Director of Public Prosecutions v Smith (Ruling No. 2)
[2021] VCC 1545
•29/09/21
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01423
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE SMITH |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12/08/21 | |
DATE OF RULING: | 29/09/21 | |
CASE MAY BE CITED AS: | DPP v SMITH (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1545 | |
REASONS FOR RULING
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Subject:CRIMINAL LAW – Tendency Evidence
Catchwords: Arson -- Home of Accused’s former partner destroyed by fire -- Fact in issue is Identification -- Prosecution seek to lead evidence of Accused’s past property damage as evidence of Tendency -- Close similarity -- Significant Probative Value -- Prejudicial Effect
Legislation Cited: s.76, s.197(1), s.197(6) Crimes Act 1958 -- s.97, s.101 Evidence Act 2008 -- s.123A Family Violence Protection Act 2008.
Cases Cited:Hughes v The Queen (2017) 92 ALJR 52 -- R v Bauer (2018) 92 ALJR 846 -- Pfennig v the Queen (1995) 182 CLR 461 -- Dempsey (a Pseudonym) v The Queen [2019] VSCA 224 -- Davies v The Queen [2019] VSCA 66 -- Patton (a pseudonym) v The Queen [2021] VSCA 104 -- Leonard (a pseudonym) v The Queen [2021] VSCA 172 -- Vagg v R [2020] NSWCCA 134 -- TL v The Queen [2020] NSWCCA 265 -- Sutton v R (1984) 152 CLR 528 -- R v Straffen (1952) 2 QB 911 -- Bryant v R (2011) 205 A Crim R 531 -- R v O’Keefe [2009] NSWCCA 121 -- Donohoe v R [2012] NSWCCA 176 -- Tognolini v R (2011) 32 VR 104
Ruling: Evidence Admitted – Indictment Severed
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N Batten | Office of Public Prosecutions |
| For the Accused | Mr M Page | David Barrese & Associates |
HER HONOUR:
Summary
1This is an application by the Prosecution to lead evidence of tendency in the trial of Jesse Smith.
2Mr Smith is charged with offences in relation to a fire occurring on 1 January 2020 which largely destroyed the house of his former partner, Ms Missy Ainge[1].
[1] A pseudonym.
3Twenty-six year old Ms Ainge and 22 year old Mr Smith[2] had been in a relationship for approximately 2 and a half years. Ms Ainge has a 3 year old daughter from an earlier relationship. The accused and Ms Ainge lived together at Ms Ainge’s home in Wodonga until October 2019.
[2] Date of birth June 1997
4Relevant to this application, Charge 3 on the Indictment is a charge of Burglary of the home contrary to s.76 Crimes Act 1958 and Charge 4 of Arson relating to the fire contrary to s.197(1) and (6) Crimes Act 1958. Charge 5 is a charge of Contravene Family Violence Intervention Order intending to cause harm or fear for safety, namely by attending at the complainant’s address at the time of Charges 3 and 4, contrary to s.123A Family Violence Protection Act 2008.
Facts in Issue
5There is no issue in the trial that Ms Ainge’s home was damaged by fire in the early hours of New Year’s Day 2020.
6The issue in the trial is whether the prosecution can prove it was the accused who entered the home and intentionally lit the fire. The prosecution case is a circumstantial one. It relies on a raft of evidence which the prosecution will ultimately submit demonstrates it is the accused who lit the fire. As part of that evidence, they seek to lead the evidence of tendency.
Evidence sought to be led as Tendency
7On 13 October 2019 the accused and Ms Ainge (“the complainant”) had an argument wherein the accused became enraged. He started yelling at the complainant and calling her derogatory names such as ‘fat slut.’ The complainant left the house because she was fearful.
8The accused repeatedly phoned her and left threatening voice messages. He sent her approximately 28 text messages containing derogatory and abusive language including calling her a ‘fat cunt’ ‘fucking dog’ and ‘slut’. He accused her of ‘hanging out with poofs’ and asked ‘Who’s the bloke your with cunt. Tell him to ring back ahaha.’ He made threats to kill her and to ‘smash up’ her belongings.
9He proceeded to smash several prints and photographs in her bedroom, and damaged a computer monitor, breaking the screen by punching it.
10The complainant reported the matter to police and stated that there had been previous violence.
11In his record of interview the accused made admissions to ‘smashing up’ parts of Ms Ainge’s house on 13 October, including “some candles and other things… I don’t really remember, I just smashed a heap of shit and left”. He admitted deliberately walking over and breaking the framed prints and punching the computer screen. He also admitted to kicking a trolley containing kids’ toys. He agreed “Q - Did you also send a message saying you were going to smash her stuff up and smash the house? A - Yeah, I did.”
12The accused also admitted that he had previously caused damage to the house a few months earlier (July 2019) by punching a hole in the wall and throwing a television remote at the wardrobe, causing a crack. He agreed that damage happened on previous occasion(s) when ‘she pissed me off’. He said “The walls… got broken months ago…. the ones in the bedroom… I punched them.”
13On 14 October 2019 the accused pleaded guilty to offences of make threat to kill, use carriage service to harass and 2 charges of intentionally damage property relating to those events. On the same date police took out a family violence intervention order (“the FVIO”) on behalf of the complainant and her young daughter.
14The prosecution seeks to lead the evidence of the intentional property damage caused by the accused to the complainant’s house and possessions in July and October 2019 and the associated FVIO as evidence of tendency (“the 2019 offending”). Defence object to that application.
Other evidence in the Trial
15The prosecution evidence relevant to proof of charges 3, 4 and 5 is as follows. On New Year’s Eve 2019 the complainant and accused were both at “Paddy’s” at “Beer Deluxe” in Kiewa Street, Albury.
16The complainant was present with two female friends. The accused was present with his friends. At times the complainant and accused interacted. The accused however repeatedly became angry, calling the complainant a ‘slut’ and telling her to ‘fuck off’. He accused her of ‘cheating’ and ‘chatting up’ others. Ms Ainge was trying to appease the accused and keep the peace, including at one stage kissing him and dancing with him.
17The accused sent various messages to the complainant on Facebook Messenger throughout the night. Those messages are angry, abusive, jealous and threatening in nature. They included a series of messages at 1:12am “Dog cunt. I hate you so much. I’ll be at your house. Cunt. I hate you so much. You fat fucking skytrain. Slutv.”
18Between 1:12am and 1:21am he sent her the following messages, “Slutv. Slutv. Slut. Your dead. Ganna die” and “I’ll see you later.” At 2:36am he sent the following, “Ganna get your throat slit like the cow u are.”
19The complainant noticed, and the accused showed her, that his phone had a cracked screen. This was apparently smashed by him because the complainant would not respond to his text messages.
20At some time between 2.27am and 2.47am, the prosecution allege that the accused said to the complainant “I’m going to fucking murder you.” and later, “I’m going to fucking kill you cunt.” The complainant’s friend Jane[3] observed this interaction, and heard the accused use the words ‘dog’ and ‘cunt’. She told the accused to “Fuck off”. He started to walk away before returning and again being asked “Can you please leave” by Ms Schneider. Ms Ainge began to cry. Ms Ainge and Ms Schneider asked a staff member to call security at which the accused walked away.
[3] A pseudonym.
21The complainant spoke to security, telling them she had a Family Violence Order against the accused. Security looked for the accused but could not find him.
CCTV and Identification evidence
22CCTV footage shows the accused left Beer Deluxe around 2.47am. CCTV footage from various venues shows the accused walking through various streets towards Ebden Street.
23At 3am a male fitting the accused’s description caught a taxi in Ebden Street. He asked to go to a service station “APCO Wodonga”. The taxi driver Mr Ned Sharkey made observations of the male including that he was around 22 years old, about 175cm tall[4], had light brown hair and a lip ring[5] and that the screen of his phone was smashed. Mr Sharkey described his behaviour fluctuating between being ‘on a mission’ and agitated, and overly appreciative. He thought he was going to rob him or abscond without paying.
[4] The accused is 175-180cm tall according to police documents.
[5] The accused wears a lip ring.
24On 17 January the taxi driver Mr Sharkey identified the accused in a photoboard identification.[6]
[6] Photoboard identification evidence was ruled admissible by me in a ruling dated 30/07/21.
25CCTV footage from APCO shows the taxi approaching. The prosecution case is that the accused was dropped beyond the APCO service station, and about 180m from the victim’s house. The meter was turned off a little prior to drop off, at 3:12am.
26Between 3:17 and 3:20am the accused sent Ms Ainge several messages, initially apologetic, then “I must love u and I cant stand to no u could do better then me. ? you done this why? why wouldn’t you be my new years.” And then “your nothing but a liar.”
27The prosecution case is that data from the accused’s mobile phone was connecting to a phone tower proximate to the complainant’s address at around the relevant time.
The Fire
28At around 3:30am neighbours either were awake and heard, or were woken by the noise of Ms Ainge’s house burning. No one reported hearing any vehicle approach. Neighbours called ambulance and police.
29The house was almost completely destroyed by the fire. Fortunately no person was present.
30The conclusion of the forensic officer who examined the scene was that the fire started in the master bedroom of the complainant, and that the fire was caused by ignition of combustible material likely bedding, and probably lit by a match or cigarette lighter. He could not identify any apparent source of accidental ignition.
Christmas Present and Television damage
31During inspection of her house the day following the fire, Ms Ainge observed that a Christmas present which was wrapped and labelled for her male work colleague had been unwrapped and was smashed. Two other presents labelled for her female work colleagues were still wrapped. The complainant states that the accused had previously expressed jealousy towards the male work colleague, despite the fact she had told the accused that her colleague was gay. Further, the complainant observed damage to a television which had an appearance similar to the damage caused when the accused punched her computer screen in October 2019.
32The complainant says the accused had previously threatened to burn down her house, most recently in about October 2019.
Admissions
33Andrew Seaman who was in an online relationship with the accused’s mother, Amanda Paton, was on a video chat with Ms Paton when the accused arrived home at around 4:00am on New Year’s Day. He described the accused in an agitated state. Although not in his statement, at the committal he said the accused made a comment along the lines of “I got that bitch.” He says Ms Paton went upstairs to talk to the accused.
34Mr Seaman in his statement told police that several days later he was on another video call with Ms Paton and the accused walked into the room. He says the following exchange took place -
I said, I heard you got into a little bit of mischief the other night?
He said, Yea me and the girlfriend had a bit of a blue, but I sorted the bitch out.
I said, What do you mean you sorted her out? I hope you didn’t hit her?
He said, No, nothing like that. I set fire to the back of her house.
I said, Arson mate, it’s a big thing, you don’t want to get caught for that.
He said, They won’t catch me because my fingerprints are already over the house because I visit there. The detectives and forensics can’t get me for shit because my fingerprints are already there.
I said, It’s 2020, the detectives and forensics have come a long way over the years.
He said, If they wanted to come and get me they would have already come and got me by now.
35Mr Seaman contacted police on 14 January and made his statement on 20 January 2020.
Defence position
36The accused was arrested but did not participate in a record of interview. By his defence response he denies the offending.
37As I stated, the facts in issue are whether the prosecution can prove the accused was the person who intentionally lit the fire.
Legislation
38The admissibility of tendency evidence is governed by s.97 of the Evidence Act 2008.
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.
39A further restriction on admissibility exists in s.101 of the Act –
Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Tendency Notice
40The Tendency notice filed by the prosecution on 2 February 2021 is as follows:
2. The Prosecution seek to rely upon the tendency of the Accused to:
2.1.Act in a particular way, namely:
(a)A tendency to damage the property of Missy Ainge (the complainant) when in a rage with her.
2.2.Have a particular state of mind namely:
(b)A tendency to intentionally damage the property of Missy Ainge when in a rage with her.
41The notice identifies that the issues in the case to which Tendency Reasoning applies are whether on 1 January 2020 the accused intentionally damaged by fire the complainant’s house at Wodonga.
42The tendency set out is relied upon in support of charge 4 (Arson) as making more likely the facts founding that charge.
43In submissions Mr Batten on behalf of the prosecution states that the tendency evidence is sought to be led for two purposes – firstly to establish that it was the accused who lit the fire, and secondly to establish the fire was deliberately lit.
Leading Authorities
44The High Court in the seminal decisions of Hughes v R[7] and R vBauer[8] considered tendency evidence in cases where the facts in issue were whether the alleged events occurred. Their Honours moved away from the common law concepts of the need for ‘underlying unity’ and ‘striking similarity’ and towards ‘common features’ or ‘links’. Their Honours specifically distinguished cases where the occurrence of events is in issue from cases where identity is in issue. In the majority judgment in Hughes, their Honours said -
The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.[9] [Emphasis added]
[7] Hughes v The Queen (2017) 92 ALJR 52
[8] R v Bauer (2018) 92 ALJR 846
[9] Hughes op cit at paragraph 39
45Further –
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By saying that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. [10] [Emphasis added]
[10] Hughes op cit at paragraph 41
46The distinction between a known offender facing a charge where the commission of the offence is in issue, and a known offence where the identification of the offender is in issue, essentially follows the pattern of a number of common law cases.
Defence Submissions
47Mr Page on behalf of the accused relies on that distinction. He submits that given identification is in issue I should return to the concept of ‘close similarity’ before admitting the evidence.
48He submits that the admitted prior behaviour of damaging personal belongings and the bedroom wall is not sufficiently similar and therefore is incapable of making more likely an act of arson. He disputes that there is any close similarity and points to the significantly more serious nature and gravity of that charge. He argues that the prosecution concession that the conduct does not bear a signature or hallmark is fatal to their application. On that basis he submits the evidence said to be tendency does not meet the test of significant probative value. Therefore, he submits the 2019 offending is not capable of rationally affecting the jury’s assessment of the facts in issue in this trial.
49Further he submits that there is a danger of unfair prejudice to the accused if the jury hear evidence regarding the 2019 offending and in particular if they are told of the accused’s plea of guilty and sentence and the existence of the family violence intervention order. He submits there can be almost no innocent explanation for a FVIO and that the evidence in any event should be excluded pursuant to s.101 of the Evidence Act 2008 as its probative value is outweighed by the prejudicial effect.
Prosecution Submissions
50Mr Batten on behalf of the prosecution submits that the tendency evidence sought to be relied on has a high degree of probative value. He argues that it demonstrates two earlier occasions where the accused intentionally damaged the complainant’s property when angry with her, and points to the temporal connection of those earlier events to the charged offending.
51Mr Batten submits the earlier evidence of threats and abuse followed by actual damage, is similar to the sequence of abusive communications on New Year’s Eve and what the prosecution say is the ensuing damage.
52Mr Batten, and Ms Saville in oral argument, point not only to the fire, but to the smashed present and damage to the television discovered the following morning. They submit that damage bears close similarity to earlier property damage caused by the accused in 2019. Taken at its highest, they submit the damage to the personal belongings points to the identity of the person who was present at a time when the fire was lit. That in turn they argue, is strongly probative of the fact in issue ie. identification of the accused as the offender.
53The prosecution further submit that the tendency alleged strongly supports proof of the charged act including by reason of the specificity of the tendency alleged, namely that it reveals hostility in the relationship and action directed at Ainge’s property and thereby at Ms Ainge herself.
54The prosecution concede however that the alleged tendency is not a tendency to damage the complainant’s property by closely similar conduct or conduct with a hallmark feature.
55The Prosecution submit that I should have regard to other evidence to be adduced in deciding whether the tendency evidence will have significant probative value.
Analysis
High Court
56As far as I am aware there has been no consideration by the High Court of tendency evidence under s.97 of the Evidence Act 2008 as it relates to identification. There are a number of previous cases considering propensity and identification under the common law.[11]
[11] See for example Pfennig v The Queen (1995) 182 CLR 461
Victorian Court of Appeal
57Although I was originally of the view that there had been no consideration of s.97 and identification by the Court of Appeal, there has in fact been one interlocutory appeal in the matter of Dempsey (a Pseudonym) v The Queen[12].
[12] Dempsey (a Pseudonym) v The Queen [2019] VSCA 224
58The accused in Dempsey relevantly was charged with charge 1 armed robbery and charge 2 statutory murder (occurring during an armed robbery). In short it was alleged that the accused set up meetings with two male victims by posing as a female in text messages and luring the victims to premises in Berwick with a view to robbing them of drugs. The victims were told the premises was a facility for women escaping domestic violence and that they should ring the doorbell. On doing so in the first incident the victim was confronted at knife point by the offender who demanded drugs. On arrival on the second incident the victim and his female friend were confronted by two male offenders, with the accused demanding drugs. A struggle ensued in which the co-accused produced a knife and stabbed the victim who later died.
59The fact in issue in relation to charge 1 was identity. The fact in issue in relation to charge 2 was intention. The accused conceded that he had engaged in messaging the victim to set up the meeting and had attended the relevant premises to meet the victim, but denied any agreement with his co-accused to commit an armed robbery.
60The prosecution relied on the evidence of each charge as tendency vis a vis the other charge. The Court expressed the view that the reasoning the prosecution sought to employ was closely akin to coincidence reasoning. To that end the matter was adjourned and the prosecution ultimately filed a Coincidence Notice pursuant to s.98(1)(a) of the Evidence Act 2008.
61The Court held that the evidence on charge 2 was admissible as coincidence evidence going to identification of the offender in charge 1. That was so given the strikingly similar methodology in both the setting up of the meeting and in the manner of commencing to commit the offence. The Court held that those similarities were such that it would be highly improbable that the offender was not the same person.[13]
[13] Dempsey op cit at paragraph 81
62Further, the Court held that the evidence on charge 2 was also admissible as tendency evidence going to identification of the offender in charge 1. They did so on the basis of the closeness of similarities between the two offences – both in their lead up and in their commencement.[14] That list of similarities was a shorter one than the Court outlined under their consideration of coincidence.
[14] Dempsey op cit at paragraph 82
63The Court also held that if the jury were satisfied beyond reasonable doubt of the accused being the offender in charge 1, the evidence of that charge was admissible as both coincidence and tendency evidence vis a vis charge 2 in proof of intention.[15]
[15] Dempsey op cit at paragraph 86, and 94-96
64Ultimately the Court in Dempsey suggested to the prosecution that they abandon their reliance on tendency, and only rely on the evidence as coincidence.[16] That was so given the likely complexity of directions in circumstances were all charges were contested.
[16] Dempsey op cit at paragraph 104
65There have been several other decisions of the Court of Appeal regarding the interplay of coincidence evidence and identification[17], most recently in Leonard (a pseudonym) v The Queen[18]. In Leonard, the accused was charged with sexual offending against a child. The accused had been in position as an after-school care worker. The allegation was that he used treats as a way of isolating the child and then committed sexual offences against her.
[17] Davies v The Queen [2019] VSCA 66; Patton (a pseudonym) v The Queen [2021] VSCA 104
[18] Leonard (a pseudonym) v The Queen [2021] VSCA 172
66The evidence sought to be admitted as circumstantial evidence in proof of identity was that on an occasion when the complainant’s mother arrived to collect her, she found her with a male carer, isolated from the other children, and the carer had given the complainant an icy pole. While the prosecution disavowed reliance on that evidence as evidence of coincidence, the Court of Appeal found that it could only be admissible on that basis.
67Given the prosecution had not relied on the evidence as evidence of coincidence, and had not filed any notice, the Court ultimately did not consider whether such evidence would firstly be admissible and secondly be excluded by s.101. However, His Honour Priest JA referred to the common law approach to similar fact evidence in cases where identity was in issue and stated -
When used to prove identity, courts ‘insisted ... that there should be something in the evidence, in the nature of “striking similarity” with the offences charged, which strongly points to the accused as the offender’. If modus operandi were relied upon to prove it likely that the same person was responsible for two or more offences, the evidence needed to demonstrate something in the nature of ‘striking similarity’, more than the ‘stock in trade’ of persons who commit crimes of a particular kind.[19]
[19] Leonard op cit at paragraph 7
68It is well established that the test for admissibility of coincidence evidence requires similarity between events. Indeed, s.98 spells that out. His Honour Niall JA in Leonard discussed that requirement and a number of common law authorities[20]. Before turning specifically to coincidence evidence, His Honour made the following general comments –
In the face of similarities between events or behaviour, an obvious inference is that there is a connection between the two events, often a connection that derives from human agency. In the Evidence Act the issue is addressed through the concepts of tendency and coincidence evidence.
Both the tendency rule and the coincidence rule are exceptions to the general principle that evidence of an earlier incident or event, involving or relating to an accused person, is not admissible to prove an element of an offence charged against the accused. The Evidence Act defines tendency and coincidence, and renders such evidence inadmissible unless a hurdle, which sets the bar higher than base relevance and which addresses both probative value and prejudice, is overcome.Pared to its essential features, tendency evidence is evidence that on another occasion or occasions the accused acted in a particular way. It provides a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. The tendency to act in a particular way may be discerned from character, reputation or conduct.[20] Leonard op cit at paragraphs 43 - 39
69In contrast to s.98, s.97 does not include any reference to a requirement for similarity, and the High Court has made clear the move away from such stringent concepts in Hughes, but while making the distinction in cases where tendency is led in proof of identification.
New South Wales Court of Appeal
70In 2020 the New South Wales Court of Criminal Appeal considered the interplay of those two issues in both Vagg v R[21] and in TL v The Queen[22]. The latter was referred to by the parties in argument before me. While those decisions are not binding on me they are informative.
[21] Vagg v R [2020] NSWCCA 134 (June 2020)
[22] TL v The Queen [2020] NSWCCA 265 (October 2020)
71The accused in TL was charged with murdering his partner’s 2 year old daughter by intentionally injuring her by blunt force trauma, likely a punch to the stomach. She suffered fatal internal bleeding. The evidence led as tendency was that some weeks earlier when the child was in his care, she suffered burns to her feet and bottom in circumstances where the accused claimed the child slipped in the bath while he was running hot water. The prosecution case was that the burns were deliberately inflicted by the accused.
72The argument by defence was that the tendency evidence should not have been admitted, specifically because it did not bear close similarity to the charged conduct. Hoeben CJ in delivering the judgement of the Court referred to that argument and the fact the ‘injuries suffered were different in nature and degree,’ however stated that this was not fatal to the admissibility and use of the tendency evidence.[23] His Honour then referred to a number of common law authorities, as follows -
There has been a recognised difference between proof of the commission of an offence and proof of the identity of the person who committed a proven offence when considering the admission of similar fact evidence at common law and evidence of tendency and coincidence under the Act.
In Sutton v R[24] the Crown relied upon evidence of similar facts to prove identity. Gibbs CJ said:
“The present is such a case: the issue being identity, the question is whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes. ...”
At common law, propensity was also accepted as a means of identification. This was recognised in R v Straffen[25] and by the High Court in Pfennig v The Queen[26]. What is notable about both of these cases is not only that propensity was admitted at common law but the factual matrix against which the evidence was admitted. Both accused were present, at a time proximate to the commission of the offence, at the scene of the crime. Thus their abnormal propensities revealed them to have been the person who committed the offence from the class of persons present at the crime scene and not from the general population.
…
In submissions, the applicant relied upon Bryant v R[27] where Howie AJ said:
“ ... Tendency evidence itself will rarely have sufficient probative value to identify a person as a particular offender.”
[23] TL op cit at paragraph 195
[24] Sutton v R (1984) 152 CLR 528
[25] R v Straffen (1952) 2 QB 911
[26] Pfennig v The Queen (1995) 182 CLR 461
[27] Bryant v R (2011) 205 A Crim R 531
What Howie AJ said has to be understood in the context of the issues in that matter. The tendency evidence alone in Bryant would not have amounted to sufficient proof of that accused’s guilt. However, taken together with the accused’s possession of a number of incriminating items, and in circumstances where it was obvious he was about to commit a further similar offence, the tendency evidence was able to establish his identity as the offender. In the course of his judgment, Howie AJ referred to the earlier decision of O’Keefe v R[28] where his Honour (with the concurrence of McColl JA and Grove J) said that if tendency evidence stood alone in identifying the accused as the offender, it would have to be “sufficiently peculiar or singular to amount to what has been described as a “hallmark” or “signature” of the [accused] such that it would offend common sense to exclude it”. Those remarks were followed by this Court in Donohoe v R[29].
The facts in O’Keefe are instructive. In that case, the Crown relied upon the applicant’s tendency to sexually assault females in secluded locations with a particular interest in their breasts. This was a generalised tendency without any further evidence to link that accused to a particular series of sexual offences upon one complainant. Without anything more, the applicant’s conviction on those counts was unreasonable. What was required was some further evidence which would link the accused to the crime or crime scene.
It is against that background that the text in the Act is to be given proper regard. The test pursuant to s 97(1)(b) is whether the Court thinks that the evidence will, either by itself or having regard to other evidence adduced, have significant probative value. In this case, the evidence of the incident in the bath was to be assessed with the other evidence adduced which was that the applicant was one of only three persons who had the opportunity to commit the offence. It was that combination of facts which gave the evidence its significant probative value and not whether there was a close similarity between the incident in the bath and the manner in which TM was killed.
The applicant relies upon the majority judgment in Hughes where Kiefel CJ, Bell, Keane and Edelman JJ said at [39]:
“Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.”
… Importantly, the remarks in Hughes at [39] require consideration of the factual circumstance of an accused person being alleged to have committed an offence merely because of a tendency that that person has displayed. O’Keefe illustrates this.
If the accused in O’Keefe had been proved to have been present near to where the crime was committed at the approximate time of its commission, the tendency evidence would have had considerable force. Instead of identifying the accused from the general population as the person who committed the offences, the evidence would have gone to identify the offender from those persons, including the accused, who were present at the time of the offence. That type of analysis is consistent with the common law cases of Straffen and Pfennig. It is also consistent with the approach the Act takes to tendency evidence. The admissibility of tendency evidence depends on the significant probative value of the tendency, taken together with other evidence in the case.
It follows therefore that the requirement for close similarity should arise when the tendency evidence is the only or predominant evidence that goes to identity. Further, the majority in Hughes did not lay down a prescriptive test for tendency evidence for all cases where it was sought to be used to prove identity. By saying “it almost certainly will” their Honours allowed for exceptions. This case falls into that class of exceptions. The undisputed fact that only three persons had the opportunity to kill TM was decisive evidence. [Emphasis added]
[28] R v O’Keefe [2009] NSWCCA 121
[29] Donohue v R [2012] NSWCCA 176
73The accused in Vagg was charged with sexual offences against a single 9 year old complainant. Evidence from a second child was led as tendency. The allegations were that a window washer, working at their houses, led them to secluded locations under the guise of asking their assistance with a task and then sexually offended against them. In both circumstances the accused had worked as a window washer at the homes of each child. Identity was in issue, and to a lesser extent whether the offence occurred (or the complainant was mistaken).
74In holding that the evidence had been correctly admitted, Her Honour Simpson AJA with whom the rest of the Court agreed, stated –
This was an unusual case of tendency evidence. The tendency evidence related to events that took place three or four years after the events the subject of the charges on the indictment. They involved a different child, although one of the same sex and comparable age to the complainant. Most importantly, the allegations were of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant. That last fact, having regard to what was said in [39] of Hughes, has given me considerable pause for thought, notwithstanding that similarity of conduct is not a precondition of admissibility.
I have nevertheless concluded that there was sufficient in the evidence of MF to warrant the conclusion that the applicant did have a tendency to have a sexual interest in young girls, and, further, that he had a tendency to act on that interest in ways which were both different and had common features.[30]
[30] Vagg op cit at paragraphs 73-74
75I have considered both of those cases, and each of the cases referred to in TL and the particular factual matrices which led to exclusion or admission of the particular tendency (or propensity) evidence. I have considered the principles enunciated and applied. I do not propose to repeat those any further as they all emerge from the excerpt from TL above.
Summary
76In summary, admission of tendency evidence in a case where the fact in issue is identification does not require the high degree of similarity as in a case concerning coincidence. However, if the tendency evidence is the only or predominant evidence that goes to identity, then the requirement for close similarity will assume greater importance. Where there is other evidence pointing to the accused as the offender, the determination of admissibility of tendency evidence will depend on its probative value assessed in light of the other evidence in the case.
77In the case of TL, the other evidence of significance was that there were only three people with opportunity to murder the child. Mr Page sought to distinguish TL on that basis. While I accept that was the distinct feature which ultimately persuaded the court that the evidence was rightly admitted, their Honours noted other similarities, as well as making the comments which I have extracted above and referring to earlier case law.
78So while I accept that the comments of the High Court in Hughes require me to consider close similarity between the charged act of arson and the evidence sought to be led as tendency, drawing from the words of s.97, the common law authorities regarding propensity where identification is in issue, and from both the Victorian and New South Wales’ Courts of Appeal authorities regarding s.97, the consideration does not stop there. A lack of close similarity is not fatal to the admissibility, subject to the factual matrix of other evidence.
79I understand the reference by the prosecution here to the observations of Nettle JA in Tognolini[31], that “where there is some direct evidence of the involvement apart from the similar fact evidence, the similar fact evidence need not be ‘as uniquely denominative’ of the accused, because it is not the sole means of identifying the accused, and something less than striking similarity or signature is more likely to suffice” to make that point, though in context of coincidence. Mr Batten submits that observation remains apt in determining whether the tendency here has significant probative value by reason of similarity to the charged acts or other features linking the two incidents.
[31] Tognolini v R (2011) 32 VR 104
Does the evidence demonstrate the tendency alleged?
80In answering the two questions posed in Hughes, I must consider first, whether the previous intentional acts of damaging the house and belongings of the complainant demonstrate the tendency alleged. That is, to act in a particular way namely to damage her property when in a rage with her, and to have a particular state of mind, namely to cause that damage intentionally. The focus of that question must be on the earlier evidence.
81Here that evidence includes not only the damage and the mechanism of damage, but the context of being angry or enraged with complainant and the threats made, followed by specific damage to her property.
82That evidence relates to two separate occasions occurring approximately 6 months and 2.5 months prior to the fire.
83In my view that evidence does demonstrate that the accused has a tendency when in a rage with the complainant to intentionally damage her property.
Does the tendency make more likely the charged act of Arson?
84The second question is whether that tendency makes more likely the charged acts of arson. That is, whether that evidence could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.
85I have not lost sight of the fact that the prosecution’s stated reliance on the evidence of tendency is not only related to identification, but as relevant to whether the fire was deliberately lit. However in my view it is clear that if the jury accept it was the accused who was present, it is a short step to conclude the fire was deliberately lit. Therefore, the focus really is on identity as the fact in issue.
86While I must have the comments of the High Court regarding ‘close similarity’ in mind, answering this question also involves a closer consideration of the surrounding evidence as I have outlined. I must make that determination taking the other evidence at its highest.
87Here, the relevant other evidence in this case is as follows.
88Prior to the fire the accused had made threats to burn down the complainant’s house.
89On New Year’s Eve the accused became enraged with the complainant. He became abusive to her using derogatory language in person and in facebook messages. He demonstrated jealousy. He made threats towards her including a threat to kill her and in that context said “I’ll be at your house.”
90On the prosecution case the CCTV evidence, mobile phone data and identification by the taxi driver then demonstrate his movement towards the complainant’s house. It demonstrates that at the relevant time the accused was delivered very close to the area of the complainant’s house. There is opportunity.
91Although it was argued that, in contrast to TL, the accused is one of any member of the population who could have committed the offence, the evidence of the accused being in the area means he becomes part of a smaller number of people, though still unquantified, in the vicinity of the fire.
92The evidence from the neighbours supports a conclusion that the person who lit the fire arrived on foot.
93There is evidence supporting the prosecution contention that the accused after entering the house unwrapped the present for the complainant’s male work colleague, a person about whom he had previously expressed jealousy.
94There is evidence that there is damage to the television. The damage is central in the screen much like earlier damage caused by the accused when he punched the complainant’s computer screen. The complainant could not give evidence as to the mechanism of damage. It will be a matter for the jury to consider that damage in light of the extensive damage to the surrounding room.
95The analysis of the fire is that it started in the bedroom of the complainant, likely by lighting her bedding. The jury would be entitled to conclude that is specifically directed at the complainant and bespeaks of the accused’s jealousy.
96There are admissions made to Andrew Seaman.
97In considering whether there is close similarity, or links between the earlier evidence and the current allegation, I note the following features:
a. the relationship between the accused and Ms Ainge is the operative factor. The two earlier episodes of intentionally damaging her property occurred in the setting of the same relationship and at the same house;
b. the existence of animosity in the relationship, with overtones of jealousy;
c. there is a temporal connection between the 2019 offending and the New Year’s Day fire;
d. damage on each occasion is preceded by an argument. In July ‘she pissed me off’. In October there is an argument regarding the complainant’s daughter. On New Year’s Eve there is an argument regarding who the complainant was with/whether they would spend New Year’s Eve together;
e. threats are made by the accused. In October he uses derogatory language when they are at the house, then makes threats to kill the complainant over the phone. He makes specific threats to ‘smash’ her ‘stuff’ and her house. On New Year’s Eve he uses derogatory language when at the hotel, and makes threats to kill the complainant both in person and over facebook messenger. In the context of threats he makes a specific threat to be at her house.
f. his anger is directed at her property. In July he damaged the wall of the bedroom and the wardrobe. In October he damaged pictures in her bedroom, candles and the computer. On New Year’s Eve he damaged the television (if accepted by the jury) and a present the complainant bought for her male colleague, and damaged the house by setting fire to bedding in her bedroom.
98It is worth bearing in mind that the charge of arson, pursuant to s.197(1) and (6) is a particular category of criminal damage, being a charge of intentional criminal damage by fire. In that sense the mechanism of intentionally damaging the property on the earlier occasions is not definitive. Regardless of whether damage is inflicted by a punch, deliberately walking on items, throwing things, kicking things or otherwise ‘smashing’ things, or by setting fire to bedding, the relevance is that the accused when angry with the complainant directs his anger towards damaging her belongings and/or home. In that way, although the gravity of the arson ultimately was significant, that in itself is not determinative. It is the result of another form of intentional property damage.
99Those features in my view are closely similar and provide a foundation of links between the 2019 offending and the allegation that it was the accused who intentionally damaged her property by fire.
100The prosecution evidence, including the tendency evidence, points to the fact that the accused was the person present in the house at the time of the fire. In my view it has significant probative value in that respect.
101To draw from the words of the High Court in Pfennig, albeit the Court was considering propensity and identification at common law, it would be an affront to common sense in circumstances where the accused is in a rage with the complainant, has made threats to her, and is near the house at the relevant time, and has previously damaged her property when in a rage with her, to suggest that he was not the offender. That is not to presuppose the ultimate conclusion of the jury – they may not accept the identification evidence for example – but is a conclusion taking the prosecution evidence at its highest to assess the probative force of the tendency evidence. Put another way, to conclude it was not of sufficient probative value may be an affront to common sense.
102Put another way, and again drawing on Pfennig, where there is other evidence to connect the accused with the offence, as there is here, those facts may render it objectively improbable that it was not the accused who committed the act in question, and that the relevant act was unintended or occurred innocently.
Conclusion
103To conclude, in my view the evidence of tendency does make more likely the offence here. It could rationally affect the jury’s assessment of the probability of the existence of a fact in issue, namely whether the accused was the person who lit the fire, and could do so to a significant extent.
Prejudicial Effect
104I must then undertake the delicate balancing act of determining the probative value as against its prejudicial effect as required by s.101 Evidence Act 2008. That section imposes a particular restriction on the admissibility of tendency evidence. That is, tendency evidence adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect.
105The case law is full of references to the importance of guarding against prejudice when considering the admissibility of tendency evidence. I have given that exercise a great deal of consideration.
106The High Court in Hughes outlined a number of ways tendency evidence may cause a prejudicial effect. [32] Often the prejudice results from tendency evidence likely to cause an emotional response in the jury, or by unfairness in requiring an accused to answer numerous uncharged acts, or because the jury may give the tendency evidence too much weight or underestimate the number of others with the same tendency. Prejudice does not lie in the mere capacity of the evidence to prove the charge.
[32] Hughes op cit at paragraph 17
107Mr Page submitted that evidence of earlier property damage and the ensuing Family Violence Intervention Order against the accused, are likely to have a significant prejudicial effect against the accused. He submitted that there is almost no innocent explanation for the existence of a FVIO and therefore that evidence in particular is likely to be highly prejudicial.
108In this case, the accused pleaded guilty and was sentenced in relation to the 2019 intentional property damage. A plea of guilty carries its own prejudice, as does an earlier sentence.
109As part of my determination of the prejudicial effect of the tendency evidence, I must consider what steps I can take as the trial judge to limit any prejudice. That includes any directions to be given.
110The important factor in relation to the 2019 offending in the present trial is that it was intentional property damage and was admitted. In my view that can be dealt with by way of an agreed statement between the parties, and without reference to any sentence.
111In my view the existence of the FVIO adds nothing to the tendency evidence. It is not relevant to the probative force of the earlier property damage – only a consequence of that earlier behaviour. Further, the existence of a FVIO has no bearing generally on whether the accused attended the home of the complainant and caused a fire. Although it should in fact work in favour of the accused as demonstrating that he was forbidden from attending the house, experience shows that people the subject of FVIOs do sometimes breach them. In my view the fact of the FVIO being taken out by police in October 2019 and its ongoing existence is inadmissible as irrelevant to the charges of burglary and arson. As such, charges 1, 2[33] and 5 should be severed from the indictment containing charges 3 and 4.
[33] Charges relating to earlier breaches of the Family Violence Order between 14 October 2019 and January 2020.
112In my view, stripping the evidence back in that way, would remove those two particularly prejudicial aspects of the tendency evidence.
113I accept that the tendency evidence is evidence of intimate partner violence on previous occasions. That characterisation involves inherent prejudice. It is likely to arouse emotion in some jurors. However, it is not violence of such a level that it would overwhelm them.
114It is a reasonably small part of the overall prosecution case. Similarly in that way it would be unlikely to overwhelm a jury.
115The jury will be told the tendency evidence is but one aspect of the prosecution case. They will well understand the different gravity of the ensuing damage on each earlier occasion and on the occasion of the fire. Directions to be given would include an anti-propensity direction.
116In my view there is a very low risk that the jury may misuse that evidence.
Conclusion
117I find the evidence supports the tendency and is significantly probative of the facts in issue.
118I find that the probative value substantially outweighs any prejudicial effect.
119The evidence of tendency will be admitted.
120The evidence pertaining to the sentence for the 2019 offending will be excluded. The evidence of the existence of the FVIO from October 2019 will be excluded and the Indictment severed to exclude Charges 1, 2 and 5 of breach intervention order.
And I so rule.
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