Higgins (a pseudonym) v The Queen
[2016] VSCA 47
•18 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0232
| OSCAR HIGGINS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | REDLICH, WEINBERG, OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2016 |
| DATE OF JUDGMENT: | 18 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 47 |
| JUDGMENT APPEALED FROM: | R v [Higgins] (Ruling No 3) [2015] VSC 614R R v [Higgins] (Ruling No 4) |
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PRACTICE AND PROCEDURE – Interlocutory appeal – Admissibility of evidence – Tendency evidence –Evidence Act 2008 s 97 – Whether state of mind on previous occasions relevant as evidence other than tendency evidence – Whether context and motive evidence admissible for purpose other than tendency purpose – O’Leary v The King (1946) 73 CLR 566, Elomar v The Queen [2014] NSWCCA 303; Leonard v R (2006) 67 NSWLR 545; R v Adam (1999) 106 A Crim R 510, discussed – Evidence admissible for purpose other than tendency reasoning – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M G O’Connell SC with Dr G Boas | Stary Norton Halpen |
| For the Respondent | Mr J W Rapke QC with Ms R J Sharp | Director of Public Prosecutions (Cth) |
REDLICH JA
WEINBERG JA
OSBORN JA
The applicant is charged that between 18 May 2012 and 12 September 2012 he possessed a thing (‘Inspire’ magazine, Issue 9) in connection with assistance in a terrorist act contrary to s 101.4 of the Commonwealth Criminal Code 1995 (the ‘Code’).
The matter came on for trial on 15 October 2013. After pre-trial argument as to the elements of s 101.4 of the Code, his Honour delivered a detailed ruling. That ruling was the subject of an interlocutory appeal by the Crown. This Court upheld the trial judge’s ruling on 17 December 2013. That decision, in turn, was the subject of an application for special leave to the High Court, which was refused on 15 august 2014.
On November of 2014 a new indictment alleging the above count of possession of a thing contrary to s 101.4 of the Code was filed together with a Summary of Prosecution Opening.
On 12 December 2014 the Crown filed a Notice of Tendency Evidence attaching a table identifying 53 items of evidence. The notice stated that the proposed tendency evidence related to:
Whether the accused had the state of mind of intending to possess Inspire magazine.
The accused’s knowledge that Inspire magazine, issue 9, was connected with assistance in a terrorist act.
Whether Inspire magazine, Issue 9, was being used or was intended to be used in the activity of assisting in a terrorist act.
The applicant gave notice of his intention to object to the proposed tendency evidence. On 19 October 2015, pre-trial argument re-commenced. At that time, the Crown disavowed reliance on the 53 items of proposed evidence as tendency evidence. Instead, it was argued that 52 of the 53 items were relevant and admissible as evidence of:
The continuing state of mind of the accused.
Motive.
Context.
On 17 November 2015 the trial judge ruled that 30 items of evidence that had been objected to by the applicant were admissible against him at his trial.
Much of the evidence the subject of the appeal comprises recorded conversations where the applicant is said to speak in various ways of his support for what has been characterised as ‘radical Islam’, ‘jihad’ or ‘violent jihad’. The evidence is said to be relevant to his intention to possess, his purpose in possessing and his motive in possessing the magazine. The trial judge ruled that the previous statements demonstrating an active commitment to ‘violent jihad’,[2] could be used to infer that the accused held the same state of mind (i.e. active commitment to violent jihad)[3] at the time of the charged conduct. His Honour found that such an inference was open having regard to the continuous nature of the statements, and their near contemporaneity with the charged conduct. The drawing of that inference in that way, did not involve tendency reasoning.
[2]R v [Higgins] (Ruling No 3) [2015] VSC 614R, [216] (‘Reasons’) .
[3]Ibid.
On 23 November 2015, the trial judge ruled that his decision was of sufficient importance to justify an interlocutory appeal on the basis that, if the impugned evidence was ruled inadmissible, the prosecution case would be substantially weakened.[4]
[4]R v [Higgins] (Ruling No 4).
There are three proposed grounds of appeal:
1A The trial Judge erred… in characterising the evidence as capable of proving that the accused in fact had a particular state of mind, rather than as a tendency to have a particular state of mind.
1B The trial Judge erred … in characterising the proposed evidence of previous conduct revealing motive, as having a permissible use other than as tendency evidence.
1C The trial Judge erred in characterising the proposed evidence as context evidence.
For reasons that follow the grounds may considered together. The applicant, by his written submission in support of the application for leave to appeal, contended that all of the proposed evidence as to his previous state of mind, being the 53 items the subject of the ruling, had no rational or logical connection to the issues at trial unless they were relied upon to show that the accused had a tendency to have that state of mind, that the proposed evidence of ‘motive’ was tendency evidence and that, with the exception of the evidence referred to at [240] of the trial judge's ruling,[5] the proposed ‘context’ evidence was tendency evidence.
[5]Reasons [205].
As the items of evidence in dispute were voluminous, and there remained unsettled disputes as to the content of various transcripts, a mention hearing was convened. At that hearing on 24 February 2016, we directed the parties to identify several discrete items of evidence from amongst the 53 items admitted by the judge’s ruling for the purpose of exemplifying the principles in contention. The applicant has selected items 1–3, 4 and 7 as the samples he intended to rely upon in argument at the oral hearing. That having been done, the applicant filed further written submissions seeking to demonstrate that these samples of evidence were only admissible, if at all, on the basis that the evidence was tendency evidence within the meaning of s 97 of the Evidence Act 2008 (the ‘Act’).
Assisted by submissions of the highest quality, the examples chosen have provided the Court with a sufficient basis upon which to rule on the questions raised by this application. Senior counsel for the applicant rightly acknowledges that the application must be refused if he fails to demonstrate that the impugned evidence, illustrated by the chosen examples, could only be admissible as tendency evidence. He accepts that it must be shown that the trial judge erred in accepting the prosecution contention that the evidence is admissible as falling within one or more of the following categories of evidence, namely evidence of a ‘continuing state of mind’, motive, intent, or context.
The nature of an interlocutory application neither requires nor permits us to reach a definitive view as to the precise bases upon which such evidence may be admissible. However, in order to be granted leave, the applicant must demonstrate that it is reasonably arguable that the trial judge was wrong to conclude that the evidence is admissible, and if that cannot be established, the application must be refused.
It is not in issue that tendency evidence is a species of circumstantial evidence that may provide the foundation for an inference that a person who has, or had, a relevant tendency, may on the occasion charged have acted in conformity with that tendency. There is little authority on the meaning of a tendency ‘to have a particular state of mind’ as stated in s 97(1) of the Act. The applicant contends that tendency evidence as to a state of mind gives rise to the following process of syllogistic reasoning:
(i) on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
(ii) it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
(iii ) by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.[6]
[6]Elomar v R [2014] NSWCCA 197, [360].
It is this form of reasoning alone which the applicant says could render the disputed evidence admissible. To make good that contention the applicant sought to distinguish the principle discussed in decisions such as O'Leary v The King,[7] and R v Adam,[8] that earlier, but proximate, conduct or state of mind evidence might form an integral part of a ‘transaction’ so as to enable a proper understanding of the charged conduct and is so admissible. In O'Leary Dixon J said:
Without (the evidence in question) the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's general violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide.[9]
[7](1946) 73 CLR 566 (‘O’Leary’).
[8](1999) 106 A Crim R 510, [25].
[9]O’Leary (1946) 73 CLR 566, 577–578.
The applicant placed particular reliance upon the decision in R v Adam,[10] in which the New South Wales Court of Criminal Appeal refers to the various Australia Law Reform Commission (‘ALRC’) reports dealing with ‘tendency and coincidence’ evidence; Makin v A-G (NSW);[11] and Markby v The Queen,[12] and then said:
The reference by the Commission to Makin v A-G (NSW) and the quotation from the Judgement of Gibbs ACJ in Markby and the references in the reports to evidence of 'previous misconduct’ or ‘past misconduct’ or ‘conduct on some other occasion’ indicate, in our opinion, that the Commission was addressing evidence of conduct by an accused person ‘in the past’, being conduct on some other occasion than the occasion on which the conduct charged occurred, tending to show that the accused had a particular propensity or disposition or inclination. Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person ‘in the past’ or evidence tending to show that he has a particular ‘disposition’ or ‘propensity’ or ‘inclination’ and no direction that the jury should not engage in tendency reasoning required (although in a particular case a direction of some sort might be required).[13]
[10](1999) 106 A Crim R 510.
[11][1894] AC 57.
[12](1978) 140 CLR 108.
[13]Ibid [30].
Accordingly, the applicant contends that evidence of a person's thinking, belief, attitude, inclination, or disposition on previous occasions, which does not form an integral part of the ‘transaction’ or is not closely contemporaneous to the time at which the actus reus occurred, is to be characterised as a tendency to think in the particular way alleged and is caught by s 97(1) of the Act.
In his ruling the trial judge stated that:
…a direction that would satisfy that obligation [the obligation under s 27(2)(a) of the Jury Directions Act], particularly in a circumstantial case, would be that the jury could use an item of contextual evidence to prove conduct on an earlier occasion and to draw – in conjunction with other contextual evidence an inference of near contemporaneity or continuity in that state of mind – an inference as to the fact of the accused's state of mind was the same at the time of the charged conduct;…[14]
[14]Reasons [205].
We can discern no arguable error in his Honour’s approach to this evidence. Although the applicant’s submissions addressed discrete argument as to why the evidence should be characterised as tendency evidence and not evidence of motive, context, or continuing state of mind, it is sufficient for present purposes that we state that proof of a connected series of events, not necessarily closely contemporaneous in a temporal sense to the act charged,[15] but which evince a particular continuing state of mind may be admissible for purposes other than for tendency reasoning. The applicant’s argument is not assisted by the possibility that some of the evidence may also support tendency reasoning.
[15]See Reasons [171], [196]–[197], [202], [205] and [216].
It must be recognised that the Court has only a limited understanding of the voluminous body of circumstantial evidence that the prosecution intends to adduce, much of which bears upon the applicant’s beliefs and inclinations during the period of some months prior to the period specified in the indictment. That evidence of the many other occasions upon which utterances were made is said by the prosecution to lend strength to the argument that the state of mind was a continuing one. If the state of mind to be proved by the series of events, even if the events have no nexus to the charged act, is relevant to one or more of the elements of the charge to be proved, such evidence may be admissible as circumstantial evidence in the conventional way in which such evidence is frequently admitted. It may be evidence of a continuing state of mind, motive, purpose, intention, or may be relevant for contextual purposes. It is not admissible only as tendency evidence.
The application for leave to appeal should be refused.
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