Relevance: Western Australia v Glasfurd [No 7] [2023] WASC 49

Having just taught relevance to my current cohort of Evidence students, McGrath J’s decision in Glasfurd [No 7] stuck out to me as a straightforward application of relevance principles and the importance of temporal proximity in cases involving driving.

Relevantly, the State’s case in Glasfurd was that ‘at 6.30 [pm*] on 20 August 2021 the accused drove his vehicle at high speed, whilst intoxicated and in a reckless manner, causing a collision on Pier Street that resulted in the death of one pedestrian and injuring four other pedestrians’ (at [2]). The State proposed to bring evidence from five witnesses who each independently observed a black Range Rover (matching Glasfurd’s vehicle) driving dangerously between 6.30am and 9.30am that day. Some witnesses also identified features of the driver.

The State did not seek to characterise the witness accounts as propensity evidence pursuant to Evidence Act 1906 (WA) s 31A, instead arguing that the accounts were admissible as relevant circumstantial evidence which made it more likely that Glasfurd was driving dangerously at the time of the collision later in the day.

Ultimately, McGrath J found that each of the accounts were inadmissible on the basis of relevance as there was ‘insufficient temporal proximity between the alleged sighting of the accused allegedly driving his vehicle on the morning of the vehicle incident by each of the respective five witnesses and the time of the incident on Pier Street’ (at [22]).

Justice McGrath noted (at [23]): ‘If the driving formed part of a continuous driving episode, or was undertaken immediately prior to the vehicle incident, then the evidence has a basis of admissibility as relevant to a fact in issue, that is, the nature of the accused’s driving at the time of the incident. The accused’s driving in the years, months, weeks, day or on the day at another time is not relevant to a fact in issue, unless on the day the driving forms part of a continuous journey or is immediately before the vehicle incident. Therefore, I find the evidence the subject of the objection is inadmissible.’

Jamie Eric Glasfurd ultimately admitted guilt before the second day of his trial for Manslaughter. Prior to the trial, there were also several other pretrial decisions on admissibility of evidence. See Western Australia v Glasfurd [2022] WASC 403 relating to expert evidence and potentially prejudicial CCTV footage and images from the scene; Western Australia v Glasfurd [No 2] [2022] WASC 404 concerning the admissibility of a statement by a now deceased prosecution witness; Western Australia v Glasfurd [No 3] [2022] WASC 411 relating to the admissibility of an unrecorded admission; Western Australia v Glasfurd [No 4] [2022] WASC 443 and Western Australia v Glasfurd [No 6] [2023] WASC 26 both relating to propensity evidence; and, though technically not evidence under the Common Law, Western Australia v Glasfurd [No 5] [2023] WASC 25 in which McGrath J declined to exercise discretion to allow a view.

You can access Western Australia v Glasfurd [No 7] [2023] WASC 49, which was delivered on 10 February 2023, here.

* At the time of making this post, paragraph [2] apparently contains a typographical error, noting the time as 6:30am. Reference to the related judgments confirms that the relevant time of the Pier Street collision was actually 6:30pm, not 6:30am. This is material to note in a case where temporal proximity to the time of the collision is a key issue. I have corrected the time to read 6:30pm in my extract above.

Prior inconsistent statement: CND v Western Australia [No 2] [2022] WASCA 159

Brief summary:

In this case the Court of Appeal set aside CND’s conviction for sexual penetration without consent and ordered a retrial after fresh evidence emerged from a witness (KM) that the complainant had told her in a telephone call that the complainant ‘just decided to tell people that it was rape, that she made it up’.

In giving evidence on the appeal, the complainant rejected any suggestion that she admitted to lying about the allegations. As such, KM’s evidence as to what the complainant said to her would be admissible at trial as a prior inconsistent statement (under Evidence Act  1906 (WA) s 21). As a prior inconsistent statement, this would be relevant only to the complainant’s credibility (at [134]–[135]).

In many cases, it might be difficult to establish that a miscarriage of justice occurred where admissible evidence which goes only to credibility could not be adduced at trial. However, in this case the sole issue was the complainant’s lack of consent and in this regard the complainant’s credibility when giving evidence about her lack of consent was central.

The Court of Appeal found that if accepted, KM’s evidence had the potential to materially affect assessment of the complainant’s credibility, and thus, could cause the fact-finder to have doubt about whether the complainant’s evidence as to a lack of consent should be accepted (at [145]). Accordingly, a miscarriage of justice was established, the appeal was allowed, the conviction was set aside and a retrial before a different judge was ordered.

The judgment:

The judgment was delivered late last year. The judgment can be accessed here.

Updates, Future posts, and the Uniform Evidence Law

Updates have been less frequent than usual on this blog over the past 6–7 months. Those who know me will know that one reason for this is that I teach my Evidence Law unit at the University of Western Australia in semester 1 each year, so Evidence isn’t on my radar quite as much in the second half of the year (when I teach about health and medical law). Another reason is that, very sadly, I unfortunately lost a parent in December 2022 (after a very, very tough year).

As a result, there’s a bit of catching up to do! As noted in the ‘About’ section of this site, this blog only focuses on particular points and judgments of interest – it is not intended to be comprehensive and does not claim to provide updates on every important or interesting decision. Still, there have been a number of interesting recent decisions which I intend to cover over the coming months as I’m thinking about Evidence again.

Some subscribers might be interested to know that in light of the Law Reform Commission’s report last year and public statements from the Attorney General about Uniform Law being drafted for WA, my colleague Associate Professor Stella Tarrant and I have started to teach the Uniform Evidence Law (instead of the Common Law of Evidence) at UWA. We are not the first Western Australian law school to do so, and many Law Schools over east (including Melbourne Law School) transitioned to teaching the Uniform Law years before it was adopted in their jurisdictions.

Despite moving to teach the Uniform Law in my course, I will continue to post about Common Law developments here for the time being (until we hear more)! It does feel like we’ve been anticipating a move to the Uniform Law for decades now, but this time it really feels like the wheels are in motion.

All the best,