THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2019] WASC 87 | Case summary

[4]

Count 3 On 12 February 1995, at Claremont and elsewhere, the accused unlawfully detained KJG.

THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2019] WASC 87 | Case summary | Zoe

[17]

The State's case against the accused may be summarised as follows.
With regard to counts 1 and 2, the State alleges that on 15 February 1988, the accused entered a house in Huntingdale at night, with the intention of sexually assaulting the complainant. The complainant, who was aged 18 at the time, was asleep in her bedroom. The State case is that the accused entered the property through an unlocked door, closed the bedroom doors of other family members, unplugged the telephone and went into the complainant's bedroom. He then straddled the complainant, who was lying on her stomach, and pinned her down by placing his knees on either side of her back, one hand on the back of her head and the other hand over her mouth. He attempted to force a cloth or piece of material into her mouth. She managed to turn to her side and scratch her attacker, who then ran from the room. Throughout, the attacker did not speak to the complainant. Two items were left behind by the attacker, being a kimono and a pair of knotted stockings. In 2016, DNA examination of spermatozoa on the kimono revealed a DNA profile matching that of the accused.[2]
In relation to counts 3 to 5, the State alleges that the accused grabbed the complainant, who was then aged 17 years, from behind whilst she was walking in Claremont in the early hours of the morning of 12 February 1995. He pushed her to the ground, bound her hands behind her back, forced a cloth into her mouth, placed a hood over her head and bound her feet. She was then carried to and placed in a nearby vehicle, which was then driven to Karrakatta cemetery, where she was sexually penetrated without consent. The complainant was dropped into nearby bush and later observed a white van, which she believed to be driven by the accused, driving by. DNA swabs taken from the complainant were compared to a sample of the DNA of the accused in 2016 and found to be a match.[3]
In relation to count 6, the State case is that in the early evening of Friday, 26 January 1996, Sarah Spiers went to the Ocean Beach Hotel in Cottesloe. She was 18 years old. At about midnight, she was driven by her sister to Claremont where she went to Club Bayview in St Quentin's Avenue, where she stayed until around 2.00 am. She then left the club, walked to a Telstra telephone box on the western corner of Stirling Road, made a telephone call and asked for a taxi to take her to Mosman Park. A taxi driver was dispatched to collect her, but the driver did not see anyone waiting, so he continued on and collected a fare in St Quentin's Avenue. Ms Spiers was last seen alone leaning up against a Telstra bollard at the eastern corner of Stirling Road. Between 2.30 am and approximately 3.00 am there was a series of screams heard within a small area in Mosman Park, consistent with a female in distress. Since that time, Ms Spiers has not made contact with friends or family and there has been no access to her bank account or medical services. She is not recorded as having left Australia. The State case is that the accused took Ms Spiers and murdered her.[4]
In relation to count 7, the State case is that in the early evening of Saturday, 8 June 1996, Jane Rimmer went to the Shenton Park Hotel. She was 23 years old. Sometime after 8.00 pm, she caught a taxi from Nedlands to the Ocean Beach Hotel, Cottesloe, where she met with some friends. Sometime between 9.30 pm and 10.00 pm, she left with her friends and want to the Continental Hotel on the corner of Bayview Terrace and Gugeri Street, Claremont, where they stayed until shortly before midnight. A taxi was called and Ms Rimmer's friends got in, but she declined to join them. She was last seen by her friends on the footpath outside the entrance to the Continental Hotel on Bayview Terrace, just after midnight. Ms Rimmer's naked body was discovered in bushland off Woolcott Road, Wellard on 3 August 1996. The body was concealed with branches which were torn from nearby trees. A knife with a Telecom Australia logo was found on Woolcott Road on the same day. The cause of death could not be determined, however postmortem examination revealed a prominent defect to her neck, which was consistent with an injury. Later forensic examination revealed the presence of numerous fibres in Ms Rimmer's hair. The composition of some of the fibres is consistent with having come from a 1996 VS Series 1 Holden Commodore or the equivalent Toyota Lexcen. Telstra records indicate that the accused was allocated a 1996 VS Series 1 Holden Commodore station wagon (for work and private use) as at 9 June 1996. The State case is that the accused took Ms Rimmer and murdered her.[5]
In relation to count 8, the State case is that in the early evening of Friday, 14 March 1997, Ciara Glennon was at a function at the law firm at which she worked in Perth. She was 27 years old. From there, she and some colleagues were given a lift by another colleague to Claremont, where they went to the Continental Hotel, arriving there at about 11.30 pm. Shortly before the hotel was due to close at midnight, Ms Glennon told friends she was leaving. At about 11.45 pm, she walked in a southerly direction down Bayview Terrace and she was later seen on Stirling Highway between Leura Avenue and Stirling Road. A person fitting Ms Glennon's description was seen interacting with motor vehicles. In particular, two witnesses saw her appear to talk through the passenger window of a car described as a white late model Holden Commodore station wagon, which pulled up beside her. One witness describes it as being a VR or VS Holden Commodore station wagon. Telstra records indicate that the accused was allocated a white VS Series 1 Holden Commodore station wagon (for work and private use) as at 15 March 1997. On 3 April 1997, Ms Glennon's body was found in bushland near Pipidinny Road, in Eglington. She was fully clothed and the body was concealed with branches which were torn from nearby trees. The cause of her death was determined as 'consistent with a neck injury'. In 2009, a forensic examination revealed the presence of a mixed DNA profile originating from at least two individuals in a sample from two fingernails on the left hand of Ms Glennon. The mixed DNA profile is consistent with coming from two contributors, being Ms Glennon and a male. The male component of the mixed DNA profile matches the accused's DNA profile. The State case is that the accused took Ms Glennon and murdered her.[6]

[38]

Generally speaking, evidence that does no more than show that the accused has a bad character, or has done other criminal or disreputable things, is not admissible.[12] This is because such evidence will usually not meet the basic test of relevance. At common law, an exception is made where evidence of other conduct of an accused person is so strikingly similar that it is capable of supporting an inference that the accused committed the offence.[13] Such evidence is referred to as similar fact evidence. The purpose of s 31A is to encompass similar fact evidence, but also to extend the categories of admissible evidence relating to the conduct of an accused person.[14] Section 31A provides that propensity or relationship evidence is admissible if the court considers that the evidence meets the two tests contained in s 31A(2), namely that it is of significant probative value and that fairminded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Where a party seeks to rely on s 31A as a basis for the admissibility of evidence, the first question is whether the evidence is 'propensity' or 'relationship' evidence. Those phrases are defined in s 31A(1) in very broad terms. As Pritchard J (as her Honour then was) observed in The State of Western Australia v Wark, the definition of propensity evidence does not describe the nature of that evidence, but merely defines it by reference to other kinds of evidence.[15] Her Honour said that in order to determine what evidence falls within the description of propensity evidence, it is necessary to also bear in mind the meaning of the word propensity as being 'a natural or habitual inclination or tendency' and 'a predisposition or inclination to, towards, or for a particular action, habit, quality etc; a tendency to do something'.[16] It is also necessary to take into account the wellrecognised forms of propensity evidence at common law. Her Honour concluded that the words 'other evidence of the conduct of the accused person'[17]

[47]

The dangers of assuming that past conduct of a broadly similar type will necessarily have significant probative value is illustrated by McPhillamy v The Queen.[24] In that case, the appellant was charged with sexual offences against an 11yearold altar boy who was under the supervision of the appellant when he as an acolyte. Tendency evidence was admitted that some ten years earlier the appellant had touched two 13yearold boys who were boarders at a school where he was an assistant house master. The acts on the two occasions were of a different nature and level of seriousness. In the High Court, the plurality noted that tendency evidence may be to have a particular state of mind or to act in a particular way. In that case, the tendency evidence established that the appellant had a sexual interest in young teenage boys and it was not disputed that such an interest was likely to be enduring. However, the plurality said that proof of such a sexual interest may meet the basal test of relevance but it was not capable of meeting the requirement of significant probative value. Their Honours said 'generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value'.[25] Their Honours went on to say that, in the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the earlier incident, the inference that at the dates of the offences he possessed the tendency was weak.[26] They also said that where the tendency evidence relates to sexual misconduct with persons other than the complainant it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.[27] Their Honours said that proof of the earlier conduct was not capable of affecting the assessment of a likelihood that the appellant committed the offences at the later time to a significant extent. The evidence rose no higher in effect than to insinuate that, because the appellant had sexually offended ten years earlier, in different circumstances, and without any evidence other than the later complainant's allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that were alleged.[28] The appeal in that case was allowed and the conviction was set aside and a new trial ordered.
For propensity evidence to be admissible, it must also meet the second test in s 31A(2), that is, the fairminded person test. This test requires the court to assess the degree of unfairness at trial that will be occasioned by the admission of the evidence in question. The risk is that a jury (or judge in a judge alone trial) may uncritically overvalue the probative effect of the evidence and conclude that the accused must have committed the offences charged simply because he has committed other offences or 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.[29]
In Dair v The State of Western Australia,[30] Steytler P referred to three possible risks of prejudice from propensity evidence:
1. "The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts" (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: "it is easy to derive from a series of unsatisfactory allegations ... an accusation which at least appears satisfactory ... to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing")). This comes down to the belief that the jury will overestimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) [1997] HCA 47; 191 CLR 275) Kirby J stated:

[49]

"The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences" (Wigmore ... p 650). Thus, "there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged" (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: "sentiments of revulsion and condemnation ... might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest" (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
"The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts" (Ibid; see also ... Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 512).
When assessing the risk of an unfair trial in the context of a jury trial, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury.[31] In the context of a trial by judge alone, the fact that the judge is the factfinder does not necessarily eliminate the possibility of prejudice but it is relevant to take into account that judges are familiar with the process of disregarding irrelevant considerations and that the course of reasoning of a judge in reaching a verdict will be disclosed in written reasons, and will incorporate necessary directions regarding the use that can be made of the evidence.[32]
After identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fairminded people would draw from a comparison of those matters. Fairminded people are reasonable members of the general community who are not lawyers and, it must be assumed, people who 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'.[33] This weighing process may be a difficult one as it requires the weighing of things that are incommensurable in the framework of the construct of the hypothetical fairminded person.[34]
One other factor is pertinent and that is the risk that the evidence at trial does not accord with the evidence as anticipated. This is a risk referred to by the High Court in Hughes.[35] However, that risk can be ameliorated in the context of a trial by judge alone.[36] If the evidence adduced at trial does not come up to expectations and this reduces its probative value such that it no longer meets the requirements of s 31A, it would be possible for the question of its admissibility to be raised again.[37] Accordingly, any rulings made at this stage are only of a provisional nature. If the assumptions made in regard to the prosecution evidence prove to be wrong and a later ruling is made that evidence is inadmissible, any possible prejudice can be obviated by the trial judge expressly putting that evidence aside and not taking it into account in the reasoning process.

[50]

In and around late 1987 and 1988, a series of incidents occurred in the Huntingdale area that involved a person trespassing on, or entering into, residences and stealing women's underwear and other garments. The evidence relied upon in this regard is as follows.[38]
In or about midJanuary 1988, an apricotcoloured silk kimono and white women's underwear were stolen from a clothesline at 76 Harpenden Street, Huntingdale. This kimono was subsequently found at the scene of the Huntingdale offences (counts 1 and 2) on 15 February 1988.
On Thursday, 21 January 1988, at approximately 3.00 am, a man attempted to break into a house at Lot 3 Huntingdale Road, Huntingdale. The man was disturbed by the occupants of the residence and left the area. He was described as being approximately 30 years of age, 180 cm tall with short dark hair, of chubby or solid build and wearing a 'wrap around' garment. That garment was described as being like a sarong or like what 'the Japanese wear' which was colourful and came 'down to his leg'.
Later the same morning, that is, on Thursday, 21 January 1988, at approximately 4.10 am, a man broke into a residence at 61 Huntingdale Road, Huntingdale and was found by the female occupant to be standing in a spare bedroom of the house searching through drawers of an antique dresser. The female occupant ran to her bedroom where she screamed for help. The man ran off. The man was described as Caucasian, with a fair complexion, thin to average build, not muscly, approximately 180 cm tall, aged between 19 and 21 years old, with dark short hair which was in a neat short back and sides style, clean shaven, brown eyes, black eyebrows, bare feet and clean in appearance. The man was described as wearing a blue satin silky dressing gown or nightwear which appeared to be quite feminine with white shorts with a pattern on them.
Two days later, on 23 January 1988, between 9.00 pm and 10.00 pm, a person tried to break into the same residence at 61 Huntingdale Road, Huntingdale. The person was disturbed by the barking of the occupant's dog after having removed the flyscreen of the female occupant's bedroom window.
On Thursday, 28 January 1988, at approximately 9.30 pm, a man peered over the fence into the residence at 61 Huntingdale Road, Huntingdale. At that time, the female occupant was in her yard feeding her animals. The man was described as a 180 cm tall, slim build, dark and identical to the man seen at the same residence by the same female occupant in the early hours of the morning on Thursday, 21 January 1988. The female occupant of the house assisted in the compilation of an identikit sketch of this man, which is alleged to be broadly consistent with the way the accused looked at the relevant time.
On two occasions between a few days to two weeks apart, in or around January and early February 1988, female garments were stolen from a clothesline at Lot 1401 Bullfinch Street, Huntingdale. At least two bras, four pairs of underwear, three pairs of tights and a white satin threequarter length kimono with oriental flowers embroidered on each side at the front were stolen.
On Thursday, 11 February 1988, at approximately 1.00 am, a man broke into a residence at Lot 1386 Bullfinch Street, Huntingdale and went to the master bedroom of the house. The female occupant woke to the noise of rustling in her bedside drawer. She saw the man crouched down near the drawers. He then fled from the house without saying anything. He was described as wearing some form of 'flowing garment' which was 'similar to a kimono' and was light in colour.
Later the same morning at approximately 2.30 am, a man was seen at the rear sliding door of 61 Huntingdale Road, Huntingdale trying to open the door. The man was disturbed by a neighbour, causing him to run off and jump over the fence. The man did not say anything to witnesses during this incident. The man was described as approximately 5 foot 11 inches (180 cm) tall, very slim, jet black hair, a standard man's haircut, light-coloured skin, wearing 'something really funny...like a dressing gown' which had long sleeves and came to just below the knee. The man had nothing in his hands, was not wearing glasses and had no beard. Police attended at the residence and conducted a fingerprint examination. Three partial latent fingerprints and one latent palm impression were obtained from the rear sliding door. In December 2016, following the arrest of the accused, a comparison was undertaken with the accused's fingerprints. The prosecution case is that three out of the four latent fingerprints can be identified as being those of the accused. A foot impression of a bare right foot was also located in the sand at the scene. This impression was compared to foot impressions obtained from the accused in November 2017. The prosecution case is that the accused cannot be excluded from having created this foot impression.
In the late hours of Saturday, 8 October 1988, or the early hours of Sunday, 9 October 1988, a female occupant of 78A Harpenden Road, Huntingdale opened the rear glass sliding door of her residence to let out her cat. She left the door open and went to have a shower. On her way to the shower, she noticed that her toilet door which she normally left ajar was closed. She showered for approximately 15 minutes before dressing and walking back past the toilet door. As she did so, a man opened the toilet door and rushed out at her. He pushed her against the wall with force causing her to fall to the floor. The intruder then stood over her and slapped her repeatedly around her head and neck. She received bruises on both sides of her back as well as on her neck. She described the man as wearing 'something similar to a ladies' satin nightie' and 'layers of what appeared to be ladies' clothing'. He was barefoot and had underpants over his head, but his eyes were exposed. He was about 6 foot 1 inch tall and slim to medium build. The female occupant fought back and managed to punch the intruder to the face a few times. She also kneed him to the groin. At that time, she noticed that her young daughter was standing nearby. The intruder looked at the child and fled out the rear sliding door. The female occupant saw him jump over the rear fence. The man did not say anything to the female occupant during this incident. Police attended and took photographs of bare foot impressions in the sand around the perimeter of the house. The impressions were later compared to foot impressions obtained from the accused in November 2017. It is the prosecution case that the accused cannot be excluded as having created three out of the four foot impressions obtained.
During the period that the Huntingdale prowler series of incidents occurred, the accused was 19 years of age, approximately 183 cm tall, slim to medium build with short dark hair and of fair complexion. He lived with his family at 144 Gay Street, Huntingdale, which was within a 1 km radius of all of the residences connected with these events.[39]

[54]

There is no doubt that the Huntingdale prowler evidence is admissible in respect of counts 1 and 2. It is relevant to the issue of identity of the perpetrator of counts 1 and 2, both because of the high likelihood that the same person was involved in all of the incidents and also because it is propensity evidence which has significant probative value and meets the fairminded person test. The fact that all incidents occur in the same geographical area, close in time and that the perpetrator in counts 1 and 2 was wearing (or at least in possession of) a kimono strongly connects the Huntingdale prowler evidence with counts 1 and 2.
The real issue is whether the evidence is admissible in respect of the other counts. In order to be admissible as propensity evidence in respect of the other counts, this evidence must first be capable of establishing a propensity or tendency. The tendency that the prosecution relies on, namely a tendency to prowl an area of familiarity at night-time in a distinctive manner in order to create and/or seize opportunities to commit an offence with a sexual motive,[49] is capable of falling within the definition of propensity in s 31A. However, that tendency is pitched at a high level of generality. The use of the word 'prowl' and the phrases 'distinctive manner' and 'sexual motive' imply that there is something about the Huntingdale prowler evidence that makes it more likely that the person involved in the Telstra Living Witness Project incidents is the accused and therefore the person who committed counts 3 to 8. But each of those words and phrases is capable of encompassing a wide range of conduct.
Assuming, for the sake of argument, that in each group of incidents a single person was responsible for all of the conduct in that group, there is very little to suggest that it is likely to be the same person responsible for both groups. It may be the same person, but the nature, quality, extent and duration of the prowling conduct in each group is markedly different. The distinctive features of the Huntingdale prowler conduct are not shared by the Telstra Living Witness Project conduct. In the case of the Huntingdale incidents, those features are a man on foot, in the Huntingdale area, who approaches or enters residential premises at night, with the purpose of stealing women's clothes, who sometimes wears such clothing and who appears to have a sexual motivation or fetish. In the case of the Telstra incidents, those features are a man in a vehicle, in the Claremont and Cottesloe areas, who observes or approaches young women at night who are walking along roads in the area, who sometimes offers the women a lift, who is dressed normally and who may have a sexual motive, but not one that manifests any fetishistic element. The prosecution's claim that the differences are consistent with the accused's changing circumstances and evolving methods assumes the very question that is in issue, namely the identity of the offender.[50]
Where the fact in issue to which the evidence is said to relate is identity, there will be a greater need for the evidence to have some common or similar features.[51] In my view, the common features between the Huntingdale and Telstra evidence are few and broadly stated. In essence, they are that the person involved has a tendency to prowl an area that he knows and that this is sexually motivated.[52] There is a distinctive method used in each group, but it is not the same. On the other hand, there are many and significant differences between the conduct. Those differences cannot be readily explained or dismissed as irrelevant. They must be taken into account in assessing the probative value of the evidence.
In my view, it is doubtful whether the Huntingdale prowler evidence is relevant to the determination of the identity of the offender who committed counts 3 to 8, but in any event it certainly does not meet the significant probative value test. This evidence does not aid, to a significant extent, in the resolution of the essential issue of the identity of the offender in respect of counts 3 to 8. Put another way, the fact, if it is proven, that the accused engaged in the Huntingdale prowler conduct does not make it significantly more likely that he was the person who committed the offences the subject of counts 3 to 8, when viewed alone or having regard to other admissible evidence.
Since the evidence does not meet the significant probative value test, it is unnecessary to consider the fairminded person test. The fairminded person test assumes the existence of significant probative value. If the evidence does not have that value no question arises of weighing the risk of an unfair trial against the expectations of a fairminded person.
For those reasons, the Huntingdale prowler evidence is admissible in respect of counts 1 and 2 but is not admissible in respect of counts 3 to 8.

[55]

In the early hours of the morning of Monday, 15 February 1988, a man entered a residence at Lot 1392 Bullfinch Street Huntingdale. He entered through a closed but unlocked back door. The complainant, an 18yearold woman, was asleep in her bedroom. The complainant's brother and her parents were asleep in other rooms in the house. The parents had left their bedroom door open, as they usually did.
The man who entered the house closed the doors to all the bedrooms and unplugged the landline telephone. He then entered the complainant's bedroom and attacked her as she lay face down asleep in her bed. He straddled the complainant and pinned her down. He used a hand to cover her mouth and attempted to force a piece of cloth or fabric into her mouth with the evident purpose of stopping her from screaming or yelling out for help. The complainant struggled and this eventually caused the man to desist his attack and to flee the bedroom. As he was leaving, the complainant noticed that the man was wearing something that looked like a white nightie. The man did not say anything to the complainant during this attack.
After the attack, a lightcoloured silk kimono and a pair of knotted black stockings were found in the complainant's bedroom. They did not belong to her. The kimono had been stolen from a clothes line at 76 Harpenden Street, Huntingdale a few weeks earlier. The kimono was retained by the police and a forensic examination in December 2016 revealed the presence of multiple areas consistent with the presence of semen. DNA examination and analysis of the suspected semen stains revealed a single source male DNA profile which was a match to the DNA profile of the accused.
The State also relies on other evidence in regard to the identity of the offender. This includes that the accused lived within a short walking distance of the complainant's residence at the relevant time, that the complainant was known to the accused to the extent that the accused was a friend or acquaintance of the complainant's brother, that the accused had visited the complaint's home on at least one occasion prior to the incident and the Huntingdale prowler evidence.[54]

[56]

In written submissions, the State asserted that the accused's conduct in the Huntingdale offences is propensity evidence pursuant to s 31A in that it is evidence of a 'tendency that the accused has or had' to attack and endeavour to overpower and restrain vulnerable women, for his own sexual motives.[55] It was also submitted that the evidence is relationship evidence pursuant to s 31A in that it is evidence of the accused's attitude of disdain and disrespect towards women who are strangers or who he barely knows, in a sexual context, over a period of time.[56]
In oral submissions at the directions hearing, the State amended the description of the tendency and the relationship that the evidence was said to prove. The State submitted that the evidence showed that the accused has or had a tendency or propensity to attack women, whom he barely knows or who were not known to him, who were vulnerable by the circumstances prevailing at the time, by attacking them without provocation and without warning, attacking them from behind, using some piece of fabric or cloth to put over or into their mouths, attempting to or in in fact rendering the women incapable of resisting his attack on them, saying very little or nothing to the women during the attack, with the conduct being sexually motivated.[57]
The State submitted that the evidence is of significant probative value with respect to the facts in issue in the Karrakatta offences (counts 3 to 5). It is said to be evidence which, by itself and in combination with other evidence relevant to identity, materially increases the probability that the accused was the assailant in the Karrakatta offences.[58]
The State further submitted that the Huntingdale offences evidence needs to be viewed in the context of other evidence relevant to identity in respect of counts 3 to 5. That other evidence includes intimate swabs taken from the complainant in the Karrakatta offences that reveal the presence of a single source male DNA profile which matches that of the accused. It also includes evidence that the complainant was placed into a panel van or similar vehicle, that a white van with Telecom markings on it was observed to drive passed Hollywood Hospital at some point after the complainant was abducted from a park a short distance away, that a similar van with a person seated in it was observed on four or five occasions parked inside Karrakatta cemetery and that the Karrakatta offences took place during the period when the incidents described in the Telstra Living Witness Project evidence were occurring.[59]
The State says that the propensity established by the Huntingdale offences evidence has a high degree of probative value because of the number and nature of features of the accused's conduct which are common to the Huntingdale offences and the Karrakatta offences. The presence of those features are said to make it more likely, when viewed in the light of all of the other evidence, that the accused is the man who committed the Karrakatta offences.[60]
The common features are said to be as follows:[61]

[64]

The State submits that the common features of the offences are such as to constitute a recognisable motive, behaviour or conduct on the part of the accused. This is said to be especially so when regard is had to the similar conduct exhibited by the accused in respect of the Hollywood Hospital offence. The State says that the tendency established by the Huntingdale offences is evidence which, together with the Hollywood Hospital offence, demonstrates an underlying unity, system or pattern in the accused's offending which goes directly to the probability of whether or not the accused committed the Karrakatta offences. Without this evidence the trier of fact may doubt whether it is likely that a man, with no prior demonstrated tendency to attack a woman, would suddenly act in a violent manner towards a female, as is alleged in counts 3 to 5. Evidence that he had attacked another women in the early hours of the morning seven years earlier, in combination with other evidence, shows a disposition on the accused's part to act in such a manner. It is said that the evidence could bolster the veracity of the DNA evidence in respect of the Karrakatta offences, in the event it is challenged. It would also tend to rebut any innocent explanation advanced by the accused for the DNA. In particular, it would rebut any suggestion that the complainant had consented to any sexual acts. It also is said that the evidence would make it more probable that the complainant in counts 3 to 5 was sexually assaulted in the manner alleged.[62]
The time gap of seven years between the Huntingdale offences and the Karrakatta offences is said to be less significant due to the accused's commission of the Hollywood Hospital offence in 1990. This is said to show that the tendency continued and remained active in the period between counts 1 and 2 and counts 3 and 5.[63]
The State submits that the evidence also meets the fairminded person test, in particular because if the Huntingdale offences and Karrakatta offences were dealt with separately the trier of fact would not have a complete picture of the accused's conduct.[64]
As regards the admissibility of this evidence in respect of counts 6 to 8, the State submits that the evidence needs to be viewed in the context of other evidence. The tendency said to be proven by the Huntingdale offences evidence is said to be bolstered by the Holywood Hospital evidence and the Karrakatta offences evidence. The existence and strength of such a tendency is said to be highly probative in respect of the Claremont murder offences and would assist in assessing whether any innocent explanation for forensic evidence is reasonably open.[65]

[67]

The Huntingdale offences evidence is capable of establishing an inclination on the part of the accused to attack vulnerable women in the manner described by the State.[70] It is, therefore, propensity evidence. The real issue is whether it has significant probative value.
The fact in issue to which this evidence is said to relate is the issue of the identity of the offender in respect of counts 3 to 8. Some other facts in issue were referred to in the State's submissions, including whether any act of sexual penetration in counts 3 to 5 was consensual. The admissions made by the accused at the directions hearing[71] mean that no issue remains in regards to consent.[72] In these circumstances the only fact in issue to which the evidence could meaningfully relate is the question of identity. As previously noted where identity is in issue, any similarity in the conduct is more important.
In some respects the general terms used by the State in expressing the tendency proved by the Huntingdale offences evidence obscures the differences between the two attacks. To describe both complainants as vulnerable omits to take into account that each was vulnerable in a different way; the first complainant because she was at home asleep in her own bed and the second complainant because she was alone walking along a street at night. The different nature of the vulnerability of the alleged victims is a relevant consideration.[73] However, there are other aspects of the attacks that do have common distinctive qualities.
Both attacks involved women who were effectively strangers to the accused, who were attacked from behind and without warning and both involved the use of physical restraint and an attempt to use a piece of fabric or cloth over or into the mouth of the complainant with the evident purpose of suppressing any screams or calls for help. It is true that, taken individually, some aspects of the conduct could be said to be generic in the sense that they would be common to many offences of the same type. For example, attacking a woman who is a stranger to the perpetrator from behind and without warning. However, in comparing the conduct, it is necessary to look at the accumulation of features and not merely examine them on a piecemeal basis. Individual features that may be common to many offences may be more distinctive when accumulated.
Also relevant to the assessment of the probative value of the evidence is the context of other evidence that is available.[74] This includes the Hollywood Hospital evidence, which will be considered later in these reasons. However, for present purposes it is appropriate to assume that that evidence will also be admissible. The significance of that evidence is that another attack involving similar distinctive features occurred in 1990, between the Huntingdale offences and the Karrakatta offences. The fact that on each of these occasions the evidence indicates a tendency to not merely have an interest in doing something but to act upon that interest increases its probative value.[75] The occurrence of the Hollywood Hospital offence is capable of supporting a conclusion that notwithstanding the lapse of time between the Huntingdale offences and the Karrakatta offences the tendency that is alleged continued to be held by the accused.
In my view, the Huntingdale offences evidence has significant probative value in respect of counts 3 to 5 because it makes it more likely to a significant extent that the accused was the person who committed the Karrakatta offences. If the Huntingdale offences are established they are capable of proving that the accused had a tendency to attack unknown women from behind, using force and the use of cloth to stifle any sounds and that these actions were sexually motivated. The existence of such a tendency, when viewed in the light of other relevant evidence, is capable of supporting to a significant extent the prosecution case that the perpetrator in the Karrakatta offences is the accused.
I am also satisfied that this evidence meets the fairminded person test. Whilst there is always some risk of prejudice to an accused where propensity evidence is introduced, that risk is less likely in the context of a trial by judge alone.[76] As the trial judge, I am conscious of the use to which this evidence can be put and the limitations to that use. I am capable of guarding against any misuse of the evidence.
As to whether the Huntingdale offences evidence is admissible in respect of counts 6 to 8, there is little evidence as to the manner in which the victims of the Claremont murders were abducted. It is possible to infer that each was abducted, at night and for a sexual motive. However, the distinctive features relied upon by the State as being common to the Huntingdale and Karrakatta attacks cannot be proven as being present in the case of counts 6 to 8. Nonetheless, there is a clear basis for connecting the Karrakatta offences with the Claremont murders; they all occurred in the same area, at around the same time and involved victims with similar personal features. Accordingly, the existence of a tendency to attack unknown women in the way described would have significant probative value in regard to the identity of the person who committed the Claremont murders. If it is established that the accused had this tendency, that he had it for a long time and that, within 12 months of the first of the murders, that tendency had been expressed in the same area, that is evidence that has the potential to be material to the question of the identity of the person who committed the Claremont murders. The fairminded person test is also satisfied in regard to the use of that evidence in respect of counts 6 to 8.
For these reasons, I am satisfied that the Huntingdale offences evidence is admissible in respect of all counts. Specifically, it is admissible in respect of counts 3 to 8 as propensity evidence pursuant to s 31A of the Evidence Act. I do not accept that it is admissible as relationship evidence as the nominated relationship is so broad that it cannot meet the significant probative value test.

[68]

At around 2.30 pm on 7 May 1990, the accused, then aged 21, was at Hollywood Hospital in Nedlands attending to a fault on the PABX system in his capacity as a Telecom technician. He entered an office in which the complainant, a 40yearold female senior social worker, was sitting. The accused asked to use the toilet. A toilet was located through a door at the back of the office. The complainant was engaged in her work and only 'minimally responded' to the accused. He went to the toilet and returned a short time later. He then approached the complainant from behind, put a piece of material over her nose and mouth using his left hand and put his right arm over her right shoulder and across her chest. He then began dragging the complainant backward towards the toilet. She was seated on a chair with wheels and her chair was dragged back with her. The accused pulled her off the chair keeping a tight grip on her and the chair fell over.
The complainant struggled against the accused, but was unable to scream because of the presence of the accused's hand and the material covering her mouth. She could not move her arms because of the grip that he had on her. After a struggle, in which the complainant kicked the accused, he loosened his grip and she broke free. She fled into a neighbouring ward and sought help. The accused did not say anything to the complainant during the attack, although he did say sorry to her after the attack was completed.
A hospital security guard attended and detained the accused until police arrived. The accused admitted to the security guard that he had tried to drag the complainant to the toilet cubicle. He was found by police to have cable ties in his pocket, though such ties could be used in the course of his work.
The accused was arrested by police and charged with one count of common assault. He later pleaded guilty to that charge on 11 May 1990. A conviction was recorded and a presentence report was obtained. On 1 June 1990, the accused was sentenced in the Perth Court of Petty Sessions to 2 years' probation. He was required to undertake a sex offender's treatment programme from 30 August 1990 to 9 May 1991.
The presentence report records that the accused informed the author that at the time of the offence he had been very frustrated by not being able to fix the equipment that day and that he was also under a lot of pressure in his de facto relationship. In May 1990, the accused informed a clinical psychologist that in the week leading up to the offence he was in a state of some distress. In particular, he admitted that he had argued with his de facto partner the evening prior to the offence and that he was still disturbed by this argument on the day of the offence. He also said that he had been carrying a heavier emotional burden from the previous week when his de facto partner had informed him of her infidelity with a previous boyfriend earlier in the relationship. The accused said that he had been deeply distressed by this confession.

[69]

The State submits that the accused's conduct in the Hollywood Hospital offence is propensity evidence pursuant to s 31A in that it is evidence of 'a tendency that the accused has or had' to attack and endeavour to overpower and restrain vulnerable women, for his own sexual motives. It is also said to be relationship evidence pursuant to s 31A in that it is evidence of the accused's attitude towards a class of persons, being an attitude of disdain and disrespect towards women who are strangers or who he barely knows, in a sexual context, over a period of time.[78]
The State says that this is evidence of unimpeachable reliability, having been the subject of a plea of guilty. Further, it is evidence of conduct that is said to be so far outside the realms of ordinary human behaviour that the relevant tendency can properly be established by a single incident.[79]
At the directions hearing, the State expressed the tendency said to be proven by the Hollywood Hospital offence in a different way. The State asserted that the evidence was capable of establishing that the accused has or had a tendency or propensity to attack women, whom he barely knows or who were not known to him, who were vulnerable by circumstances prevailing at the time, by attacking them without provocation and without warning, and taking them from behind, using some piece of fabric or cloth to put over or into their mouths, attempting to or in fact rendering the women incapable of resisting his attack on them, saying very little or nothing to the women during the attack, with the conduct being sexually motivated.[80] This is, of course, the same tendency that is suggested as being established by the Huntingdale offences.[81]
The State submits that this evidence has significant probative value in respect of the Huntingdale offences because, when regard is had to other evidence relevant to the identity of the offender, in particular the kimono DNA evidence, it renders significantly more likely that the accused was the assailant in the Huntingdale offences. The State says that its case in respect of counts 1 and 2 is circumstantial and the Hollywood Hospital evidence would have significant probative value in assessing whether any innocent explanations for the other evidence, including the presence of the kimono, are reasonably open. Evidence that a little over two years after the Huntingdale offences the accused attacked a vulnerable woman from behind, putting a piece of cloth or fabric over her mouth and physically restraining her is said to be evidence which tends to rebut any suggestion that someone other than the accused took the kimono (which is forensically linked to the accused) into the complainant's bedroom and attacked her from behind putting a piece of cloth or fabric over her mouth and physically restraining her.[82]
The State submits that propensity can be established by offences which occur after the offence under consideration.[83] The definition of propensity evidence in s 31A extends not only to evidence of a tendency that the accused person had but also a tendency that he has. There is no express limitation of that temporal connection to the period prior to or encompassing the time of the offences. Evidence of later events can cast light on past events as a matter of inference.[84]
The State submits that there are a number of common features between the Hollywood Hospital offences and the Huntingdale offences which are relevant to an assessment of the probative value of the former. These features include that the victim was a vulnerable female, that the attacks were unprovoked and without warning, that the attacks were from behind, that the attacks involved the assailant putting one hand and a cloth or piece of fabric over the mouth of the victim, that each victim was physically restrained, that the assailant did not say anything during the attacks (though there was some minimal conversation before and after the Hollywood Hospital attack) and that each incident was sexually motivated.[85]
The State says that the Hollywood Hospital evidence needs to be seen in the context of other evidence, in particular the Karrakatta offences evidence. This is said to demonstrate that the tendency of the accused was ongoing and not, as might be suggested in the case of the Huntingdale offences, an isolated youthful indiscretion.[86]
The Hollywood Hospital evidence is said to be of significant probative value in respect of the Karrakatta offences because it is evidence, together with the DNA evidence relevant to the Karrakatta offences, that renders it more likely to a significant extent that the accused was the assailant in the Karrakatta offences. Without the Hollywood Hospital evidence, the court would have to consider the issue of whether it was likely that a man with no prior demonstrated tendency to attack a woman would suddenly act in a violent manner towards a female who was a complete stranger. Evidence that less than five years earlier he had attacked a vulnerable female stranger from behind and dragged her towards a toilet cubicle only releasing her when she managed to struggle free, demonstrates a disposition on the accused's part to act in such a violent manner.[87]
The State says that there are a number of specific and distinctive particulars which are common to the Hollywood Hospital conduct and the Karrakatta offences, in particular that both incidents involved a vulnerable female who was unknown to the accused, that the attacks were unprovoked and without warning, that the attacks were from behind, that the attacks involved the accused putting one hand over the mouth of the victim and the other arm around the victim's body to restrain her, that both victims were physically restrained and dragged or moved, that both involved the use of a piece of cloth or fabric over the victim's mouth, that the assailant did not say anything during the attacks and that the accused was at both relevant times experiencing personal stress or turmoil in his intimate relationship.[88]
The State says that the Hollywood Hospital evidence has significant probative value in respect of the Claremont murders because evidence of a tendency to attack and to endeavour to overpower and restrain vulnerable women for a sexual purpose is evidence which, when viewed in combination with other evidence to be adduced, supports and makes more likely to a significant extent that the accused is the offender in respect of counts 6 to 8.[89] In respect of each of those counts, the prosecution case is circumstantial. The prosecution will rely on the similar circumstances of counts 6, 7 and 8 to support the inference that a single offender committed all three murders. The circumstantial evidence in respect of count 7 includes fibre evidence and in respect of count 8 includes DNA and fibre evidence. The Hollywood Hospital evidence is said to be evidence that enhances the reliability and significance of the DNA and fibre evidence and could undermine the plausibility of any innocent explanations advanced by the accused for that evidence. When viewed in the context of the Huntingdale offences evidence and the Karrakatta offences evidence, the Hollywood Hospital evidence is capable of establishing the existence of the tendency alleged as being of a longstanding and enduring quality.[90]

[72]

This evidence needs to be seen in the context of the Huntingdale offences evidence and the Karrakatta offences evidence. Assuming that evidence is admissible, it places the Hollywood Hospital evidence into context. That context is capable of strengthening a finding that the tendency alleged by the prosecution was not merely an interest[96] or a state of mind but a tendency to act by attacking women with a sexual motivation. It is also capable of supporting an inference that the tendency was entrenched and longstanding.
It is true that there are a number of features of the Hollywood Hospital incident that are different to both the Huntingdale and the Karrakatta incidents. Those differences are relevant, but, in my view, they do not detract from the underlying common features, in particular the features of attacking an unknown woman from behind and using a piece of material or cloth in an attempt to prevent resistance are sufficiently similar to give this evidence significant probative value. The evidence is capable of making it more likely to a significant extent that the accused was the offender who committed the Huntingdale offences and the Karrakatta offences bearing in mind those essential similarities.
As regards the Claremont murders, there is no evidence as to the method used to take and overpower each of the victims of those offences. However, the defence concede that evidence of the Karrakatta offences is admissible in respect of counts 6 to 8 as propensity evidence bearing in mind similarities such as the location, time and personal features of the victims.[97] The Hollywood Hospital evidence has significant probative value in this regard because it would show that the tendency capable of being proved by the Karrakatta offences was longstanding and enduring, particularly when the Huntingdale offences evidence is also taken into account.
The fairminded person test is also met. There is a risk that the Hollywood Hospital evidence would prejudice a fair trial because there is always a risk with such evidence that it could be used incorrectly. However, any such risk is minimised by the fact that this is a trial by judge alone. As the trial judge, I would be scrupulous to ensure that the evidence is not misused and that any role that it plays in the reasoning process is properly reflected in the written reasons that must be provided.
For these reasons, the Hollywood Hospital offences evidence is admissible in respect of all counts in the indictment. Specifically, it is admissible as propensity pursuant to s 31A of the Evidence Act. As regards the alternative basis for admissibility, being that it is evidence of a relationship that the accused has with women, that relationship is so broadly framed that it could not meet the significant probative value test. Accordingly, I do not accept that the evidence would be admissible on the alternative basis.

[73]

The prosecution case is the accused was employed by Telecom or Telstra from 28 January 1986 until his arrest on 22 December 2016. From around early 1988 the accused held a position as an installation technician. From about 1991, he was allocated a specific vehicle for both business and private use. He also had access to and use of other Telecom or Telstra vehicles which were not specifically allocated to him.
Between 1995 and 1997, several women in the Cottesloe and Claremont areas were offered lifts by a person driving a Telecom or Telstra vehicle or claiming to work for Telecom or Telstra.
Late on Saturday night in early December 1995, a sole male occupant driving a white van along Stirling Highway in Claremont stopped and offered a lift to a woman walking alone. The woman accepted the offer and got into the van. The woman was upset and told the male driver about a fight she had had with her boyfriend that night. The male driver had told her that he was a technician with Telstra, was on the road a lot and did not have to pay for petrol. He then told the woman that he was heading to Cottesloe beach looking for 'damsels in distress' just like her. He told her that he did not like to see young girls walking around on their own. He drove to her requested destination in Innaloo. When she got out of the van, the man also got out and followed her. He grabbed her at least once and tried to kiss her, prompting her to push him away. He eventually desisted in his advances. He was described as reasonably good looking with a round youngish face, between 20 and 22 years of age with short brown hair, a fair complexion, average build and approximately 166 to 174 cm tall, clean shaven wearing fawncoloured trousers and a short sleeved tshirt.
In the early hours of the morning on 27 January 1996, or 28 January 1996, a sole male driving a white square type 1992 to 1996 Toyota Camry four door sedan with a Telstra logo on the front passenger door stopped on Stirling Highway in Claremont. He wound down his window and stared at a young woman standing alone at the side of the road as she waited for a taxi. He stared at her for approximately 60 seconds before driving off. The male driver was described as being in his 30s, Caucasian with tanned skin, a good build around his chest and arm, brown short hair with what looked like loose curls on top and clean shaven.
On a Saturday night in November or December 1996, a male person driving either a Ford or Holden Commodore family sized station wagon with a Telecom logo on the side door stopped on Gugeri Street in Claremont near Rowe Park and offered a young intoxicated woman a lift. The young woman got into the vehicle believing it to be a taxi until she saw the interior. The interior was fawn-coloured with 'a lot of stuff' in the rear of the station wagon, and a grill behind the backseat. The young woman told the driver that she needed to get her shoes. She went off into Rowe Park and woke two male friends who were sleeping there and asked them to join her. All three young people then went back to the vehicle, got in, and were driven to their requested destination in Shenton Park. The driver was described as having thick, dark, short to medium length hair, not a big man, and was in his late 20s to early 30s.
On a Friday or Saturday night in late November or early December 1996, a sole male occupant was driving a white Commodore or Lexcen station wagon with a Telstra logo on the passenger side of the bonnet, along Eric Street in Cottesloe. He stopped and offered two young women a lift. The two girls were walking in an easterly direction towards Stirling Highway. Initially, the vehicle drove in a westerly direction on Eric Street, having come from Stirling Highway. The car drove past the girls, turned around at some point, and then pulled up beside them and offered them a lift. They asked to be taken to the home of one of the girls in Nedlands. The male driver drove the girls along Stirling Highway towards Claremont. He spoke very little, if at all. One of the girls felt uneasy and wanted to get out of the car. As the driver approached the traffic lights at Bayview Terrace, the girl told the man to stop the vehicle and that she and her friend were going to Club Bayview. She said this as an excuse to get out of the vehicle. Both girls then got out of the vehicle and went to a nearby convenience store. The driver was described as being 35 to 40 years of age, with dark, short hair and neatly dressed in dark-coloured tailored pants and a short sleeve collared shirt.
At around midnight on a Friday, just before Christmas 1996, a person was observed driving a white Holden Commodore station wagon up and down Eric Street, Cottesloe on a number of occasions. The vehicle had a ladder fastened to the roof rack, a Telstra logo on the driver's side door and on the front passenger door and an orange rim or border surrounding the number plate. A vehicle fitting the same description also drove back and forth past the Ocean Beach Hotel around midnight on the same night.
The State also relies on evidence that in or around late 1995, a Telecom or Telstra van with a person sitting in it was observed on four or five occasions parked in Karrakatta cemetery at around 6.00 to 7.00 pm. On each occasion, the van was parked inside the cemetery near the pedestrian entrance and the intersection of Monash Avenue and Smyth Road, immediately adjacent to bushland.
The State's case is that the accused was the man involved in the Telstra living witness incidents and that this is relevant to the identity of the person alleged to have committed counts 3 to 8, that is the Karrakatta sexual assault and the Claremont murders. The defence do not object to the admissibility of that evidence in respect of counts 3 to 8.[99] The real issue is whether this evidence provides a basis for connecting the Huntingdale prowler evidence to counts 3 to 8 such that that evidence would be admissible in respect of all counts on the indictment.

[75]

As I have noted earlier in these reasons, the defence accepts that this evidence is admissible as propensity evidence in respect of counts 3 to 8. The only issue is whether it is also admissible in regard to counts 1 and 2.
The argument raised by the prosecution is that the Telstra Living Witness Project evidence establishes a tendency which is the same as that established by the Huntingdale prowler series, namely a tendency or propensity to prowl an area of familiarity at nighttime in a distinctive manner in order to create and/or seize opportunities to commit an offence with a sexual motive.[100] It is submitted that the Huntingdale prowler evidence in addition to further proving the existence of such a tendency adds to the probative value of the whole of that evidence by showing that such a tendency has been held for a long period of time, has manifested itself in similar conduct and has developed to meet the changing circumstances of the accused.[101] This argument relates to the admissibility of the Huntingdale prowler evidence, an issue I have dealt with earlier in these reasons.
The application states that the State is seeking to adduce the Telstra Living Witness Project evidence in respect of all counts. However, the submissions did not focus on whether this evidence is admissible in respect of counts 1 and 2. That is no doubt because the evidence as to the identity of the Huntingdale prowler is considerably stronger than the evidence as to the identity of the perpetrator in Telstra Living Witness Project evidence. There is, therefore, less need for the prosecution to rely on this evidence to prove the identity of the Huntingdale prowler. In any event, the only basis upon which it could be admissible is if it is sufficiently connected to the Huntingdale prowler evidence. For reasons I have earlier stated, there is not sufficient similarity between this evidence and the Huntingdale prowler evidence. Thus, for the same reasons that applied to that evidence, the Telstra Living Witness Project evidence is not admissible in respect of counts 1 and 2.

[76]

Between approximately 2.30 am and 4.00 am, on Sunday, 12 February 1995, a 17yearold complainant was walking to a friend's house on Gugeri Street in Claremont after spending a night out with friends at Club Bayview in Claremont. As she walked through Rowe Park, she was grabbed from behind and pushed to the ground by a male assailant. The man bound the complainant's hands together behind her back using a cord that had a preprepared improvised handcuff knot and forced a cloth or piece of material into her mouth. He then carried her to his light-coloured vehicle which was nearby and placed her into the back of that vehicle. He placed a hood over the complainant's head and bound her feet together. The man drove around for a long time before driving to an isolated area of Karrakatta Cemetery.
Once parked at the cemetery, the man removed the complainant from the vehicle, carried her into the cemetery and put her on the ground. He then sexually assaulted the complainant. This conduct included pushing up the complainant's bra and kissing and licking her breasts and stomach. The restraint was removed from her ankles and her shorts and underwear were removed and the man penetrated the complainant's vagina with his penis. The man removed the hood from the complainant's head and the cloth from her mouth and placed her on her front and penetrated her anus with his penis.
When the man had finished, he walked away for a short time before returning. The then picked up the complainant and dropped her into nearby bushland within the confines of the cemetery. He then left again. He spoke little, if at all, to the complainant throughout the abduction and attack.
After hearing the vehicle drive off, the complainant made her way out of the cemetery and sought help. She saw a white panel van pass by her and, believing that the vehicle was that of her attacker, she hid behind a parked car. It is alleged that, during the period of time that the complainant was abducted, a security guard employed nearby at the Hollywood Hospital observed a white van which appeared to be new and had Telecom markings on it drive past the main entrance of the hospital towards Karrakatta cemetery.
The complainant was able to make her way to Hollywood Hospital where she received assistance. Her clothes were seized by police and she was given a pair of hospital pants to wear. The hospital pants were later seized and retained by police. The complainant was medically examined and noted to have bruises, scratches, abrasions and tenderness to various parts of her body. She was also noted to have injuries and bruising to her genitalia and sand, dirt and plant matter were present in her pubic hair area and on her genital area. Intimate swabs were taken and DNA was found both on these swabs and on the hospital pants, which was later matched to that of the accused.

[77]

The State submits that the evidence of the Karrakatta offences is admissible in respect of the Huntingdale offences and the Claremont murders on the basis that it is propensity evidence pursuant to s 31A of the Evidence Act. The tendency or propensity that it is alleged to be proven by this evidence is a tendency to attack women, whom he barely knows or who are not known to him, who were vulnerable by the circumstances prevailing at the time, by attacking them without provocation and without warning, attacking them from behind, using some piece of fabric or cloth to put over or into their mouths, attempting to or in fact rendering women incapable of resisting his attack on them, saying very little or nothing to the women during the attack, with the conduct being sexually motivated. This is the same as the tendency said to be established by the Huntingdale offences evidence and the Hollywood Hospital evidence.[103]
The State also submits that the evidence is relationship evidence pursuant to s 31A in that it is evidence that the accused has or had an attitude of disdain or disrespect towards women he barely knows or who were not known to him, in a violent or sexual context over a period of time.[104]
As to the admissibility of this evidence in regard to the Huntingdale offences, the State relies on the points of similarity that were referred to in regard to that evidence. The State says that if the Karrakatta offences are proven, the tendency shown by them makes it significantly more likely that the accused is the offender in respect of the Huntingdale offences. The evidence would be relevant in considering whether there are any possible innocent explanations for the presence of the kimono found in the Huntingdale victim's room.[105]
As regards the Claremont murder offences, the State says that the Karrakatta offences evidence is propensity evidence pursuant to s 31A in that it is similar fact evidence or other evidence of the conduct of the accused and is evidence of a tendency that he had. The State says the evidence takes on particular relevance when seen in the context of other admissible evidence because, if proven it would show that the accused had a tendency to attack vulnerable women leaving the Claremont nightlife precinct in the early hours of the morning.[106] The State says that there are a number of common features between the circumstances of the Karrakatta offences and the Claremont murders which enhance the probative value of the evidence and the probability that the accused is the assailant in the Claremont series.[107] In particular the State relies on the following factors: that each victim had been participating in the nightlife activities in the Claremont precinct on the night that they were attacked or disappeared, that each victim was taken suddenly, that all four victims were attacked within a 25month period, that all were attacked in the early hours of the morning on a Saturday or Sunday, that all were attacked during the period of time a male driver in a Telstra or Telecom vehicle had been seen driving in and around the Claremont area offering lifts to women who were on their own or seemingly on their own, that all four victims were aged between 18 and 27 years old and were of small build and fair complexion, that all four victims were vulnerable in that they were intoxicated and were alone and that the complainant in the Karrakatta offences was driven in the back of the assailant's vehicle for a period of time and that there is evidence that each of the victims of the Claremont murders were driven from the area where they were abducted.[108]

[80]

The reasons given as to the admissibility of the Huntingdale offences evidence are equally applicable in considering whether the Karrakatta offences evidence is admissible in respect of counts 1 and 2. In my view, there are underlying and sufficient similarities between the conduct in respect of both groups of offences such that if the Karrakatta offences are proven against the accused they would support, to a significant extent, when viewed in the context of other evidence, the likelihood that the accused was also the assailant in respect of counts 1 and 2. The tendency that is capable of being established by the Karrakatta offences has significant probative value in respect of the determination of the identity of the offender in respect of the Huntingdale offences.
In regard to the Claremont murders, the defence accepts that the evidence in respect of counts 3 to 5 and counts 6 to 8 is crossadmissible. That is, that evidence that proves the identity of the offender in respect of either group of offences is significantly probative in determining the identity of the other group bearing in mind the significant similarities between both groups of offences. In my view, that concession is clearly correct. Whilst proof that the accused committed either group of offences would not necessarily, or without more, prove that he committed the other group of offences, it is evidence which is significantly probative in the resolution of that question.
As to the fairminded person test, I am satisfied that that test is met. Any possible prejudice will be obviated by the fact that this is to be a trial by judge alone in which appropriate directions will be referred to and detailed written reasons will be provided.
For these reasons, I am satisfied that the Karrakatta offences evidence is admissible as propensity evidence in respect of counts 1 and 2 and also counts 6 to 8. As regards the alternative advanced by the State, that is that the evidence is also admissible as relationship evidence, I do not accept that submission. The suggested relationship is so broadly stated that it could not have any significant probative value in relation to the resolution of the issues.

[83]

A large quantity of pornographic images (144,771), of which 8% (being 13,307 images) are alleged to involve 'BDSM,[116] female degradation or the insertion of foreign objects'.
As to the three inactive devices, those devices also contained pornographic material, but the State alleges that all of the material in the BDSM category on these devices was in unallocated clusters in the memory.[117] This includes a movie with the title 'Forced Entry'. Where a user seeks to delete files, the file becomes an unallocated cluster and is not readily accessible, but the data remains in the memory until it is overwritten by another file. The State submits that an inference can be drawn that when a device was replaced by the accused, he attempted to delete all of the BDSM material from the device in order to prevent that material being located by other people.[118]
The State alleges that there are occasions when the majority of the websites added to the URL list were of a BDSM nature. This is said to support an inference that, on those occasions, he was preoccupied with this particular type of pornographic material.[119]
The State placed particular reliance on two items, the video with the title 'Forced Entry' and one of the stories referred to as 'the Chloe story'. There is no clear evidence as to when the video was downloaded or when the story was first created. It is not suggested that the video was created by the accused. It appears to be a commercially produced pornographic movie in which actors perform sex acts in scenes which depict the rape and torture of young women.[120] It was apparently made in 2014, but there is no evidence as to when or how it became available or how widely it was available.
The Chloe story is a story told from the perspective of a male protagonist who stalks a matureaged barmaid and then abducts her from the carpark of her home. He then takes the woman to his house where he ties her to a bed with the intention of raping her. The abduction is planned and described in detail, including disabling of security cameras and the use of handcuffs and a cloth to render the victim unconscious. The protagonist takes the victim to a preprepared area in the basement of his house. He threatens the victim in order to dissuade her from resisting.[121]
For the purposes of the directions hearing, the State provided me with the copies of the violent erotic stories and a USB containing the video 'Forced Entry' and a large number of images from the part of the pornography identified as being of a BDSM quality. The State said it was necessary for me to read the stories and view the video and images in order to properly appreciate the State's submissions as to relevance. I did read and view them for that purpose.

[84]

The State initially submitted in its application and written submissions that the pornography evidence was admissible as propensity and relationship evidence. It was said that this evidence showed that the accused had a sexual interest in extreme BDSM pornography, the abduction of women for sexual reasons, the violent rape of women, the infliction of pain on women and the sexual degradation of women. It was also said to be relationship evidence in that it was evidence of the accused's attitude towards women.[122]
At the directions hearing, any reliance on s 31A of the Evidence Act was abandoned.[123] That is, the State did not maintain that the pornography evidence was admissible either as propensity or relationship evidence. Rather, the State submitted that this evidence was admissible at common law on the ground that it was relevant to the offences.
When asked to identify the fact in issue to which this evidence was said to be relevant, the State said that it was relevant to the issue of identity, that is, to the question of whether it was the accused who committed each of the offences alleged.[124] The State said that the large number of items and their nature was highly unusual and possession of them was capable of being viewed as a feature or characteristic that identified the accused as the offender in each count.[125]
In particular, the State submitted that the Chloe story is admissible as evidence relevant to the identity of the offender in counts 3 to 5. The State accepted that, to be admissible on this basis, the court would need to be satisfied that the accused wrote the story or, at least, contributed to it the features which are said to be strikingly similar to the facts of counts 3 to 5.[126] Those features are said to be that the female victim in the story is attacked, restrained and abducted for the purpose of raping her. The State relies on two details that are said to be unusual, that the perpetrator in the story uses ropes with preprepared knots and that he drags the victim backwards to keep her offbalance and prevent her from kicking him (which is said to reflect the Hollywood Hospital offence).[127]
The State submits that the Chloe story is 'so extraordinarily similar' to the manner in which the complainant in the Karrakatta offences was attacked that it is 'objectively improbable that they were the work of two different people'[128] In essence, the State says that the story includes personal details and is autobiographical in nature.[129]
In regard to the whole of the pornographic material, the State says that an active interest in such material must 'be relatively unusual' and for the interest to be of 'such magnitude' must be 'even rarer'. It is said that it is selfevident that the perpetrator of counts 1 to 8 would have an interest in nonconsensual sexual violence perpetrated upon women. Evidence that the accused possessed and 'dealt with' pornographic material that is of this nature is said to be capable of supporting an inference that the accused is the assailant in respect of each of counts 1 to 8.[130] This is because it is relevant to the issue of identity, not as evidence of a tendency or propensity.[131] It is said that this evidence is capable of supporting and corroborating other evidence relevant to identity.[132]
The State submits that whilst it is not possible to quantify the percentage of the population who possess the same 'obsessive interest' in this particular type of pornography, it is reasonable to conclude 'from common sense and life experience' that the proportion would be quite small. This is said to make the evidence significant in supporting identification of the accused as the offender in all counts. It is said to be a piece of circumstantial evidence which, in conjunction with other evidence, is capable of establishing identity.[133] It is submitted that it cannot be coincidental that a man who is forensically linked to a number of the alleged offences is found to be in possession of pornography of this nature.[134]

[85]

The defence notes that the video 'Forced Entry' was only found in an unallocated cluster on a superseded device and was a commercially produced film that did not depict actual violence or rape. The defence also submitted that the items identified as having a BDSM character only represented a small part of a much larger collection of pornographic material of various types and to point to this material in isolation wrongly suggested that the accused had a particular interest in violent pornography over and above an interest in other types of pornography.[135]
The defence points out that there is no evidence that the accused had an interest in pornography at the time of any of the offences. Further, the defence says that given the large quantity of material found, it is to be expected that some of it would bear features common to the offences and the coincidence of that had no significance.[136]
The defence submitted that none of the material related directly to any of the offences committed and that, accordingly, it was not relevant to the question of identity. This is evidence that was said to be highly prejudicial but that the probative value was 'so slight as to be nonexistent'.[137] As to the violent erotic stories, the defence say that the common themes of the stories are the overcoming of resistance and recording of the conduct for later use. In some stories, there is an element of taking advantage of a woman who is unconscious because of alcohol, or who has been deliberately drugged. In another story, compliance is obtained by blackmail. The Chloe story does not have those features, rather it involves kidnapping and then holding the victim in a preprepared place for an extended period. That is said to bear no resemblance to the Karrakatta offences.[138]
In supplementary written submissions, the defence identified other aspects of this evidence that were said to be pertinent. In particular:
1. That some versions of the story.txt document only exist as deleted documents and this is consistent with an inference that the accused did not want to keep those versions;[139]
2. That the Chloe story only exists on one of the three superseded devices. There are three copies of the story on that device and all copies are in the same form. It has not, therefore, been changed or added to;[140]
3. The same is true of some other stories identified by the State in its written submissions;[141]
4. The only evidence of access to the Chloe story is on 29 August 2015;[142]
5. The deleted zip files containing each of the copies of the Chloe story also contain images, but none of those images fall into the BDSM or female degradation categories;[143]
6. That activity on the sites.txt document does support the contention that, from time to time, the accused preferentially sought out more extreme material. However, the evidence of downloaded material does not support any contention that he selectively kept any such material, bearing in mind that it represents only 8.42% of the total images on the active device;[144]
7. Within the zip files, no distinction is made between the images that fall into the category identified by the State and other images. The images are not organised or described;[145] and
8. That some of the material relied on by the prosecution cannot properly be described as 'extreme'.[146]
The defence submit that whilst an inference is open that the accused had an interest in obtaining and keeping pornographic material, the evidence does not support an inference that that interest exclusively, or even predominantly, related to extreme material. It cannot be shown that the accused had a preference for extreme material over pornography generally.[147]
The defence submits that what is readily apparent from the sites.txt document is that there are a great many places on the internet where material of the type identified by the State can be found. How many such sites exist apart from those listed on the documents is impossible to know. It is quite impossible to know how rare such material, or an interest in it, is.[148]
The evidence does not support any inference that an interest in pornography is longstanding. Indeed, the defence say, that interest appears to be of recent origin and to have increased in the 12 months immediately preceding the arrest of the accused.[149]
The defence submit that if propensity reasoning does not justify the admission of the evidence, then coincidence reasoning cannot logically either, because both rely on a degree of specificity of correspondence between the evidence and the facts in issue that is simply absent in this case.[150]
The defence say that the fact that between 19 and 28 years after the offences, the accused possessed a large quantity of pornography is not logically capable of making it more likely that he is the offender. This is so even if some of that material has common features with some of the offences.[151]
The defence submit that the evidence has no probative value at all. Further, the prejudicial effect of it cannot be ignored simply because this will be a trial by judge alone. The volume and nature of some of the material would naturally evoke feelings of prejudice. This would be exacerbated by minute examination at trial of specific features of the material.[152]

[88]

Evidence that goes only to the existence of a propensity or tendency can only be admissible either as similar fact evidence at common law or pursuant to s 31A. As the State does not rely on either of those bases for admission, the evidence is only admissible if it relates directly to some fact in issue.[155] If it does no more than prove some inclination or tendency it will not, given the concession by the State, be admissible.
The fact in issue that has been identified is the issue of identity, that is, was it the accused who committed each of the offences. Does the possession or creation of any of the items of pornography identify the accused, or assist in identifying him, as the perpetrator of any of the offences?
One way in which the pornography might assist in the identification issue is if it had some factual connection to any of the offences. But that is not the case here. It is not suggested that any of the pornography depicts any of the victims. It is not suggested that the accused created any of the pornographic images or the video Forced Entry. None of the offences involved any reference to pornography or identifiable actingout of images from pornography. The only direct connection is said to be in regard to features present in the Chloe story. These are said to be so unusual as to be autobiographical in character.
The Chloe story does include a number of features that are common to the offences, in particular the Karrakatta offences. However, the story is different in many other important respects. The differences include the age of the victim (40 in the story) and the circumstances in which she is abducted (from the carpark of her home). It is also relevant to take into account that this is but one of many stories depicting a range of different scenarios. The significance of similarities in one such story is diminished by the range of scenarios that are depicted in all of them together. The possibility of innocent coincidental similarities cannot be discounted. In my view, no reasonable reading of the Chloe story could view it as being a record or depiction of any of the alleged offences. It contains no striking, unique or telling details that only the perpetrator would know. If, as alleged, it is autobiographical, it is curious that it has so many details that are unlike the Karrakatta offences. There would be no obvious reason to change details if the accused was seeking to hide these stories from others. This tends to heighten the significance of those differences.
There are important distinctions between the Chloe story and the propensity evidence referred to earlier in these reasons. Unlike the propensity evidence which related to acts of violence, the story is, on its face, a work of fiction that shows only an interest in the subject of violent sexual offending. The capacity of an interest to serve as an identifying characteristic is clearly less than actions.[156] Not every person with such an interest will act upon it and even the possibility of doing so may be largely speculative. Although the State does not rely on tendency reasoning, it is implicit in their argument that possession of this material is an identifying feature because there is said to be some high degree of correlation between such an interest and violent sexual offending of the type alleged here. But the evidence here falls far short of establishing any such correlation.
The State submits that the quantity, nature and organisation of the pornography establishes that the accused had an unusual and obsessive interest that, whilst not necessarily unique, is a feature that is capable of identifying him as the perpetrator of the alleged offences. There are several flaws in this argument:
1. The possession of the pornographic videos and images and the creation of the list of sites and stories cannot be firmly established in time, except for the 12 months between December 2015 and December 2016 that the active device was used. Whilst it may be supposed that the activity of collecting and creating occurred over a period of years, it cannot be shown that any of that activity coincided with the commission of the offences, or was even close in time to those events.
2. As I have earlier noted, an identifying feature that relates to an interest or behaviour rather than an action or physical feature is less likely to have any relevance. Unlike a physical feature, such as hair colour, this feature cannot be directly linked to the perpetrator. The State argument involves a twostage process: that violent sexual behaviour can be evidence of a particular attitude that is distinctive and that the same attitude can be inferred from the possession of pornography of a particular type. But an attitude or interest may be difficult to precisely define and even more difficult to compare to behaviour that is qualitatively different. I do not accept that it can be assumed that the perpetrator of any of the offences was necessarily likely to have an interest in violent pornography, nor that a person who had such an interest is more likely to have committed these offences.
3. The submissions that the interest here is unusual or rare due to the size, nature and organisation of the collection is based on assertion, not evidence. The experience of the courts is that some people have very large collections of such material and that computer technology and the internet makes obtaining such collections comparatively easy. To be capable of being a distinguishing feature, this interest must be shown to be both shared with the offender and capable of discriminating between individuals to some reasonable extent. It is not apparent that this evidence does either of these things.
4. The particular type of pornography that the State relies on, that is, BDSM or violent pornography, represents a relatively small proportion of the total collection. Furthermore, much of the material said to be relevant was deleted and not accessible by the accused at the time of the search. It cannot be maintained that the accused had a particular or exclusive interest in such pornography, such as to make it an identifying characteristic.
As I noted during the directions hearing, despite the fact that the State foreswore reliance on s 31A, the argument put for the admissibility of the pornography evidence as a whole seemed in some respects to be a propensity argument in all but name.[157] The submission that it can be no coincidence that a person forensically linked to violent attacks upon women is, much later, found in possession of pornography that is of a similar nature, seems to imply that the accused has an inclination or tendency to have an interest in that subject that makes it more likely that he was the offender. If it was propensity evidence, it would have to meet the significant probative value test, a test which the State did not attempt to meet (because of the way it pitched its argument). In any event, in my view, it could not possibly meet that test. However, it is necessary to deal with the State's argument that the evidence is admissible at common law as being relevant to the issue of identity.
The pornography evidence does not meet the test of relevance. It is not evidence which could rationally affect the question of whether the accused is the offender in respect of any of the counts in the indictment. For those reasons that evidence is not admissible. No question of excluding the evidence in the exercise of discretion because its probative value is outweighed by its prejudicial effect arises. However, consistently with what I have said, in my view, this evidence has no probative value and its only effect would be to prejudice a fair trial of the accused.

[89]

The accused seeks a separate trial on counts 1 and 2 (the Huntingdale offences). The defence accepts that each of the charges of wilful murder is properly joined with each of the others and that the evidence relating to them is crossadmissible.[158] The defence also accepts that the Karrakatta offences are properly joined with the Claremont murder offences and that the evidence relating to the Karrakatta offences and the Claremont murder offences is crossadmissible.[159] However, the defence submits that counts 1 and 2 are not properly joined with the other counts because they do not satisfy the statutory requirements for joinder.[160]
The basis for the joinder of counts 1 and 2 with the other counts is that they are said to form or are part of a series of offences of the same or a similar character.[161] The defence accepts that counts 3 to 8 are a series of offences of the same or similar character because the four incidents from which those charges arise can all be said to involve attacks on young women that began or likely began in a relatively small geographic area within a period of a little over two years between the hours of midnight and 3.00 am. All four victims in respect of counts 3 to 8 were likely alone when they first encountered the person or persons who offended against them. That encounter also likely occurred when they were walking or waiting by the side of a road.[162] In contrast, the Huntingdale offences occurred at least seven years earlier in a different geographic area and involved an attack upon a young woman who was at home with other members of her family and asleep in her bedroom.[163]
The defence submits that whilst the offences may be similar in character, their factual settings are disparate and there is no sufficient correlation between them to enable the offences to be described as a series without straining the word beyond a meaning which it is reasonably capable of bearing when the time, place and other circumstances of the offences as well as their legal character or category are taken into account. There is said to be no sufficient connection between counts 1 and 2 and the other offences to justify them being joined in the same indictment.[164]

[113]

In the present case, whilst there is some evidence that is admissible only in respect of counts 1 and 2 and other evidence that is only admissible in respect of other counts in the indictment, there is nonetheless a body of evidence that is admissible in respect of all of the counts. The evidence admissible in respect of each count is readily identifiable and any risk of prejudice is minimised by the fact that this is a trial by judge alone and the evidence relevant to each count would be referred to, dealt with separately and the discipline of preparing reasons for decision would ensure that this occurred. The risk that the trial judge will be improperly influenced by evidence that is not relevant to a particular count is negligible.
The conclusions in regard to the admissibility of the propensity evidence lead to a conclusion that the defence application for a separate trial of counts 1 and 2 must be refused. At the hearing, some submissions were directed to the question of whether a joint trial could still properly occur if the State's propensity evidence application failed.[175] The authorities recognise that crossadmissibility is a sufficient basis for joinder, but not a necessary one. The test for whether offences form part of a series of offences of the same or similar character is not identical to the test for whether evidence on different counts is crossadmissible on a propensity basis. There may be cases where though evidence is not crossadmissible the alleged offences can nonetheless be said to form a series of offences of a similar type. One way in which this may arise is if evidence in respect of one count establishes a tendency which is relevant in respect of another count but does not meet the test of significant probative value. The meeting of the relevance test may provide a sufficient nexus between the offences even though the evidence is not admissible as propensity evidence because it does not have the requisite high level of probative value. In this regard, I note that counsel for the accused accepted that it may be open to conclude that the evidence in respect of counts 1 and 2 proves a tendency which is relevant to proof of the other counts though he disputed that it had significant probative value.[176]
In my view, there is a sufficient nexus between counts 1 and 2 and the other counts even if the propensity evidence that I have referred to is inadmissible. There is a sufficient connection between those counts and the other counts given the underlying similarity of the conduct notwithstanding the differences as to place and time and some of the circumstances. The real concern that would usually arise in the class of cases to which I refer, that is, where the offences form part of a series but the evidence is not crossadmissible, is that there would be a significant risk of prejudice. That, however, is not a question that relates to joinder but to whether the discretion under s 133 should be exercised. For the reasons I referred to earlier, even if the evidence was not crossadmissible, that risk of prejudice would be low in the context of a trial by judge alone. Thus, even if I had come to a different conclusion in relation to the admissibility of the propensity evidence, I would nonetheless have dismissed the defence application for a separate trial of counts 1 and 2.
Submissions at the hearing also addressed the question of whether in order to be properly joined each count must properly form part of a series with every other count on the indictment. It is said it would not be sufficient if counts 1 to 5 formed a series and that, separately, counts 3 to 8 formed a different series.[177] This was an issue referred to by Steytler P in Zammit. His Honour there expressed the view that the use of the word 'series' indicated that all offences must form part of a single series.[178] Though those comments were not material to the outcome of the decision in Zammit, I accept their correctness. Nonetheless, I am satisfied that all of the charges form part of a single series connected in the way that I have referred to earlier in these reasons.

THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [2019] WASC 87 (20 March 2019)

At a glance

Court

Decision date

Before

Source

Judgment (189 paragraphs)

The State application to lead propensity evidence

Admissibility of the Huntingdale prowler evidence

Admissibility of the Huntingdale offences evidence

Admissibility of the Hollywood Hospital evidence

Admissibility of the Telstra Living Witness Project evidence

Admissibility of the Karrakatta offences evidence

Relevant principles the discretion to order separate trials

Legislation Cited (2)

Cases Cited (11)