THE STATE OF WESTERN AUSTRALIA -v- BROPHO [2025] WASC 225 (10 June 2025)

1. Ms Garlett was the accused's de facto partner at the time of the alleged offences. JB is their child.
2. The accused was arraigned on the indictment on 20 January 2025.
3. The State has applied for an order under s 31A of the Evidence Act 1906 (WA) that, at the trial of the accused on the charges in the indictment, the State be 'permitted to rely upon evidence of the prior conduct of the accused in proof of a tendency the accused had at the time of the commission of the alleged offences'. In essence, it is an application to adduce propensity evidence as defined in s 31A. As will appear below, the alleged propensity evidence consists of conduct of the accused on three occasions some time prior to the incidents that are the subject of the counts in the indictment, and the accused's alleged conduct in counts 1, 2 and 3 as propensity evidence in the trial of count 4. The State submitted that the evidence that is said to be propensity evidence is also admissible as relationship evidence at common law.
4. At the same time, the accused has applied for an order, pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA) (the CPA), that counts 1 to 3 be the subject of a separate trial to count 4. It is accepted by the accused that if the State's application succeeds, then his application under s 133(3) cannot succeed.
5. The application was heard at a pre-trial hearing on 21 March 2025. At the conclusion of the hearing, having heard from the prosecutor and counsel for the accused, I reserved my decision.
6. I have concluded that the evidence particularised by the State in respect of the s 31A application is propensity evidence, and that the State should be permitted to adduce the evidence as such. Therefore, the accused's s 133 application must be dismissed. The reasons for my decision are as follows.

The alleged facts of the charges in the indictment

1. It is first necessary to consider the facts alleged in respect of the charges in the indictment.
2. For the purposes of ascertaining the alleged facts of the offences, I have had regard to an Amended Statement of Material Facts, dated 8 January 2025, filed by the State. I have also had regard to video footage from an external security camera (CCTV footage) at the home where the accused and Ms Garlett were residing at the time count 4 is alleged to have been committed. That offence is alleged to have been committed in the vicinity of that home. The CCTV footage was tendered during the hearing.

1. The alleged facts of counts 1 and 2 are as follows.
2. At approximately 11.00 pm on Friday, 1 September 2023, the accused was at his home with Ms Garlett and his seven month old baby, JB.
3. The accused and his child were lying on a mattress in the front living room of the house. Ms Garlett was also in the room, looking for her vaporiser. The accused said to Ms Garlett, 'Lay the fuck down and go the fuck to sleep.' Ms Garlett continued to look around the room, before sitting on the couch.
4. While Ms Garlett was seated on the couch the accused stood up, leant over her, and picked up a small metal dumbbell weight that was behind the couch. He then hit Ms Garlett to her head with the weight several times, causing an injury which bled.
5. Ms Garlett jumped up and tried to move away from the accused. She held a t-shirt to her head to stop the bleeding and sat back on the couch. The incident caused the accused's child, who had been sleeping on the mattress, to wake and cry.
6. Holding a portion of brick in one of his hands, the accused stood on the mattress, near Ms Garlett and the child. Ms Garlett sat upright, still on the couch. The accused then struck her to the head several times, causing further injury to her head which bled. Ms Garlett used a t-shirt again to stop the bleeding. The accused then said to Ms Garlett, 'I'm not going back to jail for you. I've already done years for you. I'm not going to do it again.' He then lay down on the mattress next to their child.
7. The alleged assault constituted by the blows with both the weight and the brick, which caused bodily harm, is count 1.
8. The accused said to Ms Garlett, 'Lay the fuck down and go the fuck to sleep' and 'I'm going to open your head up with the brick and watch your brains come out.' The accused was referring to a piece of brick that was nearby on the floor. Ms Garlett continued to sit on the couch, holding the t-shirt to her injured head. The accused then picked up a portion of a brick that was on the floor nearby. Ms Garlett then lay down on the mattress with their child to comply with his demand. The alleged threat is count 2.

1. The alleged facts of count 3 are as follows.
2. At about 7.00 am, the next day, Saturday, 2 September 2023, the accused and Ms Garlett were still at their home in Willagee with their child. They woke around that time.
3. Ms Garlett got up and moved around in the kitchen to get a broom. The accused then got up, picked up the dumbbell weight again and moved towards her. He then hit her with the weight to her right shoulder, the left side of her body and her face. The weight was in his left hand. The blows caused pain and bruising to Ms Garlett. Their child was nearby at the time of the incident. This alleged assault is count 3.
4. Ms Garlett managed to message a friend discreetly, asking her to call the police on her behalf. Police attended the address shortly after. The accused told Ms Garlett to wash the blood off her face before she opened the door to police.
5. Police entered the property and arrested the accused. They seized a piece of brick and small dumbbell weight from the home. They photographed the location in which the incident is alleged to have occurred. The accused was conveyed to the Palmyra Police Station and was released without being charged, having been issued a Police Order.

Withdrawal of complaints for counts 1 to 3, and subsequent arrest

1. On 6 September 2023, Ms Garlett signed a withdrawal of complaint form, in which she confirmed that she no longer wished to proceed with her complaint against the accused. On the form, she claimed that the complaint was made 'out of jealousy', and that she had 'exaggerated what happened'.
2. The seized brick and weight were subjected to forensic analysis. A stain on the brick returned a presumptive positive result for blood. DNA material recovered from a swab from the stain on the brick matched the DNA sample provided by Ms Garlett. The accused's DNA was also identified within the swab from the brick.
3. On 10 September 2023, the accused was arrested. He participated in an electronically recorded interview in relation to the matters the subject of counts 1 to 3. He denied the allegations.

1. The alleged facts of count 4 are as follows.
2. On Thursday, 28 September 2023, the accused was at his home in Willagee with Ms Garlett. In the afternoon or early evening, they were both outside, at the front of the house. The accused was by the front door and Ms Garlett on a grassed area. They began to argue.
3. Ms Garlett picked up a brick from the front garden and the accused ran from the front door towards the open carport area. Ms Garlett threw the brick at the accused, but missed. The brick smashed the front window of the house, between the front door and the carport. The accused continued running towards the back yard of the house.
4. As a result of a report made by neighbours, police attended the address. Police spoke to the accused and to Ms Garlett separately, but departed without making any arrest.
5. Once the police had left, both the accused and Ms Garlett used methylamphetamine. At one point in the evening, Ms Garlett called her mother and requested that her brother come to pick her up from the house. Ms Garlett then left the house by the front door. She does not recall what happened after that point.
6. CCTV footage from the home shows Ms Garlett running from the direction of the front door towards the front yard of the premises. The date shown on the recording is correct, but the time is not. However, there is nothing to suggest that the clock reading is not accurate in counting the lapse of time chronologically. That is important in terms of what follows.
7. The duration of the footage showing Ms Garlett running from the house is very brief, and it commences when she is already stepping from the front porch area into the front yard. I surmise from this segment and later segments that the security camera was activated by movement within the frame, hence the fact that the recording starts after someone is already in the frame. The time shown on the recording at the commencement of the first segment is '03:38:48 AM'. The video shows a man run out of the front door of the house chasing Ms Garlett whilst holding an item in his right hand. The item is most discernible in the first frame. It is blurred in the frames that follow. However, from the way it is being held and its appearance for those few frames, it appears to be consistent with being either a knife, a pair of scissors or a screwdriver. A bloodied broken knife was subsequently found by police outside the house in the bushes.
8. It is alleged that the man who can be seen running after Ms Garlett was the accused. At the start of the video, the man is almost upon Ms Garlett. The vision is blurry, most likely because of the movement. However, it can be seen that the man is wearing a black t-shirt and there is a logo on the back of the top, being the letters 'LA' which are overlapping. Once the man has caught up with Ms Garlett, it appears that an altercation occurs in the front yard at the top left corner of the image. It is sufficient to note at this stage that it would be open to infer from what is seen on the video from that point that the man with the 'LA' top is leaning over the top of someone who is on the ground, and who could only have been Ms Garlett, given how quickly the incident occurs, and is making vigorous movements with his arms consistent with inflicting an assault. Both bodies move out of view to the left of the frame by '03:39:13 AM' on the clock. So, the incident as depicted in the CCTV footage lasts about 25 seconds.
9. It is alleged that, once he caught up with Ms Garlett, the accused stabbed her several times to her face and body. She sustained numerous injuries, including puncture wounds to the neck, causing an arterial bleed, a punctured left lung, a split lip, superficial stabs to both arms and chest, and fractures to her jaw and cheek bone.
10. However, going by the CCTV footage, it is not clear whether all or any of the penetrating wounds were inflicted in that initial confrontation in the front yard or soon after.
11. The CCTV footage shows the accused walking into view from the left of the frame, and along the front porch to the front door, at '03:40:00 AM', some 47 seconds after Ms Garlett and the assailant are seen to move out of the frame to the left in the front yard. When the accused comes into view on the porch, he is bare chested and holding what appears to be an item of dark clothing, consistent in its appearance with being a black t-shirt. He does not appear to have been carrying any weapon at that stage. The accused went into the house through the front door. He emerged again through the front door at '03:40:28 AM', wearing a t-shirt that appears to have been dark green. It does not appear that he was carrying a weapon at that stage. He walked straight ahead towards the front yard, after which it is not possible to determine which way he went.
12. The CCTV footage shows that the accused returned to the house about 7 minutes later, at '03:47:56 AM', walking along the porch from left to right, towards the front door. He was still wearing the dark green t‑shirt. Both his hands and his arms were covered in blood, up to about his elbows. It appears to me that there was more blood on the accused's right hand and arm. He was holding an object in his right hand that looks similar to a screwdriver. He stopped short of the door, turned around, and walked back down towards the bottom left of the frame until he was out of view, at '03:47:59 AM'.
13. As I have said, the clock on the CCTV camera was showing the wrong time. Neighbours heard Ms Garlett's screams and cries for help sometime before 1.00 am. That is known because they contacted police, and the police attended at approximately l.00 am. They located Ms Garlett and conveyed her to the Royal Perth Hospital for medical attention. Prior to or upon the police attending, the accused jumped a fence in his yard and attempted to flee the scene.
14. At 1.10 am police located the accused approximately 300 metres from the scene. He had blood on his shirt, hands and face. They also located a pair of scissors on the ground nearby.
15. The accused was arrested and conveyed to Fiona Stanley Hospital for examination after complaining of illness. After being discharged from hospital, he was conveyed to the Murdoch Police Station where he declined to participate in an electronic record of interview. He was subsequently charged with the offence of attempted murder that is the subject of count 4.

1. The accused has indicated through his counsel in the course of the hearing that the issue in respect of counts 1 to 3 is whether the incidents described by Ms Garlett in her witness statement occurred. At one point in the hearing, the accused's submissions appeared to postulate the possibility that, if the incidents occurred, it was not the accused who committed the violence. However, the circumstances in which those offences are alleged to have been committed do not admit of a reasonable possibility that someone else inflicted the violence on Ms Garlett. That follows from the manner in which she communicated her need for assistance to a friend, who then called the police who attended the accused's house. The real issue will be whether Ms Garlett is truthful and reliable in her evidence that the accused committed the violence against her.
2. In relation to count 4, there can be no issue that Ms Garlett was attacked by someone and sustained the injuries described at [34] above. The issue will be whether it was the accused who attacked Ms Garlett and caused the injuries. In other words, the issue is identity. That issue needs to be determined on circumstantial evidence, as Ms Garlett has no recollection of the event after she emerged from the house. The issue of the intent with which the assailant inflicted the injuries will also need to be determined on the basis of circumstantial evidence, in particular the number, nature and location of the injuries inflicted on Ms Garlett, and the nature of the weapon used by the assailant to inflict the injuries, as inferred from the injuries.
3. Having regard to the CCTV footage, which was played during the hearing, and which I have viewed again in chambers, it would be open to the jury to find that Ms Garlett sustained the injuries during the incident at the front of the house immediately after she ran out of the house or soon after, which I described above in outlining the alleged facts for count 4. It would also be open to the jury to find that it was the person who chased after her, who can be seen on the CCTV footage, who inflicted the injuries with a sharp implement. While the accused did not concede those facts for the purposes of the applications, nor did he proffer any argument that would provide a reasonable foundation to conclude that the injuries suffered by Ms Garlett occurred at a later time. Of course, the accused may put the State to proof of all aspects of its case. However, the real issue in respect of count 4 would appear to be whether it was the accused who can be seen chasing after Ms Garlett in the video footage and was then involved in the altercation in the front yard. The question of whether it was the accused who inflicted the injuries on Ms Garlett would appear to turn on the jury's finding in respect of that issue. The circumstantial evidence in relation to identity includes the CCTV footage of the accused arriving on the front porch and entering the house by the front door less than a minute after Ms Garlett was attacked in the front yard, and, after leaving the house again, returning about seven minutes later (which was about nine minutes after the 'chase' incident), carrying a screwdriver and with blood covering his hands and arms. The circumstantial evidence also includes evidence that the accused fled from his house, and evidence that he had blood on his shirt, hands and face when he was located by police soon after the incident.
4. In relation to count 4, the State intends to rely on the propensity evidence, both in respect of incidents for which the accused has been convicted previously and in respect of the conduct the subject of counts 1 to 3, as additional circumstantial evidence that the accused was the assailant.

1. Section 31A of the Evidence Act provides as follows:

(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.

1. By s 31A, the admissibility of propensity evidence depends on the court 'considering' that the evidence meets the criteria for admissibility set out in subsection (2).
2. In accordance with the usual practice, the State has sought a ruling prior to trial in respect of the admissibility of the propensity evidence it seeks to adduce. It has done so by applying for the order referred to in [4] above. The application did not particularise the propensity evidence. Ordinarily, an application of this kind should particularise the propensity evidence, so that the scope of the order sought is known at the time of the application. In this case the State particularised the propensity evidence in an outline of submissions in respect of the s 31A application, dated 17 February 2025, and in an outline of 'responsive submissions', dated 31 March 2025, that dealt the accused's written submissions in respect of both the State's s 31A application and the accused's severance application. The particularised propensity evidence consists of violent offences committed by the accused against Ms Garlett previously, of which he has been convicted, and, in relation to count 4, it also consists of the conduct the subject of counts 1 to 3 in the indictment. In respect of the previous convictions, the State annexed transcripts of the sentencing proceedings in respect of those offences. In essence, the relevant propensity is alleged to be a tendency of the accused to be violent toward Ms Garlett, in the context of a domestic relationship, when he becomes enraged towards her or is otherwise in a heightened emotional state.
3. More specifically, the conduct relied upon by the State to establish that tendency is:

(a) The accused's charged conduct on the indictment in respect of counts 1 to 3, as outlined above;

(b) The accused's violent conduct towards Ms Garlett that was the subject of a conviction on Indictment 2288 of 2016, being an offence that, with intent to harm, he did an act as a result of which the life, health or safety of Ms Garlett was, or was likely to be, endangered;

(c) The accused's violent conduct towards Ms Garlett that was the subject of a conviction on Indictment 1710 of 2018, being an assault occasioning bodily harm in circumstances of aggravation;

(d) The accused's violent conduct towards Ms Garlett that was the subject of a conviction in the Fremantle Magistrates Court on 8 October 2019 of an offence of common assault in circumstances of aggravation, committed on 24 February 2019 (charge FR 2919/18); and

(e) The accused's violent conduct towards Ms Garlett that was the subject of a conviction in the Perth Magistrates Court on 24 May 2021 of an offence of endangering the life, health or safety of Ms Garlett (being an offence under s 304(10(b) of the Criminal Code) committed on 18 November 2020 (charge MI 12731/20).

1. The facts of the offences identified in paragraphs (b) to (e) of [48] above may be ascertained from the transcripts of the sentencing proceedings in the District Court and Magistrates Court for those offences, which were attached to the State's written outline of submissions and outline of responsive submissions.. They are as follows.

1. At about 12.52 pm on Monday, 21 March 2016, the accused was at the Bayswater Train Station located near the intersection of King William Street and Whatley Crescent in Bayswater. The accused was with Ms Garlett. He and Ms Garlett were involved in an argument while walking up a concrete ramp leading to the station platform. The accused became physically aggressive and pushed Ms Garlett's head into the concrete wall above the hand railing. He picked her up and dropped her on her back before punching her to the head with his right fist and jumping and landing on her head. He then kicked Ms Garlett to her head with his right foot, causing her to lose consciousness for a short period of time.
2. The accused then sat Ms Garlett up and punched her several times to both shoulders in an attempt to wake her up. As she gained consciousness, Ms Garlett crawled over to the concrete wall, sat up and held onto the railing. The accused, in an agitated state, stood over her and spoke with her for several minutes before pulling her hair and slapping both sides of her face with both hands. Ms Garlett eventually stood up and ran away from the accused.
3. Shortly after, the accused and Ms Garlett boarded a train. Public Transport Authority officers attempted to apprehend the accused. He evaded the officers and left the station.
4. The accused was arrested while he was in the company of Ms Garlett on 26 March 2016.
5. At the time of the offence, Ms Garlett was pregnant.
6. The accused pleaded guilty to the offence in the District Court in 2017. He was sentenced on 23 March 2018. The sentencing is not relevant to my consideration of the issues in this application, except that the facts of the offending were admitted, and the period of imprisonment that was imposed is relevant to the amount of time the accused spent with Ms Garlett between 2016 and September 2023, when the current offences are alleged to have been committed. That has a bearing on one of the accused's submissions.

1. In relation to the second and fourth prior offences that are relied on as propensity evidence, the offences were committed by the accused on 24 and 25 February 2018. The facts in respect the aggravated common assault were included in the recitation of facts for the aggravated assault occasioning bodily harm dealt with in the District Court, as part of the context, but have also been reproduced separately in the transcript from the Magistrates Court.
2. At the time of the offence, Ms Garlett again was pregnant, 32 weeks into the pregnancy. By that stage, the accused and Ms Garlett had been in their relationship for about three years.
3. Between 4.30 am and 5.30 am on Sunday, 25 February 2018, the accused was with Ms Garlett at a house in Coolbellup. Also at the house were their one-year-old daughter and Ms Garlett's mother. The accused had been at the house the night before, being on 24 February 2018, at which time he had punched Ms Garlett to the mouth once with a closed fist, causing her to fall backwards. Ms Garlett was in the rear bedroom with their child. The accused entered the room and punched her. Ms Garlett did not suffer any injury on that occasion. That assault by the accused is the aggravated common assault the subject of FR 2919/18.

When the accused returned to the house in the early hours of the morning of 25 February 2018, he and Ms Garlett had an argument. Despite the argument, Ms Garlett agreed to go with the accused for a drive. The accused sat in the driver's seat of the vehicle, and Ms Garlett sat in the back seat.

1. While the accused was driving, he accused Ms Garlett of cheating on him. She said that if he continued to accuse her of something that was not true, she would jump out of the vehicle. The accused said that he was going to hit a pole. Ms Garlett was scared for her safety. She threw herself out of the moving vehicle landing on the bitumen road.
2. The accused stopped the vehicle and got out. They were still on the same street as the house from which they had driven. After jumping out of the car, Ms Garlett had gone to a nearby house and was banging on the door and yelling for help. The accused approached Ms Garlett and grabbed her around the throat with his hands. He squeezed her neck, causing bruising. He then grabbed Ms Garlett by the hair and forced her back into the vehicle, pulling out some of her hair in the process. He forced Ms Garlett into the back seat and closed the door. He then got into the driver's seat and drove away.
3. The accused was convicted of the offence of aggravated assault occasioning bodily harm on his plea of guilty on 3 October 2019 in the District Court. It is apparent from the transcript of proceedings on that day that the facts were not in issue. Again, the sentence imposed is not relevant other than it was a term of imprisonment, which again affected the amount of time the accused was with Ms Garlett in the community between 2016 and September 2023.

1. Around 1.50 pm on Wednesday, 18 November 2020, Ms Garlett and the accused were at a house in Ellenbrook. Whilst there, they argued. They then left the house, walking together along Tanami Circle towards Forestview Boulevard. Once they were on Millstream Grove, witnesses saw the accused punching the victim. They also saw him forcing her face into the rear windows of two cars that were parked in the carport of a house on that street. This caused the windows to smash. Ms Garlett was observed to have blood on her face. She was also overheard telling the accused that she did not want to be with him anymore. The accused told Ms Garlett, 'If you go in that house, I will smash it up.' The accused also referred to killing their baby.

1. Before turning to the principles applicable in determining the admissibility of evidence under s 31A of the Evidence Act, it is appropriate to refer to the accused's severance application under s 133 of the CPA. As I stated earlier, the application is for a separate trial for counts 1 to 3 from the trial for count 4. The grounds for the application, as argued both in written submissions filed on behalf of the accused, dated 11 March 2025, and oral submissions at the hearing, appeared to challenge the joinder of counts 1 to 3 on the same indictment as count 4, as well as making the argument that a joint trial of all the charges would result in impermissible prejudice to the accused, such that he could not receive a fair trial.
2. Schedule 1 div 2 cl 7(3) of the CPA provides that:

(3) 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; or

(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.

1. Clause 9(1) of the same division provides, relevantly, that if an indictment contains two or more charges, the charges must be heard together unless a court orders otherwise under the CPA.
2. Section 133 provides, relevantly, in subsections (3) and (5) that:

(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; and

(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; ...

1. The prejudice referred to in s 133(3) is impermissible prejudice that might flow from the joinder of charges, not prejudice that would naturally flow from the subject of the evidence or the strength of evidence which is properly admissible to prove the guilt of the accused.[2]
2. The accused submitted that the alleged offences in counts 1 to 3 on the indictment:

(a) do not arise substantially out of the same or closely related acts that relate to count 4 on the indictment;

(b) when considered with count 4, do not arise from a series of acts done in the prosecution of a single purpose;

(c) together with count 4, cannot be properly described as forming part of a series of offences of the same or similar character, in light of the factual and legal distinctions between count 4 and the other counts in the indictment.[3]

1. A factor that was said to go to each of those points is the purported absence of an evidentiary or temporal nexus between count 4 and the other counts.[4] However, the more significant argument was that the evidence relating to counts 1 to 3 on the one hand, and count 4 on the other, is not cross-admissible.[5]
2. Both of those submissions rely on authorities where the issue of severance was considered to be interrelated with the issue of whether there was a proper basis for joinder.[6] In Zammit, Steytler P adopted the view expressed by Macrossan J in R v Cranston[7] that, however imprecise the phrase might be, the words 'a series of offences of the same or similar character' call for the administration of a test in which 'time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present'.[8] In Punch, Hall J referred to Zammit for the proposition that offences cannot be regarded as of similar character for the purposes of joinder unless some nexus exists between them.[9] His Honour went on to note that such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but that it is clear that the rule is not restricted to such cases.
3. However, as the court has a discretion to order separate trials if the accused is likely to be prejudiced in the trial as the result of the joinder of charges, the provision allowing joinder should not be given an 'unduly restricted meaning'.[10] As Steytler P noted in Zammit, for policy reasons, the courts have long adopted a general rule that matters which can be joined without prejudice to the accused ought generally be joined.[11] His Honour further recognised that several factors justify this prima facie rule, including that it promotes consistency in decision-making, and facilitates a single and final inquiry into matters which arise out of, or essentially involve, common issues of fact or law, all of which encompass a saving of court time and public expense and greater convenience for witnesses.[12] I would note that the interests if a witness will have greater significance when the witness is the complainant who must give evidence about a number of traumatic violent events, with the consequence that separate trials will have the potential to increase the emotional or psychological impact of giving evidence.
4. The accused conceded that if the evidence of prior conduct is found by me to be propensity evidence that is admissible in respect of all four counts in the indictment, then the basis for the severance application falls away.[13]
5. For its part, the State conceded that, if the court rules that the putative propensity evidence is not admissible either under s 31A of the Evidence Act or as relationship evidence at common law, and in particular that the alleged conduct the subject of counts 1 to 3 is not admissible as propensity or relationship evidence in the State's case on count 4, the discretion under s 133(3) of the CPA will be enlivened, in that it would be open to the court to conclude that the joinder of counts 1 to 3 in the same indictment as count 4 will give rise to impermissible prejudice in the accused's trial. The State's submission against severance was that the four counts are properly joined under cl 7(3)(a) of sch 1 div 2 the CPA, and that the evidence in respect of counts 1 to 3 is admissible as propensity or relationship evidence in the case in respect of count 4.

Legal principles - Evidence Act s 31A

1. In respect of each of the items of evidence the State wishes to adduce, for the evidence to be admissible under s 31A of the Evidence Act, it must satisfy three requirements:

(1) It must be propensity evidence or relationship evidence;

(2) It must have significant probative value, either by itself or having regard to other evidence adduced or to be adduced; and

(3) The probative value of the evidence compared to the degree of risk of an unfair trial, must be 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.

1. With respect to the first requirement, the term 'propensity evidence' as defined in s 31A(1) has a broad meaning. The term is defined to include, among other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct' in this context, so far as is presently relevant, refers to the manner in which the accused person behaves or has behaved.[14] The words 'a tendency' in this context, so far as is relevant to the present case, refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.[15] The tendency may be to have a particular state of mind or to act in a particular way.[16]
2. The term 'relationship evidence' is defined in s 31A(1) to mean 'evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time'. There is a degree of overlap between the definitions of 'propensity evidence' and 'relationship evidence' in s 31A(1). As was noted in RMD v The State of Western Australia[17] (RMD), there will often be cases where evidence which falls within the definition of 'propensity evidence' will also fit the description of 'relationship evidence'.[18] In my view, this is such a case, in that the State relies on the accused's conduct towards his de facto partner, a person with whom he is in a family or intimate relationship, at times when he becomes enraged with her or is otherwise in a heightened emotional state. At the hearing, the accused did not dispute that the evidence on which the State intends to rely is evidence that is capable of establishing the attitude or conduct of the accused towards Ms Garlett. However, the accused did take issue with the State's characterization of the propensity evidence and whether the evidence has significant probative value in the case in respect of each of counts 1 to 4. As will appear below, the accused's argument focused on differences between the incidents said to constitute propensity evidence and the incidents alleged in counts 1 to 4 in the indictment.
3. In RMD, the principles relevant to whether propensity evidence has significant probative value were summarised by Beech JA (Mazza JA agreeing) as follows, citing DKA v The State of Western Australia[19] (DKA), which had referred to a number of appellate decisions to discern the principles:[20]

(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. (footnotes omitted)

1. The summary was subsequently adopted by the Court of Appeal in The State of Western Australia v JHN[21] (JHN). The court in JHN also adopted the following observations from Jackson in relation to the assessment of whether propensity evidence has significant probative value:[22]

Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:

(a) the evidence can prove the propensity; and

(b) proof of the propensity increases the likelihood of the commission of the offences.

Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.

Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)

1. In explaining why, in that case, the evidence on counts 3 and 4 had significant probative value in proving counts 1 and 2, the court in Jackson also identified the following relevant principles:[23]

(a) An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.

(b) Whether propensity evidence has significant probative value will depend upon the nature of the fact in issue to which it is said to be 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.

(c) If propensity evidence is said to be relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be conducted separately in relation to each fact in issue to which the propensity evidence is said to be relevant.

(d) The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to assess the different value of propensity evidence in relation to different facts in issue when deciding whether, having regard to the nature and significance of those facts, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, in the proceedings for the relevant offence.

1. The probative value of propensity evidence and relationship evidence is to be assessed by reference to what the evidence is capable of proving, taken at its highest.[24]
2. In JHN the court also noted that the probative value of propensity evidence, in terms of its capacity to increase the probability that the accused committed the charged acts, may be found in its capacity to support the credibility of a State witness's account of the charged acts.[25] The court also noted that the assessment of whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context, namely, the fact or facts in issue at the trial and the other evidence (including any other propensity evidence) adduced or to be adduced at the trial.[26]
3. Where the evidence tends to establish a particular attitude, for instance a sexual interest in children, it is generally the tendency to act on that attitude that has significant probative value in showing that an accused has acted in a certain way on the occasion that is the subject of the charge.[27] In the case of an attitude towards using a particular form or level of violence, it would be the accused's tendency to act on that attitude to the use of such a form or level of violence that would have significant probative value in showing that an accused has acted in that way on the occasion that is the subject of the charge for which he is being tried.[28]
4. Even where the propensity demonstrates a tendency to act in a particular way, the determination of whether it has significant probative value may depend on the particularity with which the propensity is formulated. In MNA v The State of Western Australia[29] (MNA), Buss P and Mitchell JA dealt with the relationship between the level of particularity of the propensity evidence and whether the evidence has significant probative value as follows:[30]

In Hughes, the majority indicated that whether a tendency to act on the interest has significant probative value depends on the particularity of the tendency and a consideration of the circumstances of the case. Later, the majority observed:

A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for is that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. (footnotes omitted)

1. However, as I noted in Huish, the need for particularity or specificity in formulating the propensity for the purposes of s 31A does not mean that the circumstances of the alleged offending must correlate in all respects, or even all significant respects, with the circumstances of the conduct said to establish a propensity of the accused to behave in a certain way.[31] The question is whether there is sufficient correlation in relation to a specific form of behaviour as to reveal a tendency or propensity that has significant probative value.[32] What is important is the extent to which there are similarities between the incidents that inform the probability of the accused acting in a particular way, rather than whether there are dissimilarities between the incidents in respect of the broader circumstances.[33]
2. The nature of propensity evidence (also referred to as 'tendency evidence') as circumstantial evidence, and the standard to which a jury needs to be satisfied about the propensity before it can be relied on as evidence going to prove the elements of the charged offence was explained by the High Court in Director of Public Prosecutions v Roder[34] (Roder) as follows:[35]

In Hughes v The Queen, the majority in this Court explained that with tendency evidence, "[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue" (emphasis added). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering "the extent to which the tendency makes more likely the elements of the offence charged". In the language of Shepherd, the tendency is an "intermediate fact" that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence. Unless the tendency is an "intermediate fact" which is "indispensable" to proof of guilt, it need not be proved beyond reasonable doubt. (footnotes omitted)

1. The High Court also explained in Roder that, where the conduct the subject of a charged act is relied upon (with other propensity evidence) to establish propensity (or tendency) as an intermediate fact in the proof of that charged act that process does not involve circular reasoning, as it is the tendency that is the intermediate fact about which the jury may make a finding to a standard that is less than the criminal standard of proof; at that stage of the reasoning process, the jury is not deciding whether all the elements of the offence based on the charged act have been proved.[36] Having referred to discussion of the issue in JS v The Queen,[37] the court said:[38]

Two matters should be noted about this passage. First, it correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge. For a tribunal of fact to find that an alleged tendency has been proved to a lesser standard by relying on, inter alia, direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved beyond reasonable doubt, does not involve circular or incoherent reasoning. Instead, it simply means that the jury may consider the same evidence "at different stages of its deliberations with a different onus of proof and for a different purpose". (footnotes omitted)

1. Section 31A(2)(b) requires that, for propensity evidence to be admissible, its probative value, compared to the degree of risk of an unfair trial, must be 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. The question of what risk there is of an unfair trial requires consideration of the potential improper prejudice the evidence might create.
2. As the Court of Appeal noted in JHN,[39] referring to the reasons of Steytler P in Dair v The State of Western Australia[40] (Dair), the possible sources of prejudice that might be occasioned by the admission of propensity evidence at a criminal trial, and which consequently may give rise to the risk of an unfair trial, include that:

(a) the jury might believe that the accused is guilty merely because he was a person likely to do the charged acts;

(b) the jury might tend to condemn the accused, not because he or she is guilty of the charged offence, but because the accused has escaped punishment for other offences; and

(c) the jury might become confused or distracted from deciding whether the accused is guilty of the charged offence because of the jury's concentration upon resolving whether the accused committed the acts the subject of the propensity evidence.

1. In Dair,[41] Miller JA referred to the following view expressed by Roberts-Smith JA (with whom Wheeler and Miller JJA agreed on this point) in Donaldson:[42]

The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.

1. In Donaldson, Roberts-Smith JA noted that the term 'propensity reasoning' was apt to describe the impermissible form of reasoning, of the kind referred to in the preceding paragraph, 'to distinguish it from the process whereby, whether because coincidence or fortuitousness could not otherwise explain it, the subject evidence tends directly to prove the accused's guilt of the offences charged.'[43] The reference to propensity evidence tending to directly prove the accused's guilt is most apt when the issue at trial is whether the accused was the person who committed the alleged offence (that is, an identity issue). However, in my opinion, the observation in respect of the inability of coincidence or fortuitousness to otherwise explain a similarity between propensity evidence and evidence which tends to prove the guilt of the accused applies equally in a case such as the present. In such a case, a trier of fact may well consider that the probability that Ms Garlett is honest and accurate in her account, that the accused committed offences against her involving a particular form of violence, is significantly enhanced if the accused has demonstrated a propensity to commit that form of violence, and the similarity between the allegations under consideration and the propensity evidence cannot be explained by coincidence or fortuitousness. That is a permissible form of reasoning.
2. In Dair, Miller JA noted that, in the passages referred to above from the reasons of Roberts-Smith JA in Donaldson, his Honour did not refer to the words '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'.[44] Miller JA noted that the 'fair-minded' people proviso was an important aspect of s 31A(2)(b). In his Honour's opinion, the phrase required the 'old test of prejudice' to be expanded, and that what is required is 'a consideration of what fair-minded people would think about the public interest in having all relevant evidence of guilt before the jury'.[45] In summary, as his Honour observed:[46]

There may be circumstances where there is undoubtedly a risk of an unfair trial, but if there is a public interest in having all relevant evidence of guilt admitted, it must take priority over that risk.

1. For the purposes of s 31A(2)(b), fair‑minded people are reasonable members of the general community who are not lawyers but who, it must be assumed, 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.[47]
2. When assessing the risk of an unfair trial, for the purposes of the hypothetical comparison provided for by s 31A(2)(b), the court must take into account any directions that might be given in an attempt to overcome the prejudice, and their likely effect on the trier of fact.[48] The common form of direction instructing the jury as to the use that can be made of propensity evidence, and warning the jury that it must not reason that the accused is guilty of the charged offences simply because he has committed similar offences in the past, may be expected ordinarily to sufficiently reduce the risk of an unfair trial to an extent where the public interest in having all relevant evidence of guilt must take priority.
3. It would also be expected, if the conduct the subject of some of the charged offences is allowed to be used as propensity evidence in respect of the last charged offence, that the jury would be directed in terms consistent with the following passage from Roder:[49]

[I]t follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency, direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the contents of the elements of the offence and the need for separate consideration of each charge. (footnotes omitted)

1. The State submitted that the evidence of the accused's past offences against Ms Garlett, in combination, and together with the evidence in respect of counts 1 to 3, is capable of satisfying a jury that the accused has a tendency to use significant violence towards Ms Garlett when he becomes angry with her or is otherwise in a heightened emotional state because of conflict in their relationship or because he feels wronged by her. The State submitted that the probative value of the propensity evidence, in terms of its capacity to increase the probability that the accused committed the charged acts in counts 1 to 3, may be found in its capacity to support the credibility of Ms Garlett's account about those acts. In relation to count 4, in respect of which the identity of the assailant is in issue, the State submitted that the probative value of the propensity evidence may be found in its capacity to increase the probability that it was the accused who inflicted the injuries to Ms Garlett that put her life at risk.
2. The State submitted that, if the jury knew that the accused had a tendency to use violence of the kind he has used against Ms Garlett in the past when he is angry or in a heightened state of emotion, notwithstanding the length of their relationship and the fact that they had a number of children together as a result of the relationship, they would be more likely to accept Ms Garlett's evidence about the acts of violence and the threat alleged in counts 1 to 3. Similarly, when such evidence is combined with the evidence in respect of counts 1 to 3, and considered with the other circumstantial evidence in the case, the jury would be more likely to accept that it was the accused who inflicted the serious life-threatening injuries to Ms Garlett on 28 September 2023, and not some other unidentified person.
3. The State submitted that any risk arising from adducing the tendency evidence can be adequately neutralised by directions to the jury, as will be discussed below. Further, the State submitted that to leave the jury in ignorance of the accused's tendency to use violence against Ms Garlett when he is angry with her or in a heightened state of emotion would give rise to a false or incomplete picture of the accused's conduct and attitude towards his former de facto partner, which are relevant considerations to understanding the context of the alleged offending and Ms Garlett's retraction of the complaints in respect of counts 1 to 3 on 6 September 2023.
4. Finally, the State submitted that the evidence relied on as propensity evidence is admissible in any event as relationship evidence, both under s 31A and at common law. Under s 31A it is evidence of the accused's attitude and conduct towards Ms Garlett that provides context for the allegations the subject of the charges in the indictment. At common law, it is evidence tending to establish the nature of the relationship as one that was volatile and marked at times with animus and the use of violence by the accused towards Ms Garlett, which again is said to provide context for the allegations the subject of the charges which would assist the jury to assess Ms Garlett's evidence in respect of counts 1 to 3, and the circumstantial evidence in respect of count 4.

1. The accused's submissions did not address the admissibility of the evidence as relationship evidence. It does not appear to be in dispute that the evidence may be regarded as relationship evidence. The accused's submissions in that regard are essentially that the risk of an unfair trial if the evidence is admitted would outweigh any probative value the evidence may have.
2. In relation to the admissibility of the evidence as propensity evidence, the accused submitted that the evidence does not establish a propensity or tendency that could be defined with any specificity that would give it probative value in respect of any of the charges. It was submitted that this was so because there are significant factual differences between each of the incidents relied on by the State, and in particular between all past incidents and the conduct the subject of counts 1 to 3 on the one hand, and the alleged conduct the subject of count 4, the attempted murder charge, on the other hand.
3. The most significant difference was said to be the absence of any use of a weapon in the incidents that were the subject of the charges in indictments 2288 of 2016 and 1710 of 2018. However, the accused also submitted that the circumstances in which the various incidents occurred or are alleged to have occurred lacked sufficient similarity to reveal a particular propensity or, in any event, to have significant probative value in respect of each of the current charges. It was submitted that the only common factor was that all the incidents involved acts of serious violence.
4. It was also submitted that the offending of which the accused was convicted in 2017 and 2019 occurred such a significant time ago, between five and seven years prior to the alleged offences with which the accused is currently charged, that it could not be said to constitute the manifestation of a tendency by the accused to be violent towards Ms Garlett. The argument is that the lapse of time militates against the existence of a tendency. The first difficulty with that submission is that there was the further offending in November 2020, for which the accused was dealt with in May 2021. Secondly, the amount of time the accused was able to spend with Ms Garlett during that period of five to seven years was significantly reduced by the terms of imprisonment he served as a result of the past offences, so the impression of a significant gap between past offending and alleged offending is somewhat illusory.[50] In my view it does not negate the existence of a propensity, if the evidence otherwise shows such a propensity.
5. In relation to the use of the putative propensity evidence in the State's case to prove the accused was the offender in count 4, it was submitted that the conclusion that the accused is a person who is more likely to engage in violence against Ms Garlett, could not lead to a finding logically that it is significantly or substantially more likely that he is the person responsible for the stabbing of Ms Garlett, even when taking into account the other evidence to be adduced by the prosecution. It was submitted that the previous incidents, including the incidents the subject of counts 1 to 3, do not reveal a propensity to use that kind of violence or lethal violence of any sort.
6. The accused submitted that there is a significant risk that the jury would use the past incident to conclude, uncritically, that the accused must be the person responsible for the alleged acts, because of his violence towards Ms Garlett, even if on a proper consideration of all the evidence there remained a reasonable doubt in that regard. It was submitted that the risk of an unfair trial outweighed any public interest in adducing the propensity evidence.
7. The accused also submitted that there is an additional risk that a jury would impermissibly use the past acts of violence as being relevant to a determination of whether the accused had an intention to kill Ms Garlett in respect of count 4, if it finds that he was the person who inflicted the wounds.

Is the evidence sought to be adduced propensity evidence and/or relationship evidence?

1. The first question to be considered in determining the applications is whether the evidence on which the State seeks to rely is 'propensity evidence' or 'relationship evidence' within the meaning of s 31A(1). It may be both.
2. As I have identified in outlining the legal principles, if evidence is to be admitted as propensity evidence, the propensity must be formulated with sufficient particularity to enable an assessment of whether it has significant probative value in respect of the charged offences. The correlation between the past conduct and the charged conduct should be apparent in the formulation. The same may be said in respect of relationship evidence, in terms of the attitude or conduct said to constitute such evidence. However, the need for particularity should not be regarded as a pedantic exercise in arriving at a single correct textual formulation. What is necessary is to identify the key features of the conduct or attitude relied upon as propensity evidence or relationship evidence.
3. The evidence upon which the State intends to rely, in respect of the past offences of which the accused has been convicted, and the evidence in respect of counts 1 to 3, is clearly relationship evidence, in that it is evidence of the attitude or conduct of the accused towards Ms Garlett. Each of the incidents relied on, including the incidents the subject of counts 1 to 3, involved conduct by the accused towards Ms Garlett. Further, in my opinion, each incident revealed an attitude of the accused towards Ms Garlett, which may be described as a desire to control her behaviour, antipathy towards her when she argued with him or did not comply with his demands, and a preparedness to either subjugate or punish her by using violence. In my opinion, those conclusions would be open to a jury, having regard to the facts of the offences of which the accused has been convicted previously and the alleged facts of counts 1 to 3, which I have outlined above. In combination, the incidents reveal a volatile relationship in which the accused harboured those attitudes and engaged in violent conduct towards Ms Garlett, including while their child was present or in the home.
4. In my opinion, the evidence is also propensity evidence, in that it is evidence from which a jury may conclude that the accused had a tendency to use significant violence against Ms Garlett when he was angry with her or otherwise in a heightened emotional state towards her because of some incident between them or some conflict in their relationship. The tendency is related to the attitude or conduct that also constitutes relationship evidence. In each instance, the accused and Ms Garlett were in a family or intimate relationship. They had either engaged in an argument, or the accused was angry towards her because she would not do what he demanded or for some other reason that may not be known, but which, it may be inferred, was concerned with their relationship. In each instance, he reacted in a volatile manner, resorting on the sudden to the use of violence that, on any reasonable assessment, was significant, at times brutal, and capable of causing serious injury, and potentially death. The 2016 incident involved blows to Ms Garlett's head, including the accused jumping on her head and kicking her to the head, causing her to lose consciousness. The 2018 incident involved the accused grabbing Ms Garlett by the throat, a form of violence that is dangerous because of its capacity to impede breathing or a person's pulse. The 2020 incident involved the accused striking Ms Garlett's head forcefully into the windows of two cars, smashing the glass, and apparently resulting in blood to her face. The incident the subject of count 1 on the current indictment allegedly involved the accused using a dumbbell to strike Ms Garlett on the head, which resulted in bleeding. Count 3 allegedly involved the accused again using a dumbbell to strike Ms Garlett to her upper body and her face.
5. As I noted above, a significant focus of the accused's argument was that the incidents in 2016, 2018 and 2020 can be distinguished from the alleged offending in the indictment, and do not reveal a particular propensity, because of dissimilarities between those incidents and the alleged offending, in particular because they did not involve the use of a weapon. In my opinion, this conflates the 'similar fact' aspect of the definition of propensity evidence in s 31A with the 'tendency' aspect of the definition. The argument may have been apt if the State was relying on some particular characteristic of the manner in which the accused committed the past offences to establish that he was the person who committed the offences in the indictment, where identity is in issue. The only count in respect of which identity is in issue is count 4. However, that is not the way in which the State intends to rely on the propensity evidence. The State intends to rely on the accused's tendency to use significant, dangerous violence towards Ms Garlett in the contextual setting I described in [110] above:

(1) to provide context for counts 1 to 3, and thereby to buttress Ms Garlett's credibility in respect of those counts; and

(2) to provide context for determining whether it was the accused who inflicted the violence the subject of count 4, having regard to all of the surrounding circumstances.

1. Those considerations will be relevant to the next issue, namely whether the evidence has significant probative value, but they also inform the proper characterisation of the evidence for the purposes of s 31A.
2. In my opinion, the accused's attempt to distinguish the violence used in the 2016, 2018 and 2020 events from the violence allegedly used by the accused in counts 1, 3 and 4, by focussing on the manner in which he has inflicted violence on prior occasions, was inapt in any event. Jumping on and kicking Ms Garlett's head, choking her and striking her head forcefully against car windows all involved violence that had the potential to cause serious injury, and even death. More particularly, jumping on and kicking Ms Garlett's head, which resulted in her losing consciousness, and striking her head against car windows were acts of violence that are not far removed from the use of a weapon such as a dumbbell to strike Ms Garlett to the head and face, as is alleged in respect of counts 1 and 3.
3. The question remains whether the propensity evidence has significant probative value in respect of the offences in the indictment. The accused's argument in respect of the dissimilarities between the past incidents and the charged conduct potentially has greater relevance to that issue.

Does the propensity evidence have significant probative value?

1. As will be evident from the outline of the legal principles above, for the propensity evidence to have significant probative value, it need not correlate in all respects, or even all significant respects, with the circumstances of the charged offending. To the extent that there is a need for correlation, the similarities in this case may be found in the following facts:

(1) At the time of all relevant incidents, including the alleged offending, the accused was in a family or intimate relationship with Ms Garlett.

(2) On each occasion the accused and Ms Garlett were involved in an argument, or the accused became angry with Ms Garlett because she would not do what he demanded of her, or for some other grievance. Where the reason is not known, it may be inferred from the surrounding circumstances that it concerned their relationship. What is significant is that in each instance the situation between the accused and Ms Garlett was highly charged.

(3) At least in respect of the 2018 and 2020 offending and the alleged offending the subject of the current indictment, the incidents occurred or are alleged to have occurred at times when there were problems in the relationship. In 2018, the accused believed Ms Garlett was being unfaithful. In 2020, Ms Garlett told the accused she wanted to leave him. At the time of the alleged incidents the subject of counts 1 and 3, the accused appears to have harboured animus towards Ms Garlett because he believed she was responsible for him having served a term or terms of imprisonment. While the nature of the relationship problems and the grievances may have differed from one incident to another, the existence of such problems and grievances are an important correlation.

(4) On each occasion the accused became enraged and reacted in a volatile manner. He resorted to violence on the sudden.

(5) On each occasion the violence was significant, persistent and capable of causing serious injury, even death.

(6) On two of the occasions of previous offending, the accused targeted Ms Garlett's head, as he is alleged to have done in respect of count 1 and, to a lesser extent, count 3.

(7) At the time of the common assault in 2018, which preceded the incident in which the accused grabbed Ms Garlett by the throat the following day, their one year old daughter was at the house, from which it may be inferred that the child's presence was not a deterrence. At the time of the alleged offending in counts 1 and 3, the couple's 7-month-old baby was in the room.

1. I am satisfied that, given those similarities, and taking both the propensity evidence and the other evidence intended to be adduced by the State at trial at its highest, the tendency disclosed by the circumstances of the past offending would have significant probative value in the State's case that he inflicted the violence and made the threat alleged in counts 1 to 3, as described by Ms Garlett, and that he inflicted the violence that is the subject of count 4. It would do so, having regard to the other evidence to be adduced by the State. In combination with the evidence to be adduced, it could rationally affect directly, and in a way that is important or of consequence, the jury's assessment of the probability that he did the acts alleged by Ms Garlett in respect of counts 1 to 3, and the probability that he was the assailant who inflicted the penetrating wounds to Ms Garlett, as alleged in count 4.
2. In respect of counts 1 to 3, the propensity evidence would significantly affect the probability that the accused did the acts alleged, because of its capacity to support the credibility of Ms Garlett's account. The fact that the accused had a tendency to resort to the use of serious violence against Ms Garlett when he was angry with her or in a heightened emotional state because of some conflict with her, lends credibility to her account. As the State submitted, it militates against any reservation a jury might have about accepting that the accused inflicted the violence alleged, having regard to the apparently long standing nature of his relationship with Ms Garlett, and the fact they had a baby together, who was present in the room. The fact that the accused has been violent towards Ms Garlett previously, despite the presence of a small child, is an additional aspect of the propensity evidence that has the capacity to affect the probability of events occurring as alleged by Ms Garlett.
3. The propensity evidence would also militate against any significance being placed by the jury on the fact that Ms Garlett withdrew her complaint in respect of counts 1 to 3 before count 4 is alleged to have been committed by the accused. It provides context, in terms of the nature of the relationship, including the accused's controlling behaviour.
4. I note also, in respect of counts 1 to 3, that the accused's prior offending and the consequences of imprisonment are relevant to the context of the alleged offences, in that he is alleged to have said to Ms Garlett that he was not going back to prison for her.
5. In relation to count 4, it is important to note that each item of the propensity evidence is not to be considered in isolation, but must be assessed having regard to the other items of propensity evidence and the other evidence to be adduced by the State in the trial. As Ms Garlett has no recollection of what occurred after she went out the front door, and is therefore unable to identify her assailant, the propensity evidence will be circumstantial evidence to be considered with other circumstantial evidence. The nature of that evidence is apparent from the outline of count 4 above. It is not necessary to examine the evidence in detail. It must be taken at its highest. It is apparent from the other evidence the State intends to adduce that:

(1) Ms Garlett and the accused were at home together in the afternoon or early evening.

(2) Ms Garlett and the accused argued at that time, and Ms Garlett threw a brick at the accused. The brick smashed the front window. Those circumstances speak to the degree of hostility between them that day.

(3) Ms Garlett and the accused were at the home together when police attended after that incident.

(4) Both Ms Garlett and the accused then used methylamphetamine.

(5) At some stage after that, Ms Garlett called her mother and asked her brother to pick her up.

(6) There is no suggestion in the evidence that there was anyone other than the accused and Ms Garlett at the house at that time.

(7) Immediately before she was attacked, Ms Garlett ran out the front entrance to the house, chased by a person who appears to be a male who was holding an item in his hand, which could potentially be a knife, a pair of scissors or a screwdriver, given its shape and size, although the image is blurred for all but one frame.

(8) Ms Garlett was attacked within seconds in the front yard of the property. The attack involvement vigorous movements by the assailant, and at least at one stage he appears to have been over the top of Ms Garlett, who was on the ground. Both of them moved out of view of the camera about 25 seconds after the incident commenced.

(9) Having regard to the nature of the physical acts observable on the CCTV footage, albeit in the dark, and taking into account the screams heard by neighbours, it is likely the penetrating wounds were inflicted about that time, although it is possible they were inflicted a short time later, after the accused can be seen in the CCTV footage going into the house topless and carrying what could be a t-shirt, less than a minute after the 'chase' incident, and emerging again within 30 seconds wearing a different top.

(10) The accused arrived at the front porch of the house about seven minutes later (about nine minutes after Ms Garlett was chased into the front yard). His hands and arms were covered in blood and he was carrying an object that looks similar to a screwdriver.

(11) The accused subsequently fled from the house.

(12) Police located the accused soon after, and he had blood on his hands, arms and face.

1. It would be open to the jury to infer that the events of 28 September 2023 revealed hostility between the accused and Ms Garlett which manifested in an argument and violence, which included Ms Garlett throwing a brick at the accused. The propensity/relationship evidence would assist the jury to understand that this was symptomatic of a volatile relationship in which the accused would experience anger and heightened emotions towards Ms Garlett. Knowing that the accused would become violent towards Ms Garlett in such circumstances and would use significant force with the potential for serious injury, and even death, the jury would be able to more readily conclude, having regard to all the circumstances, that the person who inflicted the life threatening penetrating wounds on Ms Garlett was the accused, and not some unknown individual who happened to be at the house and also had a motive to attempt to kill or seriously assault Ms Garlett. That is particularly so if the jury were to be aware that the accused had been violent towards Ms Garlett some four weeks earlier, in the circumstances that are the subject of counts 1 to 3. The accused's animus towards Ms Garlett was manifest in those incidents, both in what the accused is alleged to have said and what he is alleged to have done.
2. The circumstances that may be established by the other evidence to be adduced by the State, and which provide the framework within which the propensity evidence would be considered, include the fact that the accused had a motive to punish and hurt Ms Garlett because of the argument in the afternoon, during which she had thrown a brick at him and broken a window. They include the fact that Ms Garlett was wanting to leave the house immediately before the violent attack. The propensity/relationship evidence, including the evidence in respect of counts 1 to 3, would assist the jury to understand that the accused had a controlling attitude towards Ms Garlett and was prone to becoming angry and violent towards her if she defied him. Further, the propensity evidence would be capable of demonstrating that there had been previous occasions when, having engaged in hostilities with Ms Garlett, there was a lull before the accused again became angry and violent towards Ms Garlett on the sudden, with little or no provocation. To the extent that it might seem unusual to the jury that the accused would become explosively violent after things had appeared to settle and both he and Ms Garlett had used methylamphetamine, the propensity/relationship would provide context that could increase the probability of the accused behaving in such a volatile manner.
3. If the State is not permitted to adduce the propensity/relationship evidence (including the evidence in respect of counts 1 to 3) in respect of count 4, the jury would be required to determine the question of whether the accused was the assailant in a context that, while it may not be quite a vacuum, would be incomplete and potentially misleading in terms of the nature of the relationship between Ms Garlett and the accused. They would not have all relevant evidence on the issue.
4. In summary in respect of count 4, I am satisfied that the propensity/relationship evidence would rationally affect to a significant degree the jury's assessment of the probability that the accused was the person who inflicted the penetrating wounds to Ms Garlett's body, having regard to the other circumstantial evidence outlined above.
5. In respect of all four counts on the indictment, proof of the accused's propensity, as discussed, would increase the likelihood that he committed the offences. Whether it does so in the jury's assessment is a different matter. That will depend on the findings made by the jury in respect of Ms Garlett's evidence more broadly in respect of counts 1 to 3, and the findings made in respect of the other circumstantial evidence in respect of count 4.
6. In my opinion, the evidence sought to be adduced by the State under s 31A of the Evidence Act would also be admissible at common law as relationship evidence. However, in my view, it is not necessary to consider the authorities in that regard, as the meaning of 'relationship evidence' under s 31A encompasses those aspects of the relationship between the accused and Ms Garlett that are relevant in the context of this case, as explained above.
7. A concern raised by the accused was that the jury might use the propensity evidence to more readily draw the conclusion that he intended to kill Ms Garlett, if the jury finds he inflicted the penetrating wounds. With respect, I do not consider that the concern is realistic. Although, as I have said, the nature and extent of violence used by the accused against Ms Garlett in the past included violence of a kind that potentially could have caused death, it does not follow that the tendency established by the propensity evidence includes a mental element of an intention to kill, or that it would make the holding of such an intention more probable. The tendency goes to establish the accused's motivation to use violence, the volatility of his behaviour and his preparedness to use significant violence against Ms Garlett when enraged by her, or otherwise in a heightened state of emotion. If the evidence is admitted, the jury will be directed about the use that can be made of the propensity evidence, to avoid it being used in the way raised by the accused as a concern.
8. In this case, proof of an intention to kill, or to cause a life-endangering injury, must necessarily rely on the surrounding circumstances specific to the events of 28 and 29 September 2023, the nature of the weapon used, the number of stab wounds and the nature of the wounds inflicted.
9. Finally, I note that, in relation to the incident the subject of MI 12731/20, the facts include that the accused referred to killing their baby. In my opinion, that is not an aspect of that incident that is relevant to establishing the tendency that has significant probative value. Moreover, any reference to that aspect of the facts has the potential to lead a jury to the impermissible reasoning concerning intention to kill raised by the accused, referred to above. I rule that the part of the facts concerning the accused referring to killing the baby is not admissible.

Probative value compared to the risk of an unfair trial

1. The final matter to be determined, under s 31A(2)(b) of the Evidence Act, is whether the probative value of the propensity evidence, when compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
2. As I noted in dealing with the legal principles, in Dair, Steytler P identified three possible sources of prejudice that could give rise to a risk of an unfair trial. Those possible sources were not exclusive, but they provide a good starting point for making the assessment required by s 31A(2)(b). Two of those possible sources of prejudice are affected by the manner in which the propensity evidence is to be adduced by the State. So, the possibility that the jury might be inclined to condemn the accused, not because he is guilty of the charged offence, but because he has escaped punishment for other offences, would not arise in this case if, as would be expected, the jury is informed that the accused was charged, pleaded guilty and was sentenced for the offences that are the subject of the propensity evidence. Similarly, the possibility of the jury being confused or distracted by the propensity evidence would be avoided if the facts of the propensity evidence are not in issue and are presented by way of a statement of agreed facts, which would obviate the need for the jury to decide whether the propensity facts are proved by the evidence. That would be the expectation in this case, given that the accused pleaded guilty to the offences of which he was convicted, and the facts were not disputed when he came to be sentenced.
3. It would still be for the jury to determine whether the agreed facts establish the propensity for which the State contends, and whether such a propensity renders more probable the events described by Ms Garlett in respect of counts 1 to 3, and that it was the accused who inflicted the injuries to Ms Garlett in respect of count 4. However, that would be part of the jury's ordinary task of drawing inferences from circumstantial evidence. Of course, to the extent that the conduct the subject of counts 1 to 3 is relied on as additional propensity evidence for the purposes of count 4, the jury would need to undertake the fact finding and reasoning processes discussed in Roder, referred to above. There is no question of the jury being distracted from its task in that regard. It simply means there will be two stages to the jury's assessment of the evidence in respect of counts 1 to 3.
4. In my opinion, the only respect in which prejudice could arise realistically if the propensity evidence is admitted is that the jury might believe that the accused is guilty of the offences in the indictment merely because he was a person likely to do the charged acts. In other words, the risk is that the jury might uncritically overvalue the probative effect of the propensity evidence and reason impermissibly that, because the accused committed the prior offences, he must also have committed the charged offences, rather than confining the use of the propensity evidence to a process of dispassionate, logical reasoning.[51] That was the essence of the accused's submissions at the hearing of the application.
5. The question is whether the risk that the jury might engage in that type of impermissible reasoning can be reduced sufficiently by an appropriate direction given by the trial judge, so that, in the estimation of fair-minded people, the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, having regard to the probative value of the evidence. In my opinion, that question must be determined in the context that the propensity evidence is plainly relevant to the nature of the relationship between the accused and Ms Garlett, which provides context for the way in which the accused is alleged to have behaved towards Ms Garlett. In my opinion, a fair-minded person would regard with incredulity the proposition that evidence of the relationship between the accused and Ms Garlett could not be taken into account in deciding whether he had committed the offences charged.
6. In relation to count 4, it is also relevant to have regard to the strength of the prosecution case against the accused on the issue of identity. It might be thought that, if the State's case that the accused was the person who committed the charged offence is tenuous or weak, there would be a greater risk that the jury would uncritically overvalue the evidence of the prior offences to shore up the weaknesses in the State's case, regardless of any direction given by the trial judge. However, having regard to the circumstantial evidence to which I have referred in some detail, including the CCTV footage, I do not consider that the State's case on the issue of identity is tenuous or weak. In my opinion, there is no reason to depart from the general legal principle that it must be presumed a jury will follow and apply the trial judge's directions of law, and that, in this case, it would confine its use of the propensity evidence to a process of dispassionate, logical reasoning.
7. I am satisfied that the probative value of the propensity/relationship evidence is high, for the reasons I have given in deciding that it has significant probative value. I am also satisfied that the risk of an unfair trial can be adequately mitigated by orthodox directions to the jury about the permitted use that may be made of the evidence and warning against impermissible prejudicial reasoning, together with directions as explained in Roder about the way in which the conduct alleged in counts 1 to 3 can be taken into account as propensity before determining whether those counts have been proved beyond reasonable doubt. The jury would be directed that they should have regard to any differences they may find between the prior conduct and the alleged offences, and between the alleged conduct in counts 1 to 3 and the alleged conduct in count 4, in determining whether the propensity/relationship evidence contributes to proof of the counts in the indictment beyond reasonable doubt.
8. For the reasons set out above, I conclude that fair-minded people would consider that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

1. Consequently, subject to the exclusion referred to at [129] above, I rule that each of the items of evidence on which the State seeks to rely as propensity or relationship evidence is admissible in the trial of the accused for each of the charges on the indictment.
2. For the reasons I have given, it follows that the evidence in respect of counts 1 to 3 is admissible in the trial of the accused in respect of count 4. As the accused conceded, in those circumstances the severance application cannot succeed. Therefore, the accused's application under s 133 of the CPA for a separate trial in respect of count 4 is refused.
3. The parties will be heard as to the appropriate form in which the State may adduce the propensity evidence the subject of Indictment 2288 of 2016, Indictment 1710 of 2018 and MI 12731/2020.

1. Except as provided in the following paragraph, there is to be no publication of the proceedings or my decisions in respect of the applications the subject of these reasons until the conclusion of the criminal proceedings in respect of indictment 65 of 2024.
2. Information about the proceedings and my decisions in respect of the applications, and my reasons for the decisions, may be provided to the Office of the Director of Public Prosecutions for Western Australia and any legal representative of the accused or person assisting such legal representative, for the purposes of the proceedings in respect of indictment 65 of 2024.

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

[1] The wording that follows paraphrases the wording of the counts in the indictment to abbreviate the wording of the charge, identify the circumstance/s of aggravation as such, and specify the applicable provision of the Criminal Code (WA) in each case. The child's name is anonymised.

[2] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [100] (Roberts‑Smith JA); The State of Western Australia v WCM [2014] WASCA 38 [11] - [14] (McLure P, Buss JA agreeing), [40] (Mazza JA).

[3] Outline of Defence Submissions in support of the s 133 application, dated 11 March 2025 [14] - [15], [20].

[4] Outline of Defence Submissions in support of the s 133 application, dated 11 March 2025 [18] - [19].

[5] Outline of Defence Submissions in support of the s 133 application, dated 11 March 2025 [17].

[6] Zammit v The State of Western Australia [2007] WASCA 66 (Zammit); The State of Western Australia v Punch [2009] WASC 325 (Punch).

[7] R v Cranston [1988] 1 Qd R 159 (R v Cranston).

[10] Zammit [27]; Mansell v The State of Western Australia [2009] WASCA 140 [26]; JAW v The State of Western Australia [2016] WASCA 40 [84].

[14] The State of Western Australia v Jackson [2019] WASCA 118 (Jackson) [20].

[16] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 (McPhillamy) [26].

[17] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.

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

[21] The State of Western Australia v JHN [2021] WASCA 225 [115].

[22] Jackson [21] - [23]; JHN [116].

[23] Jackson [52] - [53]; JHN [117].

[24] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 (IMM) [44], [47], [50] (French CJ, Kiefel, Bell and Keane JJ0, [90], [91], [93]; RMD [52(b)] (Buss P); Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [153] (Roberts-Smith JA, Wheeler JA agreeing); DKA [35].

[25] JHN [118(b)], citing RMD [52] (Buss P).

[26] JHN [118(c)], citing Lilley v The State of Western Australia [2019] WASCA 164 [61].

[27] McPhillamy [26] ‑ [27]; Jackson [63]; MNA v The State of Western Australia [2020] WASCA 84 [85] ‑ [86], [173].

[28] See The State of Western Australia v Huish [2023] WASC 500 (Huish).

[29] MNA v The State of Western Australia [2020] WASCA 84.

[30] MNA [86], referring to Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [40], [64] (Kiefel CJ, Bell, Keane and Edelman JJ).

[34] Director of Public Prosecutions v Roder [2024] HCA 15.

[35] Roder [24], referring to Hughes v The Queen (see footnote 39 above) [16] and [64] and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579.

[37] JS v The Queen [2022] NSWCCA 145 [40], [43].

[38] Roder [27], referring to Rassi v R [2023] NSWCCA 119 [8], [9].

[40] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [63].

[47] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [50]; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 (Preston) [45]; DKA v The State of Western Australia [2017] WASCA 44 [32]; RMD v The State of Western Australia [51]; JHN [119].

[48] Dair [64]; Preston [41]; DKA [31].

[50] The periods the accused was serving terms of imprisonment were two years and six months from 15 January 2017, 12 months from 3 November 2019, and 16 months from 19 November 2020.

[51] See [90] above.