KJM v The Queen (No 2)
[2011] VSCA 268
•7 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0089
K J M
Applicant
v
THE QUEEN
Respondent
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JUDGES:
MAXWELL P, BUCHANAN, NEAVE, REDLICH and BONGIORNO JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 May 2011, 23 June 2011
DATE OF JUDGMENT:
7 September 2011
MEDIUM NEUTRAL CITATION:
K J M v The Queen (No 2) [2011] VSCA 268
JUDGMENT APPEALED FROM
R v [K J M] (Unreported, Supreme Court of Victoria, Bell J, 3 May 2011 (first ruling) and 26 May 2011 (second ruling))
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CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Victim was domestic partner – Self-defence raised – Accused’s state of mind in issue – Whether evidence of alleged violence against former partner admissible as tendency – Appeal allowed in part – Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – Appeal – Interlocutory appeal – Tendency evidence – Ruling on admissibility – Nature of appellate review on interlocutory appeal.
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APPEARANCES: Counsel Solicitors For the Applicant Mr J V O’Sullivan Galbally & O’Bryan For the Respondent Ms M Williams SC (first hearing)
Mr R A Elston SC (second hearing)Mr C Hyland, Solicitor for Public Prosecutions MAXWELL P
BUCHANAN JA
NEAVE JA
REDLICH JA
BONGIORNO JA:1 The applicant is charged with murder. It is alleged that she killed her domestic partner by stabbing. She admits the killing but says she acted in self-defence.
2 The Crown has filed a tendency notice under s 97(1)(a) of the Evidence Act 2008 (Vic), giving notice, as required, of its intention to adduce tendency evidence. According to the notice, this evidence will show that the accused had a tendency ‘to act aggressively or violently in the course of arguments or confrontations with boyfriends or partners and in particular to resort to the use of a weapon’.
3 Several categories of evidence are sought to be relied on. Having heard pre-trial argument, the trial judge ruled on 3 May 2011 that the evidence, with certain exceptions, was admissible as tendency evidence.
4 The applicant has sought leave to appeal pursuant to s 295 of the Criminal Procedure Act2009 (Vic) (‘CPA’) against that interlocutory decision. The proposed grounds of appeal are in the following terms:
1.The evidence sought to be adduced is not significantly probative of any fact in issue.
2.The probative value of the evidence sought to be adduced does not substantially outweigh its prejudicial effect; or alternatively, it was not open for the judge to conclude that the evidence sought to be adduced substantially outweighed its prejudicial effect.
5 The application for leave first came before the Court on 18 May 2011. For reasons given at the time, the application was considered to be premature.[1] Essentially this was because it quickly became clear in argument that, contrary to the assumption on which his Honour had been asked to proceed, the evidence of the Crown witnesses would not go uncontested.
[1]K J M v The Queen [2011] VSCA 151.
6 The trial judge subsequently held a further hearing, at which two of the prosecution witnesses were cross-examined. No witnesses were called by the defence. His Honour then gave a further ruling, in which he reaffirmed his conclusion that the evidence was admissible.
7 The relevant parts of the first and second rulings are attached to these reasons, as Appendix A and Appendix B respectively. Paragraph numbers have been added for ease of reference. (We are adopting this approach at the request of trial judges, who have advised that the assistance provided by interlocutory judgments of this Court will be enhanced if the interlocutory rulings are attached.)
8 For reasons which follow, we would grant leave to appeal and allow the appeal in part.
The nature of the appeal
9 At the request of the Court, there was preliminary argument about the nature of an interlocutory appeal from a decision on admissibility under ss 97 and 101 of the Evidence Act2008 (Vic). This is an issue to which the Court has referred previously but which has not hitherto been the subject of a definitive ruling.[2]
[2]P N J v DPP [2010] VSCA 88; J L S v The Queen [2010] VSCA 209, [34]–[35].
10 The submission for the Crown was that this Court should follow the recent unanimous decision of a five-member bench of the NSW Court of Criminal Appeal in D A O v The Queen,[3] to the effect that an interlocutory appeal from a decision under ss 97/101 was governed by the principles in House v The King.[4] The submission for the applicant, on the other hand, was that this Court could – and should – decide the question of admissibility for itself. Relying on what was said in Warren v Coombes,[5] counsel submitted that this Court was in as good a position as the trial judge to decide the question.
[3](2011) 278 ALR 765, 777 [70], 783–4 [99]–[100], 793 [157] (‘D A O’).
[4](1936) 55 CLR 499.
[5](1979) 142 CLR 531, 551.
11 As in D A O, the membership of the bench has been enlarged since the application was heard, because of the importance of this question to the regime of interlocutory appeals. With the concurrence of the parties, Buchanan and Redlich JJA have determined the matter on the basis of the appeal papers and the transcript of argument.
12 In our view, the decision in D A O should be followed in Victoria. As the detailed reasons of Spigelman CJ and Allsop P show, there is room for debate about the proper characterisation of a decision under ss 97/101. It is sufficient for present purposes to express our agreement with the Court’s conclusion, that an interlocutory appeal from such a decision should be governed by the principles in House v The King.
13 In our view, the case for appellate restraint at the interlocutory appeal stage is even stronger in this State than in New South Wales. In contrast to the system of interlocutory appeals operative there, the CPA allows a defendant to seek to challenge an evidentiary ruling by way of interlocutory appeal.[6] The clear legislative intention, however, is that interlocutory appeals on evidence should be strictly confined.[7]
[6]CPA s 295(3)(a).
[7]C G L v DPP(No 2) (2010) 24 VR 482, 483 [4]–[5].
14 Like the NSWCCA in D A O,[8] we should emphasise that this is a decision about the nature of an interlocutory appeal from a ruling under s 97. The nature of appellate review of such a ruling on a conviction appeal is a separate question, to which different considerations may apply.[9]
[8](2011) 278 ALR 765, 774 [53], 775 [61]–[62], 902 [213].
[9]See, for example, R v Linh Quoc Huynh (2006) 165 A Crim R 586, 588 [4]; R v L R G (2006) 16 VR 89, 92‑3 [13]; R v Tragear (2003) 9 VR 107, 114 [32]; R v El Moustafa [2010] VSCA 40, [16]–[17]. Cf R v Buckley (2004) 10 VR 215, 222 [25].
The judge’s ruling
15 As appears from his Honour’s detailed and careful reasons, he was satisfied that (with the exception of one of the incidents falling within the first category of evidence):
(a) the evidence sought to be relied on showed that the applicant had:
a tendency to act in a particular way or to have a particular state of mind, namely, to act aggressively or violently in the course of arguments or confrontations with boyfriends or partners and to threaten the use of a weapon, more particularly a knife;[10]
[10]Appendix A, [9].
(b) the relevant incidents were reasonably proximate to the date of the killing;[11]
[11]Appendix B, [6].
(c) the relevant witnesses were credible and reliable;[12]
[12]Appendix B, [6].
(d) there was ‘an underlying commonality of time, situation, relationship and circumstances’, such that the evidence would be of significant probative value in showing the relevant tendency;[13]
[13]Appendix A, [21]–[22], [25], [27]–[28]; Appendix B, [10]–[11], [18].
(e) the necessary directions to be given to the jury would guard against misuse of the evidence by the jury;[14] and
[14]Appendix B, [14].
(f) the probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant.[15]
[15]Appendix A, [32]–[34]; Appendix B, [14].
16 The submission for the applicant was that the evidence would establish no more than that there had been isolated occasions, in the course of a lengthy relationship characterised by ‘angry, aggressive arguments’, when the applicant had responded violently. These were exceptional occurrences, it was said, and they could not therefore establish a relevant tendency. On no view could the evidence be said to have ‘significant probative value’.
17 We disagree. With one exception, it was reasonably open to the judge to arrive at the conclusions he did, for the reasons he gave. It was not suggested that there had been any error of principle.
18 The one exception concerns the second category of evidence, relating to the 7 August 2009 incident. In our view, the evidence of that incident had insufficient probative value to justify its admission. The context in which the accused allegedly threatened to stab her unidentified former boyfriend is not known. It may be that she was herself threatened with extreme violence by him. Indeed she claimed in her call to 000 that he had bashed her. Further, although she was found by the police in possession of a knife, she did not actually use the weapon. In these circumstances we do not consider that this evidence could assist the jury in determining whether the accused believed she had to kill the deceased to defend herself.
19 Apart from this matter, however, there is nothing in his Honour’s ruling which could attract appellate intervention at this interlocutory stage.
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APPENDIX A
FIRST RULING
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1.From the prosecution opening, the case against the accused will be that she and the deceased were living together at the time of his death. They had been in a relationship for about 5 months. According to evidence which will be led without objection, it was a fractious relationship which was characterised by arguments and violence.
2.On Monday 25 January 2010, being the evening before the morning when the deceased was killed, there were a number of arguments at the premises between the accused and the deceased. Late in the evening the deceased called 000 saying he needed the police. A little later a neighbour called police saying the accused had asked for help and that the deceased was going to kill her.
3.The police did come and found the accused to be smelling of alcohol. The deceased ran away from the rear of the premises. On the evidence to be led by the prosecution, the accused kept ranting about money and phones. She was not injured except for a small cut. The police left at her request.
4.In the early hours of Tuesday the following morning, neighbours say they heard yelling and screaming. According to the prosecution evidence, at about 2.30am the accused rang a friend to say the deceased had bashed her and taken money from her and she needed somewhere to stay. She went to that friend's place where she smoked marijuana and left at about 6am. According to the accused, that was because there was nowhere appropriate there for her to sleep. She went back to her home with the deceased at Tootgarook.
5.According to the prosecution evidence, from those premises, at about 7.06 am, the accused called 000 complaining she had been beaten up by the deceased who had taken $1,000 from her wallet. She said she had been locked out of the house. At 7.11am and 7.25am she rang 000 again to say she had stabbed her partner in the chest. She said they were fighting, he was throwing her around and she picked up a knife and hit him in the chest.
6.The accused was arrested by the police at the scene. She was interviewed on Wednesday 27 January 2010, after being given time to rest. In the record of interview she said the deceased was the aggressor. He had pushed her against a wall and grabbed her around the neck prior to walking into a bedroom. She went into the kitchen and got a knife. She stabbed him when he came at her again. She said she did not intend to kill him and did not realise that she had done so. When she saw what she had done, she unsuccessfully tried to resuscitate him.
7.On police medical examination, the deceased was found to have some 32 injuries, including defensive injuries, and a fatal stab wound to the heart. The accused was found to have minor bruises, scratches and abrasions.
8.The prosecution intends to lead evidence of the relationship between the accused and the deceased. That evidence will doubtless indicate to some extent the violent nature of that relationship. However, the prosecution wish to go further and lead evidence that the accused had a tendency to be violent towards people, especially her boyfriends, when drunk and agitated.
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9.… [I]t is clear enough from the nature of the evidence which the prosecution proposes to lead, as described in the notice, that it is tendency evidence. As so described, it is evidence showing the accused had a tendency to act in a particular way or to have a particular state of mind, namely, to act aggressively or violently in the course of arguments or confrontations with boyfriends or partners and to threaten the use of a weapon, more particularly a knife. In my view such evidence answers the description of tendency evidence within s 98(1).
10.It is next necessary to determine whether the evidence will have significant probative value. In this connection, the first question is whether it will be relevant in the sense specified in s 55(1).
11.The state of mind of the accused is a matter of direct relevance to the defence of self‑defence which the prosecution must rebut beyond reasonable doubt. In my view, all of the tendency evidence which the prosecution intends to present meets this primary test of relevance and would be admissible but for the tendency and exclusionary provisions. There is a question whether the evidence in category one (see below) is too remote in time to be relevant. That will become clear on the preliminary inquiry which will be conducted if that evidence and the other evidence is admitted. If the evidence is too remote, or not shown to be sufficiently proximate, I will exclude it for not satisfying s 97(1)(b).
12.That brings me to the question whether the evidence will have significant probative value. To determine whether the evidence will have significant probative value, it is necessary to consider the nature of the evidence in detail.
13.The first category of evidence which the prosecution intends to present involves the accused's former partner. Supported by his son, [M] will give evidence of four occasions on which it is said the accused had become aggressive or violent when she did not get what she wanted during the course of an argument. As set out in their written statements, which I have read, these are the four occasions.
14.The first was after the accused and [M] had been drinking at the Croydon Hotel. They went separately home and got into an argument. The accused ran into the kitchen and grabbed a knife and cut her wrists in front of him.
15.On the second, at Natalie’s Hotel after drinking, an argument occurred whereby the accused picked up a corkscrew and stabbed [M] in the arm and chest.
16.On the third, on a trip to Thornton near Eildon, an argument occurred whereby the accused picked up a beer bottle, smashed it and chased [M] with it.
17.On the fourth, at Shirley Street Mooroolbark, when [M]’s son was staying with them, an argument occurred whereby the accused ran to the kitchen and got a knife and came back running with the knife at [M].
18.It is to be noted that occasion one was an instance of the accused harming herself, not harming a boyfriend; occasion two involved the use of a corkscrew, not a knife; occasion three involved the use of a smashed beer bottle, not a knife; and occasion four did not appear to involve alcohol.
19.The events have not been well dated in the evidence so far and appear to have occurred over many years. That is why it will be necessary to examine further how proximate the evidence is to the charge of murder which has been brought against the accused. On the other hand, the last three occasions involve alleged threats of violence on the part of the accused with a weapon in the context of arguments with her boyfriend and on these occasions the threats were directed towards him. Admittedly a corkscrew is not a very dangerous weapon, but it is a weapon nonetheless.
20.In my view, occasion one will not have significant probative value in this trial. It is an instance of self‑harming by the accused. It is barely relevant as an example of an extreme reaction by the accused in an argument with her former partner. But it is not significantly relevant to the facts in issue in this case, which concern violence directed to her partner, not to herself. This evidence is not admissible in the trial.
21.If found to be proximate, evidence of each of the other three occasions will, in my view, have significant probative value. It is unusual for people to react in arguments with their domestic partners with the violence alleged on these three occasions. The evidence, if accepted by the jury, might reasonably be used by them to reason that the accused had a tendency to react violently towards her partners during such arguments.
22.As submitted by the defence, I accept that the three occasions involve the use of different weapons and kinds of weapons and did not involve the actual infliction of harm by the accused on her boyfriend. Nor do the occasions involve the deceased. However, as shown by R v Joiner,[16] which also involved evidence of domestic violence against former partners being admitted as tendency evidence in a trial for murder of a later partner, this does not prevent tendency evidence of this nature being of significant probative value.
[16](2002) 133 A Crim R 90.
23.I note the defence submissions in the present case that there are other differences between the three occasions concerned and the facts alleged in this trial. Nonetheless, the core feature of all of the occasions is the accused's extreme and violent reaction to her partner and threatening to use a weapon during a domestic argument. That the accused has such a tendency, if that is what the jury ultimately find, may, in their minds, be directly relevant to determining the state of mind of the accused in regard to whether she acted in self-defence.
24.The second category of evidence involves a former boyfriend of the accused whose identity is not known. The incident occurred on 7 August 2009. According to the 000 and police evidence, the accused threatened to stab this boyfriend. She rang 000 claiming he had bashed her and saying she would sort it out herself with a knife. The police arrested the accused in possession of a knife. The boyfriend's name is not known and apparently alcohol was not involved. There was no actual use of the weapon. On the other hand, there was threatened violence by the accused towards her boyfriend - she threatened to harm him with a knife.
25.In my view, this evidence also has significant probative value. Although the name of the boyfriend is not known, this does not reduce the relevance or probative value of the evidence below the level of significant. The essential fact sought to be proved, as with the three occasions in the first category of evidence, is the accused reacted extremely towards her partner with threatened violence during a domestic argument. This is unusual behaviour which, when combined with the evidence in the other categories, reveals a tendency which the jury might reasonably consider to be of significant probative value to the critical issue of the state of mind of the accused in reference to the issue of self‑defence. As with the evidence in the first category, the jury may do so even though her boyfriend at the time was not the boyfriend whom she is here alleged to have murdered.
26.The third category of evidence involves the deceased. The evidence would be that, on 1 November 2009, the accused and the deceased had an argument resulting in the deceased moving out of the place where they were then living. Subsequently there were verbal arguments in which the accused challenged the deceased to come back so that she could stab him. The deceased did come back, but the accused did not stab him. The police attended the address and nothing occurred.
27.By the same reasoning, this evidence also will have significant probative value, in my view. It has the added feature of being evidence about the behaviour of the accused towards the deceased, which enhances its probative value even further.
28.In conclusion, all of the evidence in these categories, except the first occasion in the first category, and subject to the proximity issues which I have mentioned in reference to the other evidence in the first category, is tendency evidence which will have significant probative value in the jury's consideration of a fact in issue, being the state of mind of the accused in reference to whether she acted in self‑defence.
29.The relevant tendency is the tendency of the accused to act with unusual violence with weapons towards domestic partners during arguments with them.
30.To elaborate, the tendency evidence, if accepted by the jury, will show that the accused has a tendency to behave in a threatening and aggressive way towards domestic partners in arguments. It would show that she has a tendency to lose control and react in an extreme way involving the use of weapons. The evidence would, therefore, be of relevance to the question whether she acted in self‑defence when she killed the deceased and be of significant probative value in that regard. The evidence could reasonably assist the jury in determining whether the accused believed she had to kill the deceased to defend herself, or rather went beyond what was reasonably necessary, not because she believed she had to kill the deceased to defend herself, but because she lost control of her actions, as she had on previous occasions.
31.It is last necessary to determine whether the probative value of the evidence will substantially outweigh any prejudicial effect it may have on the defendant, as required by s 101(2). In order to carry out the balancing exercise which this provision requires (see R v Ford[17] and G B F v The Queen[18]) the court must estimate, with more precision, the extent of the probative value of the tendency evidence.
[17](2009) 273 ALR 286, 301 [60].
[18][2010] VSCA 135, [30] (‘G B F’).
32.In my view, the tendency evidence here has more than significant probative value. I note that the defence has so far raised no issues about the reliability of the evidence. I would estimate its probative value to be high because it goes directly to whether the accused acted in self‑defence.
33.That being the probative value of the tendency evidence, s 101(2) requires the court to identify any prejudicial effect which that evidence will have on the accused. The authorities to which I have referred, G B F, establishes that the prejudicial effect of which s 101(2) speaks is the risk that, despite appropriate directions, the jury may reason improperly to conclude from the fact that the accused had acted in a certain way (or with a certain state of mind) on previous occasions, that she must have acted in the same way (or with the same state of mind) on the present occasion.
34.I do not think it is likely that the jury will misuse the tendency evidence in this way, contrary to the stern direction which I propose to give in this regard. That direction will make clear that the evidence is relevant only to whether the accused acted on the morning concerned in self‑defence. I will instruct the jury that it cannot reason from the tendency evidence alone that she did not act in self-defence, but only use that evidence as part of the entire body of evidence to determine that question in reference to the particular occasion and charge presently brought against the accused. I will hear submissions from counsel as to the appropriate directions when the time to give those directions comes.
35.In my view the high probative value of the tendency evidence substantially outweighs any prejudicial effect it will have on the accused as required by s 101(2). By the same reasoning, I would not exercise the general discretion in s 135, or the mandatory power in s 137, to exclude the evidence. The evidence is therefore admissible.
APPENDIX B
SECOND RULING
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1.The evidence which was given by [M] and [W] was in accordance with the statements of which notice was given and which I described in my earlier ruling (see p 49). The evidence was that, on three separate occasions during heated arguments with [M], the accused reacted with threatened violence towards him, on each occasion with a stabbing weapon, being a broken bottle, a knife and a corkscrew. [W] gave evidence which corroborated in part the evidence of his father. At the material times, [M] was the domestic partner of the accused. They had two children together.
2.The evidence of [M] and [W] was not weakened by the cross-examination. If anything, their evidence was strengthened in the material respects. In the end, it is my view that, on this evidence, it will be open to the jury to find the accused had a tendency to make threats of violence with a stabbing weapon towards [M] as her domestic partner during heated arguments with him. As the accused is charged with the murder of her domestic partner by stabbing with a knife, and in a heated argument, that is a relevant tendency in this prosecution. Further, it is evidence, if accepted by the jury, of significant probative value,
…
3.It was established in cross-examination that [M] was a heavy drinker who contributed to the heated arguments which occurred between him and the accused. When drunk, he hurled verbal horrible insults at her, as she did at him. On occasions, there was physical contact between them. But he was not a physical aggressor, and certainly was not a wife-beater. When physical contact occurred between them, it was defensive on his part. He never threatened her with a weapon. On the evidence which the jury would hear, nothing [M] did must necessarily undermine, in their mind, the probative value, as tendency evidence, of what the accused did towards him.
4.There was an issue with the temporal proximity of the events relied on as tendency evidence to the offence of murder with which the accused has been charged. I left that open in my previous ruling.
5.The admitted homicide of the deceased by the accused occurred on 26 January 2010. The evidence now reveals the accused and [M] had a relationship lasting some three to four years ending on 16 May 2009. Therefore the events occurred between 2005 and 2009 at the outside. That period is well within what might reasonably be regarded by the jury to be a period which is proximate to the charged act.
6.The defence tested the evidence of [M] and [W] for cogency, concoction and contamination. Having seen them give evidence, I am of the clear view that the jury could reasonably regard them as credible and reliable witnesses. There is nothing to suggest they have improperly discussed their evidence. Indeed, quite the contrary.
7.The evidence of [M] and [W] revealed there were many arguments between [M] and the accused during their tempestuous relationship. Yet, on the evidence to be relied on by the prosecution, only on three occasions was a threat with a weapon made by the accused towards him. That, submits the defence, is no evidence of tendency of significant probative value.
8.I cannot accept that submission. Although the jury will have to take the whole of this evidence into account, I think the jury could reasonably find the evidence of those three occasions to be of significant assistance in relation to the issue of self-defence, despite such occasions being in the minority when seen in totality. The jury may think threatening your domestic partner with a stabbing weapon like a broken bottle, a knife or a corkscrew, during heated arguments is an unusual thing to do, whether done once, twice or three times in a three to four year relationship and however often such arguments occurred.
9.For the evidence to be admissible, I must be satisfied that the evidence about the nature of what occurred, and when the incidents occurred, is sufficiently certain, and proximate and similar to the charged act, to be relevant and have significant probative value as tendency evidence, that is, as evidence that the accused had a tendency to act in a particular way or with a particular state of mind. Now that the evidence of [M] and [W] has been given and tested, I am confirmed in my mind that the evidence is tendency evidence having that degree of probative value.
10.This evidence is not so general as to be meaningless or of limited assistance, as in some cases in which such evidence has been rejected. The three incidents are not remote in time from the charged act, as in some other cases in which the evidence has suffered the same fate. Admitting certain differences by comparison with the charged act (which are for the jury to consider), the incidents are of the same character as the charged act: acting aggressively with a stabbing weapon towards domestic partners when in a heated argument with them. In other words, there is an underlying commonality of time, situation, relationship and circumstance such as may reveal, in the mind of the jury, a material pattern of behaviour. All of these considerations add significance to the probative value of the evidence.
11.Evidence simpliciter of committing an offence or engaging in misconduct of a like kind is no evidence of tendency but rank evidence of propensity alone. Perhaps P N J v Director of Public Prosecutions[19] is the strongest authority for that proposition. So, where the evidence consists of commonplace elements of criminal behaviour or misconduct, it is not admissible as tendency evidence. It would follow that evidence of an unremarkable assault by the accused against the deceased or a former domestic partner would probably not be admissible. The evidence at issue is not of an unremarkable assault. To repeat, the accused is charged with murder of her domestic partner with a stabbing weapon – a knife – during a heated argument. The tendency evidence is of threats of violence by the accused towards the deceased and two other domestic partners with stabbing weapons – a broken bottle, a knife and a corkscrew – during heated arguments. This is not evidence of propensity. It is evidence of tendency.
[19][2010] VSCA 88.
12.In the earlier ruling, I had a residual concern about whether a corkscrew was the kind of weapon that could be brought into account. Having heard the evidence, that concern has evaporated in my mind. The evidence shows a corkscrew is capable of being used as a stabbing weapon to inflict harm on a victim.
13.Coming to the safeguard test in s 101(2), I must now say the evidence has even higher probative value, and is therefore more prejudicial in that respect, than I previously thought. But that is not a relevant prejudice under s 101(2). The only relevant prejudice which I can see is that the jury might misuse the evidence.
14.The compulsory directions which I must give about the proper use of evidence of this nature will guard against that possibility. There is nothing about the charge brought against the accused, the nature of the alleged crime or the factual circumstances, the issues in the case or the tendency evidence which I am considering to suggest the jury would not follow such directions. With those directions, I consider the jury will not misuse the evidence and the probative value of the evidence outweighs any prejudicial effect which it might have on the accused. Further, from the position taken by the defence at the preliminary inquiry, it is clear that, if the evidence is admitted, the jury will not be swamped by a large body of evidence about collateral matters which might distract them from their proper function.
15.In considering the admissibility of this first and the other two categories of tendency evidence, I have looked again at the authorities in which evidence of this kind has been relied on, whether as tendency evidence or evidence in that cognate class. I would refer in particular to Townsend v Townsend,[20] R v Joiner,[21] R v Andrews,[22] R v Li,[23] C W v R[24] and Stubley v Western Australia.[25]
[20][2001] NSWCA 136 (‘Townsend’).
[21](2002) 133 A Crim R 90.
[22][2003] NSWCCA 7.
[23][2003] NSWCCA 407.
[24][2010] VSCA 288.
[25](2011) 85 ALJR 435 (‘Stubley’).
16.Now the decisions in all of these cases turned on their own facts, which must always be carefully considered in the individual case. Careful attention must always be paid to the particular issues which are in contention. But I think these authorities establish that evidence of previous violence or a threat of violence by an accused towards a complainant or deceased, or towards another person in the same relevant relationship with the accused, might be admissible as tendency evidence against an accused charged with committing a crime of violence against the complainant or deceased, especially where, as in the present case, the previous violence or threat of violence was unusual and similar in nature and circumstance, and proximate in time, to the charged act. In most of these cases, that is why the evidence was admitted.
17.The evidence was ruled to be inadmissible in Townsend, a civil assault case, and Stubley, because the relevant acts were not unusual and not relevant to the actual issues in contention, contrary to the present case.
18.The present case falls into a wholly different category. The accused is charged with murder by stabbing her domestic partner during an argument. She pleads self-defence, which the prosecution must rebut beyond reasonable doubt. The evidence at issue is evidence of previous threats of violence with the same or similar weapons by the accused towards the deceased and other domestic partners during arguments. Making such threats during domestic arguments is unusual behaviour. Most people do not make such threats in those circumstances, however heated the arguments become. The evidence here is, in my view, evidence of significant probative value that the accused has a tendency to do so, which is directly relevant to whether she acted in self-defence when she killed the deceased.
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