R v Davidson (No. 1)

1. [1]

   Mervyn Keith Davidson (“the accused”) was arraigned before me on Monday, 29 July 2019 and entered a plea of not guilty to the following charge:

2. [2]

   The trial was conducted without a jury.

3. [3]

   The Crown case is that the accused strangled the deceased in his cell at the prison where both the accused and the deceased were being held in adjoining cells. The accused claims to have a mental illness, schizophrenia, and claims that on the day the deceased was killed he had consumed quantities of Xanax and methamphetamine.

4. [4]

   The accused does not dispute that he killed the deceased but he says that he does not remember doing it. The Crown will need to prove that element of the offence that the accused did the act that caused the deceased’s death.

5. [5]

   The only issues at the trial are whether the accused is not guilty of murder by reason of mental illness; alternatively, whether he is guilty of manslaughter by reason of substantial impairment (s 23A of the Crimes Act 1900 (NSW)); alternatively, whether by reason of self-induced intoxication he is guilty of manslaughter (s 428C of the Crimes Act).

Tendency and context evidence

1. [6]

   On 5 June 2019 the Crown gave a Notice under s 97 of the Evidence Act 1995 (NSW). The tendency evidence sought to be proved was this:

2. [7]

   The substance of the tendency evidence was identified as Agreed Facts on Sentence in respect of a number of offences committed by the accused as well as the Remarks on Sentence of Judge Haesler SC on 9 March 2018: R v Mervyn Davidson [2018] NSWDC 45.

3. [8]

   By notice of motion dated 22 July 2019 and filed in Court on 29 July 2019, the accused sought an order that the Crown’s proposed use of tendency evidence be excluded. Two bases were put forward as follows:

4. [9]

   In one sense, the dispute over the tendency evidence was unusual because it was not disputed that the accused choked and assaulted the deceased as the Crown Case Statement set out. However, as noted earlier, because the accused does not recall the event the Crown will have to prove that it was the accused who killed the deceased.

5. [10]

   At the hearing of the motion, the Crown sought, in the alternative, to have the evidence, and additional evidence, admitted as context evidence. I will return to the additional evidence later in this judgment.

Tendency evidence

1. [11]

   So that the precise portion of the agreed facts that were before Judge Haesler SC that is put forward as tendency evidence can be properly understood, it is necessary to say something of the facts that took place prior to those facts.

2. [12]

   On 29 January 2017 the accused went to the ALDI store in Albion Park Rail. He was carrying an aluminium baseball bat. He approached a woman working the checkout at register 5 and struck her with full force on her head using the baseball bat. She fell to the floor unconscious. The accused proceeded to kick her whilst she was on the ground in an attempt to get closer to the register.

3. [13]

   A number of persons sought to confront the accused including a staff member who jumped on the accused’s back and put his arms around the accused’s neck and chest. The accused swung the baseball bat at that staff member and struck him on the back of the head three or four times.

4. [14]

   Ultimately the accused was restrained and, after the police arrived, he was arrested and taken to Lake Illawarra Police Station. Whilst there he assaulted a police officer.

5. [15]

   The facts relied upon by the Crown in the present application from the agreed facts are these:

6. [16]

   The Crown also relies on certain remarks of Judge Haesler including that at the time he was arrested he appeared to be drug affected. Judge Haesler also referred to an examination by a forensic psychiatrist, Professor Greenberg, who examined the accused after he was returned to custody. Judge Haesler noted that Professor Greenberg had concluded that the accused had an amphetamine-induced psychosis in partial remission, poly-substance abuse disorder and personality disorder with antisocial features. Professor Greenberg concluded that the accused’s further abuse of alcohol and other illicit substances, such as crystal methamphetamine, was likely to exacerbate his personality problems and potentially precipitate further episodes of psychosis.

7. [17]

   Judge Haesler made reference to the accused’s dysfunctional upbringing and his early and ongoing exposure to violence and alcohol and drug abuse which, his Honour said, had resulted in significant and chronic problems. His Honour went on to say that these factors provided a compelling explanation for the accused’s continuing addiction problems and ongoing involvement in criminal offences. His Honour found that the offences could not be divorced from his significant mental and cognitive difficulties. He found that there was a causal relationship between his drug use, his psychosis and the offending.

8. [18]

   In support of its application to lead the evidence, the Crown submitted that the tendency evidence established a tendency on the part of the accused to have a particular state of mind, namely an intention to kill or inflict really serious injury on someone staying in close proximity to him, and to act on that particular state of mind by choking them; that is, to be able to form the intention to act despite any effects of mental illness or self-induced intoxication.

9. [19]

   The Crown submitted that the significant probative value of the tendency evidence lay in its capacity to make it more likely that:

10. [20]

    The Crown submitted that although the accused did not necessarily dispute that he was responsible for causing the death of the deceased, the matter was complicated by his reported lack of memory of the incident. In that way there was significant probative value in the tendency evidence to prove that the accused was responsible for the act that caused the deceased’s death.

11. [21]

    The Crown submitted that the evidence has significant probative value because it has the capacity to affect the assessment of the probability of the accused knowing the nature and quality of the act he was doing and that what he was doing was wrong, that he had the capacity to control himself and that he had the intention to kill or to inflict really serious injury despite any effects of intoxication.

12. [22]

    The Crown pointed to the significant similarities between the present offending and the choking incident in prison. The Crown noted that the accused was intoxicated by methamphetamine in both cases and, that the victim was alone in a cell when they were attacked; that the accused used a t-shirt or something similar or his forearm to choke the victim, and that there was no other interaction between the accused and the victim prior to the attack in each case.

13. [23]

    The accused did not press the objection that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect. The accused based his opposition only on the basis that the tendency evidence did not have significant probative value.

14. [24]

    The accused submitted that, of the material sought to be put in evidence by the Crown, only the offence of intentionally choke contrary to s 37(1) of Crimes Act 1900 (NSW) would have any possible probative value. In the same way, the accused submitted that only the material contained in paragraphs 8, 9 and 14 of Judge Haesler’s Remarks on Sentence could constitute tendency evidence. Those paragraphs were as follows:

15. [25]

    The accused submitted, however, that the facts disclosed only one such previous occasion of similar offending and in that way could not be said to give rise to a tendency. Reference was made to the decision of RHB v R [2011] VSCA 295 at [18]-[22].

16. [26]

    Section 97(1) of the Evidence Act provides:

17. [27]

    The Dictionary defines probative value when speaking of evidence as meaning,

18. [28]

    In Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52, the plurality said at [40]:

19. [29]

    There are two matters that the Crown seeks to prove with the assistance of the tendency evidence. The first is that it was the accused who committed the act of choking the deceased. The second is that he did it with the intention of at least inflicting really serious injury. On the second aspect, the Crown seeks to prove that, notwithstanding the accused’s known mental health issues and the fact that he at least asserts that he was intoxicated with methamphetamine and Xanax, he nevertheless was able to form the requisite intent.

20. [30]

    In my opinion, the fact that he had previously attempted to choke or strangle another inmate whilst the accused was under the influence of methamphetamine, does not say anything about his intention to commit the present act. It seems to me to be question begging to assert that because he has done a similar act before when similarly intoxicated, that demonstrates knowledge on his part of what he was doing and his intention to do it. That is a matter which can only be determined ultimately with the assistance of the expert evidence of professionals who examined him on each occasion. Moreover, even if the professionals determined that on the earlier occasion he had the requisite intention, that in itself says nothing to help resolve the same issue on the present occasion.

21. [31]

    In my opinion, the Crown cannot adduce the evidence for the purpose of demonstrating the accused’s intention.

22. [32]

    The somewhat more difficult question is whether the Crown can adduce the evidence to show that the accused committed the act regardless of his intention or state of knowledge. The principal problem is that there is only the one prior occasion. However, as noted earlier, the Crown points to the striking similarity between the two offences.

23. [33]

    In Hughes the plurality said at [64]:

24. [34]

    However, the highlighted sentence in that extract is directed to the significance of the probative value of what has already been established as a tendency. So much is clear by the first two sentences of that paragraph.

25. [35]

    Nevertheless, in some cases a tendency itself may be able to be established by reason of the unusual nature of the activity or offending about which it is sought to adduce similar evidence. That can be gleaned by what was said by Nettle JA (with whom Harper JA agreed) in RHB at [18]. Justice Nettle identified a number of unusual features of the offending that were also demonstrated in the evidence sought to be led as tendency evidence. In answer to a defence submission that the approach was unduly wide because it would mean that whenever someone in the applicant’s position committed a sexual offence against a female relative, evidence of that would be admissible if he were ever charged with another sexual offence, Nettle JA said the submission was based on a false premise. His Honour went on to say at [20]:

26. [36]

    Section 97 of the Evidence Act is headed “The tendency rule”. The section is concerned with evidence of the “character, reputation or conduct of a person, or a tendency that a person has or had”. Whilst it would not be impossible to say that a person has a tendency to act in a particular way because they have done it once before, that would be the exception rather than the rule. Like the other nouns referred to, “tendency” suggests something that a person has by reason of repetition. As I have said and as RHB appears to recognise, very unusual similar facts might, in rare cases, constitute a tendency.

27. [37]

    I do not consider that the facts of the present offending are so unusual that it could be said that a similar offence committed 12 months earlier demonstrated a tendency. True it is that both victims were inmates but that was not unexpected because the accused has spent most of his adult life in custody. The fact that each of the victims were in a cell by themselves apart from the accused is scarcely unusual because the accused would have been less likely perform the act if other people were present. The fact that on both occasions the accused had consumed methamphetamine beforehand is not unusual inasmuch as he had been using that drug for a lengthy period of time. There is nothing in the facts to suggest that he consumed it in order to carry out the act; it was simply that the act was carried out during a time that he was so intoxicated. As to the method of strangling, whilst a T-shirt was used in the 2017 offence, it is unclear whether in the present offending (as the Crown appeared to acknowledge) a T-shirt or something similar was used, or whether it was the accused’s forearm.

28. [38]

    There is a further difficulty, at least insofar as the Crown relies on the Remarks of Judge Haesler. The Crown seeks to rely on those Remarks, seemingly for his Honour’s findings about the accused’s drug use and its relationship with his offending. Section 91 of the Evidence Act provides:

29. [39]

    In my opinion, the evidence sought to be tendered by the Crown for the purpose of demonstrating that the accused carried out the act in relation to the deceased is not tendency evidence.

30. [40]

    I do not think that anything said by the High Court in R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 at [50] is authority to the contrary. What the High Court was speaking of there was the admissibility of evidence in the situation where there is evidence of uncharged acts in sexual matters, frequently involving children. That is a different situation as the judgment makes clear at [48] where the uncharged acts:

Context evidence

1. [41]

   The evidence sought to be adduced as context evidence consisted of the following:

2. [42]

   The Crown submitted that the evidence should be admitted, in the alternative, as context evidence. The Crown put the matter in the following ways:

3. [43]

   The accused submitted that context evidence is not necessary in the present case, particularly as this is a judge alone trial. The accused would rely on ss 135 and 137 of the Evidence Act on the basis that the evidence really amounts to evidence of bad character.

4. [44]

   The circumstances of the present offending make clear why it was necessary for the present trial to be a judge alone trial. There is no doubt that there would have been prejudice to the accused if a jury was empanelled. It is not necessary to decide whether that prejudice would have been significant.

5. [45]

   I do not consider that the main issue in relation to context evidence is one of prejudice. There must be some considerable doubt that the accused is prejudiced simply because I am aware of this information, whether it is admitted or not, in a judge alone trial. This was a matter discussed by Johnson J in R v Droudis (No. 13) [2016] NSWSC 1350 at [78]-[95]. That approach has been followed by Hamill J in R v Qaumi & Qaumi [2016] NSWSC 1473 at [51] and R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487 at [37].

6. [46]

   The real issue is whether the evidence has probative value.

7. [47]

   Context evidence usually arises in cases involving sexual offending, most frequently in relation to children. In some cases it may in fact be relationship evidence but in other cases it may be similar to relationship evidence.

8. [48]

   In DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, McClellan CJ at CL (Hidden and Fullerton JJ agreeing) said at [28]:

9. [49]

   In ES v R (No.1) [2010] NSWCCA 197 Hodgson JA (with whom Whealy and Buddin JJ agreed) said at [41]:

10. [50]

    In determining whether the evidence has any probative value, the question that can be asked is whether there is a need to explain any aspect of the present offending by the admission of the evidence. Accordingly, it is necessary to consider briefly each of the matters for which it is asserted by the Crown that context needs to be given.

11. [51]

    There is no need to explain why the accused was an inmate at MRRC. He was an inmate and it was in the gaol environment that the index offence was committed. The fact that he was in a cell by himself, presumably because of the choking incident in 2017, provides no context to the index offence where the accused went into another cell and attacked the deceased.

12. [52]

    Whether or not the accused was due to appear at Court for sentencing on the day before the murder is not shown to be relevant. There is no evidence suggesting a connection between the two events.

13. [53]

    The physical capability of the accused committing the act does not appear to be an issue.

14. [54]

    The evidence concerning the accused’s drug use appears in the medical reports of Dr Nielssen and Dr Martin.

15. [55]

    The report of Dr Greenberg is referred to in the reports of Dr Nielssen and Dr Martin. It, together with the report of Ms Hubner and the Justice Health records would appear to me to be relevant when considering the defence of mental illness and substantial impairment, and for providing some detail concerning the extent of the drug use of the accused.

16. [56]

    The material referred to in these paragraphs is scarcely context evidence. It is simply admissible evidence relevant to the principal issues at this trial (referred to at [4] above). I would, subject to any other specific objections to it, admit this material generally, and not in any limited fashion as context evidence.

17. [57]

    This telephone conversation on 7 February 2017 occurred shortly after the earlier choking incident, some 12 months prior to the index offence. The accused was not put in the deceased’s cell; as far as is known, he was in a cell by himself since the February 2017 incident.

18. [58]

    If the call is sought to be used as evidence of intention, or self-knowledge of what the accused did in February 2018, it fails to take into account his mental state and drug consumption on the day of the 2018 offending. It is also very difficult to accept that a statement of intention made 12 months earlier in such general terms could have any probative value.

19. [59]

    The telephone call is not context evidence.

Conclusion

1. [60]

   The Crown’s application to lead the evidence as tendency evidence is rejected. The Crown’s application to lead the evidence as context evidence is rejected without prejudice to the right of the Crown to tender the reports of Professor Greenberg, Ms Emma Hubner and the Justice Health records.