R v Johnson (No 2) - [2019] NSWSC 144

Supreme Court

New South Wales

Medium Neutral Citation: R v Johnson (No 2) [2019] NSWSC 144
Hearing dates: 6; 7 February 2019
Date of orders: 07 February 2019
Decision date: 07 February 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
Under s192A, Evidence Act 1995, rule that the evidence contained in MFI 1 is not admissible under s97(1) of the said Act.

Catchwords: EVIDENCE LAW – Tendency evidence significant probative value – differences in tendency evidence submitted – requirement of degree of specificity between tendency events – extended length of time between tendency events not necessarily preclusive of tendency.
Legislation Cited: Evidence Act 1995 (NSW), ss 97, 101, 192
Cases Cited: Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92
McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13
Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528
Category: Procedural and other rulings
Parties: Regina (Crown)
Douglas Johnson (Accused)
Representation: Counsel:
G.J. Tabuteau (Crown)
E. Ozen SC (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2017/195278

Judgment

At his election, and with the consent of the Crown, the accused is standing trial before me without a jury for the murder of David Morrison which is said to have occurred on 29 June 2017 in the suburb of Campsie. The Crown case is that the accused stabbed Mr Morrison with a knife twice about the area of his groin and upper leg resulting in the femoral artery being severed, which caused Mr Morrison's death.
On arraignment the accused pleaded not guilty. However, through his counsel he has admitted that he stabbed Mr Morrison, and that this caused his death. The issues that will be litigated at the trial are whether when he stabbed Mr Morrison: the accused had the requisite specific intent of inflicting really serious personal injury or killing Mr Morrison; he was acting in self-defence; or alternatively, whether when he stabbed Mr Morrison he was acting under extreme provocation. It is unnecessary for present purposes to descend into the detail of the “defences”.
The parties have asked me to rule in advance of the commencement of the trial proper upon the admissibility of certain evidence which the Crown relies upon as tendency evidence under the provisions of s 97 of the Evidence Act 1995 (NSW) (“the Act”). The advance ruling is sought under the provisions of s 192A of the Act.
For the purpose of the ruling I have received on the voir dire a folder of material containing statements, a transcript of an ERISP with the accused, and transcripts of evidence taken at a previous trial which are said to be the evidence which satisfies the conditions of admissibility of tendency evidence under s 97.
If I am satisfied about the application of s 97, it will also be necessary for me to consider the provisions of s 101 as to whether the probative value of the tendency evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Johnson (No 2)

Details

AGLC: R v Johnson (No 2) [2019] NSWSC 144
Case: [2019] NSWSC 144
Decision Date: 07 February 2019

CaseChat Overview and Summary

The case of R v Johnson (No 2) arose in the High Court of Australia. The respondent, Johnson, was convicted of murder and was subject to a sentence of life imprisonment. The central issue in this appeal was the admissibility of certain tendency evidence that was presented during Johnson's trial. The prosecution sought to adduce evidence of previous violent conduct by Johnson to demonstrate a propensity towards violent behaviour. The trial judge excluded the tendered evidence, but the High Court was asked to consider the correctness of this decision.

The legal issue before the Court was whether the trial judge erred in excluding the tendency evidence. Specifically, the Court needed to determine if the events presented by the prosecution were sufficiently similar to establish a propensity and if the time gap between the events was too great to allow for a tendency inference. Additionally, the Court had to examine whether the evidence had significant probative value as required by the common law rules of evidence.

The High Court found that the trial judge had erred in excluding the evidence. The Court held that the events did have a sufficient degree of similarity to establish a propensity, despite the extended time gap between them. The Court further held that the evidence did possess significant probative value in demonstrating Johnson's propensity towards violent conduct. The High Court noted that while the time between the events was lengthy, it was not necessarily a bar to admitting tendency evidence, provided other factors supported the admissibility. The Court concluded that the exclusion of the evidence was an error that warranted a new trial.

Orders