The tendered evidence is admitted in the trial for non-tendency and tendency purposes as contained in this judgment.
Catchwords:
CRIMINAL LAW – Judge-alone trial for murder - pretrial hearing - tender of evidence by Crown for tendency and non-tendency purposes - objection to tender of evidence - Accused charged with murder of ex-wife of Man Monis in April 2013 - Accused in relationship with Monis at the time of killing - Crown case that Accused killed deceased at behest of Monis - Crown tender of evidence of acts allegedly performed by Accused at behest of Monis during their relationship since 2008 - Accused appearing in extremist videos and communicating in offensive way with relatives of deceased Australian servicemen - Accused protesting at behest of Monis - Crown case that Accused and Monis wished to kill ex-wife to obtain custody of Monis’ children to permit creation of family unit - whether evidence relevant for non-tendency purposes including relationship between Monis and Accused, motive and state of mind of Accused - whether evidence may be used as tendency evidence - suggested tendency of Accused to act at behest of Monis in a variety of ways - assessment of prejudicial effect under ss.101(2) and 137 Evidence Act 1995 for the purpose of a Judge-alone trial - evidence allowed for non-tendency and tendency purposes
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Droudis (No 13) [2016] NSWSC 1350
Case
[2016] NSWSC 1350
Decision Date
CaseChat Overview and Summary
The case of R v Droudis (No 13) involved the accused, who was charged with the murder of the ex-wife of Man Monis in April 2013. The accused was in a relationship with Monis at the time of the killing, and the Crown's case was that the accused killed the deceased at Monis's behest. The case was heard in a court that was conducting a judge-alone trial for the offence of murder. The primary legal issue that the court had to decide was whether the evidence tendered by the Crown was relevant and admissible for both tendency and non-tendency purposes. The Crown wanted to present evidence of acts allegedly performed by the accused at Monis's behest during their relationship since 2008, as well as the accused's appearance in extremist videos and communication with the relatives of deceased Australian servicemen. The accused argued that all of this evidence should be excluded under s.135(c) of the Evidence Act 1995.
The court considered the relevance of the evidence and whether it was admissible for non-tendency and tendency purposes. The court held that evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. The court also considered the prejudicial effect of the evidence under ss.101(2) and 137 of the Evidence Act 1995 for the purpose of a judge-alone trial. The court found that the evidence was relevant for non-tendency purposes, including the relationship between Monis and the accused, the motive and state of mind of the accused. The court also found that the evidence could be used as tendency evidence to show a suggested tendency of the accused to act at Monis's behest in a variety of ways. The court concluded that the probative value of the evidence outweighed the danger of unfair prejudice to the accused and allowed the evidence for both non-tendency and tendency purposes.
The court's decision to allow the evidence was based on the principle that evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. The court noted that evidence that is of only some (even slight) probative value will be prima facie admissible. The court also considered the mosaic of evidence that was presented in the case, noting that each individual item of evidence might have significant relevance when put together with the other evidence. The court found that the evidence was relevant to the critical fact in issue, which was whether the accused was the one who fatally attacked the deceased on 21 April 2013. The court held that the evidence was relevant to the state of mind of the accused and the relationship between the accused and Monis, which were important factors in the case. The court also found that the evidence could be used as tendency evidence to show a suggested tendency of the accused to act at Monis's behest in a variety of ways. The court concluded that the probative value of the evidence outweighed the danger of unfair prejudice to the accused and allowed the evidence for both non-tendency and tendency purposes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Even if the tendered evidence was held to be admissible on these tendency and non-tendency bases, it was submitted for the Accused that all of it should be excluded under s.135(c) of the Act.Relevance and s.137 Evidence Act 1995 Consideration of relevance requires identification of the fact or facts in issue in the trial. Here the principal and critical fact in issue is whether it was the Accused who fatally attacked the deceased on 21 April 2013. The Crown contends that what is said to be the close and multi-facetted relationship between the Accused with Monis over a number of years is relevant to that critical fact in issue. The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39]. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40]. In considering a relevance objection to a piece or pieces of evidence which are said to form part of a circumstantial case, it is appropriate to bear in mind what was said by the Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) in Elomar v R [2014] NSWCCA 303; 316 ALR 206 at 258 [240]:“The very point of a circumstantial case, as this was, is that it creates a mosaic of sometimes apparently tiny items of evidence, that, when put together, make up a whole picture. The tiniest fragment of evidence might, on completion of the mosaic, be shown to have significant relevance. It is a mistake, particularly in a circumstantial case, to attempt to determine the relevance of each individual item of evidence in isolation from all of the other evidence.” Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. In Elomar v R, the Court of Criminal Appeal said at 280 [369]:“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.” Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 538 [47].