R v Anderson

1. [1]

   HER HONOUR: Christopher Anderson is being tried by jury for the murder of Allira Green. During the course of the trial, I have given a number of rulings, reserving my reasons so as not to detain the jury. This judgment states my reasons for giving those rulings.

Tendency evidence

1. [2]

   The Crown case is that the accused and the deceased were in a relationship and that the deceased was some 20 weeks pregnant as at the date of her death. Their relationship was volatile. There had been two previous occasions when the police had been called following verbal altercations. On the night of her death, the deceased was at the home of a friend, Louise Bodeker. A third woman, Allira Holt, had arrived to collect the deceased. The accused arrived after Allira Holt. The deceased and Allira Holt yelled at him to go away. According to the Crown case, the accused pushed his way into the unit and pushed all three girls over. Louise Bodeker says at that point the deceased went to the kitchen, took a large kitchen knife and ran at the accused, holding the knife above her head. Ms Bodeker saw the accused grab the deceased’s hand that was holding the knife. Neither Ms Bodeker nor Ms Holt saw what happened with the knife after that point. The deceased fell to the floor, having suffered a single fatal stab wound which had penetrated her lungs and heart. DNA of the accused was found on the handle of the knife.

2. [3]

   The trial was originally listed for hearing commencing on 18 May 2015. By notice dated 10 May 2015, the Crown gave notice of its intention to adduce evidence that the accused has a tendency to use serious physical violence towards his female partners. The notice attached a statement taken from a previous girlfriend of the accused. The statement was dated 7 July 2014 but had not previously been served on the accused. Since the date on which the tendency notice was served was a Sunday, it should (for practical purposes) be taken to have been served the following Monday, one week before the trial was due to commence. Owing to the need to address a number of pre-trial issues (including the late service of the tendency notice but also including several matters raised on behalf of the accused), the Crown and the accused joined in seeking an adjournment of the trial until 25 May 2015. The trial in fact commenced that day.

3. [4]

   The proposed tendency evidence was, in short, evidence of violence and serious assaults committed by the accused against his previous girlfriend. In an unusual and probably irrelevant coincidence, she also was pregnant at the relevant time. The evidence was governed by the tendency rule contained in s 97 of the Evidence Act 1995 (NSW), which provides:

4. [5]

   The notice was served under cover of a letter foreshadowing an application under s 100(1) of the Evidence Act. That section confers power to make a direction that the tendency rule not apply to the evidence, despite the failure to give notice under s 97. The Crown’s letter proceeded on the misapprehension that there is a specific requirement to give 21 days’ notice of an intention to adduce tendency evidence. That is not the case. The content of the requirement is to give “reasonable notice”. Section 100(1) thus confers express power to direct that the tendency rule is not to apply despite a party’s failure to give reasonable notice. The breadth of such a power is to be understood in the context that it applies to civil proceedings as well as criminal proceedings.

5. [6]

   It should be noted that on a literal reading of s 100(1), the section appears to confer power to direct that the tendency rule is not to apply at all to particular evidence. The tendency rule has two limbs. In order to be admissible, tendency evidence must satisfy the “reasonable notice” requirement in s 97(1)(a) and the “significant probative value” requirement in s 97(1)(b). Section 100(1) is directed, in terms, at the tendency rule as a whole. It confers power to “direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97”. The section thus purports to confer power to admit the evidence regardless of the requirement that it have significant probative value. However, I would regard that to be an unintended infelicity in the drafting of the statute. A direction under s 100(1) should, in my view, be made only to cure a failure to give notice and not to cure a failure of the evidence to meet the requirement of s 97(1)(b). That is consistent with the way in which the rule has been understood by the Court of Criminal Appeal: see R v Harker [2004] NSWCCA 427 at [35] per Howie J; Santow JA and Bell J agreeing at [1] and [2] respectively.

6. [7]

   In criminal proceedings, apart from the tendency rule, there is an additional requirement which is that the Crown cannot use tendency evidence against a defendant “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101 of the Act. However, the Court held in Harker that, although it might appear to be a “highly legalistic” exercise, the trial judge should not determine an application for a direction under s 100(1) by going directly to the issue whether the evidence would be inadmissible under that stricter requirement: at [36].

7. [8]

   The evidence sought to be relied upon by the Crown as tendency evidence in the present case is contained in paragraphs 10, 11, 12 and 13 of the statement of the former girlfriend, as follows:

8. [9]

   The Crown indicated that she did not propose to lead evidence as to the loss of the pregnancy, nor the fact that one of the assaults described by the witness resulted in a criminal charge.

9. [10]

   It was indicated on behalf of the accused that the principal issues in the trial would be whether the fatal stab wound was inflicted by a deliberate act of the accused (rather than accident) and whether the Crown can establish that any deliberate of stabbing the deceased was not done in self-defence.

10. [11]

    Taking the approach specified in Harker, I first considered whether I should make a direction under s 100(1) that the tendency rule not apply despite the failure to give notice under s 97. A direction under s 100(1) is one to which s 192 of the Evidence Act applies. That section provides:

11. [12]

    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

12. [13]

    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

13. [14]

    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

14. [15]

    the extent to which to do so would be unfair to a party or to a witness, and

15. [16]

    the importance of the evidence in relation to which the leave, permission or direction is sought, and

16. [17]

    the nature of the proceeding, and

17. [18]

    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

18. [19]

    In Harker, Howie J said that the two most important considerations in that case were the probative value of the evidence and any prejudice caused to the accused by the failure to give reasonable notice. In considering those issues in the present case, I had regard to the overriding duty of a trial judge to ensure that a person accused of a serious criminal offence has a fair trial. Without determining the issue raised by s 97(1)(b), I proceeded on the basis that the evidence would have some probative value.

19. [20]

    As already noted, the Crown was initially under the misapprehension that the requirement was to give 21 days’ notice. A shorter period could have been regarded as reasonable but the Crown acknowledged that the notice given on 10 May 2015 was not reasonable notice in the case of a trial then due to commence on 18 May 2015. However, the Crown submitted that the deferral of the trial by one week had adequately addressed any prejudice to the accused.

20. [21]

    I was not satisfied that it had. The postponement of the trial by one week was due to a combination of the late service of the tendency notice and other issues raised at the 11th hour on behalf of the accused. That meant that the accused had two weeks (rather than only one) to react to the notice. However, even leaving aside the need to prepare to deal with the tendency evidence at trial, there was a great deal for the accused’s legal team to be doing during that time. The matters to which the accused’s solicitor was attending included chasing up production of police notebooks and other documents that came into existence during the investigation through the issue of a number of subpoenas; negotiating with police (separately represented) in respect of the production of that material; investigating with a psychiatrist the possibility of a defence of substantial mental impairment; obtaining an expert report from a forensic pathologist and investigating the mental state of one of the two key eyewitnesses who had, until recently before the trial, been said to be “unavailable” but had become available and had provided a further statement.

21. [22]

    Some of those matters (particularly the position of the eyewitness) were not due to any delay on the part of the accused. Others were matters which could have been addressed more promptly by the accused but the simple fact is that, as events transpired, they were all tasks which had to be completed within the short time frame before the commencement of the trial so as to ensure a fair trial for the accused. The accused was (and remains) in custody, with all the practical impediments posed by that circumstance for the orderly taking of instructions.

22. [23]

    In those circumstances, even leaving aside my assessment as to the probative value of the evidence, I did not think it would be appropriate to relieve the Crown of the requirement to give reasonable notice of the tendency evidence. The admission of the evidence would have required the accused to answer for a range of incidents alleged to have occurred over a period of some months at least a year earlier. The investigation of those allegations and the process of taking instructions from the accused about them would have been a significant distraction to the accused and his legal team in the short period leading up to the trial, after the tendency notice was served. The inevitable prejudice was compounded by the fact that the accused’s legal team had never previously seen the statement of the tendency witness.

23. [24]

    In considering an application under s 100(1), the Court should give consideration to whether there is any way in which the evidence can be accommodated notwithstanding a lack of reasonable notice. The Crown did not submit that the trial date should be vacated to accommodate the evidence. I would not have acceded to any such application. The accused has been in custody since his arrest on 3 August 2013. Had the trial been postponed, he would have, in all likelihood, been in custody for a period approaching two years by the time of any further trial date.

24. [25]

    The Crown did submit that the evidence could be called later in the Crown case so as to give the accused’s legal team more time to prepare for it. In the circumstances of a criminal trial, I did not think it would be reasonable to regard the days of the trial as preparation time to accommodate a want of reasonable notice. For those reasons, I determined that the direction sought under s 100(1) of the Evidence Act should not be made.

25. [26]

    Even if reasonable notice had been given of the Crown’s intention to adduce the evidence or if the difficulty could have been accommodated in some other way, I would not have admitted the evidence. The critical question is whether the relevant tendency is “a link in the process of proving that the person did in fact behave in the particular way on the occasion in question”: Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 at [61] per Sackville J; Whitlam and Mansfield JJ agreeing. The factual issue in the present case is whether, when the deceased went at the accused holding a knife above her shoulder, the accused grabbed the knife and, in a deliberate act, stabbed her with the intention of killing her or causing grievous bodily harm. It may be accepted that the proposed tendency evidence, if accepted, would establish a tendency on the part of the accused to use serious physical violence towards a particular previous female partner. Whether that would establish a tendency to use serious physical violence towards “his female partners” would require an assessment and comparison of the circumstances of the accused during each relationship and the circumstances of each relationship. It appeared likely that would ultimately invite comparison of the former girlfriend’s references to the accused’s failure to attend drug rehabilitation during that time with the evidence in the present trial as to any drug use by the accused.

26. [27]

    The events described by the former girlfriend are very different from the events described by the two eyewitnesses on the evening Allira Green died. The evidence would not have been admissible unless its probative value substantially outweighed any prejudicial effect it may have had on the accused: s 101(2) of the Evidence Act. Whilst I accept that the evidence would have had some probative value in assessing the likely conduct of the accused, I was not persuaded that the probative value of the evidence outlined in the Crown’s tendency notice substantially outweighs any prejudicial effect it may have on the defendant.

27. [28]

    The content of the statement served in support of the tendency notice reveals an understandable degree of bitterness and acrimony on the part of the former girlfriend towards the accused. As already noted, it included the unusual and probably irrelevant coincidence that each woman was pregnant at the relevant time; a factor which could have incited strong feeling in some members of the jury. Although the Crown indicated that she would not lead all of the evidence set out in the tendency statement, I nonetheless concluded that the evidence was likely to portray the accused in a very negative light at an earlier period and so distract the jury from focused attention on the real issues in this trial; that is, the accused’s deliberation and state of mind in the very short period of time between when the deceased came at him holding a knife and when she suffered the fatal stab wound. Accordingly, even if reasonably notice had been given, I would have excluded the evidence on the grounds that it did not satisfy the test in s 101 of the Evidence Act.

Evidence of Nardia Simms-Green

1. [29]

   Nardia Simms-Green is the mother of the deceased. Mr Waterstreet objected to paragraphs 33 and 35 of her statement, as follows:

2. [30]

   The Crown indicated that she did not wish to adduce all of the detail of that night but did wish to adduce evidence of the conflict and the description of the behaviour of the accused which prompted Ms Simms Green to call police.

3. [31]

   Mr Waterstreet’s objection raised two issues: first, he stated that the accused was in possession of a COPS computer entry which did not record any of the description now given by the mother and which stated “the victim did not disclose any offence and did not express fears for her safety”. On that basis, he submitted that the mother’s evidence was out of context and therefore prejudicial. I did not think the fact that there was additional evidence that could be lead from police in respect of the incident informed the admissibility of the mother’s evidence as to that incident.

4. [32]

   Separately, Mr Waterstreet objected that it would be unfair to admit the evidence since the incident the occurred some time before the stabbing (about five weeks). Mr Waterstreet accepted that “proper background relationship evidence” of the volatile relationship between the accused and the deceased would be admissible.

5. [33]

   Finally, Mr Waterstreet objected to the description of the accused “frothing” at the mouth. He submitted that the description portrayed mental illness or intoxication and was more prejudicial than probative.

6. [34]

   The description of the accused “frothing” at the mouth was no more than the mother’s description of what she saw. I determined to allow the Crown to adduce evidence as to what the mother saw and heard on that occasion. I do not think the description was prejudicial in the proper understanding of that term. On the premise (accepted by Mr Waterstreet) that evidence of the volatility of the relationship is relevant to the assessment of the events of 3 August 2013, I was satisfied that the evidence was relevant and admissible. I was not persuaded that its probative value was outweighed by the danger of unfair prejudice to the accused.

Evidence of Aaron Timbery

1. [35]

   The Crown tried to lead evidence from Aaron Timbery. Mr Timbery made a statement to police on 11 August 2013 which included an account of a conversation he had with the accused shortly after Allira Green was stabbed and observations he made of the accused’s clothing. Of particular importance to the Crown was the information he provided to police as to the conversation, as follows:

2. [36]

   When Mr Timbery was called in the trial (T100), he claimed to have no recollection of seeing the accused on 2 or 3 August 2013. He also claimed to have no recollection of making a statement to police on 11 August 2013. He said he had no independent recollection as to what happened on 3 August 2013, the day on which he heard about the death of Allira Green. His explanation was that he was heavily affected by drugs at that time.

3. [37]

   In the absence of the jury, I granted leave under s 32 of the Evidence Act for the witness to revive his memory in court by reference to his statement. The witness read the whole of the statement (T108.9). He said that, when he made the statement, he was telling the truth. However, he said that reading the statement had not refreshed his memory of the events to which it referred (T109.10).

4. [38]

   Before that point was reached, Mr Waterstreet had foreshadowed an objection to the alleged admission by the accused to taking Xanax and ice on the night of the stabbing. He submitted that admission of that evidence would be unfair, relying on s 90 of the Evidence Act. In the absence of the jury, I allowed Mr Waterstreet to cross-examine Mr Timbery on the voir dire on that issue. The effect of the evidence on the voir dire was that Mr Timbery was taking a great deal of ice during that period of his life and that he presently had no independent recollection whatsoever of that period. He was asked whether he felt he was compelled to go to the police station to make his statement. He said that he did not; his aunt had asked him to go to the police.

5. [39]

   During the cross-examination, I indicated that I had reached the point of wanting to hear from the Crown as to the admissibility of the alleged admission under s 90 (T114.18). The Crown then called (on the voir dire) the police officer who took the statement from Mr Timbery, Senior Constable Lucinda Vasey. She said that Mr Timbery attended Maroubra Police Station and told her that he wanted to give a statement about the murder of Allira Green; that he told her clearly what had happened so far as he knew; that he was awake the whole time and understandable and that his voice was clear; and that he was confident (T118).

6. [40]

   Upon reflection, I determined that there was nothing in the content of Mr Timbery’s statement (and nothing in the evidence of Senior Constable Vasey) to support the contention that the admission made by the accused to Mr Timbery was unfairly obtained so as to render the admission inadmissible under s 90. That section is concerned with the fairness to the accused of using evidence of an admission having regard to the circumstances in which the admission was made. Nothing in the evidence on the voir dire suggested any unfairness on that account. The admission was, in effect, volunteered by the accused. The real issue raised by Mr Timbery’s evidence in the trial and on the voir dire was Mr Timbery’s reliability as a witness. That was an issue which would not need to be addressed unless and until he came up to proof as to the content of his statement.

7. [41]

   The following morning, I reminded Mr Waterstreet that I had stopped his cross-examination on the question of unfairness and s 90. No application was made at that point to cross-examine the witness further on that issue. I determined that the evidence was not inadmissible under s 90.

8. [42]

   However, at that point it appeared likely that if the Crown were allowed under s 38 of the Evidence Act to cross-examine the witness, he would maintain that, as at the time of giving evidence in the trial, he had no recollection of the events of 3 August 2013 or of giving his statement to police on 11 August 2013. In that circumstance, I considered it would be prudent to allow the Crown to cross-examine the witness in the absence of the jury so as to ascertain what he would say. I had in mind that if the witness gave no evidence confirming the events described in the statement, his previous representations to police would not be admissible as to the truth of their contents and accordingly that the jury should not hear the evidence at all. The out of court statement made by Mr Timbery to police could only be admissible as to the truth of its contents under s 66 of the Evidence Act but fell within the exclusion under s 66(3) and so was not admissible under that section.

9. [43]

   Under cross-examination by the Crown, Mr Timbery accepted that he had said the words recorded in the critical parts of his statement to police and said what he told police was the truth (T177 to 180). Under cross-examination by Mr Waterstreet, Mr Timbery was asked whether he now has any memory of what is contained in each paragraph. He said “no I didn’t remember until I read this” (T182).

10. [44]

    Mr Waterstreet asked “so when you told the Crown today that you intended to tell the truth in relation to what is contained in the document do you have any idea today whether it is the truth?”. Mr Timbery responded “no I don’t” (T183.14). Pressed as to whether, on the day on which he gave his statement, he recalled the events set out in the statement he said, “yes, well I wouldn’t have just said that”. He confirmed that what was recorded in paragraph 16 was from his memory on the day on which his statement was made (T184.40).

11. [45]

    Having heard the cross-examination on the voir dire, I did not accept Mr Timbery’s claim that he could not recall the events in question. I was satisfied he was not, in examination in chief, making a genuine attempt to give evidence about those matters. On that basis, I granted leave to the Crown under s 38(1)(b) of the Evidence Act to question the witness in the trial as though she were cross-examining him.

12. [46]

    Mr Timbery repeated in the presence of the jury that he had said to police the things recorded in his statement and that he was telling the truth when he told the police those matters. As to the conversation recorded in paragraph 17 (the admission as to the use of Xanax and ice), however, he added “I don’t remember now but” (T191.33). In cross-examination by Mr Waterstreet in the trial, Mr Timbery repeated that he was taking ice at the time of the events dealt with in his statement to police and also at the time he made that statement. He said that he was taking quite a deal of ice at that time and that it had affected his memory.

13. [47]

    Since Mr Timbery accepted that the statements put to him in questions by the Crown were true, the net result was that there was oral evidence in the trial of those matters. However, I formed the view that (subject to any submission to the contrary on behalf of the accused) it would be appropriate to warn the jury as to the potential unreliability of that evidence having regard to the witness’s further evidence that he does not presently have any recollection of the events addressed in his statement owing to his use of drugs.