Vojneski v The Queen
[2015] ACTCA 44
•31 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Vojneski v The Queen |
Citation: | [2015] ACTCA 44 |
Hearing Date: | 15 July 2015; 14, 25 August 2015 |
DecisionDate: | 31 August 2015 |
Before: | Penfold J |
Decision: | Leave is granted to the applicant to appeal out of time against his conviction for murder, and for that purpose to amend the notice of appeal against sentence filed on 12 November 2014, including by adding proposed grounds of appeal (f) and (g) as set out at [37] below. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – APPEAL AND NEW TRIAL – leave to appeal conviction out of time – explanation for delay – prejudice to Crown – merits of proposed appeal – whether reasonable probability of miscarriage of justice if leave refused. EVIDENCE – Admissibility and Relevance – tendency evidence – capacity of evidence to prove tendency – probative value of tendency evidence to prove fact in issue – fact in issue was appellant’s presence at murder – failure to identify probative value of evidence in relation to accused’s presence – evidence otherwise highly prejudicial. |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Criminal Appeal Act 1912 (NSW), s 6(1) Supreme Court Act 1933 (ACT), ss 37J, 37O, 37O(2)(a)(i), 37O(2)(a)(ii), 37O(2)(a)(iii), 37O(3) |
Cases Cited: | CW v The Queen [2010] VSCA 288 Dupas v The Queen (2012) 40 VR 182 Saoud v R (2014) 87 NSWLR 481 The Queen vMeyboom (2012) 256 FLR 450 Velkoski v The Queen [2014] VSCA 121 |
Parties: | Aleksander Vojneski (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Gill (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 20 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 11 November 2014 Case Title: R v Vojneski Citation: R v Vojneski (No 4) [2014] ACTSC 307 |
Introduction
On 3 September 2014, Aleksander Vojneski was found guilty by a jury of the murder of Paula Conlon on 27 March 2012.
On 11 November 2014, he was sentenced to life imprisonment.
No notice of appeal against the finding of guilt was filed, but Mr Vojneski filed a notice of appeal against his sentence on 12 November 2014.
The application
On 7 May 2015, Mr Vojneski, by new solicitors, filed an application for leave to appeal out of time against his conviction. That leave was granted by the Registrar on 2 June 2015. The Director of Public Prosecutions (DPP) has appealed against that grant of leave.
The appeal from the Registrar’s decision is an appeal de novo, and may be determined by a single judge of the Court of Appeal (Supreme Court Act 1933 (ACT), s 37J). Mr Vojneski has provided a draft amended notice of appeal, which shows the addition of two appeal grounds relating to the conviction appeal, both referring to the tendency evidence admitted in Mr Vojneski’s trial.
Affidavits were filed on behalf of Mr Vojneski about the reasons for delay in appealing the conviction.
On the application, the DPP filed a substantial affidavit affirmed by Emilija Beljic detailing, among other things, the circumstances said to show that a grant of leave to appeal would significantly prejudice the Crown.
Leave to appeal out of time from a conviction
General principles
The grant of leave to appeal out of time from a conviction was considered by Refshauge J in The Queen vMeyboom (2012) 256 FLR 450 (Meyboom) and again in Merrilees v The Queen [2014] ACTCA 10. His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 (Parker), as follows:
6 In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
7 There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
...
17 What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused. This was emphasised by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 165-166 when they said:
"In these circumstances, we think the appropriate course is to refuse the applicants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court to which we have earlier referred. But, before doing so, we have satisfied ourselves that no injustice has been caused to the applicants, and that no miscarriage of justice has occurred."
...
19 There will always be an onus on the applicant to explain the reasons for the delay - and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
Application in criminal matters
The principles found in Hunter Valley Developments Pty Ltd v Cohen(1984) 3 FCR 344 (Hunter Valley) were set down in the context of an application for an extension of time within which an application could be made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision under the Income Tax Assessment Act 1936 (Cth). In Parker, the Full Court concluded at [7] that there was no reason why such principles should not also apply in the criminal jurisdiction:
save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
Threshold test
The Full Court went on to add what appears to be a further qualification on the principles it had adopted from the civil jurisdiction, saying at [19] that the inadequacy of the explanation for the delay, any prejudice to the Crown, and any similar matters:
cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
In Mraz v R (No 1) (1955) 93 CLR 493 (Mraz) (quoted at [34] below), the High Court said that on a criminal appeal as such, it is for the Crown to make it clear that there is no real possibility that justice has miscarried. The Full Court in Parker did not explicitly address the question of which party to an application for leave to appeal out of time carries the burden of satisfying the court about any miscarriage of justice, nor the nature of the burden carried. The Full Court’s formulation (“if the Court is of the opinion that there is a reasonable probability” of a miscarriage) might be read as suggesting that the applicant is required to establish that matter, but only on the balance of probabilities. As well, the reference to “a miscarriage of justice” seems to set a lower threshold than the “proviso” applicable to criminal appeals in the Supreme Court, to the effect that an appeal must be dismissed (at [35] and [36] below) if the court considers that there has been no substantial miscarriage of justice, a matter which as noted must be established by the Crown.
This reading, however, seems to conflict with another formulation, relied on by Refshauge J Meyboom, that requires consideration of the prospects of success on appeal. If an assessment of prospects includes an assessment of the likely application of the proviso, then the test seems to differ from that articulated in Parker.
In the absence of authority, I am inclined to the view that the test for the granting of leave may appropriately set a lower threshold (being a “simple” miscarriage of justice), leaving the question of whether there has been a substantial miscarriage of justice to be determined by the Court of Appeal, constituted by three judges and with the capacity to obtain a more detailed knowledge of the trial as a whole than can be obtained in the context of dealing with a leave application.
Nature of prejudice
There is a further complication in the adoption of the Hunter Valley principles by the Full Court in Parker. Principle 3 in the Full Court’s summary refers to “any prejudice to the respondent in defending the proceedings”, but in Hunter Valley, the court referred to “any prejudice to the respondent including any prejudice in defending the proceedings” (emphasis added).
Prejudice in defending the proceedings is likely to be relatively less significant in the context of conviction appeals, where the more significant prejudice is likely to be suffered not in responding to the appeal but in attempting to conduct any new trial that might be ordered on a successful appeal. Of course, there is an argument that this prejudice should not outweigh the applicant’s claim to have his or her appeal heard, given that a new trial would only be ordered if the appeal court concludes that there has been a substantial miscarriage of justice (Supreme Court Act s 37O(3)).
Furthermore, the re-opening of criminal matters after the expiry of legislated appeal periods may have other “prejudicial” impacts, in particular the impact on victims and their family members as well as on witnesses more generally. Such people will suffer even if the appeal is ultimately unsuccessful and there is no new trial, and will suffer for a longer period and perhaps more intensely if a new trial is ordered. In some cases that suffering may consist only of a further period of feeling unsettled, but in other cases people may be seriously traumatised, including by the re-opening of a matter that they believed they could put behind them. These considerations, among others, underlie what the Crown identified as the “principle of finality”.
These are all matters that must be seriously considered. Whether “prejudice” arising from distress to those involved in the matter could outweigh the need to ensure that accused people receive fair trials is a more difficult question, especially given that such prejudice does not seem to be a consideration in the hearing of an appeal as such.
On the other hand, there may be a place for a consideration of prejudice in some cases, given that the probability of a miscarriage of justice is not a pre-requisite for a grant of leave but a barrier to a refusal of leave.
The court in Parker did not consider the question of prejudice to the Crown in any depth, focusing instead on the merits of the proposed appeal and concluding that there had been no miscarriage of justice in the applicant’s trial and that the applicant had been unable to demonstrate any prospects of success on the proposed appeal.
Summary
I conclude that the principles adopted by the Full Court, expanded in the light of the above comments, require the consideration of the following matters on an application for leave to appeal out of time:
(a)Whether there is an acceptable explanation for the delay in filing a notice of appeal and, where applicable, in filing the application for leave to appeal out of time, and whether the explanation is sufficient to justify by-passing the legislated time-limits, having regard among other things to the applicant’s actions otherwise than in relation to the attempt to file an appeal.
(b)That prejudice to the respondent militates against a grant of leave, but absence of prejudice does not of itself justify a grant of leave.
(c)That prejudice to the respondent Crown might include:
(i)prejudice in conducting the appeal,
(ii)prejudice in conducting any new trial or other proceedings that might be ordered, and
(iii)the negative effects of a grant of leave on individuals, whether victims or others, who will be affected by the re-opening of proceedings after the expiry of the statutory appeal periods without any appeal having been filed.
(d)That the merits of the appeal are relevant to whether leave should be granted and, in particular, that leave should not be refused if the court considers that there is a reasonable probability that refusal might cause a miscarriage of justice.
Explanation for delay
The explanation for delay was provided in two affidavits sworn by Mr Vojneski’s new solicitor, Darryl Perkins. In summary, the evidence indicated that Mr Vojneski had been advised by his original lawyers that there were no grounds for a conviction appeal, and accordingly no such appeal was filed.
However, Mr Vojneski’s grant of legal aid for the sentence appeal was (apparently at the instigation of the ACT Legal Aid Office) moved to a different law firm, and Mr Vojneski’s new lawyers considered that there was some scope for a conviction appeal. On Mr Vojneski’s instructions, they had then sought counsel’s advice about drafting the grounds for the conviction appeal. For various reasons, this seems to have taken a long time, although I note that once the appeal period had expired and leave to appeal would need to be sought, there was probably little scope for filing a “holding appeal” and amending the grounds later on (because the grant of leave to appeal out of time would depend to a significant extent on whether the grounds of appeal seemed to have any substance).
I note also that an attachment to Ms Beljic’s affidavit records that on 12 February 2015, the Crown was represented at a mention of the sentence appeal before the registrar, and it was noted that counsel’s advice was being sought about appealing Mr Vojneski’s conviction.
Mr Vojneski’s explanation for the delay is not particularly persuasive. There is no suggestion that Mr Vojneski’s first lawyers were incompetent in advising that there were no grounds for a conviction appeal, and they may turn out to have been right. On the other hand, it is apparent that there is nothing to criticise in Mr Vojneski’s own conduct in relation to the appeal: at each point he has simply accepted his lawyers’ advice.
Prejudice to the respondent Crown
General
It was conceded on the application that there would be no particular prejudice to the Crown in defending the appeal. The prejudice that was identified related to the prospect of having to conduct a second trial of Mr Vojneski, but it was not claimed that that prejudice arose from issues such as the fading memories or even unavailability of witnesses. Rather, the Crown focussed on the need for finality, and said that the prejudice in this case arose from the disruption and distress that the prospect of a new trial would cause several particularly vulnerable witnesses and other people concerned with the trial.
The fact that the Crown has been on notice of the possible application for leave to appeal Mr Vojneski’s conviction since February this year would have done little or nothing to ameliorate prejudice of that kind.
Impact on witnesses and family members
Ms Beljic’s affidavit set out the description given to her by the prosecutor who conducted the trial of the impact of the original trial on various people involved:
(a)Ms Conlon’s three daughters, the oldest of whom was in May this year 15 years old, have been seriously affected by the loss of their mother. The eldest daughter gave evidence at the trial, which distressed her to the extent that “it impacted on her mental health”. All three girls have been receiving (presumably psychological) therapy, which was structured into two phases, the first aimed at helping them cope with the trial and the period leading up to it, and the second phase aimed at enabling them to deal with the outcome of the trial and the associated publicity. The prosecutor understands that the second phase of the therapy is now “well advanced”. Although the prosecutor did not spell this out, I take these comments to indicate that a new trial is likely to interrupt the progress of this therapy and possibly require some or all of the process to be repeated.
(b)One of the key Crown witnesses was a young man (aged 16 at the time of Ms Conlon’s death) who had been boarding with Ms Conlon and who was in the house at the time she was killed. The prosecutor explained that he had “significant psychological issues” after the killing that were aggravated by his anticipation of the trial. He required psychological supervision and support before, during and after the trial, apparently including protection against self-harm, and what was described as “significant post-trial therapy” in relation to both Ms Conlon’s killing and his own experience of giving evidence.
(c)Ms Conlon’s parents live in England. They came to Australia for Ms Conlon’s funeral and for the trial. The prosecutor said that only Ms Conlon’s mother could afford to return to Australia for Mr Vojneski’s sentencing. I interpret these comments as indicating that Ms Conlon’s parents would wish to attend any re-trial of Mr Vojneski, but would find this a significant financial burden and might not in fact be able to attend.
As well, Ms Beljic’s affidavit drew attention to the Victim Impact Statements provided by Ms Conlon’s parents, and by Ms Conlon’s estranged husband and his father about the impact of Ms Conlon’s death on her children. Unsurprisingly, all these statements provide a harrowing insight into the distress caused to Ms Conlon’s family members, and the burdens they have carried since her death. Ms Conlon’s parents specifically mention the difficulties they experienced in attending Mr Vojneski’s trial and sentencing, and the difficulties they have experienced since the trial in working out how to go on without their daughter.
I accept that the prospect of a new trial being ordered on appeal, and even more significantly the obligation to take part in any new trial that is ordered, will be extraordinarily distressing to some of the witnesses, and also to some other people with a particular interest in the trial, such as Ms Conlon’s parents.
Protection of vulnerable witnesses
I understand that there was no audio-visual recording of the evidence of either of the young witnesses mentioned. Even if such recordings had been made, there would be no basis for them to be admitted as the evidence of the witnesses concerned in any re-trial, because s 43A of the Evidence (Miscellaneous Proceedings) Act 1991 (ACT) currently makes such provision only in relation to the evidence of complainants and similar act witnesses in sexual offence proceedings.
A further amendment of the Evidence (Miscellaneous Proceedings) Act to permit the evidence of other vulnerable witnesses to be recorded and admitted at any re-trial (presumably subject to the same qualifications as appear in s 43A) might usefully be considered by the policy-makers at some stage.
Merits of proposed appeal
What is a miscarriage of justice?
In Mraz, the High Court considered the application of s 6(1) of the Criminal Appeal Act 1912 (NSW), which was as follows:
The court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The provision is very similar to the current s 37O of the Supreme Court Act, which is relevantly as follows:
(2) The Court of Appeal on an appeal against conviction must—
(a) allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground
that it is unreasonable, or cannot be supported, having
regard to the evidence; or
(ii) the judgment of the court before which the appellant was
convicted should be set aside on the ground of a wrong
decision of any question of law; or
(iii) on any other ground there was a miscarriage of justice; or
(b) dismiss the appeal.
(3) However, the Court of Appeal may also dismiss an appeal against
conviction if it considers that—
(a) the point raised by the appeal might be decided in favour of the
appellant; but
(b) no substantial miscarriage of justice has actually occurred.
In Mraz at 514, Fullagar J (with whom Williams, Webb and Taylor JJ agreed) said:
9. It is very well established that the proviso to s. 6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.
The High Court has recently reviewed provisions of the kind set out in s 37O, in the context of their application to judge-alone trials, in Filippou v The Queen [2015] HCA 29 (Filippou). In that case, French CJ, Bell, Keane and Nettle JJ said:
11. Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt "for all purposes". It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.
12. Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen:
"It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
13. Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.
14. The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.
15. That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied" the proviso must be applied. (citations omitted)
In summary, a finding by the Court of Appeal that the test in s 37O(2)(a)(i) of the Supreme Court Act is satisfied will exclude the application of the “proviso” (s 37O(3)). A finding that s 37O(2)(a)(ii) or (iii) is satisfied will require consideration of whether there has been a substantial miscarriage of justice; if not, the appeal must be dismissed.
Grounds of appeal
The proposed grounds of appeal against conviction were set out in the draft amended notice of appeal, as follows:
f.That the trial judge erred in admitting evidence pursuant to the tendency rule to establish:
i. A tendency to become quickly aroused to anger and to act violently when angered;
ii. A tendency to threaten people with knives;
iii. A tendency when angry to use knives to inflict harm on people or damage objects;
iv. A tendency to act violently when under the influence of alcohol or marijuana or a combination thereof;
v. A tendency to become angry and violent when people do not provide him with money for drugs
when the probative value of the evidence did not substantially outweigh the prejudicial effect of the adduction of evidence of the incidents, either individually or cumulatively.
g. The trial judge misdirected the jury as to how to assess the tendency evidence:
i. By directing the jury that they should not ask themselves whether there are similarities between the tendency incidents and the events of 27 March;
ii. By directing the jury to have regard to the proportionality of the Appellant’s actions as evidenced by the tendency incidents;
iii. By directing the jury that the reason for the Appellant being angry may be of less importance than what he did when he was angry.
In summary, those grounds challenge his Honour’s decision to admit evidence of eight incidents of earlier behaviour by Mr Vojneski for tendency purposes, and the directions his Honour then gave the jury about how that evidence could be used.
Whether the tendency evidence was erroneously admitted, and whether the jury was properly directed about that evidence, raise different although obviously related issues.
First ground – admission of tendency evidence
The Crown’s tendency application (together with a coincidence application) was heard on 30 January 2014, nearly six months before Mr Vojneski’s trial. The appellant identified 14 incidents sought to be admitted to establish six specified tendencies. The trial judge, by judgment given on 11 April 2014 (R v Alexander Vojneski [2014] ACTSC 66), determined that eight of the 14 incidents were admissible to establish five of the specified tendencies.
The trial judge’s approach
His Honour’s approach to the tendency application involved a number of steps.
First, at [15], he listed the six tendencies sought to be established, being:
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.
At [17] to [30], his Honour described the 14 incidents.
Next, at [31] to [34], his Honour reviewed the origins of the uniform Evidence Act provisions relating to tendency and coincidence evidence. He then noted several developments in the interpretation of the Evidence Act 1995 (NSW), including that in 2003 (R v Ellis (2003) 58 NSWLR 700) the NSWCCA concluded by majority (at [99]) that, in applying the test for admission of tendency or coincidence evidence under s 101 of the Evidence Act, “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”.
At [37] to [41], his Honour noted that the presumptive inadmissibility of “propensity evidence” arose not from its irrelevance but from its potential to be disproportionately prejudicial to the accused, and then proceeded to discuss the process of weighing probative and prejudicial value.
His Honour then noted at [42] that the probative value of evidence is the extent to which evidence is capable of affecting the probability of a fact in issue and that therefore the tendency to be proved by the evidence in question must be a relevant tendency, that is, a tendency “relevant to establishing a fact that the tribunal of fact can rationally use to prove a charge against the accused”. His Honour quoted the comments of Simpson J in R v Cittadini (2008) 189 A Crim R 492 at [20] – [23], to that effect, including these:
22 Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to 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.
Next, the trial judge discussed the need for “significant” probative value and for that probative value to outweigh the prejudicial effect of the evidence (at [44] – [47]). His Honour noted the difference of opinion between the NSW Court of Criminal Appeal and the Victorian Court of Appeal apparent in the cases of R v Shamouil (2006) NSWLR 228 and Dupas v The Queen (2012) 40 VR 182 (in each case arising in relation to s 137 of the uniform Evidence Act) about whether the assessment of the probative value of evidence being considered for admission involves deciding how the evidence could be used by the fact-finder (Shamouil) or how it would be used (Dupas), but concluded that in the particular case he would have reached the same conclusion on either test.
His Honour then referred (at [48] to [50]) to the relevant elements to be proved. He noted, in effect, that although Mr Vojneski had served an alibi notice, it must be assumed that if his alibi was rejected, the Crown was still required to prove that he had caused Ms Conlon’s death and that he had done it with a particular state of mind, being:
(a)that he intended to kill her;
(b)that he was recklessly indifferent to the probability of killing her; or
(c)that he intended to cause serious harm to her.
That is, his Honour said, the relevant issues were whether Mr Vojneski was the person responsible for Ms Conlon’s death and, if so, whether he had the necessary state of mind for a verdict of guilty of murder.
At [51], his Honour concluded:
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.
His Honour’s comment implies a conclusion that the tendencies identified could be relevant in answering either or both of the questions:
(a)whether Mr Vojneski rather than someone else was the person who caused the death of Ms Conlon; and
(b)whether Mr Vojneski, in causing the death of Ms Conlon, had one of the necessary states of mind.
His Honour then outlined the fundamental propositions put by the Crown, and said that the Crown’s case theory was, simply, that Mr Vojneski became angry in circumstances where he has become angry in the past, and resorted to the use of a knife, as he had done in the past. [53] His Honour concluded that “there is nothing in this scenario that is complex, or beyond the ability of a jury to comprehend”.
Finally, his Honour at [54] to [73] worked through the 14 incidents identified by the Crown, determining in each case whether the evidence was capable of being used by the jury, taken with other evidence sought to be adduced as tendency evidence, or possibly other evidence more generally, to establish one or more of the tendencies alleged by the Crown. For that purpose his Honour considered, in relation to each incident:
(a)whether it had probative value;
(b)whether it had significant probative value; and
(c)whether its probative value outweighed its prejudicial value.
Criticism of this approach
However, what his Honour did not do was to discuss the nature of the inquiry into the probative value of tendency evidence, or to examine how the tendencies asserted by the Crown could make it more probable that it was Mr Vojneski who was present when Ms Conlon was killed. It is these questions that were raised on behalf of Mr Vojneski in submissions about the first ground of the proposed conviction appeal, by reference to two 2014 cases which again might reflect a divergence in views between the NSW and Victorian Courts of Appeal but which for present purposes seem to be making the same points. They are discussed briefly at [81] to [88] below.
Before pursuing the applicant’s challenge to his Honour’s approach, however, it is necessary to set out the relevant parts of his Honour’s analysis of the various incidents.
Analysis of the incidents
All the tendency evidence admitted was admitted to prove tendency (a), namely:
a. a tendency to become quickly aroused to anger and to act violently when angered.
Evidence of some of the incidents concerned was also admitted in relation to one or more of the other five tendencies.
The eight incidents ultimately admitted were summarised by his Honour, and he dealt with them, as follows:
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. ...
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. ...
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. ...
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 ...
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. ...
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
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. ...
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 ...
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. ...
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 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. ...
Incident 9 - consideration
64. The evidence concerning Incident 9 is found in a taped record of conversation between police and Moira Catto conducted on 30 March 2012. Ms Catto 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 Ms Catto 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 ....
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 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. ...
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. ...
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. ...
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....
An examination of his Honour’s individual assessments reveals that they address whether the incidents are probative of the tendency rather than whether the tendency is itself probative. What seems to be missing from his Honour’s analysis is a properly articulated assessment of whether the tendency sought to be established has significant probative value in relation to the relevant elements of the offence.
In relation to each incident, his Honour concluded that evidence of the incident could, together with other evidence, establish the relevant tendency. His conclusion about the significance of the tendencies, however, is that set out at [51], being:
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 difficulty with this approach is that in this case the Crown sought to rely on these tendencies to establish that Mr Vojneski and not someone else had killed Ms Conlon.
Despite his Honour’s reference to the need for the Crown to prove Mr Vojneski’s state of mind, that matter does not seem to have been genuinely in issue by the time the trial took place. In the summing up, the trial judge reminded the jury that defence counsel had conceded in his opening that the jury would probably accept that whoever killed Ms Conlon, at the very least, intended to cause serious harm to her; of course, this concession may not have been indicated to his Honour when the tendency application was dealt with.
In any case, given that the two possible facts in issue raised such different questions in relation to the probative value of the tendency evidence, his Honour’s failure to assess the various incidents separately by reference to each of those facts in issue itself raises issues about the correctness of the process adopted by his Honour.
Complexity of Crown argument
At [52] above, I have noted his Honour’s conclusion that there was nothing complex in the Crown’s case theory and nothing that was beyond the ability of a jury to comprehend. It is not clear to me, however, that the complexity of the case put by the Crown is necessarily a criterion for the admission or exclusion of tendency evidence; a more useful criterion might be the logical soundness of the argument that the tendency evidence renders it more probable that, on a particular occasion relevant to the proceedings, the person acted in a particular way (or had a particular state of mind).
The fact that the Crown’s case was that Mr Vojneski, as he had previously done, became angry and used a knife against his partner does not seem to establish that the fact that Mr Vojneski had previously acted in a similar way is necessarily admissible as tendency evidence or is clearly probative of anything. In particular it does not seem to establish that Mr Vojneski’s previous behaviour was probative of his presence at the time of the killing. Whether the tendency evidence could establish Mr Vojneski’s presence at the relevant time was a different question from whether the Crown said that Mr Vojneski was simply repeating earlier behaviour, and one that was not explicitly addressed.
Significance of tendencies identified
Establishing the relevant tendencies may well have been probative of whether Mr Vojneski was the sort of person who could have acted as the killer apparently did, and could have had significant probative value in the context of, for instance, a defence of accident, self-defence or some kind of mental impairment.
However, it is hard to see that those tendencies make it any more likely that Mr Vojneski was actually present when Ms Conlon was killed than the strong circumstantial evidence to that effect arising from both the events of the night concerned and of the next couple of days.
Rather, the strength of the tendency evidence in this case is that it shows that Mr Vojneski was the sort of person who could have acted as the killer did – which, as his Honour noted at [37], was likely to have a highly prejudicial effect and accordingly should not have been admitted unless its probative value exceeded that prejudicial effect. It is implicit in this analysis that if the evidence shows only that Mr Vojneski had a propensity to commit, or to threaten, violent crimes, or violent crimes involving knives, it must be inadmissible. As far as I can see, his Honour did not at any point explain the nature of the additional probative value provided in this case by proof of the various tendencies.
There is no doubt that, by itself, this evidence was highly prejudicial – counsel for the appellant colourfully submitted on the application before me that it did nothing except to paint Mr Vojneski as a “knife-wielding maniac”, a “knife-wielding psycho” and “a nasty piece of work”. As I understand the tendency rule, evidence suggesting that kind of a description is exactly the sort of evidence intended to be excluded by that rule, unless and until it can be established that the evidence concerned has other probative value.
It is notable that the cases dealing with the admissibility of tendency evidence routinely involve situations, especially involving alleged sexual offences, in which the question is whether an offence alleged against a person has been committed at all. Less commonly, tendency evidence is sought to be used as evidence that established conduct by a person involved a relevant state of mind. Unlike coincidence evidence, however, tendency evidence seems to be rarely tendered as evidence helping to identify a particular person as the perpetrator of an offence that has clearly been committed by someone.
The case of CW v The Queen [2010] VSCA 288, discussed by the VSCA in Velkoski, is a good example of that distinction. The accused was charged with three counts of arson that were in various ways similar, and the trial judge had ruled that the Crown could rely on evidence of each fire in relation to the charges involving other fires. The defence challenged this ruling, arguing that the similarities between the three fires were not sufficient to give the evidence significant probative value as tendency evidence. The court made it clear (at [28] to [30]) that the evidence could not be used for “propensity reasoning” (that is reasoning, from a conclusion that the accused had started one of the fires, that he was the kind of person who was likely to have started the other fires), and had no other probative value as tendency evidence. Rather, the link between the three incidents that made the evidence cross-admissible was the existence of a similar motive for the accused in relation to each fire, in that the victims of the three fires had all been in dispute with the accused over business dealings; the evidence was thus admissible for coincidence purposes.
The case of O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 provides a useful comparison with the current case. The accused was tried in a single trial on four sets of charges, arising from four separate sexual assaults on women committed in bushland in suburban Sydney. There was evidence of various kinds linking the accused with the first three assaults, which also had much in common with each other. The only evidence linking the accused with the fourth, more serious assault (against the complainant JG) was the evidence of the first three assaults, used for tendency or coincidence purposes. On appeal, the NSWCCA (Howie J with whom McColl JA and Grove J agreed), criticising the trial judge’s reasoning, said at [52]:
The real danger was that the jury may incorrectly reason that, because the offender committed one or more of the offences in counts 1 to 6, he also committed the offences in counts 7 to 11 simply because he had a propensity to attack women on secluded paths or had some other propensity of a general nature that was insufficient by itself to sustain a conviction for the JG offences.
Later, Howie J said at [55]:
Ultimately it was a circumstantial case against the applicant in relation to the counts against JG, ... But the jury would have to be satisfied that there was no reasonable possibility that it was some person other than the applicant who attacked JG. Unless the Judge determined what other evidence there was, if any, that the prosecution could rely upon to identify the appellant as the attacker of JG and the probative value of that evidence, it was no answer to the prejudice arising from the admission of the evidence that the tendency evidence was not itself sufficient to give rise to a conviction on counts 7 to 11. If the other evidence had little probative value by itself, then the likelihood was that the prejudicial aspect of the tendency evidence would still outweigh the combined probative value of the tendency evidence and the other evidence in the prosecution case.
In considering whether the tendency evidence should have been admitted, Howie J said:
59 The Crown points out, rightly, that the admissibility of tendency evidence cannot be considered in a vacuum. The decision whether to admit the evidence must be considered in light of the other evidence relied upon by the Crown to prove that the accused was the person who attacked JG. If the tendency identified stood alone in identifying the appellant as the offender in the JG offences, it would have to be sufficiently peculiar or singular to amount to what has been described as a “hallmark” or “signature” of the appellant such that it would offend common sense to exclude it.
...
63 Stripped to its fundamental elements, the Crown was alleging a tendency to sexual [sic] assault females in secluded locations with a particular interest in their breasts. The Crown was driven to generalise the tendency because of the difficulty of finding a specific tendency from the evidence in counts 1 to 6 that could be applied in counts 7 to 11. The evidence to prove the appellant committed the offences in counts 1 to 6 was coincidence evidence. The facts giving rise to the coincidence were: a man of 20 to 30 with athletic build and tanned skin dressed in cycling clothing with helmet and dark glasses and a bike accosted lone women on isolated bush tracks and asked them, “Show me your tits” before attempting to sexually assault them by the use of threats or force.
64 However, the Crown could not rely upon coincidence evidence arising from counts 1 -to 6 to prove counts 7 to 11 because there was none: the facts of the attacks upon JG were insufficiently similar to those surrounding the attacks upon the other three complaints. For example, the Crown could not rely upon the offender being dressed in cycling attire including helmet and sunglasses, and with a bike. Nor could it rely upon the type of the sexual assaults committed or the nature of the threats made or the words used. But in generalising a tendency derived from counts 1 to 6 to try to make it apply to counts 7 to 11 the probative value of the evidence was very significantly reduced.
65 A tendency to sexually assault females in secluded locations could not in my opinion have “significant probative value” to justify admission under s 97, even accepting that the gateway through that section is not particularly demanding. There is nothing peculiar about such a tendency that would identify a person with such a tendency as the offender against JG putting aside any other evidence of a persuasive nature to identify that offender. It would be more peculiar and, therefore, of significantly greater probative value, if the offender had a tendency to sexually assault females in the presence of members of the public. The addition of “bushland” to the “secluded location” in the description of the tendency was to my mind of no particular significance.
...
68 In my opinion the tendency relied upon by the Crown, when stripped to its essence, could not meet the test in s 97. But, in any event, if that were the only evidence upon which the Crown could rely to prove that the appellant was the offender in the JG assaults, it would fail the application of s 101(2). The major difficulty for the Crown was that there was little to connect the JG offences with those committed against the other complainants. The singular fact of the offender in the earlier matters being dressed in cycling apparel and accompanied by a bike was absent, a matter which obviously concerned the trial judge.
69 The prejudicial effect of the tendency evidence was clearly very high. Even though it was insufficient itself to prove beyond reasonable doubt that it was the same offender who attacked JG has attacked the other complainants, it was consistent with a characteristic displayed by the offender in the attacks upon the four complainants in a vague, general sense. There was a very real risk that a jury would give the evidence of such a tendency more weight than it deserved by finding that the kind of person who committed one or more of counts 1 to 6 was also the kind of person who committed counts 7 to 11 and for that reason convict the appellant.
70 The evidence was so prejudicial that I doubt that it could have been made admissible even had there been other reliable evidence to suggest that it was the appellant who attacked JG. That is because I do not believe that the evidence had any more probative value than evidence of an offender’s criminal record that showed he had committed similar offences in the past. However, the tendency evidence, such as it was, should be considered against other evidence that the appellant committed the JG offences.
In that case, the tendency evidence, “stripped to its essence”, had very high prejudicial value. The Crown case was otherwise weak, and in the absence of other evidence “of a persuasive nature”, the tendency evidence had very limited probative value. Having a tendency to sexually assault females in secluded locations, not a particularly distinctive tendency at least among members of the class of sexual offenders, and in the absence of other evidence linking the accused with that incident, could not establish that the accused was the particular offender in relation to the sexual assault of JG in a secluded location. Thus, the very limited probative value could not outweigh the very high prejudicial value of the evidence.
In the current case, in contrast, the probative value of the tendency evidence against Mr Vojneski was as far as I can see relatively low because of the strength of the rest of the Crown case, but the prejudicial value of the evidence remained undoubtedly high. Thus, the s 101 test for admitting the tendency evidence, being that the probative value of the evidence substantially outweighed the prejudicial value, was hard to meet. His Honour did not explain the basis on which he concluded that, in the context of an otherwise strong Crown case, the tendency evidence had such high probative value that its probative value could outweigh the very clear prejudicial value of that evidence.
His Honour’s approach may be contrasted of with that of the Chief Justice in R v Costa [2015] ACTSC 63. In that case, an accused facing a murder charge had raised the defence of mental impairment, based on a claim of dementia. The Crown sought to lead evidence of six “tendency incidents” to support tendencies such as “a tendency to act violently when angered” and “a tendency to threaten to kill when under the influence of alcohol”. Her Honour:
(a)considered whether the evidence of the various incidents was capable of showing the alleged tendency;
(b)identified the relevantly disputed facts; and
(c)then turned to consider the probative value of the tendency evidence having regard to the facts in issue.
Her Honour said:
41.In Stephen Odgers SC on Uniform Evidence Law, at pages 477 - 478, the author suggests that the following matters may inform an assessment of the strength (significance) of a tendency inference:
(a) The number of occasions of particular conduct relied upon.
(b) The time gaps between them.
(c) The degree of specificity/generality (ordinariness) of the conduct/alleged tendency; whether it is distinctive or unusual.
(d) The degree of similarity between the conduct on the various occasions (including the conduct sought improved).
(e) The degree of similarity between the circumstances of the conduct.
42.These are not individual tests to be satisfied before tendency evidence is admitted. For example, it is not necessary for there to be a high degree of similarity between the tendency conduct and the crime charged: R v Ford (2009) 201 A Crim R 451 per Campbell JA at [38], [43]. Nor is it necessary that the tendency conduct has manifested itself on many occasions: Ford per Campbell JA at [45]. However, both are matters that may inform the question of whether particular tendency evidence has significant probative value.
43.In this case the question is: To what extent could each tendency incident (if accepted) assist the jury to decide the state of mind of the accused on 22 July 2012 (whether he was demented/angry and intoxicated)?
Significantly, her Honour formulated the admissibility question by reference to an explicit fact in issue in the trial. Her Honour then considered each of the several incidents by reference to that question, and ultimately, through an analysis of what the incident concerned could prove in relation to the specific facts in issue, determined that none of them was admissible. For instance, her Honour concluded that two incidents of violence or anger involving sex workers, each of which occurred shortly before the killing and while the accused was intoxicated (as he had been at the time of the killing), were not probative in relation to whether at the time of the killing the accused was affected by dementia or by anger and intoxication, saying:
52.Tendency incidents 4 and 5 occurred in May - July 2012, shortly before the alleged offence. As dementia is a progressive disease and the accused was intoxicated on all three relevant occasions, it is unlikely that incidents 4 and 5 could be significantly probative of whether the state of mind of the accused on 22 July 2012 was related to intoxication or dementia. If he was affected by dementia on 22 July 2012, he would also have been affected by dementia at the time of incidents 4 and 5, and vice versa.
In the current case, his Honour did not ask, for instance, how a tendency to become quickly aroused to anger and to act violently when angered could have been probative of whether Mr Vojneski had remained in Ms Conlon’s house until the time when she was killed. Rather, his enquiry was confined to whether the relevant incidents could be said to be probative of that tendency and, having determined that certain incidents were probative of that tendency, his Honour effectively concluded that they were therefore, via an unspecified fact in issue, probative of Mr Vojneski’s guilt.
Similarities – the NSW and Victorian approaches
At [54] above I mentioned that counsel for Mr Vojneski had challenged his Honour’s approach to the admissibility of the tendency incidents by reference to two recent Court of Appeal decisions, being Velkoski v The Queen [2014] VSCA 121 (Velkoski) and Saoud v R 87 NSWLR 481 (Saoud).
In Velkoski, the Victorian Court of Appeal referred at [34] to:
undoubted differences between the decisions of this Court and the New South Wales Court of Criminal Appeal as to whether similarity of features need be present in order for evidence to be admissible as tendency evidence. A review of the decisions in this Court shows that though there have been perceived differences in approach in a small number of cases, upon analysis those differences may be more apparent than real.
That Court summarised its conclusions at [2], saying that for evidence to be admissible as tendency evidence:
the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increased the likelihood of the occurrence of that conduct.
Instead of considering whether the opinions expressed in Velkoski were correct, the NSW Court of Criminal Appeal in Saoud set out “a number of basic propositions which are not in doubt and are sufficient to resolve the issues in this case”. Those basic propositions were relevantly as follows:
38. First, the provisions of the Evidence Act have effected change to common law principles, which are no longer to be applied. It follows that, whilst there may be assistance to be derived from the common law cases with respect to the underlying principles which inform the exclusion of tendency and coincidence evidence, those cases provide limited guidance as to the circumstances in which such evidence may now be admitted.
39. Secondly, although there is no necessary harm in using concepts which became familiar in the common law cases, such as the fact that evidence reveals "unusual features", "underlying unity", "system" or "pattern", which are essentially neutral as to the level at which such features are demonstrated, the language of "striking similarities" suggesting a particular strength of probability reasoning is no longer apt, because it is inconsistent with the test of "significant probative value": Simpson J in Fletcher at [60], commenting on a passage from Hoch v The Queen[1988] HCA 50; 165 CLR 292 at 294-295.
40. Thirdly, reliance on such language may distract (by creating a mindset derived from common law experience) and may provide little guidance in applying the current statutory test. As stated by Campbell JA in R v Ford at [125]:
"The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."
41. Earlier, at [41], Campbell JA had stated:
"The case law contains examples of the way in which a tendency to engage in a particular type of behaviour can be relevant to whether an accused has committed a particular crime charged, even though that tendency does not in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li[2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]:
'Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was not necessary for this purpose to show that he had detained her on any other occasion.'"
42. Fourthly, attention to the language of s 97 (and s 98) has the practical advantage of focusing attention on the precise logical connection between the evidence proffered and the elements of the offence charged. Thus, rather than asking whether there is "underlying unity" or "a modus operandi" or a "pattern of conduct" the judge can focus on the particular connection between the evidence and one or more elements of the offence charged.
43. Fifthly, there is an awkwardness in the separation of "tendency" evidence and "coincidence", at least in some circumstances. Thus, in a case such as the present, where there was no issue as to the identity of the alleged offender, but rather a dispute as to the occurrence of the offences, evidence of the accused's conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another.
44. Sixthly, "tendency" evidence will usually depend upon establishing similarities in a course of conduct, even though the section does not refer (by contrast with s 98) to elements of similarity. That inference is inevitable, because that which is excluded is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Evidence of conduct having that effect will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case.
On my reading, the Court in Saoud seemed to wish to minimise the divergence in views in NSW and Victoria that was identified in Velkoski, and it does not seem to me that the two approaches are irreconcilable, at least in this case. Certainly, I do not need to choose between them for present purposes, because it is clear that, in both jurisdictions:
(a)it is necessary to determine whether the evidence sought to be led for tendency purposes has significant probative value; and
(b)the probative value of evidence said to demonstrate a tendency will depend on:
(i)the capacity of the evidence to prove the tendency; and
(ii)the capacity of the tendency to prove a fact in issue in the trial.
As both Courts indicated, addressing those questions will generally require some consideration of the similarities between the matters revealed by the evidence in question and the facts to be proved in the trial, although this does not imply any particular approach to considering the similarities, or the existence of any particular threshold of similarity, and certainly it does not require that “striking similarities” must be shown before evidence can be used for tendency purposes.
However, as I have already explained, my concern about the trial judge’s approach to the admission of the tendency evidence in this case arises at a higher level. It is not apparent from his Honour’s judgment that he assessed the probative value of the evidence in question by reference to the capacity of the alleged tendencies to establish any of the facts in issue. There is no point in considering whether his Honour’s assessment of the probative value of the tendency evidence (ie its capacity to prove a fact in issue) involved the correct approach to the similarities between the various incidents and the similarities between those incidents and the incident in which Ms Conlon was killed. This is because I consider that his Honour did not make such an assessment or, if he did, he did not articulate the process he undertook or the fact in issue about which, in his view, the tendency evidence had probative value.
For that reason, there is nothing to be gained by engaging in any further consideration of the issues raised by the NSW and Victorian Courts of Appeal in relation to the significance of similarities in the assessment of evidence sought to be admitted for tendency purposes.
Conclusion – erroneous admission of tendency evidence
Accordingly, for the reasons explained above, I consider that some or all of the tendency evidence admitted in Mr Vojneski’s trial was in the circumstances wrongly admitted. Given the unarguably prejudicial nature of that tendency evidence I must accept the reasonable probability that there might be a miscarriage of justice if leave to appeal the outcome of the trial is not granted.
Whether incidents necessarily inadmissible
My conclusion that some or all of the tendency evidence was wrongly admitted should not be seen as indicating that none of the tendency evidence was properly admissible. It may be that with a more specific articulation of what is sought to be proved by the admission of evidence of the various incidents, some of those incidents would in fact be admissible, either for tendency purposes or possibly as coincidence evidence.
As earlier mentioned, the tendency evidence in this matter was heard with a coincidence application. That latter application, which related to Incidents 1, 2, 4, 5, 6, 8 and 9 described in the tendency application, was rejected by his Honour.
The similarities identified in the coincidence application related to the following matters (some or all of which were cited in relation to each incident):
(a)That events took place in residential premises.
(b)That Mr Vojneski had been consuming alcohol or other intoxicating substance.
(c)That the incident involved a knife used as a weapon.
(d)That the knife had been obtained on the premises.
(e)That Mr Vojneski knew the victims.
(f)That there were other people in the house at the time.
(g)That Mr Vojneski knew there were other people in the house.
(h)That Mr Vojneski was jealous of the victim’s relationship with another man.
(i)That Ms Conlon was the victim or was present at the incident.
His Honour decided that none of these incidents was strikingly similar to the incident involving the death of Ms Conlon, and that “a combination of non-striking similarities will rarely, if ever, have significant probative value”.
His Honour’s decision on the coincidence application is not subject to any current challenge, and I do not disagree with his Honour’s conclusion that, as framed, there was nothing particularly significant about most of the “similarities” identified.
I mention the coincidence application only because, as noted, there might have been a basis for the admission, either as tendency or coincidence evidence, of some of the evidence that I have concluded was wrongly admitted for tendency purposes. That possibility, however, would seem to require a more careful and more specific approach to formulating the tendencies or coincidences relied on to found admissibility.
For instance, it may be that if the evidence were confined to that relating to the nature of Mr Vojneski’s behaviour in intimate relationships, it might be possible to describe the events in such a way that their occurrence would seem improbable to have happened coincidentally rather than because Mr Vojneski was the common factor.
For instance, incident 4, which occurred four and a half years before Ms Conlon died, involved Mr Vojneski becoming angry with his then partner, getting a knife from the kitchen and threatening to kill her. Incident 9, which occurred just over two months before Ms Conlon died, involved Mr Vojneski, who had been drinking, becoming angry with Ms Conlon, picking up a large knife, threatening her with it, and then assaulting her (although not with the knife). Two months later Ms Conlon was, accordingly to other evidence, killed, with a knife probably from her home, within some 28 minutes after the last point at which the evidence could place Mr Vojneski, who had been drinking and had reason to become angry, in Ms Conlon’s home with her.
An argument could be made that the similarities in the three events, including Mr Vojneski’s presence until shortly before Ms Conlon was killed and his willingness to use a knife when he became angry with a partner, make it improbable that Ms Conlon’s death at the hands of a knife-wielding assailant only 28 minutes after Mr Vojneski was last shown to have been in her house happened coincidentally rather than because Mr Vojneski was the common factor.
I note also that if the admissibility of evidence of any of the earlier incidents depended on the improbability of such a coincidence rather than on any tendency of Mr Vojneski said to be established by that evidence, it would have been relatively easy in directing the jury to distinguish between:
(a)the use of the evidence to make it more probable that Mr Vojneski rather than someone else was the person who was with Ms Conlon when she was killed and who was therefore responsible for that killing; and
(b)the prohibited use as propensity evidence to make it more probable that Mr Vojneski rather than someone else had killed Ms Conlon because he was the sort of person who would commit such an offence.
Second ground – jury directions
It has not been put to me that the process of determining whether to grant leave to appeal out of time requires me to grant leave only in respect of the specific grounds of appeal that have been found to identify relevant flaws in the trial. Accordingly, having determined that leave needs to be granted by reference to the erroneous admission of some or all of the tendency evidence, I do not see that it is necessary to address the other proposed ground of appeal against conviction, nor that there would be any point in trying to assess his Honour’s directions about that tendency evidence against the background of my conclusion that some or all of the evidence should not have been admitted at all.
However, the fact that I do not need to address that second ground for the purposes of the current application should not exclude reliance on that ground if it becomes relevant as the appeal is argued.
On the other hand, leave will be granted only in respect of the two proposed appeal grounds that have been identified; any further amendment of the appeal grounds may require a further grant of leave.
Leave under r 5531
Counsel for the Crown submitted that at least the second proposed new appeal ground, and probably both of them, would also require a grant of leave under r 5531 of the Court Procedures Rules 2006 (ACT), which is as follows:
5531 Appeals to Court of Appeal—grounds of appeal against conviction or sentence
Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:
(a) a direction given by the trial judge;
(b) the trial judge’s failure to give a direction;
(c) the trial judge’s decision about the admission or rejection of evidence.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
Counsel may well be correct. However, there is no formal application for such leave before me at this stage, and neither evidence relevant to, nor submissions about, the application of r 5531 in this case. For those reasons, I consider that decisions about whether any such leave is necessary and whether it should be given are appropriately made by the three-member Court of Appeal that hears full argument about the appeal grounds and, if necessary, about r 5531.
Application to adduce further evidence
Shortly after the hearing of this application had concluded and I had reserved my decision, the Crown filed an application to adduce further evidence on the application. That evidence was said to go to the question whether there was a reasonable probability that a miscarriage of justice would result from a refusal of leave.
The evidence was, in general terms, evidence of comments made by Mr Vojneski to a psychiatrist who had interviewed him on three occasions after Ms Conlon’s death, once shortly after the killing, once some months later but before his trial, and once after the verdict. A report relating to all those interviews was provided on the sentencing hearing.
The Crown said that the report contained comments from Mr Vojneski that might be regarded as admissions of an involvement in Ms Conlon’s death. I did not invite counsel to make submissions about the admissibility of that report or the probative value of its contents, but neither of those matters should be assumed.
I declined to admit that evidence on the application.
My reading of authorities such as Mraz, Weiss v The Queen (2005) 224 CLR 300 (Weiss) and Filippou is that the question whether there has been a miscarriage of justice (substantial or otherwise) relates to the conduct of the accused’s trial. The question does not relate to whether, to put it bluntly, “they got the right person”. To repeat the explanation from Mraz quoted at [34] above:
every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.
In Weiss, the plurality noted at [41] that:
The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. (citations omitted)
The emphasis in the authorities on examining the record of the trial must in my view exclude looking at material that was not before the jury.
As the trial was conducted, the admission of highly prejudicial evidence for tendency purposes might have deprived Mr Vojneski of a chance of acquittal. Counsel, probably wisely, did not on the application to adduce the evidence submit that the contents of the psychiatrist’s report meant that any such chance of acquittal would not have been “fairly open to” Mr Vojneski; I note in that context the warning from the Court in Weiss of the dangers of attempting to explain the meaning of “substantial miscarriage of justice” using other words (see for instance at [31] to [33]).
Furthermore, for reasons set out at [13] above, I consider that the issue on the current application is whether Mr Vojneski has persuaded me that there is a reasonable probability that his trial miscarried.
Different questions might be raised if submissions are made on appeal that evidence of possible admissions should be received in support of a Crown submission that even if inadmissible evidence was before the jury, there has been no substantial miscarriage of justice.
It is easy to understand how the emergence of evidence not previously available to the prosecution but arguably confirming the Crown case might be seen as a basis for not allowing a late appeal from a conviction, particularly in the circumstances already described in which an appeal, and any new trial that might be ordered by the Court of Appeal, will inevitably cause great distress to many people innocently caught up in these tragic events. However, that distress as such should not be a ground for watering down the safeguards against unfair trials that are a cornerstone of our criminal justice system, especially when it is remembered that those protections have been developed over centuries not to protect the guilty but to protect the innocent who may be unjustly accused.
Orders
I have noted the explanation for Mr Vojneski’s failure to appeal his conviction within time, and the real distress that will be caused to a number of innocent people if leave to appeal is granted but, having found that there is a reasonable probability that Mr Vojneski’s trial miscarried by the admission of some or all of the tendency evidence, I conclude that I must grant leave to Mr Vojneski to amend his original notice of appeal to include the two identified grounds of appeal against conviction. I shall hear the parties as to whether any further orders are required.
| I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 31 August 2015 |
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