The Queen v Eiao
[2022] NTSC 19
•16 March 2022
CITATION:The Queen v Eiao [2022] NTSC 19
PARTIES:THE QUEEN
v
EIAO, Johnny
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22111961 and 22111977
DELIVERED: 16 March 2022
HEARING DATE: On the papers
JUDGMENT OF: Kelly J
CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97 and s 101 - Tendency evidence – Whether tendency evidence has significant probative value – whether probative value of the evidence outweighs the danger of unfair prejudice to the defendant – whether also admissible as relationship and/or context evidence
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 101
HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; McPhillamy v The Queen (2018) 361 ALR 13; R v Bauer (2018) 92 ALJR 846; R v Lisoff [1999] NSWCCA 364; The Queen v AW [2018] NTSC 29, applied
REPRESENTATION:
Counsel:
Crown:D Castor
Accused:L McLaughlin
Solicitors:
Crown:Director of Public Prosecutions
Accused:Maleys Barristers and Solicitors
Judgment category classification: B
Judgment ID Number: Kel2209
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Eiao [2022] NTSC 19
22111961 and 22111977
BETWEEN:
THE QUEEN
AND:
JOHNNY EIAO
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 16 March 2022)
The accused is charged with threatening a person for giving a statement in connection with a criminal investigation, contrary to s 103A(2)(c) of the Criminal Code.
Background
In 2020 the accused was living in a unit complex in Voyager Street, Stuart Park. Two other men, Adam Finnemore and Robert Grant were living in another unit in the same unit complex.
The Crown alleges that the accused was angry at the amount of noise Adam Finnemore had made during the night of Saturday 22 May 2020 and the next morning he armed himself with a cut down wooden shovel handle, marched over to Mr Finnemore’s unit, smashed a hole in the locked sliding glass door and entered the unit.
This woke Mr Finnemore. He jumped out of bed and saw the accused inside his unit. The accused yelled at Mr Finnemore and Mr Finnemore apologised for making too much noise. The accused then ran up to Mr Finnemore and hit him on the right knee with the shovel handle. Then he hit him on the foot with it. The accused then returned to his own unit (This is referred to in these reasons as “the initial incident”).
Robert Grant heard what was happening and also saw the accused leaving Mr Finnemore’s unit and going back to his own unit.
Mr Finnemore called police and reported the incident. When police arrived at the unit complex, the accused approached them, admitted what he had done and told them, “I just wanted to prove a point.”
Both Mr Finnemore and Mr Grant made statements to police about the initial incident.
The accused was arrested, taken to the Palmerston Police Station, charged over the initial incident, and bailed to appear in court. His bail conditions included that he not contact either Mr Finnemore or Mr Grant.
The charges arising from the initial incident were listed for plea in the Supreme Court before Blokland J on 14 April 2021.
On 1 April 202, after the plea date had been set, Mr Finnemore was visiting a friend named Dennis Franklin at another unit in the complex. The Crown alleges that the accused walked up the stairs to Mr Franklin’s unit yelling aggressively, and asking, “Where is that fat cunt?” apparently referring to Mr Finnemore. Mr Franklin told the accused that Mr Finnemore was in the unit and that he shouldn’t be approaching him. The accused entered Mr Franklin’s unit and repeatedly pushed Mr Franklin back onto the couch when he tried to stand up. Mr Finnemore heard the yelling and saw the accused pushing Mr Franklin and he phoned the police.
While Mr Finnemore was on the phone to police, the accused left the unit. He got on a push bike and rode around the unit shouting out, “I’m going to fucking kill you! You’re dead cunt! Both of youse are dead!” He also yelled, “If my mum dies while I am in gaol, it won’t be just me that will kill you!” (This is referred to in these reasons as “the 1 April incident”.)
The Crown alleges that on 11 April 2021 the accused approached Mr Grant who was cooking in the communal kitchen in the unit complex. After a brief conversation, the accused said the following things to Mr Grant in an angry voice and displaying clenched fists:
·“I’m fucking pissed off! I’m going to court because you are fucking lying.”
·“You’ll be going to court because you are a liar. I spent seven grand on a lawyer because you’re a lying little prick.”
·“You’re still lying! You are a lying prick, and you’re going to be the one in trouble.”
Mr Grant denied that he had lied. (This is referred to in these reasons as “the 11 April incident”.)
On 12 April 20221, Mr Finnemore and Mr Grant went to the police station, to make a complaint. While they were at the front counter, the accused approached the glass doors of the police station and made several rude gestures at them with his fingers. (This is referred to in these reasons as “the police station incident”.)
On 14 April 2021, the accused pleaded guilty in the Supreme Court to charges arising out of the conduct in the initial incident, and was sentenced by Blokland J.
The Crown does not allege that the accused engaged in the conduct in the 1 April incident, the 11 April incident and the police station incident in order to dissuade Mr Grant and Mr Finnemore from giving evidence. Rather the Crown case is that this conduct was retaliatory in nature, designed to show his displeasure at their taking action against him. Hence the nature of the present charge which is with threatening a person for giving a statement in connection with a criminal investigation, contrary to s 103A(2)(c) of the Criminal Code. The particulars of the conduct the subject of the charge consist of the conduct in the 1 April incident
The tendency notice
The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) of its intention to adduce tendency evidence.
The notice advises that the tendency sought to be proved is the tendency of the accused to retaliate against others in a threatening and/or menacing manner in response to real or perceived wrongs committed against him by third parties.
The conduct about which evidence is sought to be adduced is the conduct of the accused in the initial incident, the 1 April incident, the 11 April incident and the police station incident.
The tendency evidence is said to be relevant to whether the accused threatened to harm Adam Finnemore as a consequence of his providing a witness statement against him (ie the 1 April incident).
The defence objects to the evidence being adduced as tendency evidence.
Principles
Under UEA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.
There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence has significant probative value in relation to the issues set out above. Significance means something in between mere relevance, and a substantial degree of relevance.
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)
Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[2]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[3] Nor is it permissible to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.[4]
On the assumption that the jury accepts the evidence, the evidence set out in the tendency notice is capable of supporting proof of a tendency in the accused to retaliate against others in a threatening and/or menacing manner in response to real or perceived wrongs committed against him.
Defence counsel submitted that the incidents do not form a “pattern” in that the nature of the response was different in each case – ie violence in the initial incident; verbal threats of violence in the 1 April incident; threats of a non-violent kind in the 11 April incident; and non-verbal “threats” in the police station incident. Further, the initial incident is said to have been different in kind; it cannot be said that it was designed to show the accused’s displeasure at someone taking action against him because Mr Finnemore had taken no action against him at the time. The accused told police he had assaulted Mr Finnemore “because he wanted to ‘prove a point’ in response to Mr Finnemore playing loud music.”
These contentions place too narrow a construction on the tendency sought to be established by the Crown. The tendency sought to be established is not limited to a tendency to respond in a way that indicated his displeasure at someone “taking action against him.” Nor is it limited to a specific type of retaliation. The Crown contends that the four incidents together establish that the accused had a tendency “to retaliate against others in a threatening and/or menacing manner in response to real or perceived wrongs committed against him”. The accused’s comment to the police about “proving his point” in relation to Mr Finnemore’s loud music is certainly capable of being seen as a complaint about a “perceived wrong” (perhaps also a real wrong) by Mr Finnemore against the accused. As for the different kinds of response, each of the four responses (those in the initial incident, the 1 April incident, the 11 April incident and the police station incident) can aptly be described as “threatening or menacing”.
Further, that tendency, if established, significantly increases the likelihood that the accused acted in accordance with that tendency in carrying out the conduct charged – that is to say that he did make the threats relevant to the charges on the indictment.
The charge on the indictment reads:
The Director of Public Prosecutions for the Northern Territory, charges that JOHNNY EIAO on 1 April 2021 at Darwin in the Northern Territory of Australia, did on account of anything done by a person involved in a criminal investigation, namely, Adam FINNEMORE, threaten to cause injury to Adam FINNEMORE.
The indictment nominates s 103A(2)(c) as the legislative provision contravened. That section provides (relevantly):
(2) A person must not do any of the following on account of anything said or done by a person involved in a criminal investigation ... in good faith in the conduct of the investigation …:
…
(c)threaten ... any physical injury to a person …;
The conduct which is the subject of the charge on the indictment is the conduct in the 1 April incident and the Crown will have to prove a causal link between that conduct and Mr Finnemore’s involvement in a criminal investigation; that is to say, the Crown will need to prove the following elements of the offence beyond reasonable doubt:
(a)that Mr Finnemore had made a complaint to police;
(b)that the accused knew Mr Finnemore had made a complaint to police;
(c)that the accused intentionally threatened physical injury to Mr Finnemore; and
(d)that he did so because Mr Finnemore had made a complaint to police.
Proof that the accused has a tendency to retaliate against others in a threatening and/or menacing manner in response to real or perceived wrongs committed against him makes the existence of element (d) more likely.
I am satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence does have significant probative value.
The next step is to consider whether the evidence satisfies the requirements of UEA s 101. In a criminal trial such as this, tendency evidence is not admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[5] The notion of prejudice in this general context “… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.”[6] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[7]
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[8]
In this case, the defence submits:
There is significant and irrecoverable prejudice to the accused if the tendency material is admitted in evidence before a jury. Accordingly, there is no direction that could be given to a jury to protect the defendant from impermissible, and generalized propensity reasoning.
However, the defence has not identified any potential misuse of the evidence by the jury other than impermissible and generalised propensity reasoning. So far as the risk of propensity reasoning is concerned, the use of this kind of tendency evidence involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[9]
The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.
I do not think the risk that the jury may engage in rank propensity reasoning is very great and, in my view, it can be adequately guarded against by the usual warnings.
Balanced against this, I consider the probative value of the evidence to be high. I consider that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. The evidence specified in the tendency notice will be admitted as tendency evidence.
Relationship evidence
The evidence of the initial incident, the 11 April incident and the police station incident is also admissible as relationship and context evidence. (Evidence of the 1 April incident is directly relevant as evidence of the charged acts.) For example, the threats said to have been made by the accused to Mr Finnemore on 1 April would simply make no sense without knowledge of the context in which they occurred – namely the assault the subject of the initial incident leading to Mr Finnemore’s complaint and the police investigation.
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[1][2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ
[2]ibid at [41]
[3] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41]
[4] UEA s 94(4). See also IMM v The Queen (2016) 257 CLR 300 at [59]
[5]The Queen v AW [2018] NTSC 29 at [30]
[6] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ
[7] at [17]
[8]R v Lisoff [1999] NSWCCA 364 at [60]
[9] at [16]
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