R v Bryce (No 2)

[2014] NSWSC 498

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bryce (No 2) [2014] NSWSC 498

Hearing dates:

29 April 2014

Decision date:

29 April 2014

Jurisdiction:

Common Law - Criminal

Before:

Beech-Jones J

Decision:

1. The accused may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased to behave aggressively and violently as described in entries 1 to 3, 7 and 8, 10 to 14, 16 to 22 and 26 to 27 of the Tendency Notice dated 22 April 2014.

2. The accused may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased to engage in self-harm as described in entry 1 of the Tendency Notice dated 22 April 2014.

3. The accused may tender the balance of the documents referable to the alleged tendency of the deceased to engage in self-harm that are annexed to the Tendency Notice dated 22 April2014.

Catchwords:

EVIDENCE - TENDENCY - tendency evidence adduced by accused - tendency of deceased to engage in "violent/aggressive behaviour" - tendency of deceased towards self-harm - COPS entries - medical records - whether evidence has significant probative value.

Legislation Cited:

- Evidence Act 1995 (NSW), s 69, s 97

Cases Cited:

- DSJ v R; NS v R [2012] NSWCCA 9
- R v Bryce (No 1) [2014] NSWSC 495

Category:

Procedural and other rulings

Parties:

Crown (Prosecutor)
John Keith Bryce (Accused)

Representation:

Counsel:
E. Balodis (Crown)
P.S. Williams (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Andrew Scali (Accused)

File Number(s):

2012/156908

Publication restriction:

Not published until after verdict reached.

ex tempore Judgment

1. This judgment deals with an application by the accused to adduce tendency evidence which is opposed by the Crown. The accused was arraigned yesterday. The jury is due to be empanelled tomorrow.

1. Yesterday I gave judgment concerning certain objections by the accused to aspects of the evidence sought to be adduced by the Crown (R v Bryce (No 1) [2014] NSWSC 495 ("Bryce (No 1)"). In doing so, I outlined the Crown case. I will not repeat that description, save that it is necessary to expand upon one matter.

1. In Bryce (No 1) at [10], I noted that in his interview with the police the accused suggested that the deceased had a propensity to self-harm. It is necessary to describe this aspect of the interview in more detail. The interview was conducted on the afternoon of 16 May 2012. At one point, the accused was asked about the bruising on the deceased's face. He stated that the deceased was "always repeatedly punching herself" (question 544), and stated that she punched herself on the day before, that is, on 15 May 2012 (question 549). Later, when asked about some of her injuries, the accused stated that the deceased was often "head butting walls" (question 804).

1. It is also necessary to note that in Bryce (No 1) I overruled an objection to the Crown tendering photographs taken of the deceased on 15 May 2012 prior to the attendance of the police officers at her apartment. The photos depicted bruising to the deceased's face, neck and arms. The neck bruising was consistent with an attempt at strangulation. One basis upon which the tender of the photographs was allowed was as part of the Crown pointing to the material as evidence that the relationship between the accused and the deceased was a mutually violent one and not a relationship that involved violence, including self-inflicted violence, on the part of the deceased only, as appears to have been asserted by the accused in his interviews with the police (Bryce (No 1) at [36]).

Tendency Notice

1. On 22 April 2014, a tendency notice was sent to the Crown on behalf of the accused. It identified the relevant tendency sought to be demonstrated as a tendency on the part of the deceased "to act in a violent/aggressive manner in public places and ... a tendency towards self-harm". The notice identified the substance of the evidence sought to be adduced as that described in a number of documents attached to the notice.

1. In relation to the supposed tendency of the deceased to act in a "violent/ aggressive manner" the notice cross-referred to twenty-seven entries from police records (so-called "COPS entries") spanning the period 2 February 1998 to 17 August 2011. These entries, in general terms, recorded observations, or at least allegations, of violent and aggressive behaviour on the part of the deceased. I will return to those entries shortly.

1. In relation to the alleged tendency on the part of the deceased towards the infliction of self-harm, the notice cross-referred to one COPS entry. It also cross-referred to and annexed eighteen other records, being records apparently obtained from Justice Health or the Department of Corrective Services. Those records appear to span the period November 2006 to October 2008. These latter records all appear to concern periods in which the deceased was in custody or under supervision. As I will explain, they contain observations about either the deceased stating that she engaged in self-harm or the fact that she engaged in self-harm.

Section 97 of the Evidence Act

1. I will deal with each supposed tendency in turn, but first it is necessary to note the terms of s 97 of the Evidence Act 1995 (NSW). It relevantly provides:

"97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party."

1. I will not describe the operation of this provision in detail. It suffices to state that s 97(1)(b) requires the Court to take the proposed evidence sought to be adduced at its highest and determine whether it has the capacity to be of importance or of consequence in establishing a fact in issue (see DSJ v R; NS v R [2012] NSWCCA 9 at [72] per Whealy JA ("DSJ")). This assessment of the capacity of the evidence to meet the relevant standard is to be contrasted with the undertaking of any fact-finding exercise or the attribution of actual weight to the evidence in question (DSJ id).

1. Further, in this case it must be remembered that the onus of proof on all relevant issues lies with the Crown, yet it is the accused who seeks to adduce the tendency evidence. The accused does so in the anticipation that the evidence will disprove the facts and inferences sought to be drawn by the Crown, or at least leave open one or more reasonable possibilities that are inconsistent with some aspect of the Crown case.

Alleged tendency to be violent and aggressive

1. During the argument, counsel for the accused clarified that the relevant tendency alleged against the deceased was to engage in violent and aggressive behaviour simpliciter and not just such behaviour "in public places". Counsel identified two separate but related bases upon which this evidence was said to be not only relevant but to have significant probative value for the purposes of s 97(1)(b).

1. The first was that it was said to raise other possibilities by which the deceased could have suffered the injuries that were treated at the hospital on the morning of 15 May 2012, and the additional head injuries the deceased was said to have suffered on the evening of 15 May 2012. The second basis was the material operated to rebut the reasoning urged by the Crown as to the relevance of the other injuries found upon the deceased and which the Crown says were inflicted by the accused.

1. For both bases, the chain of reasoning sought to be relied on was that with a person in the position of the deceased, that is, someone who supposedly had such a violent and aggressive disposition, then it was likely or at least reasonably possible that in the period prior to her death she could have provoked or at least been involved in some form of violent confrontation with someone other than the accused. This could have led to the various injuries being inflicted.

1. The Crown opposed the tender of this material. It submitted that the tender failed at a number of levels. First, it submitted that even if the tendency alleged was established by the evidence sought to be relied on, then nevertheless s 97(1)(b) was not satisfied. Second, the Crown submitted that the evidence sought to be adduced did not establish the alleged tendency in any event. Third, the Crown noted that, as the evidence sought to be relied upon was found in COPS reports, those reports were not admissible in that they were excluded from the operation of the business record rule by s 69(3)(b) of the Evidence Act. Section 69(3)(b) limits the business record exception to the hearsay rule if the relevant representations were made in connection with an investigation relating to or leading to a criminal proceedings.

1. I will address this third point first. At this point of the trial, the function of the COPS reports being attached to the tendency notice was to apprise the Crown of the substance of the evidence that was sought to be adduced. The accused is not necessarily restricted to only adducing that evidence by the tendering of those reports. For example, it might be open to the accused to call the authors of those reports who presumably witnessed many, if not most, of the events described. Thus, at this point I will not address the potential application of s 69(3)(b) to these documents, nor the form in which the evidence will be adduced. The balance of this judgment assumes that the accused will be able to adduce evidence of those events in an admissible form or otherwise by agreement with the Crown.

1. Otherwise, save for some of the incidents referred to in the COPS reports, I reject the Crown's submissions. I have reviewed the twenty-seven COPS reports said to disclose conduct of the deceased demonstrating that she had a tendency to act in a violent and aggressive manner. Six of those entries, being those listed as items 5, 6, 9, 15, 23, 24 and 25 in the notice, only reveal either agitated or offensive behaviour on the part of the deceased or fail to identify any conduct with sufficient precision beyond stating that the deceased was aggressive. However, the balance of the reports reveals a reasonably consistent pattern of aggressive, threatening and, on a number of occasions, violent behaviour on the part of the deceased towards a variety of persons, including the police, persons known to her and complete strangers.

1. For example, the third item listed in the notice refers to an occasion on 23 July 2011 where the deceased supposedly behaved in an extremely aggressive manner towards a number of patrons at a fast food restaurant. This included yelling and screaming at them for reasons that were apparently unknown.

1. Item 10 in the notice refers to an occasion on 2 October 2008 where the deceased is said to have attended a medical centre with a child. She is said to have yelled aggressively at the child in the presence of strangers and flicked the child in the face. Apparently the child was left with a red mark on their cheek.

1. Item 16 in the notice refers to an incident on 5 April 2006 where the deceased repeatedly hit the head and face of a woman who was crossing the road in Newtown.

1. Item 19 refers to an incident on 8 October 2004 where the deceased behaved aggressively towards a shop assistant in Newtown. She is said to have gone behind the counter, grabbed the assistant by the hair and pulled and "mauled at the victim's ponytail".

1. Item 21 describes an incident on 7 October 2004 where the deceased apparently struck a person with a pipe four times on the left arm.

1. In some cases the greater number of incidents and the differing nature of the confrontations would tell against the evidence of the incidents having the requisite capacity to satisfy s 97(1)(b). However, this is not such a case. In this case, the very disparate number of potential victims of the deceased, as revealed by the COPS entries, and the differing circumstances of the violent behaviour is capable of strongly supporting a contention that the evidence has the requisite capacity to affect the assessment of the existence of a fact in issue. In particular, it has the capacity to raise, at the very least, a reasonable possibility that the deceased found herself engaged in some form of violent confrontation with some person other than the accused in the days up to and the period immediately preceding her death. In making that finding, I reiterate, the Court is not making any final assessment of the effect of the evidence or the weight to be attached to it.

1. It follows from that conclusion that the accused can adduce evidence of the conduct of the deceased as described in the following COPS entries in the tendency notice referable to the alleged tendency of the deceased to engage in violent and aggressive behaviour, namely, entries 1 to 3, 7 to 8, 10 to 14, 16 to 22 and 26 to 27. It further follows from my earlier observations that this finding is subject to this evidence being adduced in an admissible or agreed form.

Tendency towards self-harm

1. I have already described the nineteen documents listed in the tendency notice which are said to describe or define the conduct relied upon in relation to the supposed tendency of the deceased towards self-harm. As noted, the first document was a COPS entry. It bears the date 2 December 2011. It describes an incident in which the deceased supposedly punched a glass panel.

1. The Crown submission in relation to s 69(3)(b) of the Evidence Act is potentially applicable to this document although the incident does not appear to have resulted in a charge. However, the balance of the documents referred to in relation to this tendency, being health records, appear to be admissible as business records. They all appear to relate to a period when the deceased was either in custody or subject to some form of supervision. They include a number of references to statements made by the deceased about having thoughts or intentions of self-harm. Further, some of the references are quite specific and have particular resonance to this matter.

1. Thus, some progress notes dated 1 August 2008 record the deceased stating that she had banged her head against a wall. A Justice Health report dated 6 August 2008 records the deceased as having tried to hang herself. Another report dated 6 October 2008 records the deceased attempting to hang herself while in custody between July and October 2008. It is to be recalled that the photographs of the deceased on the day of her death indicates that she had bruises in the neck area.

1. The Crown pointed to the fact that many of the reports refer to the deceased stating that she considered or attempted self-harm because of the despair she felt because of her separation from her children. The Crown submitted that such matters made it difficult to conclude that there was some general tendency on the part of the deceased towards self-harm which was still prevalent as at 2012. To that observation, it might be added that, with the exception of the COPS report from late 2011, the rest of the events appear to be confined to the years 2006 and 2007.

1. I think there is some force in those observations but, in my view, they do not detract from the conclusion that the material has the requisite capacity to affect the assessment of a fact in issue, namely, the origin of the deceased's injuries. The distress the deceased felt about being separated from her children may have been ongoing. It may have been replaced by other stressors or a general feeling of despair. True it is that some of the incidents of self-harm appear to be specifically related to separation from her children, but others appear to be in response to taunts or arguments with associates. Otherwise, the fact that the bulk of the reports relate to the period of 2006 and 2008 is probably explicable by the fact that her having been in custody or supervised during that period meant that the incidents were reported and then recorded.

1. The sheer number of reports in that period and the nature of those reports is nevertheless capable of suggesting that there was a propensity on the part of the deceased to self-harm, which was ongoing. As I have stated, in his interview with the police, the accused pointed to that propensity as a possible explanation to the bruising that was found on her body. The Crown seeks to make much of that bruising in its case.

1. In my view it follows that evidence of a significant number of attempts of self-harm on the part of the deceased has the requisite capacity to effect the assessment of the probability of the existence of a fact in issue. Leaving aside the COPS notice which is subject to the same observations I made earlier, the balance of the documents will, at the appropriate time, be admitted.

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Decision last updated: 21 May 2014