R v Vojneski
[2014] ACTSC 66
•11 April 2014
R v ALEKSANDER VOJNESKI
[2014] ACTSC 66 (11 April 2014)
EVIDENCE – Tendency Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 97, 101 Evidence Act 2011 (ACT) – single incident does not normally support a tendency
EVIDENCE – Coincidence Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 98, 101 Evidence Act 2011 (ACT) – a combination of non-striking similarities will rarely, if ever, have significant probative value
Crimes Act 1900 (ACT), ss 12, 288
Evidence Act1995 (Cth), s 101
Evidence Act1995 (NSW), ss 97, 98, 101
Evidence Act2008 (Vic), s 137
Evidence Act2011 (ACT), ss 97, 98, 101, 137
Alexander Stewart and Sons Ltd v R (1921) 29 CLR 234
Dao v The Queen [2011] NSWCCA 63
DSJ v The Queen [2012] NSWCCA 9
Dupas v The Queen [2012] VSCA 328
Gilbert v The Queen (2000) 201 CLR 414
Hoch v The Queen (1988) 165 CLR 292
Makin v Attorney-General for New South Wales [1894] AC 57
Melbourne v R (1999) 198 CLR 1
Pfennig v The Queen (1995) 182 CLR 461
R v Christie [1914] AC 545
R v Cittadini (2008) 189 A Crim R 492
R v Ellis (2003) 58 NSWLR 700
R v Ford (2009) 201 A Crim R 451
R v Gale (2012) 217 A Crim R 487
R v Johnston (2012) 6 ACTLR 297
R v Shamouil (2006) 66 NSWLR 228
P.B. Carter, “The Admissibility of Evidence of Similar Facts” (1953) 69 LQR 80
No. SCC 27 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 11 April 2014
IN THE SUPREME COURT OF THE )
) No. SCC 27 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
Applicant
v
ALEKSANDER VOJNESKI
Respondent
ORDER
Judge: Burns J
Date: 11 April 2014
Place: Canberra
THE COURT ORDERS THAT:
1. The Crown be permitted to lead as tendency evidence at the trial of the accused, evidence of Incidents 1, 2, 3, 4, 6, 9, 13 and 14 as set out in the Amended Notice of Intention to Adduce Tendency Evidence dated 20 January 2014.
2. The application to adduce coincidence evidence as set out in the Amended Notice to Adduce Coincidence Evidence dated 20 January 2014 be refused.
3. Publication of this decision be prohibited until further order of the Court.
1. The accused is charged with one count alleging that on 27 March 2012 he murdered PC. To this charge he has entered a plea of not guilty, and he is due to take his trial commencing 21 July 2014.
2. By an application dated 19 December 2013 the Crown seeks orders:
a) that it be permitted to adduce tendency evidence at the accused’s trial in the form of evidence outlined as Incidents 1 to 14 set out in an Amended Notice of Intention to Adduce Tendency Evidence; and
b) that it be permitted to adduce as coincidence evidence the material referred to as incidents 1 to 7 in an Amended Notice to Adduce Coincidence Evidence.
3. Reception of tendency evidence is governed by s 97 of the Evidence Act2011 (ACT) (the EA 2011), which sets out the tendency rule:
97 The 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; 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 tendency evidence presented by another party.
4. The reception of coincidence evidence is governed by s 98 of the EA 2011, which sets out the coincidence rule:
98 The 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.
5. A further restriction on the use of tendency and coincidence evidence is provided by s 101 of the EA 2011:
101 Further 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 if 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.
6. In 1995, the Commonwealth Parliament enacted the Evidence Act1995 (Cth) and the New South Wales Parliament enacted the Evidence Act1995 (NSW). Both Acts, in so far as they deal with the admission of tendency and coincidence evidence, are in the same form. The Evidence Act1995 (Cth) applied in the Australian Capital Territory until it enacted the Evidence Act2011 (ACT) which is, relevantly, in the same form as the Commonwealth and New South Wales Acts. For convenience I will refer to the Commonwealth and New South Wales Acts as the EA 1995 (Cth) and the EA 1995 (NSW) respectively. Section 97 of the EA 2011 refers to evidence of “the character, reputation or conduct of a person, or a tendency that a person has or had” being led to prove that a person “has or had a tendency... to act in a particular way, or to have a particular state of mind“. For convenience, I will simply refer to this as tendency evidence.
The Crown case
7. The Crown alleges that the accused murdered PC between 9:45pm and 10:25pm on 27 March 2012 by inflicting multiple stab wounds on her in her bedroom at her premises in Macgregor, ACT. There is no direct evidence that the accused inflicted these wounds, and the case against him is circumstantial. Evidence will be called from another resident of the deceased’s premises, AW, that he saw the deceased and the accused at the premises on a number of occasions during the late afternoon and evening of 27 March 2012. They were consuming alcohol. He did not see anyone else at the deceased’s premises during that period.
8. Between 9:45 pm and 10:25 pm AW was playing an online game with AD, who was located in Sydney. During the game AD could hear a male and female arguing. Both AW and AD heard a high pitched scream. AD heard a female voice he recognised as the deceased’s yell “no, no, no” immediately after the high pitched scream. It is the Crown case that the scream and subsequent words came from the deceased as she was being stabbed by the accused.
9. The Crown alleges that the accused used the deceased’s mobile telephone on a number of occasions on the evening of 27 March 2012 to try to obtain drugs, and to contact Canberra Rape Crisis Centre. The final call is alleged to have occurred at 9:42 pm.
10. Bloodstains were located at the front entrance of the deceased’s premises outside her bedroom, where it is alleged the stabbing took place. DNA analysis of those stains provides extremely strong support for the proposition that the blood is from the accused. A blood smear attributed to the accused was also located on the outside handle of the deceased’s bedroom door. During an examination of the accused on 29 March 2012 injuries to his hands were noted and photographed. DNA analysis of nail clippings from the deceased’s right-hand provides extremely strong support for the proposition that the accused’s DNA was present.
11. A plastic postal bag received by the deceased by postal delivery on the morning of 27 March 2012 was located on the double bed in the deceased’s bedroom. The plastic postal bag had a slash in it through both layers of the bag consistent with being inflicted by a large carving knife. On the edge of the cut, blood was located consistent with that of the deceased. The Crown case is that the person who stabbed the deceased also stabbed the grey plastic bag in the course of the incident. Two of the accused’s fingerprints were located on the bag.
12. The murder weapon has never been located. A large carving knife was missing from a set of knives that the deceased had recently purchased and which were located in the kitchen. The damage to the deceased’s clothing is consistent with being caused by such a knife.
13. The Crown case is that the accused became suddenly enraged with the deceased, went to the kitchen and obtained a knife, returned to the bedroom and stabbed the deceased to death. On the Crown case there are a number of possible triggers for the accused’s alleged rage. One possible trigger was the inability of the accused to purchase drugs. The Crown says that the accused made multiple phone calls on the deceased’s mobile phone to drug associates right up until 9:42 pm. There is evidence not only that the accused was seeking access to illicit drugs, but also that he was short of money. There is evidence that the deceased was also short of money that day, as earlier she had borrowed money from a friend for petrol. The deceased was a prolific online shopper and received a delivery of clothing that day in the plastic postal bag which was later found slashed in her bedroom. The Crown says that the accused became angry when the deceased had no money to give him to purchase drugs, and resented the fact that she had spent money on clothing rather than having it available to purchase drugs for him.
14. The Crown will also lead evidence that the accused was jealous of AW and the deceased’s estranged husband SC, and that this jealousy may have provided a trigger for the accused’s anger.
The Tendency Notice
15. The Crown seeks to adduce evidence to establish that the accused had, at the relevant time, the following tendencies:
a) A tendency to become quickly aroused to anger and to act violently when angered;
b) A tendency to threaten people with knives;
c) A tendency when angry to use knives to inflict harm on people or damage objects;
d) A tendency to act violently when under the influence of alcohol or marijuana or a combination thereof;
e) A tendency to become angry and violent when people do not provide him with money for drugs; and
f) A tendency to threaten the deceased with knives and act violently towards her.
16. The Crown wishes to adduce evidence of 14 incidents to establish one or more of these tendencies. I will set out the Crown’s case concerning each of these incidents in turn.
Incident 1
17. It is alleged that on 3 March 2001 at an address in Red Hill the accused threatened to kill his sister BV and her children and cat while holding her against the wall and holding a large knife. He also threatened JB, his sister’s partner, with a knife and assaulted him. The accused was intoxicated at the time. The accused was subsequently charged and convicted of offences arising out of this incident. The Crown proposes to lead evidence of this incident to establish tendencies a), b), c) and d).
Incident 2
18. It is alleged that on 23 November 2002 the accused argued with his sister’s partner, JB, at her parents’ address in Giralang and the accused removed a knife from a kitchen drawer and stabbed JB in the chest. The accused later told a psychologist with ACT Mental Health that at the time of the stabbing he was intoxicated following use of both marijuana and alcohol. The accused pleaded guilty in the ACT Magistrates Court to offences of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life and assault occasioning actual bodily harm arising out of this incident and was sentenced to 12 months’ imprisonment, which was suspended. The Crown proposes to lead evidence of this incident to establish tendencies a), b), c) and d).
Incident 3
19. It is alleged that on 3 September 2004, the accused was with his mother JV at their address in Giralang. The accused became frustrated with his mother and punched her once to the head with a closed fist causing injury. On 10 August 2005, he was convicted of assault occasioning actual bodily harm and sentenced to a suspended term of 12 months’ imprisonment. The Crown proposes leading this evidence to establish tendency a).
Incident 4
20. The Crown alleges that on 8 September 2007, the accused was in a relationship with MTC. On that day they were both at the accused’s residence when the accused found out that MTC had given her telephone number to another man. The accused became angry and jealous. He took a knife from the kitchen, and while holding the knife threatened to kill MTC. The Crown proposes leading this evidence to establish tendencies a), b) and c).
Incident 5
21. RH was the boyfriend of the accused’s mother for about 10 years until late 2012. On one occasion in 2007 or 2008 he had an argument with the accused in Civic. RH left the accused and started walking home. The accused’s mother drove up in a car and said to RH “Quick, get in. He’s got a knife”. RH saw the accused running towards him and quickly got into the car with the accused’s mother, and they drove away. The Crown proposes leading this evidence to establish tendencies a) and b).
Incident 6
22. The Crown alleges that the accused was angry with AH, a resident of the apartment complex where the accused resided. The accused threatened to stab AH, then went to the car park and stabbed all four tyres on AH’s car with a knife causing them to deflate. This occurred on 6 February 2011. Three days later the accused threatened to kill AH whilst holding a knife. The accused was charged with damaging property and pleaded guilty in the Magistrates Court. He was sentenced on 26 May 2011. The Crown proposes leading this evidence to establish tendencies a), b), c) and d).
Incident 7
23. On 13 November 2011, it is alleged that the accused and deceased were together at the accused’s flat in Hawker. The deceased became concerned about the accused’s welfare when he made statements inferring he may harm himself after consuming alcohol. She telephoned the police to tell them of her concerns. After she made this call the accused grabbed her and threatened her. The Crown proposes leading this evidence to establish tendencies a), d) and f).
Incident 8
24. On 14 November 2011, the accused met GW, a man with whom he had been friendly for many years, and told him of his relationship with the deceased. He said that the deceased had called the police the night before, and that he was “done with her”. The two men went to the accused’s flat in Hawker where they smoked cannabis. The accused said “I’m suicidal. I’m either going to kill myself, my mum or my girlfriend. They are doing my head in. My mum is always telling him [sic] to quit smoking and I think my girlfriend is a social worker or undercover cop.” Later the deceased arrived, and in the presence of GW the accused said to her “What happened last night?” The deceased replied “When I got here you were drunk, then you started talking about suicide. You then tried to slash your wrists, so I called the police.” The accused said “Yeah, but it was just a butter knife, you didn’t have to call the police. And what happened to my nose? I woke up with a sore nose this morning.” The deceased replied “After I called the police, you grabbed me and threatened me, so I hit you.” After this the accused went to the kitchen to make the deceased a cup of coffee. The deceased remained talking to GW. The accused called out from the kitchen to GW “I hope you are not trying to crack onto my girlfriend.” Immediately after he said this, the accused picked up a Stanley knife and held it in his hand and said “Funny, I could kill two birds with one stone.” The Crown proposes leading this evidence to establish tendencies a), b), d) and f).
Incident 9
25. The Crown alleges that on 16 January 2012, the accused and the deceased were together at his flat. The accused checked the deceased’s mobile phone for messages and as a result suspected that the deceased had recently spent a night with her estranged husband. He contacted the deceased’s friend, MC, and questioned her about this. Following this, he was angry with the deceased. He picked up a large carving knife and threatened her with it. He then pushed the deceased out of the flat, naked. He held the deceased over the balcony and caused bruising to her arms. The Crown proposes leading this evidence to establish tendencies a), b), c), d) and f).
Incident 10
26. At some time close to the Canberra Day weekend in 2012 (10 – 12 March 2012) the deceased told her friend MG that the accused had hit her and the relationship was over. The Crown proposes leading this evidence to establish tendencies a) and f).
Incident 11
27. In November 2011, when the deceased’s grandmother was staying with her, the accused and the deceased argued and the accused punched the bonnet of the deceased’s car causing a dent. The Crown proposes leading this evidence to establish tendencies a) and f).
Incident 12
28. In mid November 2011, the deceased told her friend YW that when the accused had a few drinks he could get a bit physical. In December 2011, YW saw bruising on the top of the deceased’s left arm. The deceased told YW that the accused caused the bruising during a fight, and that he had been drinking. The bruises were consistent with a handprint. In late January 2012, the deceased showed another friend, JG, bruises on her upper arm that were yellow brown in colour. The deceased told JG that the accused had caused the bruises when he assaulted her. She told JG that the accused suffers from mental illness and had psychotic episodes occasionally in which he hurt her. She told JG that on one occasion the accused had pushed her out the door. The Crown proposes leading this evidence to establish tendencies a), d) and f).
Incident 13
29. The Crown alleges that the accused had been using the drug “ice” since about 2005 or 2006. His mother and his brother VV gave him money to purchase drugs. If they did not give him money to purchase drugs, the accused became angry, would yell, be abusive and throw things around the house. The Crown proposes leading this evidence to establish tendencies a) and e).
Incident 14
30. It is alleged that while in custody at the Alexander Maconachie Centre the accused assaulted a prison officer, JS, by punching him around the head. It is alleged the accused made a complaint to JS about someone else signing for his money and taking $50.00. JS advised the accused to fill in a complaint form so it could be investigated. Later, JS and another officer were standing in the exercise yard when the accused came through the door and started swinging punches at JS. Two punches landed on his face and one punch landed on the back of his head. The assault was unprovoked. The Crown proposes leading this evidence to establish tendency a).
Tendency evidence
31. Before the commencement of the EA 1995 (Cth) the law concerning the admission of propensity in criminal proceedings was somewhat tortuous. In his 1953 article “The Admissibility of Evidence of Similar Facts” 69 Law Quarterly Review 80, P.B. Carter described it thus: “Poverty of settled principle in the midst of plenty of conflicting authority has long been the most striking feature of the law relating to the admissibility in criminal cases of evidence of similar facts”. In part, the reason for this was the highly fact-dependent nature of the question of the admissibility of such material, with the applicable principles being, of necessity, expressed at a high level of generality. The introduction of the tendency and coincidence rules in the EA 1995 (Cth) delivered a new framework for making these decisions, but in practice the exercise is still heavily dependent upon the exercise of judgment in the circumstances of the particular case. The question whether the Crown is to be permitted to lead tendency or coincidence evidence cannot be answered simply by the application of a formula. In deciding whether to admit such evidence, a court must make a number of judgments, with the overriding aim of ensuring a fair trial.
32. In an important respect the law concerning the reception of such evidence has not been affected by the introduction of the EA 1995 (Cth), or the EA 2011. In Makin v Attorney-General for New South Wales [1894] AC 57, the Privy Council said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew [sic] that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.
That remains the position today: evidence of criminal acts of the accused other than those with which he or she is charged, cannot be led by the Crown for the purpose of proving that the accused is a criminal or a “bad” person, and as such is likely to have committed the crimes with which he or she is charged.
33. Since the time of Makin, at least, it has been recognised that such evidence may be received for a different purpose. Thus, the Privy Council said in Makin:
the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment was designed or accidental, or to rebut a defence that would otherwise be open to the accused.
34. The subsequent development of the law governing similar fact or propensity evidence is set out in the joint judgment of Mason CJ, Deane J and Dawson J in Pfennig v The Queen (1995) 182 CLR 461, culminating in their approval (at 481) of the statement of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 294 that the basis for the admission of similar fact evidence “lies in its possessing a particular probative value or cogency... such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged”.
35. The requirement that tendency, or propensity, evidence be found by a trial judge to have no reasonable explanation other than the inculpation of the accused, as expressed in Hoch and approved in Pfennig, is not reflected in the provisions of the EA 1995 (Cth), the EA 1995 (NSW) or the EA 2011 governing tendency evidence, although it took some time for this to be recognised. In R v Ellis (2003) 58 NSWLR 700, the New South Wales Court of Criminal Appeal convened a bench of five judges to address the conflict of authority as to whether the Pfennig test applied to the application of s 101 of the EA 1995 (NSW), which is in the same form as s 101 in the EA 1995 (Cth) and the EA 2011. All members of the Court agreed that the Pfennig test did not apply, or at least did not apply as a matter of course.
36. Whilst all five judges of appeal agreed on that issue, Hidden and Buddin JJ thought at [104] that the test for admission under s 101 remained “one of very considerable stringency”, based on the policy considerations relevant to the reception of similar fact evidence at common law. The remaining judges (Spigelman CJ, Sully and O’Keefe JJ) rejected that proposition, with Spigelman CJ saying at [99]: “There is no need for an assumption that all such evidence is ‘likely to be highly prejudicial’, nor for guidance that the test of admissibility is ‘one of considerable stringency’”.
37. Evidence which does no more than establish that an accused person has a propensity to commit a crime is not inadmissible because it is irrelevant. There is nothing illogical about the proposition that a person who has a propensity to commit crime is more likely to have committed a particular crime than someone without that propensity. The reverse proposition, that evidence of good character is relevant in determining whether an accused person committed a particular crime, has long been accepted: Alexander Stewart and Sons Ltd v R (1921) 29 CLR 234. This, however, has been seen by some as an anomaly: see Melbourne v R (1999) 198 CLR 1 per McHugh J at [47]–[48]. The reason that general evidence of propensity to commit crime was inadmissible at common law was, as the plurality said in Pfennig (at 484–5), “because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect”.
38. Section 97 of the EA 2011 imposes a number of obligations on a party seeking to lead tendency evidence. First, the party must give reasonable notice of their intention to lead the evidence: s 97(1)(a). Secondly, the evidence must be led for the purpose of establishing that a person has a tendency to act in a particular way or to have a particular state of mind. Finally, before the evidence is admissible, the court must be satisfied that it has significant probative value, either by itself or in conjunction with other evidence.
39. Before tendency evidence can be admitted, the court must be satisfied that it will have significant probative value: s 97(1)(b). “Probative value” is defined in the Dictionary to the EA 2011 as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. It is important to note the use of the word “could” in this definition. As Spigelman CJ (with whom Simpson and Adams JJ agreed) said in R v Shamouil (2006) 66 NSWLR 228 at [61]:
In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, “the extent to which the evidence could rationally affect the assessment...”. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what the tribunal of fact is likely to conclude. Evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty.
[original emphasis]
40. It follows from the above that the role of a judge in determining an application to lead tendency evidence under s 97 is not to usurp the function of the jury, or determine how a jury may be likely to view evidence. After quoting the above passage from Spigelman CJ in Shamouil, Campbell JA in R v Ford (2009) 201 A Crim R 451 said at [49]:
Thus, making a decision about the probative value of evidence does not involve a judge usurping any of the functions of the jury. Rather, it involves making a decision of law about the reasoning process that would be open to a jury.
41. Just as it is for the judge hearing such an application to determine, in the sense described above, whether the proposed evidence has probative value, so the judge must also determine in the same way whether it has “significant probative value”: Ford at [52]. If the judge determines that the proposed evidence could have significant probative value, it is then for the tribunal of fact to decide whether it does, in fact, have this quality: DSJ v The Queen [2012] NSWCCA 9.
42. The definition of “probative value” refers to the extent that evidence is capable of affecting the probability of a fact in issue. A “fact in issue” is a fact the proof of which is relevant to proving a charge against the accused. It follows that the tendency sought to be proved by leading the evidence must be a relevant tendency, that is, relevant to establishing a fact that the tribunal of fact can rationally use to prove a charge against an accused: R v Ford (2009) 201 A Crim R 451. In R v Cittadini (2008) 189 A Crim R 492, Simpson J expressed it thus at [20]–[23]:
The key is to identify the purpose for which tendency evidence is tendered and admitted.
I adhere to the views I have previously expressed, in Gardiner v The Queen (2006) 162 A Crim R 233 at [124]:
Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that the person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.
Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that the person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).
43. “Significant” means “important” or “of consequence”: Dao v The Queen [2011] NSWCCA 63 per Simpson J at [148].
44. If proposed tendency evidence satisfies the tests of admissibility in s 98, it must still satisfy the test under s 101(2): the probative value of the evidence must “substantially outweigh” any prejudicial effect the evidence may have on the accused. I adhere to what I said (at [50]) in R v Johnston (2012) 6 ACTLR 297 on this issue:
Assuming that the requirements of s 97 are met, tendency evidence is not to be admitted against an accused unless the probative value of the evidence outweighs the prejudicial effect it may have on the accused: s 101 of the EA 2011. As Campbell JA said in Ford, there is a line of authority to the effect that the test of determining whether the probative value of evidence exceeds its potential prejudicial effect is essentially the same test required by s 137 of the EA 2011, to the extent that “once evidence (has) passed s 101(2) it (is) not possible to think of circumstances in which it could then be rejected under s 137”: Ford, at par 59; see also R v Harker [2004] NSWCCA 427 at [46], AE v The Queen [2008] NSWCCA 52 at [41]. The test of prejudice imposed by s 137 is the risk that admission of the evidence will result in an unfair trial. As Campbell JA expressed it in Ford at [56]:
The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case ... Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen (1999) 196 CLR 297 at 325 [91] per McHugh J.
45. In his submissions, counsel for the accused emphasised the potential prejudicial effect of the evidence the Crown proposes leading. By definition, tendency evidence is evidence of acts apart from those directly relevant to proving a charge against an accused. Often, those acts which are relied upon to prove a tendency will themselves be criminal, or disreputable. In all cases where tendency evidence is admitted it is important that the tribunal of fact is directed (in the case of a jury) or directs itself (in the case of a judge alone trial) as to how this evidence may be used, and how it may not. This is particularly so where the evidence suggests criminal or reprehensible conduct, because the prejudicial effect of such evidence is likely to be high. There is always the danger that a jury, without the benefit of appropriate direction, may simply reason that the tendency evidence establishes that the accused is a person of bad character, and therefore is likely to have committed the offence with which he or she is charged. In enacting s 98 the legislature must have been aware of this danger, and of the practice of the criminal courts of directing juries as to how such evidence may, and may not, be used. The fact that proposed tendency evidence may be prejudicial is a commonplace, and of itself is not a reason to reject it. Beyond the safeguard provided by appropriate judicial directions to juries on the use of this evidence, there is the additional safeguard provided by s 101(2). Not only must the probative value of the tendency evidence outweigh the potential prejudicial value, it must substantially outweigh it. The assessment required by s 101(2) is not, however, the same as that which was required in Pfennig: see Ellis, per Spigelman CJ at [94] – [98].
46. The decision of the New South Wales Court of Criminal Appeal in Shamouil was rejected by the Court of Appeal of the Supreme Court of Victoria in Dupas v The Queen [2012] VSCA 328, where the Court (Warren CJ, Maxwell P, Nettle JA, Redlich JA and Bongiorno JA) held that in determining whether the probative value of proposed evidence was outweighed by the danger of unfair prejudice to the accused, as required by s 137 of the Evidence Act2008 (Vic) (which is the same form as s 137 in the EA 2011), a judge must, in assessing the probative value of the evidence, evaluate the weight that the jury could rationally attach to the evidence. The Court reached this conclusion based upon its acceptance that s 137 was intended to replicate the common law test enunciated in R v Christie [1914] AC 545.
47. As a single judge I do not propose weighing the legal merits of the different approaches adopted in New South Wales and Victoria. In my opinion, the difference of approach makes no difference to the outcome of the present application. Under either test I would have admitted the evidence I have admitted.
Application of relevant principles – tendency
48. As Simpson J noted in Cittadini, it is important to identify the purpose for which the proposed evidence is led, or, in other words, the fact or facts in issue which the Crown says the evidence may prove. This directs attention to the charge. The accused is charged with murder contrary to s 12 of the Crimes Act 1900 (ACT):
Murder
(1) A person commits murder if he or she causes the death of another person –
(a) intending to cause the death of any person;
(b) with reckless indifference to the probability of causing the death of any person; or
(c) intending to cause serious harm to any person.
49. To convict the accused of this charge, the Crown must prove:
a) that he engaged in conduct;
b) that his conduct caused the death of the deceased; and
(i) that he intended to cause her death; or
(ii) that he was recklessly indifferent to causing her death; or
(iii) that he intended to cause her serious harm.
50. The accused has served an alibi notice on the Director of Public Prosecutions as required by s 288 of the Crimes Act 1900 (ACT). It is clear from this notice that the accused disputes being present at the place where the alleged offence was committed at the time it was allegedly committed: see s 288(7). As such, the principal issue at the accused’s trial is likely to be whether it was he who inflicted the injuries on the deceased that caused her death. Whilst this may be the principal issue, it will not necessarily be the only one. If the accused “defends” the charge on the basis that he is not the assailant, and the jury finds that he was, the jury will nevertheless be required to consider whether the other elements of the offence are proven. In the absence of formal admissions, it must be assumed that everything is in issue.
51. I am satisfied that each of the tendencies alleged by the Crown is a relevant tendency, in that if a jury was satisfied that the accused had such a tendency it could reason, based upon that tendency and other evidence, that the accused was the person who killed the deceased. The Crown case is based on certain fundamental propositions, being:
a) the accused is a man quickly aroused to anger;
b) he becomes angry when under the influence of alcohol or marijuana, or when people do not give him money to purchase drugs;
c) when he is angry he becomes violent and uses knives to harm or threaten to harm;
d) on the night of the deceased’s death the accused had been consuming alcohol;
e) on the night of the deceased’s death the accused was trying to access drugs;
f) neither the accused nor the deceased had money to purchase drugs
52. In the alternative to d) and e) above, or in combination with them, the Crown also alleges:
g) that the accused was jealous of the deceased’s relationship with her ex husband, and AW.
53. The Crown’s case theory is effectively a very simple one: the accused became angry in circumstances where he has become angry in the past, and resorted to the use of a knife, as he has done in the past. There is nothing in this scenario that is complex, or beyond the ability of a jury to comprehend. I will now examine each of the Incidents to determine whether they satisfy the tests in s 98 and s 101 of the EA 2011.
Incident 1 - consideration
54. The evidence in Incident 1 reveals the accused becoming angry and using a knife to threaten his sister and her partner while he was intoxicated. This is clearly evidence which is capable, taken with other evidence the Crown proposes adducing as tendency evidence, of being used by the jury to establish that the accused had alleged tendencies a), b), c) and d) as set out at [15]. It clearly has probative value and even though these events occurred 11 years before the death of the deceased, I am satisfied that, when taken with other more recent evidence of the use of a knife by the accused, it has significant probative value.
55. There can be no doubt that adducing evidence of the accused using a knife to threaten to kill another person at the trial of the accused, where it will be alleged he killed the deceased using a knife, may be prejudicial, in the sense that there is a danger that the jury may misuse the evidence in the way I have discussed. That danger, however, should not be overstated. The way in which the Crown proposes using this evidence does not involve a complex reasoning process, such that any risk that the jury will misuse the evidence is minimal and may be dealt with by appropriate directions. Courts should not readily conclude that juries will ignore the directions they are given as to how they may or may not use evidence in a trial: see Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at [31]–[32]. In my opinion, the risk that courts most need to guard against is that the jury will not understand how they may use such evidence where the required reasoning process is complex. That is not the case here. I am satisfied that the probative value of the evidence substantially outweighs any potential prejudicial effect. The evidence does not, however, support tendency c) as no harm was inflicted on anyone, and no damage caused to property. The Crown will be allowed to lead evidence of this Incident as tendency evidence to establish alleged tendencies a), b) and d).
Incident 2 - consideration
56. The evidence relevant to Incident 2 falls into the same category as that relevant to Incident 1. For the same reason, I am satisfied that the Crown should be permitted to lead this evidence to establish alleged tendencies a), b), c) and d).
Incident 3 - consideration
57. The evidence with regard to Incident 3, if accepted by the jury, is capable of establishing a tendency to become quickly aroused to anger and to act violently when angered (tendency a)). When taken with other evidence to be led by the Crown, I am satisfied it has significant probative value. For the reasons I have given concerning the admissibility of Incident 1, I am satisfied that the danger of a jury misusing this evidence is minimal if it is given appropriate directions as to its use. I am satisfied that its probative value substantially outweighs any potential prejudicial effect, and the Crown will be permitted to lead this evidence.
Incident 4 - consideration
58. The evidence the Crown proposes leading concerning Incident 4 would establish, if accepted by the jury, that the accused used a knife to threaten a person when he became angry with her. I am satisfied that this is evidence which is capable of establishing, when taken with other evidence, tendencies a) and b) alleged by the Crown. As no injury was inflicted on anyone, or damage caused to property, by the use of the knife, the evidence does not support tendency c). The risk of a jury, properly instructed, misusing the evidence is minimal, and I am satisfied its probative value substantially outweighs any potential prejudicial effect. The Crown will be permitted to lead this evidence to prove alleged tendencies a) and b).
Incident 5 - consideration
59. The evidence the Crown proposes leading concerning Incident 5, as I understand it, is set out in a taped record of conversation between police and RH conducted on 7 November 2013. RH was the former partner of the accused’s mother. RH refers to an argument he had with the accused in Civic in 2007 or 2008, culminating in RH deciding to walk home. As he was walking down the street the accused’s mother pulled up beside him in a car and said “Quick, get in”. RH asked “What for?”, and the accused’s mother replied “He’s got a knife. He’s gonna stab you or something”. RH looked around, and saw the accused running towards him. He got in the car and they left. He did not see any knife. In her record of interview with police the accused’s mother also says she did not see the accused in possession of a knife.
60. In my opinion, this evidence does not satisfy the tests in either s 97 or s 101. The evidence does not have significant probative value. RH did not see a knife, and it is unclear on what basis the assertion to that effect by the accused’s mother was made. Its probative value is low, such that it does not substantially outweigh any potential prejudicial effect. The Crown will not be permitted to lead this evidence.
Incident 6 - consideration
61. Incident 6 involves an allegation that the accused used a knife to stab the tyres of a vehicle belonging to another resident (AH) in the unit complex where the accused resided, and threatened to stab AH. The evidence the Crown proposes leading could satisfy a jury that the accused was angry with AH because he believed AH had called police to complain about noise coming from the accused’s unit. There is evidence that the accused was intoxicated. I am satisfied that this evidence has significant probative value, as it is capable, when taken with the other tendency evidence to be adduced, of establishing that the accused had tendencies a), b), c) and d). I am satisfied for the same reasons set out for Incident 1, above, that it’s probative value substantially outweighs its potential prejudicial effect. The Crown will be permitted to lead this evidence.
Incident 7 - consideration
62. Incident 7 occurred on 13 or 14 November 2011 and is an allegation that the accused grabbed the deceased and threatened her after she had arranged for police to check on his welfare. The evidence of this incident is vague and lacks probative value. In my opinion it does not satisfy the test under s 97.
Incident 8 - consideration
63. Incident 8 occurred the day after Incident 7, and involves what the Crown alleges to be an implied threat to the deceased and a witness, GW, while the accused was holding a knife. In my opinion this evidence also lacks significant probative value. The comment attributed to the accused is cryptic, and could only have significant probative value if one started from the very proposition that the Crown seeks to prove, that he had a tendency to threaten people with knives. The Crown will not be permitted to lead this evidence.
Incident 9 - consideration
64. The evidence concerning Incident 9 is found in a taped record of conversation between police and MC conducted on 30 March 2012. MC described herself as being a very close friend of the deceased. She told police that she attended the accused’s unit on an occasion where the accused had thrown the deceased out of his unit after threatening her with a knife. The deceased told MC that they were both intoxicated and the accused attacked her and threatened her with a knife before throwing her out of the unit. The Crown proposes leading evidence from police who attended the accused’s unit on 16 January 2012 in respect of an incident where the accused threw the naked deceased out of his unit, and then threw all of her belongings out as well. I am satisfied that this evidence has a significant probative value in that the jury could use this evidence, together with other evidence, to find that the accused had a tendency to act violently when angry and to then threaten to use knives. The jury could also use this evidence to find that the accused had a tendency to act violently when under the influence of alcohol. I am satisfied, for the same reasons that I gave with respect to Incident 1, that the probative value of this evidence substantially outweighs any potential prejudicial effect. The Crown will be allowed to lead this evidence to establish tendencies a) and b).
65. While this evidence, if accepted, reveals the accused acting violently towards the deceased, it is the only incident which I propose admitting which supports tendency f). In my opinion, by itself, the probative value of this evidence, as evidence of tendency f), does not substantially outweigh its prejudicial value. Similarly, the evidence cannot support tendency c) as no harm was inflicted or damage done by use of a knife.
Incident 10 - consideration
66. Incident 10 is an allegation that some time close to Canberra Day 2012 the deceased told her friend MG that the accused had hit her and the relationship was over. The evidentiary basis for this incident is found in a taped record of conversation between MG and the police on 30 March 2012. In this interview MG simply states that the deceased told her that the accused had hit her and the relationship was over. MG did not know what led to this incident, or any other details. In my opinion this evidence lacks significant probative value, and such probative value as it has does not substantially outweigh any potential prejudicial effect. The Crown will not be entitled to lead this evidence as tendency evidence.
Incident 11 - consideration
67. With respect to Incident 11, the Crown alleges that after an argument with the deceased, the accused punched the bonnet of her car causing a dent. In my opinion this evidence lacks significant probative value, and any probative value it does possess is not substantially outweighed by any potential prejudicial effect. The Crown will not be entitled to lead this evidence as tendency evidence.
Incident 12 - consideration
68. The evidence the Crown seeks to lead with respect to Incident 12 comes from witnesses YW and JG. Both of these witnesses were friends of the deceased. YW participated in a taped record of conversation with the police on 26 May 2012. She and the deceased attended a gym class together and were boxing partners. On one occasion YW commented on the fact that the deceased was strong. This comment was made after they had engaged in a short discussion about the deceased’s boyfriend, which a jury would be entitled to infer was a discussion about the accused. The deceased responded “Oh well, I have to hold my own when we have fights”. YW asked the deceased what she meant, and she replied “Oh no. Nothing. You know, when you’ve had a few drinks, he can get a bit physical”. On a subsequent occasion the deceased showed YW bruises which she said her boyfriend had inflicted. The deceased told YW “Don’t worry, I’ve left him”.
69. The witness JG provided a written statement to the police dated 4 June 2012. JG and the deceased were employed in the same Commonwealth government department in 2012. Towards the end of that year they both attended a training day, and during the lunch break they had a conversation in which the deceased told JG that she was in a relationship with a man, and showed JG a number of bruises on her upper arm which she said were inflicted by her boyfriend.
70. This evidence is vague, and lacking in the sort of detail which would give it significant probative value. The Crown will not be permitted to lead this evidence.
Incident 13 - consideration
71. With respect to Incident 13 the Crown alleges that the accused was a user of the drug “ice” and that he would become angry if his mother or older brother refused to provide him money to purchase drugs. In a record of conversation with the police on 29 March 2012 the accused’s mother spoke of him being a drug user, and of him “Yelling and abusing and screaming, chucking things around in his house” if they did not give him money. If accepted by the jury, this evidence, together with other evidence adduced by the Crown, could establish tendencies a) and e). It is an important part of the Crown case that the accused was angry with the deceased because he could not obtain drugs on the night of 27 March 2012, in part because she had no money to purchase them. I am satisfied that the evidence has significant probative value, which substantially outweighs any potential prejudicial effect. The Crown will be permitted to lead this evidence.
Incident 14 - consideration
72. Incident 14 is an allegation that the accused assaulted a custodial officer, JS, at the Alexander Maconochie Centre on 29 August 2013. It is alleged that the accused was angry because he alleged that someone else had signed for and taken $50 of his money. JS told the accused to fill out a complaint form so that it could be investigated. Later, the accused came into a yard where JS was performing his duties, in a highly agitated state with closed fists saying “It isn’t my signature cunt”. The accused then started punching JS. The accused was charged with assault arising out of this incident.
73. If accepted by the jury this evidence is capable of establishing, together with other evidence in the trial, alleged tendency a). The evidence has significant probative value. I accept that there is a potential for additional prejudice arising out of this evidence, because it will reveal that the accused has been held in custody. However, the jury will be directed that the accused was only in custody awaiting trial on this charge, such that the jury will not infer that he has a prior criminal history because of the fact that he was in custody. I am satisfied that the probative value of this evidence substantially outweighs any potential prejudicial effect. The Crown will be entitled to lead evidence of this incident as tendency evidence.
Summary
74. It follows from the above that the Crown will be permitted to lead evidence, consistent with the above, to prove that the accused had tendencies a) to e). It also follows that the Crown will not be permitted to allege tendency f).
The Coincidence Notice
75. The Crown proposes leading evidence of seven events (the coincidence events) to prove that, because of the improbability of the coincidence events and the killing of CP occurring coincidentally, the accused stabbed the deceased to death on 27 March 2012 and when he did so was acting voluntarily, and with the intention of killing her or with reckless indifference to the probability of killing her, or intending to cause serious harm. They also propose leading this evidence to establish that when he carried out the act he was not acting in self defence and acted without provocation. The Crown case is, of course, that the accused killed CP by stabbing her with a knife. In seeking to lead coincidence evidence, the Crown is attempting to prove this allegation by a process of reasoning suggesting that the similarities between the coincidence events and the death of CP make it improbable that someone other than the accused killed her. I will set out the evidence the Crown proposes leading with respect to each of the coincidence events.
Event 1
76. The evidence the Crown proposes to lead is the same as that which it seeks to lead with regard to Incident 1 in the tendency application.
Event 2
77. The evidence the Crown proposes to lead is the same as that which it seeks to lead with regard to Incident 2 in the tendency application.
Event 3
78. The evidence the Crown proposes to lead is the same as that which it seeks to lead with regard to Incident 4 in the tendency application.
Event 4
79. The evidence the Crown proposes leading is the same as that which it seeks to lead with regard to Incident 5 in the tendency application.
Event 5
80. The evidence the Crown proposes leading is the same as that which it seeks to lead with regard to Incident 6 in the tendency application.
Event 6
81. The evidence the Crown proposes leading is the same as that which it seeks to lead with regard to Incident 8 in the tendency application.
Event 7
82. The evidence the Crown proposes leading is the same as that which it seeks to lead with regard to Incident 9 in the tendency application.
Coincidence evidence
83. In R v Gale (2012) 217 A Crim R 487, the New South Wales Court of Criminal Appeal (McClellan CJ at CL, Simpson and Fullerton JJ) considered a Crown appeal against the rejection by a trial judge of evidence proffered as coincidence evidence under the EA 1995 (NSW). In a typically erudite judgement Simpson J explains (at [25]) the legislative approach adopted in s 98:
At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
• two or more events occurred; and
• there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
• having regard to those similarities, it is improbable that the two events occurred coincidentally;
• therefore the person in question did a particular act or had a particular state of mind.
84. As Simpson J points out, this process of reasoning and the drawing of inferences is for the tribunal of fact, in this case, the jury. The task for the judge is different. Her Honour noted (at [28]) that before the evidence can be admitted two conditions must be met:
a) the judge must be satisfied that reasonable notice has been given; and
b) the judge must form the opinion that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party tendering the evidence, will have significant probative value.
85. Later, her Honour said at [30]–[31]:
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.
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 reduce 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.
Application of relevant principle - coincidence
86. What, then, are the similarities, either in the events of the circumstances in which the events occurred, that the Crown alleges?
87. The Crown case is that the murder of the deceased displayed the following characteristics:
a) she was killed in residential premises
b) the accused knew the deceased
c) the deceased was killed by use of a knife
d) the knife was taken from the kitchen of the deceased’s premises
e) the stabbing occurred when there were other people in the house
f) it may be inferred that the killer knew there were other persons in the house
g) the accused was at the deceased’s house shortly before her death
h) the accused had been consuming alcohol on the day the deceased was killed
Event 1 - similarities
88. A jury could be satisfied that coincidence event 1 displays the following similarities to the events surrounding the death of PC:
• the events occurred in residential premises
• the accused had been consuming alcohol
• the weapon used was a knife
• both knives were kitchen knives taken from the kitchen of the premises where the event occurred
• the accused knew the victims in each event
• the events occurred when other people were in the house
• the events occurred in circumstances where the offender knew that there were other people in the house
Event 2 - similarities
89. A jury could be satisfied that coincidence event 2 displays the following similarities to the events surrounding the death of PC:
• each event occurred in residential premises
• in each event the accused had been drinking alcohol
• the accused knew the victim in each event
• in each event the weapon used was a knife
• in each event there were other people in the house at the time of the offence
• in each case the events occurred in circumstances where the offender knew there were other people in the house
• in each case the knife was obtained from the kitchen of the house where the offence occurred
Event 3 - similarities
90. A jury could be satisfied that coincident event 3 displays the following similarities to the events surrounding the death of PC:
• each event occurred in residential premises
• the accused knew the victim in each event
• in each event the accused was jealous of the victim’s relationship with another man
• in each event the weapon used was a knife
• in each event the knife was obtained from the kitchen of the house where the event occurred
Event 4 - similarities
91. A jury could be satisfied that coincidence event 4 displays the following similarities to the events surrounding the death of PC:
• in each event the accused knew the victim
• in each event it is alleged the accused used a knife
• in each case there were other people in the vicinity
• in each case the accused knew there were other people in the vicinity
Event 5 - similarities
92. As I noted regarding Incident 5 at [57]–[58] above, there is no real evidence that the accused was in possession of a knife, and the fact that the Crown alleges he was has no probative value.
93. A jury could be satisfied that coincidence event 5 displays the following similarities to the events surrounding the death of PC:
• in each case the accused had consumed an intoxicating substance
• in each case the accused knew the victim
• in each case events occurred when the accused knew there were or may be other people around
Event 6 - similarities
94. A jury could be satisfied that coincidence event 6 displays the following similarities to the events surrounding the death of PC:
• each event occurred in residential premises
• in each event the accused used a knife
• the accused knew the victim in each event
• PC was involved in each event
• in each event the accused was jealous of PC’s relationship with another man
Event 7 - similarities
95. A jury could be satisfied that coincidence event 7 displays the following similarities to the events surrounding the death of PC:
• in each event PC was the victim
• in each event the accused knew the victim
• in each event a knife was used
• each event occurred in residential premises
• in each event the accused was jealous of PC’s relationship with another man
• in each case the accused had been drinking alcohol
Consideration
96. In my opinion, the evidence which the Crown seeks to adduce on coincidence evidence does not have significant probative value, and such probative value as it possesses does not substantially outweigh its potential prejudicial effect. There is nothing strikingly similar about the coincidence events and the events surrounding the death of CP. Most of the features surrounding the death of CP are, in truth, mundane. There is, sadly, nothing particularly unusual about a person being murdered in residential premises, or by use of a knife. There is nothing approaching a forensic signature seen on a comparison between the circumstances surrounding the death of CP and those surrounding the coincidence events. A combination of non-striking similarities will rarely, if ever, have significant probative value.
97. For this reason the application to lead coincidence evidence is refused.
Conclusion
98. The Crown will be permitted to lead as tendency evidence at the trial of the accused, evidence of Incidents 1, 2, 3, 4, 6, 9, 13 and 14 as set out in the Amended Notice of Intention to Adduce Tendency Evidence.
99. Publication of my decision and these reasons will be prohibited until further order of the Court, due to the accused’s pending trial.
I certify that the preceding ninety nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 11 April 2014
Counsel for the Applicant: Mr J White
Solicitor for the Applicant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr J Pappas
Solicitor for the Respondent: Ben Aulich & Associates
Date of Hearing: 30 January 2014
Date of Judgment: 11 April 2014
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