Admission of Tendency Evidence in Murder Trial

In a murder case, the court admitted evidence of a previous violent incident as tendency evidence under section 97 of the Evidence Act 1995 (NSW), finding it had significant probative value.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No 1) [2021] NSWSC 204 Hearing dates: 8-9 March 2021 Date of orders: 10 March 2021 Decision date: 10 March 2021 Jurisdiction: Common Law Before: Wright J Decision: Evidence admitted in part Catchwords: EVIDENCE – Tendency evidence - [NAME] charged with murder – Defence of self-defence or defence of another – Where counsel for [NAME] sought to adduce evidence of previous instance of violence on the part of [NAME] as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Evidence admitted in part Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 [NAME] v The Queen (2016) 257 CLR 300; [2016] HCA 14 [NAME] v The Queen [2018] HCA 52; 92 ALJR 104 R v [NAME] (No 5) [2021] NSWSC 52 R v [NAME] (No 3) [2017] NSWSC 1680 Category: Procedural rulings Parties: Regina (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2018/247460

Judgment 1. [NAME], has pleaded not guilty to the murder of [NAME] ([NAME]). There is, however, no issue that it was [NAME] who inflicted the fatal blows on [NAME] with a knife.

2. As I understand [NAME]'s case, [NAME] was known to [NAME] and his former partner and had been drinking at a hotel, where he was contacted by [NAME] and [NAME]'s former partner by telephone. As a result of that contact, [NAME] thought that [NAME]'s former partner, whom he knew as a friend, was being bashed. [NAME]'s contention is that [NAME], in an angry state, went to the house where [NAME] was, which was near the hotel, and that the stabbing occurred as part of an altercation initiated by [NAME] by punching [NAME]. While attempting to defend himself at that time, [NAME] says that he armed himself with a knife and the stabbing occurred when [NAME] continued to swing at [NAME] and [NAME] was simply jabbing the knife out to try and keep [NAME] back.

3. By a tendency notice dated 8 March 2021, [NAME] seeks to adduce evidence of a previous incident involving [NAME] on the basis that such evidence demonstrates a tendency on the part of [NAME] to be violent when he had been drinking, to throw punches without warning and then to continue to punch.

4. The tendency notice specifically identified the relevant tendency on the part of [NAME] and the substance of the evidence in the following terms: "The tendencies that [NAME] seeks to adduce evidence of, prove, and rely upon, are that [[NAME]] had a tendency a. To be physically violent when drinking b. After consuming alcohol, to confront a person by physical approach c. To use his fists in a confrontation to assault the person d. To throw punches at a victim's face without warning. e. To throw more than one punch. Pursuant to clause 5(2)(b), Evidence Regulation 2020, the evidence proposed to be adduced is from [NAME] (the office r in charge) as particularised in the criminal record of [[NAME]], Facts sheet under H 62616784, COPS entry E58967275 (attached), namely: (1) At about 7pm on 17 September 2015 [[NAME]] confronted [NAME] at the [COMPANY] St Claire(hereinafter 'the victim'). [The defendant] approached the victim in the car park after the victim left the public bar and punched him to the face. The victim stumbled backwards and [the defendant] punched the victim a second time to the face."

1. The criminal record of [NAME] attached to the notice took the form of a "Criminal History – Bail Report". This report contained in large measure information not relating to the incident on 17 September 2015. The information relating to that incident was three entries, all for 30 January 2016, recording that in respect of a charge of robbery: [NAME] was committed for trial; "bench warrant to issue: warrant revoked"; and "community service order: 500 hours cumulative …".

2. The facts sheet in relation to H 62616784 contained information that went beyond the tendency evidence sought to be adduced (as described in par (1) of the tendency notice). The information that was covered by par (1) was: "On 17th September 2015 the [[NAME]] was at the [COMPANY] on [ADDRESS], St Clair drinking with a group of friends. About 6:45pm on Thursday, 17th September 2015 the victim [redaction] attended the [COMPANY]. The victim parked his vehicle in the car park adjacent to the accommodation entrance. The victim entered the hotel through the door near the barber shop which is located next to the accommodation entrance. Shortly after the victim was walking back to his vehicle. The [[NAME]] got up from his table in the beer garden and approach the victim outside the door on the western side of the Hotel. The [[NAME]] said to the victim 'Where you fucking been?' and referred to an altercation that had occurred a few months prior. The victim replied something to the effect of 'don't worry about it' the [[NAME]] became aggressive and punched the victim once with a closed fist to his mouth. The victim stumbles slightly be for [NAME] punched the victim a second time to his forehead causing the victim to fall to his knees. The victim stood back up. …."

1. The COPS entry in respect of the incident also includes a substantial amount of material that went beyond describing the incident but the relevant material was as follows: "About 7.00pm on Thursday, 17th September 2015 the victim [NAME] attended the [COMPANY] on [ADDRESS] Clair to have a drink with a friend. … When he had finished the victim told his friend 'I'm off' in Exeter the hotel through the same door he had entered. The victim was walking to his vehicle [XXX] a green Hyundai Sonata when he was approached by [NAME] he knows as '[NAME]'. [NAME] said to the victim 'Where you fucking been?' and referred to a prior altercation that had occurred a few months prior. The victim replied something to the effect of 'What are you talking about, it was nothing'. [NAME] became aggressive and punched the victim once with a closed fist to his mouth. The victim stumbled slightly before [NAME] punched the victim a second time to his forehead causing the victim to fall to his knees. The victim stood back up …".

1. The COPS entry identified [NAME] as [NAME] and his level of intoxication was recorded as "slightly affected". It also indicated that the incident had not been captured on CCTV and that there were currently no witnesses to the incident who were known to police. It was also recorded in the COPS entry as follows: "it should be noted that although the victim has provided a statement to police he has not been forthcoming with information relating to prior involvement with [NAME] and states he only met him through a friend. In addition he has not been forthcoming with what conversation took place prior to the assault or what the altercation from a few months earlier related to." 1. [NAME] of counsel who appears for [NAME] informed the Court that he did not rely on any of the material in the documents attached to the tendency notice beyond that which went to the incident in question. As I understood it, this was the material that I have identified in the preceding paragraphs and it can be referred to as the "tendency evidence" for the purposes of these reasons.

2. The Crown tendered five statements from witnesses intended to be called in the trial as well as a transcript of the ERISP given by [NAME]. This material demonstrated that there was substantial evidence of the peaceable and non-violent nature of [NAME] which was inconsistent with [NAME] having a tendency to violence.

Section 97 1. The admission of tendency evidence is governed by s 97 of the Evidence Act 1995 (NSW) which relevantly provides: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless— (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) …".

1. The Crown did not rely on any failure to comply with s 97(1)(a). Nonetheless, it can be noted here that the Crown reserved its rights to object to the admission of any of the evidence on any bases other than s 97.

2.

Accordingly, the only issue for determination on this application is whether the Court was satisfied of the matters in s 97(1)(b).

Submissions 1. [NAME] submitted that, in the circumstances, a jury might form the view that it was improbable that [NAME] would, on arriving at the home of [NAME]'s ex-partner, immediately launch an assault on [NAME], as [NAME] contended. It was also contended that this issue could not be addressed by cross-examining [NAME]. Further, it was noted that there was evidence as to the gentle and non-violent nature of [NAME].

2. It was then submitted that evidence of the incident on 17 September 2015 demonstrated a tendency by [NAME] to use violence to resolve conflicts in circumstances that bore similarities to the present case including: 1. [NAME] had been drinking at the [COMPANY]; 2. he assaulted a person without warning; 3. he did so by punching the victim in the face; and 4. he continued the assault, notwithstanding that the victim posed no threat and did not respond. 1. [NAME] contended that the tendency evidence was relied upon to rebut the assumption that it was unlikely that [NAME] would immediately resort to violence on his arrival at the house.

2. Having regard to those matters and also to the fact that the evidentiary onus effectively on [NAME] only required him to raise a reasonable doubt as to the truth of the Crown case, it was submitted that the Court should find that the tendency evidence had significant probative value for the purposes of s 97(1)(b). Thus, it was said that the tendency evidence should be found to be admissible.

3. The Crown submitted that there were two questions that arose for consideration: 1. whether the evidence sought to be adduced established a tendency; and 2. whether the tendency evidence has significant probative value in relation to a fact in issue.

1. The Crown contended that the tendency evidence amounted to no more than a single incident of violence, which occurred three years prior to [NAME]'s death in 2018, where the violence was directed at another victim and where the circumstances of the violence were entirely different, in so far as those circumstances were known at all. It was also submitted that this tendency evidence should be considered in the light of other evidence that there was no violent tendency.

In all the circumstances, it was said that the tendency evidence did not actually establish any tendency.

2. It was also submitted that in essence the tendency relied upon was at a high level of generality and it was not sufficiently similar or sufficiently connected with the fact in issue, with the result that the tendency evidence did not cross the threshold of being of significant probative value. In this respect the Crown referred to the High Court's decisions in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) and [NAME] v The Queen [2018] HCA 52; 92 ALJR 104 ([NAME]).

Consideration 1. On the present application, the only issue is whether the Court thinks that the tendency evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have "significant probative value".

2. The expression "probative value" is defined in the Dictionary to the Evidence Act as meaning: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

1. In this context, the term "significant" means "important" or "of consequence": [NAME] v The Queen (2016) 257 CLR 300; [2016] HCA 14 ([NAME]) at [103].

2. The significance of the probative value of the evidence depends on the nature of the facts in issue to which the evidence is relevant and the significance or importance which the evidence may have in establishing those facts. To be admissible as tendency evidence, the evidence must thus "be influential in the context of fact-finding", in this case, in relation to the case advanced by [NAME]: [NAME] at [46].

3. For the purpose of the assessment under s 97(1)(b), it must be assumed that the jury will accept the evidence: [NAME] at [49], and, the evidence is to be considered together with the other evidence to be adduced: Hughes at [61].

4. In Hughes, [NAME], Bell, Keane and Edelman JJ held at [64]: "The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged [that being the relevant fact in issue in that case]. …"

1. Thus, if it is accepted that the evidence has significant probative value in establishing the tendency relied upon, the question is ultimately, in this case, whether the tendency evidence makes more likely the defence [NAME] is advancing, on a comparison between the tendency and the relevant fact or facts in issue.

2. As [NAME] explained in R v [NAME] (No 3) [2017] NSWSC 1680 at [10], evidence that a person had a particular tendency is adduced to provide the foundation for an inference that the person was more likely to act in a particular way, or have a relevant state of mind, on a particular occasion. Thus, the tendency evidence must be understood to be a stepping [NAME], the inference being that because of the tendency, it is more likely that the person acted, or had the state of mind asserted by the tendering party, on the occasion in question.

3. As I understood it, the relevant fact in issue for the purposes of this application was, in substance, whether [NAME], having consumed some alcohol at the hotel, initiated the altercation with [NAME] by engaging in sudden and unlawful violence by throwing a punch to the head of [NAME] and continuing to attack him with punches after [NAME] only defended himself although armed with a knife.

4. There are a number of factors which may, in a given case, be relevant to assessing the probative value of proposed tendency evidence. A number of these factors were helpfully identified by Bellew J in R v [NAME] (No 5) [2021] NSWSC 52 at [16], including: 1. the issue to which the evidence is relevant; 2. the number of occasions of particular conduct that are relied upon; 3. the time lapse between each occasion; 4. any geographic connection between the alleged conduct; and 5. the degree of specificity of the conduct or alleged tendency.

1. His Honour continued in that paragraph: "That said, a close similarity between the incidents is not essential for the evidence to be admitted as tendency evidence. Moreover, a single instance of conduct may, in a given set of circumstances, have sufficient probative value to come within the terms of s 97 of the Act. That said, I recognise that in a case where limited instances of conduct are relied upon as tendency evidence, considerable care must be taken before the evidence is admitted. …" (footnotes omitted)

1. As to the first question of whether the tendency evidence actually has any strength in establishing the tendency for which the applicant contends, I accept that it involves only a single instance of conduct by [NAME] and I should take considerable care in finding that it does establish a relevant tendency. Further, I note that the incident occurred three years before the events the subject of the present trial. Notwithstanding this, the evidence, on the assumption that it is accepted by the jury, could support the finding that when he had been drinking at the hotel [NAME] had a tendency to engage in unprovoked violence by attacking a victim, with whom [NAME] perceives he has an issue, by punching the victim in the head and continuing to punch the victim even when there was no aggressive response. While the evidence is far from overwhelming in establishing the tendency propounded by [NAME], I am of the view that it has just sufficient strength so as to fall within the description of evidence that has significant probative value in establishing the tendency identified by [NAME].

2. As to the second question, the tendency relied upon by [NAME] was not just a tendency to unprovoked violence. The tendency was said to involve the immediate prior consumption of alcohol in the same hotel, violence located geographically close to the hotel, [NAME] commencing to punch a person to head immediately without recent prior interaction or provocation and continuing to punch even in the face of no aggressive response. A jury might well find that there is a degree of improbability in [NAME]'s account of [NAME] immediately punching him in the head and continuing to punch him after [NAME] merely defended himself, albeit armed with a knife. The evidence tendered by the Crown on this application would support such a finding. The tendency, as formulated by [NAME], has sufficient specificity to be of consequence in the context of fact-finding in relation to whether [NAME]'s account of his interaction with [NAME] in the present case should be accepted, and whether the inferences that support his defence, are made more likely. The tendency evidence, on the assumption it is accepted by the jury, would be likely to have the capacity of rationally affecting the assessment of the probability of the existence of the facts in issue in the present case to such an extent as to be of consequence or important.

3. In other words, I am satisfied that the tendency evidence makes more likely the defence [NAME] is advancing, on a comparison between the tendency and the relevant fact in issue namely whether [NAME], having consumed some alcohol at the hotel, initiated the altercation with [NAME] by throwing a punch to the head of [NAME] and continuing to attack him with punches after [NAME] only defended himself, albeit armed with a knife. 4. [NAME] made submissions concerning "significant probative value" and its potential interaction with the standard of proof which must be met by the prosecution in discharging its legal onus in relation to the elements of the offence charged and what might be required by an [NAME] to discharge an evidentiary onus if a reasonable doubt as to any of the elements of the offence in question is to be established. This matter may be of importance if the relevant fact in issue is whether [NAME] committed the offence, as in [NAME]. Where, as in this case however, the relevant fact in issue was not whether one or more of the elements of the offence had been established, it does not appear to me that it is necessary to express any view on this since it is not directly relevant to the question I have to decide.

Conclusion 1. For all these reasons, I have come to the view that the tendency evidence I have identified above satisfies the test in s 97 of the Evidence Act. I propose to admit it as tendency evidence, subject to the Crown's right to object to that evidence on any other available ground.

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