Parachoniak v The Queen
[2017] VSCA 347
•27 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0009
NICOLE PARACHONIAK Appellant v
THE QUEEN Respondent
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| JUDGES: | MAXWELL P, PRIEST and KYROU JJA |
| WHEREHELD: | MELBOURNE |
| DATEOFHEARING: | 1 November 2017 |
| DATEOFJUDGMENT: | 1 November 2017 |
| DATEOF REASONS: | 27 November 2017 |
| MEDIUMNEUTRALCITATION: | [2017] VSCA 347 |
| JUDGMENTAPPEALEDFROM: | DPP v Parachoniak (Unreported, County Court of Victoria, Judge Parsons, 11 October 2016 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death and other motor vehicle offences — Evidence — Admissibility — Tendency evidence — Earlier driving behaviour — Evidence inadmissible as tendency evidence — Evidence inadmissible as context evidence — Whether evidence alternatively admissible as going to state of mind -- Whether inference of continuance available — Evidence inadmissible — Appeal allowed — Evidence Act 2008 ss 97(1), 101(2) — Elomar v The Queen (2014) 300 FLR 323 distinguished.
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APPEARANCES: Counsel Solicitors
For the Appellant Mr P Tehan QC
with Mr C T Farrington
Matthew White and
Associates
For the Respondent Mr C B Boyce SC Mr J Cain, Solicitor for
Public Prosecutions
COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
MAXWELL P:
I have had the advantage of reading in draft the reasons of Priest JA. I gratefully adopt his Honour’s comprehensive account of the relevant facts and circumstances, and of the arguments raised on the appeal, which enables me to state quite shortly my reasons for joining in the orders made at the conclusion of argument.
As his Honour explains, the prosecution sought to rely on the evidence of Tahuriorangi and two other witnesses as tendency evidence, pursuant to s 97(1) of the Evidence Act 2008. In the alternative, the prosecution contended that the evidence was relevant and admissible ‘as evidence of the accused’s intent at the time of the driving’. The two bases of admissibility were separately identified, and argued, in an outline of submissions provided to the trial judge.
The alternative argument relied on the evidence which Tahuriorangi would give regarding the appellant’s earlier driving, in combination with the text message sent by the appellant to Sunday Naylor, which read in part:
Walk to somewhere I know. … We are drifting. … You will have so much fun.
In combination, this evidence was said to reveal that
the accused was driving on the night of the alleged offence for her entertainment and the entertainment of the other occupants of the vehicle.
The prosecutor’s written submission relied on the following passage from the judgment of Winneke P in R v Scott:
There is no magic about this type of evidence. Whether the lack of care and attention in driving at one point can be logically probative of lack of care and attention at another point must ultimately depend upon whether the two points are so closely related in time, distance and circumstance to allow the tribunal of fact to draw an inference that the manner of driving at the second point was of the same character as the manner of driving at the first point.1
1 (2003) 141 A Crim R 323, 329–30 [11] (‘Scott’).
According to the submission, the appellant’s earlier driving was ‘so closely related in time, distance and circumstance’ to her driving at the time of the fatal accident that the jury would be able to infer that the later driving was ‘of the same character’. More particularly, it was submitted, the jury would be able to infer that at the time of the accident the appellant
was deliberately manoeuvring the motor vehicle in the manner alleged for her own entertainment and in an attempt to entertain the other occupants of the vehicle.
The prosecution having abandoned reliance on tendency evidence, both during the trial and again on this appeal,2 the only question for determination by the judge — and by this Court — was whether the alternative basis of admissibility was maintainable.
Properly characterised, the alternative argument relied on an inference of continuance. This is a conventional form of inferential reasoning, capable of applying to states of affairs as well as to states of mind.3 In appropriate circumstances, therefore, evidence showing that a person had a particular state of mind at an earlier point of time may support an inference that he/she still had that state of mind at the relevant time.4
The decisions relied on by senior counsel for the Director on the appeal, which are discussed in Priest JA’s reasons, concerned particular circumstances in which such inferential reasoning might be available. The question addressed in each case was whether proof that the accused had had a particular belief on a prior occasion
would permit the inference that he still had that belief on a later, relevant occasion.5
2The Director’s written case maintained that the evidence was admissible as tendency evidence. That contention was withdrawn in the course of oral argument.
3 See J D Heydon, LexisNexis, Cross on Evidence (at October 2017) [1125]; R v Noonan (2002) 127
A Crim R 599, 602 [18].
4 Higgins (a pseudonym) v The Queen [2016] VSCA 47 [19] (‘Higgins’).
5 See, eg, R v Karabegovic [Ruling No 3] [2015] VSC 641 [196] (‘Karabegovic’).
With respect to Priest JA, I do not agree that such reasoning is confined to states of mind of particular religious or political kinds.6 The question in each case is simply whether it is (or was) reasonably open to the tribunal of fact to draw the inference of continuance. Everything depends on the facts of the case, including the particular state of mind (or state of affairs) in respect of which the inference of continuance is sought to be drawn.7
10 In the field of driving offences, this is not a new question. In R v Horvath,8 the applicant had been convicted of causing death by culpable driving. The question for the jury was whether he had driven the car
negligently by failing unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed, in all the circumstances of the case.9
The trial judge had admitted evidence of earlier driving by the accused, ruling that
a state of mind of the accused at the time of the collision which caused the death is clearly a matter to be taken into consideration. In those circumstances, it appears to me that evidence of driving earlier — not that much earlier — by the accused in his motor car is evidence which may properly be used to draw an inference of his state of mind at the time of the collision.10
11 The Full Court disagreed. The Court (Winneke CJ, Little and Stephen JJ) said:
Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link … Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour, and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.11
6 See [70] below.
7 See J D Heydon, LexisNexis, Cross on Evidence (at October 2017) [1125].
8 [1972] VR 533 (‘Horvath’).
9 Ibid 537.
10 Ibid 536 (emphasis added).
11 Ibid 538 (emphasis added).
12 As originally formulated by the prosecutor, what was said to be the appellant’s continuing state of mind was an intention/desire to drive in a particular way ‘for her own entertainment and in an attempt to entertain the other occupants of the vehicle’. On the appeal, as Priest JA has noted, her state of mind was said to have been ‘to drive in a way that one might call wayward’ or ‘to engage in illicit, fun driving’.12
13 It was far from clear, in my view, that the evidence of Tahuriorangi about the appellant’s earlier driving enabled any clear inference to be drawn about her state of mind at that time. Inferring a person’s state of mind merely from observation of her conduct is ordinarily a matter of some difficulty. As Priest JA pointed out during argument, the position might have been different had the appellant herself made statements during the earlier driving which revealed her state of mind, especially if she had expressed any intention with respect to driving later in the night.13 But this was simply evidence of observed conduct.
14 Assuming, however, that the appellant’s state of mind at the time of the earlier driving could have been inferred from the description of her driving, the inference of continuance was simply not available. That is, given the lapse of time and the change of circumstances, it was not reasonably open to draw the inference that she still had the same state of mind during the later episode of driving which resulted in the death.
15 Finally, even if the inference of continuance had been available, proof that the appellant intended to drive ‘for entertainment’ or in an ‘illicit, fun’ way had no probative value in relation to the critical question which the jury had to decide, that is, whether the appellant’s turning of the wheel shortly before the crash was deliberate or accidental. The imputed intention could hardly have explained what, if
12 See [64] and [67] below.
13 See R v Appleby (1996) 88 A Crim R 456.
deliberate, was a suicidally dangerous act.
16 It follows from what I have said that the alternative argument should never have been characterised as being about ‘context’. Not only was the use of that term quite inappropriate, for the reasons given by Priest JA in Semaan,14 but it obscured the true basis of the argument, being the inference of continuance.
17 The fact that the alternative argument had a proper foundation in the law of evidence, and was clearly articulated from the outset, means that this was not a case of the prosecution seeking to circumvent the admissibility requirements for tendency evidence. But, in the event that the evidence had been admissible solely on the alternative basis, the judge would have had to give a very strong warning to the jury not to engage in tendency reasoning.
PRIEST JA:
Introduction
18 At the conclusion of oral argument on 1 November 2017, the Court made orders that the appeal be allowed; that the appellant’s convictions be set aside; and that there be a new trial. These are my reasons for joining in those orders.
Overview
19 At about 3:20 am on 23 January 2014, the appellant, then aged 18 years,15 lost control of a car she was driving on Ferguson Road, Mooroopna, and collided with the wall of a table drain and a large tree. Amy Barrass, a passenger, aged 18 years, was killed. Shukura Bisimwa, also a passenger aged 18, was seriously injured.
14 Semaan v The Queen (2013) 39 VR 503, 512 [43]–[44] (‘Semaan’).
15 Her date of birth is 28 November 1995.
Parachoniak v The Queen 5 MAXWELL P PRIEST JA
Passengers Trey Ronnan and Sunday Naylor, aged 14 and 15 respectively, both suffered minor injuries.
20 The appellant was an unlicensed and inexperienced driver, having only obtained her learner’s permit a little over two weeks before the fatal driving. In the aftermath of the collision, the appellant was charged with a number of offences, and was eventually committed to stand trial in the County Court. When opening to the jury, the prosecutor focussed on evidence which suggested that the appellant was not wearing her glasses whilst driving; that ‘she’d slow down almost to a stop’; that she ‘was also moving onto the wrong side of the road a lot’; that shortly prior to the collision she ‘was driving fast’; and ‘immediately before the collision occurred, [she] deliberately pulled the steering wheel back and forth, causing the car to swerve violently’.16
21 On 11 October 2016, a jury in the County Court found the appellant guilty of culpable driving causing death;17 negligently causing serious injury;18 and two charges of reckless conduct endangering life.19
22 Pursuant to leave to appeal granted on 17 May 2017,20 the appellant challenged the convictions21 on two complementary grounds, formulated as follows:
1. The learned trial judge erred in admitting the evidence of Tyson
Tahuriorangi.
16The Amended Summary of Prosecution Opening, filed for the purposes of the trial, included the following:
2. The Accused was an inexperienced driver. She had been issued with her Victorian Learner’s Permit 16 days prior to the collision. She was driving at high speed, in an erratic manner, while not wearing glasses and without an experienced driver beside her.
17 Crimes Act 1958 s 318. The maximum penalty is 20 years’ imprisonment.
18 Crimes Act 1958 s 24. The maximum penalty is 10 years’ imprisonment.
19 Crimes Act 1958 s 22. The maximum penalty is 10 years’ imprisonment.
20 Parachoniak v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 17 May 2017).
21The appellant was sentenced, on 7 December 2016, to a total effective sentence of six years’ imprisonment, upon which a non-parole period of four years was fixed. She did not seek leave to appeal against sentence. See DPP v Parachoniak [2016] VCC 1895.
2.The learned trial judge erred in accepting the evidence of Tyson Tahuriorangi as context evidence, following the prosecution’s decision to not rely on the evidence as tendency.
The circumstances of the fatal collision
23 So that the issues raised in the appeal may be understood, it is necessary to provide a moderately comprehensive summary of the evidence.
24 During the evening of Wednesday, 22 January 2014, the appellant and her friend, Amy Barrass, were out for a drive in the Shepparton area in Ms Barrass’ car, when they met up with Tyson Tahuriorangi (for convenience, ‘Tahuriorangi’), who himself was out for a drive. Tahuriorangi had been driving around Shepparton with Shukura Bisimwa in Mr Bisimwa’s car, accompanied by his brother, Tiweka Tahuriorangi, and an acquaintance, Trey Ronnan. After meeting, the two groups went to Ms Barrass’ house, travelling in two cars. From there, the males travelled back to ‘The Shed’, which was a residence where young people would socialise. The males later returned to the Tahuriorangi brothers’ residence.
25 Sometime afterward, Amy Barrass sent Tahuriorangi a text message, asking him to take her to The Shed. Tahuriorangi, with Mr Bisimwa and Mr Ronnan, then drove Ms Barrass and the appellant to The Shed in Mr Bisimwa’s car.
26 A short time after arriving at The Shed, the appellant asked Tahuriorangi for permission to drive Mr Bisimwa’s car. Permission having been given by Mr Bisimwa, the appellant drove the vehicle. Tahuriorangi was a passenger. His evidence of what occurred thereafter is pivotal to this appeal.
27 So as to appreciate the flavour of Tahuriorangi’s evidence, it is convenient to set out essential aspects of it in a little detail:22
So Nicole [Parachoniak] asked if she could drive?---Yeah.
22 Emphasis added.
… All right, and then what did Shak [Shukuru Bisimwa] decide about that request?---He’s a bit hesitant but then he let her drive.
Yes, and so she got in the driver’s seat, I take it?---Yeah.
And what about Amy [Barrass]? Where did she go?---She went in the backseat, and I was in the backseat as well, I jumped to the backseat behind – behind Nicole.
All right, so I’ll just get where everyone was, so you’ve got Nicole’s in the
driver seat. Who was in the front passenger seat?---Trey [Ronnan]. Then who was in the backseat?---Me, Shak and Amy.
So you told us the car was in the driveway, what was the next thing that happened?---And then we went and drove around, went to go for a petrol run.
So I take it Nicole reversed the car out of the driveway?---Yeah. Yes, and she started to drive the car?---Yeah.
While she was driving, did she ask Amy anything?---Yes, to wear her glasses
because - - -
… Where were you when she asked to borrow Amy’s glasses?---Um, when –
just leaving, we were just leaving.
What did she say? Can you remember the words she used when she asked that?---As um – ‘Can I use your glasses, I haven’t got mine’.
All right, was she wearing any, Nicole?---No.
What happened then?---And then we went for a drive to anywhere really. You said she asked to borrow Amy’s glasses, did she put them on?---Yeah. And so you then went for a drive, is that right?---But she didn’t have those
glasses on for very long.
…
All right, so she puts them on, does she?---Yeah.
And whilst she’s driving and then what, did she say anything or do anything
before she took them off?---She said it was making her vision worse.
…
All right, so you were driving on Hayes Street when she asked to use Amy’s
glasses, is that right?---Yeah.
How long did she have them on for?---Not – not very long.
… [W]as it seconds, minutes, what was the situation?---It was a few minutes, a couple of minutes.
Yes, and you’ve told us she said that – something when she took them off?---
Yeah, she said it made her vision blurry.
… Did she keep driving after she took the glasses off?---Yeah.
What was her driving like?---It started off all right then it got to – it got to a bit dangerous for my likings [sic.].
…
So this is when Nicole’s driving. You went along Hayes Street till you got to
Archer Street and turned left; is that right?---Yep.
And then once you went along Archer Street you took the first right, which is not named on this map?---Yeah (indistinct).
…
Yes?---And it’s pretty tight road.
And when Nicole was driving along those – that route that you’ve described – did she stay on the same – in the same lane?---Nah. No.
What was she doing?---She was swerving.
…
And what was her mood like while she was doing that?---Um, she was driving. She was, like - - -
Yes. Was she angry? Happy? What was - - - ?---Happy.
Now, you’ve told us that you came along Hayes Street and you turned into St Georges Road. What’s the intersection there like? What sort of - - - ?---Oh, it’s a school on a – school on a corner, it’s a couple of shops.
Yes, and - - - ?---And just a roundabout.
And Nicole drove around – how did she go going around that corner?---Uh, she was pretty fast. Faster than normal. Faster than normal.
…
Now, at that stage, at that time – so by the time you got to that roundabout –
how were you feeling in the car?---Pretty scared and, yeah, scared.
…
And when you got to McCubbin Drive what happened?---Uh, well, we were going to – we were supposed to go to Amy’s house.
Yes, then what happened?---But then we turned right. We - - -
…
Yes?---And then to turn left to go to Amy’s house, we turned right.
Now, was anything said before that – the car turned right instead of left?---
Uh, ‘Let’s go for a drive. Let’s go for a cruise.’
Who said that?---Nicole. She was driving.
And did anyone else say anything at that stage?---I was - nah, no.
Now, once you turned right, where did she drive and how did she drive at that point?---She wasn’t driving normally. To - - -
She wasn’t – sorry?---She wasn’t driving normally, to my standards. Like, to - - - And what was she doing that made you form that impression?
---Well, a road she took one – a road she went down, I’m not too sure what
the road was.
Yes?---It was barely enough to just fit one car - - -
Yes?--- - - - ’cause there was cars parked, and she was zig-zagging through that. Through that road.
Yes?---Pretty scared.
And how did you respond to that?---I was telling her to get out and I’ll drive.
And did she?---Nah.
So you told her to get out and you would drive; is that right?
---Yeah.
And what did she do when you said that?---She started driving normal and then went back to driving bad.
All right?---Driving not sensible.
28 Pausing, the following may be drawn from Tahuriorangi’s account:
·the appellant borrowed Amy Barrass’ glasses, because she did not have her own, but took them off after a short time because they were ‘making her vision worse’ or ‘blurry’;
·on a ‘pretty tight road’ (off Archer Street) the appellant did not ‘stay … in the same lane’ and ‘was swerving’;
·at the roundabout at the intersection of Hayes Street and St Georges Road the appellant went around the corner ‘pretty fast
… Faster than normal’; and
·on another road, ‘barely enough to just fit one car’ because ‘there was cars parked’, the appellant was ‘zig-zagging through that … road’.
29 Tahuriorangi, it will be noticed, said that the appellant was ‘happy’, and that at one point he was ‘pretty scared’. He was also permitted — without objection23 — to offer the following opinions:
·the appellant’s driving ‘started off all right’ then got ‘a bit dangerous’ for his liking;
·when turning at a roundabout — at the risk of repeating part of the account distilled above — the appellant drove ‘faster than normal’;
·the appellant was not ‘driving normally’, to Tahuriorangi’s ‘standards’;
·at one point, the appellant’s driving was ‘normal’, then she ‘went back to driving bad [sic]’; and
·the appellant’s driving was ‘not sensible’.
30 Once more taking up the narrative, Tahuriorangi gave evidence that after the appellant had driven in the manner described, they stopped to buy petrol. Tahuriorangi then informed the appellant that he would drive from that point, and, after the petrol was purchased, Tahuriorangi drove to his house. The group sat for a while and considered what to do next. They then bought more fuel, and continued to drive.
31 When they found themselves in Ford Road, Mr Bisimwa took over the
23 See Evidence Act 2008, ss 76–79.
driving, but, according to Tahuriorangi, ‘he was going a bit fast, too fast’. Tahuriorangi gave evidence that Mr Bisimwa ‘was just driving fast, zig-zagging a little bit, just going side to side’.24 As a result, Tahuriorangi once more took over driving the car. When he ‘heard what they wanted to do’ he ‘didn’t feel safe’ in the car, so he got Mr Bisimwa to drop him off at a friend’s house at about 2:00 am or
2.30 am. Tahuriorangi explained that ‘everyone’ except him said, ‘let’s go do some skids or let’s go drive fast somewhere out in the bush’, and ‘can we go [sic] put some petrol in the car and go out, do some burnouts out on the bush road’. That was when he ‘felt uncomfortable in the car’.
32 I pause once more to note that defence counsel put to Tahuriorangi that his evidence that people talked of doing ‘burnouts’ was a ‘lie’ (as was his evidence that the appellant had said that wearing Ms Barrass’ glasses ‘made her vision worse’).25
33 After Tahuriorangi was dropped off, the appellant again drove Mr Bisimwa’s
car. She sent Sunday Naylor a text message at 1:56 am26 — later obtained by police
— which read: ’Do you want to go for a drive? Walk to somewhere I know. We’re drifting. You will have so much fun. We’re in Mooroopna too’. As a result, Ms Naylor was picked up at Mooroopna High School. From there, the appellant drove to Ferguson Road, where the fatal collision ultimately occurred.
34 Sunday Naylor’s evidence-in-chief was presented by way of a VARE,27 recorded by police on 3 February 2014, when she was aged 15 years. On Ferguson Road, and other roads nearby, the appellant, Ms Barrass and Mr Ronnan, took turns
driving. At a point when the appellant was driving, Ms Naylor took video footage
24As far as I am able to tell, the evidence of Mr Bisimwa’s driving was not objected to. Its possible relevance was not explained upon the hearing of the appeal. The manner in which it may have borne on a fact in issue — in particular, whether the appellant’s driving was grossly negligent, dangerous or reckless — was not apparent to me.
25 See [38] below.
26 Accepting the time of the text message to be correct, Tahuriorangi must have been dropped
off at his friend’s house closer to 2:00 am than 2:30 am.
27 Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366–367.
of the group inside the vehicle with her mobile telephone. She posted the video online via ‘Snapchat’, adding the text, ‘Gonna die SOS’ (although she later stated that she meant this as a joke and did not actually think she was going to die). There was also some evidence that the appellant, whilst behind the wheel of the car, kept saying that she did not have her glasses, the Snapchat video showing her wearing Ms Barrass’ glasses.
35 At about 3:15 am, shortly before the collision, the appellant was driving on Ferguson Road. Trey Ronnan was in the front passenger seat; Amy Barrass was in the left rear passenger seat; Shukura Bisimwa was in the right rear passenger seat; and Sunday Naylor was seated in the rear between them. In her VARE, Ms Naylor said that the appellant’s driving was ‘fine’, and ‘wasn’t, like, bad in my opinion’. She remembered Amy Barrass, who was sitting next to her, ‘saying to [the appellant] to go faster’, and that the appellant ‘went faster’. Ms Naylor thought it was then that they ‘crashed’. She also said that the appellant ‘was driving when it actually happened and I just remember we just started swerving heaps and then we were, like, coming up to, like, a ditch and then I don’t remember anything from then’. Asked what happened in ‘the 15 or 20 seconds before the crash’, Ms Naylor said:
‘We were just swerving, like, so much, like from each side of the road … And then everyone was just, like, screaming and there was, like, that ditch thing’. Ms Naylor said she knew that the swerving ‘wasn’t on purpose’.
36 Trey Ronnan, aged 14, also took part in a recorded interview with police on
3 February 2014, that VARE constituting his evidence-in-chief at the appellant’s trial. He said that after Sunday Naylor was picked up, Amy Barrass, the appellant and he drove the car around. ‘Shak’ ‘was just letting everyone else drive’, save for Ms Naylor, since she had ‘been drinking’. The appellant was driving shortly before the collision. When asked by police how the car came to leave the road, Mr Ronnan said:
‘I think, like — oh, you know how you pretend to do that, like, swerve? … Like, just a little swerve. … I think she did that and then went out of control …’. The
appellant ‘was jiggling the steering wheel’. Mr Ronnan said that the appellant ‘was going fast … I think it was, like, 150 or something’. He said that he looked at the speedometer and saw speeds of ‘probably, like, 120, 130’. Mr Ronnan told police the car went ‘in and out, in and out, like … swerve’. There were no animals and ‘no traffic whatsoever’. The appellant did not swerve to avoid anything. Mr Ronnan said he thought that the appellant ‘was just being stupid … and then just swerved’.
37 Shukuru Bisimwa, who was badly injured in the collision, gave evidence that,
‘[e]veryone in the car wanted to drive the car’. He said that the appellant told him that even though she did not have her glasses, that was ‘no problem’. Mr Bisimwa did not ‘remember well’ the accident, because he ‘was sleeping a little bit’.
38 Although nothing in the appeal turns on it, I note that the prosecution called an ophthalmologist, Dr Joseph Reich, to give his expert medical opinion concerning the appellant’s eyesight. He offered the opinion that the appellant’s eyesight ‘was very close’ to ‘driving licence standard’ in the left eye without prescription glasses, so that ‘if she had been attending for a test at the time for a driver’s licence, she would have been considered borderline, without spectacles’. Dr Reich said, however, that the appellant’s ‘right eye was worse than her left eye’. Importantly, Dr Reich agreed that ‘wearing glasses which match the script of Ms Amy Barrass, [he] formed the viewed that [the appellant’s] eyesight was at a level which would have attained a legal driving standard’.
39 Detective Acting Sergeant Dr Jenelle Mehegan, an expert in collision reconstruction, concluded that when the vehicle driven by the appellant first commenced to yaw on the shoulder of the road it was travelling at a minimum speed of approximately 104 kilometres per hour. This opinion was, however, challenged by a defence expert, Dr Shane Richardson, who gave evidence that the vehicle was travelling at between 77 kilometres and 89 kilometres per hour at the point at which
it began to ‘yaw’.28 Significantly, the speed limit where the collision took place on
Ferguson Road was 90 kilometres per hour.
40 Police and ambulance staff attended the scene of the collision shortly afterwards. Amy Barrass had suffered a fatal injury of her cervical spine, and was pronounced dead at the scene. Shukura Bisimwa suffered serious injuries, including a C2 cervical spine injury and a broken right mandible. Luckily, Trey Ronnan suffered relatively minor injuries, including cuts to his knees and a cut to his head; and Sunday Naylor also suffered relatively minor injuries, including bruising, a sore back and neck, and a cut to her chin which required stitches. The appellant suffered cuts and a bloody nose.
The prosecution’s reliance on, and later abandonment of, tendency evidence at trial
41 Initially, the prosecution sought to rely on Tahuriorangi’s evidence as tendency evidence. Thus, as is required by s 97(1) of the Evidence Act 2008, the prosecution gave notice (‘the tendency notice’) prior to the commencement of the trial that it intended to adduce tendency evidence from Tahuriorangi.29 The tendency notice recited:
1.Notice is hereby given pursuant to s. 97(1) of the Evidence Act 2008 (‘the Act’) that the Prosecution intends to adduce ‘tendency evidence’, that is, evidence of the character, reputation or conduct of a person, or tendency that a person has or had 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.[30]
2. The person whose ‘tendency’ is the subject of the evidence is NICOLE LOUISE PARACHONIAK.
3. As indicated in Table A below, the tendency evidence relates to the following fact(s) in issue in the proceeding:
28 In a yaw, the tyres of a vehicle are still rotating while the vehicle is sliding laterally.
29 And from Shukura Bisimwa and Trey Ronnan.
TABLE A — Relevant fact(s) in Issue
CHARGES FACT(S) IN ISSUE TO WHICH THE TENDENCY
EVIDENCE RELATES
1. Culpable driving causing death Whether the Accused drove in a negligent manner. 2. Dangerous driving causing death Whether the Accused drove in a dangerous
manner.
3. Negligently causing serious injury Whether the Accused drove in a negligent manner. 4. Dangerous driving causing serious
injury
Whether the Accused drove in a dangerous
manner.
5. Reckless conduct endangering life Whether the Accused drove in a reckless manner. 6. Reckless conduct endangering life Whether the Accused drove in a reckless manner. 7. Reckless conduct endangering life Whether the Accused drove in a reckless manner.
4. The tendency sought to be proved is the tendency of NICOLE LOUISE PARACHONIAK to:
(a) Act in a particular way,[31] namely to drive a vehicle negligently, dangerously and/or recklessly by:
i. Driving at excessive speed;
ii. Deliberately swerving side to side or ‘zig zagging’; and
iii. Driving without her prescription glasses.
5. As indicated in Table B below, the conduct of which evidence will be adduced, and particulars of the date, time & place at & the circumstances in which that conduct occurred, and the name of each person who saw, heard or otherwise perceived that conduct, are …
42 Table B of the tendency notice then set out ‘Particulars of Conduct’. The
‘Description of Conduct’ under that heading included three particulars: ‘1. Accused drove at excessive speed’; ‘2. Accused deliberately swerved side to side or “zig zagged”’; and ‘3. Accused drove without her prescription glasses’. (Table B also set out details of the ‘Date’, ‘Time’, ‘Place’, ‘Relevant Evidence’ — including a reference to evidence contained in a statement or given at committal — and ‘Witness(es)’.)
43 Before proceeding, I should, I think, digress briefly to make an observation about the tendency notice (although no issue was raised at trial or on appeal as to its form or content, and nothing in the appeal turns on it). It was not appropriate, in my view, for the notice to contend that the appellant had a tendency to act in a particular way, ‘namely to drive a vehicle negligently, dangerously and/or recklessly’, since whether the appellant drove ‘negligently’ was an element of the charges of culpable
driving and negligently causing serious injury;32 whether she drove at a speed or in a manner ‘dangerous’ was an element of the statutory alternatives to those charges;33 and whether she ‘recklessly’ engaged in particular conduct was an element of the charges of reckless conduct endangering life.34 These elements constituted ultimate facts in issue for the jury’s determination. Proof of those ultimate issues required the jury to be satisfied of a subset of ancillary facts: driving at excessive speed, deliberately swerving or zig-zagging and failing to wear prescription glasses. The
‘tendency’ sought to be proven, as set out in the notice, should have been confined to those ancillary facts and not to ultimate facts in issue,35 given that the relevant tendency must be ‘to act in a particular way, or to have a particular state of mind’.36
As I have said, however, nothing turns on the form of the notice.
44 Defence counsel sought the exclusion of the purported tendency evidence of Tahuriorangi. He submitted that the evidence was irrelevant and should be excluded in its entirety. Tahuriorangi was not in the car at the time of collision, and, so it was submitted, Tahuriorangi’s evidence concerning the appellant’s earlier driving was not probative of any fact in issue.37 Alternatively, it was submitted that if Tahuriorangi’s evidence could be considered to be tendency evidence, it did not have significant probative value;38 and any probative value that it may have possessed did not substantially outweigh its prejudicial effect.39 It was submitted
that there simply was an insufficient relationship between the earlier driving and the
32 See Crimes Act 1958 ss 318 and 24 respectively.
33 See Crimes Act 1958 s 319.
34 See Crimes Act 1958 s 22.
35 In another context, the ‘ultimate issue’ rule has been legislatively abolished. See Evidence Act
2008 s 80(a).
36 Evidence Act 2008 s 97(1).
37 Evidence Act 2008 s 55(1).
38 Evidence Act 2008 s 97(1).
39 Evidence Act 2008 s 101(2).
driving which founded the charges.40
45 For the trial judge’s benefit, the prosecution filed ‘Submissions in Relation to the Evidence of Tyson Tahuriorangi and Tendency Evidence’, which included the following:
1.The tendency evidence sought to be proved goes to an ultimate fact in issue in each of the charges namely, did the accused drive in a negligent, dangerous or reckless manner at the relevant time.
2.On all occasions that the accused drove the vehicle in the lead up to the collision she did so in circumstances where her vision was seriously impaired.
3.Unlike cases where evidence of pre-collision driving has been excluded this case involves pre-collision driving with a continuing serious vision defect, which has contributed to excessive speed and ‘zig zagging’ occurring on all occasions of pre-collision driving by the accused.
46 Further written submissions filed by the prosecution at trial contained the following:
5. …
It is submitted that that evidence reveals that the accused was driving on the night of the alleged offences for her entertainment, and the entertainment of the other occupants of the vehicle. The prosecution contend [sic] that part of that entertainment involved the accused driving in [sic] the vehicle in a manner that involved deliberately swerving from side to side or ‘zig sagging’ [sic.] when the vehicle was travelling at an inappropriately high speed. It is also relevant that the accused was not wearing her glasses during that earlier period of driving and that it took place approximately an hour before the collision.
6.It is submitted that the evidence of the earlier driving is admissible and relevant for two purposes:
(a) It would be capable of being used by the jury to infer the intention or state of mind of the accused as she drove the vehicle in the moments before the collision took place. It is also capable of rebutting the defence of accident.
(b) It is relevant and admissible as tendency evidence.41
40 Semaan v The Queen (2013) 39 VR 503, 509 [32] (Priest JA, with whom Buchanan and Ashley
JJA agreed) (‘Semaan’).
41 Emphasis added.
47 In the course of his oral submissions concerning the admissibility of the purported tendency evidence, the prosecutor made it clear that the prosecution no longer relied on the bare allegation that the appellant had a tendency to drive at excessive speed, the prosecution’s contention being that the appellant ‘was driving the vehicle in a manner that involved her swerving from side to side on the road surface, moving the steering wheel in an erratic manner, at a speed that was not safe to do that’.
48 With respect to the appellant’s alleged tendency to drive at excessive speed, the tendency notice included (among other evidence) a reference to evidence given by Tahuriorangi at committal proceedings, in which he estimated the appellant’s speed at 120, 130 or 140 kilometres per hour. Shortly before the judge ruled on the tendency evidence, however, the prosecutor announced that he would not ask Tahuriorangi to estimate actual speed (so much being consistent with his earlier abandonment of the bare allegation that the appellant had a tendency to drive at excessive speed). The prosecutor said:
And finally, in relation to the evidence of Tyson Tahuriorangi, and the earlier incident, I’ve agreed with my learned friend that I will not lead the evidence that’s really contained in Table B, Row 1,[42] relating to him, that is Tyson Tahuriorangi. I’ll instruct him before we start that I will not be asking him to estimate the speed of the vehicle during that earlier period of driving. And I’ll ask him not to give an estimate of the actual speed but rather, lead evidence that the car was driving at a fast speed, or something of that nature. I think that’s suitable to my learned friend.
So given that, Your Honour, I would seek formally to ask Your Honour to rule on the tendency application.
…
And really, it’s the notice that’s been filed without reference to the first item, that is the excessive speed …
49 With the abandonment of the particular that the appellant ‘drove at excessive speed’, the judge was called upon to rule on the tendency notice limited to the two remaining particulars: ‘2. Accused deliberately swerved side to side or zig zagged’,
42 See [42] above.
and ‘3. Accused drove without her prescription glasses’.
50 The judge’s ruling on the impugned tendency evidence was brief, and contained little (if any) analysis. I set it out in full:
Yesterday I heard argument with respect to the tendency notice which had been argued by [the prosecutor] and [defence counsel]. Written submissions were tendered which I found very helpful in the circumstances and for substantially the reasons advanced by [the prosecutor] in his submissions, I think the tendency evidence should be admitted and it’s been amended in the course foreshadowed by [the prosecutor]. In the circumstances I am satisfied that what is revealed, and the quality of what is revealed earlier, in terms of what arguably happens later, is so similar that it, in my view, answers the various tests, particularly referred to by Justice of Appeal Priest in argument yesterday.[43]
But the matters that were addressed in argument will be fully apparent from the transcript that, of course, in due course I can prepare reasons for the ruling as appropriate. But that is the ruling at this stage, in order to facilitate the conduct of the trial.44
51 Hence, the judge admitted Tahuriorangi’s evidence as evidence of tendency.
A jury was then empanelled and the trial proceeded.
52 Significantly, however, once all of the evidence was in, the prosecutor abandoned reliance on Tahuriorangi’s evidence as tendency evidence. Thus, when making submissions to the trial judge on the ‘tendency evidence’ prior to the final addresses of counsel and the judge’s charge, the prosecutor informed the trial judge that he was ‘withdrawing from that original position‘ and sought to rely on the evidence as ‘context’. When the judge inquired how the prosecutor was submitting
‘it should be explained to the jury’, the prosecutor answered that he ‘would only seek to rely on it as context evidence rather than tendency and context’. He told the judge that he intended to say in his final address ‘that the jury can look at the way that the [appellant] drove the vehicle in the earlier period, and that’s predominantly
the evidence of [Tahuriorangi] … in determining what her state of mind was
43 See Semaan (2013) 39 VR 503, 509 [32] et seq.
44 No more expansive ruling was at any stage provided by the judge.
essentially’.45
53 In seeking to justify the admissibility of the evidence as bearing on the appellant’s state of mind, the prosecutor drew the judge’s attention to Stephen Odgers’ text, Uniform Evidence Law,46 in which the author discussed the admissibility of evidence which is neither tendency evidence nor coincidence evidence, under several heads, including: (a) Evidence showing opportunity and thereby rebutting a defence of alibi; (b) Evidence of other conduct revealing a motive for the crime charged; (c) Evidence of a system; (d) Evidence identifying the defendant with the crime charged; (e) Evidence of a ‘general’ admission; (f) Evidence relevant to a person’s state of mind; (g) Evidence of ‘relationship’; (h) Evidence putting other admissible evidence in context; (i) Evidence of conduct which forms a part of a relevant transaction; (j) Evidence which corroborates the testimony of a complainant; and (k) Evidence rebutting a defence account.
54 The judge stated that, in his view, for the reasons that he had ‘expressed earlier’, the evidence remained admissible as tendency evidence, but was also
‘evidence of context as it is known in the law’.
55 Defence counsel maintained his objection to the admissibility of the evidence, but, given what the judge had indicated, counsel said he did not ‘think it’s a worthwhile exercise to press that now’. Perhaps, as a model of perfection, counsel should at that stage have sought a discharge of the jury. But in light of the judge’s expressed attitude to the admissibility of the evidence, making such application would likely have been an exercise in futility.47
56 Finally, before turning to the arguments advanced on the appeal, I note that,
notwithstanding the prosecutor’s unequivocal abandonment of tendency, in his
45Emphasis added. He also relied on the text message sent to Sunday Naylor, and the way the appellant drove the vehicle when Sunday Naylor was in the car prior to the collision.
46 Stephen Odgers, Uniform Evidence Law (Lawbook Co, 12th ed, 2016) 722–39 [EA.101.150].
47 Cf Semaan (2013) 39 VR 503, 508 [25].
charge to the jury the judge directed in terms which, so it seems to me, trespassed into the area of tendency reasoning. Thus, the judge instructed the jury as follows:
Members of the jury, in this case the prosecution has led evidence that the [appellant] drove Shukuru Bisimwa’s motor vehicle around Shepparton before driving it to Mooroopna to collect Sunday Naylor, as you will recall. That evidence is not directly related to the offences charged. The prosecution says that this evidence is relevant because it is evidence that is capable of allowing you to determine the reason why she and other witnesses were driving the motor vehicle on Ferguson Road at the time of the collision.
The prosecution submits that the evidence in conjunction with the text message sent to Sunday Naylor by the [appellant] is capable of allowing you to infer that the [appellant] and the other occupants of the car were driving around in the manner alleged for their entertainment.
The prosecution submitted that the evidence of the earlier driving by the [appellant] was evidence of conduct which formed part of one continuing activity and placed the alleged offences into their context. The prosecution also submits that the evidence of the earlier driving is relevant to your assessment of [the appellant’s] state of mind, at the time the alleged offending took place.
You must keep in mind that the defence do not accept that the [appellant] was driving in the manner alleged at that earlier time, and indeed [counsel] for the [appellant] has criticised the evidence of [Tahuriorangi] and submitted that you would not accept him as a witness of truth.
Clearly if you do not accept the evidence that [the appellant] drove in the manner alleged on that earlier occasion then you would have to exclude … this evidence from your consideration of matters.48
57 I am unsure what the jury might have understood these directions to mean.
Certainly, if for no other reason than their imprecision, they ought to have attracted an exception from counsel. None was, however, forthcoming.
58 Moreover, insofar as the judge seems to have admitted the evidence as
‘context’, and directed the jury accordingly, he was wrong to do so. In Semaan, the trial judge in a trial for culpable driving had also admitted evidence of prior bad driving purportedly as evidence of context. With the concurrence of Buchanan and Ashley JJA, I made the following observations — equally apposite to the present case
— about the adoption of that course:
I should not leave discussion on ground 1 without saying something about
48 Emphasis added.
the basis upon which the trial judge admitted the evidence. He did so, as I have said, as ‘context’, drawing a distinction between context evidence (so called) and tendency evidence. The evidence of prior driving was not, however, admissible under the rubric of context evidence.
Evidence of ‘context’ — often, but not always, of a sexual relationship with, or interest in, a complainant, sometimes called ‘guilty passion’ — has long been admitted in trials of sexual offences. Relationship evidence has also been admitted in, for example, cases of violent offences, to show the antecedent relationship between victim and alleged perpetrator.49 Such relationship evidence — whether sexual in nature or not — has been distinguished from tendency evidence under s 97, and owes its admissibility to different considerations.50 Evidence of context is often in the form of ‘uncharged acts’. In cases of sexual offences, the reasoning underpinning its admission is that it may tend to explain the relationship between the accused and the complainant and explain why the complainant did not rebuff the accused or show distress or resentment. It has also been admitted to show it to be more probable that the charged acts occurred. When admitted for that purpose, such evidence may prove that the accused had an unnatural interest in, or passion for, the complainant. A preparedness to give effect to that kind of interest has been regarded as having a sufficiently high degree of relevance to justify its admission, as making it more likely that the offence charged was committed.51
I need not pause to consider whether the distinction that is drawn between the heads of admissibility of evidence of context and of tendency is a proper one. Where context evidence is admitted, however, it is exclusively to show the relationship between the accused and a victim from which certain inferences bearing on the charged conduct might be drawn. That kind of evidence could have had no place in the present case.52
59 The judge should not have directed the jury that the appellant’s earlier driving ‘placed the alleged offences into their context’. Since there is no ground of appeal directed to the judge’s charge, however, I need give the judge’s directions no further attention.
Submissions on the appeal
60 The grounds of appeal contend that the trial judge erred in admitting
49 R v Anderson (2000) 1 VR 1; R v Gojanovic (2002) 130 A Crim R 179 (Coldrey J).
50 Conway v The Queen (2000) 98 FCR 204.
51 JLS v The Queen (2010) 28 VR 328, 334 [19].
52 Semaan (2013) 39 VR 503, 511–12 [42]–[44].
Tahuriorangi’s evidence, and in accepting that evidence as evidence of context
following the prosecution’s decision to not rely on it as relevant to tendency.
61 Despite the prosecution’s disavowal of tendency reasoning at trial, in the response to the appellant’s written case filed for the purposes of this appeal, counsel for the respondent sought to defend the judge’s admission of the evidence as evidence of tendency. He submitted in writing that ‘the evidence was relevant and admissible as tendency evidence as the Trial Judge initially ruled at the pre-trial stage’. It was submitted that, ‘The evidence of “lead up driving” was closely related to the driving which led to the accident in time, distance and circumstance such that the jury could draw an inference that the driving at the time of the accident was of the same character of [sic] the “lead up driving”’.
62 Upon the hearing of the appeal, however, senior counsel for the respondent repudiated those written submissions.53 He submitted that the prosecutor was correct to ‘clamber down from tendency’. Indeed, senior counsel went further than the trial prosecutor, and conceded that Tahuriorangi’s evidence simply was not admissible as tendency evidence. That concession was a frank — and, in my view, realistic — acceptance of the fact that, so far as the judge admitted the evidence as tendency evidence, he was wrong to do so. That concession — which should be accepted — makes it unnecessary to revisit Semaan insofar as it relates to evidence of prior bad driving (or the pre-Evidence Act 2008 cases on the subject),54 or to consider whether any of the principles laid down in Semaan concerning the operation of ss 97(1) and 101(2) fall to be reconsidered in the light of the High Court’s recent
pronouncements in Hughes.55
53Different counsel appeared for the respondent on the trial and appeal, and different counsel again drew the written submissions.
54 See, eg, R v Lewis [1913] VLR 227; R v Horvath [1972] VR 533; R v Walker [2001] VSCA A Crim
R 302; R v Fischer (1996) 23 MVR 507; R v Duryea (2008) 103 SASR 70.
55 Hughes v The Queen (2017) 344 ALR 187 (‘Hughes’). See also Bauer (a pseudonym) v The Queen
[No 2] [2017] VSCA 176 (‘Bauer’).
63 Acknowledging that the prosecutor was correct to ‘clamber down’ from the
‘step ladder of tendency’, senior counsel for the respondent conceded that if Tahuriorangi’s evidence was admissible at all, it could only be on the basis of ‘state of mind’ evidence as discussed by Odgers.56 More particularly, senior counsel relied on three authorities — Elomar,57 Karabegovic58 and Higgins59 — which, so he submitted, justified the admission of the impugned evidence as state of mind evidence. Viewed as state of mind evidence, senior counsel argued, the evidence did not confront the high hurdles to admissibility presented by ss 97(1)(b) and 101(2) of the Evidence Act 2008.
64 In a submission that was not wanting in ingenuity, senior counsel for the respondent submitted that the appellant’s state of mind might be divined from her text message to Sunday Naylor that they were ‘drifting’,60 and from Tahuriorangi’s evidence that ‘everyone’ (except him) said ‘we go put some petrol in the car and go out, do some burnouts out on the bush road’.61 The evidence that the appellant was minded to be involved in ‘drifting’ and ‘burnouts’ went, so it was argued, to her state of mind and to rebut any ‘defence’ of accident. According to the submissions of senior counsel, the evidence showed a state of mind ‘to drive in a way that one might call wayward’ and would have included swerving, or a plan to in future ‘swerve illicitly’, or ‘the future intention to engage in illicit, fun driving’. One of the problems associated with the respondent’s submission is that what the appellant
might have intended by ‘drifting’ — to some it might mean simply to wander
56 Odgers, above n 46, 726–9.
57 Elomar and Others v The Queen (2014) 300 FLR 323, 399 [365]–[368] (Bathurst CJ, Hoeben CJ at
CL and Simpson J) (‘Elomar’).
58 R v Karabegovic [Ruling No 3] [2015] VSC 641 (John Dixon J) (‘Karabegovic‘).
59 Higgins (a pseudonym) v The Queen [2016] VSCA 47 (Redlich, Weinberg and Osborn JJA)
(‘Higgins’).
60 See [33] above.
61 See [31] above.
aimlessly62 — or ‘burnouts’ was not the subject of any evidence. A second problem is that there was no evidence that the appellant’s driving included conduct that might fit the description of either ‘drifting’ or ‘burnouts’. A third problem is that the impugned evidence was concerned with Tahuriorangi’s account of the appellant’s driving,63 not with any implied admissions made by the appellant as to her future conduct (that is, that she might involve herself in ‘drifting’ or ‘burnouts’). It was the admissibility of Tahuriorangi’s evidence that was in issue, not statements concerning
‘drifting’ and ‘burnouts’. The issue to be determined is whether Tahuriorangi’s account of the appellant’s prior driving was capable of going in proof of the appellant’s state of mind, not whether her prior statements were admissible as going to her state of mind.
65 A fundamental difficulty for the respondent is that the state of mind sought to be attributed to the appellant is a far cry from those acknowledged in the cases upon which the respondent relied. For example, in Elomar — a case upon which the respondent heavily relied — a number of individuals were charged with terrorism- related offences. Each was alleged to be part of a conspiracy in 2005 to do acts in preparation for a terrorist act (or acts). One of the accused, Moustafa Cheikho, had in 2001 or 2002 attended a camp in Pakistan run by a militant Islamic organisation, LeT, devoted to global jihad. Cheikho’s state of mind was relevant to two elements of the charge he faced: whether he intentionally entered into an agreement with another alleged conspirator, and whether he and another conspirator intended that a terrorist act would be committed. The prosecution disavowed reliance upon the
evidence of Cheikho’s attendance at the camp as tendency evidence. On appeal, the
62 Although there was no evidence to explain what the appellant might have understood
‘drifting’ to mean, senior counsel for the respondent asserted in argument in this Court that,
‘It’s not normal driving, it’s having fun driving in a certain kind of skylarking fashion, if you
like …’, prompting the well-founded objection from senior counsel for the appellant that there was no evidence of what drifting entailed.
63 See [28] and [29] above.
New South Wales Court of Criminal Appeal observed:64
The evidence of Moustafa Cheikho’s attendance at the LeT camp was not, in our opinion, evidence of conduct such that any conclusions or inferences could be drawn that he had a tendency to act in any identifiable (particular) way. It was, however, evidence that could provide the foundation for a conclusion or inference that, in 2001-2002, he in fact had a particular state of mind. That state of mind was support for violent Islamic Jihad. Looked at in that way, the evidence was capable of being seen as tendency evidence. It was evidence which could be seen as evidence that, because he had that state of mind in 2001-2002, he had a tendency to have that state of mind, and, commencing in 2004, he again had that state of mind.
That is one way of looking at the evidence. There is an alternative way of looking at it.
As mentioned above, s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning.65
66 Close examination of the reasons in Elomar makes plain, however, that the
‘state of mind’ alluded to — ‘support for violent Islamic Jihad’ — was, in context, synonymous with ‘belief’. (It will be remembered that s 97(1) of the Act refers specifically to a person’s ‘state of mind’.) Thus, the Court went on to say:
A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a ‘tendency’ to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning.
Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person’s mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho’s attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that
64 Elomar (2014) 300 FLR 323, 398 [361]–[363] (emphasis in original).
65 See ibid 398 [359]–[360]. Cf Hughes (2017) 344 ALR 187, 206 [70]–[71] (Gageler J). See also
Bauer [2017] VSCA 176 [52]–[53].
he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s
97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not.
The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho’s attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001–
2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy.
If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning.66
67 In other words, evidence of Cheikho’s attendance at the camp was evidence that he actually held a belief favouring violent Islamic Jihad, not that he had a tendency to have that belief. Assuming — solely for the sake of argument — that the New South Wales Court of Criminal Appeal was correct to conclude in Elomar that the fact that an accused person holds particular beliefs is not tendency evidence, the state of mind relied upon by the respondent in the instant case is very different from a state of mind akin to a religious or political belief. Inferential reasoning which revolves around the holding of particular political or religious beliefs does not readily translate to the facts of the present case, in which, according to the submissions of senior counsel for the respondent, the state of mind of the appellant sought to be proven by Tahuriorangi’s evidence was ‘to drive in a way that one might call wayward’ or to ‘swerve illicitly’.
68 Karabegovic was another case upon which the respondent placed a deal of
66 Elomar (2014) 300 FLR 323, 399–400 [366]–[369] (emphasis in original).
reliance. That case involved a charge of possessing a thing connected with assistance in a terrorist act. In considering Elomar, John Dixon J observed:
Elomar would permit recourse to ordinary human experience in assessing the state of mind represented by the beliefs of the accused as evident from his conduct in 2002 at the Pakistan camp, because the fact of the accused’s religious beliefs does not involve tendency. Translated to a jury direction, in other words, the jury can be invited to use their common sense. It must be assumed that, despite the absence of particular analysis of it, the NSW Court of Appeal was satisfied that the inference that Cheikho continued to believe in violent Islamic Jihad up to and including the time of the alleged conspiracy was appropriately drawn by the trial judge.
The language used by the Court of Criminal Appeal does not permit wholesale disregard of tendency reasoning purposes in proving states of mind. It stated, for example, that only in ‘appropriate circumstances’ would direct proof of a continuous state of mind not depend upon tendency reasoning. Looking at the particular features of a continuous state of mind identified in Elomar, the NSW Court of Criminal Appeal considered the nature of the state of mind in question and the time gap that is in issue. Important as those matters are, I do not understand the NSW Court of Criminal Appeal to have rejected the proposition that whether an accused had a continuous static belief — such that proof of it on a prior occasion permits the inference of its existence on a later occasion — is fact sensitive requiring consideration of all relevant circumstances.
On a factual enquiry, apart from the qualities of the particular belief or state of mind in issue and the time gap between the relevant occasions, evidence of conduct that permitted the inference that a person’s belief continued as his state of mind – such as repetition of the same intention or concept in the intervening period — would be highly probative. Evidence that the time gap was relatively insignificant in the context of the nature of the state of mind to be proved would also be highly probative.67
69 Higgins, also cited by the respondent, was an interlocutory appeal from Karabegovic. The Court (Redlich, Weinberg and Osborn JJA) recognised that evidence of a person’s thinking, belief, attitude, inclination, or disposition on previous occasions — evincing a continuing state of mind — may be admissible for purposes other than tendency reasoning.68
70 Given its peculiar facts, the reasoning in Elomar will be only of limited
67 Karabegovic [2015] VSC 641 [195]–[197] (emphasis added).
68 Higgins [2016] VSCA 47 [17]–[19].
application to cases where the accused person’s holding of particular beliefs is not relevant. As the Court in Elomar itself recognised, only in ‘appropriate circumstances’ would direct proof of a continuous state of mind not depend upon tendency reasoning. In my view, if the reasoning in Elomar is to be applied in other cases, it should be confined to those cases where states of mind in the nature of religious or political (or similar) kinds of belief are important. Quite plainly, the present case is not of that nature. Indeed, the respondent’s attempts to circumvent the strictures of ss 97(1)(b) and 101(2) of the Evidence Act 2008 by endeavouring to categorise evidence initially thought to be tendency evidence as instead evidence of a
‘state of mind’, emphasises the undesirability of recognising the kinds of fine distinctions that ‘state of mind’ evidence represents.69
71 Upon the assumption that Elomar was correctly decided, Tahuriorangi’s evidence was not, in my opinion, admissible as evidence of the appellant’s ‘state of mind’. If Tahuriorangi’s evidence was admissible at all, it could only have been as evidence of tendency.
72 It is clear that at trial the prosecution wished to rely on Tahuriorangi’s evidence to prove that the appellant was likely to have driven the car shortly before the collision in a way that involved swerving or zig-zagging at an inappropriate speed. Endeavouring to use the appellant’s prior driving in order to show that she likely acted in a particular way at the time of the driving founding the charges was to invoke tendency reasoning. Recognising that the evidence did not meet the strict requirements of ss 97(1)(b) and 101(2) of the Evidence Act 2008, the prosecutor sought to circumvent the high threshold to admissibility imposed by the Act by labelling the critical evidence as evidence of ‘context’ and of ‘state of mind’. No matter what label
the prosecution attached to Tahuriorangi’s evidence, however, in my view it
69In Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 464–5 [62], I lamented the distinctions drawn between context and relationship evidence, and tendency and coincidence evidence, and expressed the view (at 474 [92]–[93]) — described in Velkoski v The Queen (2014) 45 VR
680, 710 [127] as an ‘aspiration’ — that context evidence should be seen as owing its admissibility to ss 97 and 101.
remained tendency evidence, caught by the Act. But as the respondent conceded in this Court, it was not admissible as such.
73 As a result of the wrongful admission of Tahuriorangi’s evidence, justice miscarried. On the issue of whether there had been a substantial miscarriage of justice, senior counsel for the respondent properly conceded that if the Court were to find that Tahuriorangi’s evidence was wrongly admitted, the respondent could not contend that conviction was inevitable.70 In those circumstances, it was necessary to set aside the convictions and order a new trial.
KYROU JA:
74 I have had the benefit of reading the judgments of Maxwell P and Priest JA in draft.
75 I agree, for the reasons given by Priest JA, that the evidence of Tahuriorangi was not admissible. It was neither tendency evidence that satisfied the requirements of s 97(1)(b) and 101(2) of the Evidence Act 2008 nor context evidence. The judge erred in admitting the evidence.
76 I agree, for the reasons given by Maxwell P, that the evidence of Tahuriorangi was insufficient to enable the jury to draw an inference that, at the time of the collision, the appellant had any particular state of mind that was relevant and admissible in relation to the charges she faced.
77 The distinction between, on the one hand, evidence of a tendency to have a particular state of mind that falls within s 97(1) of the Evidence Act 2008 and which must satisfy the requirements of that section as well as s 101(2) in order to be admissible and, on the other hand, evidence of a particular state of mind which falls
70 Criminal Procedure Act 2009, s 276(1)(b); Baini v The Queen (2012) 246 CLR 469.
Parachoniak v The Queen 31 PRIEST JA KYROU JA
outside s 97(1), is a difficult one. It is not necessary for me to discuss the scope of admissible evidence falling within the second category, and therefore the scope of the principles discussed in Elomar,71 Karabegovic72 and Higgins.73 This is because, whatever the scope of that category and those principles, it is abundantly clear that Tahuriorangi’s evidence did not constitute evidence that the appellant had any particular state of mind, at the time of the collision, which was relevant and admissible in relation to the charges she faced.
78 It is for these reasons that I joined in the orders made on 1 November 2017.
----
71 (2014) 300 FLR 323.
72 [2015] VSC 641.
73 [2016] VSCA 47.
Parachoniak v The Queen 32 KYROU JA
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