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

1. 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.

2. 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”.

3. 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.

4. 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.

5. 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 substantially outweighs any prejudicial effect to the accused.

Nature of the evidence

6. The evidence relates to two previous, separate stabbings of which the accused was convicted. The first stabbing occurred on 15 August 1992. The victim was a person named Warren Roy Hourigan, whom the applicant stabbed in the neck. He survived. I record that for the purpose only of the narrative at this stage. The accused was charged with stabbing with intent to murder, or in the alternative, wounding with intent to cause grievous bodily harm. The Crown ultimately accepted a plea of malicious wounding in full discharge of the indictment and the accused was sentenced accordingly.

7. Those proceedings on sentence were heard concurrently with his sentencing for the murder of Peter John Miller, which occurred on 15 June 1993. Mr Miller was fatally stabbed by the accused. I will not at this stage go into the detail of the events surrounding each of those two offences.

8. Mr G Tabuteau, the learned Crown Prosecutor, has provided a helpful guide in tabular form of the matters he wishes to extract from the body of evidence to which I have referred. The table in relation to the first stabbing appears at the foot of paragraph 16, and in relation to the second stabbing, at the foot of paragraph 21, of his written submissions which I received as MFI 2.

Recent caselaw

9. The question of the admissibility of evidence as tendency evidence under s97 has received the frequent attention of the High Court of Australia and intermediate courts of appeal throughout Australia in the comparatively recent past, and it will be necessary to refer to some of the leading decisions.

10. Although I was referred to a number of cases by Mr Tabuteau and Mr E Ozen SC, for the accused, I have found it most useful to refer principally to Hughes v The Queen [2017] HCA 20; 92 ALJR 52 and McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045.

11. I have also had reference to a recent decision of the New South Wales Court of Criminal appeal in a restricted decision which has the neutral citation 2018 NSWCCA 164 in which Bathurst CJ gave the leading judgment. The publication of that decision has been restricted because the Court has ordered a retrial of the appellants which is yet to be held. I was also referred by Mr Ozen to Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528. I will make further reference to those authorities in the course of these reasons.

Legal analysis

12. McPhillamy and Hughes make clear that s 97 imposes conditions for the admission of evidence to prove that a person has or had a tendency to act in a particular way, or, more relevantly for my purposes, to have a particular state of mind. The substantive condition is that the evidence will, by itself, or when taken with other evidence adduced by the party seeking to adduce the tendency evidence have "significant probative value".

13. Section 101(2) provides that in a criminal proceeding tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have on the defendant.

14. Section 97(1) also requires the party seeking to introduce the tendency evidence to provide notice to the other party of the intention to do so. In this case, MFI 1, the Crown's tender bundle, contains two tendency notices, the first dated 16 January 2019, and the second date 29 January 2019. It is sufficient for present purposes to treat the second as having superseded the first.

15. The cases to which I have referred (and to which I will return) emphasise that for the evaluative process required by s 97, it is necessary for the party seeking to introduce the evidence, to identify the tendency relied on with some degree of specificity. The second tendency notice seeks to do that in the following language:

“The tendency sought to be proved is [the accused’s] tendency to have a particular state of mind, namely when stabbing a person with a knife or other sharp instrument, to intend to cause death or really serious injury to the person."

That asserted tendency, I interpolate, is identified in terms of the mens rea which the Crown must prove beyond reasonable doubt for the accused to be convicted of murdering Mr Morrison.

16. It may be said, as Mr Ozen acknowledged, that the tendency in those general terms has been refined somewhat in the Crown's written submissions. At paragraph 9 the tendency is expressed in this way:

“The proposed tendency evidence is evidence of the accused:

1. Intending to cause death or really serious injury when stabbing a person with a knife or other sharp instrument;

2. Knowing that stabbing a person with a knife or other sharp instrument could cause death or really serious injury.

It is quite apparent that both of those expressions of the alleged tendency assert a tendency on the part of the accused to have a particular state of mind when he acted in a particular way.

17. I think it is important to bear in mind that the cases which I will refer to, except the restricted decision, are sexual offence cases. The restricted case is an armed robbery case. The principal issue was the identity of the perpetrators, or to put it another way, whether the accused were the offenders who committed the armed robbery. It is important to refer to those contextual matters because it is quite apparent from a review of the authorities, given that one is concerned with the question of the admission or rejection of evidence, that the decision or evaluation called for by section 97 is a factually intense one.

18. This was expressed by the majority in the High Court in Hughes (Keifel CJ, Bell, Keane and Edelman JJ) at [42] where their Honours said that the section requires “an open-textured inquiry” into whether the probative value of the evidence is “significant”. Their Honours observed that it is inevitable in such an exercise that reasonable minds might reach different conclusions. In these circumstances, their Honours, it may be said counselled prosecutorial, and perhaps by implication judicial caution, in the admission of so-called tendency evidence in marginal cases, given the capacity for a trial to miscarry upon its wrongful reception.

19. Their Honours identified two important matters to be considered by the Court when deciding the admissibility of the tendency evidence. At [41] their Honours said, which I will set it out in full:

“The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved, it is easier to appreciate the dangers in focussing on single labels such as 'underlying unity', 'pattern of conduct', or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”

Their Honours may be taken as indicating that although similarity between the tendency evidence and the offence charged is not a condition of admissibility, especially when the question is whether the offence has been committed, but it is otherwise where the question is the identity of an offender for a known offence. Then a close similarity of fact is likely to be necessary in order to establish the admissibility of tendency evidence (see [39]).

20. This same point, referring to tendency evidence to prove the identity of an offender, was made by the Chief Justice at [106] of the restricted decision (referring to Hughes at [39]). By way of general principle I should also say that the Chief Justice (at [107]) picked up the statement of Nettle J from Hughes albeit in dissent at [104] in the following terms:

“Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence. Without more it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence, or that the complainant is telling the truth as to the commission of the offence."

21. Nettle J also said at [155] of Hughes:

“So for example, if the previous offence were one which involved the intentional infliction of bodily harm upon the victim, the fact that the previous offence, might, as a matter of common sense and experience rationally suggest a degree of animosity on the part of the accused towards the victim that significantly affects the assessment of the probability that the accused committed a subsequent offence involving the intentional infliction of bodily injury on the victim."

I have emphasised the definite article qualifying the word victim where it appears in that dictum for the purpose of pointing out that, although in this case, there are two prior occasions upon which the accused is said to have offended using a knife or other sharp instrument in each matter the victim was different and, indeed, in the allegations made against him here a third victim is involved.

22. As I have said, Nettle J was in dissent but I do not understand that that part of his Honour's judgment is at all at variance with the reasons of the majority. Indeed it is central to their Honours reasoning that the evidence of prior sexual misconduct involving children in Hughes was admissible for a specific purpose. At [60] their Honours said:

“The force of the tendency evidence as significantly probative of the applicant's guilt was not that it gave rise to a likelihood that the applicant, having offended once, was likely to offend again. Rather its force was that in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience."

23. In McPhillamy, as I have said also a child sexual abuse case, evidence of two victims was admitted to prove a tendency that the accused had a sexual interest in under-aged boys. A plurality of the High Court (Kiefel CJ, Bell, Keane and Nettle JJ) pointed to the differences in the circumstances of the earlier offences compared with the index offence to rule that the evidence of the earlier offending had been wrongly admitted. At [32] their Honours said that the evidence of the earlier complainants established no more than a decade before the subject event the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against the present complainant to a significant extent:

It rose no higher in effect than to insinuate that because the appellant had sexually offended against B and C, ten years before, in different circumstances and without any evidence other than A's allegations that he had offended again he was the kind of person who was more likely to have committed the offences that A alleged. The tendency evidence did not meet the threshold requirement of section 97(1)(b) of the Evidence Act.

Application of principles

24. It seems to me that in assessing the admissibility of the evidence in this case, I need to bear those statements firmly in mind. That is to say, the tendency evidence is not significantly probative and therefore prima facie admissible merely because it may demonstrate that having offended with a knife before, the accused was likely to have offended with a knife again on this occasion.

25. The fact in issue in this case as I have sought to emphasise is the mental element of the offence of murder. There is no issue about the actus reus. Absent proof beyond reasonable doubt of the mental element the accused could not be convicted of murder although logically he would be guilty of manslaughter by unlawful and dangerous act on the facts he has admitted, putting aside the defences referred to.

26. It is important to bear in mind how the tendency is put by the Crown. The probative value of evidence, as I have said by reference to the authorities, is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of that fact in issue to a significant extent. Therefore the starting point as I have said already requires identifying the asserted tendency and the fact in issue it is adduced to prove.

27. As affirmed in Hughes at [16], the facts in issue in criminal proceedings are those necessary to establish the elements of the offence, like here, the mens rea for murder. As I have also said, the Crown has refined the tendency in written submissions so that perhaps logically, it seeks to prove a state of mind on the part of the accused - I am rewording it slightly - that when he stabs a person with a knife he knows that his action could cause death or really serious injury from his previous experience in relation to the two earlier offences.

28. The question then becomes, as they are interconnected as I said by reference to Hughes, whether, if that tendency is established, is it significantly probative of the question whether at the time he stabbed Mr Morrison he actually intended to cause death or really serious injury. I emphasise the second question must go to the elements of the offence of murder with which he is charged.

29. I should record that the Crown prosecutor pointed out in his submissions that the stabbing of Mr Hourigan in 1992 in fact caused really serious personal injury even if the Crown was prepared to accept a plea of guilty to a lesser offence not having that element. There is no reliance on the plea of guilty per se. And the stabbing of Mr Miller in 1993 in fact caused death. Both of these consequences were known to the accused when he stabbed Mr Morrison, and must have been known to him, notwithstanding that he was around 18 years old only when he committed the earlier offences, even considering that those events preceded the stabbing of Mr Morrison by around one quarter of a century.

30. Mr Ozen submitted that the lapse of time between the killing of Mr Miller and the killing of Mr Morrison was such that it weighed heavily against acceptance of the evidence as significantly probative of the tendency contended for by the Crown. He also submitted that in any event the asserted tendency was so general that it became meaningless, by which I took learned senior counsel to be contending that for that reason also it was not significantly probative of the of the element of the offence in issue here.

31. I should observe in passing that counsel also submitted that it would be futile to rule that the evidence was admissible as tendency evidence because there were other grounds of objection including the hearsay nature of the evidence. The Crown Prosecutor has made it clear that he intends to prove the tendency by the tender of documentary evidence within MFI 1. He argues the Crown is able, contrary to Mr Ozen's argument, to establish that that evidence is covered by an exception to the hearsay rule.

32. I acknowledge the force of the Crown's submission. However, I bear in mind, as I have said, the open-textured nature of the evaluative process and the caution which is appropriate in the admission of tendency evidence, even in the case of a judge sitting without a jury.

The facts sought to be proved

33. It is necessary to look at what facts the evidence will prove. I bear in mind that this is not an “identification” case and therefore, close similarity of circumstances, is not a factor to be afforded significant weight in the decision I am required to make. However, it is important to bear in mind the differences in the circumstances.

34. In the case of the attack on Mr Hourigan the accused and others were loitering in a public street that Mr Hourigan had to pass to make his way home. Sensing danger, he crossed the road before he was set upon by members of the group, including the accused. During the jostling of Mr Hourigan by the group the applicant produced a knife or other sharp instrument and stabbed him in the neck. According to the witnesses whose evidence is sought to be adduced, he made admissions saying to one, "I stabbed him"; and another heard him say, “I hit him with a knife. I stabbed him in the neck".

33. The evidence otherwise shows that in fact really serious injury was caused. I doubt that would be in dispute. And there is certain evidence that the knife was in fact embedded in the upper neck when he was treated at the hospital; which treatment required intensive care in the Trauma High Dependency Ward. The victim was a complete stranger. The attack was spontaneous and in company, presumably either for the pleasure of inflicting pain or in an attempt to rob the victim.

34. Mr Miller and the accused were known to each other, and they had been drinking heavily together in a group of people at certain premises. A fight between the accused and Mr Miller broke out, during which the accused produced a knife and inflicted three non-fatal, as it turned out, stab wounds. Mr Miller was taken to the John Hunter Hospital, Newcastle, and fortunately the wounds inflicted were assessed as superficial and were stitched. He left hospital at about 1 am.    As he was making his way home, there was a further confrontation between him and the accused.

35. There is the flavour in the evidence that the accused more or less either lay in wait for him, or took the opportunity presented by his re-appearance in the locale to fall upon Mr Miller and stab him fatally, as I understand the evidence, in the back of the chest.

36. The applicant made admissions in an ERISP that he intended to kill Mr Miller. It is apparent that the motivation for that offending was some personal animosity between the accused and a victim, who was known to the accused.

37. The circumstances of the present offence are somewhat different. As I understand the evidence which will be led at the trial, it is not said that Mr Morrison was known to the accused, but the evidence may suggest that the accused took a set against him, either because he mistook him for someone else or because he formed an unreasonable belief that Mr Morrison had given him offence or other insult at a methadone clinic that the accused or his then partner attended.

38. The attack took place in a clearance shop. Mr Morrison was in the back of the shop looking at the goods offered for sale when the accused seeing him entered the shop, approached him, a scuffle occurred, during which the accused produced a knife, stabbing Mr Morrison twice.

39. On the Crown case the accused had said to Mr Morrison, before what I've called the scuffle broke out, "Are you the bloke that I had dramas with at the clinic the other day?" The deceased replied, "I don't even know you, Mate". To which the accused responded, "Youse are conspiring against me", before stabbing Mr Morrison twice as I have described.

40. It seems to me that, looking at that body of proposed tendency evidence and the present allegations the evidence goes no higher than to prove the offender is a person who is likely to offend again in the same way by use of a knife. However, that consideration is insufficient to satisfy the legal test, or of significant probative value for the reasons I have explained by reference to the authorities which are binding upon me. It is for the party tendering the evidence to of course formulate the tendency said to be established by it, and to demonstrate its significant probative value. The tendency here is, as formulated by experienced Crown counsel, pitched at a certain level of generality, and the differences in fact between the present case and the past cases, even if no similarity is required, are such that it cannot be said in my judgment that the evidence is significantly probative of the tendency propounded.

41. As I've said, the first offence was opportunistic involving an attack in company on a complete stranger. The second offence had aspects of premeditation to it, and involved the vindication of some actual grievance the accused held against Mr Miller. And in the third case there was, it seems to me, although an aspect of grievance harboured against a person who was otherwise a stranger, including the overtones of mistaken identity I've referred to, which make the present case, on the Crown case, even taking into account the admissions the accused will make, quite different from the other cases.

42. I am not persuaded that the gap of a quarter of a century is of itself significant, although I do not discount it. It must be borne in mind, I think I can say, that given that I have been informed that the accused was convicted of the murder of Mr Miller, it is unsurprising on the material given to me, that he served a long gaol term for the two previous offences, and no doubt was under close supervision upon his release. These considerations would have deprived him of the opportunity of acting on the tendency propounded if it was shown to exist.

43. I am not satisfied that the evidence does establish the tendency as reformulated by the Crown at paragraph 9 of the written submissions. Were I wrong in that conclusion, it would be necessary for me to consider the questions arising under s 101.

44. Approaching that question, it must be borne in mind, as I have said already, that I'm sitting as a judge to determine questions of fact and law, the former without a jury. The question of whether the significant probative value significantly outweighs the prejudice has to be determined in that light. As the authorities to which I have referred to, make clear, the danger with the admission of tendency evidence is that the jury may misunderstand the use to which such evidence may properly be put in their fact-finding role. Some of the reasons for that are explained in the majority judgment in Hughes at [17]. Moreover, that risk cannot always be effectively guarded against by appropriate judicial direction to the jury as demonstrated by Hoeben CJ at CL, in Sokolowskyj at [52] to [56].

45. I do not suggest that a judge could never misuse, or misunderstand the use to which tendency evidence could be put, however the risk is attenuated in the case of a judge alone when compared with a jury trial. Such palpable error would readily be detectable on appeal from a verdict in a judge-alone trial. The accused would have full rights of appeal if misuse of the evidence by a judge was evident in the judge's reasons, either overtly or by implication. Had I been satisfied in relation to the evaluation under s 97, I would have been satisfied that the evidence could be properly admitted having regard to s 101(2) of the Evidence Act.

46. In the circumstances, it is not necessary for me to advert to the hearsay argument which was touched upon Mr Ozen and the learned Crown Prosecutor in oral submissions.

47. My ruling is under s 192A, Evidence Act 1995, the evidence contained in MFI 1 is not admissible under s 97(1) of the said Act.

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Decision last updated: 22 February 2019