R v Roberts
[2017] ACTSC 75
•28 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Roberts |
Citation: | [2017] ACTSC 75 |
Hearing Date: | 28 February 2017 |
DecisionDate: | 28 February 2017 |
Before: | Murrell CJ |
Decision: | The prosecution is permitted to adduce the tendency evidence. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency evidence – where accused alleged to have admitted to a tendency related to knife possession and use – whether evidence of the asserted tendency can be led – questions to be considered in tendency application – unfair prejudice in judge alone trial |
Legislation Cited: | Criminal Code 2002 (ACT) ss 310 Crimes Act 1900 (ACT) ss 31, 45A, 381(1) Evidence Act 2011 (ACT) ss 97(1) |
Cases Cited: | R v Kisun (Unreported, Supreme Court of the ACT, Murrell CJ, 10 August 2016) Vojneski v The Queen [2016] ACTCA 57 |
Parties: | The Queen (Crown) Cedric Roberts (Accused) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr A Doig (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Lawyers & Solicitors (Accused) | |
File Numbers: | SCC 195 of 2016; SCC 196 of 2016; SCC 270 of 2016; SCC 12 of 2017; SCC 13 of 2017 |
MURRELL CJ:
The tendency application
The accused is charged that, on 26 April 2016 at Canberra, he committed three offences:
(a)Aggravated robbery (the accused had an offensive weapon and was in the company of Sione Tuifua), contrary to s 310 of the Criminal Code 2002 (ACT);
(b)Intentionally wounding Matthew Brown, contrary to ss 21 and 45A of the Crimes Act 1900 (ACT) (Crimes Act); and
(c)Possessing an offensive weapon, contrary to s 381(1) of the Crimes Act (a transferred charge).
The co-accused is charged with aggravated robbery, common assault, and possessing an offensive weapon.
Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (Evidence Act), the prosecution applies to adduce evidence of an admission that is said to establish a relevant tendency. The application relates only to the accused; it does not relate to the co-accused. The trials of the accused and co-accused are listed to proceed together on 10 April 2017 before a judge sitting alone.
The prosecution case
At the trial, the prosecution will allege that, on 26 April 2016, the accused and co-accused attended the residence of Mr Brown (the complainant). Both were known to the complainant and he allowed them into the living room. They demanded drugs. The complainant told them that he did not have any drugs. The co-accused punched the complainant in the head. The accused and co-accused continued to demand drugs and cash, but the complainant did not accede to their demands.
The accused lunged forward and stabbed the complainant in his left leg with an unknown object that did not pierce the complainant’s clothing. The accused then produced a knife and held it towards the complainant, striking him in the left side of the head and piercing the skin near the left ear. The co-accused picked up a hockey stick and threatened to strike the complainant. The complainant then relinquished $450 in cash and a small amount of cannabis.
When police attended the premises, they located a knife on the kitchen floor. It did not belong to the complainant. There is no forensic evidence linking the knife to the accused.
Police searched the accused on 30 April 2016 and found $450 cash in his possession.
The tendency incident
On 30 April 2016, police approached the accused, who ran from them. When asked why, the accused stated “[c]ause I’ve got a knife”. When asked about the location of the knife, he replied “inside on the floor”. Inside the premises, police located a large black military style combat knife inside a sheath with a thigh strap. When asked why he had a knife in his possession, the accused said: “[f]or protection. I roll drug dealers for cash”. The accused then went on to explain why he had run from the police.
Evidence of this admission would be adduced through a Constable Fergusson.
The accused denies that he made the alleged admission.
Asserted tendencies
The prosecution seeks to rely on the admission to show that the accused tended:
(a)To carry a knife and use it against people whom he perceived to be drug dealers; and
(b)To intentionally carry a knife and use it against people whom he perceived to be drug dealers.
The defence submitted that, even if it was accepted, the admission is unclear in that the connection between the statements “[f]or protection” and “I roll drug dealers for cash”, if any, is unclear. The defence submitted that the accused may have been saying that:
(a)He kept a knife on him for protection; and
(b)he rolled drug dealers for cash,
without necessarily asserting a connection between the two.
On the other hand, as the prosecutor submitted, the two statements were made consecutively and in response to a question about why the accused had a knife in his possession. The prosecutor submitted that these factors strongly suggested that the accused intended to convey a connection between possession of the knife for protection and rolling drug dealers for cash.
Consideration
Tendency evidence is not direct evidence. It is circumstantial evidence. It is evidence that may support an inference that an accused had a behavioural or mental tendency at the time of an offence and that circumstance, the existence of the tendency, may support a finding of guilt: Vojneski v The Queen [2016] ACTCA 57 at [79] (Vojneski).
In R v Kisun [2016] ACTSC 212 at [41] I summarised the questions to be considered on a tendency application:
(a)Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
(b)Are the tendency incidents (individually or in combination) capable of establishing the asserted tendency?
(c)What is the relevant “fact in issue” in the proceedings?
(d)If the [fact finder] accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
(e)Does the tendency evidence have significant probative value; could it be influential in the context of fact-finding/important or of consequence in proving or disproving the existence of the fact in issue?
(f)What unfair prejudice attaches to the tendency evidence?
(g)Does the probative value of the tendency evidence substantially outweigh any prejudicial effect, taking into account the impact of jury directions?
I will turn to consider these questions in order.
(a) Has the prosecution identified a tendency to think or act in a particular way (a distinctive tendency)?
It is necessary for the prosecution to identify a tendency that is distinctive, as opposed to a tendency held by the population at large or a significant proportion thereof. In this case, the prosecution nominated a tendency which is distinctive; that is, a behavioural tendency to carry a knife and use it against people whom the accused perceived to be drug dealers. The prosecution identified an associated intention to do so as a mental tendency.
(b) Are the incidents (individually or in combination) capable of establishing the asserted tendency?
This question does not really arise in the present case. Rather the question in the present case is: what is the tendency to which the accused allegedly admitted in the on 30 April 2016? This is not a case where tendency incidents are advanced and the court is asked to infer from those tendency incidents as a group a behavioural or mental tendency. Rather, it is a case where the accused is asserted to have admitted to a tendency. This is an important distinction because it jumps a step of the process. There is no need to infer a tendency; if the statement was made and depending on how the statement was construed, it may be an admission of tendency.
The prosecution says that the statement should be construed as an admission that, as at 30 April 2016 (and, inferentially, in the immediately preceding period including 26 April 2016), the accused tended to carry a knife for protection in relation to rolling drug dealers for cash.
If it is accepted that the statement was made, then it is capable of establishing the asserted tendency. It is true, as the accused has submitted, that the words are not entirely clear. There may be other interpretations that establish different tendencies or no tendency at all. However, that is not the question on the tendency application. The question is whether the admission is capable of establishing the asserted tendency, and in my view it is.
(c) What is the relevant “fact in issue” in the proceedings?
In this case, the accused has made no admissions. The prosecution must prove that the incident occurred as alleged by the complainant. The complainant says that the accused and co-accused attended his premises and demanded cash and drugs. When he did not provide cash and drugs, both assaulted him, and the accused produced a knife which was used against the complainant.
The facts in issue include whether these events occurred, whether the accused was one of men who assailed the complainant for the purpose of obtaining cash and drugs and whether the accused had a knife on him, which he produced and used in the manner alleged.
(d) If the jury accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
The accused submitted that evidence of a tendency to carry a knife on 30 April 2016 does not go to the issue of whether the knife found at the complainant’s residence was carried by the accused. I accept that submission.
However, the evidence is not adduced as direct evidence to establish that the knife found at the complainant’s premises belonged to the accused. The evidence does not seek to link the accused to the crime via the knife that was found at the crime scene. Rather, it seeks to show that the conduct of the offender with the knife was consistent with the accused’s inclination to engage in such conduct at the relevant time as per the admission, or at least according to one interpretation of the admission.
The principal allegations in the prosecution case are that two men demanded drugs and cash from the victim, that one of the men produced a knife, in effect to support the demands, and that the man with the knife was the accused. This could be characterised as conduct that involved using a knife to “roll” a person who was believed to be a drug dealer for the purpose of extorting cash and drugs, i.e. an acting out of the very tendency to which the accused allegedly admitted four days after the incident.
(e) Does the tendency evidence have significant probative value; could it be important or of consequence in proving the fact in issue?
The proximity of the admission to the date of the alleged offences and the specificity of the alleged admission made on 30 April 2016 give it significant probative value. It could well be important, or of consequence, in proving the facts in issue.
(f) What unfair prejudice attaches to the tendency evidence?
Tendency evidence is almost always prejudicial in the sense that it reveals a tendency to act or think in a disreputable way — usually, a criminal way — which makes it more likely that the accused behaved in that way on the occasion of the offences.
However, the question concerning unfair prejudice does not address the prejudice that flows from probative value. It refers to unfair prejudice. Unfair prejudice is the risk that a fact finder will misuse the tendency evidence in an unfair way; by giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where that risk cannot be substantially cured, by direction: Vojneski at [63].
In this case, the accused identified as unfair prejudice the fact that the language of the alleged admission was so obtuse that it could mean any one of a number of things. That is not what is meant by unfair prejudice. It is for the fact finder to consider what the alleged admission (if it was made) means. Juries and other fact finders are frequently called upon to decide what facts they find on the basis of the evidence presented to them. The task of the fact finder in this case in interpreting the statement is of the same character.
Where a judge is the fact finder, one can have confidence that he or she will be alive to the dangers of giving any item of evidence more weight than it logically deserves. It will be easy to explain to the fact finding judge why the statement may have more than one meaning.
It is most unlikely that in a judge alone trial the fact finder (the judge) will respond emotionally to inflammatory evidence. In this case, the potentially inflammatory aspect of the statement is the suggestion that the applicant was in the business of rolling drug dealers. However, any judge would respond to the statement in a logical and rational way, appreciating its limitations, rather than in an illogical or emotional way.
It is a matter for the trial judge to decide whether the statement was made, what it means and what tendency it establishes (if any). The trial judge will appreciate any limitations associated with the evidence and will be more than capable of avoiding an illogical, or emotional, approach to the evidence.
(g) Does the probative value of the tendency evidence substantially outweigh any prejudicial effect?
As mentioned, I do not believe that the defence has identified a matter that could properly be characterised as unfair prejudice. Nevertheless, to the extent that the inherent ambiguity in the alleged admission could be so characterised, I am firmly of the view that the probative value of the tendency evidence, which is high, does substantially outweigh the prejudicial effect which is low, if it exists at all.
Orders
For the reasons outlined above, the prosecution will be permitted to adduce the tendency evidence.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 3 April 2017 |
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