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.
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Evidence Law in Western Australia 