R v Cairney

Under s 130A Criminal Procedure Act 1986 (NSW) and s 192A Evidence Act 1995 (NSW), I am making rulings in respect of the admissibility of what is said to be tendency evidence on the application of the accused and in advance of his trial, which is presently fixed to commence before me and a jury at Wollongong on 18 November 2022.

The Crown is represented by Ms Ratcliffe, Crown Prosecutor (who appears with Mr Allan, solicitor advocate), and Ms Climo of counsel, Public Defender, appears for the accused.

The accused is charged with murdering the deceased, Jason Smith, in Wollongong on 18 December 2022.

Following his arrest, the accused participated in an interview with investigating police when he gave an account of the events, including making admissions that he stabbed the deceased during an altercation with him. Both counsel have, in their comprehensive and very helpful written submissions, stated that there is no dispute that the accused stabbed Mr Smith and, by that act, caused Mr Smith's death. The principal issue for trial is whether the Crown can negative, beyond reasonable doubt, the defence of self-defence in accordance with s 418 Crimes Act 1900 (NSW). From the material before me, it is apparent that self-defence arises out of the account that the accused gave to police during the interview.

By a tendency notice given on 31 July 2024, the accused wishes to introduce evidence about a tendency of Mr Smith, the deceased. According to para [2] of the notice, the tendencies which are sought to be proved are a tendency of Mr Smith to act in a particular way, namely:

The tendency notice itself sets out a body of 17 documents, including videos, which contain the substance of the tendencies sought to be established. Those matters have been refined in Annexure A to the written submissions of Ms Climo, which sets out some proposed agreed facts which, in general terms, arise from the records relating to ten prosecutions of the deceased relating to incidents between 9 November 1997 and 3 June 2022. Each of those matters is identified by reference to the prosecution number. However, I should record that during the course of argument Ms Climo withdrew reliance upon events occurring on 29 February 2020 carrying the prosecution number H75699882, reducing the number of incidents relied upon to those the subject of nine prosecutions. I should say in passing that of those matters the last two, being H84466214 and H89175058, remained pending as at the date of Mr Smith's death. I will return to some of the detail in relation to those matters during the delivery of these reasons.

The Crown objects to the admission of the proposed evidence as tendency evidence.

First, the Crown submits that accepting the proposed tendency evidence at its highest, the evidence does not meet the threshold of having significant probative value. Secondly, the Crown submits that were it otherwise, the probative value is outweighed by the danger of unfair prejudice to the Crown under s 135 Evidence Act. Thirdly, the Crown submits that the body of evidence relied upon to establish the facts underpinning the alleged tendency is inadmissible hearsay and it is thus futile to hold that the tendencies relied upon would be admissible in the abstract.

Both counsel addressed argument to that third ground, but I indicated during the course of argument that I proposed to concentrate upon the substance of the argument. Obviously, if I am persuaded that the requirements of s 97 Evidence Act are satisfied, it would still be incumbent upon the accused at the trial to prove the individual matters to which I have made reference by admissible evidence in the face of a Crown objection as to the form of the evidence.

Having said that and having heard counsel about the matter, I am satisfied, without making any ruling at the moment in regard to the admissibility of the specific tendencies propounded, that there is, from what Ms Climo has put to me, a real prospect that admissible evidence can be adduced in relation to each of the incidents, so that determining the other, substantive matters is not devoid of practical effect.

In general terms, the tendency evidence that was sought to be led relates, as I have said, to matters giving rise to the deceased’s previous convictions. Of the nine remaining matters relied upon, there is no doubt that each of them relates to the deceased conducting himself in an aggressive, indeed it might be open to say, highly aggressive, manner. Many of them relate to the infliction by him of actual violence upon the complainant in an individual matter. That being said, I should acknowledge at the outset, as the learned Crown Prosecutor has submitted, the propounded tendencies, in accordance with the tendency notice, are cast at a significant level of generality, which is relevant in relation to the question of whether the conditions which underpin s 97 are satisfied.

The starting point for the admissibility of any evidence is, of course, s 55 of the Evidence Act which defines relevance; and s 56 which establishes the general rule that relevant evidence is admissible; and irrelevant evidence is not. It is perhaps worthwhile recording the definition of "relevance" so I may keep it at the front of my mind. That definition is in the following terms (s 55(1)):

As I have said, the principal issue relates to whether Crown can exclude self-defence. In her written submissions, Ms Climo identified the relevant facts in issue to be the following:

I am satisfied that each of those facts are facts relevant to whether or not the Crown can exclude the reasonable possibility:

Section 97 of the Evidence Act establishes the “tendency rule”, as I have said. Section 97(1) is in the following terms:

Where tendency evidence is adduced by the Crown in a criminal proceeding against the defendant, an additional requirement of admissibility is imposed by s 101 Evidence Act which does not arise when the accused seeks to introduce tendency evidence.

Tendency evidence has received the attention of the High Court of Australia and intermediate appeal courts in Evidence Act jurisdictions throughout Australia very frequently in recent years and both parties have referred me to a number of those leading cases. Each of those decisions of high authority relate to the admissibility of tendency evidence on the application of the Crown and that context needs to be borne in mind. Though it must be said that the principles expressed are immutable, it needs to be borne in mind that in a criminal prosecution, quite apart from the additional condition of admissibility stipulated by s 101, the Crown carries the onus of proving each and every element of the offence charged beyond reasonable doubt. An accused person, particular defences not here relevant aside, carries no onus. There is no onus on the accused here in relation to the matters in respect of which the tendency evidence is sought to be admitted.

As a function of the criminal standard of proof and the accusatory nature of criminal trials, it is sufficient to entitle the accused to an acquittal if the jury is left of the view that an accused's exculpatory version of events, where one is available, as here, in the account given to the police, might be true as a reasonable possibility. This is because that uncertain state of persuasion on the part of the jury must give rise to a reasonable doubt. In my judgment one has to bear this important consideration in mind when considering the meaning of "significant probative value" in s 97(1)(b) or at least in relation to its application when the accused seeks to adduce evidence of a relevant tendency on the part of someone.

I should say, from the submissions of each counsel, my colleague Chen J has come to a similar conclusion in the recent decision in R v Martin (No 2) [2024] NSWSC 969 at [24]-[27]. After referring to, in particular, the judgments in the matter of Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, to which I will return, his Honour said (at [27]):

Returning to other matters of principle. In the leading case of Hughes, a plurality of the High Court, consisting of Kiefel CJ, Bell, Keane and Edelman JJ said at [41]:

"Beyond reasonable doubt" is the applicable standard of proof and the facts in issue relate to the legal elements of the offence. Matters are somewhat different, in my view, and clearly in the view of Chen J, in terms of "significant probative value", when one deals with the evidence to be introduced by the accused. For instance, in R v Cakovski [2004] NSWCCA 280 at [36]-[41] Hodgson JA referred to this important difference, inter alia, and the circumstance that the accused did not carry the onus of proof. The tendency evidence in that case was said to relate to evidence that the deceased had, 25 years earlier, murdered three people. The majority (Hodgson JA and R S Hulme J) were of the view that the evidence was not admissible as tendency evidence but considered that it was admissible as relevant evidence simpliciter because it made the account of the accused, who had given evidence, less improbable. That is to say, their Honours thought that the evidence was admissible on general principles.

The third member of the court in Cakovski, Hidden J, said at [70]:

I observe that the judgment of the majority was subject to some criticism in Elias v R [2006] NSWCCA 365 and the analysis, so far as it contradicted the majority, of Hidden J was preferred. It seems to me that, although I am of course bound by both decisions, Cakovski not having been overruled by Elias, I believe I am entitled to place emphasis on the consideration that Hidden J would have been prepared to treat the contentious evidence as tendency evidence and considered that it was admissible for the reasons he explained, notwithstanding that as at the time of the murder of the deceased, the accused was not aware of his previous criminal history.

I should also observe that in Hughes at [42], the plurality said that s 97 requires: "an open-textured enquiry" into whether the probative value of the evidence is "significant". Their Honours observed that it is inevitable in such an exercise that reasonable minds might reach different conclusions. Their Honours cautioned that care needed to be brought to bear in undertaking that open-textured enquiry.

It is my view, as I have tried to explain already, that the requirements of significant probative value in relation to evidence sought to be led by the accused, must necessarily be different from its assessment when the same evidence is sought to be led by the prosecution in proof of an accused's person's guilt. That is a function of the standard and burden of proof. It seems to me that the evidence may well be significant when it comes to determining whether there is a reasonable possibility that the account of the accused is true which, in turn, may mean the jury is not persuaded beyond reasonable doubt that the prosecution has proved its case.

For that reason, I am of the view that the tendency of the deceased to provoke violent confrontation when intoxicated, a tendency to engage in physical confrontations, including when intoxicated, and a tendency to engage in the above physical confrontations using, or threaten to use a knife, if capable of being established by the evidence upon which the accused relies, is, in turn, capable of having significant probative value afforded it in the deliberations of the jury.

I remind myself that in determining questions of admissibility it is not for me to assess the likelihood of the evidence proposed being accepted by the jury. It is not only unnecessary, but it is impermissible for the Court to undertake an assessment of the factors relating to its inherent reliability or even credibility. Those are matters entirely within the province of the jury. That the evidence sought to be tendered by the accused may depart, or be different, from, in material respects, the account given by the accused, is not a factor which informs the admissibility of the evidence proposed to be tendered, including the tendency evidence.

I do not propose to go through all of the detail that has been included in the summary attached to Ms Climo's submissions as Annexure A or the more detailed material I have received and admitted as Exhibits B and C respectively. I am satisfied that each of the nine remaining matters is either an incident involving the deceased participating in, or on his own, inflicting significant violence on the complainant in each case. I am also satisfied that while no actual violence was inflicted by him in the matters ending in 214 and 058, to which I have referred earlier, they are each matters involving a high degree of aggression, on the part of the deceased, which is capable, I emphasise, of being taken into account by the jury in their determination of whether the tendency contended for by the accused has been established.

I was shown some CCTV footage of the circumstances supporting the matter ending in 214 and although there was no actual physical violence depicted, the deceased is heard and later seen to be yelling in an angry manner and exhibiting body language which is redolent of high aggression. It is not insignificant that the complainant in that case, who was initially shown on camera, at the approach of the deceased took flight and refuge in his own vessel, the events having occurred at a marina or jetty. The accused is also seen to spit a number of times at or in the direction of the complainant. He eventually desists from his conduct and returns to his own place, or vessel, although he can still be heard to be expressing himself in a voluble and angry voice.

In assessing this material, I have borne in mind that tendency evidence is a form of circumstantial evidence; that is to say it is indirect evidence which, if accepted by the jury, may inform their assessment of the facts in issue and, in particular, in this case, the question of whether the Crown have proved beyond reasonable doubt that the accused, when he stabbed the deceased, did not act in self-defence.

In some of the incidents the deceased is in the company of persons who are armed with makeshift weapons. I speak, in particular, of the first matter, which apparently occurred in Kirkconnell Correctional Facility back in November 1997. On other occasions he has, himself, injured people by hitting them with a makeshift weapon or, in one matter, by throwing bottles and tiles at police. Having said that, there is only one offence where there is evidence that he produced a knife, and although that was disputed by him at the time, there is independent lay evidence to the effect that, in an angry altercation with two young men, he produced a steak knife. That event was a fairly recent event, in terms of the date of the accused's alleged offending, having occurred on 5 July 2020. Even so, I am not satisfied that that single incident, if accepted by the jury, would provide significant probative evidence of a tendency which involved using or threatening to use a knife. I am not satisfied that the third tendency has been shown to be capable of being established by the evidence relied upon by the accused and I would not permit that third tendency to go to the jury; that is not to say that the matter cannot be led in support of the other tendencies in sub-paragraphs 2 (a) and (b).

I am also conscious of the argument raised by the Crown that some of these events occurred a long time ago and that there is perhaps an unexplained gap in the matters relied upon to establish the tendency between 28 April 2005 and 5 July 2020. In that regard I am still of the view that it would be open to the jury to regard the number of matters over a long period of time, even if there is an unexplained gap, as having a certain continuity which could be probative, perhaps significantly so. It is a matter for them, but I accept the evidence is capable of rising to that standard, as I have explained it to operate, in this case and, to that extent, establish the tendency.

I am also conscious of the consideration that in Cakovski the court considered events which had occurred more than two decades previously were capable of being admitted as relevant, and in the case of Hidden J as tendency evidence. Although I accept that perhaps that decision could be compared with the decision of the High Court of Australia in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045.

I turn then to the question of the discretionary exclusion of the evidence under s 135 Evidence Act. In invoking this section, the learned Crown Prosecutor appropriately drew my attention to the dictum of Hidden J in Cakovski at [72], where Hidden J said:

Ms Ratcliffe also acknowledged that in determining whether a danger of unfair prejudice had been established, I am required to have regard to the directions that can be given to a jury to circumvent any possible or potential misuse of the evidence. She referred to R v XY [2013] NSWCCA 121 at [191].

Section 135 provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party (s 135(a)).

In assessing the applicability of that discretion in the present case, bearing in mind the distinction between admissibility of evidence and its discretionary exclusion, I have come to the conclusion that the evidence is capable of having significant probative value, and the question of whether the discretion is engaged has to be viewed through that lens. This, if I may put it this way, compounds the degree of difficulty that the prosecution will meet in invoking s 135 in such a case.

It is true that there are aspects of the evidence proposed to be led that could taint the view of a jury against the accused. First, necessarily all of these matters involve the commission by the deceased of criminal offences of violence. Secondly, the first offence, as I have said, occurred while the accused was in custody. Thirdly, there are offences of domestic violence, of which any reasonable jury is likely to strongly disapprove. And finally, there is the inherent problem that the deceased is not here to give any explanation of himself.

In respect of many of these matters, I am of a view that, while they could potentially be prejudicial indirectly to the prosecution because the jury may form a dim view of the deceased's character, and they in that regard may form some prejudice in relation to the merits of the prosecution case; I accept these things are possible.

However, I am also of the view that each of these matters can be dealt with by way of directions of law to the jury, bearing in mind the immutable assumption that trial courts must always make that juries obey the trial judge's instructions. In particular, it is a standard direction given to every jury at the outset of the judge's summing-up that they are to decide the case dispassionately, objectively and by having regard only to the evidence without undue sympathy or prejudice to anyone or any party. This always includes the accused but also the deceased.

Moreover, the directions that are given in relation to tendency evidence require the jury to approach the matter with care, if I may put it that way. First, whether or not the tendency is established is a matter for their judgment in accordance with the evidence that they accept, even if it would be sufficient for them to accept that there was a reasonable possibility that the deceased had that tendency. The general instruction given in relation to tendency evidence reminds the jury that, even if they are satisfied that the deceased had the tendency for which the accused contends, that the person who has such a tendency may not act in accordance with it on every occasion on which the conditions attending it might exist.

And finally, of course, it will be a matter for the jury, they will be told, given the circumstantial nature of tendency evidence, whether, taken as a whole, the evidence supports the tendency to the level of reasonable possibility such that they cannot be persuaded beyond reasonable doubt that self-defence has been excluded.

Furthermore, to the extent to which the individual matters are of themselves prejudicial, those are factors which will go perhaps to matters of admissibility of individual pieces of the evidence, if I may put it that way, that it would seem to me that either by discussion between counsel or by ruling at the point of tender, some of the matters which may be of particular concern can be appropriately sanitised. Such things are not unknown.

In all of the circumstances, I am not persuaded that s 135 has been engaged such that I would exclude the evidence to which I have referred.

For those reasons, I make the following ruling: