R v Klobucar
[2016] ACTSC 23
•19 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Klobucar |
Citation: | [2016] ACTSC 23 |
Hearing Dates: | 20 and 21 May 2015 |
DecisionDate: | 19 February 2016 |
Before: | Refshauge J |
Decision: | 1. Evidence of the following incidents referred to in the Notice of Intention to Adduce Tendency Evidence dated 29 April 2015 (the Tendency Notice) may be adduced to prove the following stated tendencies: (a) Incidents 1 to 7 inclusive may be adduced in support of the asserted tendency of Danny Andrew Klobucar to have an obsession about paedophiles; (b) Incidents 1, 2, 3 and 4 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles; (c) Incidents 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to perceive certain males who are older than him as paedophiles if evidence of, in the case of Incident 5, the age of Mr Stephen Kitanovic as older than Mr Klobucar, and, in the case of Incident 6, the age of Sergeant Wesley Herold as older than Mr Klobucar, and in the case of Incident 7, the age of the patient with whom Mr Klobucar had the relevant conversation and as older than Mr Klobucar, is adduced; and (d) Incidents 1, 3, 5, 6 and 7 may be adduced in support of the asserted tendency of Danny Andrew Klobucar to be violent and aggressive towards people he perceives to be paedophiles. 2. The Incidents in the Tendency Notice may not otherwise be adduced as tendency evidence; 3. Incident 1 in the Notice of Intention to Adduce Coincidence Evidence dated 30 April 2015 may not be adduced as coincidence evidence. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency evidence – coincidence evidence – approach in NSW – R v Shamouil (2006) 66 NSWLR 228 – Christie discretion – replacement of common law – no assessment of credibility – jury function – R v XY (2013) 84 NSWLR 363 – capacity of evidence to advance prosecution case – approach in Victoria – Dupas v The Queen (2012) 40 VR 182 – evaluation of reliability and quality of evidence – prejudicial effect of evidence – risk of unfair prejudice – probative value EVIDENCE – Tendency evidence – application supported by both parties – tendency to have a particular state of mind – tendency to act in a particular way – obsession with paedophiles – perceive older males as paedophiles – violence and aggression towards perceived paedophiles – pattern of behaviour and thought – evidence relevant to fact in issue – clear proof of age required EVIDENCE – Coincidence evidence – particular state of mind – general similarities – differences in evidence – state of mind may not have been voluntary or intentional STATUTES – INTERPRETATION – Uniform Evidence Legislation – Evidence Act 2011 (ACT) – Evidence Act 1995 (NSW) – Evidence Act 2008 (Vic) – s 137 – tendency evidence – coincidence evidence – ‘probative value’ – ‘could’ – discretion – mandatory requirement |
Legislation Cited: | Criminal Appeal Act 1912 (NSW), s 5F(3) |
Cases Cited: | Adam v The Queen (2001) 207 CLR 96 Bunning v Cross (1978) 141 CLR 54 |
Texts Cited: | Australian Law Reform Commission, Evidence, Interim Report No 26 (1985); App C, Ch 8 Stephen Odgers SC in Uniform Evidence Law (Thomson Reuters Law Book Co: Sydney, 2014) 11th ed Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press: Melbourne, 2014) 2nd ed Andrew Hemming, “Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation”, (2014) 42 Federal Law Review 539 J D Heydon in Cross on Evidence (Butterworths: Sydney, 1996) looseleaf Service No 181 |
Parties: | The Queen (Crown) Danny Andrew Klobucar (Defendant) |
Representation: | Counsel Mr M Fernandez and Ms A Jamieson-Williams (Crown) Mr F J Purnell and Mr R Livingston (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch (Defendant) | |
File Number: | SCC 214 of 2014 |
Refshauge J:
Sometime between 10.40am and 11.23am on 1 January 2014, Miodrag Gagic, then aged 71 years old, died in his flat at Mansfield Place, Phillip, in the Australian Capital Territory as a result of extensive blunt force trauma, primarily to his mid and left forehead regions.
Subsequently, the accused, Danny Andrew Klobucar, then 25 years old, was charged with the murder of Mr Gagic. He has pleaded not guilty and the matter is listed for trial, to commence on 23 February 2016.
The Crown has now filed notices seeking leave to adduce tendency evidence and coincidence evidence.
While ss 97 and 98 of the Evidence Act 2011 (ACT) do not, in terms, require leave to be granted, they do provide that the evidence shall not be led unless the court thinks that the evidence will, in the circumstances set out in the section, have “significant probative value”. In substance, this requires the court to give leave, and such leave is commonly sought at a pre-trial application, so as not to delay the trial, such applications often taking some time to be heard and decided. I shall deal with the two applications separately.
I shall refer to the Evidence Act 2011 as the ACT Evidence Act to avoid confusion with similarly named legislation in other jurisdictions to which I will refer.
The Application
The Crown referred to seven incidents in which Mr Klobucar was involved, each of which, it was submitted, were such that the Crown should be permitted to adduce them as tendency evidence. One it sought to adduce as coincidence evidence.
The application was supported by affidavits to which were annexed a considerable volume of documents, including statements made to police and medical reports which set out the evidence relating to the seven incidents. In addition, oral evidence was adduced to which I refer below. They also annexed the required notices: the Notice of Intention to Adduce Tendency Evidence dated 29 April 2015 (the Tendency Notice) and the Notice of Intention to Adduce Coincidence Evidence dated 30 April 2015 (the Coincidence Evidence Notice).
The application was initially opposed by Mr Klobucar and his counsel cross-examined a number of witnesses about the incidents and the circumstances under which they occurred.
Subsequently, for reasons I do not need to set out here, the opposition of Mr Klobucar to the applications was withdrawn and, indeed, he sought to support the Crown’s application to have the evidence of each incident admitted as tendency evidence.
That consent relieves me of a detailed consideration of the matter, especially of much of the extensive cross-examination in the application.
Nevertheless, there is, as will be seen from the statutory provisions, an obligation on the court to be satisfied of certain matters before permitting the evidence the subject of the applications to be adduced for the relevant purposes, so it is still necessary for me at least to consider the matter.
In addition, detailed argument was put to me about the approach I should take to the evaluation of the evidence sought to be adduced as tendency evidence. In fairness to the submissions of counsel, I should address that issue also.
The Incidents
It is appropriate that I first describe the seven incidents which constitute the evidence on which the Crown seeks to adduce. The evidence set out in the Notices was quite detailed; I only summarise the evidence in the Tendency Evidence Notice and the Coincidence Evidence Notice of the incidents as follows:
Incident 1
The first incident, which was sought to be adduced for both tendency and coincidence purposes, involved Francis McKean, a single man aged 61 living on his own in a unit at Gowrie Court, Narrabundah, ACT. Inside his unit he displayed a relatively large picture of an Asian child.
On 5 December 2013, he was alone in his unit with a person he knew as Danny and whom he later identified from a police photo board as Mr Klobucar.
Mr McKean said that Danny had asked him to request other people in the unit to leave for a while and he told two women who had been there to come back in fifteen minutes. At some point, Mr Klobucar asked Mr McKean for a glass of water and Mr McKean turned towards the kitchen but had no further memory of what happened after that. Shortly after, however, he was taken by ambulance to Canberra Hospital where he was treated for very serious injuries caused by blunt force trauma being applied to his head.
A couple of weeks later, Mr Klobucar told his uncle, Vito Le Clair, that he went to someone’s house and hit the person on the head. He said that he had murdered him because the person had rubbed marijuana on his testicles before giving it to him. Mr Le Clair asked him if he had seen the person die and Mr Klobucar replied that he had not. It appears to be suggested that this is a reference to Mr Klobucar’s alleged attack on Mr McKean.
Incident 2
Stephen Budarick, aged 52, worked as a volunteer at the Salvation Army store in Phillip, ACT, in December 2013. Mr Klobucar also worked there in circumstances I do not need to describe. Mr Klobucar made a written complaint to police that:
There is a man there of a much older age who continuesly [sic] harrased [sic] me on a different occasions but today was the worst sexual assault it was degrading and so violating. The man named Steven [sic] budarick (sic) put his left hand forward and ggrabbed [sic] and groped my crouch/pennis [sic] directly for around a second and made a disgusting moan and groan a mnn [sic] sound, i felt his fingers all over moving similtanesly [sic] was so degrade-ng [sic] ... when he gropp [sic] me today Dec 21 he also defnatly [sic] applied pressure this sik [sic] weido [sic], degraded me, shamed me then it also seemed he wanted to blame me he reely [sic] seems like a dark shady predator.
Mr Budarick told police that, as he was returning from the toilet to the kitchen area, he was confronted by Mr Klobucar who said to him:
You want to fuck me. You want to suck me dick ... [Mr Budarick said] “Can you move please?” ... and [sat] down at the end of the kitchen table ... and [Mr Klobucar] keeps on ranting ... and then finally he rams the kitchen table into me ... he spat in my face.
Incident 3
At about Christmas time 2013, Marie Solvy Le Clair, Mr Klobucar’s mother, noticed that he “seemed very suspicious of males who are older than him and constantly accused people in my family of being paedophiles” and that “[o]nce Danny identifies someone as a paedophile there is nothing you can say that will convince him otherwise”. Ms Le Clair further observed that he “became extremely aggressive towards older male figures he identifies as paedophiles”.
On 31 December 2013, Mr Klobucar attended Ms Le Clair’s home after a dispute over money. She had experienced early abusive and aggressive behaviour towards her partner, Steve Mesaric, who Mr Klobucar accused of being a paedophile. As a result, Ms Le Clair told him not to come over and when he arrived, she refused to let him in. He stood out the front “yelling at the top of his lungs ‘Steve you’re naked in front of my little sisters’”.
Incident 4
On 30 December 2013, Mr Klobucar visited Vito Le Clair and told him that he wanted to “score some weed”, namely marijuana. Mr Le Clair told him that he knew a person called Michael, who was, in fact, Miodrag Gagic, and who sold cannabis. They then travelled, each in their own cars, to Mr Gagic’s place and Mr Le Clair introduced Mr Klobucar as “my nephew Danny”. Mr Gagic told them that he did not have any cannabis and suggested they come back the next day. Mr Gagic had a number of photographs of young children displayed in a cabinet located at the end of the hallway.
Mr Klobucar left his car outside Mr Gagic’s unit and travelled with Mr Le Clair in his car to Tuggeranong where they bought some cannabis. While driving to Tuggeranong Mr Klobucar told Mr Le Clair that “he shouldn’t have said that he was his nephew and that he should have said that he was a ‘homo’ looking for weed”. When they returned to collect Mr Klobucar’s car, Mr Klobucar asked, “Is that Michael’s [Mr Gagic’s] car?” Mr Le Clair said, “Yes”, whereupon Mr Klobucar said words to the effect, “The blue Nissan Micra [Mr Gagic’s car] is a gay car, he must be a paedophile selling drugs and he might have a DVD relating to me from my past”.
Later that night, Mr Klobucar sent a number of text messages to Mr Le Clair asking for Mr Gagic’s address, including a message which read “Vit please give me the address of blue Micra”. Mr Le Clair refused to give it to him because of the time of night and because of his previous statement that he had gone to someone’s house and hit the person on the head and had murdered them.
It was the following day that Mr Gagic was killed.
Incident 5
On 1 January 2014 at about 1.50pm, Mr Klobucar drove to the home of Zora Kitanovic, her son, Stephen Kitanovic, and her daughter, Vesna Kitanovic. Mr Klobucar had known the family for many years and Stephen Kitanovic was a friend of Mr Klobucar’s father. Mr Kitanovic had shared accommodation with Mr Klobucar for some time and Mr Klobucar told his mother that he believed Mr Kitanovic had filmed him through his childhood and sold the film to a paedophile ring.
When he arrived at the address, Mr Klobucar spray painted the driveway and gate with words including “no Queenz”, “fuk me sis, watch muma”, “AFP TRG” and “baby rapers”. Mr Klobucar then did a “burn out” on the front lawn before driving off.
Incident 6
At about 11.20pm on 1 January 2014, Mr Klobucar drove to the Lighthouse bar in Belconnen. The bar was closed; its glass doors were locked and the owner was inside playing cards with five other men. Mr Klobucar banged on the glass doors but was told by the owner that the bar was closed for cleaning. Mr Klobucar then shouted abuse and head butted, punched and kicked the glass doors pointing at each man in the bar and said “I am gonna kill you”. He then pulled out his penis and exposed himself, pulled down his tracksuit pants and placed his bare buttocks against the glass. He then managed to pull the doors open and entered the bar where he was restrained by the men inside. Police were called and, when they arrived, they arrested him and took him to the City Police Station.
At the police station the Duty Sergeant read the charges to Mr Klobucar and he replied “I’m gonna kill every police officer I see” and referred to police as “baby rapers”, “hommos” and “cum swallowers”. He called the Duty Sergeant a “paedophile” and was aggressive towards him. He was assessed by a Forensic Medical Officer who advised police that “removal of detainee from his cell is likely to endanger detainee and staff because of a risk of violence”.
Incident 7
On 15 January 2014, Mr Klobucar was in the Adult Mental Health Unit at the Canberra Hospital when he became very agitated towards another man, accusing him of being a paedophile. Mr Klobucar approached the nurses’ station and said that the other patient had “asked to show him his cock” and the nursing staff told him to ignore the other patient as he was unwell.
Mr Klobucar waited a few minutes and then went outside and spoke to the male patient in an aggressive manner. The patient walked away. Mr Klobucar picked up a soccer ball, kicked it with some force in his direction and approached him, but was asked to stop by nursing staff.
Later that evening, he said that the other patient was a “paedophile” and also said “I just want to kill him. He is sick, he knows he is getting locked up and he is trying to get one more victim”.
Oral evidence
In addition to the written evidence of the incidents, oral evidence was adduced and, in particular, Mr Klobucar’s counsel cross-examined a number of witnesses.
Because of my findings about the test for tendency evidence and because Mr Klobucar no longer contests the Crown’s application to adduce tendency evidence, it is not necessary to set out all that evidence in detail. Indeed, I do not need to mention the evidence of Mr Buderick or Mr Vito Le Clair as their evidence went entirely to their credibility. I mention, however, the following matters as relevant to the application.
The assault on Mr McKean
Mr McKean, the subject of Incident 1, said that he was a confidant of Mr Klobucar. They had what was described as an uncle/nephew relationship. It was an affable relationship and they did not argue. Indeed, Mr McKean had rarely seen Mr Klobucar angry.
Mr McKean did not see Mr Klobucar assault him. When questioned by police, he proferred the names of a number of other people who may have assaulted him.
Mr McKean was a supplier of cannabis, but he only supplied Mr Klobucar on occasion and not regularly. He denied that he had ever rubbed cannabis on Mr Klobucar’s testicles or threatened to do so.
Tendency to have an obsession about paedophiles
The oral evidence before me given by Marie Solvy Le Clair, Mr Klobucar’s mother, in elaboration of Incident 3, was that his behaviour started to change in about November 2013 and he seemed to become very suspicious of males who were older than him. He constantly accused people in her family of being paedophiles. At about that time, he told his mother that he was working on a case with police, investigating an underground paedophile ring which was headed by a politician. He, also, in Ms Le Clair’s presence, told his aunt and her husband and daughter that he was working undercover with the police and, on one occasion, made reference to his “close association with police”.
As a result, Ms Le Clair informed police that Mr Klobucar had become extremely aggressive towards older male figures. He identified her partner, Mr Mesaric, as being a paedophile and described his behaviour as being “scary”; Ms Le Clair was concerned that he may hurt someone.
On 31 December 2013, he sent a text message to his mother saying, “your boyfrend/frend [sic] is a pedofile [sic] that I would sware [sic] in court with honest truth that I sware [sic] on any badge number of police pedofile [sic]” and, “you are both underinvestigation [sic] for supporting him and traficing [sic] and child pornography and now threating [sic] an undercover police informant of the dak pedofile [sic] investigation of the act”. The reference to “dak” is apparently a reference to a statement in which Mr Klobucar told his mother that the investigation was the “dak (Danny Andrew Klobucar) investigation”.
In a further text message to Ms Le Clair on 31 December 2013 Mr Klobucar again made reference to his association with police and, in reference to Mr Mesaric, texted:
Please dont [sic] let my sister get child molested or baby raped cause if you do I will get a afp rapist to let you no [sic] that dak warned you. But before that my nsw rapest [sic] copper mate will rape stevens [sic] mother, because he noes [sic] and hates that pedofile [sic] of ur [sic] are because he finger fuked [sic] todo [sic] and he noes [sic] that it was steven [sic].
A further text message described Mr Mesaric as a “wimpy faget [sic] poofta rapist bitch”.
There were further messages suggesting that there was “undenable [sic] proof that [Mr Mesaric] was a pedofile [sic]” and:
dnt [sic] message me again you have caught with honest truth and I sware [sic] on any badge number of the police pedofile [sic] that I would be lable [sic] as your friend, that you will organise to try haras [sic] and assault me further and that you did/tried to stop me breach my duty of care to my two sister [sic] chantel and Monique and now you are both under investigation for supporting human traficing [sic] and child pornography an [sic] now threatening an undercover police informant of the dak pedofile [sic] investigation of the act. You are to stop hiding a known pedofile [sic].
After his arrest, Mr Klobucar participated in a record of conversation with Constable Tamara Bell, during which he said:
Could you please state that I have been yet again wrongfully accused and that a paedophile who has been under the – paedophile-slash-homosexual child molestation supporter and has got his friends to make false claims about me ... as a homosexual he will be interrogated. Because he is a liar, and treason [sic] and he follows Satan.
Admission to Adult Mental Health Unit
The oral evidence elaborating on Incident 7 was that, on 2 January 2014, Mr Klobucar was taken to the Adult Mental Health Unit at the Canberra Hospital. He told reviewing medical officers that he had accidentally become involved in an underground paedophile ring and had only just become aware of it. He went on to say that he knew of many people who had been molested or raped by the group and had witnessed many of the events. He also reported that he wanted to kill gang members.
On 3 January 2014, Mr Klobucar reported that he wanted a police investigation launched in relation to people who were part of a paedophilic syndicate who used drugs to manipulate victims. He believed that he was being filmed as part of police surveillance when buying drugs from a paedophile.
On 8 January 2014, Mr Klobucar reported that he was working with police and stated, “I know that people think that I am a nut case but you have to believe me and report to police for investigation because this is real, there are evil and dangerous people out there”.
Tendency evidence
The admission of tendency evidence is regulated by ss 97 and 101 of the ACT Evidence Act. Those sections provide:
97The tendency rule
(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 unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence;
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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 presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
These sections are in relevantly identical terms to the same numbered section in the Evidence Acts of those jurisdictions which have adopted what is known as the Uniform Evidence Legislation, being based on the recommendations of the Australian Law Reform Commission. Though I will refer to particular State and Territory Acts in these reasons by their proper name I shall simply refer to the Uniform Evidence Legislation, which is intended to mean all or any of these Acts, where the issue is appropriately one of uniformity.
In R v Lam [2014] ACTSC 49 at [40], I set out in summary the principles to be applied in considering applications for leave to adduce tendency evidence. I said:
40.I summarise the effect of the relevant provisions of the Evidence Act and the consideration of them by the authorities as follows:
· Evidence that the accused had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that he had that tendency, but only if the Court thinks that that evidence will have “significant probative value”: s 97(1)(b).
· An application to the court to permit such evidence to be led should carefully articulate the tendency that the evidence is said to prove.
· In approaching an application for permission to adduce tendency evidence the court must assess the extent to which the evidence has the capacity rationally to affect the probability of the fact in issue and then to assess and predict the probative value that the jury might ascribe to the evidence.
· Accordingly, it is important to identify the use to which the proposed evidence is to be put and the issue which it addresses.
· In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn.
· It must also be assessed having regard to all the evidence in the case.
· Tendency evidence has “significant probative value” if it has more than “mere relevance”, or if it is “important” or “of consequence”, though it need not have a “substantial” degree of relevance.
· As a general rule, the greater the degree of specificity with which similarities of the evidence can be identified, the more likely is the evidence to be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind.
· Nevertheless, admissible tendency evidence is not necessarily based on similarities and there is no requirement for the relevant conduct to be distinctive.
· Tendency evidence and coincidence evidence may not be used “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101(2).
· “The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to ‘some irrational, emotional or illogical response’ or ‘giving the evidence more weight than it truly deserves’’’.
· There may be discretionary reasons for excluding or limiting the evidence such as where it is overwhelming or otherwise under ss 135, 136 or 137 of theEvidence Act.
I add that the tendency which is sought to be made out and set out in the relevant notice must be articulated in an appropriate level of generality, as explained in R vHunt [2016] ACTSC 5 at [14].
Issues have, however, arisen between the intermediate appellate courts of New South Wales and Victoria about the fifth principle I referred to in R v Lam, namely the stated assumption that the evidence will be accepted and that any inference open to the jury and favourable to the Crown will be drawn.
The tenth principle, deriving from the application of s 101(2) of the ACT Evidence Act, requires the court to exclude evidence unless its probative value substantially outweighs its prejudicial value. The fifth principle sets out the circumstances in which the probative value of the evidence is to be assessed.
That assessment is expressed in identical terms to the provision which requires certain evidence to be excluded in criminal proceedings, namely s 137 of the ACT Evidence Act. Clearly, the two provisions, especially as they are stated in relevantly identical terms, should be construed in the same way.
In R v Shamouil (2006) 66 NSWLR 228, the New South Wales Court of Criminal Appeal considered the approach a court should take to s 137 of the Evidence Act 1995 (NSW) (the NSW Evidence Act), which is in identical terms to those of s 137 of the ACT Evidence Act.
The judgment of the Court was delivered by Spigelman CJ, with whom Simpson and Adams JJ agreed.
His Honour held that the section replaced the common law discretion to exclude prejudicial evidence that had been the subject of formulation in R v Christie [1914] AC 545 generally, and helpfully, known as “the Christie discretion”.
His Honour said at 236; [49]:
Before the Evidence Act, the Christie discretion to exclude evidence at common law for which s 137 is a replacement, did not involve considerations of reliability of the evidence.
His Honour quoted from what Hunt CJ at CL, with whom Newman and Ireland JJ agreed, had said in R v Carusi (1997) 92 A Crim R 52 at 65, as follows:
It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied – on the whole of the evidence – that the jury ought nevertheless have had a reasonable doubt. [Footnotes omitted]
His Honour noted that decisions, such as R v Singh-Bal (1997) 92 A Crim R 397 at 403, after the commencement of the legislation, took the same view.
His Honour accepted that, in the words of Simpson J in R v Cook [2004] NSWCCA 52 at [43], it is not the case that
there is never any room for finding concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury.
Indeed, it was this latter point that was important for his Honour, namely the careful preservation of the fundamental relationship between the judge and jury in a criminal trial and that the test should not be used as a “basis for enlarging the powers of a trial judge at the expense of the traditional jury function”.
This has been the approach taken in New South Wales since then. It is also the approach that has been taken by Courts of Appeal in most other jurisdictions that have adopted the provision of the Uniform Evidence Legislation: Tasmania (KMJ v Tasmania (2011) 20 Tas R 425 at 436-7; [23]) and the Northern Territory (IMM v The Queen [2014] NTCCA 20 at [47]-[50]).
In this jurisdiction, it has been followed in R v Fairbairn (2011) 250 FLR 277 at 289-90; [77]-[78] and R v Johnston (2012) 6 ACTLR 297 at 310; [49].
It has not, however, been followed in Victoria, where the Victorian Court of Appeal criticised the approach of R v Shamouil in robust terms and rejected it in Dupas v The Queen (2012) 40 VR 182. There, a court of five judges, convened for the purpose, addressed the issued and unanimously held that the Victorian courts should not follow the New South Wales approach.
The Court referred to the Christie discretion and traced the history of its subsequent application at common law in both England and Australia. The exercise of the discretion as so developed, the court held at 199; [74], “rests upon the duty of the judge to ensure that every accused person has a fair trial”. This requirement, the court held at 200; [75], was “not only independent but intrinsic and inherent in our system of criminal justice”.
Their Honours concluded of the application of the Christie discretion that it did require an evaluation of the reliability and quality of the evidence and this did not involve a usurpation by the judge of the jury’s function. Thus, their Honours said at 200-1; [78]:
When the unfair prejudice was said to be a risk that the jury would attach undue weight to the impugned evidence, the trial judge was required to evaluate what weight could reasonably be assigned to that evidence, in order to assess whether there was such a risk. That called for some assessment of the reliability and quality of the evidence, matters ordinarily viewed as being separate and distinct from the credibility of the witness from whom the evidence was to be elicited. We turn first to examine the application of the discretionary rule at common law in the context of identification evidence, before briefly examining other categories of evidence.
Their Honours identified the prejudicial effect of the evidence in a number of ways at 200; [77]:
· “the jury might use the impugned evidence for an unintended and illegitimate purposes”
· “[i]n the context of identification evidence and some other categories of evidence, the unfair prejudice ... [arises] because the jury might attach undue and disproportionate weight to the intended purpose of the evidence”.
In the latter case, their Honours then pointed out, at 200-1; [78], that “the trial judge was required to evaluate what weight could reasonably be assigned to that evidence, in order to assess whether there was such a risk” and that this “called for some assessment of the reliability and quality of the evidence”. Their Honours did note, however, that this was “ordinarily viewed as being separate and distinct from the credibility of the witness from whom the evidence was to be elicited”.
Their Honours then addressed the Christie discretion in relation to identification and analysed a number of authorities, especially “the influential judgment of Hunt CJ at CL” in R v Carusi. Their Honours cited some passages from that decision and the evidence and then continued at 208; [100]:
These passages highlight the distinction between the jury’s role (of assessing the credibility of the identifying witness and deciding whether the evidence should be accepted) and the trial judge’s role (of deciding the question of admissibility of the evidence by assessing its quality and determining whether its frailties could be cured by appropriate direction). His Honour also distinguished between the trial judge’s obligation to assume that the jury will accept the witness’s evidence as credible and an appellate court’s ability, in discharge of its supervisory power, to take account of the witness’s credibility in assessing whether the jury ought to have had a reasonable doubt.
After a review of the relevant authorities, their Honours concluded as to this aspect of their decision at 211-2; [114]:
This – necessarily limited – review of the Christie discretion in the context of identification evidence demonstrates that judges routinely consider the weakness or inherent unreliability of such evidence in assessing what weight a jury might reasonably assign to that evidence. As Domican v R [(1992) 173 CLR 555] illustrates, a primary consideration which informs the exercise of the discretion is that the dangers of possible misuse by the jury of such evidence will ordinarily be able to be addressed by the giving of appropriate directions by the trial judge. Deficiencies in the evidence do not, in most circumstances, lead to exclusion, either because of the weight that could properly be given to it or because directions would remove, or reduce, the risks of prejudice or a combination of the two.
Their Honours then addressed evidence of confessions and admissions in the same context and pointed to passages in decisions such as R v Swaffield (1998) 192 CLR 159 at 189 and 192-3 and Bunning v Cross (1978) 141 CLR 54 at 64-5, 74, which it was said at 213; [122], “recognised that the Christie discretion may apply to a confessional statement where the probative value is small but the undue prejudice which it is likely to produce is substantial”. This, in itself, is no more than a re-statement of the Christie discretion, with no reference to an assessment of either the quality or the reliability of the evidence. Their Honours, however, did refer to statements in Jackson v The Queen (1962) 108 CLR 591 at 596 and the Australian Law Reform Commission, Evidence, Interim Report No 26 (1985); App C, Ch 8 [143] to the effect that reliability goes to weight.
Their Honours referred also to accomplice evidence and expert evidence in similar terms. The latter is not insignificant, for their Honours pointed to the problems that had been identified in that area by commentators remarking about the application of the approach approved in R v Shamouil, stating at 210; [131]-[132]:
131.The approach required by Shamouil has attracted particular criticism in the area of the exclusion of expert opinion. Thus it has been noted by commentators that, in cases such as Nguyen165 and Korgbara,166 no substantial references were made to the mandatory and exclusionary discretions in the Evidence Act. These omissions were said to be revealing because:167
... expert comparison evidence and cross-lingual voice comparisons were expected to be undertaken by lay jurors where the probative value of the evidence was unknown, the risk of error high and the dangers associated with a range of biases and exaggerated confidence, significant and unlikely to be conveyed to the jury. Yet exclusionary powers designed to protect the accused from the danger of unfair prejudice lay idle.
132.Academic writers have argued strongly that, as a consequence of Shamouil, exclusionary discretions have been ‘emasculated’ in the area of expert evidence.168
165. Nguyen v R (2002) 131 A Crim R 341.
166. Korgbara v R (2007) 71 NSWLR 187.
167.Edmond, Martire and San Roque, “Mere Guesswork: Cross-Lingual Voice Comparisons and the Jury” (2011) 33(3) Sydney Law Review 395, p 420; Smith and Odgers, “Determining Probative Value for the Purposes of s 137 in the Uniform Evidence Law” (2010) 34 Crim Law J 292.
168.Edmond, “Specialised Knowledge, the Exclusionary Discretions and Reliability: Reassessing Incriminating Expert Opinion Evidence”, (2008) 31(1) UNSWLJ 1, pp 29-36, referring particularly to R v Tang (2006) 65 NSWLR 681; R v Jung [2006] NSWSC 658.
Their Honours then turned to propensity, similar fact, tendency and coincidence evidence and noted that the Christie discretion had been applied to the first two categories of evidence, being common law categories, and, in Victoria, to an earlier statutory replacement of the common law as to similar fact evidence, which predated Victoria adopting the Uniform Evidence Legislation. Again, their Honours identified authorities which had applied the Christie discretion to such evidence.
Their Honours also noted at 218; [139], that the Australian Law Reform Commission “maintained the view that the court can and should consider the reliability of the evidence concerned in applying those discretions to hearsay evidence”.
Their Honours also considered the language of the Evidence Act 2008 (Vic) (the Vic Evidence Act), which is, of course, consistent (and mostly identical) with the Uniform Evidence Legislation. I do not need to summarise the Court’s findings other than to set out the conclusions at 230; [183]-[184]:
183.The Christie discretion is so strongly entrenched as part of the administration of criminal justice, and the right of an accused person to invoke the discretion is so fundamental, that (as Peek J was to observe in R v S, DD [(2010) 109 SASR 46 at 74-95, [117]] any statutory abrogation of the right would have to be in the most express and clear terms. Section 137 uses the language of the common law test, and the definition of ‘probative value’ strongly supports the conclusion that the legislature intended that trial judges should continue to approach the exclusion of admissible evidence by evaluating the weight that the jury could reasonably assign to the evidence.
184.We proceed upon the view that, like s 55, the definition of ‘probative value’ (although not containing the words ‘if accepted’) involves the assumption which was made at common law by the trial judge that the jury would accept the evidence as ‘truthful’. Nothing in the language or context of the statute or in the underlying policy suggests, however, that the assumption was to extend beyond truthfulness to reliability. When it is said that the trial judge must assess the capacity of the evidence to rationally affect the probabilities as to the existence of a fact in issue, the boundaries of the evaluative task must be understood. The statutory task under s 137 of balancing probative value against unfair prejudice continues to be informed by the common law. Parliament did not intend to diminish the power of the trial judge in discharging that task.
Their Honours proceeded then to consider the reasoning in R v Shamouil. The first criticism was, at 230; [185], that “it proceeded on a mistaken view of the traditional rule of the trial judge at common law”. This, their Honours considered, was because the case concentrated on “what the trial judge may not do” instead of confirming “the judge’s function to assess what weight the jury may reasonably attach to the evidence” (at 230; [186]). This, their Honour’s considered, was the force of “could” in the definition of “probative value” (Dictionary to the Vic 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.
(Emphasis added)
Their Honours, at 231; [187], rejected the contention of Spigelman CJ that:
to permit a trial judge to exclude evidence on the grounds of reliability would be the equivalent of a trial judge directing an acquittal on the grounds that the evidence was unsafe and unsatisfactory.
It is, of course, not the task of a trial judge to do that. That was expressly decided in Doney v The Queen (1990) 171 CLR 207 at 215.
Their Honours, however, disagreed with Spigelman CJ, who had held (R v Shamouil at 238; [64]) that the decision in Doney v The Queen supported the conclusion that, were a trial judge to take the weight of evidence into account when applying s 137 of the NSW Evidence Act, it would enlarge the common law powers of the judge. Their Honours cited a lengthy passage from Doney v The Queen, drawing at 233; [190], from certain of the paragraphs the conclusion that the decision recognised that:
there will be cases where the “tenuous character” or “inherent weakness or vagueness” of the evidence may raise issues, apart from truthfulness, which so weaken the probative value of the evidence in question that it may be excluded or can be withdrawn from the jury’s consideration.
The question of truthfulness of the evidence, however, was always a matter only for the jury.
Their Honours analysed a number of the authorities referred to in R v Shamouil but I do not need to summarise that analysis as, indeed, I do not need to summarise the analysis of their Honours of the authorities of the Victorian Court of Appeal also undertaken by their Honours.
Their Honours concluded at 242; [226] that R v Shamouil was “contrary to a long line of established authority and to considered dicta of the High Court concerning the common law” (footnote omitted). It was also the fact that this “conclusion does not give effect to the plain language of the statute, the context or the extrinsic material” and that this led their Honours to find “the legislative intention that trial judges should continue to have the power to exclude admissible evidence in order to minimise the risk of wrongful conviction”.
I pause to note that the final finding needs to be read carefully, for the Christie discretion is just that, a discretion, whereas s 137 of the Uniform Evidence Legislation is a mandatory requirement; there is no discretion involved. Insofar as their Honour’s articulation of the finding implies that, especially by the use of the phrase “trial judges should continue to have the power” (emphasis added) as a continuity of discretion, it is not to be accepted.
Their Honours summarised their findings at 196; [63], as follows:
For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed. We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis.[9] Our conclusions are as follows:
(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.
(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.
(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase “taken at its highest” is more appropriately used in considering a no-case submission, when the judge must accept that the jury may find the evidence credible and reliable.
(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.
(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.
(f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function.
Subsequently, the New South Wales Court of Criminal Appeal convened a bench of five judges to consider the matter, because of the rejection of R v Shamouil in Dupas v The Queen. In that decision, R v XY (2013) 84 NSWLR 363, the court rejected the criticism by the Victorian Court of Appeal of R v Shamouil and affirmed that New South Wales courts should follow it.
In one of those curious circumstances available in multi-judge courts, the reasoning of the court as to the construction of s 137 of the NSW Evidence Act is set out in the reasons of Basten JA, Hoeben CJ at CL and Simpson J, but the order of the court was made by Hoeben CJ at CL, Blanch and Price JJ, with Basten JA and Simpson J dissenting.
The analysis of the decision is also hampered by the fact that each of the judges delivered separate reasons although, with one exception (ultimately important to the outcome), Hoeben CJ at CL agreed with the reasons of Basten JA and Simpson J.
Basten JA, in respect of the issue of the application of s 137 of the NSW Evidence Act, pointed out at 371; [25], that the New South Wales Court of Criminal Appeal had
approached s 137 by focusing on the capacity of the evidence to support the prosecution case, rather than assessing the actual weight which the trial judge or a jury, acting reasonably, might attribute to such evidence. This approach emphasises the constitutional role of the jury as the body responsible for assessing the credibility and reliability of witnesses, for drawing appropriate inferences and for assessing the strengths and weaknesses of the evidence. This approach, which may be described as a “restrictive” or “narrow” approach by reference to the role of the judge, was authoritatively formulated in Shamouil.
His Honour then referred to Dupas v The Queen and the different approach there taken by the Victorian Court of Appeal. His Honour then referred to the question of how such differences should be approached, a matter which I do not need to consider.
His Honour then made a number of points about what R v Shamouil decided at 375-6; [42]-[46]:
1. Under s 137 of the NSW Evidence Act, the court is required to balance two qualities of evidence: probative value and unfair prejudice. It is not required to do so by reference to other aspects of the prosecution case.
2. The restrictive approach is concerned with reliability and credibility and does not deny that an assessment must be made of the probative value of the evidence as that phrase is defined in the Act. The assessment is directed to the capability the evidence has rationally to affect the assessment of the probability that a fact in issue exists. The weight given by the jury to the evidence is not an exercise to be carried out by the trial judge.
3. Adoption of the restrictive approach does not exclude all consideration of credibility and reliability because the trial judge must initially assess whether it is open to the jury acting reasonably to use the evidence for the purpose of assessing the existence of a fact. Thereafter, the evaluative judgment is not a forecast of the weight a jury is likely to give to the evidence, nor of the weight the judge would give it, especially as it is being given in isolation from the rest of the evidence in the case.
4. The reasoning in R v Shamouil should not be taken from its factual context which was a matter of identification of the offender and a retracting of the identification. That evidence would need to be evaluated by the jury having regard to issues of reliability and credibility. In that context, Spigelman CJ concentrated on what was open for the jury to decide rather than what the jury was likely to decide.
5. The court must evaluate the evidence, taking it at its highest, for the purpose of the “weighing” exercise required by the section. This would require the trial judge “to consider where the prosecution evidence fell on the scale of probative value ranging from strong to weak”. The unreliability of the evidence is a factor to be weighed on the other side of that scale, together with the likely effectiveness of warnings about said unreliability. This reliability was a factor, at least in some cases.
Basten JA then set out the passage from Dupas v The Queen I have mentioned above (at [84]) and suggested that the point of departure was in (c). If that was, however, “an introduction to the exercise identified in (d)”, his Honour considered there may not be a significant difference between the two decisions, as (d) addresses the “weight” which a jury “could” (not “would” or “will”) give the evidence a position consistent with the principles in R v Shamouil.
His Honour referred to an earlier Victorian decision, R v Dupas (No 3) (2009) 28 VR 380, also a case about identification evidence, which gave significant support to the analysis accepted in R v Shamouil. The failure of the more recent decision to refer to this decision was “curious”. His Honour also referred to another issue in Dupas v The Queen with which his Honour disagreed, namely the relationship between the common law Christie discretion and s 137 of the Uniform Evidence Legislation, where the Victorian Court of Appeal had concluded that there was no legislative intention in s 137 to abrogate the common law. As his Honour pointed out, that was “curious” as the statute had at least converted the discretion into a mandatory exclusion in prescribed circumstances. His Honour pointed out at 380; [61], that once it was accepted that the statute had changed the common law, it was necessary to pay very careful attention to the words of the statute.
Basten JA considered that it was a mischaracterisation of R v Shamouil to suggest that it rejected as inappropriate any reference to the weight of proferred evidence; what was shown in that case was that it was for the jury to weigh and determine between competing inferences to be drawn from the evaluation of the evidence.
His Honour then summarised the basis for the application of the principles for the exercise of the decision under s 137 of the NSW Evidence Act at 381; [66]-[67], as follows:
66.The importance of Shamouil lies not in the precise language used (the judgment is not to be treated as a statute) but in the general principle it articulates. The operation of that principle may vary depending upon the circumstances of the case. In broad terms, the principle has 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.
67.This principle does not produce uniformity of approach in all cases. The ‘weighing’ exercise required if s 137 is engaged not only involves incommensurate, but elements that may interrelate in a variety of ways.
His Honour further addressed the actual decision in Dupas v The Queen and how the Victorian Court of Appeal characterised the decision of the trial judge and concluded that it had found no error, despite the trial judge adopting and applying the restricted approach. His Honour concluded at 318; [65]:
It being also doubtful as to how far Dupas (2012) departed from the principles stated in Shamouil, read in context, and because the present case raises a slightly different issue from either (not being concerned with identification evidence) there is no compelling reason to depart from the general approach accepted in Shamouil.
Simpson J commenced her analysis of what s 137 of the NSW Evidence Act required by referring to the two evaluations that must be made – of the probative value of the evidence and its potential prejudicial effect – and that this is necessarily to be done before the evidence of the trial is complete.
After a brief comparative reference to other provisions of the NSW Evidence Act requiring an assessment of the probative value of evidence, her Honour pointed out at 400; [167] that “[t]he actual probative value to be assigned to an undisclosed item of evidence lies in the province of the trier of fact”. Further, 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”.
The assessment of the probative value of evidence, her Honour continued, is necessarily “predictive and evaluative”, as to what use the jury could rationally make of the evidence.
Her Honour then considered matters relevant to the determination of credibility (the assessment of the witness who gives evidence), reliability (an analysis of other circumstances surrounding the coming into existence of the evidence) and weight (where the evidence fits in the overall prosaic of the evidence in the trial and, possibly, the evidence of one witness against another), noting, at 400; [170], that these matters are “not something that can readily be undertaken at an interlocutory stage”.
Her Honour also rejected the notion, suggestive in the reference to “some” in paragraph (d) of the principles from Dupas v The Queen extracted above (at [84]), that the exercise can be “partially undertaken”. Indeed, her Honour pointed out at 400; [171], that “[t]o embark upon a partial assessment of weight could ... be potentially productive of real injustice”.
Her Honour considered, at 401; [173], that there was nothing in s 137 of the NSW Evidence Act that suggested that “probative value, at the admission stage, is to be determined by the weight to be assigned to the evidence”.
Her Honour then suggested that the consequences of the interpretation can also be relevant, here a further pointer to preferring the principles set out in R v Shamouil to those set out in Dupas v The Queen.
Her Honour then concluded at 401; [175]:
For these reasons, in addition to those given by Spigelman CJ in Shamouil, I maintain the view that questions of credibility, reliability and weight play no part in the assessment of probative value with respect to s 137. Although it does not call for present determination, it seems to me that the same must apply in all cases where admissibility depends upon such an assessment.
Hoeben CJ at CL, agreed with Basten JA and Simpson J, subject to one matter, that, when assessing the probative value of the prosecution evidence sought to be excluded, the court should not consider its credibility, reliability or weight and specially adopted what Basten J said at 381; [66]-[67], which I have set out above (at [94]).
His Honour then expressed his reservation, at 385; [88], as follows:
Where I differ from their Honours is as follows. When assessing the probative value of the prosecution evidence sought to be excluded, that is, its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred. It was that to which the court was referring in DSJ v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [10] per Bathurst CJ; [11] per Allsop P and [78] per Whealy JA.
The reference to DSJ v The Queen (2012) 215 A Crim R 349 is to a passage in which Whealy JA set out at 366; [78], the requirements were a trial judge in performing the task – there under s 98 of the NSW Evidence Act as to the admissibility of coincidence evidence – in determining whether the evidence has significant probative value, explaining:
What is required is this: the trial judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the judge’s view, rob the evidence of its otherwise cogent capacity to prove the Crown’s case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.
Blanch J did not refer to Dupas v The Queen but pointed out at 404; [194], that in “performing the balancing exercise between unfair prejudice and probative value” the courts of New South Wales “have been guided” by R v Shamouil and made no suggestion that its principles should be modified.
His Honour appeared to agree at 406; [305] with the reservation expressed by Hoeben CJ at CL, to which I have referred above (at [58]).
Price J did not undertake an analysis of Dupas v The Queen but stated at 407; [215]:
This court’s task is to determine whether the trial judge’s rejection of the telephone calls not ‘weakens’ but ‘substantially weakens’ the prosecution case by asking whether or not that would be the effect ‘on the assumption that the jury accepted the evidence’. The prosecution case is to be considered as a whole and questions of weight are irrelevant: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [39]-[40].
The reference to R v Shamouil is to passages where Spigelman CJ pointed out, at 235; [39], that “[q]uestions of weight are for the jury” and a reference to the task under s 5F(3) of the Criminal Appeal Act 1912 (NSW) to which I do not need to refer.
His Honour, however, seem to express at 408; [223], some inferential support also for the reservation expressed by Hoeben CJ at CL. His Honour then said, at 408; [224], the following:
Whilst upon my analysis, it is unnecessary to consider the conflict in the approaches to be taken to s 137 of the Evidence Act since the decision in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, it seems to me that enabling the trial judge to consider questions of credibility, reliability or weight when s 137 is invoked is likely to enhance the fundamental principle that an accused is to receive a fair trial. Although Simpson J at [163], [170]–[171] refers to the practical difficulties that may arise by adopting such an approach, it is not uncommon for a witness to be cross-examined during a voir dire and an assessment can be made by the trial judge of the actual probative value of the evidence. More often than not, the probative value of evidence may be assessed from the witness statements without the necessity of calling witnesses.
This seems to suggest support for the approach of Dupas v The Queen though, in the light of his Honour’s earlier comment set out above (at [109]), suggests that his Honour is there not describing the existing state of the law.
My analysis does not, perhaps, accord with the views of others. For example, Simpson J, with whom RA Hulme J and Barr AJ agreed, said in R v Burton (2013) 237 A Crim R 238 at 279; [194] of the decision in R v XY:
Accordingly, by a majority (Basten JA, Hoeben CJ at CL and myself, Blanch J not expressly deciding, Price J contra) the Court decided that trial judges in NSW should continue to disregard questions of credibility, reliability and weight in dealing with the admission of evidence challenged under s 137. However, Hoeben CJ at CL and Blanch J further considered that the existence of “competing inferences” (or alternative interpretations) was relevant to the assessment of probative value.
Her Honour then referred to the issue of “competing inferences” and re-affirmed her view that it was not necessary to take these into account but to accept the inferences most favourable to the prosecution. Her Honour said at 280; [196]-[197]:
196I am unable to accept that the existence of “competing inferences” available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence.
197Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.
Since then, there has been little analysis in other jurisdictions of the differences, if any, between the principles in R v Shamouil and Dupas v The Queen.
In Tasmania, Pearce J addressed the issue in Tasmania v L (2013) 232 A Crim R 123 at 135; [43], but concluded that he was bound by the decision of the Tasmanian Court of Appeal in KMJ v Tasmania, which had followed R v Shamouil.
In R v IMM (No 2) (2013) 234 A Crim R 225 at 231; [29], Blokland J of the Northern Territory Supreme Court referred for R v Shamouil as authority for the following proposition:
Further, the enactment of s 137, as with the common law Christie discretion, does not involve considerations of the reliability of the evidence when considering its “probative value”. The evidence is to be “taken at its highest” in order to determine its probative value.
(footnotes omitted)
In this Territory, two decisions have adverted to the issue: R v Vojneski [2014] ACTSC 66 at [46] and R v Djenadija [2015] ACTSC 29 at [8]-[9]. In both cases, the court held that it was not necessary to resolve the differences between the two jurisdictions. In R v Thompson [2014] ACTSC 276 at [10], this Court held that probative value should be assessed as explained by R x XY, but without reference to the controversy.
There has been some academic discussion of the matter. Stephen Odgers SC in Uniform Evidence Law (Thomson Reuters Law Book Co: Sydney, 2014) 11th ed, discussed the matters at various points and made a preference clear. Of the divergence between the New South Wales and Victorian positions, he said at 857; [1.3.14760]
It is apparent that only the High Court will be able to resolve these conflicting views. It is to be hoped that the High Court will hold that a court required to assess the probative value of circumstantial evidence for the purposes of this provision is not required to assume that the inference(s) sought to be drawn by the prosecution will be drawn. Equally, it is to be hoped that the High Court will regard the analysis in Dupas as far more persuasive than Shamouil and hold that a court, in assessing ‘probative value’ under this Act, is required to take into account considerations that impact on the reliability of the evidence.
Similarly, in Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press: Melbourne, 2014) 2nd ed at 326-7; [16.2.1], the learned authors said of the inter-jurisdictional disagreement:
Although the matter will ultimately have to be settled by the High Court, in the authors’ view, the decision in Dupas is to be preferred. This is not because it is more consistent with the pre-existing common law, but because – in the authors’ view – Dupas is more consistent with both the wording of section 137 and the statutory definition of ‘probative value’. The approach in Dupas also means that the discretion provides a more effective safeguard against the admission of unfairly prejudicial evidence.
In an article by Andrew Hemming, “Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation”, (2014) 42 Federal Law Review 539, the learned author argues in favour of the Victorian position.
The learned author concludes, at pp 557-8:
This article has sought to argue that the expansive interpretation of the meaning of ‘probative value’ in s 137 of the uniform evidence legislation, as articulated by the Victorian Court of Appeal in Dupas v The Queen is the correct approach. The argument made is that, with respect, the restrictive position of the Supreme Court of New South Wales is untenable because isolating reliability and credibility from an assessment of probative value is both artificial and self-defeating. There is no support in the history of the Christie discretion in England or Australia for the three step process identified in R v XY. This three step process fundamentally misconceives the nature of the ‘incommensurables’ of probative value and prejudicial effect and how these two factors are interwoven. The ‘proof versus prejudice’ calculation is a subjective value judgment exercised by the judge, and the attempt to artificially minimise judicial incursion into the jury’s fact finding domain is ill conceived. The Victorian Court of Appeal, with respect, was correct in holding ‘that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed’. Only time will tell as to whether the High Court endorses this statement as a correct expression of the law.
It is not appropriate to analyse this helpful article in detail, but some points made by the learned author may be of use. While not suggesting that this gives a fair picture of the careful argument he made, the following points are ones I found of assistance in following the argument mounted:
1. Both sides of the argument rely on High Court authority to determine the meaning of “probative value” in s 137 of the Evidence Act, particularly dicta of McHugh J in Papakosmos v The Queen (1999) 196 CLR 297 at 323, which required the assessment of probative value necessarily to include considerations of reliability, and of Gaudron J in Adam v The Queen (2001) 207 CLR 96 at 115; [60], which required the assessment to proceed on the basis that it must be assumed that the evidence will be accepted. These dicta are, however, inconclusive, qualified and open to different interpretation, though that of Gaudron J is “more problematic” because the Christie discretion does not contain any qualification or assumption that the evidence will be accepted.
2. The nucleus of the Christie discretion is a risk analysis: the more contentious and potentially misleading the evidence sought to be adduced the greater the risk of the jury misusing the evidence, which makes the task more complex, especially as the trial judge must determine more than the low/high ratio of probative value to prejudicial effect, but also for some evidence, such as identification evidence which will have objectively low probative value, but subjectively, if believed and given disproportionate weight by the jury, be decisive, whether directions are adequate to deal with the risk.
3. The learned author considered that there was no common law support for any of the propositions said to underpin the restrictive position taken by R v Shamouil.
4. The approach, adopted by Hulme J in dissent in R v Rahme [2004] NSWCCA 233, is the better view which requires the court to exercise a broad general judicial discretion, subjective in nature, recognising that the two “uncommensurables” of probative value and prejudicial effect are interwoven and attempts to isolate them are doomed to failure because the exercise is one of a value judgement, albeit an informed value judgement. It must be noted at this point, however, that the exercise under s 137 of the Evidence Act is not a discretionary one. Once the trial judge forms the relevant view, the evidence must be excluded. The learned author does not address this point on the implications that may flow from it.
Finally, J D Heydon in Cross on Evidence (Butterworths: Sydney, 1996) looseleaf Service No 181, takes a different view and considers at 1375; [2005] that the Victorian position is unsatisfactory “for several reasons”. These may be summarised as follows:
1. The common law did not require the trial judge to evaluate the weight of the evidence that the jury would attach to it, suggesting that the statements relied upon in Dupas v The Queen are to statements which are
... all obscure as to whether they are talking about probative value alleged by the prosecution, the probative value which a jury might ascribe to the evidence, the probative value which it can be predicted that a jury might ascribe to the evidence, or the probative value perceived by the judge.
2. The Victorian view rests on the position that s 137 of the Vic Evidence Act reflects the common law, as contended by the Australian Law Reform Commission; that, it is suggested, is incorrect. In the first place, s 137 does not give the court a discretion, an outcome not recommended by the Commission; its draft bills recommended a discretion only. The issues that might affect the reliability of the evidence are not necessarily excluded by the New South Wales approach for they may indicate that the evidence has little probative value. Further, the Victorian approach accepts the assumption of truthfulness which was a matter that the Commission did not, however, exclude from the surrounding circumstances.
3. The Victorian position is complex and not wholly workable. The position requires the judge, in undertaking the balancing exercise, to assume that the jury will accept the evidence as truthful but not necessarily reliable. No part of the Evidence Act, however, distinguishes between these two concepts which are not easy to apply in practice: the cause of questionable evidence may be difficult to identify, especially in a pre-trial application where the trial judge does not have the benefit of all the evidence.
4. The Victorian position does not address the textual considerations relied on in R v Shamouil, especially as to the effect of “could” in the definition of probative value, and the inevitable increase in the dependence of the trial judge or the voir dire to assess reliability as referred to by Simpson J in R v XY.
The learned author concludes at 1377-8; [2005]:
However, the real difficulty in the stance taken by the critics of the New South Wales position, and in the stance taken in the Victorian Court of Appeal, is that an acid question has not been faced and dealt with. That question is: how can reliability and credibility – including through the demeanour of witnesses both in chief and under cross-examination – be assessed at the moment of tender, save by a thorough voir dire? And if thorough voir dires became a standard practice in relation not only to s 137, but to ss 135, 97, 98, 101 and 138(3)(a), all of which speak of ‘probative value’, how could they be prevented from swamping the main trial process? Will there not arise a system in which most controversial issues are dealt with first by having a voir dire and then, if the tender succeeds, by calling the evidence afresh before the jury? What impact would so cumbersome a development in criminal procedure – wasteful of time, irritating to jurors whom it renders idle, destructive of trial rhythm – have on the survival of trial by jury itself?
(footnotes omitted)
This has some significant resonance in this case, for the voir dire here took two days hearing only a few witnesses, but did not adduce evidence that may have been given by other witnesses who will be called and which may be relevant to the determination of the reliability of the evidence I heard, though I did have, as noted above (at [7]), a large number of written statements. Those took more than a day to read with relevant care.
The question for me, of course, is which approach should I adopt.
I accept that the approach of the court in R v Shamouil, reinforced by the majority in R v XY and by the court in R v Burton, has not attracted uniform support in New South Wales; it has been at least questioned by Hulme J in R v Rahme and Price J in R x XY.
By the same token, Dupas v The Queen does not seem to be consistent with the earlier Victorian decision of R v Dupas.
I have carefully considered the three principal authorities, R v Shamouil, Dupas v The Queen and R v XY and I am not convinced that the New South Wales decisions are wrong.
Indeed, I have some concerns about Dupas v The Queen, though I cannot say I consider it manifestly wrong. It does not seem to me that it addresses adequately or at all the fact that there is a significant distinction between the Christie discretion and s 137 of the ACT Evidence Act in that the latter is not a discretion at all, but a mandatory exclusion. It also does not seem to me to address the textual issue of how to construe “could” in the definition of “probative value”.
I am concerned about the practical consequence of how a trial judge can properly assess matters of credibility, reliability and weight which will usually then require a voir dire of some extensiveness and, even in an extensive voir dire, the other evidence in the trial will not have been adduced.
I accept the assessment of Basten JA that the difference between the two positions is not as great as sometimes it has been made out to be and that, in particular, some elements of reliability and weight, and, perhaps (contrary to the Victorian position) even credibility can be relevant in determining what probative value the evidence has.
I am also particularly mindful that three jurisdictions, New South Wales, Tasmania and the Northern Territory, currently apply the principles in R v Shamouil.
Accordingly, as a single judge in a jurisdiction where the Court of Appeal has not decided the issue, I consider that I should continue to follow R v Shamouil as other decisions in this Court have done until either the Court of Appeal or, preferably, the High Court, decides otherwise.
These are the principles I shall apply.
Consideration of the Application to Adduce Tendency Evidence
As required, the Crown identified the tendencies which it said the incident proved and which, it was submitted, would assist to prove facts in issue in relation to the charge of murder which had been preferred against Mr Klobucar. These tendencies were:
1. To have a particular state of mind, namely to have an obsession about paedophiles.
2. To have a particular state of mind, namely to perceive certain males who are older than the accused as paedophiles.
3. To act in a particular way namely to be violent and aggressive towards people the accused perceives to be paedophiles.
In order to assess the relevance of these tendencies, it is necessary to identify the fact or facts in issue in the trial and then to consider if the evidence sought to be led is relevant to those facts, relevance, defined in s 55 of the ACT Evidence Act, being tested to determine whether the evidence “could rationally affect (directly or indirectly) the assessment of the probability of the existence of fact in issue”.
In this case, the fact in issue is: who applied excessive blunt force trauma to Mr Gagic causing death? The Crown says that the evidence of the post-mortem examination and the nature of the injuries rules out suicide. The question then is whether Mr Klobucar caused the injuries or whether an unknown person or persons entered Mr Gagic’s home between 10.40am and 11.23am on 1 January 2014 and applied blunt force trauma. Relevantly, there was no sign of forced entry to the unit.
Thus, a central fact in issue in the proceedings is whether the conduct was engaged in by Mr Klobucar or by another person. The Crown asserts that it is relevant to the consideration of that fact that Mr Klobucar had an obsession about paedophiles, a tendency to identify older men as being paedophiles and, once identified, being violent and aggressive towards them.
The Crown submitted that the seven incidents, which were close in time to the deceased’s death, showed that Mr Klobucar clearly had an obsession with paedophiles, had a history of identifying older men as being paedophiles and, once identified, had been violent and aggressive towards them. It is submitted that his preoccupation with “paedophilia” was manifested in the creation of a persona.
I have considered each incident carefully, both as summarised by the Crown and with the benefit of the oral evidence.
I am satisfied that the proposed tendencies are of an appropriate level of generality to meet the requirements of such an application.
If accepted by the jury, they would show a pattern of behaviour and thought, as expressed by Mr Klobucar, that could be fairly regarded as an obsession about paedophiles, as claimed as the first tendency.
I am satisfied that each of the seven incidents is capable of showing a tendency of Mr Klobucar to have an obsession with paedophiles, being the first tendency. I am also satisfied that this evidence is relevant to a fact in issue in the proceedings. Accordingly, these incidents may be adduced.
I was concerned as to whether the incidents were probative of the claimed second tendency; that Mr Klobucar perceived males older than him as paedophiles. The evidence of Incidents 1, 2, 3 and 4, clearly involved older males. It appears that Incident 5 also involved an older male, as Mr Stephen Kitanovic was said to have been a friend of Mr Klobucar’s father. I expect that evidence of age, if the incident is adduced at the trial, should be clearer. These Incidents do show, if proved, more than a general obsession and together show the obsession with older men. Thus, they can be adduced as evidence of the tendency proposed.
Incident 6 is problematic as the allegation of police being paedophiles was not age specific. Many police, I can accept, are older than Mr Klobucar, but by no means all. I had no evidence of the age of the patient to whom Mr Klobucar spoke in Incident 7.
As to Incident 6, if, as seems likely, the Duty Sergeant is older than Mr Klobucar, then the Incident can be adduced as facts from which the jury could find the tendency, but the necessary jury direction must point out that the statement about other police was entirely general and not age specific and that the other police must be also considered. I have carefully considered whether this should restrict the use of the evidence, but, on balance, have come to the view that it should not.
If evidence of the age of the patient referred to in Incident 7 is adduced and shows that he is older than Mr Klobucar, then that evidence can be adduced as evidence of the relevant tendency, it can also be adduced to show this tendency.
Not each incident, if proved to the jury’s satisfaction, shows Mr Klobucar acting in an aggressive and violent manner towards those he considers to be paedophiles, as claimed to be the third tendency. Those that do are Incident 1, 3, 6 and 7. Incident 5 is more problematic, for the aggression was directed to the property of the people he was visiting, one of whom he suspected of being a paedophile. On the other hand, the incident does show some violent and aggressive behaviour. I will admit it as evidence of this tendency but it will require careful directions to the jury.
Incident 4 does not show any violent or aggressive tendency on the part of Mr Klobucar. The only relevance to violence is that Mr Le Clair himself made a mental connection between Mr Klobucar’s statements and what Mr Klobucar had told him about Incident 1. There are some problems with that, as the evidence showed. That is, therefore, not a separate occasion of acts of Mr Klobucar which show the posited tendency. Accordingly, I shall not permit it to be adduced for this purpose of proving this tendency.
I will order accordingly.
Coincidence evidence
The Crown also submits that Incident 1, which is also referred to in relevantly similar terms, is admissible as coincidence evidence in relation to the facts of the offence charged. Coincidence evidence is regulated under s 98 of the ACT Evidence Act which provides:
98The coincidence rule
(1) Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1)(a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict coincidence evidence presented by another party.
It is also regulated by s 101 which is set out above (at [47]).
Accordingly, Incident 1 is sought to be led by the Crown as evidence showing that Mr Klobucar, who is said to have seriously assaulted Mr McKean, committed the offence with which he is charged because the alleged similarities of the two incidents, Incident 1 and the offence charged, make it improbable that the events occurred coincidentally.
In R v Gale (2012) 217 A Crim R 487 at 495-6; [30]-[31], the NSW Court of Criminal Appeal set out some principles about coincidence evidence, as follows:
[30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:
· that there is evidence capable of establishing the occurrence of two or more events; and
· that there is evidence capable of establishing similarities in the two or more events; or
· that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
· that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
[31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
· the first step is to identify the “particular act of a person” or the “particular state of mind of a person” that the party tendering the evidence seeks to prove;
· the second step is to identify the “two or more events” from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the “particular act” or had the “particular state of mind”;
· the third step is to identify the “similarities in the events” and/or the “similarities in the circumstances in which the events occurred” by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
· the fourth step is to determine whether “reasonable notice” has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
· the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, “have significant probative value”;
· in a criminal proceeding, if it is determined that the evidence would have “significant probative value”, the sixth step is the determination whether the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 101(2)).
· the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN[2005] NSWCCA 413, and a balancing of the two.
This assessment is, of course, to be made by the trial judge; it is not to be left to the jury: R v Zhang (2005) 158 A Crim R 504 at 537; [40].
Step 5 as set out in the quotation from R v Gale above (at [156]), may need to be expanded. Simpson J, with whom Buddin J agreed, pointed out in R v Zhang at 537; [140]:
It is necessary to determine whether the two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar.
Further, the court held in R v Watkins (2005) 153 A Crim R 434 at 442; [41]:
A consideration of whether events are substantially and relevantly similar requires an examination not only of the ways in which they are alike but of the ways in which they are unalike, at least where differences are pointed to by counsel, as they were here.
The Notice itself did not set out the acts or particular states of mind alleged to be proved but I was informed that the particular states of mind sought to be proved by the Crown were as follows:
(a) that when Mr Klobucar applied the force to Mr Gagic’s head, he acted voluntarily;
(b) that he did so either intending to cause his death or was recklessly indifferent to the probability of causing his death or intending to cause him serious harm;
(c) at the time he was not acting in self-defence; and
(d) he knew the nature and quality of the conduct, knew the conduct was wrong and could control the conduct.
Consideration of the Coincidence Evidence
The improbability that is asserted by the Crown is that, if it is shown that Mr Klobucar struck Francis McKean in the manner and circumstances described, it makes it improbable that the striking of Mr Gagic in the manner and circumstances described was not committed by Mr Klobucar and the similarities were coincidental. This is not quite what the Notice asserts, however, for it refers only to states of mind.
The similarities on which the Crown relied were, in each case, the victim:
1. was a single male;
2. was older than the respondent;
3. was known to the respondent;
4. was attacked inside his home;
5. was attacked during the day;
6. was struck repeatedly on the head;
7. had a picture or pictures of young children in the unit;
8. possessed or sold, according to Mr Klobucar, cannabis.
The Crown asserts that the probative value of the evidence was that it “highlights the improbability of someone other than the respondent having struck the deceased in the manner and circumstances in which he was killed” and “the ability and willingness of the respondent to engage in such violent behaviour”. The former seems to be an act, not the states of mind referred to above (at [161]). The latter seems to me to be tendency rather than coincidence evidence. There is, perhaps, significant overlap between the two, especially where a state of mind is in issue.
The Crown also submits that the evidence is not of the nature to provoke in the jury an irrational reaction such as to misuse the evidence nor to punish Mr Klobucar. Such a reaction, it submits, is more likely where a more serious offence is led as coincidence evidence to support a less serious offence. In any event, the Crown submits that clear directions to the jury as to the nature and extent of use of coincidence evidence will ensure a fair trial.
I am not satisfied that the evidence shows such similarities that it should be adduced as coincidence evidence. It is important, however, also to consider the differences. These included:
1. Mr Klobucar knew Mr McKean but had met Mr Gagic only once before and that was the previous day.
2. Mr Klobucar had been to Mr McKean’s flat many times but had only been to Mr Gagic’s unit the previous day.
3. Mr McKean had a good (uncle/nephew) and affable relationship with Mr Klobucar but no prior relationship with Mr Gagic.
4. Mr Klobucar is not alleged to have taken any items from Mr McKean’s flat while he is alleged to have taken Mr Gagic’s LG mobile phone from his unit.
5. Mr Klobucar said that he thought Mr Gagic may have a DVD in relation to him from his past but made no such suggestion about Mr McKean.
6. Assuming it was a reference to Mr McKean, Mr Klobucar’s complaint was that Mr McKean ‘rubbed weed on his balls before giving it to [him]”, whereas Mr Klobucar had referred to Mr Gagic as “a paedophile selling drugs”.
7. Mr Klobucar must have seen the picture of the young Asian girl in Mr McKean’s flat many times without any adverse effect as it was prominently displayed on the wall in the living room, whereas he had only seen Mr Gagic’s pictures once.
The similarities are of some generality, such as that the victim of each assault was a single male, was attacked inside his home during the day, which do not seem, to me, to bespeak of a relevant similarity, even with the other matters, that reaches the required threshold.
I am, further, not satisfied that the states of mind sought to be proved can be found in Incident 1. Notwithstanding Mr Klobucar’s later statement, which is assumed to be a reference to the attack on Mr McKean, Mr McKean’s evidence was different in significant aspects.
That raises real issues about the state of mind of Mr Klobucar at the time he was in Mr McKean’s apartment and the mental state of Mr Klobucar which may well not have been voluntary or intentional in the legal sense, given his situation. This suggests that the asserted states of mind would not be proved in any event.
I am also not satisfied that, even were Mr Klobucar not acting in self-defence when he attacked Mr McKean, any attack on Mr Gagic, were it to be by Mr Klobucar, could be reasoned not to have been in self-defence.
Accordingly, I am not satisfied that Incident 1 can be led as evidence of the states of mind asserted.
Conclusion
I shall make orders in accordance with these reasons.
| I certify that the preceding one hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 19 February 2016 |