R v JH (No 2)

[2014] NSWSC 1965

Supreme Court

New South Wales

Medium Neutral Citation:	R v JH (No 2) [2014] NSWSC 1965
Date of orders:	28 August 2014
Decision date:	28 August 2014
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Application for exclusion of evidence is refused
Catchwords:	EVIDENCE – admissibility of evidence relating to a knife found in the vicinity of the crime scene
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121
Category:	Procedural and other rulings
Parties:	Regina (Crown) JH (Accused)
Representation:	Counsel: P Leask (Crown) J Hickleton (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Uther Webster & Evans (Accused)
File Number(s):	2011/190145
Publication restriction:	Non-publication order made in respect of the name of the Accused and all witnesses who were underage at the time of the offence

JUDGMENT

1. Ms Hickleton, counsel for the accused JH, has objected to the admission of evidence during the course of the trial relating to the presence of a knife in the vicinity of 39 Restwell Road, Bossley Park.

2. The basis of the objection is the danger of unfair prejudice to the accused if the evidence is admitted.

3. I note that evidence has already been admitted in this trial as to (2) above, including photographs of a knife contained in Exhibit A. Ms Hickleton has made an application that further evidence in relation to the knife be excluded and that, in the event I make such a ruling, appropriate directions be given to the jury regarding the existing evidence.

Nature of the Evidence

4. In a previous trial of one of JH’s co-accused, JP, evidence was given relating to:

1. A number persons associated with the assault of Eden Delir searching for a knife following the assault.

2. A knife subsequently being located by police at the front of the premises in the general vicinity of the location where the attack occurred.

5. It is anticipated that similar evidence will be given during the present trial to the effect that:

• A partygoer, GE, witnessed a group of young males enter the party and aggressively ask attendees if they were one of “the Campbelltown boys”. GE observed at a later stage, but before the attack, that one of the young males was in possession of a knife. GE believed that the knife was the same or similar to the knife located by police in the vicinity of the premises.

• Another partygoer, JE, witnessed a group of people frantically searching for a knife shortly after the assault upon Eden Delir. JE identified that group as comprising the same people who were involved in the assault.

• Police located a knife in the vicinity of 39 Restwell Road, Bossley Park following the assault upon Eden Delir.

• Forensic experts were unable to identify individual “DNA contributors” on the knife.

6. However, there was no evidence in the previous trial, nor is there presently evidence in this trial, that indicates JH was involved in the search for the knife, was in possession of a knife that evening, or was aware that one or more of his number was in possession of a knife. Further, there is no suggestion that the knife was in fact used in the assault on Eden Delir.

7. All witnesses who gave evidence in the previous proceedings relating to the knife, with the exception of a senior forensic biologist, are on the Crown’s witness list in the present trial.

Submissions

8. The Crown does not allege that the accused himself physically assaulted Eden Delir. Rather, it is the Crown case that the accused was party to a joint criminal enterprise or an extended joint criminal enterprise to inflict grievous bodily harm or that he reasonably contemplated that one or more of his number might possibly do so.

9. The Crown made brief oral submissions relating to the admissibility of the evidence of the knife on 11 November 2013. The Crown submitted that evidence of the existence and possession of a knife renders more probable that the accused had it within his contemplation that at least one or more of the members of the group might inflict grievous bodily harm having regard to the nature and quality of the knife.

10. It was then argued that the “frantic” searching for the knife, observed by JE, meant there was an awareness of the knife and that this might connect the members of the group to the commission of a serious offence. The Crown also noted that the accused had been connected to the group at the party who were looking for “the Campbelltown boys”.

11. In the course of oral submissions Ms Hickleton argued that the evidence of the knife would be prejudicial to the accused on the following bases:

1. There is no evidence that the knife was used in the assault.

2. There is no evidence that the accused ever saw the knife or was present when the knife was exposed to GE.

12. In relation to (2), Ms Hickleton noted that during JP’s trial GE did not identify the accused as part of the group of persons who showed him a knife. Given GE knew the accused, Ms Hickleton said it appeared that at the time the knife was taken out and shown to GE that the accused was not in the immediate vicinity. It was further noted by Ms Hickleton that JE also knew the accused and did not say that he saw him as part of the group searching for the knife.

13. Ms Hickleton observed there was a suggestion by the Crown that on the night of the assault the accused was associated with a person or persons in possession of a knife. Further, that there was a suggestion that the accused was associated with an inherently violent group. The fact that one or more members of this group were carrying a knife, Ms Hickleton said, indicated that he or they were there with the intention of perpetrating violence with a knife.

14. Ms Hickleton accepted that there were members of the group who went to the party with violence, or at least the potential for violence, in mind and that they were aggressively asking partygoers whether they were from Campbelltown. It was submitted there was already other evidence indicating this conduct, including evidence relating to a metal pole being held by one member of the group and of statements being made by one or more of the accused’s number intending to intimidate partygoers.

15. However, Ms Hickleton submitted that once a knife is added into the “flavour of that mixture”, it adds an atmosphere which suggests that they went to the party with the intention to kill or seriously wound someone. This, it was argued, adds a completely different dimension to the nature of the violent intent.

16. Accordingly, the submission was that the evidence of the knife takes the intention or potential intention of the group from one of intimidation to killing or seriously wounding someone.

17. In relation to the potential prejudice to the accused, Ms Hickleton submitted:

“My concern is that although it does not really go in terms of a fact in issue, and a fact in issue was [the accused] involved in the killing of Mr Delir, physically involved, because that is not the Crown case, but that he was with a group of people whom he encouraged in fact to attack Mr Delir, that it the addition of the knife seems ‑ may lead the jury to use that in a very prejudicial way towards [the accused], even though there is no evidence [the accused] knew anyone had a knife.” (T 17:31-37, 11 November 2013)

Conclusion

18. There was evidence of a knife in the possession of one or more of the group of males. Although there is no evidence indicating the accused was aware of the knife, there is nonetheless evidence capable of supporting an inference that the accused had knowledge of his group having a violent intent that evening.

19. The evidence of a knife established what was plainly a plan by the group of males in question to engage in a night of violence at the Halloween party. The evidence of aggression displayed by members of the group, one of which held a metal pole when addressing a guest, Mr Eaglesham, placed the knife in context as part and parcel of what was to be a violent enterprise.

20. Accordingly, in my opinion, the evidence of the knife is relevant to a fact in issue, that is, the intention of the accused and/or his group. Further, the evidence of the knife, if accepted by the jury, could rationally affect the assessment of the intention of the accused and/or his group: s 55, Evidence Act.

21. The remaining question is therefore one of whether the evidence should be excluded on the basis it may cause unfair prejudice to the accused.

22. Section 137 of the Evidence Act provides that the Court must refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused.

23. In determining the application to exclude the evidence relating to the knife, I have given consideration to the terms and application of s 137.

24. That section has been said to have, in broad terms, three elements:

“(1) in determining inadmissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;

(2)   it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;

(3)   it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight.” (R v XY [2013] NSWCCA 121 at [66] per Basten JA, with whom Hoeben CJ at CL agreed on that point)

25. “Probative value” is defined in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

26. The role of a court when considering the probative value of a particular piece of evidence was considered by Simpson J in R v XY [2013] NSWCCA 121 at [167]:

“The actual probative value to be assigned to any individual item of evidence lies in the province of the tribunal of fact — in most criminal trials, the jury. It is not ordinarily possible to determine the actual probative value of any piece of evidence until the evidence in the proceeding is complete and the full picture can be seen. “Probative value” in the sections mentioned is plainly not used in that sense. It is used in the sense of the potential of the evidence to have the relevant quality. Where an assessment of probative value is a prerequisite to a decision to admit or not admit any particular item of evidence, the exercise for the trial judge is necessarily “predictive and evaluative” (Fletcher, at [35]). The prediction is of what use the jury could rationally make of the evidence, in the context of the trial evidence in its complete form. The evaluation is of the importance or significance of the evidence in the same context.”

27. Her Honour further observed:

“None of the sections that call for assessment of the probative value as a precondition to admissibility give any indication that some exploration of credibility, reliability or weight ought to be conducted, or, if so, what limits are imposed on the extent of that exploration. To embark upon a partial assessment of weight could, in my opinion, be potentially productive of real injustice. No boundaries with respect to the extent to which the weight of the evidence is to be explored are discernible in any of the provisions that call for evaluation of probative value.” (at [171])

28. There is, of course, no dispute as to the existence of the knife or that it can be linked to the relevant group of males who attacked Eden Delir. Rather, dispute arises as to the accused’s knowledge of the knife. Questions of credibility, reliability and weight play no part in the assessment of probative value with respect to s 137: R v XY, supra, at [175]; and R v Shamouil (2006) 66 NSWLR 228.

29. In a trial where the Crown alleges that the accused was party to a joint criminal enterprise or an extended joint criminal enterprise, evidence as to the intention of the group and/or its members or their foresight as to the possibility of harm is relevant and could be capable of supporting an inference that the accused either shared that intention or was aware of the possibility that harm, involving the use of objects as weapons was likely.

30. In the present trial, the anticipated evidence in respect of the knife could operate as objective evidence of the violent intention of one or more of the accused’s associates.

31. Whilst the attack on Eden Delir was not one associated with the “Campbelltown boys” it was closely related in terms of time and location (at the party premises).

32. I am therefore of the opinion that the evidence of the knife could rationally affect the jury’s assessment of the intention of the accused and/or his group at the time of the attack on Eden Delir.

33. Danger of unfair prejudice to the accused involves a balancing exercise in accordance with the principles enunciated in R v XY, supra, and R v Shamouil, supra.

34. As earlier noted, Ms Hickleton’s objection to the evidence of the knife stems from the fact that there is presently no evidence indicating the accused was in possession of a knife or was aware that one or more of his number was in possession of a knife that evening.

35. I do not, however, consider that this gives rise to any danger of unfair prejudice to the accused. It remains for the Crown to prove to the requisite standard that the accused had the necessary intention or foresight. As a question of fact, this is a matter for the jury’s determination. It will be for the jury to make findings as to the accused’s knowledge of the knife that evening and appropriate directions in this respect will be given.

36. I have therefore determined that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused: s 137 Evidence Act.

37. Accordingly, the application to exclude further evidence regarding the presence of a knife at the party and in the vicinity of the premises is refused. It will be a matter for the jury to make factual determinations relating to the knife, including whether the accused was aware of the presence of the knife that evening and whether it has any probative value in terms of the accused’s knowledge or state of mind.

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Decision last updated: 06 August 2018