Adams v R

Adams v R - [2017] NSWCCA 215 - NSWCCA 2017 case summary — Zoe

[2]

Judgment

HOEBEN CJ at CL: Offence and sentence On 27 September 2016, the appellant was arraigned before Button J in the Supreme Court of New South Wales on an indictment containing a single count: that on 24 September 1983, at Sydney in the State of New South Wales, he did murder Mary Louise Wallace.
The appellant pleaded not guilty and was tried by his Honour in a judge alone trial. On 4 November 2016 Button J returned a verdict of guilty of murder (R v Adams (No 6) [2016] NSWSC 1565).
On 3 March 2017 the appellant was sentenced to a term of imprisonment with a non-parole period of 15 years, commencing 11 June 2016 and expiring 10 June 2031 with a balance of term of 5 years expiring 10 June 2036 (R v Adams (No 7) [2017] NSWSC 179).
The appellant has appealed against that conviction on the following grounds: Ground 1: His Honour erred in finding that the appellant had a tendency, which had not been contended for, or notified by, the Crown. Ground 2: His Honour erred in admitting the evidence of Ellen Moon, Andrea Hyde, and Karen Brown as tendency evidence, because the evidence did not have significant probative value within the meaning of s 97 Evidence Act 1995 (NSW) and did not have sufficient probative value to substantially outweigh the prejudice. Ground 3: His Honour erred in failing to direct himself about a) the use to which the tendency evidence could be put and b) the dangers inherent in such evidence, as required by s 133 Criminal Procedure Act 1986 (NSW). Ground 4: His Honour erred in determining that he was not required, before finding that a tendency was established beyond reasonable doubt, to be satisfied of the underpinning conduct beyond reasonable doubt. Ground 5: His Honour erred in determining that, when considering whether an asserted tendency incident occurred, he was able to consider the evidence led in support of other tendency incidents, rather than being confined to the evidence led in support of the tendency incident in question and the evidence led in relation to the count of murder. Ground 6: His Honour erred in admitting the representation contained within Exhibit 4B on the basis that it fell within the business records exception to the hearsay rule, because a. The court could not be satisfied the document was a "business record"; b. It could not reasonably be supposed that the representation was made on the basis of information, directly, or indirectly, supplied by a person, who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, as required by s 69(2) Evidence Act 1995. c. It was not shown that the representation contained within the document was not made "in connection with litigation or an investigation", such that the carve out in s 69(3) Evidence Act 1995 did not apply. Ground 7: The trial miscarried because the trial judge misconstrued an argument by counsel for the appellant and inappropriately reasoned from it as if it were an admission as to a fact. Ground 8: The verdict was unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912. Ground 9: His Honour failed to exclude reasonable alternative hypotheses inconsistent with the appellant's guilt and therefore did not comply with the requirements of s 133(2) Criminal Procedure Act 1986.
Although some of the grounds of appeal raise issues of fact, for ease of reference Robert John Adams is referred to throughout the judgment as "the appellant". The Crown case
The Crown case was based on constructive murder, contrary to s 18(1)(a) Crimes Act 1900 (NSW) as in force between 16 May 1983 and 13 December 1983 for which the maximum penalty was penal servitude for life. Section 18(1)(a) relevantly provided: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by death or penal servitude for life."
The Crown relied upon a foundational offence which required proof of a prior foundational offence. The first foundational offence (primary foundational offence) relied upon by the Crown was that contained in s 37 of the Crimes Act 1900 (as at 24 September 1983) which was in the following terms: "37 Attempts to choke etc (garrotting) Whosoever: by any means attempts to choke suffocate or strangle any person, or by any means calculated to choke suffocate or strangle, attempts to render any person insensible unconscious or incapable of resistance, with intent in any such case to enable himself or another person to commit, or with intent in any such case to assist any person in committing, an indictable offence, shall be liable to penal servitude for life."
The second foundational offence, i.e., the ultimate, indictable offence, which the appellant intended to commit, was the offence found in s 61D of the Crimes Act (as at 24 September 1983) which provided, relevantly: "61D Sexual Assault category 3 - sexual intercourse without consent (1) Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years, to penal servitude for 10 years."
It was not disputed that in the early hours of 24 September 1983 the appellant met the deceased at the Alpine Inn, Crows Nest. It was also not disputed that the appellant volunteered to take the deceased home to Drummoyne and left the Alpine Inn with her in his car.
The Crown contended that the appellant, after taking the deceased somewhere in his car, strangled her in order to force her to have sexual intercourse with him and that she died by his actions. The Crown further contended that he then put her body in the boot of the vehicle to dispose of later.
The only evidence capable of supporting the Crown case that death occurred in the context of intercourse and strangulation was evidence of the appellant's prior conduct said to evidence a number of tendencies possessed by him. Notice of those tendencies was given in a tendency notice of 17 March 2014.
The Crown, in closing submissions, summarised its case thus: "The basis for this foundational crime is based on the fact that the accused had developed a tendency to meet women at bars, gain their confidence, buy them drinks, sometimes tell them he was a policeman to gain their trust, offer them a lift in his car, get them in his car, and when out of sight of others strangle or choke those women to a stage where they believed that he would kill them, forcing them to have sexual intercourse with the accused." (T.1020.33-.38)
The Crown's need to prove that strangulation (the basis of the primary foundational offence) meant that it was accepted that the existence of some tendency to strangle was an indispensable intermediate fact of which the trial judge was required to be satisfied beyond reasonable doubt.
There were two further matters relied upon by the Crown:

Evidence that the appellant was spraying water into and/or washing the boot of his car on Sunday 25 September 1983; and
Evidence regarding the likelihood that a hair apparently found in the boot of the appellant's car came from the deceased. The defence case

The appellant did not give evidence at trial, but spoke to police in connection with the investigation in 1983. A record of interview was prepared at that time.
In 2013 upon his arrest, the appellant voluntarily gave an interview (an ERISP) and did so without legal representatives present. In that ERISP, the appellant adopted the account he gave to police in 1983 and in particular, denied that he attempted to choke the deceased on the night in question.
The position of the appellant in relation to the police and at trial was: 1. He arrived at the Alpine Inn around 2.20am. 2. There, he met Mary Wallace and left with her. 3. A short time later he pulled over to the side of the road where they engaged in some form of sexual activity. 4. He went to sleep and woke up around 5.00am to find the deceased gone.
The appellant accepted at trial that he raped Ms Ellen Moon. The appellant asked Ms Moon to take him to the police station at the time. He pleaded guilty to raping her, and served a term of imprisonment.
With respect to Ms Andrea Hyde, the appellant's case was that he and Ms Hyde had sexual intercourse but that the intercourse was consensual.
With respect to Ms Karen Brown, the appellant denied ever having any involvement with her. The fact that Ms Brown was raped was not challenged at trial. What was challenged was her identification of the appellant.
A document was provided by the appellant to the trial judge identifying the following matters, which were not in dispute: 23 - 26 September 1983 1. The appellant owned a 1982 Holden Commodore with registration MAA 265 in September 1983. 2. The deceased was heavily intoxicated at the Alpine Inn. 3. The appellant offered to give the deceased a lift home. 4. The deceased left the Alpine Inn with the appellant. 5. Some kind of sexual activity took place in the appellant's car. 6. The appellant attended a champagne breakfast at the house of Michael Smith (Duke) in the early morning of Saturday, 24 September 1983. 7. The appellant went out with Barbara Pittman on the evening of Saturday, 24 September 2016, returning home before midnight. The appellant then had sex with Barbara Pittman. 8. On Sunday, 25 September 1983, the appellant was at home, drank some beer and watched the movie "Death on the Nile" before going to sleep. 9. The appellant at some point during the period 25 - 26 September 1983: 1. Washed the clothing he wore on the night of Friday, 23 September 1983; and 2. Washed the seats of his car. Ellen Moon 1. This evidence is not in dispute. Andrea Hyde 1. The appellant picked up Ms Hyde in a car and drove to his house. 2. The appellant had sexual intercourse with Ms Hyde. 3. Ms Hyde left the house with raised "welts" around her neck. Karen Brown 1. Ms Brown was sexually assaulted by someone. 2. With tattoos "all over their body". 3. With a tattoo on their left arm. 4. In a house somewhere past Wahroonga. Pre-trial proceedings
In a pre-trial hearing the appellant sought to have the tendency evidence to be adduced in the Crown case rejected. The first objection was on the basis that sexual assault evidence said by the Crown to show tendencies on the part of the appellant did not pass the test contained in s 101 of the Evidence Act (the Act). The second objection was that evidence about mitochondrial DNA analysis of a hair said to have been located by police in October 1983 in the boot of the vehicle owned by the appellant did not pass the test contained in s 137 of the Act.

His Honour resolved the issue as follows: "105 I do not consider that s 137 of the Act is engaged. I say that for the following reasons. 106 First, I agree with the joint position of the parties: the evidence is certainly relevant. The finding of a hair that has a DNA profile consistent with that of the deceased in the boot of the last person known to have seen her alive is relevant to the question of whether that person murdered the deceased. 107 I also accept the joint position that, pursuant to s 70, the representations contained in what was written on the labels on the box and on the brown paper bag are admissible, as an exception to the rule against hearsay, as proof of the truth of their contents. The things that are written on various items are therefore some evidence that the hair that was analysed is indeed the hair that was seized 30 years before. 108 Secondly, I accept that there remains some controversy about what is meant by "taking evidence at its highest" in the context of assessing its probative value when considering s 137 (and indeed s 101) of the Act. But, on the facts of this particular case, I think that taking the evidence at its highest can mean nothing other than proceeding on the basis that the hair that was analysed in 2013 is indeed the hair that was seized from the boot of the car in 1983. That is surely the capability of the evidence, to focus upon the concept encapsulated by the use of the phrase "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" contained in the definition of "probative value" in the Dictionary of the Act. 109 At least in the circumstances of this controversy, I accept the submission of the Crown that it is the task of the jury to assess the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. It is not my task. In other words, it is the task of the jury to determine whether they accept that the analysed hair is the seized hair, and in due course whether they accept the further proposition that it is the hair of the deceased. Neither of those decisions is vouchsafed to me. … 111 Even leaving aside all of the tendency evidence for the sake of this discrete exercise, the evidence (taken at its highest), that located in that boot was a human hair that has a DNA profile that is only shared by a reasonably small percentage of members of the Australian population, one of whom is the deceased, is, to my mind, very probative in the Crown case."

His Honour set out his conclusion as follows: "145 To my mind, the probative value of each of the tendency incidents, even if one analyses each of them entirely on its own and without the context of the others, is compellingly high. The preliminary test in s 97 of "significant" probative value is amply fulfilled by each of them. My summary above makes stark the striking similarities between what is said to have occurred to each of the four tendency complainants, and what is alleged to have occurred to the deceased. And it can be seen that many of the attributes of the Crown case for murder that are not disputed are shared with many of the attributes of the surrounding circumstances of the tendency incidents. 146 It is true that there is no direct evidence, in the Crown case for murder, of sexual assault or the infliction of violence. That is significant, but not determinative. The point of tendency evidence is to infer from the conduct of an accused person on another occasion what he or she has done on the occasion that founds the count in the indictment. Whilst there is force in what senior counsel for the accused has said - namely, that the absence of any direct evidence of important parts of the murder allegation gives rise to a greater potential for "bootstrapping" based upon the tendency evidence - I do not consider that that potential detracts from the compelling nature of the tendency evidence. … 148 Furthermore, if one turns to analyse the four tendency incidents as a whole (by that I mean, in the context of each other, as opposed to individually) the probative value of the evidence is, in my opinion, even more compelling. On the assumption that it is accepted, it certainly demonstrates that many years ago, the accused had a tendency to meet young women; inveigle them into his motor vehicle; and thereafter violently sexually assault them. Indeed, the evidence is redolent of the offender having possessed a settled and specific modus operandi with regard to the infliction of violence upon women for his own sexual satisfaction, or perhaps of him having suffered from a repetitive compulsion in that regard. 149 In particular, manual strangulation can be seen to be an explicit part of incidents one, two and three, and, by way of the reference to the possibility of unconsciousness, as possibly an implicit part of incident four. … 153 As can be seen from my analysis above, however, the evidence of each incident taken at its highest is far more specific than a mere proclivity to engage in a certain kind of crime. To the contrary, as I have said, the circumstances of each incident are extremely probative as to what may have happened on the evening the deceased disappeared, because of their specific commonalities with the interaction between the accused and the deceased. … 155 To express my view in terms of s 101 of the Act, I am affirmatively satisfied that the (extremely compelling) probative value of the evidence with regard to each tendency incident substantially outweighs the (undoubted) prejudicial effect that the tender of that evidence will have upon the minds of the jury in the murder trial."

The appellant's argument, as amended, misconstrues the nature of tendency evidence. Such evidence does not have to prove a tendency to commit a particular crime. This is clear from what this Court (Beazley P, Schmidt and Button JJ) said in Hughes v R [2015] NSWCCA 330 at [183] - [185] and from what the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said in Hughes v The Queen. In Hughes v R this Court said: "183 In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that "the nature of the similarities will depend very much on the circumstances of the case". 184 The critical point made in these authorities is that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged. There only needs to be a "tendency … to act in a particular way" (s 97(1)) relevant to the conduct subject of the charge. Relevance is determined by reference to the Evidence Act, s 55, that is, evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 185 When regard is had to the inferential nature of tendency evidence and the requirement that it be relevant evidence, it is apparent that tendency evidence is not only directed to the particular type of conduct that constitutes an element of the charge. There is a wide range of evidence relevant to the determination of the guilt of a person of a particular crime. When the question of admissibility of tendency evidence arises the question is whether conduct said to exhibit a tendency allows, by an inferential process of reasoning, that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is the subject of the charge or charges: see Gardiner at [124] per Simpson J."

Observations to similar effect were made by Bathurst CJ in Doyle v R; R v Doyle where his Honour said: "134 I have set out above the address of the Crown Prosecutor so far as it related to tendency evidence. The Crown submitted to the jury that those portions of the tendency notice which referred to activities involving sexual misconduct could be used as showing the tendencies in the notice, but stated that the tendency had to be proved beyond reasonable doubt. The trial judge also made it clear that to prove the tendency beyond reasonable doubt the jury had to be satisfied beyond reasonable doubt both that the activities said to have given rise to the tendency occurred and that those activities gave rise to the tendency in question. 135 In these circumstances the trial judge, in my opinion, did not fall into error in not directing the jury that if and only if they were satisfied beyond reasonable doubt that one or more of the charged acts occurred without having regard to the evidence relating to the other charged acts, they could then use that conclusion as tendency evidence in respect of the other charges if satisfied beyond reasonable doubt that the tendency was established. In one sense a failure to give such a direction was favourable to the appellant, as the direction did not suggest that evidence relating to the charged acts could be used to establish the tendencies complained of. 136 I do not think this position is affected by the fact that the trial judge directed that the jury should not look at the acts in isolation but consider all the evidence to determine if the acts took place. The acts in question were those summarised in the direction and the direction emphasised the need for satisfaction beyond reasonable doubt that those acts in fact took place. 137 As I indicated, the appellant submitted that the direction referred to in the preceding paragraph involved what he described as circular reasoning. It is correct that as a matter of logic a fact cannot be proved by a chain of reasoning which assumes the truth of that fact: Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 532; Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1 at 17. That does not mean, however, that the evidence of a fact said to establish a tendency need be proved by considering its existence or otherwise divorced from other evidence at the trial. That was made clear in Thompson supra at 17 in the following passage from the judgment of Mason CJ and Dawson J when considering what is now described as coincidence evidence: "The nine points of similarity advanced by the prosecution and apparently accepted by the trial judge went too far. In considering whether the deaths at Richardson displayed the necessary degree of similarity to the deaths of the two sisters, it was impermissible to include as a fact the matter which it was sought to prove, namely, that the deaths did not occur by accident. The points of similarity accepted by the trial judge assumed that the two sisters were shot through the head, as were the victims of the Richardson killings. That was tantamount to assuming the truth of the fact in issue which the similar fact evidence was tendered to prove. As Brennan J. pointed out in Sutton: ''It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact. That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence. When the Crown seeks to tender similar fact evidence as the foundation for inferring a fact to be proved in a trial, it is erroneous to assume the truth of the fact to be proved in determining the cogency of the evidence. ... That proposition does not preclude reference to direct evidence of the fact to be proved in determining the cogency of similar fact evidence. Similar fact evidence tending to confirm the existence or occurrence of such a fact may be confirmed by direct evidence of the same fact.' We would only add to that passage the comment that there does not seem to be any reason why the evidence of the fact to be proved which confirms the similar fact evidence, or adds to its cogency, should be confined to direct evidence. The similarity between the killings at Richardson and those of the two sisters was to be considered in the light of the whole of the evidence."

The relevant principles in relation to an unreasonable verdict in a judge alone trial were recently restated in Thornton v R by Ward JA as follows: "204 In Filippou v The Queen, the majority (French CJ, Bell, Keane and Nettle JJ) made clear (at [11]-[12]) that the finding of guilt in a judge alone trial is to be treated as if it were a jury's finding of guilt. In the absence of a misdirection leading to a miscarriage of justice, such a finding is not to be disturbed unless, relevantly, there is no or insufficient evidence to support the finding, or the evidence is all one way or the finding is otherwise unreasonable. This Court has applied this principle recently in Parton v R [2016] NSWCCA 291. 205 In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493, the High Court (going on to recognise (at 494) that a doubt experienced by an appellate court, making full allowance for the advantage enjoyed by the trial judge, will be a doubt which the trial judge ought to have experienced) said that: Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted) 206 In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) said (at [113]): It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt. (Footnotes omitted) 207 In Filippou, at [12], the plurality adopted and adapted the following from 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."

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