R v Joiner

[2002] NSWCCA 354

CITATION:	R v. Patrick JOINER [2002] NSWCCA 354
FILE NUMBER(S):	CCA 60921/01
HEARING DATE(S):	19 August 2002
JUDGMENT DATE:	28 August 2002
PARTIES :	Regina - respondent Patrick Joiner - appellant
JUDGMENT OF:	Hodgson JA at 1; Simpson J at 51; Smart AJ at 52

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 70063/01
LOWER COURT JUDICIAL OFFICER :	Whealy J

COUNSEL :	Mr. S. Odgers SC for appellant Mr. P. Ingram for respondent/Crown
SOLICITORS:	D.J. Humphreys for appellant S.E. O'Connor for Crown
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - Circumstantial evidence - Tendency evidence - Probative value and prejudical effect.
LEGISLATION CITED:	Evidence Act 1995 ss.97, 101
CASES CITED:	Mortimer v The King (1936) 25 CrAppR 150 Pfennig v. The Queen (1995) 182 CLR 461 R v. AH (1997) 42 NSWLR 702 R v. Beggs (1990) 90 CrAppR 430 R v. Fordham (1997) 98 ACrimR 359 R v. NJF NSWCCA 5/6/97 R v. WRC [2002] NSWCCA 210
DECISION:	Appeal dismissed

CCA 60921/01
SC 70063/01

HODGSON JA
SIMPSON J
SMART AJA

Wednesday 28 August 2002

REGINA v. Patrick JOINER

Judgment

1 HODGSON JA: On 10 October 2001, the appellant was indicted before Whealy J on the following count:

That he on about 8th October 2000 at Sydney in the State of New South Wales did murder Mary Seretis-Joiner.

The appellant pleaded not guilty, and there ensued a trial lasting fourteen days before the trial judge and a jury. On 1 November 2001, the jury returned a verdict of guilty on that charge.

2 On 14 December 2001, the appellant was sentenced to imprisonment for eighteen years, to commence on 26 October 2000 and to expire on 25 October 2018, with a non-parole period of thirteen years six months, to expire on 25 April 2014.

CIRCUMSTANCES

3 Some of the circumstances of the case were either common ground, or else clearly proved and not disputed.

4 The deceased was married to the appellant on 31 October 1998. The marriage had difficulties, leading to counselling sessions commencing on 21 July 1999 with a counsellor Geoffrey Price.

5 At 2pm on 8 October 2000, the appellant and the deceased attended a wedding of a cousin of the deceased. However, there was some difficulty between the deceased and her family, and the appellant and the deceased did not take part in photographs after the wedding, and did not attend the reception. Instead, they went to the Brighton RSL Club, arriving at about 3.30pm. The deceased left the club just after 6pm, and the appellant followed her about half a minute later.

6 They then drove in the deceased’s Volkswagen Golf car to the Bundeena area, and, on a bush track in this area, there was an altercation between them following which the deceased died. The appellant put her body into the boot of the car, and drove away.

7 At about 9pm, near Helensburgh, the car ran out of petrol, and the appellant called the NRMA. The car was towed to Bulli, where petrol was obtained. The appellant then drove the car to Abercrombie Street, Redfern, and left it there unlocked with the keys in the ignition. The body of the deceased was still in the boot of the car.

8 Between that time and 26 October, the appellant told family members, acquaintances, media and the authorities that the deceased had driven alone from the Brighton RSL Club on 8 October, and that he had not seen her since. However, at about 1.45pm on 26 October, lawyers for the appellant faxed a document signed by the appellant to the police, which stated as follows:

I was involved in a physical altercation with my wife Mary on the night of the 8th of October 2000. During the course of the altercation I struck her and I believe that she died as a result. I did not mean to harm her.

No other person was present at the time or involved in any way. In my distress and panic after my wife's death I left her body in her car, a 2000 Volkswagon (sic) sedan. When I last saw it the car was parked in Abercrombie Street, Redfern.

9 The police then located the car, and found the deceased’s body in the boot.

CROWN AND DEFENCE CASES

10 The Crown case was that the appellant killed his wife by assaulting her violently with an intention either to kill her or to cause her grievous bodily harm. In support of this case, it relied on evidence concerning injuries to her body, evidence of the relationship between the appellant and his wife, various aspects of the conduct of the appellant on 8 October, and tendency evidence based on evidence from three other women with whom the appellant had relationships. The Crown also relied on lies told by the appellant, not as evidence of consciousness of guilt, but as damaging the appellant’s credibility.

11 The appellant gave evidence at the trial, to the following effect.

12 He testified that, at his wife’s suggestion, they had driven to Bundeena. They were near Maianbar and his wife suggested they walk to a lookout; and they walked near a reservoir to look at the view at about 7.45pm. After a time they argued, he walked away and she struck him on his left ear, he spun around and accidentally struck her on the left side of the face with his watch, she punched him in the face, he slapped her on the face, and pushed her back. She fell backwards, he heard “a loud thud”, and the appellant then noticed that she was “spasming”. While the appellant could not say anything about the ground on to which his wife fell, he described typical rocks in the vicinity as rough and jagged. He said that he did not intend to kill or cause serious bodily harm to his wife.

13 The appellant testified that he tried to wake his wife up, and after the spasming had ceased, dragged her to the car. When he got her to the car, she was not breathing and had no pulse. He attempted to revive her without success. He formed the opinion that she had died. He tried to put her into a passenger seat but failed, and put her into the boot of the car. He panicked and was disorientated, and drove towards Wollongong. The car ran out of petrol and, after it was refilled, he drove to Redfern where he parked it. He intended to go to see a priest in a nearby church; but the church was locked, he panicked and took a taxi home. He then concocted a story that his wife had disappeared and he had no idea where she was, until he made the statement to police on 26 October in which he admitted that he was involved in her death.

14 The other main evidence bearing on the respective cases of the Crown and the appellant was as follows.

15 Evidence of the injuries to the deceased’s body was given by Dr. Lawrence, a forensic pathologist. There were lacerations and bruising around the mouth, the left cheek, and the right eye, and bruising around the jaw, extending down the neck. There were two lacerations to the back of the scalp, consistent with being caused by a kick with a shoe, but also with being hit by or falling onto a rock. The brain itself was unable to be significantly examined due to decomposition, although there appeared to be some subarachnoid haemorrhaging consistent with trauma. There were other abrasions on the left thumb, left third finger, and left arm. There was a number of abrasions to the legs caused after death, consistent with being dragged along gravel. There was no evidence found consistent with strangulation. There was evidence of haemoaspiration, probably from breathing blood in while unconscious, but possibly from mouth-to-mouth resuscitation. The cause of death was a closed head injury causing damage to the brain. The witness was not prepared to accept as a reasonable possibility epilepsy, aneurism or myocarditis as the cause of death.

16 Another forensic pathologist, Dr. Collins, gave evidence for the accused. He believed the most likely cause of death to be head injuries, although the other possible cause of death was epilepsy. The skull lacerations were consistent with a fall against the rock formations at the scene of the deceased’s death, or being caused by a shoe. The subarachnoid haemorrhage could have been caused by oozing blood or an epileptic fit.

17 The relationship evidence consisted evidence of previous incidents involving violence by the appellant towards the deceased. In relation to this evidence, the appellant said that on these occasions he did not intend to cause injury to the deceased, and also that he had gone to anger management counselling.

18 The Crown also relied on various aspects of the appellant’s conduct on 8 October and observations of the appellant on 9 October. Firstly, his failure to seek any assistance: the appellant’s explanation was that the mobile phone was in the car, and that he panicked. Secondly, placing the deceased’s body in the boot of the car, rather than on a seat: the appellant said he could not lift his wife into the front seat of the car. Thirdly, driving south from the scene, which the Crown alleged indicated an intention to dispose of the body: the appellant said this was a mistake. Fourthly, leaving the car unlocked with keys in the ignition, which the Crown alleged was in order that the car be stolen so that suspicion concerning the deceased’s death would fall on whoever stole the car: the appellant said that this too was the result of panic. Finally, the appellant was observed the next day with an inflamed and swollen right hand: the appellant’s explanation was that it had been burnt in the shower.

19 Finally, there was the tendency evidence.

20 First, evidence was given by Victoria Bowdler, the ex-wife of the appellant. She said that the appellant used to start arguments over minor household incidents, and to monitor movements. Once there was an argument over putting sewing away, which ended up with the appellant pushing her against the wall, with his hand and then a chair around her throat. After the two separated, when the appellant came for an access visit for their son, the appellant grabbed the witness around the arm and closed the car door on her. Ms. Bowdler was married to the appellant in 1985, after a prior relationship of about four years, and the marriage lasted seven years.

21 Next, evidence was given by Belinda Speedy, who had a relationship with the appellant in 1995 and 1996. Her evidence was that the appellant would monitor her movements. On one occasion the two went with her sister and brother-in-law on holidays in Queensland. The appellant and the witness had an argument over sleeping arrangements, which led to the appellant holding the witness around the throat with her feet off the ground, strangling her. This stopped when her brother-in-law came into the room and pulled the appellant off the witness. Soon after this, the appellant abruptly took the witness from one of the resort bars and threw her against a golf cart and put his hand around her neck, trying to strangle her. A security guard intervened. Once the two went camping. During the night, the appellant believed the witness had gone outside the tent naked. He tore down the tent, then ran after the witness and grabbed her, pushing her face into the ground. Two security guards intervened. The two returned home, where the appellant lay beside the witness on the bed and began strangling her. On another occasion there was a fight where the appellant pushed the witness down the stairs, then dragged her outside and smashed her head on the driveway. The witness never sought medical treatment as a result of these incidents, and the appellant would always apologise after them.

22 Thirdly, there was evidence from Elizabeth Jennings who had a relationship with the appellant in 1996 and 1997. Once there was an argument about a telephone call from a male friend of the witness, when the appellant pushed the witness onto the toilet, put his hand around her neck, then continuously shook her until she threatened to end the relationship. On another occasion an argument started over the witness going out, and the appellant pulled her by the hair onto the sliding door railing. He apologised afterwards. On another occasion after leaving a bar, the appellant threw the witness to the ground twice, hitting her repeatedly to the head after each time. She then ran to her unit, where the appellant caught up with her. He dragged her into the lift and her flat, where her flatmate and her boyfriend called the police when they saw the witness’s dress covered in blood. The witness suffered a cut mouth, a bruised right eye, and general soreness to the head.

23 In relation to this evidence, the appellant said that he did not deny there had been some violence, although he did not recollect the details of the incidents. He said that he never intended to cause injury.

GROUNDS OF APPEAL

24 The appeal is brought on two grounds:

1. The trial judge erred in admitting “tendency evidence”.
2. The trial judge erred in his directions to the jury regarding the “tendency evidence”.

ADMISSION OF TENDENCY EVIDENCE

25 At the beginning of the trial, the defence Counsel objected to “tendency evidence” proposed to be adduced by the Crown, and a voir dire was held. The Crown tendered three statements by Belinda Speedy, Elizabeth Jennings and Victoria Bowdler, which were to the effect of the evidence subsequently given, summarised above. The issue involved consideration of ss.97 and 101 of the Evidence Act, which are as follows:

97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence 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 it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

26 In his judgment on admissibility given on 12 October 2001, the trial judge (at pars.[27] and [30]) characterised the argument of the Crown as that the evidence indicated:

a tendency, in respect of women with whom he had a relationship, to react violently towards them over the most minor situation. His explosive outbursts involved attacks to the head of these women ... The Crown has submitted this evidence not only shows a tendency on the accused's part but that it had a significant probative value on the question of the accused's state of mind, that is, his intention at the time he inflicted the injuries to the deceased and on the related issue of rebutting accident. ... It was said the evidence shows a tendency on the part of the accused to explode in situations where there is either no provocation or little provocation. The explosion is directed towards a wife or domestic partner. The tendency is for the explosion to manifest itself in the infliction of violence of a kind which shows an intention to inflict serious bodily harm on his wife or partner. At the very least, it allows an inference to be drawn that in such attacks, where the accused has lost control of himself, that he is intending to inflict serious bodily harm.

27 The trial judge at par.[46] held that the evidence had "significant probative value" under s.97 because:

It demonstrates the high degree of unlikelihood that the deceased met her death in any other way than following an explosive outburst of anger by the accused, the infliction of forceful blows on the deceased that were intended to cause at least serious bodily harm.

28 In particular, he held the evidence was significant in respect of:

(a) causation: "it goes directly to rebut any suggestion, if it be made, that the striking by the accused did not lead directly to the death of the deceased (par.[51]); and
(b) intention: "it goes directly to rebut the accused's assertion in his faxed statement that he did not mean to harm the deceased" (par [51]).

29 The trial judge also held (at par.[52]) that the evidence was “incapable of bearing an innocent explanation. There is no rational view of the evidence consistent with the innocence of the accused”. He relied on a number of characteristics of the behaviour in question including (at par.[53]) the following:

(5) The level of violence demonstrated in the majority of these instances showed a clear intention to inflict serious bodily harm and this intention is manifested even where the injury was not in fact inflicted.

30 The trial judge concluded (at par.[56]) that "there is no rational basis for believing on the whole of the Crown case that the injuries inflicted on the deceased were not accompanied by the same behaviour, and significantly the same intention, as in the case of the three women". He indicated (at par.[59]) that he did not believe the evidence should be limited in its use. Finally, he stated (at par.[60]):

The evidence is available to rebut accident or unintended act in relation to the charge of murder and may also be relied upon in relation to the issue of unlawful and dangerous act in relation to the possible or alternative verdict of manslaughter.

Submissions

31 Mr. Odgers SC for the appellant submitted that in this case, the appellant admitted that there had been deliberate infliction of force, so that there was no suggestion from the appellant that the injury to the deceased was wholly accidental. Accordingly, he submitted, the tendency evidence should not have been admitted on the basis that it rebutted accident.

32 Mr. Odgers submitted that the real issue in this case was whether the appellant caused injury to the deceased with the intention of causing grievous bodily harm. On that issue, the tendency evidence was of low probative value, outweighed by its prejudicial effect. Certainly, he submitted, the probative value did not substantially outweigh the prejudicial effect as required by s.101. Particularly was this so in circumstances where in none of the instances the subject of the tendency evidence was grievous bodily harm actually inflicted.

33 Mr. Odgers submitted that the trial judge was in error when he held that the level of violence involved in the tendency evidence showed a clear intention to inflict serious bodily harm, and that this intention was manifested even where such injury was not actually inflicted. Mr. Odgers submitted that it was mere speculation to suggest that grievous bodily harm was prevented by the intervention of third parties.

34 Certainly, he submitted, the requirement that the tendency evidence “bears no reasonable explanation other than the inculpation of the accused in the offence charged” was not satisfied: Pfennig v. The Queen (1995) 182 CLR 461 at 481, R v. NJF NSWCCA 5/6/97, R v. AH (1997) 42 NSWLR 702 at 709, R v. Fordham (1997) 98 ACrimR 359. The circumstances of this case were very different from those in Mortimer v. The King (1936) 25 CrAppR 150. They were similar to the circumstances in R v. Beggs (1990) 90 CrAppR 430, where evidence of the inflicting of minor wounds on a number of persons was held not admissible on a charge of murder.

Decision

35 During argument, Mr. Odgers in effect conceded that the tendency evidence would have been admissible to prove manslaughter, in so far as facts amounting to manslaughter were in issue. However, if the evidence had been admitted merely on that basis, this would have required very clear directions which were not given. The substantial question is whether the evidence was admissible to prove murder.

36 On that question, in my opinion, the evidence did have significant probative value. Evidence of inability to control anger, and a tendency to respond to minor irritations with violence against women with whom the appellant was having a relationship, was powerful evidence to refute the version of events given by the appellant, and to support an inference that the injuries suffered by the deceased were caused by a violent assault.

37 The real question is whether the probative value substantially outweighed any prejudicial effect of the material, so as to satisfy the requirements of s.101. On that matter, in my opinion, what the High Court said in Pfennig is relevant. I dealt with this matter in my judgment in R v. WRC [2002] NSWCCA 210 at [25]-[29], as follows:

25. In my opinion, Pfennig is highly relevant to the effect of ss.97, 98 and 101 of the Evidence Act, in that the principles there stated concerning circumstances in which the probative force of similar fact evidence substantially outweighs its prejudicial effect are directly applicable to questions raised for decision by ss.101 and 137 of the Evidence Act: R v. AH (1997) 42 NSWLR 702. OGD does not suggest the contrary.

26. The essence of the approach to similar fact evidence, such as propensity evidence, established by Pfennig appears in the following passage from the judgment of Mason CJ, Deane J and Dawson J at 482-3:
Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.


27. Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v. The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

28. On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence.

29. In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.

I adhere to what I said there.

38 Although the admissibility of the evidence was decided on the voir dire in advance of the taking of evidence in the trial, it is in my opinion appropriate to consider admissibility on the basis of the evidence led at the trial: this was not significantly different from the material on which the trial judge determined admissibility, and if the evidence at the trial had varied significantly, this would have justified the re-visiting of the question of admissibility.

39 On the approach which I suggested in WRC, it is appropriate to consider what reasonable doubt may have existed in the absence of the tendency evidence. In my opinion, it is plain that, even without the tendency evidence, there was a strong Crown case of murder. There were the extensive injuries to the deceased, which, even apart from the fatal injuries that might conceivably have been caused by the deceased falling backwards onto a rock, strongly suggested an attack of such violence as must have involved an intention to inflict really serious bodily injury. Next, there was the appellant’s failure to seek help, and placing the body in the boot, coupled with his implausible explanations of these matters. Then, there was his injured right hand, and the implausible explanation offered for this. In all these circumstances, if there was a reasonable doubt about the appellant’s intention, it must be to the effect that the possibility that all these things happened in circumstances where the appellant did not have an intention to cause really serious bodily injury, although very remote, was not excluded beyond reasonable doubt, because highly improbable things can sometimes happen.

40 However, if one adds to the above the circumstance that the appellant had a tendency to respond to minor irritations with violence against women with whom he was having a relationship, it is in my opinion no longer reasonable to regard such a highly improbable scenario as a reasonable possibility: it may still be a possibility, but not a reasonable possibility.

41 For those reasons, in my opinion the probative value of the evidence did substantially outweigh its prejudicial effect, and the evidence was therefore admissible.

DIRECTIONS

42 The primary judge gave the following directions to the jury concerning the use of the tendency evidence.

43 Firstly, in initially outlining the broad cases of the appellant and the Crown, the trial judge said this:

The accused told the police in the faxed statement and repeated to you that he did not mean to harm the deceased when he struck her on the evening of 8 October. You will recall that is what he said to you in the course of the evidence. His version of the events in the bush at Maianbar on that evening was consistent with an accidental or unintended death.

On the other hand, the Crown has pointed to the nature and extent of the injuries sustained by the deceased. Further, the Crown has pointed to the evidence of the accused's tendency or disposition to explode angrily in domestic situations, as he did in relation to the evidence of the three ladies, Miss Bowdler, Miss Speedy and Miss Jennings. The Crown pointed to that disposition in the course of uncontrolled anger to strike out or act violently towards his domestic partner.

The Crown argued that as a consequence of that tendency or disposition, it was likely that when he had the argument with his wife on the evening of 8 October he acted in a similar way to the way in which he had acted at various times to Miss Bowdler, Miss Speedy and Miss Jennings; that is to say, the Crown argued it was likely that he would have struck the deceased about the head, face and neck with the intention of causing her really serious physical injury.

Put another way, the Crown says that the injuries to the deceased of themselves, and the accused's disposition to act in a certain way in certain situations, are circumstances which, when taken together and considered in totality, will persuade you that there is no reasonable possibility that the events which caused the deceased's death were accidental or in some manner unintended by the accused.

44 Next, the trial judge gave directions specifically directed to the use of the tendency evidence:

This requirement leads me to explain the purpose for which the evidence has been led. Ordinarily, it is not permissible to lead evidence of alleged misconduct by an accused person on any occasion other than that giving rise to the subject charge. This is because of the danger that people might think that evidence that proves a person has committed one crime could suggest that he has committed the other.

In this trial, an important and perhaps the principal issue has been the critical issue of intention. The accused told the police in his faxed statement, and he repeated to you, that he intended no harm to the deceased when he struck her. Further, he has given a version of events that suggested, as he agreed in cross-examination, a “terrible accident”.

The purpose of the Crown leading the evidence of Miss Bowdler, Miss Speedy and Miss Jennings is to place before you material to show that the accused has a tendency in domestic relationship situations to act in a particular way; that is, to explode aggressively and strike his partner about the face and head in a manner intended to cause really serious physical injury.

The Crown has asked you to take this tendency into account when considering the critical issue of the accused's intention during the physical altercation he admits having had with the deceased on 8 October 2000. Its relevance and its only relevance is to rebut the suggestion of accidental death. To put the Crown's submission in another way, the Crown has asked you to take this tendency or disposition on the part of the accused into account as one of the circumstances which may lead you, when you consider the whole of the evidence, to find that the accused did intend to inflict really serious physical injury on the deceased on 8 October 2000.

It is necessary for me to say that counsel for the accused had submitted before you that this evidence cannot go to intention. It is necessary for me to correct that submission. It is not correct. The law is as I tell you. I direct you that the only relevance of the tendency material is that if you find that the accused had this tendency or disposition, that is, if you accept beyond reasonable doubt that he acted towards each of those three women as they said he did, you may take that into account as one of the circumstances bearing on the issue of the accused's intention or state of mind when he struck the deceased on 8 October 2000.

In particular, you may take it into account in considering the question whether the deceased's death occurred in an accidental way or in a manner unintended by the accused. Let me repeat that. That is the only relevance of the material and you cannot use it for any other purpose whatever.

It is important that you keep firmly in mind that you should not use the evidence to find that the accused is a bad person or that he is a person of an aggressive and violent character generally. You must not use the evidence to punish the accused in some way for what you may consider to be reprehensible behaviour towards his previous partners. As I said to you, it may only be used if you accept that the evidence has been proved beyond reasonable doubt and may be used as one of the circumstances bearing on the accused’s intention or state of mind when he struck the deceased.

Thirdly, it is necessary for me to say to you that, in placing reliance on this body of evidence, the Crown must have satisfied you that there is no reasonable view of that body of evidence that is consistent with the innocence of the accused. If you consider that there is any reasonable possibility that, notwithstanding the evidence from the three women the accused did not intend to kill or cause really serious physical injury to the deceased, you must further disregard that body of evidence altogether.

45 Finally, the primary judge made the following remarks in the course of referring to the evidence given by the three other women:

In general terms, the evidence of each of these three women was not challenged in cross-examination or by the accused in the evidence he gave. There was an exception in relation to the question whether the accused was capable of lifting Belinda Speedy off the ground with one hand but, beyond this, the accused did not challenge that he had been violent to each of these three women, nor did he challenge the detail of the descriptions that they gave. There is no need for me to repeat the details of those. Again, if you wish to be reminded of the evidence, please let me know.

Mr Cattini asked: What do you make of these witnesses? After all, he said, Belinda Speedy admitted that she was mentally unstable at least during the time she was with the accused. Victoria Bowdler had been with him eleven years notwithstanding his conduct. As well, Belinda Speedy went on the bike trip with the accused even after their relationship apparently had come to an end.

Mr Cattini said Miss Jennings wrote a letter saying she still loved Patrick and she understood he had hit her in pure frustration and desperation. You will also recall she said that Patrick had been frustrated because he couldn't do much after the accident. He was desperate to get his life back together and to get some control. She explained that she put the assault on her down to this factor.

Mr Cattini said that none of these women suffered injuries that would amount to grievous bodily harm. Only one of them required hospitalisation and treatment.

You will recall, on the other hand, that the Crown put to you that in almost every case of the more serious physical attacks by the accused on each of these women, there had been intervention by another person or persons who happened to be nearby and that this may have prevented the attacks from becoming more serious.

In his submissions, the Crown referred to the cross-examination of the accused where the accused had insisted that he had not intended to harm Elizabeth Jennings. The Crown reminded you that he had said to the accused, "You know that you did do her harm?", and he said, "Yes, I know".

The Crown submitted that this body of evidence, if you accept it beyond reasonable doubt, is relevant to whether what happened on the 8th of October was an accident or whether, as the accused asserts, there was no intention on his part to cause injury to the deceased. The Crown said there was no male person around to stop the assault going further in relation to the deceased on the night of 8 October 2000.

May I just repeat what I said earlier, in the light of those submissions, that if you are satisfied beyond reasonable doubt that the accused had this tendency or disposition to act in a violent way towards his female partners, to explode and to assault them in an angry fit of rage, that is a matter you are entitled to take into account as one of the circumstances relevant to the issue as to whether the Crown has satisfied you beyond reasonable doubt that the accused had the intention to cause at the least serious bodily harm to the deceased on 8 October. You may, however, only use it in this way, that is to rebut the suggestion of accident and to inform yourselves as to the likely intent of the accused if there is no other reasonable view of the evidence that is consistent with the accused's innocence.

Of course, you do not examine this body of evidence in isolation but as part of the overall circumstances surrounding the death of the deceased.

Submissions

46 Mr. Odgers submitted that the directions were significantly deficient, because the trial judge failed to point out to the jury that there was a real question as to whether the appellant had in fact intended to cause grievous bodily harm to any of the other women. The suggestion by the Crown prosecutor that the appellant was only prevented from inflicting such harm by the presence of third parties was pure speculation. Furthermore, it had never been suggested to the appellant in cross-examination that he intended to cause really serious bodily injury to any of the women. The jury should at the very least have been instructed that they should not use the evidence to infer an intention to cause grievous bodily harm to the deceased unless they were satisfied that he had intended to cause such injury the other women.

Decision

47 The jury was expressly told that it had to accept the facts related by the other women beyond reasonable doubt before they could use that material in support of a conviction for murder. As submitted by Mr. Odgers, the jury was not directed that it had to be satisfied beyond reasonable doubt that the appellant intended to cause really serious bodily injury to the other women, and there is force in his submission that this was not even put to the appellant in cross-examination.

48 However, the tendency evidence did support a finding of the necessary intent, even if intent to cause really serious bodily injury was not inferred beyond reasonable doubt in relation to the other incidents. There was a clear inference available from the circumstances of the other incidents that they amounted to intentional and violent responses to minor irritations, and that the appellant intended to cause injury no less than that the injury actually caused on these occasions, whether or not that injury could correctly be described as really serious bodily injury. That supported an inference that on this occasion, there was an intentional and violent response to a minor irritation, with the intention to cause at least the injuries that were actually caused; and even if one provisionally excludes the injuries to the back of the head which might conceivably have been caused by the deceased falling backwards on to rocks, the other injuries could reasonably be regarded as amounting to really serious bodily injury.

49 Accordingly, while it was open to the jury to infer intention to cause really serious bodily injury in the case of some of the assaults described by the three women, I do not think that such inference had to be drawn beyond reasonable doubt before the tendency evidence could support a finding of the relevant intention in this case. Thus, I do not think the directions to the jury were vitiated by the error suggested in Mr. Odgers’ submissions. In general terms, in my opinion, the directions were consistent with the views I have expressed on the way the evidence could properly be used, and I do not think any material error has been demonstrated.

CONCLUSION

50 For those reasons, in my opinion the appeal should be dismissed.

51 SIMPSON J: I agree with Hodgson JA.

52 SMART AJ: I also agree with Hodgson JA.

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