R v Green (No 9) - [2021] NSWSC 1318

Supreme Court

New South Wales

Medium Neutral Citation: R v Green (No 9) [2021] NSWSC 1318
Hearing dates: 5-9; and 12-16 July; 20-24 and 27-30 September; 1 and 5-8 October 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
The evidence relating to the events of 29 October 2017 is not admissible as tendency evidence

Catchwords:
EVIDENCE – special hearing – murder – where deceased stabbed three times to neck and back – wholly circumstantial case – Crown application to tender tendency evidence admitted on voir dire – where tendency evidence goes to identity of accused – previous ‘stabbing’ committed by accused – low degree of similarity – probative value not significant – unfair prejudice to accused not outweighed

Legislation Cited:
Evidence Act 1995 (NSW) ss 97, 101
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 59

Cases Cited:
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
TL v R [2020] NSWCCA 265

Texts Cited:
Nil

Category: Procedural rulings
Parties: Regina (Crown)
Jesse Leigh Green (Accused)
Representation:
Counsel:
B. Costello (Crown)
S. Bouveng (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Rice More & Gibson Solicitors (Accused)

File Number(s): 2018/106348
Publication restriction: Nil

Ex tempore judgment – revised

I am conducting a special hearing concerning a number of charges brought against the defendant, Mr Green, the principal charge being one of the murder of Ms Teah Luckwell sometime between about 5:30 pm on 27 March 2018 and about 8 or 9 pm, depending upon which evidence is accepted from lay witnesses, on 28 March 2018.
There is no doubt on the evidence that Ms Luckwell was violently killed in her own home. The principal question is whether, on the limited evidence available, the Crown have proved beyond reasonable doubt that Mr Green committed the offence charged in accordance with the terms of s 59 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
I interpolate that I have had heard evidence in the proceedings from two consultant psychiatrists which raises the question of, if the Crown have proved that Mr Green committed the offence, whether he is not criminally responsible on the basis of the mental health impairment defence referred to in s 28 of the Act. However, I will leave that consideration to one side for present purposes.
By reason of his unfitness to plead, Mr Green maintains his innocence to the offences charged, and Mr Bouveng of learned counsel who appears for him, I expect, given the way that the case has been run, will be submitting that the Crown have failed to discharge their heavy onus of proof and the verdict ultimately should be one of not guilty of the offences charged, without the need to have any reference at all to the mental health impairment defence.
I am presently concerned with…

Grounds of appeal

[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.

Continue reading R v Green (No 9)

Details

AGLC: R v Green (No 9) [2021] NSWSC 1318
Case: [2021] NSWSC 1318
Decision Date: 08 October 2021

CaseChat Overview and Summary

In this matter, the respondent, Green, was charged with the murder of the deceased, who was stabbed multiple times to the neck and back. The case was heard in the Supreme Court of Queensland. The primary issue for the court was whether the Crown's application to tender evidence of a previous stabbing by Green was admissible under the tendency evidence provisions. The court needed to consider whether the probative value of this evidence outweighed any prejudicial effect it might have on the accused.

The court found that the evidence of the previous stabbing was relevant to the identity of the accused as the perpetrator of the murder. However, the degree of similarity between the previous stabbing and the current offence was relatively low. The court considered that the probative value of the evidence was not significant enough to outweigh the potential for unfair prejudice to Green. The court noted that the prejudice stemmed not only from the potential implication of Green's involvement in another stabbing but also from the possibility that the evidence could lead to a conviction based on the "bad character" of the accused rather than on the evidence of the current offence. As a result, the court held that the prejudicial effect was not outweighed by the probative value, and the application to admit the evidence was dismissed.

The court's decision was based on a careful analysis of the evidence and the potential impact it could have on the fairness of the trial. The court recognised the importance of ensuring that the accused received a fair trial and that the evidence presented did not unfairly prejudice the jury against the accused. The court's decision to exclude the evidence of the previous stabbing was a careful balancing act between the probative value of the evidence and the potential for unfair prejudice. The court's decision highlights the importance of considering the impact of evidence on the fairness of a trial and the need to exclude evidence where the prejudicial effect outweighs the probative value.

Orders