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[2008] NSWLC 27
Local Court of NSW
2008-04-29
Magistrate P
Original judgment source is linked above.
CITATION: Director of Public Prosecutionsv.Adam Paul Hutchinson. [2008] NSWLC 27
PARTIES: Director of Public Prosecutions Adam Paul Hutchinson.
CATCHWORDS: Tendency and Coincidence Evidence
LEGISLATION CITED: Crimes Act, 1900. Ss. 562A; 526AB (1). Evidence Act, 1995. Ss. 97, 98, 100, 101, 135, 137
DPP v Boardman [1975] AC 421KJ R v Regina [2007] NSWCCA 165 Pfennig v The Queen (1995) 182 CLR 461 Hoch v The Queen [1988] HCA 50; 165 CLR 292 CASES CITED: Regina v Ellis (2003) 144 A Crim R 1 Regina v Fletcher [2005] NSWCCA 338 Regina v Harker [2004] NSWCCA 427 Regina v Lockyer (1996) 89 A Crim R 457 Regina v Ngatikaura [2006] NSWCCA 161 Regina v Anna Zhang [2005] NSWCCA 437
REPRESENTATION: Miss M. Knowles, Solicitor, for the Director of Public Prosecutions (NSW). Mr B. Vasic of Counsel for and with the Defendant
The Defendant, Adam Paul Hutchinson, faces the following charges:- "(For that he) between 10.30am on 26th January, 2007 and 1.00pm on 27th February, 2007, at Ivanhoe in the State of New South Wales, did intimidate Louise Cass May Russ with the intention of causing her to fear physical or mental harm."
This charge is contrary to Section 562AB (1) Crimes Act, 1900 and carries a potential maximum penalty of imprisonment for two years and/or a fine of 50 penalty units when dealt with in the Local Court. It is necessary for the prosecution to establish beyond reasonable doubt:-
"Intimidation" is defined in Section 562A Crimes Act, 1900 to mean
a) conduct amounting to harassment or molestation, or b) the making of repeated telephone calls, or c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. "(For that he) between 9.00am and 5.30pm on 14th February, 2007, at Ivanhoe in the State of New South Wales, did dishonestly obtain for himself a financial advantage, to wit, the gross amount of two hundred and eighteen dollars and twenty five cents ($218.25) by deception, that is, by falsely stating that he had performed rostered duty."
This charge is contrary to Section 178BA (1) Crimes Act, 1900, and carries a potential maximum penalty of imprisonment for 12 months and/or a fine of 20 penalty units when dealt with in the Local Court. It is necessary for the prosecution to prove beyond reasonable doubt that:-
The charges are being heard together. An Apprehended Personal Violence Application naming Louise Russ as the Protected Person and Adam Hutchinson as the Defendant awaits determination of the substantive charge of "Intimidation" before final disposition. I take it that the evidence in the substantive charge will also comprise the evidence in the Apprehended Personal Violence application subject to any necessary supplementation.
The hearing of the substantive charges and Personal Violence Application was listed for a Special Hearing before me to commence on 28th April, 2008 at Hay Local Court.
There is a preliminary matter to be decided before commencing the hearing proper of the substantive charges. Insofar as the charge of "Intimidation" is concerned, by Notice dated 31st March, 2008, directed to the Defendant's Solicitors, the Director of Public Prosecutions advised it was proposed to adduce evidence of both "tendency" and "coincidence" pursuant to Sections 97 & 98 respectively of the Evidence Act, 1995. Such course is opposed by the Defendant's representatives. It is necessary to decide, prior to the hearing of the substantive charges, whether such alleged "tendency" or "coincidence" evidence is both relevant and admissible, particularly within the meaning of Sections 97 and 98, such that it can be led in the hearing. If it is not, then that is the end of the matter. If it is factually both relevant and admissible and otherwise satisfies the necessary legal tests, the evidence will be received during the hearing and, at the conclusion, careful assessment and directions will be necessary as to the use to be made of it.
No dispute is taken that a written Notice, proper as to form and sufficient as to time, was served by the Director of Public Prosecutions upon the Defendant's representatives.
Relevantly to the application of Section 97, "probative value" is defined in the Dictionary as:- "… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." Section 98 provides, again, relevantly -
a) They are substantially and relevantly similar, and b) The circumstances in which they occurred are substantially similar.
A further section of relevance is that in Section 101 which provides:
There is thus no discretion involved in resolving this issue. If the evidence sought to be admitted satisfies Section 101, it is highly unlikely, and I would have thought, wholly unnecessary, for any additional consideration of the discretionary exclusion provisions such as Sections 135, 136 or 137: see Regina v Harker [2004] NSWCCA 427 at [46]. As Rothman J., observed in Regina v Fletcher [2005] NSWCCA 338 (at [112] to [114], it is of interest that the balancing exercise in Section 101 (2) of the Act is differently expressed than in Section 137 of the Act. (Section 137 is the general exclusion, in criminal proceedings, for evidence that is more unfairly prejudicial than probative.) There are two obvious distinctions. First, Section 101 (2) requires "substantial outweighing" and, secondly, the prejudice, in Section 101 (2), to be considered in the balancing is not confined to "unfair prejudice" as it is in Section 137.
It seems, his Honour said, that the legislature has deliberately made the test for use of tendency or coincidence evidence under Section 101 (2) (even disregarding the strict test in Sections 97 and 98) more difficult than would be the case if one were considering the admissibility question under Section 137 of the Act. Moreover, the terms of Section 101 (2) and Section 137 of the Act are complimentary. Section 101 prohibits use of evidence in the manner described. If any such proposed evidence has no other use it would have no allowable probative value and would be inadmissible under Section 137, if not under Sections 97 and 98 of the Act.
For the purposes of determining whether "tendency" or "coincidence" evidence should be permitted I was provided, by agreement, in advance of the hearing, with copies of the following documents:-
According to the Notice, the coincidence evidence, that is, evidence of the occurrence of one (or more) event / s that has (or have) a substantial similarity with another to prove that the latter event occurred, is said to arise out of dealings between the Defendant and others. The DPP submits, in accordance with Section 98 (2) that they are "related events" in that they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar.
By way of particulars in the Notice, the DPP relies, as follows:-
DOCUMENT DATE PARAGRAPH Margaret McKenzie Statement of 6/3/07 Par. 21; 23; 41. Luke Weavers Interview of 13/3/07 Q/A 59-60; Teagan Faulkner Interview of 31/5/07 Q/A 21; Tim McKenzie Interview of 30/5/07 Q/A 22; Q/A 31; Jarrod Dubignon Interview of 17/3/07 Q/A 154; Barry Danson Interview of 20/3/07 Pgs 3-4; Pg. 17; Pgs 19-20; Barbara Danson Interview of 20/3/07 Pg. 3; Pg. 6; Pgs 7-8; Vivienne Lawrence Interview of 21/3/07 Pg. 8; Pg. 6; Pgs. 7-8; Pgs 4, 8-9; Andrew Lawrence Interview of 21/3/07 Pg. 3; Pg. 4 - 5; Pg. 7; Adrienne Whitchurch Interview of 20/3/07 Pg. 4-5; Pg. 6; Pg 7; Pg. 13-15; Pg. 18.
It may be helpful and instructive at this stage to examine the nature and purpose of the present inquiry. Rothman J., in KJR v Regina [2007] NSWCCA 165 said (at [41] - [46]):- "41. The provisions of Section 97 (tendency) are the statutory equivalent of what, under the common law, and some of the analyses of the statutory provision, is referred to as propensity evidence. Section 98 is the statutory equivalent of similar fact evidence.
It needs be said at the outset that "tendency" and "coincidence" evidence does not have a "prejudicial effect" merely because it strengthens the prosecution case. To have a prejudicial effect, evidence must be shown to constitute a danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case: see Regina v Lockyer (1996) 89 A Crim R 457 @ 460.
This is a case where the decision to admit the evidence is made prospectively, on the basis of the statements before the Court, including the statements of the Complainant. The exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer. Reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. In Regina v Fletcher [2005] NSWCCA 338; 156 A Crim R 308, Simpson J., (McClellan CJ at CL in agreement, Rothman J. in dissent) articulated the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under Section 97 (1) -
a) The actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact; b) Even where the judge is the tribunal of fact (as here), it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in S. 97 (1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced", and implicitly by the use of the subjunctive "would not" in S. 97 (1)(b);
c) Whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (i.e. is capable of rationally affecting) the probability of the existence of a fact in issue;
d) The task that a trial judge undertakes under S. 97 (1) involves a two-step process - first, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e., if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457 . If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible.
Her Honour went on to refer to Section 101 (2) Evidence Act, 1995, and while expressing some misgivings as to whether it should be treated as an exclusionary rule (given that it proceeds upon the basis that the evidence has been adduced) decided, in accordance with authority, that she would do so.
In so doing, she said, that gave rise to the fifth step in the Section 97(1) process -
e) The determination of whether, in the opinion of the Court, the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. That again involves an assessment and prediction of the use the jury may make of the evidence, against the risk that it may make some improper use of it. This task is also an evaluative one or one involving "a degree and value judgment".
As to Section 98, in Regina v Anna Zhang [2005] NSWCCA 437 Simpson J., (Basten JA in agreement on this point but disagreeing in the end result; Buddin J., in agreement) referred to her earlier remarks in Fletcher (supra) and continued - "139. In Fletcher (at [32] - [35]) I analysed the processes by which the tender of tendency evidence under Section 97 of the Evidence Act is to be determined. The analysis is no different in the case of evidence tendered under Section 98 . The principles are these: -
(i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value;
(ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act );
(iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury;
(iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete;
(v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly , to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s98 mandates that the evidence is not to be admitted.
In relation to the charge of "Intimidation" the ultimate fact in issue is whether the Defendant conducted himself as alleged by the Complainant. The DPP is here not merely seeking to establish that the Defendant had a tendency to engage in acts of verbal aggression and domineering behaviour. He seeks to establish a pattern of behaviour which is potentially probative of the criminal act alleged. The strength of the evidence tendered by the prosecution lies in its capacity to establish the objective probability of the truth of the Complainant's account of the Defendant's conduct. Is the evidence of the witnesses in one or more of the four incidents referred to capable of lending support to the Complainant's allegations by reason of striking similarities, underlying unity, system or pattern.
Decisions such as Hoch v The Queen [1988] HCA 50; 165 CLR 292 no longer govern the admissibility of evidence of tendency (see Ellis (2003) 144 A Crim R 1). But that does not necessarily render cases such as Hoch irrelevant. The common law principles on the issue of admissibility of tendency and coincidence evidence may be used as a guide in the evaluation of the admissibility of evidence even to-day. As Rothman J., observed in Regina v Fletcher (supra) - the Evidence Act is, ultimately, a codification of or a reaction to the common law. In some areas it is both. There is no reason why the reasoning that led the High Court to accept the admissibility of similar fact evidence in appropriate cases before the enactment of the Evidence Act, 1995 should not guide the reasoning process in the evaluation of whether tendered evidence is capable of having, or would have, significant probative value.
For example, in Hoch, the High Court approved of a passage from DPP v Boardman [1975] AC 421 (at pgs 295-300):- "The basic principle must be that the admission of similar face evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense , either all be true, or have arisen from a common cause to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other.
I use the words, 'a cause common to the witnesses' to include not only … the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply by fashion . In the sexual field, as in others, this may be a real possibility . "
I am perhaps getting a little ahead of myself with my reference to Hoch above. This will depend upon whether I find that the evidence relied upon by the Director is admissible under Section 97 and/or Section 98 and in considering, inter alia, the value judgment called for in Section 101 (2). And I am a little way from that.
I now turn to an assessment of the evidence of the various witnesses in terms of their testimony, if accepted, (and for present purposes I take it as accepted) having any bearing, or sufficient bearing, to the questions posed in Sections 97 and 98 coupled with the further test posed by Section 101. My remarks will, necessarily, be brief and without depth and detail given that this is an ex tempore judgment.
I note the particular parts of the statement of Mrs McKenzie set out in the Notice. It is necessary to put things into context. It seems to me that Mrs McKenzie's grievance against the Defendant stems from complaints made to him about one Jarrod Dubignon. In her view, he neglected to do his duty. It is said of Mr Dubignon, first, (and without doubt) that he kept feral pigs on one of the McKenzie's properties where he was then employed and when told to get rid of them he simply released them. As it turned out, they were all later captured. The fact remains that their release could have had profound consequences to other livestock on the property as well as being in breach of Rural Lands Protection legislation. Secondly, there was a dispute as to Mr Dubignon taking a quantity of diesel fuel when he left the McKenzie's employment. He said he was owed money for holiday pay. The McKenzies said he was not. Whether it was theft or taken under a bona fide claim of right was never decided. As far as Mrs McKenzie was concerned, the Defendant did not do what she believed was his duty in respect of either complaint. Her suggestion to the Defendant that he was, in effect, covering for Mr Dubignon brought this response and no doubt delivered with some asperity, "Margaret, I reject that statement. How dare you accuse me of putting my professionalism on the line." She later personally apologised for her remarks. Her husband, Timothy McKenzie, provides nothing probative of tendency or coincidence.
Luke Weavers takes the matter little further. In response to an obviously leading question (which was not qualified as to Mr Weaver's understanding of the word "intimidated") his answer does not advance the prosecution case. Similarly, the evidence of Teagan Faulkner who relates, second-hand, something Mr Weavers said to her but of which he, himself, made no mention.
Jarrod Dubignon's evidence adds nothing to the tendency of the Defendant to act in a particular way or to have a particular state of mind and coincidence does not arise. Mr and Mrs Danson, similarly, add little, if anything, to the aspect of tendency. How not being booked for an offence could be taken as a threat I am left to wonder but, in any event, an alternative explanation could be an exercise in prosecutorial discretion as distinct from tendency as alleged. Mrs Lawrence' adoption of the word "intimidation" is not explained. So, too, is that of Mr Lawrence. I am unable to find anything probative, or, if there is, of the requisite significance. Mrs Whitchurch was offended, it seems to me, by the brusque attitude of the Defendant who relayed to her the complaint made by Mr Maiden who asserted he had five witnesses. The Defendant did not witness the incident. Mrs Whitchurch was a participant in the incident and her version was at odds with that relayed to her by the Defendant. It is no wonder she was shaking and shocked. It appeared to her that the Defendant had made up his mind as to her guilt. I am not advised whether she was breached or not.
How does this all stack up against the charge of Intimidation. In my view, not greatly. The Complainant was a work colleague of the Defendant. In brief, the substance of her complaint comes down to this:-
s On 26th January, 2007, the Defendant confronted the Complainant about her dogs barking. He stood face-to-face with her. He shouted at her. He pointed his finger at her face. He is alleged to have said, "Are you calling me a fucking liar? Next time I will shoot the fucking things" and at the same time hit the top of his pistol. He further said, "I won't say it again. If they fucking bark I will reach over the fence and shoot them. Got it? Do you fucking understand? I will shoot them." s On 1st February, 2007, there was a conversation between Complainant and Defendant about a portable book register. The Defendant is alleged to have said, "Don't you be fucking creating extra work. Keep your mouth shut." And further, " … I'll tell you what to do. You fucking listen and don't argue. Have you got it? … I will fucking speak to anyone how I fucking want and no dumb slut will tell me differently". His manner, tone and overall demeanour created an apprehension in the Complainant such that while she did not know if he was going to hit her, she was not going to push it.
s On 6th February, 2007, there was a conversation as to the Defendant going to Hay to pick up a boat and whether the Complainant would sign him off contrary to his work shift. She said, "Adam, you are making a mistake. Don't do it." He said, "I fucking told you before. Don't tell me what to do." s On 7th February, 2007, in relation to the Police vehicle, the Defendant said, "Don't you ever fucking move the seat again." She tried to avoid him. He shouted after her, "I am fucking serious. Touch the seat again and I will fucking smash your head into the brick wall," and at the same time pointed to the wall behind her. She held up her hands as she was in fear of being hit by the Defendant. He continued, "Don't you fucking argue with me, you stupid bitch. Don't push me, you will regret it." Shortly after, there was a further confrontation over a pen in the vehicle diary. The Defendant yelled at her, "Don't you ever take this pen from this diary again, you have got your own fucking pen, don't touch this. How hard can it be to leave things alone in this station?" She was sitting down and the Defendant was standing over her at the time. She said she felt trapped and could not get out. s On 8th February, 2007, both Complainant and Defendant were recalled to duty following an incident where a woman was stabbed. The Defendant, in particular, had been at the RSL Club and was anxious to return to participate in a $22,000.00 Club members draw. He said to the Complainant, "This will be a two minute job. Keep your fucking fat mouth shut. I will handle this job. I know the shit in town." The Defendant instructed the Complainant to write up the job as a "verbal argument" only. The Complainant declined. The Defendant yelled her, "I am going. You never saw the blood, right? Do a COPS event 'verbal only'. Do it now." She was sitting at the computer desk and the Defendant was standing over her. He smashed his fist down on the desk. She believed she was about to be assaulted and began to create a 'verbal only' entry which was afterwards changed to reflect the true situation.
s On 9th February, 2007, there was a conversation in the station about the Complainant being the supervisor. The Defendant said, "You and this fucking rank structure. We are in Ivanhoe. No dumb woman will tell me what to do." When asked to discuss the apparent difficulties between the two of them, the Defendant replied, "What are you going to do? No-one will believe you. I've been here the longest. Everyone will think you are a typical whinging fucked-up female. I never abused you."
The Defendant, it seems, became an unpopular person in the town as a Police Officer. He caused a deal of offence to some by the manner in which he conducted himself as he carried out his duties. To others, he raised a concern that he might exercise more than just diligence in his conduct towards them. Whether it was fact or merely a matter of perception or speculation, he engendered some firm feelings against and about him in the town. People had grievances against him. So much is demonstrated in the interview of Mrs Whitchurch at Q/A 102:- Q: Okay. Just, what's your general opinion as far as the rest of the community towards Adam prior to last week?
A: In the beginning we all thought great, nice guy, lovely wife, lovely partner, wonderful girl doing a brilliant job at the Hospital. Everyone loves Louise. But you sort of started to see people, if his name was mentioned, they'd just raise their eyebrows and no-one would say anything. They'd just look away. And you started to see people just sort of … oh, I don't know how to explain it. They didn't say anything. There were … things weren't said about Adam but people started to give you looks.
That is part of the mischief sought to be addressed in Hoch v The Queen (supra). It is one thing to have a perfectly valid departmental process in dealing with complaints about the conduct of a Police Officer in a small country town. It is another thing entirely to attempt to import and transform the substance of those complaints into the basis of tendency and coincidence evidence within the meaning of Sections 97 and 98 of the Act in criminal charges involving a fellow officer. Given the small country community and the feelings engendered by the Constable, can one rule out the possibility (if not probability) of the stories arising out of a process of infection, concoction or exaggeration. There is a real distinction between the two - both in fact and in law.
As to Section 97 upon an assessment of the evidence of the various witnesses together with that of the Complainant, I cannot be satisfied of the extent to which the evidence in question has the capacity, rationally, to affect the probability of the existence of a fact in issue. I conclude I would not regard the evidence as having probative value, or if it did, then not to the significant degree required.
As to Section 98 I conclude that the two or more events the subject of the tendered evidence are not substantially and relevantly similar and the circumstances in which they (are alleged to have) occurred are also not substantially similar.
It follows that I do not need to give any detailed consideration to Section 101. Had it become necessary, however, I would have concluded the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the Defendant. This task is also an evaluative one or one involving "a degree and value judgment".
I said earlier in this judgment that the common law principles on the issue of admissibility of tendency and coincidence evidence may be used as a guide in the evaluation of the admissibility of evidence and I further rely upon the extract quoted in Hoch from DPP v Boardman [1975] AC 421 (at pgs 295-300) and shown on page 10 of this judgment.
I rule that the evidence sought to be led as particularised in the Notice as tendency and coincidence is inadmissible for those purposes.
The same evidence relied upon as a "pattern of violence".
Ms Knowles further submitted that the same evidence sought to be relied on under Sections 97 and 98 was, nonetheless, relevant and admissible under Section 562D (2) which provides:- (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. (emphasis added).
For the purposes of Part 15A, "violence" is not defined and, according to ordinary principles of statutory construction, it was necessary to refer to the Oxford Dictionary (on-line edition) for assistance. The noun, 'violence' was expressed as "the exercise of physical force so as to inflict injury on, or cause damage to, persons or property." The verb was expressed as "to do violence to, to violate". In all the witness' statements relied upon, whatever else they disclosed, I found nothing amounting to 'violence', let alone a 'pattern of violence.' Accordingly, I reject that submission.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
DPP
Boardman
[1988] HCA 50
(1995) 182 CLR 461