Director of Public Prosecutions v Wilson (Ruling)
[2021] VSC 766
•22 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0168
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JESSICA ANNE WILSON | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2021 |
DATE OF RULING: | 22 November 2021 |
CASE MAY BE CITED AS: | DPP v Wilson (Ruling) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 766 |
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CRIMINAL LAW – Evidence – Tendency - Accused charged with murder – Whether accused had intention to kill or cause really serious injury – Whether accused acted in self-defence – Whether evidence proposed to be adduced by accused concerning previous behaviour of the deceased admissible – Evidence Act 2008, s 97.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Rogers SC with Mr P Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr A Waters with Ms N Smith | Martin Middleton Oates Lawyers |
HER HONOUR:
The accused is charged with the murder of Marcus Lloyd Adams (‘the deceased’) on 20 September 2019.
The prosecution alleges that the accused stabbed the deceased once in the back in the caravan in which they had resided since mid-August 2019. The deceased and accused had returned to the caravan together on 19 September after the accused had spent approximately four weeks in hospitals in Melbourne and Geelong following a car accident on 24 August 2019.
Various residents of the caravan park give evidence of hearing an argument occurring in the caravan of the deceased and accused ‘on and off’ in the early hours of the morning. The accused made a 000 call at 2.31am. When police arrived at the scene the accused was leaning over the deceased, who was unconscious on the floor of the caravan.
The prosecution case, as outlined in the Summary of Prosecution Opening, is that the accused attacked the deceased, stabbing him with a knife as he attempted to disarm her. In the alternative,[1] the prosecution case is that the accused became frustrated and angry with the deceased which may or may not have been precipitated by a ‘minor man-handling’ by the deceased of the accused.
[1]Koani v The Queen [2017] HCA 42.
The accused has provided varying (and somewhat conflicting) accounts of the argument and stabbing. As is made plain in the Defence Response to Summary of Prosecution Opening dated 13 November 2020, the accused’s case is that the argument developed into a ‘physical domestic’ in which the deceased threatened her with a hammer, grabbed her around the neck, shook her and pushed her head up against the bunk beds in the caravan. The stabbing, which she admits, took place during the altercation.
The issues in the trial are whether, at the time the accused stabbed the deceased, she intended to kill or cause really serious injury and whether, when she did so, she acted in self-defence.
Tendency notice
By an Amended Notice of Intention to Adduce Tendency Evidence (‘Notice’) dated 15 November 2021, the accused seeks to adduce tendency evidence concerning the deceased. The deceased’s tendency, as sought to be proved, is
To be easily angered, and to display aggressive, threatening, and violent behaviour, particularly when taking stimulant drugs and steroids.
Following further amendments to the Notice made during the course of oral argument, the accused argues this tendency relates to three facts in issue in the trial. First, whether during the incident leading to the death of the deceased the accused attacked him (being the prosecution case). Second, whether during that incident – as alleged by the accused – the deceased was ‘in her face screaming at her’.[2] Third, whether the accused’s action in stabbing the deceased once in the back was a reasonable response in the circumstances as she perceived them.
[2]The accused abandoned her previous position that the alleged tendency also related to whether, during the incident, the deceased threatened her with a hammer, grabbed her around the throat and pushed her against the ladder on the bunk beds and threw her from one side of the caravan to the other.
The accused identifies seven particulars of the evidence said to establish the tendency. The first five are drawn from the evidence of Ms Brohgan Parmenter, the former partner of the deceased. Ms Parmenter’s statement forms part of the Depositions but she is not named as a witness on the indictment.[3] They are:
[3]This raises an issue which will be addressed below.
(a) Ms Parmenter’s police statement dated 19 November 2019 in which she stated:
I started to experience some problems with Marcus’ behaviour when he would go on a drug binge. There was (sic) financial and control issues between us when he was like that and if I confronted him about it he would make verbal threats but that was it.
(b) A portion of Ms Parmenter’s evidence from an examination under s 198B of the Criminal Procedure Act 2009 conducted on 24 August 2020 in which she stated that between about May 2015 and May 2016 she became aware that the deceased was using ‘ice’. The deceased had tried to hide it, but it became obvious and was the trigger for Ms Parmenter ending the relationship because ‘it was a whole different ball game’. She said the ice usage of the deceased became obvious because he was ‘not sleeping … angry … never ever violent, ever’. When asked to explain what she meant by angry she said ‘just short. Very short, that’s all. It wasn’t in his character to be like that … very short in patience’. When asked to explain what a ‘drug binge’ was, Ms Parmenter said ‘he would use for about a week instead of just a day or two, it was getting to about a week. … and that was a timeframe where I would notice – that – that was a massive timeframe to notice changes in his behaviour.’ She said she noticed that he wouldn’t sleep and in general was short and very impatient. When asked about financial and control issues referred to in her police statement, Ms Parmenter said ‘just money going missing, basically. … the emotional issues were – like I said – it was just the same feeling with his shortness and the impatience, and it’ll be me and the kids that have to deal with that, but … he was never – there was never violence’. When asked about what she confronted the deceased about she said the missing money. When asked what verbal threats the deceased made when so confronted, Ms Parmenter said ‘I honestly don’t recall that at the moment, that was a long time ago.’
(c) A different portion from the s 198B examination conducted on 24 August 2020 in which Ms Parmenter stated she had taken out about four or five intervention orders against the deceased over a number of years. She stated that she remembered going to court to obtain the orders and truthfully filling out forms to say what had happened. She stated that she went into court and took an oath that the content of the applications were truthful.
(d) An application for a family violence intervention order (‘FVIO’) dated 12 December 2012 in which Ms Parmenter is listed as the affected family member[4] and in which the reasons why the FVIO was needed were as follows:
[4]On its face the application document states that Brohgan Parmenter makes the application and that it is a police application.
’11.11.12 Respondent came to my house to collect some stuff out of my shed to sell he threatened to ‘have me knocked.’
10.11.12 Abusive telephone calls and threats
09.11.12 Abusive and threatening phone calls.
Roughly four years ago I took out an AVO due to Marcus’ drug use causing him to become dangerous and extremely threatening.
He has a long history of drug abuse which has become clear will never change.
His temper has become worse with his recent ice addiction.’
(e) An application for a FVIO dated 7 August 2017 in which Ms Parmenter is listed as the affected family member[5] and in which the reasons why the FVIO was needed were, in part, as follows:
…
I’ve had roughly 5 intervention orders against Marcus in the past. My children have been 1 or 2 of them. All of the orders have been aggressive behaviour to me and the children.
…
Marcus is constantly abusing drugs and when he does he becomes aggressive and violent.
[5]On its face the application document states that Brohgan Parmenter makes the application.
The sixth particular of the evidence said to establish the tendency is drawn from extracts taken from Victoria Police’s LEAP database concerning findings of guilt against the deceased with respect to two breaches of a FVIO. They are:
(a)On 1/7/17 at 1600hrs the deceased whilst subject to a [FVIO] which prohibited him from contacting or approaching Brohgan Parmenter or their two children approached Brohgan Parmenter in his vehicle, whilst she was in her vehicle with her two children, honking his horn, yelling out the window and waving his hands out the window at Brohgan Parmenter. Brohgan Parmenter’s daughter wound up her window as she was scared of the deceased.
(b)On 5/9/17 at 0940hrs the deceased,[6] whilst subject to a [FVIO] prohibiting him from attending any place where Brohgan Parmenter or her two children lived worked, or attended school, attended Brohgan Parmenter’s home took property without consent and left a note reading “I grabbed bedside tables and I want all my antiques furniture & my stuff for kid until I die eg footy cards, etc stamps and plates plus all my plants and security system”.
[6]Marcus Adams is referred to as ‘the deceased’ in the LEAP extract quoted in the Notice even though the entry relates to a date two years before his death.
The seventh of the evidence said to establish the tendency is answers given by the accused to police during her record of interview (‘ROI’) as follows:
… he’d been using anabolic steroids more often than he was supposed to be, illegally that he’d obtained, and, yeah, he – cause he’s never been violent towards me, I –
So – and, yeah, he’d been using it, like, every few days and then, like, I noticed – like weight going on[7] quick…
Yeah, he’d actually – he had a – he had a – a this scrape on his head where he’d gone up and headbutted a guy in Geelong at the bus stop, like, just in the last week.[8]
[7]The words ‘weight going on’ do not appear in the transcript of the ROI contained in the depositions.
[8]This passage, which is the answer to Q 85, appears in the ROI transcript contained in the depositions as ‘yeah, he’d actually – he had a – he had a – a – his screen broke, he hit his head where he’d gone up and headbutted a guy …. bus stop, like, just in the last week’.
Legal Considerations
The tendency rule is established by s 97 of the Evidence Act 2008 (‘Act’). It is in the following terms.
(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) Subsection (1)(a) does not apply if—
(a) the evidence is adduced in accordance with any directions made by the court under section 100;
(b) or the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Tendency evidence does not, alone, prove any particular fact in issue. It is a species of circumstantial evidence supportive of a particular mode of reasoning. Tendency reasoning allows the drawing of an inference that because a person has a tendency to act in a particular way or have a particular state of mind it is more probable that he or she acted in that (or a similar) way or had that state of mind in respect of the relevant circumstances.
To be admissible, the evidence establishing the tendency must have significant probative value in the respect in which it is relevant. ‘Probative value’ of evidence is defined in the Act’s Dictionary as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’
Although undefined in the Act, ‘significant’ probative value has been held to mean something more than mere relevance and something less than a ‘substantial’ degree of relevance.[9] The High Court has said that in considering the nature of the facts in issue and the significance and importance which the evidence may have in establishing those facts, then ‘[s]o understood, the evidence must be influential in the context of fact-finding’.[10]
[9]R v Lockyer (1996) 89 A Crim R 457, 459.
[10]IMM v the Queen (2016) 257 CLR 300, 314 [46] (‘IMM’).
In R v Semaan,[11] Priest JA identified a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency. They include:
… the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of occurrence of the conduct and charged conduct are similar.[12]
[11][2013] VSCA 134.
[12]Ibid, [40].
In Hughes v The Queen[13] the High Court said that the assessment of whether tendency evidence has significant probative value involves consideration of two interrelated but separate matters. The first is ‘the extent to which the evidence supports the tendency.’[14] The second is ‘the extent to which the tendency makes more likely the facts making up the charged offence.’[15]
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[16]
[13](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
[14]Hughes, [41].
[15]Ibid.
[16]Ibid.
Further, the High Court emphasised that the assessment task is not one of precision:
… the open-textured nature of an enquiry into whether ‘the court thinks’ that the probative value of the evidence is ‘significant’ means that it is inevitable that reasonable minds might reach different conclusions. This means that in marginal cases it might be difficult to know whether an appellate court might take a different view of the significance of the tendency evidence from a trial judge. … In any event, the open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant.[17]
[17]Hughes, [42].
As Campbell J observed in R v Holmes (No 5)[18] it is ‘quite apparent’[19] that the High Court’s analysis of the two interrelated questions:
is conditioned strongly by the idea that often it is the prosecution that seeks to introduce the tendency evidence. ‘Beyond reasonable doubt’ is the applicable standard of proof and the facts in issue relate to the legal elements of the offence. Matters may be somewhat different in terms of ‘significant probative value’ when one deals with the evidence to be introduced by the accused.[20]
[18][2021] NSWSC 115 (‘Holmes’).
[19]Holmes, [35].
[20]Ibid.
Indeed the approach to the question of admissibility of tendency evidence sought to be adduced on behalf of an accused being ‘of necessity, different’[21] from that taken where it is the prosecution who seeks to adduce tendency evidence has long been recognised.
[21]DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665 (‘Campbell’), [41].
Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that the evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[22]
[22]Campbell, [41]. Holmes, [44].
It follows that in the present case, if the evidence may be significant when it comes to determining whether there is a reasonable possibility that the account of the accused is true, then it is of significant probative value. If the jury accept that the prosecution has not excluded the reasonable possibility that the stabbing took place in the context of the argument and ‘physical domestic’ as characterised by the accused, as opposed to a ‘minor man-handling’ as posited by the prosecution (in the alternative), that may mean that the jury is not persuaded beyond reasonable doubt that the prosecution has proved its case.
Does the evidence support the tendency alleged?
The first question to determine is whether the particularised evidence supports the tendency alleged.
The alleged tendency of the deceased, as phrased by the accused, is two-fold. First, state of mind, namely to be ‘easily angered’. Second, a behaviour, namely ‘to display aggressive, threatening, and violent behaviour’. I understand from the manner in which the matter was argued that these two aspects of the alleged tendency are conjunctive. While this state of mind and behaviour are alleged to have been ‘particularly’ prevalent when the deceased took ‘stimulant drugs and steroids’, the use of the word particularly indicates that the tendency is alleged to exist even absent the use of stimulant drugs and steroids.[23]
[23]So much was confirmed by counsel for the accused in argument. Transcript of pre-trial argument on 17 November 2021, page 28, lines 24-29.
It is necessary to consider the particulars of the evidence relied upon by the accused.
The first two particulars of Ms Parmenter’s evidence (detailed in paragraphs 9(a) and (b) above) may be conveniently considered together. The import of that evidence is that the deceased was never physically violent towards Ms Parmenter (or their children).[24] He was short and impatient with her (and their children) when he used ice, but not angry in any other way whilst intoxicated. When the deceased was on a ‘drug binge’, being drug use over a period of a week rather than a day or two, money would go missing and in response to being confronted by Ms Parmenter about that, the deceased would issue verbal threats, the detail of which Ms Parmenter could not recall.
[24]This was expressly confirmed by Ms Parmenter in other parts of both her police statement and in the evidence she gave at the s 198B examination. Depositions, 827.
This evidence does not support the alleged tendency of the deceased being ‘easily angered’, whether affected by stimulant drugs or steroids, or not. In other evidence given at the s 198B examination, Ms Parmenter said that the deceased’s drug use did not affect his temper, ‘[h]e was never the type to fight and argue or anything like that’, even when he was on drugs.[25] Rather, the evidence is that the deceased became short and impatient when using ice. Ms Parmenter could give no evidence as to the deceased’s state of mind or behaviour when he had taken steroids. She stated that she was never aware that the deceased took anabolic steroids during their relationship (or later).[26]
[25]Depositions, 829.
[26]Depositions, 835.
This evidence only partially supports the alleged tendency of the deceased ‘to display aggressive threatening, and violent (but not physically violent) behaviour’. The evidence of threats is limited to verbal threats (of unknown content) and then only in response to being confronted about money issues. Ms Parmenter expressly disavowed that the deceased ever threatened to hurt her.[27] Further, when asked whether the deceased had ever become aggressive with her or abused her, Ms Parmenter replied that he had not.[28]
[27]Depositions, 827.
[28]Depositions, 827 and 829.
That evidence must also be considered in relation to the allegations contained in the various applications for FVIOs, which Ms Parmenter said were truthful (the import of the third particular of Ms Parmenter’s evidence relied upon by the accused (detailed at paragraph 9(c) above)). It is convenient to consider the particulars relating to the FVIO applications separately.
The fourth particular (detailed at paragraph 9(d) above) concerns a threat to have Ms Parmenter ‘knocked’, abusive and threatening telephone calls of unknown number and content over two days, a reference to the deceased’s pernicious drug habit which, four years prior, led him to become ‘dangerous and extremely threatening’ and an assertion that the deceased’s temper had become worse with ice consumption.
Although Ms Parmenter was asked if the allegations she made in the applications for FVIOs were truthful, she was not asked the detail of any of the threats made or abuse inflicted during the phone calls. It is unknown if those threats were in a similar vein to the threat to have her ‘knocked’, which was delivered on the third of three consecutive days over which the telephone calls and the specific threat were made. That specific threat was made in circumstances in which the deceased attended at Ms Parmenter’s home to collect items from the shed to sell. It seems that none of these threats were issued in the course of an argument. But, although broad and lacking detail, the evidence is that on three days in November 2012 the deceased behaved in an abusive and threatening manner over the telephone and made a threat directly to Ms Parmenter.
Ms Parmenter was not asked what she meant when she said that four years prior to the 2012 FVIO application the deceased had become ‘dangerous and extremely threatening’ because of his drug use. She was not asked what she meant when she said that the deceased’s recent ice addiction had made his temper worse. In any event, that evidence cannot support a tendency to easily anger or to display aggressive, threatening or violent behaviour in the absence of drug usage. At most, it is evidence of unspecified dangerous and (extremely) threatening behaviour by the deceased in the context of drug use some four years prior to 2012, and a worsening of the deceased’s temper concomitant with his ‘recent’ ice addiction.
This evidence of the fourth particular may provide some support for part of the alleged tendency.
The final particular with respect to Ms Parmenter’s evidence (detailed at paragraph 9(e) above) is, as noted, only part of the reasons given for the 2017 application for a FVIO. It is illuminating to note the full context.
AFM[29] and respondent have known each other for approx. 12 years and separated about 6 years ago. They have two children together.
Starting back roughly 4 months ago Marcus started taking drugs again. My daughter saw the after affects (sic) of his drug use, he wasn’t able to care for our children properly. He took my son to a house of someone who recently got out of jail and my son witnessed an overdose wile in his father’s care. Marcus was also using drugs (this was approx mid July). Over the past 4 months Marcus has sent me dozens of sexually explicit messages.
Last weekend my son also opened a used sharps kit and saw empty syringe wrappers and a white powder he thought was candy this behaviour has continued for 4 months. After I got my son we went to Geelong to his parents and he found out I was there. He threatened to come down. I returned from Geelong on Saturday.
I’ve had roughly 5 intervention orders against Marcus in the past. My children have been 1 or 2 of them. All of the orders have been aggressive behaviour to me and the children. He has broken every one of them but CNV have advised me to get this one for our safety.
Marcus is constantly abusing drugs and when he does he becomes aggressive and violent.
Marcus doesn’t currently know where we are as I don’t want to return to the house but I’m concerned he will show up at my kids school.
[29]Meaning affected family member, that is Ms Parmenter.
In the reasons given for the FVIO application, Ms Parmenter provides detailed complaints about the exposure of her children to drug taking by the deceased and the obvious emotional and psychological harm that occasioned. This behaviour falls within the definition of ‘family violence’ for the purposes of the Family Violence Protection Act 2008 (‘FVPA’).[30] There is no complaint made of anger at all. The complaint of aggressive and violent behaviour is generic. The behaviour detailed with respect to the children is properly characterised as aggression. Further, the allegation of aggressive behaviour seems, at least in part, referrable to the past. What is expressed in the present tense is tied to drug abuse.
[30]FVPA, ss 5(1)(a)(ii) and 5(1)(b).
At best, these statements relied upon by the accused may provide some support for part of the alleged tendency.
Before turning to the next particular of evidence relied upon by the accused to establish the tendency alleged, I note that when considered as a whole, the evidence of Ms Parmenter is, in many aspects, conflicting. The parts of Ms Parmenter’s answers at her s 198B examination that appeared inconsistent with the broad allegations she made against the deceased in the FVIO applications were not sufficiently explored during that examination to determine if they were real or apparent. That forensic choice by the defence leaves open the possibility that if Ms Parmenter gives evidence in the trial, evidence of the detail of the deceased’s ‘aggression and violence’ described broadly in the FVIO applications may fall unexpectedly.
I accept the prosecution submission that given the expansive definition of ‘family violence’ in the FVPA, care must be exercised not to automatically equate an allegation of aggression and violence made in an application for a FVIO with physical violence or something akin to ‘being in someone’s face’. Support for that point of construction may be found in the denials of such behaviour in which Ms Parmenter gave her evidence at the s 198B examination whilst simultaneously acknowledging the history of FVIOs. However, as noted above, I consider that certain aspects of particulars four and five (in combination with the adoption of truthfulness in particular three) if taken as ‘accepted’[31] provides some support for some parts of the tendency alleged.
[31]IMM, 312 [39].
But there is very little support for the deceased being easily angered. The only reference to the deceased’s temper is in the 2012 FVIO application which noted a worsening of temper in the context of ice addiction. A worsening of temper in a man other evidence suggests had none noted on a single occasion seven years prior to his death does not support a tendency to a state of mind of easy anger. If, as I understand the position to be, the tendency alleged is to be read conjunctively, then the (mostly) generic aggressive, threatening and violent behaviour referred to in the FVIO applications is not supportive of that tendency because it arose from a state of mind other than a quickness to anger. But, assuming either that the tendency alleged should be considered disjunctively or that aggressive, threatening and violent behaviour should be considered to necessarily spring from anger, the evidence lacks specificity and is very limited in the number of times it was said to occur. Further, there is no evidence of any anger or aggressive, threatening and violent behaviour by the deceased in the absence of drug intoxication. Specifically, there is no evidence of any anger or aggressive, threatening and violent behaviour by the deceased in the context of steroid use.
Turning then to the next particular of evidence relied upon by the accused, namely the LEAP extracts (summarised at paragraphs 10(a) and (b) above), I am of the view that neither extract supports the tendency alleged.
The incident that occurred on 1 July 2017 in which the deceased and Ms Parmenter (and the children) were in different cars, involves the deceased ‘honking his horn, yelling out the window and waving his hands out the window’. While undoubtedly a breach of the then extant FVIO through mere contact, there is nothing in that description which indicates that any of that behaviour was aggressive, threatening or violent. The words used by the deceased are unknown. The manner in which he waved his hands is not described. The behaviour may have been aggressive, but equally it may have been the deceased simply attracting the attention of his former partner and children. I do not consider that the notation in the extract that the daughter of Ms Parmenter wound up her window because of fear of the deceased illuminates the circumstances. It is not clear whether the child expressed fear or it was simply assumed by Ms Parmenter that the child’s actions were because of fear. In any event, even if the child was fearful of the deceased, it cannot be assumed it was because of the behaviour of the deceased at that time rather than prior behaviour. There is ample evidence to indicate that the deceased was short and impatient with his children and exposed them to frightening situations in the context of drug taking.
The incident on 5 September 2017 in which the deceased left a note for Ms Parmenter at her home (seemingly when neither she nor the children were at home), again was a clear breach of the then extant FVIO. But the note displays no element of aggression, threat or violence.
Considering both matters, and to the extent that it may be considered that any breach of a FVIO is aggressive, threatening or violent, a breach by impermissible contact is very different from the aggressive, threatening and physically violent behaviour of which the accused told police the deceased engaged in on 20 September 2019.
Turning to the last particular of the evidence in the accused’s ROI relied upon to establish the tendency alleged, the behaviour attributed to the deceased is that he had ‘gone up and headbutted’ a guy at a bus stop while under the influence of steroids.[32]
[32]I assume for the purposes of the assessment that the jury will accept what the accused contends can be heard in the ROI which, as noted above, is different from the transcript contained in the Depositions.
While there is evidence that the deceased had injuries to his head which are consistent with such a scenario, the circumstances of the alleged event are unknown. The interaction between the deceased and the unknown man is a matter of speculation. It is not clear whether the deceased was angry, had any prior relationship with the man or had engaged in any communication with him on the day. There is no account of the events leading to the head butt. Further, the accused could not have been a witness to the incident. It is unclear who told her about it and whether her allegation that it occurred because of steroid use was an assumption on her part. For the purpose of establishing the tendency alleged, the evidence is inadmissible hearsay and potentially inadmissible opinion.[33]
[33]However, the parties agree that the relevant questions and answers will be led in evidence pursuant to s 81(2) of the Act, as it is a ‘previous representation’ made at the time of the admission to the fatal stabbing to which it is reasonable necessary to refer in order to understand the admission.
It follows that I am of the view that this evidence does not support the tendency alleged.
Does the evidence support reasonable inferences consistent with innocence?
As noted above, the accused seeks to rely upon the alleged tendency of the deceased to easily anger and display aggressive, threatening and violent behaviour, particularly when taking stimulant drugs and steroids with respect to three facts in issue in the trial. The heart of each of them is whether the accused stabbed the deceased in self-defence.
In turn, the common factual issue underlying that question is whether the deceased acted in the manner asserted by the accused in the lead up to the stabbing.
Indeed, in written submissions, defence counsel focused on the potential for the alleged tendency
to rationally affect the assessment of the probability of facts in issue to a significant extent namely the reasonable possibility that on the night of the incident:
a.During a domestic altercation with the accused the deceased was ‘in her face, screaming at her’, and
b.Threatened the accused with a hammer; and;
c.Grabbed the accused around the throat, pushed her head against the ladder on the bunk beds and threw her from one side of the caravan to the other.
And accordingly, that the account of the accused, that she acted in self-defence, is true.[34]
[34]Outline of Submission Regarding Defence Application to Adduce Tendency Evidence, [10].
If the jury accept that the deceased did act in that manner, they are likely to reject the prosecution argument that the accused ‘attacked’ the deceased. The behaviour of the deceased during the altercation, as determined by the jury, is also relevant to their consideration of whether the accused’s action in stabbing the deceased in the back during the altercation was a reasonable response in the circumstances as she perceived them.
In other words, the behaviour of the deceased in the period prior to the stabbing is absolutely fundamental to the issues identified by the accused. His alleged physical behaviour at the time is critical. If the jury do not accept the aspects of physical violence asserted by the accused, the prosecution case on its own terms is stronger and the prosecution task of proving that the accused’s conduct in stabbing the deceased was not a reasonable response in the circumstances as she perceived them is made easier. The converse follows.
The difficulty is that, as conceded by defence counsel, the tendency evidence is not probative of the deceased’s physical behaviour in the caravan. Defence counsel abandoned the earlier submission that the particulars of the tendency evidence relied upon related to whether the deceased threatened the accused with a hammer, grabbed her around the throat or pushed her head against the ladder on the bunk beds and threw her from one side of the caravan to the other. The submission now is rather that the evidence is probative of whether the deceased was ‘in the face’ of the accused screaming at her (and whether she attacked him or her stabbing him was a reasonable response in the circumstances).
There is some evidence that the deceased was previously verbally ‘violent and aggressive’ (either by being short and impatient or behaving in some other, unspecified way) in the context of ice intoxication. There is some evidence that the deceased previously issued threats in the context of ice intoxication, particularly when confronted about missing money. It is not clear whether the deceased was affected by ice on the single occasion in 2012 he threatened to have Ms Parmenter ‘knocked’.
Evidence of previous aggression in the context of ice intoxication may have some relevance in the evaluation of the issue identified by the accused, namely whether the deceased was ‘in the face’ of the accused, and may provide some support for that proposition but that evidence does not necessarily make it more likely that the deceased was physically violent in the manner alleged by the accused.
Does the evidence have significant probative value?
Turning to the ‘open-textured’ enquiry as to whether the evidence supportive of the tendency alleged has significant probative value, given that it is the defence that seeks to adduce the evidence that enquiry must focus upon whether the evidence supports the tendency alleged and whether the tendency supports the reasonable possibility of a state of facts consistent with innocence. As articulated above, in this case the latter is a question of whether it is reasonably possible that the account given by the accused is true.
It is necessary to consider that question having regard to ‘other evidence adduced or to be adduced’. Although this phrase in s 97(1)(b) of the Act refers to other evidence adduced by the party seeking to adduce the tendency evidence, it would be ‘incongruous if, in considering that question, the court did not also take into account other evidence which was to be adduced by the prosecution’.[35]
[35]Campbell, [58].
Other evidence includes the toxicology report of the deceased which showed the presence of both methylamphetamine and anabolic steroids and the evidence of other residents of the caravan park. The latter is summarised in the Summary of Prosecution Opening as:
[7]During the evening of 19th September 2019, the accused and deceased were in their caravan. Their neighbours reported hearing them arguing inside the van. This seemed to continue on and off into the early hours of the morning (Friday 20th September). Neighbours heard a female (the accused) with a raised voice as well as banging coming from Site 3.
[8]Witness Bronwyn Wallace was awoken by banging and yelling from the caravan next door. She heard the accused yell ‘you drug fucked dog’. Around the same time as that comment, the deceased was heard to say ‘leave me alone’.
[9]Witness Alisha Walker was awoken by a male and female arguing. She heard the accused screaming at the deceased.
[10]Witness Paul Smorthwaite was awoken by a female arguing. He heard what sounded like ‘jumping around on a wooden floor’. He only ever heard a female voice. She was yelling. This yelling was ‘like on and off’. He heard the female yell ‘get off me, cunt’. He heard this phrase said by the woman about three or four times over about an hour. About 20 minutes later the woman came out of the caravan yelling ‘help, help, help. At not stage throughout the entire argument did Mr Smorthwaite hear a male voice. It was at all times a female voice yelling.
[11]Witness Emma Roach was awoken by a woman screaming ‘give me my wallet’ and then the sound of crashing and banging.
[12]Witness Alan Stewart heard ‘two people arguing’ around 2.40am. He could not make out specific words. To Mr Stewart it sounded like two male voices having a bit of an argument. This yelling lasted about 20 minutes.
Another witness, Benjamin Ebbott (who was with Bronwyn Wallace) gave evidence during an examination conducted pursuant to s 198 of the Criminal Procedure Act 2009 that he awoke to banging. He only heard the deceased once, but could not make out the words. He heard the accused say ‘you’re a drug fucked dog’ and ‘leave me alone’. There was banging between the talking. Then he heard the female voice a few more times. About half an hour after he first woke up he heard the female voice say ‘Marcus get up, Marcus get up’.
Further, the defence intends to elicit hearsay evidence (without objection by the prosecution) that the deceased was upset about the circumstances of the car crash in which the accused had been injured. That upset apparently stemmed from the fact that the accused had been in the car with another man and the deceased had been told by police that at the time of the crash the accused had not been wearing a seatbelt and was possibly giving oral sex to the man.
While I am of the view that the evidence particularised by the defence does not support the tendency alleged, some of that evidence supports some of the tendency alleged. If the tendency was phrased differently, then some of the particularised evidence would be supportive of it and probative of the reasonable possibility that the account of the accused is true. The relevant circumstances are a confrontational situation where the deceased was under the influence of methylamphetamine. While the evidence of tendency cannot be used directly with respect to the likelihood of the deceased being physically violent, there is evidence of his tendency of aggression in similar situations. In this regard that I note that the words ‘aggressive’ and ‘threatening’ are largely synonymous. So too is ’violent’, if used in a non-physical sense.
If the tendency was phrased as ‘to display aggressive behaviour in confrontational situations when taking methylamphetamine’ then parts of the evidence are both supportive of that tendency and ‘influential’ in the jury’s task of fact-finding. Whilst the accused cannot point to a tendency of physical violence on the part of the deceased, there is sufficient evidence of a history of the deceased’s verbal aggression in the context of ice usage over some years that significantly bears on the question of his likely behaviour during the relevant argument whilst under the influence of that drug.
Conclusion
The defence will be permitted to adduce the following evidence as evidence of a tendency by the deceased to display aggressive behaviour in confrontational situations when taking methylamphetamine.
(a) Evidence of Brohgan Parmenter that when the deceased was under the influence of ice he was short and impatient.
(b) Evidence of Brohgan Parmenter that when the deceased was under the influence of ice and was confronted about financial issues, he would make verbal threats.
(c) Evidence of Brohgan Parmenter’s statements in the 12 November 2012 FVIO application that the deceased had a long history of drug abuse and his temper had become worse with his recent ice addiction.
(d) Evidence of Brohgan Parmenter’s statement in the 7 August 2017 FVIO application that the deceased constantly abused drugs and when he did he became aggressive.
The prosecution’s course of not calling Brohgan Parmenter as a witness
As noted above, Ms Parmenter is not listed as a witness on the indictment. That indictment was filed on 2 November 2021. It filed over a previous indictment in which Ms Parmenter was listed as a witness. The current indictment also added three witnesses and made a correction to the name of another witness.
In written submissions defence counsel argued that the removal of Ms Parmenter as a witness from the indictment following the filing of an amended indictment by the prosecution was done to obtain a ‘tactical advantage’.
Senior Counsel for the prosecution, who was not counsel at the time the first indictment was filed, submitted that the evidence of Ms Parmenter is not relevant to any fact in issue and denied that her forensic judgment, which differed from her predecessor, was exercised to obtain a ‘tactical advantage’.
In the course of pre-trial argument, defence counsel accepted that the senior prosecutor’s forensic judgment was genuinely held, even if he disagreed with it.
I need not address that matter further.
In written submissions the prosecution stated that if the tendency evidence (insofar as it relates to Ms Parmenter’s evidence) was ruled inadmissible, it was not obliged to call her during its case. This was because the prosecution position is that Ms Parmenter’s evidence, when taken as a whole, did not establish the tendency which the defence alleged. As the defence had given notice of its intention to rely on the tendency evidence, it was for the defence to call Ms Parmenter.
The evidence of Ms Parmenter now admitted with respect to the deceased’s tendency is a subset of that originally particularised by the defence and is referrable to a more constrained and differently phrased tendency.
That is a matter for the prosecution to now consider in accordance with its fair trial obligations in determining whether Ms Parmenter will be called as a prosecution witness.[36]
[36]Nguyen v The Queen [2020] HCA 23, [26] and [66].
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