Preston v WA

(2012) 220 A Crim R 347; [2012] WASCA 64

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Admissibility
5. › Prior drug conviction
6. › Temporal remoteness of prior offending
7. › Whether 10-year-old conviction had significant probative value
8. › Whether risk of unfair trial neutralised by judicial direction
9. › Evidence Act 1906 (WA), s 31A
1. Evidence
2. › Propensity evidence
3. › Significant probative value
4. › Striking similarity between prior and charged conduct
5. › Relevance to rebutting defence of innocent association
6. › Evidence Act 1906 (WA), s 31A(2)(a), (b)

Quick Take

A 10-year gap between prior offending and the charged offence does not necessarily deprive propensity evidence of significant probative value under s 31A of the Evidence Act 1906 (WA), particularly where there is a striking degree of similarity between the prior and charged conduct. Closeness in time is a factor but each case must be decided on its own facts. Pullin JA's statement in Atherton about temporal proximity was made in the factual context of that case and was not a general statement that propensity evidence is only admissible if close in time.