R v Papanicolaou (No 2)

1. [1]

   The Court has before it an application by the Crown for a ruling under s 192A(a) of the Evidence Act 1995 (NSW) as to whether certain evidence is admissible, in accordance with s 97 of that Act, as evidence that the accused, Hanny Papanicolaou, had a tendency to act in a particular way or had a particular state of mind. In order to establish the tendency alleged, the Crown also seeks to rely on coincidence evidence which it is contended should be held to be admissible under s 98 of the Evidence Act.

2. [2]

   For the reasons which follow, I am of the view that neither the evidence relied upon to establish the tendency upon which the Crown seeks to rely nor the coincidence evidence is admissible under ss 97 and 98, respectively, of the Evidence Act.

Background

1. [3]

   The accused has been charged on indictment with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused was arraigned in the Supreme Court on 7 August 2020 and pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment.

2. [4]

   The empanelling of the jury for the trial of the accused has been listed for 24 January 2022.

Prosecution case

1. [5]

   The substance of the most relevant aspects of the prosecution case is set out in the paragraphs which follow.

2. [6]

   The accused was born in Indonesia in 1983 and moved to Australia in about 2007, after she married her husband, an Australian citizen. In late 2018 and early 2019, the accused worked for a number of clients, including the deceased’s daughter and the deceased, as a self-employed domestic cleaner. The accused was a regular gambler, most often playing poker machines at an RSL club. She regularly requested that money be transferred to her by her husband and by other persons to fund her gambling.

3. [7]

   The accused cleaned the deceased’s house generally once per week, as arranged by the deceased’s daughter, usually on a Friday morning. When the accused came to clean the deceased’s house she would park her car in the driveway, go to the front door and wait to be let in by the deceased. The accused and the deceased had a close relationship and the deceased disclosed to the accused that she (the deceased) had sold her previous property for $8 million, which shocked the accused.

4. [8]

   On Wednesday, 2 January 2019, shortly after 9:00 am, the accused went to the RSL club and played the poker machines for about 50 minutes, losing $430 during that period. After certain withdrawals from her bank account, the accused was left with $11 in the account. The accused left the club and drove to the park behind the deceased’s house.

5. [9]

   The accused gained access to the deceased’s backyard over the fence at the corner of the property. The deceased had been in her yard but, by the time she entered her house through the backdoor, the accused was inside and this is where the deceased first saw the accused that day.

6. [10]

   The accused immediately began to attack the deceased with the deceased’s walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the chest and abdomen about six times.

7. [11]

   The deceased was badly injured but crawled towards the backdoor where she activated an emergency pendant around her neck at 10:39 am. The accused switched off the emergency call unit and removed the cordless telephone with which it was connected. She took the cordless telephone and the knife and left. The deceased reached the backdoor, called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as “the cleaner” to the police and ambulance officers who attended soon after.

8. [12]

   The accused drove home, discarding the cordless telephone and the knife in a bin in Canterbury and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested. She informed police where she had discarded the knife and clothing, which were located along with the telephone.

9. [13]

   The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50 and that it was the deceased who attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle.

10. [14]

    The deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen.

Defence response

1. [15]

   The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. A notice under s 151 of the Criminal Procedure Act indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In her earlier report, Dr Eagle relevantly opined:

2. [16]

   Dr Eagle in her earlier report described the accused’s underlying condition as a “major depressive disorder, major depressive episode moderate to severe”.

Relevant facts in issue

1. [17]

   The accused does not dispute that she killed the deceased. As I understand it, two of the most significant issues in the trial will be whether the accused has proved on the balance of probabilities that:

   1. (1)

      at the time she inflicted the fatal wounds on the deceased, the accused was substantially impaired within s 23A(1)(a) of the Crimes Act; and

   2. (2)

      any such impairment was so substantial as to warrant liability for murder being reduced to manslaughter under s 23A(1)(b).

2. [18]

   The parties also accepted that, for the purposes of considering the tendency evidence, the facts in dispute that are relevant included the accused’s state of mind on 2 January 2019 and, in particular, whether or not she attended the house intending to steal property from the deceased. In relation to the coincidence evidence, the relevant facts in issue are whether the accused had a tendency to steal personal items from the homes of her clients and a tendency to intend to steal personal items from the homes of her clients. The Crown is seeking to rely on tendency and coincidence reasoning to assist in establishing that the accused did have such an intention.

Tendency and coincidence notices

1. [19]

   It was not in dispute that reasonable notice, as required by ss 97(1)(a) and 98(1)(a) of the Evidence Act, was given by way of the Crown’s notice of tendency evidence dated 28 April 2021 and the Crown’s notice of coincidence evidence also dated 28 April 2021 setting out the information required by cll 5 and 6 of the Evidence Regulation 2020 (NSW).

2. [20]

   The prosecution’s tendency notice identifies that the tendency sought to be proved is the tendency of the accused:

3. [21]

   The substance of the tendency evidence which the prosecution intends to adduce is said to be contained within the following:

   1. (1)

      Paragraphs 12 and 13 of the statement of Julie Mather of 21 January 2019, which state:

   2. (2)

      Paragraphs 6, 13, 14 and 18 of the statement of Bronwyn Mangan of 7 February 2019, which state:

   3. (3)

      Paragraphs 8 and 9 of the statement of Monica Baird of 12 February 2019, which state:

4. [22]

   Finally, the tendency notice states that:

5. [23]

   The coincidence notice states, in effect, that the prosecution intends to lead evidence that two or more events occurred to prove that, because of the improbability of the events occurring coincidentally, the accused stole personal items from the homes of people for whom she worked as a cleaner. The two or more events were identified as follows:

6. [24]

   The substance of the coincidence evidence which the prosecution intends to adduce is identified in the coincidence notice as being contained within pars 12 and 13 of the statement of Julie Mather of 21 January 2019; pars 6, 13, 14 and 18 of the statement of Bronwyn Mangan of 7 February 2019; and pars 8 and 9 of the statement of Monica Baird of 12 February 2019. This evidence is the same as the tendency evidence identified in the tendency notice. That the tendency evidence and the coincidence evidence are the same is, presumably, the result of the fact that the prosecution relies on coincidence reasoning to establish the tendency for which it contends.

Statutory provisions

1. [25]

   The principal statutory provisions relating to tendency and coincidence evidence are ss 97 and 98 of the Evidence Act, which relevantly provide:

2. [26]

   As noted above, cll 5 and 6 of the Evidence Regulation specify the content which must be included in a notice to be given under s 97(1)(a) or 98(1)(a).

3. [27]

   In criminal proceedings such as the present, s 101 of the Evidence Act relevantly imposes a requirement in addition to those in ss 97 and 98 which must be satisfied before tendency or coincidence evidence may be used against an accused. Section 101 is in the following terms:

4. [28]

   The Dictionary to the Evidence Act defines “probative value” as meaning:

5. [29]

   Finally, it can be noted that s 94(5) of the Evidence Act provides:

Principles

1. [30]

   In considering whether the tendency and coincidence evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have “significant probative value” for the purposes of ss 97(1)(b) and 98(1)(b), the relevant principles include those set out below.

   1. (1)

      For the purpose of the assessment of whether the evidence has significant probative value under ss 97(1)(b) and 98(1)(b), it must be assumed that the jury will accept the evidence taken at its highest, but the circumstances surrounding the evidence may indicate that its highest level is not very high: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM) at [49], [50] (French CJ, Kiefel, Bell and Keane JJ).

   2. (2)

      To warrant the description of having “significant probative value”, the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable; to be “significant”, the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue does not need to be “substantial” but does need to be “important” or “of consequence”: IMM at [103] (Gageler J).

   3. (3)

      The significance of the probative value of the evidence depends on the nature of the fact in issue to which the evidence is relevant and the significance or importance which the evidence may have in establishing that fact: IMM at [46]. Thus, to be admissible as tendency or coincidence evidence, the evidence must “be influential in the context of fact-finding” in relation to the fact in issue: IMM at [46], [103]. In the present proceedings, the relevant fact in issue is whether the accused attended the deceased’s house with the intention of stealing personal items from her.

   4. (4)

      In determining whether the tendency evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have “significant probative value”, there are two matters that must be considered:

   5. (5)

      As to the second consideration, this will necessarily involve a comparison between the tendency and the facts in issue: Hughes at [64]. A tendency expressed at a level of particularity will generally be more likely to be significant. A tendency expressed at a high level of generality might mean that, although the tendency evidence provides significant support for the existence of the tendency, the tendency cannot establish anything more than relevance to the facts in issue and does not rise to the level of being of “significant probative value”: see, for example, McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [32] (Kiefel CJ, Bell, Keane and Nettle JJ), [35]-[39] (Edelman J).

2. [31]

   In the present case, coincidence reasoning is only relied upon to establish the accused’s tendency to steal from her employers and her tendency to have an intention to do so. Consequently, if it is accepted that the coincidence and tendency evidence has significant probative value in establishing the tendency relied upon, the question is ultimately, in this case, whether the tendency makes more likely the fact which the prosecution is advancing, on a comparison between the tendency and the relevant fact in issue.

3. [32]

   In this case, s 101 of the Evidence Act also requires the Court to consider whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. In Hughes, examples of unfair prejudice in this context were said, at [17], to include:

   1. (1)

      that 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;

   2. (2)

      that the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way and, in either case, the tendency evidence may be given disproportionate weight;

   3. (3)

      that 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

   4. (4)

      the prejudice occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

The relationship between the coincidence evidence and the tendency evidence

1. [33]

   The coincidence notice indicates in effect that the evidence of suspicions that the accused stole from her employers is only relied upon to establish the factual basis for the tendency asserted by the prosecution. It is not contended that there are similarities between any previous acts of the accused involving stealing from her employers and the events of 2 January 2021 or other inferences so as to engage coincidence reasoning more directly. Thus, it was accepted by the prosecution that if the evidence is not admissible as tendency evidence, it follows that the same evidence relied upon as coincidence evidence is not relevant and should not be admitted either.

Issues on this application

1. [34]

   As noted above, it was not in dispute that the notice requirements of ss 97(1)(a) and 98(1)(a) have been met. Consequently, and in light of the subsidiary role of the coincidence evidence, the focus of the Court’s consideration must be on:

   1. (1)

      whether the tendency evidence will, either by itself or together with other evidence, have “significant probative value” within s 97(1)(b) of the Evidence Act, by addressing:

   2. (2)

      whether the probative value of the tendency evidence outweighs the danger of unfair prejudice to the accused, within s 101(2) of the Evidence Act.

Consideration

1. [35]

   The accused’s written submissions included the acceptance that the “co‑incidence evidence does have significant probative value in proving the tendency” but that the “tendency evidence has some probative value in proving the tendency”. Since the coincidence and tendency evidence is the same, it is not entirely clear what distinction is being drawn in these submissions.

2. [36]

   In making my assessment of the probative value of the evidence, I have assumed that the jury will accept the evidence in the statements of Ms Mather, Ms Mangan and Ms Baird at its highest. The evidence does not, however, rise to a very high level.

3. [37]

   Ms Mather’s evidence includes that she did not suspect the accused of stealing anything from her before 2 January 2019. Ms Mather does not put her evidence higher than suspicions based on items, including a lawnmower, jewellery, cash and clothing, going missing over five or six years. Her suspicions are also based on “recent discussions with family, friends and clients who have also used [the accused’s] services … [m]any of [who] have voiced similar concerns about the theft of money and jewellery”.

4. [38]

   Ms Mangan’s evidence was to the effect that between about February 2016 and April 2018 she checked her jewellery after the accused had cleaned for her but did not find anything missing. Only after reading about the incident on 2 January 2019 did Ms Mangan check her jewellery and discover that various items were missing. Based on her evidence that no persons other than family had been inside her apartment to have access to these items, and that those persons would not go into her bedroom or to the wardrobe or chest of drawers, Ms Mangan believed that the accused took the items.

5. [39]

   Ms Baird said that, since hearing what happened in relation to the deceased, she recalled that a necklace had been missing for months in 2017. She asked the accused about it and the same day the necklace reappeared on the mantelpiece. Ms Baird assumed the accused had found it somewhere else in the house. Her evidence was also that she had an item of clothing with her when she had been away in October 2017 and that that was the last time she saw it. The accused stopped cleaning for her in November 2017.

6. [40]

   This evidence, even taking it at its highest, establishes little more than that three former employers of the accused remembered, after they heard of the incident involving the accused on 2 January 2019, that property such as items of jewellery, clothing or money had gone missing while the accused was cleaning for them. Although the evidence is not particularly strong and is far from being overwhelming, I am prepared to accept on balance that such evidence could rationally affect the assessment of the probability of the accused having a tendency to steal from her employers, and having an intent to do so, to such an extent as to have significant probative value in that regard.

7. [41]

   In assessing whether the tendency makes it more likely that the accused attended the deceased’s house on 2 January 2019 intending to steal personal items, it is in my view telling that the tendency is expressed at a high level of generality, namely a tendency to steal personal items from the homes of her employers and a tendency to have an intention to do so.

8. [42]

   The relevant fact in issue in the present case is whether the accused attended the deceased’s house on 2 January 2019 with the intention of stealing items of personal property from the deceased in circumstances where the accused attended on a day when she was not due to clean for the deceased and she needed money because of her losses as a result of gambling.

9. [43]

   Only at a high level of generality is there any substantial similarity between the tendency relied on and the intention sought to be established in the relevant circumstances of the present case. Looked at more closely, the evidence of the three witnesses does not establish that any stealing is suspected of having occurred in circumstances similar to those alleged in the prosecution case. The tendency evidence, to the extent that it might establish that the accused intentionally stole from the three witnesses, does not establish or suggest that the accused stole items of property from her employers by attending their houses on days when she was not due to clean for them; or that the stealing occurred at times when she needed money as a result of losses from gambling; or that she attended their houses with the intention of stealing rather than any stealing being opportunistic, in the sense of occurring after she started cleaning and when she happened to come across an item she found attractive.

10. [44]

    When the fact in issue whether the accused attended the deceased’s house on a non-cleaning day after suffering losses from gambling with the intention of stealing from the deceased is compared with the alleged tendency of the applicant to steal from her employers and to intend to do so, it does not appear to me that the degree of probative value which the tendency evidence will have, either by itself or together with other evidence, rises to the level of being important or of consequence and thus “significant” for the purposes of s 97(1)(b) of the Evidence Act.

11. [45]

    Accordingly, it follows that the tendency evidence is not admissible under s 97 of the Evidence Act. As explained above, if the evidence is not admissible as tendency evidence, it is also not admissible as coincidence evidence, given the limited way in which the prosecution has relied on coincidence reasoning in the present case.

12. [46]

    In case I am wrong, however, in reaching the conclusion that the tendency evidence lacks significant probative value, I shall also consider the application of s 101(2) of the Evidence Act on the assumption that the tendency evidence is otherwise admissible under s 97.

13. [47]

    As noted above, s 101(2) provides that the tendency evidence in this case cannot be used against the accused unless the probative value of the evidence outweighs the danger of unfair prejudice to her.

14. [48]

    Assuming, contrary to my conclusion above, that the tendency evidence has significant probative value, then that value is to be weighed against the danger of unfair prejudice.

15. [49]

    If the tendency evidence is admitted, it appears to me that the danger of unfair prejudice to the accused arises in a number of ways. First, since the tendency involves conduct and an intention which bespeak a disturbing breach of personal trust placed in the accused by her employers, the assessment of whether the prosecution has discharged its onus in relation to the count on the indictment may be clouded by the jury’s emotional response to the tendency evidence.

16. [50]

    Secondly, given the nature of the tendency for which the prosecution contends and the particular circumstances of the incident on 2 January 2019 and how those circumstances differ from the circumstances disclosed in the tendency evidence, there is the risk that the jury may fail to allow that, even though the accused may have a tendency to steal opportunistically from her employers while cleaning, such a tendency may not have been operative when she attended the deceased’s house on 2 January 2019.

17. [51]

    Thirdly and perhaps most importantly, if the tendency evidence were admitted then the accused would, in effect, be required to answer a large number of accusations of suspected criminal conduct, over a period of some years with little specificity as to time, where the suspicions are based upon assumptions as to whether the items were stolen rather than merely misplaced and as to who else had access to the houses in question or the opportunity to remove the items. The accused’s ability to challenge the assumptions, suspicions and inferences of the witnesses would be severely limited, given the nature and contents of the assumptions upon which the suspicions are based and also given the accused’s lack of access to persons who might be able to give evidence about such matters. This, in my view, involves a very substantial danger of unfair prejudice to the accused.

18. [52]

    Even if the first and second matters might, to some extent, be ameliorated by appropriate directions to the jury, the risk of unfair prejudice identified in the third consideration could not be addressed in this way.

19. [53]

    Taken together, the dangers of unfair prejudice which arise in this case are not outweighed, in my view, by the probative value of the tendency evidence.

20. [54]

    Thus, even assuming that the tendency evidence had significant probative value for the purposes of s 97(1)(b) of the Evidence Act, I would not allow the evidence to be used against the accused under s 101(2).

Conclusion

1. [55]

   For all these reasons, I am of the view that the tendency evidence identified in the prosecution’s tendency notice dated 28 April 2021 is not admissible and cannot be used against the accused. I reject it.

2. [56]

   Since the coincidence evidence identified in the coincidence notice dated 28 April 2021 was only said to be relevant insofar as it supported the finding that the tendency was made out, it is not otherwise relevant and is also rejected.