R v Tangi (No 7)

[2020] NSWSC 542

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tangi (No 7) [2020] NSWSC 542
Hearing dates:	20-21, 25-29 November, 2-3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Evidence of non-violent altercation two days prior to alleged assault between accused and deceased admitted. Evidence of statement by accused as to general feelings of anger rejected.
Catchwords:	EVIDENCE – criminal proceedings – relevance – hearsay – evaluation of unfair prejudice and directions of Court
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 56, 135, 137
Category:	Procedural and other rulings
Parties:	Regina (Crown) Abraham Ryan Tangi (Accused)
Representation:	Counsel: P Hogan (Crown) G Wendler (Accused)   Solicitors: Director of Public Prosecutors (NSW) (Crown) Universal Lawyers (Accused)
File Number(s):	2017/242644
Publication restriction:	Not to be published until the conclusion of the trial

EX TEMPORE Judgment

1. HIS HONOUR: Objection has been taken to the terms of paras 13, 14 and 15 of the witness statement of the next witness, Witness D. More accurately, it is an objection to evidence of that substance being adduced in the course of examination-in-chief of Witness D.

2. Essentially, the objection to evidence in paras 13 and 14, is taken on three bases: One objection is the temporal dislocation between the events that are described in paras 13 and 14 and the incident which is said to have led to the death of the deceased. For present purposes, I am assuming that the reference in para 14 to “that day” in the opening three words, is a reference to the timing of the incident described in para 13, being one or two days prior to the alleged assault that led to death.

3. The second basis for objection is the wording of the comment attributed to the accused, which I quote, “this little shit tried to mess with me”, in circumstances where he was complaining about the deceased. The difficulty with that comment is said to be that the witness says, and I quote from his statement, “I remember him saying something like” the words just quoted earlier. It seems to me, that there is little distinction between the terms saying “something like” and the terms, “words to the effect of”, and that basis for objection is rejected.

4. The third basis for objection is the issue of timing. It seems to me that the timing describes an incident not long before the assault. Other evidence has described two incidents on the day of the assault, prior to the assault, and this is material that is, even if it occurred on 17 June 2017 which is the earliest of that timing, material that could, with other material, directly or indirectly rationally affect the probability of the existence of the fact in issue in the proceedings, and is therefore relevant.

5. I do not consider, particularly given the timing, that the jury is capable of misusing that evidence and it seems to me ss 135 and 137 of the Evidence Act 1995 (NSW) (hereinafter “the Act”) do not arise because the material does not give rise to an unfair prejudice that outweighs the substantial probative value of the evidence provided. Further, even if there were an unfair prejudice, it would be one that could be the subject of directions which would resolve the issue. I am minded at this stage in dealing with the objection, that to admit paras 13 and 14.

6. As I have made clear during the discussion with counsel, para 15 is in a different category. Paragraph 15 refers to a comment by the accused as to his state of mind or feelings mid-morning on the day of the assault, that is 19 June 2017. The statement is not one that is directed to the deceased, unlike the statements in paras 13 and 14, rather it is a statement dealing with what I will call his anger, and what he is likely to do if somebody pushes him the “wrong way” for want of a better word.

7. Between that time, which is described as mid-morning on 19 June 2017 and the time of the assault there were two incidents involving the deceased, one of them described by the witness Park and the other described by one or more witnesses immediately prior to the time at which the wing was cleared for the purposes of carrying out the functions of sweepers.

8. The difficulty with para 15 is one that attributes to the accused a state of anger. The Crown seeks, it seems, to prove a tendency or state of mind in dealing with that anger. Further, the Crown seeks to have the jury infer that the aforesaid tendency or state of mind persisted from mid-morning to the time of the assault relevantly, or at least until the time of the later incident involving the deceased, and wishes to use it as motive or as part of the motive in explaining the conduct of the accused.

9. On that basis, there is no doubt that it is relevant and would be admitted under ss 55 and 56 of the Act. The real issue is whether its probative value can be balanced against the danger of unfair prejudice pursuant to the terms of s 137 of the Act. If I were satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, I would be required to reject the evidence. Those are the terms of s 137 of the Act.

10. It is, in looking at the Act as a whole, noteworthy that the terms of s 135 of the Act which prescribes a discretion reposed in the Court, requires substantial outweighing by the danger of unfair prejudice. It is a fine line. There is no doubt that, if the jury were to perceive the anger expressed or the feelings expressed in para 15 of the statement to have persisted, then the matter is highly probative.

11. The difficulty I have is that if the anger did not persist then the jury is more likely to use it as a form of tendency evidence, namely that the accused acts in a way described in para 15 in relation to incidents or at least act in that way from time to time. That would be a misuse of the evidence.

12. As presently advised, there does not seem to be any evidence which would suggest that the feelings of anger and the manner in which the accused would deal with anyone, who “crossed him” (not being a term used by the accused), persisted from mid-morning, which I will assume to be about 10 o’clock until 2 o’clock in the afternoon or even until 1 o’clock in the afternoon, and that is the matter that gives me great concern.

13. It seems to me, while directions could be given, it would be difficult to give directions that would ameliorate that unfair prejudice because they would have to be qualified by the finding of the jury that there was a persisting feeling of that kind from 10 o’clock in the morning through the two incidents to 2 o’clock in the afternoon. In the absence of evidence that would be an inference that, in my view, would not be available, and use of the material therefore could only be by way of tendency and that would be an unfair prejudice. On that basis, the provisions of s 137 of the Act are satisfied, and I reject the contents of the evidence in para 15 of the statement.

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Decision last updated: 13 May 2020