Donohue v Tasmania
[2016] TASCCA 17
•5 October 2016
[2016] TASCCA 17
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Donohue v Tasmania [2016] TASCCA 17
PARTIES: DONOHUE, Darryl Scott
v
STATE OF TASMANIA
FILE NO: CCA 142/2015
DELIVERED ON: 5 October 2016
DELIVERED AT: Hobart
HEARING DATE: 29 September 2016
JUDGMENT OF: Blow CJ, Estcourt and Brett JJ
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – Other cases – Inciting to commit murder – Tendency of appellant to offer men he did not know money in return for killing his estranged wife for reasons related to access to his children.
Evidence Act 2001 (Tas), ss 97(1), 101(2).
IMM v The Queen [2016] HCA 14, 98 ALJR 529; R v Matonwal [2016] NSWCCA 174, referred to.
Aust Dig Criminal Law [2782]
REPRESENTATION:
Counsel:
Appellant: E G Hughes
Respondent: L Mason
Solicitors:
Appellant: Rae & Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASCCA 17
Number of paragraphs: 42
Serial No 17/2016
File No CCA 142/2015
DARRYL SCOTT DONOHUE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
BRETT J
5 October 2016
Order of the Court (29 September 2016)
Appeal dismissed.
Serial No 17/2016
File No CCA 142/2015
DARRYL SCOTT DONOHUE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
5 October 2016
On 2 December 2014 the appellant, Darryl Scott Donohue, was found guilty by a jury of two charges of inciting to commit murder, contrary to s 298 of the Criminal Code. He appealed against his convictions, contending that the learned trial judge, Pearce J, erred in a ruling as to the admissibility of tendency evidence, and in refusing to order separate trials of the two charges. On 29 September 2016 this Court heard the appeal and dismissed it, deferring the publication of the reasons for dismissing it. The Court is now publishing those reasons.
I have read the reasons of Estcourt J in draft form. They accord with my reasons for dismissing the appeal. There is nothing that I wish to add.
File No 142/2015
DARRYL SCOTT DONOHUE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
5 October 2016
The appeal
On 2 December 2014 the appellant, Darryl Scott Donohue, was found guilty by a jury of two charges of inciting to commit murder contrary to s 298 of the Criminal Code.
He was sentenced by Pearce J to seven years' imprisonment with a non-parole period of four years.
The appellant has appealed to this Court against his conviction on the grounds that the learned trial judge erred in refusing the appellant's application to sever the two counts on the indictment, and in admitting as tendency evidence, cross-admissible on both counts, the evidence of approaches by the appellant to witnesses Adrian Hayes and Mark Lopes, and to witnesses Scott Steven Saxelby and John Nicholas Etchell, to kill his wife, and the evidence of the subsequent criminal proceedings arising from the approaches to Messrs Hayes and Lopes.
A convenient summary of the facts surrounding the appellant's offending appears in the learned trial judge's comments on passing sentence, and is usefully recounted at this stage to provide an introductory context to the appellant's application to the learned trial judge to sever the indictment and to rule on the cross-admissibility of the proposed tendency evidence.
His Honour set out the following narrative:
"Darryl Scott Donohue was found guilty by a jury of two counts of inciting murder. These crimes occurred between May and July 2013 but some background is necessary. In April 2012 the defendant separated from his wife. Motivated by ill-feeling toward her and his inability to have access to his child, he stalked her and decided to have her killed. He approached a man he did not know [Mr Hayes] and offered him $10,000 for her murder. The police were notified. A covert operation was undertaken in the course of which the defendant also offered an undercover police officer posing as a hit man [Mr Lopes] $10,000 for the murder. On 22 February 2013 the defendant was sentenced to imprisonment for four years, with eligibility for parole after two years, following his plea of guilty to stalking and inciting the murder of his wife by the approach to the undercover police officer.
The crimes for which he is now to be sentenced occurred not long after that sentence was imposed. With continuing hatred for his wife and facing court proceedings to allow her sole parenting rights for their son, he approached two fellow inmates in the medium security unit of the Risdon Prison [John Excell and Scott Saxelby] seeking again to have his wife killed. The approaches were made independently and at about the same time. Before he was imprisoned he had not met either man. As he had done before, he proposed to each of them that they kill his wife in return for financial reward. He provided details about his wife, her address, her car and her routine and made suggestions about how the murder might be committed. The approaches he made so lacked credence that I think it unlikely that anyone would ever have acted on them. He told one man that although he did not then have the ability to raise the $20,000 he had offered he would instead provide a sequence of keno numbers with a promise of success because he had been researching the formula for six years. He suggested that his wife might be killed by remote electronic interference with her heart pacemaker and supported it with an explanation that the man understandably referred to as 'gibberish'. The defendant offered the other man $25,000, said he would pay after he was released, and suggested to him that he might kill her by putting cyanide in her parents' milk, cutting the brake cables of her car, stealing a tranquiliser gun and tranquilisers from a vet. He also suggested a scheme by which her parents would be killed and then Mrs Donohue lured to their home when she would be killed as well. One man immediately approached the authorities. The other dismissed the approaches but reconsidered after some publicity of the earlier crime caused him to reconsider and make a report."
The application to the trial judge
His Honour set out the application made to him at [1]-[2] of his reasons for ruling as follows:
"1 The accused, Darryl Donohue, pleads not guilty to two counts of inciting to commit murder contrary to s 298 of the Criminal Code. The first count alleges that between 3 May 2013 and 28 June 2013 the accused incited John Etchell to murder his estranged wife, Angie Donohue. The second count alleges that between 1 May 2013 and 25 July 2013 the accused incited Scott Saxelby to murder his estranged wife, Angie Donohue. The accused applies under s 326(3) of the Code for severance of the two counts on the indictment.
2 At the time of the alleged crimes the accused was serving a sentence of four years' imprisonment. The sentence was imposed on 22 February 2013 by Crawford CJ for the same crime after the accused pleaded guilty to inciting Mark Lopes, an undercover police officer, to murder his estranged wife. During the sentencing hearing the Court was told that the accused had also, before inciting Mr Lopes, approached another man, Adrian Hayes, and offered him money to murder his estranged wife. I also agreed to determine the following questions under s 361A of the Code:
(a)whether the evidence of the approaches to Mr Hayes and Mr Lopes on 22 February 2012 (sic) and the subsequent court proceedings is admissible on either count 1 or count 2 of the indictment, or both;
(b)whether the evidence relevant to each count on the indictment is admissible on the other count;
(c)whether evidence of a conversation between the accused and Mr Etchell on 28 June 2013 containing admissions should be excluded under s 90 of the Evidence Act 2001."
The learned trial judge's ruling on whether evidence of a conversation between the appellant and Mr Etchell on 28 June 2013 containing admissions should be excluded under s 90 of the Evidence Act 2001 (the Act) does not arise on this appeal.
It was agreed between the State and the appellant that his Honour determine the application and the questions on the basis of the Crown papers provided to him. Those papers included the statements of witnesses and other relevant documents.
The background facts on the application
The learned trial judge set out the background facts derived from the Crown papers at [5]-[11] of his reasons for ruling as follows:
"The background facts
5 There is material in the papers which, if proved, is capable of establishing at least the following. For about six years prior to 2012 the accused was in a relationship with Angie Donohue. They were married for four years. They lived at 112 View Bank Road in Newnham. They had one son together, born in 2009. Mrs Donohue had another son, from a previous relationship, born in 2003. Mrs Donohue owned a silver 1996 Toyota Camry registered number DN 3258 until it was sold in August 2013. Mrs Donohue had a heart condition and a pacemaker was implanted in August 2011. Her parents lived at 120 Goons Road Blackwood Creek. In April 2012 Mr and Mrs Donohue separated. A family violence order was made imposing conditions on Mr Donohue. He moved out of the View Bank Road home. Between April and October 2012 Mr Donohue made various approaches to Mrs Donohue which formed the basis of a charge of stalking for which he was also sentenced by Crawford CJ on 23 February 2013.
6 On 23 September 2012 the accused was at a barbecue at the home of Adrian Hayes in Exeter. Before this the accused and Mr Hayes were not known to each another. The accused approached Mr Hayes and introduced himself. He said that he understood that Mr Hayes had 'certain capabilities' and 'I've got ten grand cash and I want my ex missus topped off and taken out of the picture'. The accused did not say how payment was to be made or where the money was coming from. After some further discussion Mr Hayes left. The next day Mr Hayes received a phone message from the accused wanting to talk about 'the problem with his ex-wife'. The following day he received a text message from 'Daz' apparently seeking contact for the same purpose. Mr Hayes approached the police. On 26 September 2012 the accused was approached by two police officers who put to him that he was attempting to have someone kill his estranged wife. He denied this, saying 'Who would look after the children?'
7 Through a third party the accused was introduced to an undercover police officer, Mark Lopes (using a different name) posing as a hit man and, after a series of phone calls, a meeting was arranged. At least two such calls were from a mobile phone number listed in the accused's name. The meeting took place in room 253 of the Penny Royal Hotel in Launceston on Wednesday 24 October 2012. The accused told Mr Lopes that he would pay him $10,000 to have his estranged wife killed. He gave him a photograph and personal details, including about her car and her and the children's routine. There was discussion that their son went to Taekwondo on Monday night. He referred to her pacemaker, suggesting that interfering with it electronically may be a way of killing her.
8 The accused was arrested and taken into custody on 24 October 2012. He was sentenced on 22 February 2013. It was the contact between Mr Lopes and the accused which formed the basis of the conviction and sentence for incitement to murder. The evidence of the contact between Mr Hayes and the accused was background material given to the Court.
9 In May 2013, John Etchell was an inmate at Risdon Prison. He did not know the accused but they were both housed in the medium security section. He was approached in the yard by the accused. The accused offered him $20,000 to kill 'his missus'. Mr Etchell later told the police that the accused 'didn't care how he wanted me to do it, just that he wanted her dead'. The accused told him that his estranged wife's name was 'Angie' (not Angela) and that he wanted her killed 'before he gets out on parole in 2014 so that he can get custody of the youngest boy'. He gave her address, details of her routine including that she took one of the boys to Taekwondo one night a week. He offered a special code for obtaining keno payouts as a means of getting the money but, if that did not work, he would get the money 'after he got out on parole'. He also said that he had arranged a loan of $60,000.
10 Mr Etchell told the authorities of the approach and the police were informed. On Friday 28 June 2013, Mr Etchell was put on a prison bus with the accused on a trip from Hobart to Launceston. The conversation was recorded by the police. The approaches to Mr Etchell constitute the basis of the first count on the indictment.
11 Scott Saxelby was in Risdon prison between early May and late July 2013, during which time he was housed in the same section as the accused. They had not met before but quickly came to know one another. After Mr Saxelby had been in prison for a week or two the accused told him that he was in prison for trying to have his estranged wife, Angie Donohue, killed. He then offered Mr Saxelby $25,000 to have his estranged wife and her parents 'knocked off' so the accused could have custody of his children. Over the following six weeks or so there were frequent conversations between the accused and Mr Saxelby. The accused gave Mr Saxelby a hand-drawn map of the home of his estranged wife's parents and told him details about it. On another occasion, he gave him a note of the registration number of his estranged wife's car. The accused also told Mr Saxelby about some aspects of his estranged wife's routine, the layout of her home and suggested ways he may kill her and her parents. The conduct just described constitutes the basis of the second count on the indictment."
The law as to severance
In Tasmania v Harris [2016] TASSC 47, I set out a summary of the legal principles relating to an application to sever involving, not tendency evidence, but the closely related category of coincidence evidence. I venture to repeat what I said as relevant to the application to sever in the present case, involving as it did the not significantly dissimilar question of tendency evidence. Between [4]-[20] I said the following:
"The law as to severance
4 Section 311(2) of the Code states there can only be one count in an indictment unless 'those charges arise substantially out of the same facts or closely related facts or are, or form part of, a series of crimes of the same or a similar character'.
5 There will always be a sufficient nexus between the offences if the evidence of one crime is admissible on the trial of the other crime; Ludlow v Metropolitan Police Commissioner [1971] AC 29 per Lord Pearson at 39; De Jesus v The Queen (1986) 68 ALR 1, per Gibbs CJ at 3 and Dawson J at 16; Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445 at [26]; Andrews v The Queen (1986) 22 A Crim R 201; R v Iongi (1993) 69 A Crim R 441.
6 However joinder is not limited to cases where there is cross-admissibility. It is also permissible where the cases can be said to be a 'series'. A series will occur where there are similar crimes in a similar factual setting such as time and location or participation of the accused, or some other feature that establishes a prima facie case that they can properly and conveniently be tried together: Ludlow (above); De Jesus (above) at 15; Andrews (above) and R v Cogley [1999] VSCA 123…
Cross-admissibility
11 However, even if the counts are properly joined the Court can nonetheless order a separate trial pursuant to s 326(3) of the Code if it appears that an accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one crime in the same indictment.
12 In order to determine that issue it does become necessary to assess the extent to which the evidence on each count is cross-admissible, as the State accepts in relation to counts 1 to 6 that if the evidence is not cross-admissible then the indictment should be severed on the basis that the accused would be prejudiced or embarrassed in his defence.
13 On the basis of the evidence sought to be led in support of the allegations set out at [7] of these reasons, the State asserts that proof beyond reasonable doubt that the accused was the perpetrator on any one count in the indictment is admissible on the issue of whether he was the perpetrator on any or all of the other counts, as 'coincidence evidence' pursuant to s 98 of the Evidence Act 2001 (the Act).
14 Relevantly that section provides as follows:
'98 Coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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.'
15 Section 101 of the Act places further restrictions on the adducing of coincidence evidence.
16 Relevantly that section provides as follows:
'101 Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.'
The principles
17 It is necessary to give consideration to evidence sought to be tendered as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon; R v Matonwal [2016] NSWCCA 174 (17 August 2016), per Bathurst CJ [73], Rothman J [94] and McCallum J [95].
18 The task in determining whether to admit evidence as coincidence evidence is to be performed having regard to all of the evidence sought to be adduced by the party seeking to tender the evidence; Matonwal per Bathurst CJ [71], Rothman J [9] and McCallum J [95].
19 'Significant probative value' in s 98(1) of the Act means probative value which is 'important' or 'of consequence'. The significance of the probative value must depend on the nature of the fact in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. In other words, the evidence must be influential in the context of fact finding; IMM v The Queen [2016] HCA 14, 90 ALJR 529 per French CJ, Kiefel, Bell and Keane JJ [46] and Matonwal (above) per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95].
20 The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, that is to say, how it might be used by a jury, must be taken at its highest; IMM v The Queen (above), per French CJ, Kiefel, Bell and Keane JJ [44]."
As will be seen, the relevant principles are not significantly different in cases involving tendency evidence. For convenience I first set out s 97 of the Act, the provisions of which are as follows:
"97 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."
Evans J considered the similarity between cross-admissibility on the basis of coincidence evidence and on the basis of tendency evidence in Tasmania v Standage [2012] TASSC 88. His Honour said at [5]:
"For the evidence to be cross-admissible as either or both coincidence evidence or tendency evidence, it must have significant probative value, s97(1)(b), and s98(1)(b). As to coincidence evidence, consistent with s98(1)(b), the probability of the similarities between the killings being explicable on the basis of coincidence is a crucial aspect of the assessment of the probative value of the evidence and its capacity to prove that the accused was the killer on each occasion. Whilst no similar statutory reference to similarities underpins an assessment of the probative value of the evidence as tendency evidence, it is well settled that a significant factor in the assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied upon. See FB v R [2011] NSWCCA 217 at pars[28] – [30]; BP v R [2010] NSWCCA 303 at [108], and R v Fletcher (2005) 156 A Crim R 308 at pars[57] – [60]. So whilst it is necessary to keep the distinction between coincidence evidence and tendency evidence in mind, the distinction is less stark in this case than it can be, as in arguing for the admission of the evidence as both coincidence evidence and tendency evidence …".
In the application before the learned trial judge in the present case it was conceded by counsel for the appellant that the crimes arose substantially out of closely related facts and were part of a series of crimes of the same character, as there was both a factual and legal similarity between them. However, the appellant contended that his Honour should exercise his discretion to sever the indictment under s 326(3) of the Code on the basis that he would be embarrassed in his defence by reason of being charged with more than one crime in the same indictment.
Discussion of the trial judge's ruling
The learned trial judge took the view that the question of whether the evidence of each count was admissible towards proof of the guilt of the appellant on the other count was determinative of the severance application. He was correct to do so, in my view, because if the evidence was not cross-admissible it would be difficult, if not impossible, to see how any probative value the evidence had other, than for a tendency purpose, could outweigh its prejudicial effect. I note that in Standage (above) and in Harris (above) the State conceded that if the evidence was not cross-admissible the indictments should be severed.
In his Honour's reasons for ruling in the present case the learned trial judge discussed the evidence sought to be led by the State as tendency evidence as follows at [15]-[20]:
"Tendency evidence
15 Two of the questions for determination concern the admissibility of evidence on a tendency basis. The first question concerns the evidence concerning prior conduct – Mr Donohue's approaches to Mr Hayes and Mr Lopes. The second question concerns the cross-admissibility of evidence for each count on the indictment – the alleged approaches to Mr Etchell and Mr Saxelby. Much the same issue arises in each case.
16 Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency of a person which can be admissible to prove that the person had that tendency: Evidence Act, ss 3 and 97(1). Evidence that a person has or had a particular tendency supports an inference that it is more probable that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind: R v Cittadini (2008) 189 A Crim R 492 per Simpson J (with whom McClellan CJ at CL agreed) at 495 [23]. Tendency evidence is not admissible unless the party seeking to adduce the evidence has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. In this case notice has been given of an intention to lead evidence of tendency from Mr Lopes, Mr Hayes, Mr Saxelby and Mr Etchell, of the recorded conversation between Mr Etchell and the accused as well as evidence of the court proceedings leading to the conviction of the accused in February 2013. The tendency specified in the notice given by the State in this case is that the accused has a tendency:
(a) to approach people and request them to kill his estranged wife with the promise of financial reward;
(b) to provide suggestions of the ways that the person could kill her;
(c) to provide personal information about his estranged wife and/or provide information about her routine for that purpose;
(d) to approach people previously not known or connected to him to kill his estranged wife.
17 Tendency evidence is admissible only if the court thinks that the evidence, either by itself or having regard to other evidence, will have 'significant probative value', s 97(1)(b), and cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2).
18 'Probative value' is defined in the Evidence Act, s 3(1), to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. The accused admitted the conduct towards Mr Lopes which formed the basis of his plea of guilty. The facts concerning his conduct towards Mr Hayes were not disputed by the accused at the sentencing hearing and were taken into account by the sentencing judge. Nevertheless, in this case, it was submitted on behalf of the accused that the evidence of Mr Saxelby and Mr Etchell is of little probative value because it is not credible or reliable. The submission was based on the assertion that each is a prison informant with a motive to lie. However the submission overlooks that, in assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: Tasmania v L (above) at [42]; Tasmania v Finnegan (No 2) [2012] TASSC 1; Tasmania v W (No 2) [2012] TASSC 48; R v Shamouil (2006) 66 NSWLR 228; KMJ v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214. The lead judgment in KMJ was that of Evans J, with whom Blow J (as he then was) and Tennent J agreed. His Honour reviewed the authorities including Shamouil and Sood and said at [30]:
'These authorities show that, subject to the qualification referred to in Shamouil, par[63], counsel for the respondent is correct in submitting that recent authorities which have addressed the issue of the propriety of considering the reliability and credibility of evidence when determining its probative value for the purposes of ss135 or 137 (as well as ss97(1)(b), 98(1)(b), and 101(2)), have concluded that these considerations are irrelevant to that assessment.'
19 Tendency evidence has 'significant probative value' if it has more than 'mere relevance', or if it is 'important' or 'of consequence', though it need not have a 'substantial' degree of relevance: Tasmania v W (No 2) (above); R v Lockyer (1996) 89 A Crim R 457, per Hunt CJ at CL at 459; L v Tasmania (2006) 15 Tas R 381 at [31]. A significant factor in assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied on. See FB v The Queen (above) at [28]-[30]; BP v The Queen; R v BP [2010] NSWCCA 303 at [108] and R v Fletcher (2005) 156 A Crim R 308 at [57]–[60].
20 Assuming that it is accepted, the evidence sought to be adduced by the Crown from Mr Hayes, Mr Lopes, Mr Etchell and Mr Saxelby and the evidence relevant to the accused's approach to each man, is highly probative. The conduct on each occasion relied on is highly similar. Every case involves evidence of an approach by the accused to a person he did not know with an offer of money in return for killing his estranged wife for reasons related to access to his children. The crime of inciting to commit murder requires, in this case, proof by the State that the accused proposed or encouraged another to kill his estranged wife, intending that his proposal or encouragement be acted upon: Massie v R [1998] 1 VR 542; (1998) 103 A Crim R 551. It will be necessary for the Crown to exclude the prospect that the accused, if he acted as the Crown alleges, did not do so from bravado or in an effort to 'big-note' himself. Evidence of having acted in a certain way on the other occasions relied on by the Crown supports an inference that the accused acted in a similar way with a similar intention on another occasion."
All that his Honour said as to the relevant principles is entirely consistent with the majority decision in IMM v The Queen [2016] HCA 14, 90 ALJR 529 (French CJ, Kiefel, Bell and Keane JJ), as elucidated in R v Matonwal [2016] NSWCCA 174 per Bathurst CJ, Rothman and McCallum JJ which cases were decided after the learned trial judge's ruling.
Since IMM it is now beyond argument that "significant probative value" in s 98(1) of the Act means probative value which is "important" or "of consequence", and that the significance of the probative value must depend on the nature of the fact in issue to which the evidence is relevant, and the significance or importance which that evidence may have in establishing those facts. In other words, the evidence must be "influential in the context of fact finding": IMM per French CJ, Kiefel, Bell and Keane JJ at [46] and Matonwal (above) per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95]. The fact in issue here was whether the appellant by his words or conduct intended to encourage persons to kill his wife: Massie v The Queen [1999] 1 VR 542 at 547 per Brooking JA, with whom Winneke P and Batt JA agreed.
Likewise, it is now clear that the assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, that is to say, how it might be used by a jury, must be taken at its highest: IMM per French CJ, Kiefel, Bell and Keane JJ at [44].
The tendency evidence proposed to be led by the State, notwithstanding some contextual and other minor dissimilarities between each of the alleged approaches (including that the appellant was not charged with any crime arising from the approach to Mr Hayes), was, in my view, of very considerable importance in and of great consequence to, the jury's fact-finding exercise on the issue of whether the appellant intended to encourage either Mr Etchell or Mr Saxelby to commit the crime of murder. As the learned trial judge noted, every instance involved evidence of an approach by the appellant to a person he did not know with an offer of reward in return for killing his estranged wife for reasons related to access to his children. That is the level of abstraction at which each approach needed to be similar, and they were indeed, to my mind, strikingly so.
Having found that the evidence proposed to be led by the State had significant probative value, the learned trial judge went on to properly analyse the probative value of that evidence against any prejudicial effect it might have in the manner suggested by the New South Wales Court of Appeal in R v RN [2005] NSWCCA 413 at [3]-[12] per Sully J, with whom Grove and Howie JJ agreed, and embarked upon the exercise of balancing of the two (Tasmania v L [2013] TASSC 47 at [53] R v Gale; R v Duckworth [2012] NSWCCA 174, 217 A Crim R 487). I pause to observe that, in my view, unlike s 135 of the Act, which involves the exercise of a discretion, there is no reason to think that s 97(1) and s101(2) involve anything different to s 137 of the Act, namely "an evaluative judgment mandating exclusion" (IMM (above) at [16]).
His Honour said at [21]-[25] of his reasons for ruling:
"21 Nevertheless the evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. What amounts to 'unfair prejudice' under s 137 was considered by the Court of Criminal Appeal in KMJ (above); see Evans J at [36]–[38]:
'I turn to unfair prejudice. Evidence is not unfairly prejudicial to an accused for the purposes of s137 merely because it makes it more likely that the accused will be convicted. In this context, the prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way: Papakosmas v R (supra), McHugh J, par[91], Festa v R (2001) 208 CLR 593, Gleeson CJ, par[20], and McHugh J, par[51].'
22 In W v The Queen (2006) 16 Tas R 1, Blow J referred at [43] to and applied the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at [644]:
'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.'
23 In State of Tasmania v Howlett [2008] TASSC 38, Porter J applied the same passage.
24 The possibility of prejudicial effect with which s 101(2) is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves: Tasmania v W (No 2) (above) at [11]; Tasmania v Martin(No 2) (2011) 20 Tas R 445 at [63].
25 I regard the possibility that the evidence will have a prejudicial effect on the accused, in the relevant sense, as small. I do not consider that the nature of the evidence is such that it is likely to divert the jury from its task of rationally assessing the evidence. Juries are commonly given directions as to the use which can be made of tendency evidence. It is to be assumed that juries will comply with such directions: Hayne J in Gilbert v The Queen (2000) 201 CLR 414 at [31]. It is inevitable in this case, regardless of my ruling on the evidentiary questions, that the jury will become aware that the accused was, at the relevant time, serving a prison sentence. Directions will be required about that issue. The jury can consider the reliability and credibility of the evidence of Mr Etchell and Mr Saxelby in the usual way, and the evidence of either of them can be the subject of such directions to the jury as may be necessary and which are commonly given. I do not see that there is any real possibility that their evidence will improperly be given more weight than it deserves."
I agree entirely with the approach that his Honour took to the balancing exercise involved and with the evaluative judgment he reached. His approach was entirely orthodox and, in my view, free of any error. The introduction of the evidence that the appellant was not just a prisoner but a prisoner who had been sentenced for the crime of incite to murder may well have led to an emotional reaction on the part of the jury. However, as his Honour noted, juries are commonly given directions as to the limited use to which tendency evidence may be put and may be assumed to comply with such directions.
I note that in the authority to which the learned trial judge referred, Gilbert v The Queen (above) what Hayne J said at [3] was that "put bluntly", unless courts proceed on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, "there is no point in having criminal jury trials".
His Honour next addressed the submission that the possibility of concoction between Mr Etchell and Mr Saxelby affected the probative value of the proposed tendency evidence. He said at [26]:
"26 Although the submissions of the accused were directed primarily toward the probative value of the evidence of Mr Etchell and Mr Saxelby, the prospect that their evidence is concocted and the possible motives for concoction is relevant to consideration of its prejudicial effect: Tasmania v W(No 2) (above), per Blow J, referring to Hoch v The Queen (above) at 297 and BP v The Queen (above) at [111]. There is no reason in principle why an assessment of the credibility or reliability of a witness should not be made for the purpose of such a finding of fact: Tasmania v W [2012] TASSC 47. In this case the assessment can only be made on the papers I have been given, rather than on the assessment of evidence. I do not consider that there is much chance of concoction. The evidence of the recording of the conversation between Mr Etchell and the accused is highly corroborative of his evidence. The detail given by each man suggests strongly it could only have come from the accused and is corroborated by documents seized from the accused's cell by the police on 27 August 2013. Any issue of the unreliability of the evidence of Mr Etchell and Mr Saxelby can be properly dealt with by such warnings or directions to the jury as may be necessary at the relevant time. The risk of prejudicial effect is substantially outweighed by its probative value."
The manner in which his Honour approached the question of concoction is also entirely consistent with the decision of the High Court in IMM (above). Whilst the majority in IMM did not determine the question of the significance of joint concoction to the application of the test proposed by s 101(2) of the Act, the majority judgment at [59] did reject the proposition that "the possibility of joint concoction may deprive evidence of probative value". (Emphasis added.)
Moreover, in my view, with respect, his Honour's reasoning is unimpeachable. The submission that he was addressing had no merit whatsoever particularly given the evidence of the recording of the conversation between Mr Etchell and the appellant.
His Honour also found that the evidence sought to be led by the State was relevant on another basis. He said at [27]-[28]:
"27 I have also concluded that all of the evidence is admissible on the trial for another reason. Evidence is relevant when, if it were accepted, it 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act, s 55(1). Evidence may be relevant on the basis that it assists in the evaluation of other evidence: Tasmania v Finnegan (No 2) (above); HML v The Queen (2008) 235 CLR 334, per Gleeson CJ at [6]; Roach v The Queen (2011) 242 CLR 610 at [12]. The evidence sought to be led in this case, particularly the evidence of the prior conduct, places the specific allegations in the indictment in context in order to assist the jury in understanding the particular allegations. The evidence of the prior conduct, as well as the evidence of both Mr Etchell and Mr Saxelby, is also relevant to removing the implausibility that might otherwise be attributed to the accounts of both Mr Etchell and Mr Saxelby about the accused's approaches to them, particularly if the approaches were thought to be isolated incidents. The evidence is relevant to any implausibility associated with the way each party is said to have behaved on those particular occasions, and relevant in supporting an inference of the extent of the ill-feeling harboured by the accused towards his estranged wife. It can also prove the extent of the animosity the accused felt towards his estranged wife in order to rebut the defence he did not intend that his incitement be acted upon.
28 Although counsel for the accused addressed his arguments principally to admissibility of the evidence as tendency evidence, and did not rely on s 137 of the Evidence Act, it is s 137 that is relevant to exclusion of the evidence if admitted on the alternative basis. I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. I have already referred to what "unfair prejudice" means. The risk of unfair prejudice can be appropriately dealt with by directions to the jury about the use to which the evidence can be put."
Once again I observe that the learned trial judge's reasoning accords with principles to be derived from IMM. While the requisite probative value of the evidence is not spelled out in s 137 of the Act, it is nonetheless the case that it requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the appellant, and that this also requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue, IMM (above), per French CJ, Kiefel, Bell and Keane JJ at [47].
I accept the submission made by counsel for the appellant, Mr Hughes, to the extent that if the evidence proposed to be led by the State were to be admitted for the limited purposes of rebutting the implausibility of the approaches by the appellant to Messrs Saxelby and Etchell, establishing the extent of his ill-feeling towards his ex-wife, and to rebut the "defence" that he did not intend that his incitement should be acted upon, but not for the purpose of establishing that the appellant had a tendency to act in a particular way, it may have been more difficult for a jury to confine its use of the evidence to that which was permissible, even with the aid of directions.
However, ultimately his Honour ruled that because he had concluded that the evidence of each count was admissible on the trial of the other, the appellant would not be prejudiced or embarrassed in his defence if the two counts were tried together. He dismissed the application to sever the two counts on the indictment and ruled that the evidence proposed to be led by the State was admissible on the trial on both counts on the indictment. With respect his Honour's ruling was the only one which was reasonably open to him.
Disposition
For the forgoing reasons I concluded that the appeal should be dismissed.
File No CCA 142/2015
DARRYL SCOTT DONOHUE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
5 October 2016
After hearing from the appellant's counsel in respect of this appeal, I joined with the other members of the Court in an order dismissing the appeal. I have now had the benefit of reading the reasons of Estcourt J for his decision to join in that order. I agree and adopt his Honour's reasons insofar as they relate to the admissibility for a tendency purpose of the evidence of approaches by the appellant, other than the one to which the charge in question relates, to other men seeking to have that person kill his estranged wife. I also agree with his Honour's conclusion that the learned trial judge did not err in refusing to order separate trials of each count on the indictment pursuant to s 326(2) of the Criminal Code.
His Honour's reasons about these matters are sufficient to dispose of the appeal, and reflect my reasons for joining in the dismissal of the appeal. However, it is appropriate to make a further comment concerning a peripheral aspect of the learned trial judge's reasoning.
The appellant's argument in relation to the admissibility of the tendency evidence, and the consequent impact of a determination about that question on the severance application, proceeded on the basis that although his Honour had ruled that the evidence of other approaches was also relevant to each count for a non-tendency purpose, the probative value of such evidence, if it was not admitted for a tendency purpose, would be outweighed by the danger of unfair prejudice to the appellant and, hence, could not be admitted, having regard to the provisions of the Evidence Act 2001, s 137. According to the appellant's argument, the relevant unfair prejudice would arise because of the risk that the jury would engage in impermissible tendency reasoning, or be otherwise influenced by that evidence, and that this risk could not be adequately obviated by appropriate directions.
Although it is somewhat hypothetical, given that the evidence was properly admitted for a tendency purpose in any event, it is important, in my view, to point out that I do not agree with the appellant's argument on this aspect of the matter. My reasoning in that regard is as follows.
The learned trial judge's ruling that the evidence of other approaches was admissible for a non-tendency purpose, is set out in the following passage from his reasons:
"The evidence sought to be led in this case, particularly the evidence of the prior conduct, places the specific allegations in the indictment in context in order to assist the jury in understanding the particular allegations. The evidence of the prior conduct, as well as the evidence of both Mr Etchell and Mr Saxelby, is also relevant to removing the implausibility that might otherwise be attributed to the accounts of both Mr Etchell and Mr Saxelby about the accused's approaches to them, particularly if the approaches were thought to be isolated incidents. The evidence is relevant to any implausibility associated with the way each party is said to have behaved on those particular occasions, and relevant in supporting an inference of the extent of the ill-feeling harboured by the accused towards his estranged wife. It can also prove the extent of the animosity the accused felt towards his estranged wife in order to rebut the defence he did not intend that his incitement be acted upon."
The evidence in question was relevant in the ways described by his Honour. However, there was, in my view, a particular basis of relevance which meant that the evidence had high probative value in respect of the proof of each count. The evidence was directly relevant in proving that the appellant had made each of the approaches relevant to each count on the basis that his conduct on the other occasions established his strong commitment to the killing of his estranged wife, and the reasons for that commitment. Such evidence was directly relevant to establish the existence and nature of his motive to commit the alleged crime and, for that reason, if accepted, "could rationally affect … the assessment of the probability" that he had, in fact, made the approach in question. (See Martin v State of Tasmania [2008] TASSC 66, per Blow J (as he then was) at [85].) It was also directly relevant, for the reasons his Honour described, to establish the appellant's state of mind at the time he made each approach. The evidence had strong probative value for these reasons. The relevance of the evidence for these reasons was not to prove the appellant had a tendency to act in a particular way, or to have a particular state of mind. It is evidence that establishes motive and strength of purpose in respect of the charged act and is directly relevant to it. Evidence admitted for the purpose so described did not fall within the ambit of s 97, and accordingly its admissibility was not subject to the requirements of that section.
Of course, as the learned trial judge correctly demonstrated, the evidence was also admissible for a tendency purpose on the basis that it proved that the appellant had a tendency to act on his underlying motivation in a specific way, in particular by attempting to engage for payment, someone other than himself, to kill his estranged wife. The relevance of that evidence is that it "rationally affects directly or indirectly the assessment of the probability" that he in fact did make the approach relevant to the particular count on the basis that because he had a tendency to act in that specific way, it was more probable that he had done so on the occasion in question. The probative value of the evidence for that purpose was also high.
Although it is a somewhat hypothetical consideration, given that the nature of the evidence is what confers probative value for both the tendency and non-tendency purposes, had it not been admitted for a tendency purpose, then although the evidence would still have been admitted for the non-tendency purpose, the jury would not have been permitted to use it for the tendency purpose (see the Evidence Act, s 95). I am unable to accept that the need for the jury to distinguish between the alternative uses of the evidence and confine its use to a non-tendency purpose would have created a risk of unfair prejudice which would have outweighed the probative value of the evidence admitted on that limited basis. I reiterate that the probative value of the evidence admitted to prove motive and strength of purpose was, in my assessment, very high. On the question of the capacity of directions to obviate any risk of unfair prejudice, I refer to the learned trial judge's analysis of this question, set out at [21]-[25] of his reasons. I respectfully adopt that analysis, as well as a further analysis by his Honour, discussed in Glass v State of Tasmania [2013] TASCCA 8, although I note that his Honour was in dissent in that case. In my view, appropriate directions would have obviated any risk of unfair prejudice and, in any event, the probative value of the evidence was so strong, even admitted only on a non-tendency basis, that it would have outweighed the risk of any such prejudice.
I reiterate that this matter is peripheral to the determination of the appeal, and that I joined in the order dismissing the appeal for the reasons expressed by Estcourt J in relation to the question of the admissibility of the tendency evidence, and the determination of the severance application.
4
31
1