The Queen v Rose
[2022] NTSC 3
•19 January 2022
CITATION:The Queen v Rose [2022] NTSC 3
PARTIES:THE QUEEN
v
ROSE, Liotta
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory Jurisdiction
FILE NO:22036218
DELIVERED: 19 January 2022
HEARING DATE: 18 January 2022
JUDGMENT OF: Brownhill 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 any potential prejudicial effect on the accused – evidence admissible
DAO v The Queen [2011] NSWCCA 63; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Mol v The Queen [2017] NSWCCA 76; The Queen v AW [2018] NTSC 29; The Queen v Bauer (2018) 266 CLR 56; The Queen v Grant [2016] NTSC 54; The Queen v Hiko [2018] NTSC 35; The Queen v Lisoff [1999] NSWCCA 364; The Queen v Ngatikaura (2006) 161 A Crim R 329; The Queen v Page (No 1) [2021] NTSC 2, applied.
DSJ v The Queen, NS v The Queen (2012) 215 A Crim R 349; Gilbert v The Queen (2000) 201 CLR 414; L v Tasmania (2006) 15 Tas R 381; MLW v The Queen [2018] NTCCA 19; The Queen v Ford (2009) 201 A Crim R 451; The Queen v Lock (1997) 91 A Crim R 356; The Queen v Lockyer (1996) 89 A Crim R 457; The Queen v O’Brien [2017] NTSC 34, The Queen v Zhang (2005) 158 A Crim R 504, referred to.
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 97, 101, 137.
Evidence (National Uniform Legislation) Amendment Act 2021 (NT).
J D Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2019).
Judicial College of Victoria, Victorian Criminal Charge Book.
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021).
S Odgers, Uniform Evidence Law (LawBook,16th ed, 2021).
REPRESENTATION:
Counsel:
Crown:H Riley
Accused:J Adams
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Bro2201
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Rose [2022] NTSC 3
No. 22036218
BETWEEN:
THE QUEEN
AND:
LIOTTA ROSE
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 19 January 2022)
The issues raised in this matter are whether evidence of four prior assaults committed by the accused should be admitted as tendency evidence in a trial of a charge of unlawfully causing serious harm.
At the end of argument on the issue, I ruled that the tendency evidence specified in the Crown’s notice may be admitted as tendency evidence under s 97 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘UEA’). These are my reasons for doing so.
The accused is charged with one count of unlawfully causing serious harm to Lorina Gordon (‘complainant’), contrary to s 181 of the Criminal Code 1987 (NT).
The Crown’s case is that, on 27 August 2020, the accused drank alcohol and became intoxicated. At around 5.00pm on that day, she was sitting in a common area of some flats in The Narrows, playing cards with the complainant and another person (‘SR’). The complainant and the accused had an argument, which turned into a physical altercation when the accused punched the complainant to her breast. The complainant pushed the accused away saying ‘don’t do that’. The accused pushed the complainant, knocking her to the ground. The accused climbed on top of the complainant and held her down saying, ‘I’m not gonna let go; I’m gonna suffocate her’. They wrestled on the ground, pulling each other’s hair. They were separated by SR. The complainant got up and went into one of the flats to wash her face. She came back out and asked the accused why she tried to hurt her. The accused armed herself with a knife and stabbed the complainant, causing a stab wound to the left side of the complainant’s skull. The complainant fell to the ground unconscious. SR provided first aid, wrapping a t-shirt around the complainant’s head. Police were contacted. When they arrived, the accused was seen to be very aggressive, yelling and swearing at people who approached or spoke to her. Police asked the accused if she had a knife on her and she said someone had taken it off her. She was placed under arrest for assault. The complainant was taken to hospital and found to have a superficial cut on her scalp which was not actively bleeding. A CT scan showed she had a left temporal subgaleal haematoma, which is bleeding between the membrane that covers the outer surface of the skull bone (the skull periosteum) and the flat tendon-like material that anchors a muscle to bone (aponeurosis) that covers the upper part of the skull (the scalp galea aponeurosis). The CT scan also identified a foreign body in the vertex of her skull measuring 8mm x 4mm which was triangular in shape. This was thought to be the tip of the knife. The foreign body was removed and the wound debrided during surgery on 29 August 2020. The complainant was discharged from hospital on 30 August 2020.
At the time the issue the subject of this decision arose, the accused denied that she had stabbed the complainant with a knife or otherwise caused the complainant’s injuries.
Tendency evidence
The Crown has given notice under s 97(1) of the UEA of its intention to adduce tendency evidence.
The notice advises that the tendencies sought to be proved are the tendency of the accused:
(a)to have a particular state of mind, namely:
(i) a willingness to engage in violence; and
(ii) a willingness to use weapons; and
(b)to act in a particular way, namely:
(i)to engage in violent conduct against other persons, particularly whilst intoxicated;
(ii)to respond to (perceived or real) threats or grievances in an excessive manner; and
(iii)to take up weapons and apply them in a violent manner causing harm.
The Crown seeks to adduce evidence about conduct that is the subject of convictions of assault made after the accused pleaded guilty, as follows:
Offence date
Offence
Summary of conduct
Evidence
16 December 2019
Assaulted a paramedic attending on the accused
The accused became intoxicated and tripped over. Paramedics attended to treat her injuries. The accused was making it difficult for the paramedics to administer treatment or assist her. The victim paramedic was telling the accused to control her breathing when the accused turned around, looked at the victim and punched her with a closed fist to her face without warning.
Certificate of proceedings[1] and facts admitted in the proceedings
15 November 2016
Assaulted a man she did not know
The accused went to the Smith Street Mall whilst intoxicated. She came across the victim, who she did not know. They had a brief conversation before the accused became uncomfortable. As the victim walked away, the accused approached him from behind and took hold of his hair. She pulled it with force, causing him to fall backwards and hit his head on the concrete. She took a pen from her pocket and stabbed him with the pen to the shoulder and the neck before pulling him to the ground again by the hair. The accused held the victim’s hair, lined up the pen with his eye and stabbed his eye with force. He suffered serious harm. The injury to his eye required surgical intervention to treat orbital compartment syndrome.
Certificate of proceedings and facts admitted in the proceedings
21 November 2015
Assaulted a man
The accused was drinking with the victim and others and became intoxicated. Without warning, she picked up an empty 700ml vodka bottle, striking down with it to the victim’s knee. The force of the blow smashed the bottle across his knee, cutting his leg and causing significant pain. The accused assisted to stop the bleeding by applying clothing, then left the area when Police arrived
Certificate of proceedings and facts admitted in the proceedings
11 February 2015
Assaulted a woman, her niece
The accused was at the home of her niece, the victim. The accused walked into the house and picked up a kitchen knife. She approached the victim from behind and stabbed her to the shoulder area. The victim felt her shoulder bleeding and called Police
Certificate of proceedings and facts admitted in the proceedings
The tendency evidence is said to be relevant to the following facts in issue:
(a)whether the accused engaged in the alleged conduct, namely stabbed the complainant to her skull with a knife;
(b)whether the accused caused the injuries suffered by the complainant on 27 August 2020; and
(c)to rebut any defence proposition that, in causing the injuries, the accused was acting in self-defence.
Defence counsel argued that the fact referred to in paragraph (b) is no different in substance to the fact referred to in paragraph (a). The prosecutor argued that the fact referred to in paragraph (b) is the specific fact of causation of the complainant’s injuries, whereas the fact referred to in paragraph (a) comprises the more general facts of the alleged offending comprising an assault with a knife causing the complainant’s injuries.
The defence resists the admission of the proposed tendency evidence on the basis that it does not satisfy the test in s 97 of the UEA.
Under s 97 of the UEA, 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 issue about the adequacy of the notice, which was served months before the trial was due to start.
The other question under s 97 is whether the evidence has significant probative value in relation to the facts in issue set out above at paragraph [9].
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen (2017) 263 CLR 338 (‘Hughes’) at [16]:
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]
At [40], the High Court observed that:
…The test posed by s 97(1) is as stated in Ford (2009) 201 A Crim R 451 at [125]: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Assessing the probative value of proposed tendency evidence is, generally speaking, therefore a two stage process. As the plurality said in Hughes at [41]:
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 Crown argued that the proposed tendency evidence strongly supports proof of the tendencies and the tendencies strongly support proof of the facts making up the offence charged. This submission adopted the language of the High Court in the last sentence of the extract from Hughes set out in paragraph [17] above.
As the prosecutor accepted, in that statement, the Court was not laying down a threshold of admissibility, or equating the requirement of ‘significant probative value’ in s 97 with ‘a high degree of probative value’ so as to invoke the circumstances covered by the words ‘strongly supports’. To so conclude would be inconsistent with their Honours’ observations at [17] of Hughes, that 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, citing the observation of French CJ, and Kiefel, Bell and Keane JJ in IMM v The Queen (2016) 257 CLR 300 (‘IMM’) at [46] that Cross on Evidence suggests that a significant probative value is a probative value that is important or of consequence, and that ‘the evidence must be influential in the context of fact-finding’.
The critical question is whether the tendency evidence has significant probative value. I agree with the observation of Kelly J in The Queen v Page (No 1) [2021] NTSC 2 at [10] that ‘significance’ means something in between mere relevance and a substantial degree of relevance.[2] As Grant CJ observed in The Queen v Hiko [2018] NTSC 35 at [9], this resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[3]
The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to have the state of mind and/or 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.[4]
The Crown argued that the proposed evidence establishes the tendencies to a significant extent, and that the tendencies make the facts in issue more probable to a significant extent, essentially because past violent behaviour, including whilst intoxicated and involving the use of weapons, against persons in an excessive response to some perceived threat or grievance, demonstrates a tendency to act in that way, which readily supports the likelihood of engagement in such behaviour as alleged by the Crown in the present case. The Crown argued that there are significant similarities of conduct and circumstance between the past conduct and the alleged conduct.
The defence argued that there was nothing ‘unusual’ about the past assaults or the tendencies, and that there was no ‘underlying unity’ between the conduct comprising the past assaults and the alleged offending, which makes significantly more likely the facts making up the charged offence. The defence argued that ‘every’ aggravated assault involves violence, that most assaults are opportunistic, that every assault involves an excessive response to a perceived threat or grievance, and that it is very common for the offender in an assault to take up a found weapon and apply it in a violent manner.
Regardless of the accuracy of those generalised statements, they were put in support of a submission which inaccurately states the law in language redolent of the common law regarding similar fact evidence and propensity reasoning.
The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.[5] Showing only a disposition to commit crimes of the kind in question will not be sufficient.[6] There must be something which ‘links the two together’ for the tendency evidence to be capable of affecting the assessment of the likelihood that the accused committed the offence charged to a significant extent.[7] The probative value of tendency evidence commonly depends upon the degree of similarities between the conduct said to give rise to the tendency and the conduct the subject of the alleged offending, and the circumstances in which both took place.[8] However, as the High Court observed in the extract set out in paragraph [17] above, there is a danger in focussing on labels such as ‘underlying unity’, rather than applying the two step analysis there referred to.
Each of the 2015 and 2016 assaults involved the use of a weapon against a person which inflicted a significant injury to the victim. The conduct strongly supports the tendencies to act by engaging in violent conduct whilst intoxicated, to take up weapons and apply them violently, causing harm, and to respond to perceived threats or grievances in an excessive manner. Further, those tendencies clearly support the proof of the facts that make up the charged offence, namely that the accused took up a knife and stabbed the complainant to the head with it, causing the injuries she suffered, in an excessive response to a perceived grievance or threat.[9] They also clearly refute any defence that she acted in self-defence or upon provocation.
In my view, the hypothetical jury would rationally think it likely that the evidence of the 2015 and 2016 assaults is important in relation to the determination of the fact(s) in issue.
The 2019 assault of the paramedic did not involve the use of a weapon and did not result in any significant injury to the paramedic. The defence argued that these differences mean this evidence does not have significant probative value.
In three of the four instances of past conduct, including the 2019 assault of the paramedic, the accused was intoxicated. In the alleged offending, she was intoxicated. In each of the instances of past conduct, including the 2019 assault of the paramedic, the violent conduct occurred without warning to the victim and appeared to ‘come out of the blue’, and was an excessive response to the immediately preceding interaction between the accused and the victim. In the alleged offending, the violent conduct (stabbing the victim in the head with a knife) occurred after the altercation between the accused and the complainant was over, the victim had gone to wash her face, returned outside where the accused was, and asked the accused why she had hurt her. It also occurred without warning to the victim, ‘out of the blue’, and was disproportionate to the immediately preceding interaction between the accused and the complainant (which involved pushing, wrestling and hair pulling).
The probative value of the evidence of the 2019 assault of the paramedic is to be assessed by considering that evidence by itself or having regard to other evidence to be adduced by the Crown (s 97(1)(b)). When it is considered with the other tendency evidence, which relates to a period between February 2015 and November 2016, its probative value is enhanced because it can show that the tendencies of the accused to act in a violent manner when intoxicated and to respond to perceived threats or grievances in an excessive manner which she had in that period have persisted into the more recent past, being some eight months before the alleged offending.
In my view, the hypothetical jury would rationally think it likely that the evidence of the 2019 assault of the paramedic is important in relation to the determination of the fact(s) in issue.
Consequently, I consider that all of the proposed tendency evidence has significant probative value. I am therefore satisfied that the threshold test in s 97 has been met.
In a criminal trial, tendency evidence is not admissible unless the probative value of the evidence outweighs any prejudicial effect it may have on the accused. 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.
Recent amendments to the UEA have changed the test under s 101(2): no longer is the requirement for admissibility that the probative value of the evidence substantially outweigh its prejudicial effect; it need only outweigh the danger of unfair prejudice to the defendant.[10]
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[11] 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.’[12] In other words, evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted.[13] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect. For example, the jury may be influenced to convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence and give it disproportionate weight, or may be distracted from the central issues in the trial, say, by an emotional or irrational response to the evidence.
The plurality in Hughes (at [17]) explained the kinds of potential prejudice that can arise in a criminal trial as follows:
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.[14]
As part of this assessment, the Court must take into account the ameliorating effect of any directions that may be available to reduce the risk of prejudice.[15]
In this case, the defence asserted that there was a risk of the following kinds of prejudice:
(a)that the jury might give the evidence more weight than it deserves by thinking that someone with the accused’s tendencies will yield to them whenever the opportunity arises; and
(b)that the jury might engage in propensity reasoning from the tendency evidence depicting the accused’s bad character.
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 (at [16]):
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 appropriate use of tendency evidence, and the risk of giving the tendency evidence inappropriate weight, are amongst the directions commonly given by a trial judge to a jury where tendency evidence is admitted.[16]
The Crown conceded there is a risk that the jury would have an emotional response (essentially undue animosity towards the accused) to the evidence of the 2019 assault of the paramedic because the paramedic was seeking to assist the accused, was doing her job, and paramedics are generally held in high regard amongst the community for the work that they do. Such emotional response might cause the jury to seek to punish the accused for that conduct rather than assessing, on the evidence, whether she committed the offence charged. I consider the risk of prejudice to be low given the nature of the conduct. It is not offending of such an order as to give rise to an extreme emotional response likely to sway the jury from reasoning rationally and objectively. In my view, the risk that the jury may be emotionally affected can be accommodated by suitable directions.[17]
I do not consider there to be a real risk of misuse of the evidence by the jury of the 2019 assault of the paramedic by giving the evidence more weight than it deserves. That evidence is not the only tendency evidence in support of the proposed tendency reasoning, and it is not the only evidence in support of the Crown’s case. In addition to the complainant, evidence is to be called from SR, potentially an eye witness, and from other witnesses who were present at the time of the alleged offending or immediately after. In context, I do not consider there to be a real risk that the jury may place too much reliance on the conduct of the accused in 2019, without properly allowing for the possibility that she did not engage in the alleged conduct.
Balanced against this, the significant probative value of the evidence is not outweighed by any prejudicial effect it may have on the accused.
For the above reasons, I ruled that the tendency evidence specified in the Crown’s notice may be admitted as tendency evidence under s 97 of the UEA.
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[1]The tendency notice did not include the Certificates of proceedings, but the Crown intends to obtain those and include them in the tendency evidence to be tendered at trial if the evidence about the conduct is ruled admissible.
[2]See also The Queen v Hiko [2018] NTSC 35 at [9] per Grant CJ; L v Tasmania (2006) 15 Tas R 381 at [31] and The Queen v Lockyer (1996) 89 A Crim R 457 at 459 per Hunt CJ at CL.
[3]Citing The Queen v Zhang (2005) 158 A Crim R 504 at [46]; The Queen v Ford (2009) 201 A Crim R 451 at [52]; DSJ v The Queen, NS v The Queen (2012) 215 A Crim R 349 at [67], [71], [72]; The Queen v Lock (1997) 91 A Crim R 356 at 361.
[4]IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].
[5] Hughes at [40].
[6] See S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021) 740, citing Taylor v The Queen [2020] NSWCCA 355 at [150] per Beech-Jones J (Walton J agreeing).
[7] Ibid.
[8] Ibid 743-745.
[9] The accused assaulted her niece in 2015 because she ‘did not come to a sorrow meeting’. The accused assaulted the man with the pen in 2016 because she ‘felt uncomfortable and lost it’. The accused assaulted the man with the vodka bottle in 2015 whilst drinking with him and her brother-in-law and other people, and the victim was sitting on the grass talking to another person. What prompted her to act is unknown.
[10] The amendment was effected by the Evidence (National Uniform Legislation) Amendment Act 2021 (NT), which commenced operation on 1 April 2021.
[11]The Queen v AW [2018] NTSC 29 at [30].
[12]HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[13]The Queen v Grant [2016] NTSC 54 at [61] per Grant CJ (‘Grant’).
[14]The Queen v Lisoff [1999] NSWCCA 364 at [60]; Grant at [61].
[15] See DAO v The Queen [2011] NSWCCA 63 at [172] per Simpson J (Spigelman CJ, Allsop P, Kirby and Schmidt JJ agreeing); The Queen v Ngatikaura (2006) 161 A Crim R 329 at [32] per Beazley JA; Mol v The Queen [2017] NSWCCA 76 at [36] per Payne JA.
[16] See, for example, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, [4-227]; Judicial College of Victoria, Victorian Criminal Charge Book, [4.18.1]. See also MLW v The Queen [2018] NTCCA 19 at [89].
[17]See The Queen v O’Brien [2017] NTSC 34 at [42] per Grant CJ, citing Gilbert v The Queen (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J: ‘The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’
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