of an unfair trial which a fair minded person would think exceeded the probative value of the evidence and the evidence should be excluded under the provisions of s31A(2)(b).

7 The question of leave to appeal has been referred to this court for determination with the appeal.

8 The indictment faced by the appellant alleges three separate drug offences. The first is that on 14 November 2007 at Perth he had in his possession a prohibited drug, namely ketamine, with intent to sell or supply it to another. The second is that between 2 and 10 April 2008 at Perth he supplied a prohibited drug, namely MDA, to another. The third is that on 4 April 2008 at Lockridge he supplied a prohibited drug, namely cocaine, to another.

9 It is alleged that on 14 November 2007 at Perth a black Jeep Cheroke which was being used by the appellant (and allegedly by no other person) was searched, with the result that a clipseal bag containing a quantity of white tablets weighing 295 g was located. The white tablets were later analysed as ketamine, a prohibited drug. There were 1,030 tablets making up the 295 g.

10 The prosecution case is that, during the course of the search of the vehicle (which was recorded on video), the appellant made admissions that the vehicle belonged to him and that he had had it for two and a half years. He allegedly said that he had been driving the car on 14 November 2007 and that it was his vehicle. He was asked whether anybody else had used the vehicle in the preceding couple of days and it is alleged that the appellant replied in the negative.

11 The prosecution case also contends that $20,000 in large denominations was located upon a search of the premises occupied by the appellant and his then wife. It is alleged that this money was located in a safe that was prised open by investigating police.

12 The prosecution case in relation to counts 2 and 3 on the indictment is dependent upon telephone intercepts. Lawfully obtained intercepts of mobile telephone number 0405 931 191 revealed a number of telephone calls and various text messages, both sent and received. The prosecution case is that it was the appellant who made and received the calls and sent and received the text messages. The prosecution case is that it can be inferred from these calls and messages that the appellant was arranging the supply of a quantity of MDA tablets and a quantity of cocaine to one Jason Donald Vaibar. It is alleged that 2,953 MDA tablets were supplied (weighing 590.8 g) and a quantity of cocaine (weighing 330.9 g) was also supplied. The purity of the cocaine is alleged to have been high, namely, 47%.

13 The prosecution case in relation to the telephone calls and text messages relies upon both direct and circumstantial evidence. A police officer familiar with the appellant's voice will testify that he can identify the appellant as the person speaking on the telephone. The circumstantial evidence contains a number of strands. The first is that a mobile telephone seized from business premises occupied by the appellant was the same mobile telephone from which the text messages and the calls the subject of the prosecution case were made and received. The number 0405 931 191 was telephoned during the course of an interview with the appellant and the seized mobile telephone was activated.

14 The second strand of the circumstantial evidence relates to the analysis of the SIM card located in the seized mobile telephone. When analysed, that SIM card recorded 08 62781476 as the second-last number dialled. The number 08 62781476 was the telephone number of Mr Vaibar. He is the person to whom the prosecution alleges the appellant supplied the drugs the subject of counts 2 and 3 on the indictment.

15 The third strand of circumstantial evidence is that the analysis of the SIM card on the seized mobile telephone reveals that the last number dialled was 0413 031 763. This is alleged to be the number of a person contacted by the appellant in Sydney as the source of the prohibited drugs the subject of counts 2 and 3 on the indictment.

16 The fourth strand of circumstantial evidence relates to the seizure of several pieces of paper from a desk at the appellant's premises. The papers contained jottings which are alleged to be the calculations of substantial sums of money. These calculations are alleged to be consistent with a number of the telephone calls where substantial sums of money are discussed.

17 The fifth strand of circumstantial evidence relates to the movements of Mr Vaibar. The prosecution case is that his actual movements coincided with a description of his future movements allegedly made by the appellant in various telephone calls from the seized mobile telephone.

18 The final strand of circumstantial evidence relates to the seizure of Postpak envelopes in which the prohibited drugs were found. These Postpak envelopes had a telephone number printed on them. That number was 0405 931 191. It was the subscriber number of the mobile telephone seized from the appellant. The sender's name on each Postpak was listed as 'C Pullin'. The prosecution case is that this name coincides with the maiden name of the appellant's then wife, Carolyn Pullin.

19 The appellant has compiled a table which summarises the prosecution case in very bare terms, but upon which the appellant relies to point up certain differences between the offence the subject of count 1 and the offences the subject of counts 2 and 3. That table is in the following format:

Possess with Intent to sell/supply (s 6(1)(a) Misuse of Drugs Act)

Supply (s 6(1)(c)

Misuse of Drugs Act)

Supply (s 6(1)(c) Misuse of Drugs Act)

Various intercepts between alleged supplier. Voice said to be that of the accused and co-accused

Various intercepts between alleged supplier. Voice said to be that of the accused and co-accused

20 This ground contends that count 1 is not properly joined with counts 2 and 3 on the indictment.

21 The formal requirements of indictments are contained in s 85 of the Criminal Procedure Act. Section 85(2)(b) of that Act provides that an indictment must comply with sch 1 div 2. Schedule 1 div 2 sets out the rules relating to the content of prosecution notices and indictments, and cl 7 of div 2 deals with multiple charges. Clause 2(3) provides that a prosecution notice or indictment must contain one charge only, unless cl 7 or another written law permits otherwise. Clause 7(3) provides:

A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -

(a) form or are a part of a series of offences of the same or a similar character;

(b) are alleged to arise substantially out of the same or closely related acts or omissions; or

(c) are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,

and may do so without alleging a connection between the offences.

22 The appellant contends that the joinder of count 1 with counts 2 and 3 is not justified under any of pars (a), (b) or (c) above. However, only par (a) is relied upon by the prosecution. It is contended by the appellant that the offences alleged do not constitute a series of offences of the same or a similar character. It is submitted that, although the offence alleged in count 1 is an allegation of trafficking in drugs (as are the offences alleged in counts 2 and 3), the 'factual matrix' of count 1 is markedly different from that relating to counts 2 and 3.

23 The respondent contends that counts 1, 2 and 3 form or are part of a series of offences of the same or a similar character, within the meaning of cl 7(3)(a). It is contended that the alleged offences are relatively closely linked in time; that all counts involve an allegation of either possession of or supply of a substantial quantity of a prohibited drug; and that all counts are connected to or related to business and residential premises occupied by the appellant.

24 In relation to the last contention, it is said that the prohibited drug the subject of count 1 on the indictment was located in a vehicle under the business premises of the appellant. It is said that the offences the subject of counts 2 and 3 on the indictment were committed with the use of a mobile telephone which was found in a drawer in a cabinet in the business premises of the appellant.

25 Further, it is contended on behalf of the respondent, in relation to count 1, that a sum of $20,000 was located in a safe in the residential premises occupied by the appellant, and that this sum links with the fact that, in various telephone calls made and received in relation to the offences alleged in counts 2 and 3, substantial sums of money were referred to in relation to payment for the drugs in question.

26 In this State, the leading authority on the proper meaning to be given to cl 7(3)(a) is Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302. Steytler P (with whom Wheeler and Pullin JJA agreed) analysed the provisions of cl 7(3)(a), at [22] - [34]. A number of cases are reviewed in that portion of Steytler P's judgment. What they reveal is that offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such a nexus is established if the offences are so connected that evidence of one would be admissible on the trial of the other: R v Kray [1970] 1 QB 125, at 130 - 131; Lancaster v The Queen [1989] WAR 83, at 86. What is required is a sufficient correlation to enable the offences to be described as a 'series', without straining the word beyond the meaning which it is reasonably capable of bearing: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 per Dawson J, at 9. Further, the provision allowing joinder (cl 7(3)) should not be given 'an unduly restricted meaning': Zammit per Steytler P, at [27], following De Jesus per Dawson J, at 9.

27 In my opinion, count 1 is properly joined with counts 2 and 3 on the indictment. The offences do constitute a series of offences of the same or a similar character within the meaning of cl 7(3)(a) of the Criminal Procedure Act. There is a sufficient nexus between the offence the subject of count 1 and the offences the subject of counts 2 and 3. The offences are legally similar in character, in that count 1 alleges an offence of possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and counts 2 and 3 allege offences of supply of a prohibited drug contrary to the provisions of s 6(1)(c) of the Misuse of Drugs Act. The factual setting in which the offences are alleged to have occurred is similar, in that the allegations made against the appellant contend for an operation of drug dealing connected to his business and residential premises. A motor vehicle in which the drugs the subject of count 1 were located was parked beneath the business premises occupied by the appellant and the mobile telephone seized came from a drawer in a cabinet within those premises. Further, there was $20,000 in cash (an indicium of drug dealing) found at the residential premises of the appellant which linked to references made in calls relating to counts 2 and 3 on the indictment to substantial sums of money being exchanged for drugs. These calls are alleged to have been made and received by the appellant.

28 The table to which counsel for the appellant referred establishes that (a) the offence the subject of count 1 was committed in November 2007 and the offences the subject of counts 2 and 3 in April 2008, being only five months later; (b) the drug the subject of count 1 on the indictment, whilst different from the drugs the subject of counts 2 and 3 on the indictment, constituted a substantial quantity (295 g or 1,030 tablets) which compared roughly with the quantity of cocaine the subject of count 2 on the indictment.

29 In broad terms, and giving cl 7(3)(a) a meaning which is not unduly restrictive (Zammit per Steytler P, at [50]), the case against the appellant is that he was a dealer in prohibited drugs of a substantial quantity (albeit different drugs) on three separate occasions over a period of five months and in circumstances where his dealing bore a relationship to business and residential premises occupied by him. In the first instance, the ketamine was found in a motor vehicle parked under the business premises and, in the second and third instances, the supply of the drugs was alleged to have been arranged through the use of a mobile telephone found within the business premises. It therefore seems to me that there is a sufficient nexus between the offences to justify joinder under cl 7(3)(a) of the Criminal Procedure Act. I would therefore refuse leave to appeal and dismiss ground 1(a) of the grounds of appeal.

30 These three grounds can be dealt with together. They raise the question whether under the provisions of s 31A(2)(a) of the Evidence Act 1906 (WA) the evidence proposed to be led in support of count 1 is sufficiently probative of the allegations in counts 2 and 3, and vice versa, to be admissible. It is first contended that the evidence is not significantly probative, but it is pleaded in the alternative that, if it is significantly probative so as to be cross-admissible as propensity evidence under the provisions of s 31A(2)(a) of the Evidence Act, there is a significant and unacceptably high risk of an unfair trial which a fair-minded person would think exceeded the probative value of the evidence so that it should be excluded under the provisions of s 31A(2)(b) of the Evidence Act.

31 The provisions of s 31A of the Evidence Act are in the following terms:

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.

32 The purpose for which s 31A was introduced into the Evidence Act is referred to in Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 by Steytler P, at [54] and Miller JA, at [179]. The history of the section is also dealt with in some detail by Buss JA in PIM v The State of Western Australia [2009] WASCA 131 at [289] - [293].

33 The appellant contends that evidence in respect of count 1 and counts 2 and 3 is neither 'similar fact evidence' nor 'evidence of the conduct of the accused person' within the meaning of s 31A(1)(a) of the Evidence Act. It is contended that the evidence is therefore not propensity evidence as defined within s 31A(1)(a). I agree that the evidence is not similar fact evidence, but, in my opinion, it is clearly evidence of the conduct of the accused person. It is evidence of dealing in prohibited drugs, in the first instance by allegedly possessing a substantial quantity of prohibited drug with intent to sell or supply and in the second and third instances by allegedly supplying prohibited drugs in substantial quantities. Dealing in prohibited drugs, whether by selling or supplying, is, in my opinion, a course of conduct which comes within the definition of propensity evidence in s 31A(1)(a) of the Evidence Act.

34 The real questions for determination are (a) whether the evidence on count 1 is significantly probative of the allegations in counts 2 and 3, and vice versa, and (b) whether, if significantly probative, there is nevertheless a significant and unacceptably high risk of an unfair trial if the evidence were to be admitted, which risk a fair-minded person would think must have priority over the public interest in adducing all relevant evidence.

35 If the evidence in relation to count 1 is admissible in relation to counts 2 and 3, and vice versa, the evidence is cross-admissible in relation to count 1 and counts 2 and 3 respectively. The jury would be entitled to receive evidence in relation to count 1 to assist them in consideration of counts 2 and 3, and vice versa. They would then be able to assess the objective probability or improbability of the same person allegedly dealing in drugs in November 2007 and again allegedly dealing in drugs in April 2008.

36 If the evidence is cross-admissible, it is unnecessary to consider the provisions of s 133(5) of the Criminal Procedure Act. If the evidence on one count is admissible in respect of the others, and vice versa, there can be no relevant prejudice from the joinder of the charges. It would thus not be open to make an order for separate trials under s 133 of the Criminal Procedure Act: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 per Roberts-Smith JA, at [101].

Does the evidence have significant probative value?

37 For evidence to have significant probative value, 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. This was made clear by Steytler P in Dair, at [60] - [61], where his Honour said:

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 at [2] per Gleeson CJ; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 at [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 at 175 - 176. Heydon (at [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: at 459; at 360 - 361; at 370; ; at - [82]; at .

38 In my opinion, the evidence in relation to count 1 has significant probative value in relation to counts 2 and 3, and vice versa. If the jury is satisfied beyond reasonable doubt that the appellant was in possession of a substantial quantity of ketamine with intent to sell or supply and had at his residential premises substantial sums of money which could properly be concluded to have been the proceeds of drug dealing, that evidence has significant probative value in relation to the question whether some five months later, and on the evidence directly relevant to counts 2 and 3 on the indictment, the appellant supplied substantial quantities of cocaine and MDA as alleged in counts 2 and 3. The same reasoning applies in reverse.

39 The respondent contends that the importance of the evidence in relation to count 1 is that the jury can take that evidence into account in determining whether it is the appellant's voice which can be heard in the telephone intercepts which relate to counts 2 and 3. Reliance is placed by counsel for the prosecution on Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457, where it was held that evidence (from intercepted telephone calls) of the appellant's involvement in the supply of prohibited drugs, which were not the subject of any charge on the indictment, was admissible by way of circumstantial evidence to prove possession on the part of the appellant of a quantity of drugs which was found in the foot-well of his car when it was stopped by police.

40 McLure JA, at [40], explained the basis upon which the prosecution led evidence of the intercepted telephone calls and surveillance generally:

The State conducted the appellant's trial on the basis that the evidence of the intercepted telephone calls and the surveillance evidence prior to 7 March 2003 was circumstantial evidence that was directly relevant to proof of the appellant's knowledge of the drugs in relation to count 2 and knowledge and control of the drugs in relation to counts 3 and 4. This is borne out by the State's closing submissions. After repeated references to the evidence establishing a drug dealing business in which the appellant was employed as the 'runner, the leg man, the gopher, the courier' the prosecutor stated (T23):

In terms of possession, [the appellant], the state says, is in actual possession of the drugs. It's in his car and he knows about it because of the preceding telephone calls between him and Sinagra-Brisca, and because of his role in the drug dealing business he is, after all, the gopher and unfortunately with gophers they're usually the ones that are caught with the drug and he, unlucky for him, was caught with the drugs on 8 March 2003.

The appellant's uncharged acts together with the other telephone intercept and surveillance evidence was relied on by the State to prove, and was highly probative of, the appellant's participation in a drug dealing business that continued to and included the conduct on 8 March 2003. That evidence is very strongly probative and materially affects the objective probabilities on the issue of possession and thus guilt. But its relevance and probative value in relation to the offences the subject of the charges is directly connected with the appellant's propensity or disposition and falls within the exclusionary rule as modified by s 31A of the Evidence Act. The evidence satisfies both the common law and statutory tests of admissibility of propensity evidence. The case is factually similar to that considered by the High Court in Harriman v The Queen. In that case the offender was charged with being knowingly concerned in the importation of heroin in April 1987. Propensity evidence was admitted of his joint involvement, together with a co-offender who gave evidence for the prosecution, in the sale of heroin in late 1986. Brennan J noted (596; 225) that evidence of substantial involvement in the heroin trade could support an inference of continued participation.

41 In this case, I am of the opinion that the evidence in relation to the offence alleged in count 1 on the indictment and the evidence in relation to counts 2 and 3 on the indictment is clearly cross-admissible. As a matter of common sense and experience (see Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 per Brennan J, at 596 - 507), it is objectively improbable that the appellant would have been in possession with intent to sell or supply of a substantial quantity of ketamine on 14 November 2007, and found to have supplied substantial quantities of cocaine and MDA respectively on 4 and 9 April 2008, as alleged by the prosecution, unless he was dealing in drugs. In BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 Gaudron J, at 298, when dealing with the admissibility of propensity evidence at common law, said:

In some circumstances, evidence that an accused has committed other offences on other occasions is admissible because it is of particular probative force or has particular cogency. Its probative force or cogency lies in the fact that it discloses some feature which raises, as a matter of common sense and experience, the objective improbability of its bearing an explanation consistent with the accused's innocence of the offence charged. (Footnotes omitted)

42 This passage is entirely apposite to the present case. The probative force of the evidence in relation to count 1 on the indictment when related to counts 2 and 3 on the indictment, and vice versa, lies in the fact that, if accepted by the jury, it discloses a feature which raises as a matter of common sense and experience the objective improbability of there being any explanation consistent with the appellant's innocence of the offences charged. In particular, the evidence which is directly relevant to counts 2 and 3, if accepted by the jury, tends to rebut any contention by the appellant that the drugs the subject of count 1 were placed in his vehicle by a third party without his knowledge or consent.

43 I am therefore of the opinion that the evidence proposed to be led in relation to count 1 is significantly probative of the allegations contained in counts 2 and 3 and that the evidence proposed to be led in relation to counts 2 and 3 is significantly probative of the allegation contained in count 1. I would grant leave to appeal, but dismiss each of grounds 1(b) and (c) of the grounds of appeal.

44 If evidence is found to have significant probative value, it is then necessary for the court to engage in the process set out in s 31A(2)(b). In Dair, Steytler P said, at [62]:

Because there will already have been an assessment of the probative value of the evidence (taking into account the purpose for which it is adduced and its likely effect when considered together with the other evidence), it is necessary, next, to assess the degree of risk of unfairness in the trial that will be brought about by the admission of the evidence.

When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto (at [27]). In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at 235, McHugh J said:

If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning ... And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment.

(Emphasis in original)

Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend upon the circumstances of the individual case. It is important to have regard for the purpose for which the evidence is admitted and to tailor the directions accordingly: Gipp v The Queen (1998) 194 CLR 106 at [77] per McHugh & Hayne JJ.

45 The final step is to consider the conclusion that fair-minded people would draw from a comparison between the probative value of the evidence and the degree of risk of an unfair trial. In Dair, Steytler P put it this way, at [66]:

Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported, NSWCA, 27 November 1990) at 20, cited in Australian National Industries Ltd v Spedley Securities Ltd (In liq) (1992) 26 NSWLR 411 at 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (at [53]) per Kirby J. However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson (at [53]) per Kirby J.

46 The introduction of propensity evidence is always likely to involve the risk of an unfair trial: see Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482, at [58]. Section 31A(2)(b) requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial. The relevant unfairness is that the jury might reason, from the mere fact of established criminal propensity, that the accused is the offender (Di Lena per Roberts-Smith JA, at [59]).

47 In the present case, it will be necessary for the trial judge to direct the jury in such a way to at least reduce the risk of any unfair trial by reason of the admission of the challenged evidence. It will not be appropriate to give a 'propensity warning', as when propensity evidence is admissible generally because it is sufficiently highly probative of a fact in issue a propensity warning is not required: Noto per McLure JA, at [27]. What may be required is a direction to the jury that if they were satisfied beyond reasonable doubt as to the truthfulness and reliability of the propensity evidence then it would be open to them to conclude that the occurrence of those incidents increased the likelihood that the appellant had committed the count or counts in question. But the jury could not use the propensity evidence in substitution for evidence of the events charged in the relevant count or counts; that is, the jury could not convict the appellant on a count unless the State satisfied them beyond reasonable doubt that he had committed the specific acts alleged against him in the count. However, what needs to be said depends upon the circumstances of the case and the way in which the evidence unfolds: Upton v The State of Western Australia [2008] WASCA 54 per Steytler P, at [65].

48 A direction against impermissible reasoning is likely to be accepted by the jury: The State of Western Australia v Osborne [2007] WASCA 183 per Wheeler JA, at [39].

49 It can be accepted that a jury will accept and faithfully apply the directions of the trial judge until the contrary is demonstrated. See Zammit per Steytler P, at [65]:

There is now a good deal of authority to support the proposition that, at least in the ordinary case, a properly instructed jury is capable of distinguishing between evidence that is admissible, and therefore usable, against one offender but not admissible, and therefore unable to be taken into account, in respect of another: see, eg Ludlow (at 40 - 41); Beck (at 135); Leaman v The Queen (1987) 28 A Crim R 104 at 108; R v Connell (No 1) (1992) 8 WAR 518 at 530 - 531. However, there will undoubtedly be cases in which the prejudice is so great that it cannot confidently be concluded that it will be overcome: Rintel (at 179, 182); Harbach (at 435); Leaman (at 112 - 113).

50 I am therefore of the opinion that the trial judge will, at the trial of the appellant, be able to direct the jury in such a way as to sufficiently eliminate, or at least reduce adequately, the risk of an unfair trial in the sense in which that term is used in s 31A(2)(b) of the Evidence Act.

51 In my opinion, leave to appeal should be granted, but ground 1(d) of the grounds of appeal should be dismissed.