R v HACKETT
[2014] SADC 173
•17 October 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HACKETT
Criminal Trial by Judge Alone
[2014] SADC 173
Reasons for the Verdict of His Honour Judge Brebner
17 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Criminal trial by Judge alone - accused charged with aggravated recklessly causing harm contrary to s 23(2(b) of the Criminal Law Consolidation Act.
Admissibility of discreditable conduct, S 34P(2)(a); s 34(P(2)(b) Evidence Act - relevant inferences - non-propensity purposes - circumstantial evidence.
Verdict: Guilty.
Criminal Law Consolidation Act 1935Part 3 Division 7A; s 23(2)(b); s 21; s 5AA;; Evidence Act 1929 s 34P(2)(a) and (b), referred to.
Fox v Percy (2003); Driscoll v The Queen (1977) 137 CLR; R v Lister [2013] SASCFC 17; Mule v The Queen (2005) ALR 85 ; Spence v Demasi (1988) 48 SASR 536; Jones v Dunkel (1959) 101 CLR 298; Hoch v The Queen (1988) 165 clr 292; Phennig v The Queen (1995) 182 CLR 461; R v MJJ: R v CJN (2013) 117 SASR 81; R v Maiolo (2013) 117 SASR 1; R v CCA [2013] SASCFC 137; R v M, BJ (2011) 110 SASR 1; Wilson v The Queen (1970) 123 CLR 334; R v Allen [2010] SASC 236; Martin v Osborne (1936) 55 CLR 367; Kelly v The Queen (2004) 205 ALR 274; R v Grant (2002) 55 NSWLR 80; Simpson v The Queen (1998) 194 CLR 228, considered.
R v HACKETT
[2014] SADC 173
The accused is charged with one count of aggravated recklessly causing serious harm contrary to s 23(2)(b) of the Criminal Law Consolidation Act 1935 (CLCA). In particular, it is alleged that he, on 14 May 2012, at Clearview, caused serious harm to a female named KLJ, being reckless as to whether such harm was caused. The circumstance of aggravation alleged is that he used an offensive weapon, namely a baseball bat, when committing the crime.
I am satisfied beyond reasonable doubt that the accused is guilty as charged. My reasons are as follows.
Introduction
The complainant and the accused were well known to each other. They had been in a relationship for about seven years. The complainant terminated the relationship some six months before the morning in question. They nonetheless remained friends.
It was the prosecution case that the accused went to the complainant’s home unit at about 6.30 am on the morning in question, that he became angry when he saw the complainant and another man in the lounge room of the premises, that he picked up a baseball bat and either hit the complainant on the head with the bat, or threw it at her head, thus fracturing her skull and causing associated injuries. For convenience I will use the expression “struck her with the bat” to include both mechanisms.
It was the accused’s case that he threw the bat in the direction of the television as he was walking out of the premises and that it must have bounced off a wall and struck the complainant on the head. It was also his case that there was no relevant recklessness on his part.
A preliminary issue
At the outset the prosecution sought permission to lead evidence from the complainant that the accused had been physically violent towards her and that he had also damaged her property during the course of the relationship. I ultimately received the evidence de bene esse.
A volatile relationship
The complainant lived in a home unit at Clearview at all relevant times.
She described the relationship between herself and the accused as “on and off.” She said she always loved him. The two of them consumed methylamphetamine together. She said she no longer uses.
The fact that the accused might have used methylamphetamine does not and cannot mean that he is of poor character and the type of man who would be inclined to commit a crime.
It is common ground that the accused was frequently unfaithful to the complainant and that this caused tension and arguments throughout the course of the relationship.
The complainant said that the accused continued to associate with his ex-girlfriend during the early stages of the relationship. She said there was an occasion when he became angry with her and struck her to the side of the head with the heel of his hand while his fist was clenched during the course of an argument over his ex-girlfriend. She thinks this occurred sometime in about 2006. She thought that he had broken her jaw. She also said that he had punched a hole in a cupboard over the same issue. She cannot remember if he did so on the same day that he hit her.
The complainant said that there was an occasion when she was talking to the accused’s brother on her driveway. She said that the accused arrived on his motorbike while they were doing so. She said the accused rode up the driveway and into a wheelie bin. She said that he then pushed the bin into her with his motorbike thus knocking her to the ground. She said she suffered bruising to her face and a cut to her back around the ribcage as a result. She said that this occurred in about 2010 or 2011.
The complainant said that the accused damaged her fence by driving into it on two separate occasions.
She said that on the first occasion she was at a friend’s house when the accused telephoned her and told her to go home. She said that when she eventually went home she saw that her fence had been damaged. She spoke to the accused a day or so later and he told her that he was sorry. She cannot say when this occurred.
She said that on the second occasion the accused telephoned her and accused her of something. She then hid in one of the other units from where she saw him drive into her fence.
The complainant said that there was an occasion when the accused threw his mobile phone or a tool at the living room wall near where the television set sat on top of an entertainment unit thus causing a small mark to the wall. She eventually said that it was his phone. A photograph which was taken of the wall shows that there is a small mark or dent in the wall above and to the left of the television as one faces the wall. The complainant says she cannot be certain if that is the mark that the accused caused, however, she says that the mark was never repaired.
The complainant said that there was an occasion when she examined the accused’s mobile phone while he was asleep. She found a video depicting the accused masturbating while he watched two women on top of each other kissing. Under cross-examination she admitted that after she viewed the video she woke the accused and placed a knife against his penis. She said that he was shocked, crying and apologetic.
Under cross-examination she agreed that she had not mentioned placing the knife against the accused’s penis to either the police, the prosecution or during her evidence-in-chief.
In about early November, 2011 the complainant decided to terminate the relationship and she informed the accused of her decision. He was in gaol at the time. He was ultimately released on 15 November 2011. They then continued to see each other every week or so and they remained friends. For obvious reasons the fact that he had been in gaol is totally irrelevant and no inference adverse to him can be drawn from it.
The prelude to the incident in question
Both the complainant and the accused were acquainted with one Brian Jones. Early in the evening preceding the morning in question the complainant collected Jones and drove him to her unit.
The complainant and Jones then spent the evening watching movies in the living room. They did not ingest methylamphetamine. They eventually fell asleep on the lounge. The accused arrived at the premises at about 6.30 am the following morning.
The complainant’s premises
Before proceeding further, the complainant’s premises must be described so as to set the scene.
The unit is quite small. As one faces the premises the front door is to one’s right. It is hinged on the right and opens into the lounge room.
As one enters the unit through the front door there is a party wall immediately to the right, a built in cupboard immediately opposite and the kitchen is immediately to the left of the cupboard.
Also as one enters, the front wall of the premises is to the left as is a second party wall. This second party wall is parallel to the party wall to one’s right and both are at right angles to the front wall. The distance between the front door and the cupboard is 3.00 metres.
There was an L-shaped lounge in the living room. One section backed onto the front wall and the second was parallel to the right party wall and immediately to one’s left as one enters and it has a backless section at the end closest to the cupboard. For practical purposes there was thus a walkway between the second section of the lounge and the right party wall.
There was a television sitting on top of an entertainment unit which was up against the left party wall. The unit was more or less directly opposite the second section of the lounge.
The mark I have referred to is on the left party wall. It is located above the television and towards the front wall.
There was a rectangular coffee table on the floor between the entertainment unit and the second section of the lounge. The lounge area is quite confined.
The incident in question
The complainant awoke to the sound of the accused’s motorbike. She opened the door to him whereupon he entered the premises and picked up a baseball bat which was more often than not to be found leaning up against the back of the lounge immediately adjacent to the front door.
The complainant said that the accused only advanced a metre or two into the unit, that Jones had got up when she opened the door and that both she and Jones then moved towards the kitchen. She said that the accused said “are you fucking her bro, but he said it to me.” She responded in the negative. She then started to walk back towards the section of the lounge which backs onto the front wall. She took two steps and she reached a point about level with the coffee table. She said she was facing the front wall and that the entertainment unit and the television were on her right. She does not know where Jones was by this stage. She said that her next memory is of being on the floor. Her head was painful, she could not see because of blood which was presumably in her eyes and she could hear herself screaming. Her next memory after this is of being in hospital.
Jones said that he awoke to hear the complainant say that the accused had arrived. He said that the accused moved his right hand across his body and picked up the baseball bat as he entered the unit. He said the accused only intruded about a metre or so into the premises. He said that the accused “was sort of having a go” at the complainant. He said that both he and the complainant moved towards the kitchen. The accused then asked him in angry tones if he was having sex with the complainant. He said that he was not. He said that the accused was angry with the complainant and yelling at her. The whole situation seemed to him to be “a bit confrontational.” He said that he tried to coax the accused out of the premises in order to relieve the tension.
Jones then went outside. He said that he had to walk past the accused in order to do so and that the accused did not threaten him with the bat. He said that the complainant was standing between the lounge and the coffee table facing the accused the last time he saw her before he walked out the door “and out of the corner of my eye I seen Jason (the accused) had a bat in his hand that he grabbed when he first walked in, just a small baseball bat. Then ... whilst I was out the front out of the corner of my eye I could see him lift it like that.”
Jones then demonstrated by lifting his right arm upwards to the horizontal and then bending it at the elbow such that his right hand was about level with his right ear. The movement which he demonstrated is entirely consistent with the accused preparing to bring the bat down onto the complainant’s head or to throw it forwards in the direction of the television and the left party wall. Jones said he was less than a metre of so away from the accused when he saw him raise the bat however, he did not see what the accused then did with the bat and he could not see where the complainant was by then. Jones did not see the bat come into contact with the complainant’s head.
Jones went on to say that the accused then either came outside or moved towards the door as if to do so. Jones said that he then heard the complainant screaming whereupon the accused said words to the effect “what the fuck is she screaming about” and walked back inside. Jones followed him into the unit to see the complainant lying slumped on the floor on her side facing away from the television with blood all over her face.
Jones said that he telephoned for an ambulance. He said the accused walked out as he was doing so. Jones said that he then terminated the call. He said that he went looking for the accused, that he eventually found him on a nearby street and that he told him that he had to return to the unit. Jones said that they both returned to the unit and that he departed soon after that.
Interview
The accused was arrested and interviewed about 9.30 pm that evening. The interview was video recorded. The accused presented as tense throughout.
In essence the accused said that he had picked up the baseball bat immediately after he had entered the unit and observed Jones, that he asked the complainant and Jones if they were engaging in intercourse, that he had thrown the bat at the television, the entertainment unit or the wall in a fit of pique and that he had then walked out the door. He said that the bat had ricocheted and struck the complainant by accident.
With regard to his then relationship with the complainant, the accused said that they were still “on and off”, that they had slept together two nights previously and that they “were still pretty tight with each other.” He said that he had gone to the unit to visit her before she went to work. He said that he thought the scene which confronted him when he arrived looked suspicious and that he “was just angry that, that she had a bloke there.” He said that the bat was near the door and he picked it up. He said that he asked the complainant if she was sleeping with Jones. He said he then asked Jones if he was engaging in intercourse with the complainant and Jones said that he was not. He said, “Then I’ve gone youse, youse cunts are fucked and I’ve thrown ... the baseball bat, her baseball bat, straight at the wall unit. You’ll see it ... it will be damaged”. He said that he threw the bat at the entertainment unit as he was departing.
Neither counsel asked the complainant if she and the accused were still engaging in intercourse, however, Mr Stewart did ask her if she had spent the night with the accused two days earlier. She replied that she could not remember.
The accused was questioned extensively about his motivations and intentions. It will be convenient to deal with what he said to the interviewing officer on these topics later.
As to other matters, the accused told police that Jones came outside with him as he was leaving. He said that he heard the complainant screaming so he re-entered the unit to find her with blood on her face. He then said she was bleeding from a small cut. He said that he took her to the Modbury Hospital and that Jones accompanied them. He said that he saw Jones later that day and it is implicit in what he said about what then passed between them, that he asked Jones if he had seen the bat impact on the complainant and that Jones had told him that he had not.
The mark on the wall
One of the investigating officers thought that the mark on the wall might have been caused by the baseball bat.
Bloodspots and bloodstains
When the complainant ultimately returned home after a period of hospitalisation she noticed two areas of bloodspots and stains on the living room floor. The photographs of the premises demonstrate that the spots and stains were on the carpet in what might be called the elbow of the L- shaped lounge and on the carpet between the section of the lounge which backs onto the front wall and the coffee table.
The complainant’s injuries
Mr Trevarrow did not call any of the medical practitioners who examined and treated the complainant. The only evidence about the nature and extent of her injuries was led from her as hearsay by consent and supplemented by a written statement of agreed facts which were admitted by the accused. In the final analysis this was not helpful.
The principal injury was a fracture to the complainant’s skull.
It will be convenient to defer a more detailed description of the injuries and what might be made of them until later.
The accused
The accused did not give or call evidence.
The issues and the general principles engaged
The accused is presumed to be innocent. He is not obliged to give or call evidence and no inference adverse to him can be drawn from his decision not to. His absence from the witness box cannot be used as a makeweight in assessing the prosecution case.
What the accused said during the interview is material in the case. It is open to me to accept or reject any statement he then made, be it inculpatory or exculpatory, either in whole or in part and to give that which I accept whatever significance that I think it deserves. I may however, legitimately place more weight on any statements I find to be incriminating: Mule v The Queen (2005) ALR 85 at [20]-[25]. See also Spence v Demasi (1988) 48 SASR 536.
If I ultimately reject the account of events that the accused gave to the police it does not then follow that I must convict. Even if I reject his account of accident I must nonetheless consider whether or not the prosecution evidence satisfies me that the charge has been proved.
The prosecution must prove each and every element of the charge individually, cumulatively and beyond reasonable doubt and it must exclude all hypotheses consistent with innocence. If I am uncertain where the truth lies, I must acquit. Whenever I use expressions such as “proved”, “satisfied” or “established”, I will always be meaning proof or satisfaction beyond reasonable doubt.
As trier of fact, I am concerned with credibility and reliability. Including experts, I can accept or reject different parts of the same witness’s evidence.
I will mention other relevant principles when it is convenient to do so.
The elements of the offence
The offence of aggravated recklessly causing serious harm is created by s 23(2)(b) of the CLCA which is to be found in Part 3 Division 7A of the Act. Relevantly, Division 7 provides:
Division 7A—Causing physical or mental harm
21—Interpretation
In this Division—
cause—a person causes harm if the person's conduct is the sole cause of the harm or
substantially contributes to the harm;
Immaterial
harm means physical or mental harm (whether temporary or permanent);
Immaterial
mental harm means psychological harm and does not include emotional reactions
such as distress, grief, fear or anger unless they result in psychological harm;
physical harm includes—
(a) unconsciousness;
(b) pain;
(c) disfigurement;
(d) infection with a disease;
recklessly—a person is reckless in causing harm or serious harm to another if the
person—
(a) is aware of a substantial risk that his or her conduct could result in harm or
serious harm (as the case requires); and
(b) engages in the conduct despite the risk and without adequate justification;
serious harm means—
(a) harm that endangers a person's life; or
(b) harm that consists of, or results in, serious and protracted impairment of a
physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
22 …
23—Causing serious harm
(1)Immaterial
(2)Immaterial
(3) A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 19 years.
There are two limbs to the charge namely the basic offence of recklessly causing serious harm and the circumstance of aggravation.
The basic offence is comprised of five elements.
First, it must be proved that the complainant suffered serious harm as defined by s 21, that is to say physical harm which endangered her life, physical harm that consisted of, or resulted, in serious and protracted impairment of her physical or mental functioning, or harm that resulted in serious disfigurement.
Secondly, the accused’s conduct must have been the sole cause of the relevant harm, or that it must have substantially contributed to the occurrence of the harm.
Thirdly, the accused must have deliberately engaged in the relevant conduct.
Fourthly, the conduct must have been unlawful.
Finally, it must be proved that the accused was reckless in the sense that it must be proved that he was aware that there was a substantial risk that the conduct in which he was about to engage could result in serious harm, and that he nonetheless proceeded to engage in that conduct despite his recognition of the risk involved and, that he did so without adequate justification.
It will be convenient to analyse the element of the circumstance of aggravation later.
Credibility and reliability of the complainant and Jones
The first issues that must be determined are the credibility and reliability of the complainant and Jones.
It is plain from the complainant’s cross-examination that the accused denies that he was physically violent towards her, that he denies throwing his mobile telephone, or some other item, at the wall but that he does not dispute damaging her fence on two separate occasions.
The evidence that the accused was physically violent towards the complainant comes from her and her alone. Before any question of the ultimate admissibility of her evidence about it can arise I must be satisfied that the physical violence she alleges did in fact occur.
It is well settled that care and caution must be exercised before findings on credibility based on demeanour alone can be made and that, as far as it is possible to do so, the tribunal of fact should reason to its conclusions “on the basis of contemporary materials, objectively, established facts and the apparent logic of events”, but that this notwithstanding, demeanour is still a relevant consideration: Fox v Percy (2003) 214 CLR 118 at [30]-[31].
Nothing about the complainant’s demeanour aroused my suspicions in any way whatsoever. She said that her memory is impaired as result of her injuries. Her evidence is this regard is unchallenged. Any vagueness or inability on her part to recall fine detail, either consistently, or at all, is explicable on this basis.
There is nothing inherently implausible about her evidence that the accused hit her with the bottom of his fist and it would not have been physically impossible for him to knock her to the ground by pushing the bin onto her with his motor bike.
Mr Stewart did not submit that the prosecution should have called the accused’s brother and that I should draw an inference of the kind identified in Jones v Dunkel (1959) 101 CLR 298. There is in fact no evidence before me about why the brother was not called by the prosecution and the accused bore no onus to call him, or to explain why he did not. I thus simply cannot speculate about why the prosecution did not call him or what he might have said had he been called and the fact that he did not give evidence is, in my view, intractably neutral.
Mr Stewart pointed to the fact that the complainant did not mention the fact that she had put the knife on the accused’s penis to anyone before he put it to her in cross-examination and he submitted that this is a material inconsistency on her part.
It is well settled that inconsistencies on a witness’ part go to the credibility of the witness, and thus to his or her reliability and the significance, if any, which is to be attached to any inconsistencies is essentially a matter of fact and degree: Driscoll v The Queen (1977) 137 CLR at 586-587 per Gibbs J.
In my view one cannot be overly critical of the complainant for not mentioning the knife before she was cross-examined about it. What she did with it plainly amounts to an assault and she enjoyed the privilege against self-incrimination about the matter. It is also easy to see why she might have regarded what she did as irrelevant in the overall scheme of things. When she was ultimately cross-examined on the topic, she agreed that she had put the knife against on the accused’s penis without any hesitation or prevarication whatsoever. In all the circumstances, and particularly bearing in mind her apparent frankness about the issue when under cross-examination, it is my view that her failure to mention the knife any earlier than she did lacks the capacity to call her credibility into question.
There is thus nothing which calls the complainant’s truthfulness and reliability into question and I am satisfied that the accused did in fact strike her with his fist, that he did push her over by riding his motorbike into the wheelie bin, that he did punch a hole in the top of a cupboard and that he did mark the wall by throwing some object at it, most probably his phone.
This brings me to Jones. His evidence is unchallenged. It is plain that the interaction between the accused and the complainant would have been the focus of his attention and he was observing the events as they unfolded from very close range. He has not been shown to be inconsistent in any significant respect. The incident was short and uncomplicated. It is thus the kind of incident he would be likely to remember accurately and it is thus also unlikely that he would have become confused in the two years since. Indeed some of his evidence is consistent with some aspects of what the accused told the police. I am thus satisfied that he is reliable in the essential aspects of his evidence about the incident itself and about who was positioned where while events unfolded.
Evidence of discreditable conduct: General considerations
The admissibility or otherwise of the complainant’s evidence that the accused was physically violent to her, that he punched a hole in cupboard, that he threw something against one of her walls and that he also damaged her fence during the course of the relationship must be determined before proceeding to the final analysis.
The evidence of the physical violence and the damaging of the fence is plainly evidence of discreditable conduct or disposition on his part within the meaning of Part 3 Division 3 of the Evidence Act 1929 and for the moment I will proceed on the basis that the punching of the hole in the cupboard and the marking of the wall also amounts to evidence of discreditable conduct. The admissibility of such evidence is governed by Division 3 which provides as follows:
34O—Application of Division
(1) This Division applies to the trial of a charge of an offence and prevails over any
relevant common law rule of admissibility of evidence to the extent of any
inconsistency.
(2) This Division does not apply to—
(a) evidence adduced pursuant to section 18; or
(b) evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a
particular propensity or disposition of the defendant as circumstantial
evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that
way even if it is relevant and admissible for another use.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Before the enactment of Division 3 the admissibility of evidence such as that under consideration was governed by the “no reasonable explanation” test propounded by the High Court in Hoch v The Queen (1988) 165 CLR 292 as approved by that court in Pfennig v The Queen (1995) 182 CLR 461.
The proper construction and application of Division 3 has been considered by the Court of Criminal Appeal in this State in a number of decisions notably R v MJJ: R v CJN (2013) 117 SASR 81, R v Maiolo (2013) 117 SASR 1, R v CCA [2013] SASCFC 137 and R v M, BJ (2011) 110 SASR 1.
In MJJ:CJN Vanstone J identified a number of common law principles which, in her view, were unaffected by the enactment of s 34P and at [233]-[238] her Honour said:
Questions of admissibility have always been, and, leaving aside some statutory exceptions, remain, pure questions of law. (Those statutory exceptions almost exclusively permit relaxation of the strict requirements of the rules of evidence; for example, s 34C, 34CA, 34K, and 34KA of the Evidence Act.) That is so, notwithstanding that decisions on admissibility involve judgments about facts; matters of relevance and weight. Questions about whether evidence is legally admissible do not involve any exercise of discretion.
The admissibility of evidence is determined by an application of legal principle to a set of facts, whether disputed or not.
All relevant evidence is admissible, provided it is not excluded by operation of an exclusionary rule, such as the hearsay rule, or relevantly, the rule in R v Makin in this jurisdiction now embodied, with some modifications, in s 34P of the Evidence Act. Consideration of any exclusionary rule, whether created by the common law or by statute, is, similarly, an application of legal principle.
Immaterial …
Even if legally admissible, evidence may be excluded as an exercise of discretion by the trial judge, on the basis that its probative value is outweighed by its prejudicial effect. It is only at this point that any question of discretion arises.
In my view it is most unwise to too readily read into a provision such as s 34P a wholesale change to the structure of the law of evidence. The existing framework of rules should be assumed to remain in place unless the Parliament uses words which clearly evince an intention to introduce fundamental changes to it.
(citations omitted).
Her Honour then went on to analyse the structure of s 34P and to identify the changes to the common law which have been made by ss 34P, 34Q, 34R and 34S and at [241]-[250] she said:
The structure of s 34P bears some resemblance to the well known statement of principle by Lord Herschell in Makin v Attorney General. Lord Herschell commenced with a statement to the effect that evidence which is generally discreditable is inadmissible. He went on to say that such evidence might yet be admissible if relevant to an issue before the jury. Section 34P(1) and (2) follow the same formula. His Lordship said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence is adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts allege to constitute the crime charged in the indictment were designed or accident, or to rebut a defence which would otherwise be open to the accused.
Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as Wilson v The Queen (evidence of marital discord prior to wife’s death by firearm); R v Tucker (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman and such that to exclude the evidence would be “an affront to common sense”, and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen per Brennan J: Phillips v The Queen per the court.
In my opinion the changes made by ss 34P, 34Q, 34R and 34S may be briefly stated as follows:
1. The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2. Immaterial.
3. The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a). For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4. The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
Section 34Q is a codification of a common law rule.
Again, s 34R gives statutory effect to rules of long-standing. Section 34R(2) embodies the rule in Shepherd v The Queen.
It is always for the party tendering evidence to demonstrate that it is relevant and admissible, and, if so, that it should not be excluded in the exercise of the general discretion. I do not see s 34P as casting a new onus on the tendering party or otherwise as altering that position.
The approach to be taken by a judge faced with an application to introduce evidence of discreditable conduct is, in my view, much as it was before s 34P was introduced. As before, the judge will need to understand for what purpose or purposes the evidence is tendered and, in particular, whether it is proposed to rely on propensity reasoning. It will be necessary for the judge to identify the permissible and impermissible uses of the evidence. It is to be hoped that this task will be assisted by the requirement found in s 34P(4) that the party seeking to lead the evidence will give notice of it in accordance with the rules of court with some particularity and will outline the permissible uses.
Once the permissible use or uses of the evidence are identified and it is determined whether s 34P(2)(a) or 34P(2)(b) is invoked, then the probative value of the evidence must be assessed in accordance with the applicable criterion. If s 34P(2)(a) is applicable then the judge will need to consider whether the permissible use or uses can be kept sufficiently separate and distinct from the impermissible use, as required by s 34P(3).
Next there is the question of the general or residual discretion. I take the use of the expression “may be admitted” in the opening words of s 34P(2) to indicate that the legislature means to preserve in the judge the common law discretion to exclude otherwise admissible evidence. It is hard to see that this general discretion would have a real role in relation to non propensity evidence, which would already have been adjudged to substantially outweigh any prejudicial effect. However, it is not impossible to see that the discretion could come into play in relation to evidence which had been found to qualify under s 34P(2)(b). I am reminded that Brennan J expressed the view in Harriman v The Queen that the continued existence of the general discretion to exclude admissible evidence of predisposition should be acknowledged. On the other hand Heydon J in BBH v The Queen took the position that it was “highly questionable” whether there was any room for discretionary exclusion if the Pfennig test for admissibility had been satisfied.
(citations omitted).
In MJJ:CJN, at [12]-[19], Kourakis CJ came to the same conclusions as Vanstone J. At [13] his Honour agreed with the observations of her Honour I have quoted above. At [18] he identified the impermissible use of evidence of discreditable conduct as being to use it as a basis for the drawing of an inference of guilt from evidence which has no relevant connection with the issues other than to demonstrate that the accused has engaged in other discreditable conduct in the past. At [19] and in the context of evidence said to be admissible by virtue of s 34 P(2)(b), he stressed the necessity to first identify the particular fact in issue and then, secondly, “to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.” At [15] he stressed that the probative value of the evidence in question is to be determined in the light of the evidence as a whole.
It is plain from the reasons of Vanstone J that the question of whether evidence sought to be led by virtue of s 34P(2)(a) has probative force which substantially outweighs its prejudicial effect and whether evidence sought to be led by virtue of s 34P(2)(b) possesses the requisite strength of probative value are questions of law, to be determined by the application of ordinary legal principle, particularly the principle of relevance, and not as an exercise of discretion. This notwithstanding, if the evidence is technically admissible, it might nonetheless be excluded as an exercise of discretion, although the occasions when this might be done will be rare.
Section 34P(2)(a)
In MJJ:CJN Vanstone J pointed to Wilson v The Queen (1970) 123 CLR 334, as an example of a case involving non-propensity use of evidence of discreditable conduct. Wilson was a case where the accused was charged with the murder of his wife. In that case the High Court held that evidence of the bitter relationship between the accused and the deceased was rightly admitted.
Her Honour had in fact previously considered Wilson in an earlier case of R v Allen [2010] SASC 236.
The accused in Allen was charged with the murder of his wife. The competing theories were murder and suicide. The prosecution sought to lead evidence of injuries observed on the deceased’s body in the months leading up to her death.
Her Honour concluded that there was sufficient evidence to enable the jury to conclude that these injuries were caused by the accused and that the injuries raised the unlikelihood of suicide. She concluded that the line of reasoning involved did not rely on any particular propensity or disposition of the accused and that it was thus admissible by virtue of s 34P(2)(a). In so doing she relied on the reasoning in Wilson and at [14] she said:
Again, statements of principle in Wilson’s case are helpful. There, in justifying the admissions of the evidence, Barwick CJ said, at 338-9, that evidence of the relations between the accused and deceased might be admitted, not only for its relevance to the question of motive, but might also be admitted to explain the acts charged. The Chief Justice went on:
If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible.
…
Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.
Menzies J, with whose reasons McTiernan and Walsh JJ agreed explain the relevant in this way, at 344:
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance.
As I have said, the evidence under consideration in Wilson’s case was utterances by the deceased which were overheard by others. In this case, the relevant evidence is signs of injury to the deceased, which in only one case are directly linked with the accused. However, in my mind there is no relevant distinction to be drawn. Just as in Wilson’s case the evidence was relevant to the question which the deceased’s death was caused by an accidental discharge of a firearm, so in this case is evidence of injuries previously sustained by the deceased relevant to whether the death was caused by suicide or unlawful killing.
On appeal in R v Allen (2011) 109 SASR 396, Kelly J, with whom Doyle CJ agreed, held that the evidence had been rightly admitted. At [33]-[39] Kelly J came to the same conclusions as Vanstone J. She too pointed to the same passage of Barwick CJ’s reasons in Wilson. In particular, her Honour concluded that the relationship between the parties was a relevant issue at the trial and that the evidence was not led as evidence of bad character or predisposition towards violence but rather it was “directly relevant to assist the jury in determining the critical issue in the trial which was whether the deceased had died at the hands of the appellant or whether she committed suicide.”
Also in MJJ:CJN, and further to what fell from Vanstone J in that case about the relationship between the parties being admissible by virtue of s34P(2)(a) notwithstanding that it disclosed discreditable conduct on the part of the accused, and relying on R v Hissey (1973) 6 SASR 280 and Roach v The Queen (2011) 242 CLR 610, Kourakis CJ relevantly said at [36]-[40]:
The evidence of MJJ and CJN’s chronic abuse of their children showed that it may not be sound to reason that the common characteristics of a parental relationship rendered it improbable that the appellants committed the offences charged. In my view, the use of the evidence in that way does not involve propensity reasoning. The evidence is not used positively to reason that they are more likely to have committed the charged offences because they had engaged in the uncharged conduct. It is used defensively to rebut the view which might otherwise be taken of the improbability of parents offending in the way alleged. Nonetheless, I acknowledge the subtlety of the distinction.
The relevance of evidence of this nature is well understood in the context of offences of violence committed by one party to a domestic relationship against another. In R v Hissey, this Court considered the admissibility of evidence of a long course of violence committed by the accused against his de facto wife. The body of evidence of the violent relationship included evidence of extensive bruising observed on the deceased, admissions by the accused to using force against his partner and direct observation evidence of one act of violence. The court in R v Hissey explained the proper use of that evidence in this way:
Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R. v Ball, per Lord Atkinson at p.68: Wilson v The Queen, per Barwick C.J. at p. 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use if for the latter.
The relevance of evidence of prior abuse of the sort to “the general terms upon which the parties were living”, and the distinction between that use and the use of evidence to show propensity was recently explained by Crennan and Kiefel JJ in Roach v The Queen:
The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury.
…
Moreover, a view that evidence of the history of a relationship, including the conduct of one party to it towards the other, is not relevant other than as to the other person’s propensity does not accord with what was said by Menzies J (with whom McTirnan and Walsh JJ agreed) in Wilson v The Queen to which, it will be recalled, reference was made by the Attorney-General for Queensland in the debate on the Bill containing s 132B. Menzies J said:
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust. It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevant of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant’s conduct in relation to the alleged offence intelligible and not out of the blue.
I acknowledge, as did Crennan and Kiefel JJ in Roach, that the evidence of discreditable conduct which rebuts the existence of a caring relationship might also demonstrate a propensity to violence. It may do so by showing that the accused often resorts to violence as a means of imposing his or her will or out of exasperation. The strength of the evidence of propensity will vary greatly depending on the frequency, duration and temporal proximity of the discreditable conduct and the similarity between the circumstances of the charged offences and the discreditable conduct.
However, the capacity of the evidence to demonstrate propensity does not preclude the admissibility of the evidence pursuant to s 34P(2)(a) of the Evidence Act for a permissible purpose other than propensity. All that is necessary is that the probative weight of the evidence for the non-propensity purpose substantially outweighs the prejudice. If evidence relied on for a permissible purpose, other than propensity which happens to show propensity, must also pass the test in s 34P(2)(b) and have “strong probative value”, I would find that the test was satisfied in this case. However, as will shortly be seen, the judge directed the jury not to use the evidence as propensity evidence, and for that reason also no error of law, nor any miscarriage, has been shown.
It can thus be seen that the approach taken in Allen by Vanstone J at first instance and by Kelly J and Doyle CJ on appeal is in no way inconsistent with that taken by Crennan and Kiefel JJ in Roach and Kourakis CJ in MJJ: CJN.
Although in MJJ:CJN Kourakis CJ was considering evidence about an abusive parental relationship, it is plain from the passages he quoted from Hissey and Roach, and from the reference to Wilson in those passages, that evidence of a violent domestic relationship may also be admitted on the same basis and for the same purposes. Indeed, this is made plain by his Honour’s further explanation of the relevance and the probative value of such evidence at [44] where he said:
The authorities referred to in [37]-[38] above show that the probative weight of what is sometimes referred to as “relationship evidence” has long been held to outweigh the prejudicial effect of the discreditable conduct it reveals. It does so because the evidence is specific to the relationship and patterns of conduct of the accused to the victim, and not to people generally. Evidence of the kind received in Hissey, Wilson, and Roach has strong probative value, because it is a matter of human experience that when abusive behaviours develop in close personal relationships, they generally persist.
Section 34P(2)(b)
Turning to the admissibility of evidence of a particular propensity or disposition of the accused which is said to amount to an item of circumstantial evidence, s 34P(2)(b) provides that evidence of an identifiable propensity may be admissible as an item of circumstantial evidence of a fact in issue if it possesses strong probative value having regard to the particular issue or issues arising in the trial.
It is now settled that one of the effects of s 34P(2)(b) is to revive the test for admissibility of propensity evidence as it stood before Hoch.
In R v M, BJ (2011) 110 SASR 1, Vanstone J summarised the common law as it stood before Hoch as to how evidence which disclosed an identifiable propensity on the part of the accused might be relevant to a fact in issue and how it might attain the necessary strength of probative force. At [26]-[28] her Honour said:
The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen per McHugh J, citing R v Makin. However, similar fact evidence or propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen.
The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne per Evatt J. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman per Lord Wilberforce.
The sole criterion for the admission of the evidence is the strength of its probative force, rather than any judgment that one or more of the labels mentioned above is apt to fit it: Hoch (at 294). The degree of probative force required has been described as such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea (at 456); and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen per Brennan J; Phillips v The Queen per the court. So far as it goes, this summary is unaffected by the new subsection.
(citations omitted).
Her Honour’s statement of the relevant principles as they stood before Hoch was recently approved and applied in R v March [2014] SASCFC 54 at [22] in the reasons of Kelly J, with whom Kourakis CJ and Sulan J agreed.
Further, in CCA, Kourakis CJ stated at [77] that evidence of discreditable conduct sought to be introduced by virtue of s 34P(2)(b) might attain the necessary strength of probative force if it “is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, [then] it is permissible to use that evidence as an item of circumstantial evidence indicating guilt.” It should however, be observed that his Honour’s statement of principle was couched in terms suitable to the facts of that case.
In this regard it is necessarily implicit in the reasons of Kourakis CJ in CCA at [70]-[72] that in cases where it is said that a relevant proclivity has ultimately manifested itself in the commission of the crime alleged, the necessary degree of probative force is derived from the extent to which the proclivity in question departs from the norm and the frequency of its occurrence.
Overlap
Even though Kourakis CJ’s observations were made in the context of whether the permissible use of evidence which was sought to be admitted pursuant to s 34P(2)(a) could be kept separate from the impermissible use, thus obviating any appreciable risk of prejudice as required by s34P(3), they are nonetheless apt to demonstrate how evidence of discreditable conduct occurring during the course of a relationship might achieve the necessary strength of probative force to be admissible by virtue of s 34P(2)(b).
Admissibility of evidence of discreditable conduct is a matter of fact and degree
It is plain from passages in the reasons in MJJ:CJN, CCA and MBJ quoted above that the questions of whether the probative value of the evidence in question for a permissible use by virtue of s 34P(2)(a) substantially outweighs any prejudicial effect and whether it possesses the necessary strength of probative value having regard to the issues to be admissible by virtue of s 34P(2)(b) are matters of fact and degree to be determined in the circumstances of the particular case.
The fundamental fact in issue
The threshold question in determining whether the evidence of the physical violence and the property damage, or any of it, is admissible by virtue of s 34P(2) is the identification of a fact in issue to which the evidence in question is potentially relevant.
Whether the accused deliberately struck the complainant a blow to the head with the bat is the fundamental fact in issue. If he did not then the possibility of accident could never be excluded.
Whether the physical violence and the property damage is relevant to this issue thus becomes the threshold question.
What occurred during the relationship remains potentially relevant
This raises the question of whether what occurred during the relationship remains potentially relevant to events which took place some six months after it came to an end. In my view the fact that the relationship was no longer on foot does not of itself render the evidence of the physical violence and the property damage irrelevant.
The reason for this lies in the nature of their continuing friendship and the accused’s apparent attitude towards the complainant as of the morning in question.
Both the complainant and Jones say that the accused enquired whether they were engaging in intercourse. Jones says that the accused was angry with the complainant, that he was yelling at her and that the situation seemed “a bit confrontational.” The accused also told police that “he was angry that, that she had a bloke there” and that he asked each of them whether they were engaging in intercourse.
The complainant said that they remained friends and the accused told police that they were still “on and off”, that they were “still pretty tight with each other” and that they had spent the night together two days earlier. It is necessarily implicit in this that he was saying they were still close to each other and that they were still continuing to engage in intercourse. It is similarly necessarily implicit in her evidence that she could not remember if they had engaged in intercourse two nights before the incident that she acknowledges the possibility that they might have, which in turn, implies that they had in fact continued to engage in intercourse after she terminated the relationship. I am thus satisfied that they did in fact continue to engage in intercourse after she said so.
This combination of circumstances, namely that their personal relationship was still close, that they were still on and off, that they were still engaging in intercourse and the reasons underlying the accused’s anger on the morning in question satisfies me, to the exclusion of all other possibilities, that the accused still regarded the complainant as beholden to him to some extent.
The continuing friendship and close personal relationship between the complainant and accused was thus, for practical purposes, simply an extension of their previous relationship on modified terms. This renders it likely that as of the day in question he would react to any perceived provocations on her part or to any feelings of exasperation or frustration he might have experienced with her over her conduct in the same way that he had done so during the course of the relationship proper.
Relevant inferences
It is now necessary to determine if any relevant inferences can be drawn from the complainant’s evidence about the physical violence, the property damage and the marking of the wall.
The accused struck the complainant with the bottom of his fist during an argument about his former girlfriend. He pushed her over by riding his motorbike into the bin when he arrived to find her talking to his brother. She said that she thought he had done so because she “was there with his brother.” She cannot remember if he said why he had done it and so this is supposition on her part, however, it is highly improbable that he would have done so for any other reason. It is plain that both of these incidents are attended by overtones of jealousy.
The complainant said that the accused punched the hole in the cupboard over the same issue that prompted him to strike her to the jaw. She was not at home on either of the occasions that he damaged her fence. On the first occasion he had telephoned her and told her to go home and she did not do so. It is highly probable that he then damaged her fence because he was angered or exasperated by her non-compliance. On the second occasion, she was hiding in one of the other units when he telephoned her and accused her of something. It is again highly probable that he damaged her fence out of anger or exasperation over whatever it was that he had accused her of.
Although I am satisfied that the accused threw something against the left party wall thus leaving a mark, I do not think that he was attempting to damage the complainant’s property when he did so.
I am satisfied that the only inferences which can be drawn from the complainant’s evidence that the accused struck her a blow to the jaw and knocked her over with his motorbike, and from the circumstances in which these activities occurred, is that the accused had a behavioural proclivity to become physically violent towards the complainant when he felt sufficiently provoked by her during the course of incidents that were attended by overtones of jealousy on the part of either of them.
In making this finding I am conscious of the fact that they were the only two incidents, that the first was in the early stages of the relationship and that the accused’s conduct was not identical on each occasion. I am nonetheless satisfied that the overtones of jealousy which attended each incident provide a nexus between them, thus revealing the propensity I have identified. As a matter of human experience his resort to violence on these occasions circumstantially increases the probability that he would again resort to violence if he was sufficiently provoked by the complainant in situations attended by overtones of jealousy in the future.
The complainant’s evidence that the accused punched a hole in the cupboard, that he caused a mark to one of her walls and that he damaged her fence stands in a different light. Neither on its own, or in combination with the evidence of the physical violence, can this evidence demonstrate anything more than a general tendency on his part to indulge in senseless displays of aggression which have no more than a tenuous nexus, at best, with the events of the morning in question. The evidence thus lacks the necessary probative value to be admissible by virtue of s34P(2)(a) and (b) and it will not be admitted under either sub-section and I direct myself not to use it for the impermissible purpose identified by Kourakis CJ.
The evidence is admissible for non-propensity purposes
The next question is whether the evidence of the physical violence is admissible by virtue of s 34P(2)(a) for legitimate non-propensity purposes. I have already expressed my satisfaction that the physical violence did in fact occur.
When the evidence of the physical violence and the inferences which flow from it are viewed in the light of the evidence as a whole, excluding the propensity I have identified, the evidence has the capacity to assist in explaining what occurred on the morning in question.
The fact that the evidence might disclose the propensity I have identified does not, as Kourakis J pointed out in the passage from MJJ: CJN set out above, for that reason alone, render it inadmissible.
As the evidence has the potential to explain what occurred it is admissible by virtue of s 34P(2)(a) for the non-propensity purposes of the kind identified by Barwick CJ and Menzies J in Wilson, by Vanstone J at first instance in Allen, by Kelly J and Doyle CJ on appeal in that case, and by Kourakis CJ and Vanstone J in MJJ:CJN. That is to say that the evidence of the physical violence is directly relevant to assist in the choice between deliberate blow and accident. I thus identify for myself and explain to myself, in the light of the relevant principles considered above, the purpose for which the evidence may be used under s 34P(2)(a): S 34R(1). At [82] I have already identified the purpose for which the evidence may not be used. See also s 34R(1).
The probative value of the evidence is plainly strong in that its capacity to assist in the choice is plainly high. The probative value of the evidence thus substantially outweighs any prejudicial effect of the kind identified in some of the authorities cited above. I am also satisfied for the purposes of s 34P(3) that I can keep the permissible and impermissible uses of the evidence sufficiently separate and distinct so as to remove any appreciable risk of impermissible use. I cannot see any reason to exclude the evidence as an exercise of discretion.
The evidence is also admissible as an item of circumstantial evidence
The next question is whether this behavioural proclivity has the capacity to amount to circumstantial evidence of a fact in issue.
The question is really one of whether the accused’s propensity towards violence, and to adapt the words of Vanstone J in R v M, BJ at [27]-[28] quoted above, raises, as a matter of commonsense and experience, the objective improbability of the fracture to the complainant’s skull having been caused by anything other than the accused striking her a deliberate blow to the head and whether his propensity clearly transcends its prejudicial effect to the extent that it would be an affront to common sense to exclude it.
As Vanstone J observes in the same passage, the process involved is that of “admeasuring the probability or improbability of the fact or event in issue”: Martin v Osborne (1936) 55 CLR 367 per 385 Evatt J. The passage in the reasons of Evatt J where he employs the expression her Honour quotes is instructive. At 384-385 his Honour said:
In the application of the general principle of relevance, it is plain that the degree of resemblance and connection between the fact in issue and the fact sought to be adduced in evidence must be closely examined. Mere general resemblance is insufficient. It is not permissible to show that the accused or party is the kind of person who might be expected to do the kind of thing which is imputed to him. On the other hand, poisonings and fires, though often the result of accident, do not, in ordinary human experience, recur in the same family circle or in the case of the same occupier. Accordingly, evidence is allowed to prove the recurrence of such poisonings or such fires respectively without proof that the party concerned was more than “involved,” in order to show the high degree of improbability attending the hypothesis that the poisoning or fire under particular scrutiny is an accident. As human experience negatives the likelihood of any repetition of disastrous accidents of a peculiar kind involving the same person, proof of such repetition is allowed to destroy or reduce the probability of the hypothesis of accident in the given case.
These illustrations are sufficient to show why Phipson insists upon the necessity of some “specific nexus” between the fact tendered in evidence and the main fact or transaction, and also why he explains that “the admissibility of similar facts as presumptive proof of the fact in issue is in truth mainly a question of degree, or of our knowledge and understanding of the causes of events, as to which, in many cases, the progress of science may change the law”.
The final reason why the question as to the relationship between the fact tendered in evidence and the issue required to be proved is one of “degree” is that the judgment or inference involved is not one of deductive logic. What is involved is the task of admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence. A similar scientific and rational inquiry is often required at another stage of the judicial process when the proper inference to be drawn from circumstantial evidence is in dispute. This is adverted to in Morgan v. Babcock and Wilcox Ltd. where, in considering what conclusion should be drawn from certain circumstances, Knox C.J. and Dixon J. pointed out that the sufficiency of the circumstances “must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”.
(Citations omitted and emphasis added).
I have already found that the accused still regarded the complainant as beholden to him to some degree at least. There is no dispute that the accused became suspicious and angry, and that he enquired if the complainant and Jones were engaging in intercourse.
It is a matter of commonsense and human experience that suspected infidelity can be highly provocative. The circumstances that confronted the accused when he entered the unit on the morning in question were potentially far more provocative than the argument between him and the complainant over his former girlfriend or the sight of her talking to his brother and his anger, suspicions and enquiries tend to confirm that this is so.
The fact that the accused had engaged in physical violence in the face of apparently lesser provocations in situations attended by circumstances of jealousy assists in admeasuring the probabilities of how he might have behaved on the morning in question. It does so because past behaviour and the inferences which can be drawn from it provides the best predictor of human behaviour in the same or similar circumstances and because, as a matter of common sense and experience, the greater the apparent provocation becomes in circumstances attended by jealousy that the individual experiences, the more likely he is to react and behave as he has in the past, or indeed to go further. Here the past behaviour is physical violence attended by jealousy. The relevant nexus thus exists in the overtones of jealousy which attend the physical violence which occurred during the course of the relationship and the interaction which occurred between the complainant and the accused on the morning in question before he raised the bat.
The evidence that the accused struck the complainant to the jaw and knocked her over by riding his motorbike into the bin and the behavioural proclivity or propensity that this evidence establishes thus amounts to an item of circumstantial evidence which assists in admeasuring the probabilities of whether or not the accused deliberately struck the complainant a blow to the head with the bat.
The evidence bears so closely on the fundamental issue that it can properly be categorised as really material to the extent that it would be an affront to commonsense to exclude it. The evidence thus possesses the necessary strength of probative value, having regard to the issues it is directed towards, namely to rebut accident and to prove the accused’s intentions towards the complainant at the relevant time. I see no reason to exclude it as an exercise of discretion, I direct myself not to put it to the impermissible use identified by Kourakis CJ in CCA and I will not.
In the preceding paragraphs I have identified for myself and explained to myself the purpose for which the evidence may be used under s 34P(2)(b) and I repeat that at [82] I have also already identified the purpose for which it may not be used: S 34R(1).
Analysis of the complainant’s injuries
It is now convenient to return to the complainant’s injuries.
She was initially examined at the Modbury Hospital and then transferred to the Royal Adelaide Hospital.
The agreed facts state that she suffered a small laceration to her left upper forehead, bruising and swelling over her left eye, a fracture to her skull extending from the roof of the left eye socket to the apex of the cranial vault and into the left temporal bone. The agreed facts also state that she suffered extensive bruising to the tissue of her brain with a small area of bleeding into the tissue in the frontal lobe under the fracture site. It is finally agreed that a scan of the complainant’s head revealed a fracture to the left frontal bone which was vertical in orientation and extends across the floor of the anterior cranial fossa on the left/roof of orbit. Posteriorly the fracture extended to involve the greater wing of [the] sphenoid with a suggestion of an undisplaced fracture at the base of the skull on the left side.
Further to the agreed facts, the complainant said that she sustained a lump to just back from the very top of her head which was slightly left of centre. She also said that what was presumably a laceration of some kind was stitched and that there is a resultant scar about an inch up from the commencement of her hairline which was also slightly left of centre. She also said that she was hospitalised for over a week. She experienced soreness to her neck for some time and it still “pinches or jerks” occasionally. She said “everything was spinning” for about six months. She is now intolerant to light. She said her memory is now impaired.
Associate Professor Winskog of the School of Medical Sciences of the the University of Adelaide was consulted and asked to comment on whether the fracture could have been caused by a baseball bat ricocheting off a wall. He is plainly qualified to do so. He was not called and his statement and its appendices were tendered by consent. Again this was not helpful.
Professor Winskog considered the following material:
- Medical records relating to the complainant from the Modbury Hospital and the Royal Adelaide Hospital.
- Photographs of the complainant’s unit.
- Statement of witness, Sherard Maine, Medical Practitioner.
- Transcript of the accused’s police interview.
- Relevant X Rays and scans of the complainant’s injuries.
Dr Maine’s statement was not tendered.
Professor Winskog notes that the Modbury Hospital records report that there was a horizontal laceration about 10 cm in length to the complainant’s forehead. He also notes that CT scans taken at the RAH revealed a left sided fracture to the base of the skull with haemorrhage between the brain and the skull bone.
The baseball bat in question was seized and ultimately tendered. It is made of wood. It is 68 cm in length and it feels as if it weighs about a kilogram.
Professor Winskog is of the opinion that the bruising to the complainant’s eyes was associated with the fracture to the base of the skull and that the injuries were caused by blunt trauma.
As to the nature of the blunt trauma involved, Professor Winskog said:
Bilateral periorbital haemorrhage is associated with fractures in the base of the skull. X-ray (computer assisted tomography – CT) of the facial skeleton and skull showed a fracture across the floor of the anterior cranial fossa and this finding explains the bilateral haemorrhage around the victim’s eyes. The location of the external laceration described in the medical report together with the appearance of the skull fracture confirms that blunt force trauma caused the injuries.
Facial fracture from a flying baseball is a common injury during sports activities. Impact from a baseball can cause facial fractures and fractures of the skull but fractures at the base of the skull can be considered uncommon. A flying baseball bat can however not be compared to a flying baseball. Multiple factors would have to be taken into consideration when attempting to evaluate the impact of a flying bat including but not limited to the distance travelled by the bat, weight of the bat, if the bat hit anything else before impact and the surface of which it bounced off together with the force used during the initial release of the bat.
In this case there are no photographs of the laceration of the forehead and it is therefore not possible to determine what part of and at what angle the bat hit the head of the victim.
The bat appears to be made out of wood (photo PS1,6) with a plastic material covering the top. The bat has not been available during the writing of this report. Wood is a softer material than aluminium (baseball bats are also available in aluminium) and this type of bat would possibly absorb some energy if it was thrown against a wall. The wall of the unit where the victim was struck is not mentioned in the crime scene report. The material of the wall and if there were any signs of impact from a bat are therefore unknown
The unit appears to be small but there is no information available as to where the persons involved were positioned when the injury was inflicted.
There are to my knowledge no cases reported in the literature of injuries due to a flying baseball bat. A study in Switzerland however describes skull base fractures cause by thrown, projected, or a falling object as the most common cause of occupational accidents, accounting for almost half of all cases. In this material could a few cases with skull base fractures be seen. It is, based on these facts, in my opinion not possible to exclude that a skull base fracture can be inflicted by a flying bat.
It is therefore, without the assistance of other findings, based on the presence of the skull base fracture alone not possible to determine if the injury was inflicted by a direct blow when someone was holding and swinging a bat or if a bat stuck the victim after ricocheting of a wall.
The cause of the injuries on the victim can be consistent with the story given by the accused but other mechanisms cannot be excluded.
It is plain that the fracture and most of the other injuries are left in orientation. It is also plain that, as a matter of abstract pathology, the complainant’s injuries could have been caused by the bat ricocheting off the wall.
It has not been suggested that the fracture could not have been caused by the accused striking the complainant a direct blow to the head with the bat, indeed Professor Winskog plainly accepts that it could have been.
There was no other information provided to me about the precise location of the fracture or what mechanisms might have caused it.
Evidence, or further agreed facts and admissions about the precise location and extent of the fracture and the mechanisms which might have caused it, and explanations of some of the medical terminology employed might well have assisted in elucidating the issue of how the bat connected with the complainant’s head. However, this is the way that the injuries have been left to me.
The defence case
It is the accused’s case that the complainant was standing somewhere in the lounge room when he threw the bat. It is also his case that he did not intend to strike her with the bat in any way whatsoever and that there was no relevant recklessness on his part.
The accused’s intentions
It is now convenient to turn to what the accused said to police about his intentions.
He was somewhat inconsistent about what he was aiming at when he threw the bat. Initially he said that he threw the bat at the screen and that it ricocheted off the screen. Presumably he meant the television screen. Next he said he had thrown it at the entertainment unit, which he described as the “wall unit.” In this regard he said “You’ll see it. It, it’ll be damaged.” Almost immediately after this he said that he had thrown the bat “straight at the wall.” Next he said that he picked up the bat with the intention of throwing it at the television. He then confirmed that he had thrown it at the television. He then went back to saying he had thrown it at the wall unit.
In the context of where the complainant was standing when he threw the bat he said that it “hit the wall and ricocheted and hit her.” A little further on he confirmed this and said “I assume it. It fell. It’s ricocheted off the wall.” He said that he heard something smash but that he did not notice what it was when he went back inside. He later said that “I didn’t know about a smash but I heard it make a fairly big noise.” He then went back to saying he had thrown it at the television. He ultimately said that he thought that the bat had broken the television or the wall unit. He said that “as it’s (the bat) hit. I’ve walked out.”
Time and motion
The accused told police that when he threw the bat the complainant was “standing towards the wall” and that “it’s hit the wall and ricocheted and hit her on this side. The opposite side to what I’m on.” When he was explaining where she was standing when he threw the bat he made a number of gestures with his handcuffed hands. When he was explaining where the bat had hit the complainant, he indicated the left side of his own head. His gestures are difficult to understand and the interviewing officer did not attempt to clear the matter up. The only sense that can be made of what the accused was attempting to convey is that the complainant was off to one side of him and that her left side was furthest from him and presented to the left party wall immediately before he threw the bat.
The complainant drew a floor plan of the unit showing where the furniture was located and where the accused was positioned. By reference to the plan and the photographs she has him between the second section of the couch and the right party wall and little more than a metre at most inside the door. Her last recollection before she found herself on the floor is of being level with the coffee table and facing the front wall. She marked the plan to indicate her position. Again by reference to the plan and the photographs, she was between the second section of the lounge and the coffee table and a little less than a metre from the first section of the lounge and almost directly level with where the accused was standing when her memory gives out.
Jones puts the accused as no more than a metre inside the front door at all times. He puts the complainant as standing still between the lounge and the coffee table facing the accused with her back to the television when he last saw her before he went outside. He said that although he was outside the unit he was “less than a metre or so” from the accused when the accused raised the bat. He said that the accused was holding the bat in his right hand when he did so.
Jones was not asked precisely where he was when he last saw the complainant but it must have been either immediately before he walked outside or as he was doing so. He was also not asked how much time elapsed from when he had last seen the complainant until he saw the accused raise the bat, but given that he only had to move a very short distance, it cannot have been any more than a matter of seconds.
If the complainant remained where she was when Jones last saw her it is hard to see how the bat could have ricocheted onto her causing injuries which are predominantly left in orientation unless she turned her head to the left after Jones lost sight of her.
The television and the wall unit were very close to where the accused was standing. If he was in reality aiming at either it is hard to see how he could have missed and there is no evidence that either were damaged in any way and it seems plain from the photographs that they were not.
Given that Jones puts the complainant standing still with her back to the television and facing the accused, she must have been looking either directly at the accused or towards the right party wall. Given that the accused only intruded a metre or so into the premises and given the position in which the complainant places him, they must have been separated by the depth of the second section of the lounge. It is apparent from the photographs and the plan that the lounge room is a very confined space. It is also apparent from the photographs that the lounge is about a metre deep, that there is very little space between the coffee table and each section of the lounge and that there is little space between the back of the second section of the lounge and the right party wall. It thus become plain that if the complainant and the accused were where Jones puts them immediately before he lost sight of her they must have been more or less level with each other and separated by the depth of the second section of the lounge. Given the dimensions of the bat, the complainant would thus have been within easy striking distance of the accused and it would have been both physically possible and relatively easy for him to bring the bat down on her head and indeed Jones’ demonstration of how the accused raised the bat is consistent with him preparing to strike the complainant on the head with it and he must have raised it no more than a few seconds after Jones lost sight of her.
I have found that Jones is both truthful and reliable in the essential aspects of his evidence. The complainant’s last recollection before finding herself on the floor is of walking towards the first section of the lounge. Her evidence about the direction in which she was facing and Jones’ evidence about where she was facing when he lost sight of her can be reconciled on the basis that she turned to face the accused as she was walking towards the first section of the lounge and that she has now simply forgotten that she did so. Indeed, the circumstances are such that she could easily have been prompted to turn and face the accused by something he said, or by something which moved her to say something to him. I am thus satisfied that she was in fact facing the accused with her back to the television when the accused raised the bat.
Analysis
I will commence my analysis on the basis that the use to which the evidence of the physical violence is confined to non-propensity purposes of the kind identified in Wilson. I will then turn to the propensity I have identified. For the purpose of both phases of the final analysis I direct myself that I must not engage in the impermissible line of reasoning identified at [82] and I will bear this steadfastly in mind throughout.
The accused indicated to police that the bat struck the complainant on the left side of her head. It is thus plain that he knew that her injuries were left in orientation before the interview commenced. It is plain from Jones’ evidence that the accused also knew that Jones did not see the bat impact on the complainant’s head. It is also plain that he had plenty of time before he arrived at the hospital and before he was interviewed to invent a story of accident incorporating an explanation for the left orientation of the injuries.
The internal inconsistencies in the accused’s account to which I have referred combine together to call into question the credibility of his assertions to police that the injuries were accidently caused. His assertion to the police that “I never try hitting her” is contrary to my satisfaction that he did in fact hit her twice and further calls his credibility into question to the extent that I simply do not accept the account of accident which he gave to the police.
The complainant said that there was a mark on the left party wall which was never repaired. I accept her evidence in this regard for the same reasons I have accepted her evidence about the physical violence and the accused throwing his phone. There is no suggestion that there was any other mark on the wall. I thus reject the possibility that the mark was caused by the bat.
Jones did not see the bat impact on the complainant’s head and she has no recollection of it. The prosecution case thus relies on circumstantial evidence to prove that the accused deliberately struck her a blow to head with the bat.
The principles relating to circumstantial evidence and inferential reasoning were recently considered by Lovell DCJ in R v Joyce [2014] SADC 125. I agree with and gratefully adopt what his Honour said at [128]-[134]:
Circumstantial Evidence
When the case against an accused person rests substantially upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.’[1] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable them to draw’.[2]
[1] Peacock v The King (1911) 13 CLR 619.
[2] Plomp v The Queen (1963) 110 CLR 234.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[3]
Whilst this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[4]
However, an inference to be reasonable must rest upon something more than mere conjecture.[5] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[6]
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[7]
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[8]
As was said in Chamberlain v R (No 2):[9]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force4 of all the circumstances put together”; per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp v R:[10]
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[3] Martin v Osborne (1936) 55 CLR 367.
[4] Knight v The Queen (1992) 175 CLR 495 at 502.
[5] Peacock v R (supra).
[6] R v Micallef [2002] NSW CCA 480.
[7] Shepherd v The Queen (1990) 170 CLR 573.
[8] R v Hillier (2007) 228 CLR 618 at [48].
[9] (1984) 153 CLR 521 at 535.
[10] Plomp v The Queen (supra).
The items of circumstantial evidence are as follows:
1. The accused still regarded the complainant beholden to him to some extent at least.
2. He was angry.
3. The reason for his anger was grounded in his suspicion that the complainant and Jones had engaged in intercourse.
4. The provocative potential of his suspicions.
5. He picked up the baseball bat immediately on entering the premises.
6. The complainant was facing in the accused’s direction and within easy striking range a matter of seconds at the most before he raised the bat.
7. The way in which the accused raised the bat was consistent with a backswing in preparation to bringing the bat down on her head.
8. The unlikelihood of the accused not hitting the television or the entertainment unit if that was what he was in fact aiming at.
9. The fracture is where one might expect it to be if the accused had brought the bat down on the complainant’s head while they were standing facing each other in the positions observed by Jones a matter of seconds before the accused raised the bat.
10. It would be a remarkable coincidence for the bat to ricochet off the wall and causing a horizontal fracture where one would have expected it to be if the accused had brought the bat down on her head.
11. The accused’s leaving the premises when Jones was telephoning for an ambulance and his having to be told to return.
12. The evidence of the previous physical violence and displays of aggression involved in the property damage assist in the choice that it tends to point away from accident. In conformity with s 34R(2) I direct myself that I cannot use this evidence in the process of reasoning I have identified unless I am satisfied that the violence occurred. I have already expressed my satisfaction in this regard.
I make it plain that although the evidence of the physical violence assists in the relevant choice, it does not, of its own force, have the capacity to rebut accident or to prove that the accused deliberately struck the complainant to the head. Nor do any of the other circumstances I have identified have any such capacity.
Mr Stewart submits that the location of the bloodspots and stains is inconsistent with the accused having struck the complainant a deliberate blow with the bat when they were facing each other. Mr Stewart also pointed to the evidence of the accused saying “what the fuck is she screaming about now”, or words to that effect, when he and Jones heard the complainant scream, the evidence of his hugging her when he re-entered the unit, and of his taking her to the hospital and sitting with her for some time and he submitted that the accused’s reactions and subsequent behaviour are inconsistent with him having struck the complainant a deliberate blow to the head. Mr Stewart thus submitted, in effect, that the evidence relied on by the prosecution was incapable of excluding the inferences that he submitted arises from this evidence.
There is no medical evidence about what the immediate effects of a trauma which caused injuries of the kind the complainant suffered might have been. Commonsense nonetheless tells one that she might well have collapsed on the spot when the bat struck her head, or that she might have staggered forwards or sideways after the bat struck her head and then moved what was a very short distance after she recovered her senses. The evidence about the blood spots and stains is thus somewhat equivocal.
Against Mr Stewart’s submissions about the inferences available from the accused’s statement and conduct after the event is Jones’s evidence that the accused left the premises while he was calling for an ambulance and that he eventually found him on a nearby street and told him that he had to return. In this regard the possibility that the accused struck the complainant on the head in the heat of the moment without intending to cause anything more serious than transitory pain and that he immediately regretted his actions when he realised what he had in fact done cannot be ignored.
I am satisfied that the combined force of the items of circumstantial evidence identified above excludes the inferences that Mr Stewart suggests and that it does so beyond reasonable doubt. I am also satisfied that the only inference which is open from the combined force of the evidence is that the accused deliberately caused the impact between the bat and the complainant’s head and that all other possibilities, particularly that of the bat ricocheting off the wall, are thereby excluded.
To adapt the words of the High Court in Kelly v The Queen (2004) 205 ALR 274 at [70], there are simply too many coincidences operating against the accused for any other possibilities to remain open.
Further analysis
The behavioural proclivity that the evidence establishes is a propensity to resort to physical violence in circumstances attended by overtones of jealousy. Again in conformity with s 34R(2) I direct myself that I cannot use this evidence for the purposes I have identified unless I am satisfied that it occurred and I am.
I am satisfied that when this propensity is considered in conjunction with the other items of circumstantial evidence identified above, excluding the assistance that the evidence of the physical violence can give to the choice, the result is the same. The totality of the circumstances identified again excludes all hypotheses other than the accused deliberately causing the impact between the bat and the complainant’s head. Again there are just too many coincidences operating against the accused.
The precise mechanism which caused the injury
The unit is very small and the area of the lounge room where the complainant was standing the last time Jones saw her before the accused raised the bat is a very confined space. In all probability the complaint would still have been within the accused’s reach by the time he raised the bat and it is thus probable that he would not have needed to throw that bat at her in order to carry out his intention to deliberately bring it into contact with her head. The description Jones gives of the way in which the accused raised the bat is entirely consistent with him executing a backswing preparatory to bringing the bat swinging down on her head as she stood facing him. In all the circumstances I am satisfied that the accused carried out his intention by deliberately bringing the bat down onto her head rather than throwing it.
The basic offence
This brings me back to the elements of the basic offence.
First, did the complainant suffer serious harm? Her undisputed evidence that her memory was affected as a result of the incident and that it remains so satisfies me that she suffered a serious and protracted impairment of a mental function and thus serious harm within the meaning of s 22 of the CLCA.
Secondly, did the accused cause harm? The harm which the complainant suffered can only have been caused by the accused striking her over the head with the bat.
Thirdly, did the accused deliberately engage in the conduct which caused the harm in the sense of, did he intentionally strike the complainant a blow to the head with the bat? I have already expressed my satisfaction that he did.
Fourthly, did the accused strike the blow without lawful justification? It has not been suggested that he did and there is no evidence which raises any such possibility. I am thus satisfied that this element of the charge is proved.
Finally, did the accused act recklessly, as that concept is properly to be understood for the purposes of the charge?
The terms of s 21 of the CLCA make it clear that a general realisation that the intended action could cause a significant injury is insufficient and that in order to prove that the accused was relevantly reckless, the prosecution must prove that at the time he formed the intention to hit the complainant on the head with the bat, or to throw it at her head, he was “aware of a substantial risk that his conduct could result in serious harm”.
The question is thus one of whether the accused was “aware” that what he was intending to do created such a risk. The test is subjective and it is not sufficient that an ordinary person would have adverted to the risk: Pemble v The Queen (1971) 124 CLR 107.
That said, the prosecution does not have to prove that he either intended or desired that the relevant harm would be caused, it is sufficient that he comprehended that there was a substantial likelihood of it occurring and went ahead regardless: R v Grant (2002) 55 NSWLR 80 [89-90].
The CLCA does not define awareness. The Second Reading Speech does not assist in this regard.
Awareness is usually equated with knowledge. A person is thus aware of a particular risk if he knows what might well happen if he proceeds to engage in the contemplated conduct. It follows that in order to prove that the accused was reckless, the prosecution must prove that he knew that hitting the complainant on the head with the bat would, and to again take up the terms of s 21 the CLCA, create a substantial risk that her life would be endangered, or that she would suffer a serious and protracted impairment of a physical function, or serious disfigurement and that he nonetheless went ahead and carried out his intentions.
In the absence of any admission, what the accused knew, or was aware of, at the relevant time can only be proved circumstantially. Circumstances which are widely known in the community may lead to the conclusion that the accused was also aware of those circumstances in the sense that the potential consequences of a contemplated act may be so widely known that it is open to the tribunal of fact to conclude that the accused knew what they were: Simpson v the Queen (1998) 194 CLR 228.
In Simpson the issue was whether the accused knew, or ought to have known that a knife wound to the upper chest and neck was likely to cause death. McHugh and Gaudron JJ said at [12]-[15]:
Nothing in that passage or in the decision itself gives any support for the notion that the Crown cannot prove the accused’s knowledge inferentially or that the prosecution must fail unless the Crown directly proves the knowledge and expertise of the accused concerning the relevant circumstances.
The accused’s knowledge of or “expertise” concerning those circumstances may be proved by his or her own evidence, by out-of-court admissions or by inference. If the Crown relies on inference to prove that the accused knew the relevant circumstances, the Crown may establish the inference by proving other facts that make it logical to infer that the accused knew the circumstances. If the charge is that the accused ought to have known that defective premises were likely to cause death to those entering them, it may be sufficient to prove that the defect was obvious and that the accused had visited the premises regularly even though the Crown is unable to prove by direct evidence or admission that the accused was aware of the defects in the premises.
Moreover, knowledge of the circumstances may often be inferred without proof of additional facts. Some or all of the circumstances may be so well known in a community or to a section of the community of which the accused is a member that it is open to a jury to conclude beyond a reasonable doubt that the accused knew of those circumstances. If a fact or circumstance is so well known that no reasonable person in the section or community would dispute it, a jury may safely infer that the accused knew it unless any denial by him raises a reasonable doubt about his or her knowledge. What facts or circumstances fall into this category will vary from one era to another and from one community to another. The category of such facts and circumstances will be as wide as the common experience of the relevant community of which the accused is a member and will expand as the frontiers of that community’s general knowledge expands.
No doubt the category is narrower than the list of matters of which a court can take judicial notice. A judge called on to take judicial notice of a fact may have regard to any fact or matter that is within the knowledge of “every well-informed person in Australia”. Furthermore, in an appropriate case, the judge may cause “inquiries to be made by himself for his own information from sources to which it is proper for him to refer”. When the issue is whether, in the absence of direct evidence, the jury can infer that the accused knew a particular fact or circumstance, however, the relevant community is that to which the accused belongs. The relevant knowledge of that community may be narrower or wider than that of well informed persons in Australia. If the accused is a doctor, for example, the charge poses a medical issue, the Crown may prove the accused’s knowledge by proving a fact or circumstance which no qualified practitioner could reasonably dispute. On the other hand, if the accused is a poorly educated youth in a remote area, the relevant body of knowledge will be that of youths of that class and may be much narrower than that of the general community.
The present case is concerned with the accused’s knowledge of the likely result of stabbing a person with a knife. The consequences of using many common objects and substances are widely known in the Australian community. That guns kill, that acid burns, that flame ignites household gas and that driving on the wrong side of a road is likely to cause a collision, for example, are matters so well known in the Australian community that a jury can safely infer that the accused knew about such matters when they are relevant to a charge under s 157(1)(c) of the Criminal Code. Ordinary members of that community are also well aware of the consequences that can follow from most uses of knives, fire, gas, electricity and explosives. In cases where the accused has caused the death of a person by using such an object or substance, it will usually be open to a jury acting reasonably, to infer that the accused knew what could follow from its use.
In joint reasons Kirby and Callinan JJ arrived at the same conclusion.
As mentioned, the baseball bat in question is not a full size bat but it is nonetheless some 68 cm in length and it feels as if it weighs about a kilogram. It is apparent from handling it that it could generate significant force if brought down on, or thrown at, some object.
It would be widely known that a bat of that kind could cause very significant injuries if it was raised in the manner that Jones described and then brought forwards and downwards onto a person’s head, in the sense that ordinary members of the community would be aware that all this is so. It would also be widely known that traumas to the head, particularly if caused by some kind of implement, can endanger life or cause very significant closed head injuries that consist of, or result in, serious and protracted impairment of a physical or mental function or that doing so can result in serious disfigurement, again in the sense that ordinary members of the community would be aware that this is so. In other words it would be widely known that striking a blow to someone’s head with an implement such as the baseball bat in question has the potential to cause serious harm, as defined for the purposes of the charge.
The accused was about 33 or a little older at the relevant time. Nothing that he said during the interview suggested that he was of less than average intelligence or that his knowledge of what the consequences of hitting someone on the head with a bat of the type in question was any less than that of an ordinary member of the community of about his age. I am thus satisfied that before he commenced the downswing he was aware that completing it carried with it a substantial risk that the complainant would suffer serious harm as a result, and that this notwithstanding, he nonetheless proceeded to carry out his intentions.
Indeed, and in my view, it is inconceivable that the accused would not have known, and thus not been aware, that striking the complainant a blow to the head, or throwing it at her head, would create a substantial risk of some form of closed head injury which could in turn endanger her life, cause serious and protracted impairment of physical or mental health, or that striking her on the head with the bat could cause serious disfigurement.
No adequate justification for the accused to strike the complainant a blow to the head with the bat has been suggested and, in all the circumstances, I am satisfied that no such justification exists.
I am thus satisfied beyond reasonable doubt that the accused committed the basic offence.
The circumstance of aggravation
Section 5AA of the CLCA provides that an offence is an aggravated offence if the offender “used, or threatened to use, an offensive weapon to commit, or when committing the offence”. Section 5 of the CLCA defines “offensive weapon” in these terms.
offensive weapon means –
(a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including –
(i)immaterial
(ii)immaterial
(b) an article or substance that a person has –
(i)for the purpose of causing personal injury or incapacity; or
(ii)in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.
Whether the accused used the baseball bat as an offensive weapon when committing the basic offence turns on his intentions towards the complainant when he raised the bat and on the proper construction of the definition of “offensive weapon” set out above.
I have expressed my satisfaction that the accused raised the bat with the intention of bringing it down on the complainant’s head. I am also satisfied that he was angry with her. The only conclusion that is reasonably and rationally open is that he intended to mete out some form of punishment by causing her to experience pain.
“Personal injury” for the purposes of the first limb of the definition of offensive weapon is not defined by the CLCA. “Injury” is a protean concept used to describe any interference with ordinary health and well-being and the Macquarie Dictionary defines injury as, and amongst other things, “harm of any kind.” In my view “injury” includes pain for the purposes of the circumstance of aggravation.
I am thus satisfied that the accused adapted the bat for the purposes of causing pain and thus personal injury and that the circumstance of aggravation is proved.
Conclusion
For the above reasons I was ultimately satisfied that the charge is proved beyond reasonable doubt.
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33
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