On 1 April 2015, Robert John Adams (the accused) was arraigned in this Court before Johnson J. The indictment averred that, on or about 24 September 1983 in Sydney, he murdered Mary Louise Wallace. The accused pleaded not guilty to that single count.
Thereafter, senior counsel for the accused notified by way of motion two bases upon which he submitted that foreshadowed evidence in the Crown case should be rejected by me. To state them very succinctly, the first was that foreshadowed evidence said by the Crown to show a tendency on the part of the accused did not pass the test contained in s 101 of the Evidence Act 1995 (NSW) (the Act). The second was that evidence about mitochondrial DNA analysis of a hair said to have been located by police in October 1983 in the boot of a motor vehicle owned by the accused did not pass the test contained in s 137 of the Act.
The parties (each of whom was represented by senior counsel very experienced in criminal law) jointly submitted that, pursuant to s 192A of the Act, it was appropriate for me to determine those objections (to use a shorthand term) by way of an advance ruling well before the accused is to be arraigned before a jury panel. I accepted that joint submission. Documentary and oral evidence, along with very helpful written and oral submissions, were received by me at a hearing of the motion that extended over several days.
This judgment sets out the reasons why I consider that the majority of the tendency evidence is admissible, and that the evidence about the analysis of the hair is also admissible.
Crown case
It is convenient first to provide an overview of the Crown case, focusing in particular upon the evidence relevant to the two grounds.
In doing so, I shall adopt some conventions for convenience. First, I shall refer to all of the persons who have complained that the accused has sexually assaulted them by pseudonyms. For ease of comprehension of the reader, I shall not use initials; rather, I shall use a name with identical initials to those of the real name of each complainant. Secondly, although it is possible that whether or not Ms Wallace is in truth dead is a matter of dispute between the parties, for convenience I shall refer to her as "the deceased".
Disappearance of the deceased, and its investigation
R v Adams [2015] NSWSC 1960 | Case summary | Zoe
On the evening of Friday, 23 September 1983, the deceased, then 33 years of age, attended a farewell party at a restaurant in the inner northern Sydney suburb of Crows Nest with work colleagues.
At about 1:00 AM on Saturday, 24 September 1983 (in other words, on the same evening), the deceased left the restaurant and walked to the Stoned Crow wine bar, also in Crows Nest. She was accompanied by her friends Mary Williams and Lesley Kennedy.
At 2:00 AM, the three of them walked to the Alpine Inn, another wine bar in the same suburb. Before leaving the vicinity of the Stoned Crow, the deceased was assaulted by another man who was not the accused. At the second wine bar, the deceased met the accused, who was then 31 years of age. At 3:00 AM, the deceased entered the ladies' toilets within the wine bar. She did not reappear for some time. People became concerned about her. At 3:20 AM, the accused told the friends of the deceased that he was a police officer, entered the ladies' toilets, and proceeded to kick the door open of a toilet cubicle. The deceased was inside that cubicle, and she was well intoxicated by alcohol. The accused offered to take her home. At about 4:00 AM, the deceased was assisted into the motor vehicle of the accused, a Holden Commodore sedan MAA-265. The two of them drove off together.
Since that time, the deceased has never been seen again.
Later that same morning, the accused attended a champagne breakfast at the home of a friend known as "Duke" in St Leonards, a Sydney suburb very close to Crows Nest.
On Sunday 25 September 1983, a flatmate of the accused, Suzanne Beckingham, observed him to be washing the interior and exterior of his Commodore, and also vacuuming it. That was in the driveway of their shared home in the suburb of Chatswood. She also observed him to wash some of his clothes, some bed sheets, and some car seat covers. She made a statement to police to that effect on 2 October 1983.
On the same day, 25 September 1983, a neighbour named Barbara Pittman observed the accused sitting in his vehicle with all of the doors of the car and the lid of the boot open. She made a statement to that effect to police on 4 October 1983.
On Monday 26 September 1983, the flatmate, Ms Beckingham, noted that the accused was washing the clothes that he had been wearing when he returned to his home on the Saturday. Again, that observation was recorded in her statement of 2 October 1983.
On Thursday 29 September 1983, the accused was stopped whilst driving in North Sydney by Detective Inspector Counsel and Detective Senior Constable Matthews. He was arrested on a charge of possessing a small amount of cannabis that the police located in his car, and also on a charge of impersonating a police officer, based upon his statement to others at the Alpine Inn.
At Chatswood Police Station, he gave police an oral version of events of having consensual penile/vaginal sexual intercourse with the deceased in the front seat of his motor vehicle after they had driven away together from the wine bar. He believed that he had ejaculated. After that, he said, he fell asleep or passed out in his car. He awoke at about 5:00 AM on the Saturday to find that the deceased was no longer present. He departed the scene, and did not see the deceased subsequently. He had cleaned up some of his semen from his car in the days afterwards.
After that, the police undertook a large number of investigations; it is not necessary to detail them here (the evidence about the hair sample is discussed separately below).
Many years later, on 20 December 2013, the accused was arrested on a charge of murder at his home in the Sydney suburb of Gladesville. He engaged in a recorded interview with police, in which he confirmed the correctness of what he had told the police many years before in the oral interview of 29 September 1983. He is currently on bail.
Seizure of a hair, and its purported analysis
On 6 October 1983 (that is, some days after the disappearance of the deceased), the boot of the car of the accused was vacuumed by Detective Sergeant B J Walsh, a member of the Police Scientific Section. The matter obtained from the boot of the Commodore ("the matter") was placed in a brown paper bag. Detective Walsh subsequently marked the bag as follows:
83/1363
Re missing person
MARY LOUISE WALLACE
Matter vacuumed from boot of Holden Commodore Sed. No. MAA-265
B.J.W - D/Sgt 2/C Chatswood
6/10/83
On 12 October 1983, Detective Walsh created a New South Wales Police exhibit examination form known as a P377. It included the following two references: "Matter vacuumed from boot of Holden Commodore sedan No. MAA-265" and "Matter removed from vacuum cleaner received from Detective Sergeant A. Milroy at Scientific Investigation Section, Chatswood on 6.10.1983". The latter was a reference to material removed from a vacuum cleaner of the accused, and is not to be confused with the matter from the boot under consideration.
On 13 October 1983, Detective Walsh took the brown paper bag and its contents to the Department of Forensic Medicine (DFM) at Glebe for examination. Dr Simon Baxter of the DFM received the material from Detective Walsh. Dr Baxter signed the second page of the P377 form as a confirmation of his receipt of the matter. Dr Baxter made the following marking on the brown paper bag beneath those already made by Detective Walsh:
FS83/446-16.
On 10 November 1983, Detective Counsel wrote a two-page report requesting that a comparison be undertaken of the hair recovered from the matter and some hair found on a hairbrush that police had separately located in the residence of the deceased. That request was addressed to Chief Inspector Goulding at the Australian Atomic Energy Commission (AAEC) at Lucas Heights.
Later on that same day, Detectives Counsel and Matthews conveyed a number of items from the DFM at Glebe to the AAEC at Lucas Heights. Chief Inspector Goulding received them at that location from Detective Counsel. The items included a plastic bag marked "Hairs from vacuumings of boot of Commodore MAA-265 - mounted XAM", which had been created by Dr Baxter.
At some indeterminate stage in late 1983, the other items that had remained at the DFM and had not been taken to the AAEC for analysis were returned to Detective Walsh at Chatswood Police Station.
At some indeterminate stage in late 1983 or in 1984, Detective Counsel attended at the AAEC and picked up the items that had not been destroyed by the process of examination by Chief Inspector Goulding. Detective Counsel kept any items that he picked up in the same state as he received them from Chief Inspector Goulding.
After that, the investigation into the disappearance of the deceased wound down. At some indeterminate stage between 1984 and 2002, the Homicide Squad "returned ownership" of the case to the Detectives' Office at Chatswood Police Station. All of the items seized in connection with the investigation remained at the Chatswood Police Station exhibit room. Chatswood Police Station temporarily closed in late 2002.
On some indeterminate date, some indeterminate person or persons transferred a box containing the exhibits seized in the investigation of the disappearance of the deceased from Chatswood Police Station to Mosman Police Station. The box was labelled by some indeterminate person or persons. It contained, amongst other items, the brown paper bag that contained the material that had been vacuumed from the boot of the Commodore by Detective Walsh,
On 17 January 2003 (that is, almost twenty years after the hair was returned from the AAEC), Detective Sergeant Puffett and Detective Senior Constable McKillop attended Mosman Police Station. They searched the exhibit room and located a sealed box of exhibits. Attached to the top of the box was a piece of paper, on which the following words were printed:
ALLEGED MURDER
WILLOUGHBY ROAD
CROWS NEST
Victim: Mary Louise WALLACE
OIC:
FSG: D/Sgt WALSH, Chatswood
Job: 83/446
Date: 29.09.83
Exhibits:
● Cigarette butts found 30/9/83 in Clark St, about 100 yrds from the intersection of Willoughby Rd, Crows Nest.
● Matter removed from vacuum cleaner, received from Det Sgt A. Milroy at Chatswood SIS 1 pm 6/10/83.
● Blue hair brush from bathroom.
● Pair of vice grips.
● Cigarette butts from kitchen.
● Cigarette butts from lounge.
● Cigarette butts from diner, 9/100 St George Cres.
● Cigarette butts (no location given).
● 4 x swabs (numbered 1-4, no location given).
3. King-gee Overalls Size 100R.
11. Flakes from door trim.
12. Swab from door lever.
13. Rear carpet.
14. Rear carpet.
16. Matter vacuumed from boot of Holden Commodore Sed No. MAA 265.
17. Hairs removed from vacuumings.
Attached to the side of the box was a piece of paper, on which the following words were printed:
ALLEGED MURDER
'UNSOLVED'
NOT TO BE DESTROYED
Willoughby Road
MOSMAN
Vict: Mary Louise Wallace
OCI:
FSG: D/Sgt WALSH, Chatswood
Job: 83/446
Date: 29.09.83
The box was immediately transferred to Manly Police Station. Detective McKillop entered the box into a system of records at that location with exhibit number C-783410.
On 21 January 2003, Detective Senior Constable Colver collected all of the exhibits attached to C-783410 from the exhibit room at Manly Police Station. He transported them to the Chatswood Police Station, which had been reopened. They were signed into the Chatswood Crime Scene Specimen/Item Register (CSSIR) as B48877 at 3:45 PM. The exhibits (including the bags in which they were contained) were all individually photographed, bagged, and sealed in clear plastic evidence bags by Detective Colver.
The items relevant to the objection that Detective Colver located in the box were a large, empty brown paper evidence bag labelled FS 83/446; a smaller brown paper bag that was labelled identically to the bag that had been marked by Detective Walsh and Dr Baxter many years before; a hairbrush inside a clear, sealed plastic bag marked "brush from bedroom"; and a sealed plastic bag containing grey material marked "FS83/446-17 hairs removed from vacuumings".
Detective Colver completed a further P377 form, which referred to "Matter vacuumed from boot of Holden Commodore Sed No. MAA - 265" as exhibit C783410/1. The item described as "blue hairbrush from bathroom" became C783410/1.
On 29 January 2003, Crime Scene Officer Flippence transferred all 13 items from the box from Chatswood CSSIR to the Department of Analytical Laboratories (DAL) at Lidcombe. DAL is a division of the New South Wales Forensic and Analytical Science Service (FASS).
On 24 March 2003, Deborah Scott, a forensic biologist employed at the DAL, examined at FASS an exhibit that she subsequently labelled. It was a large brown paper bag labelled "Matter vacuumed from boot of Holden Commodore Sed No MAA-265". It was itself within a sealed exhibit bag when she received it from the New South Wales police. The brown paper bag itself contained a snap lock bag containing two folded white pieces of material. When opened, those pieces themselves contained such things as dirt, hairs, fibres, and plant material.
Ms Scott removed a number of hairs from that matter, examined them, and then placed them in a plastic snap lock bag that she then heat sealed. She labelled it FS 02/5326-5. That bag was then placed in a freezer archive box labelled "Box 5 D.S. March '03". The box was placed in turn inside a freezer in the laboratory at Lidcombe.
On 8 September 2003, Sharon Neville, a forensic biologist employed at the DAL, signed a report detailing her examination of the contents of that heat-sealed bag. In a nutshell, she reported that the hairs recovered from the matter vacuumed from the boot of vehicle MAA-265 were unsuitable for nuclear DNA testing.
On 12 September 2003, the exhibits were returned from the Sydney Police Centre Crime Scene Section to Manly Police Station.
On 22 May 2008, Detective Senior Constable Jones attended Manly Police Station and booked out exhibit C-783410. She opened it, examined and photographed it, re-sealed it, and booked it back into custody on the same day.
On 7 April 2009, a review took place as part of a "cold case" investigation into the disappearance of the deceased. There was a discussion about the possible reanalysis of some of the exhibits that had been seized.
On 5 May 2009, Detective Jones met with Sergeant Salmon, a crime scene officer, at Manly Police Station. Sergeant Salmon opened the exhibit bags, photographed the contents, and repackaged them. The exhibits were booked into the Manly exhibit section with new reference numbers. In the case of the matter and the hairs from the hairbrush, that was D642287.
On 5 September 2013, at the request of police, Dr David Bruce of DAL forwarded the hair sample FS 02/5326-5 (that being said to be the sample that had been obtained from the boot of the Commodore) and the hair sample FS 83/446-7 (that being said to be the sample from the hairbrush of the deceased) to the Australian Federal Police (AFP).
On 26 September 2013, Elizabeth Brooks, a senior forensic scientist employed by the AFP, received those two hair samples. Ms Brooks undertook a visual comparison of the two samples on the same day.
On 15 November 2013, Ms Brooks forwarded both of the samples to the Victorian Institute of Forensic Medicine (VIFM).
On 6 November 2013, a buccal swab was obtained from the sister of the deceased by Detective Jones. Detective Jones and Detective Bradley booked that sample into the exhibits room at Katoomba Police Station, with a view to sending it to the DAL in due course.
On 7 November 2013, Dr Hartman, a molecular biologist employed by the VIFM, received the two hair samples from the AFP and the buccal sample of the sister of the deceased from FASS. Dr Hartmann completed her mitochondrial DNA analysis on 21 November 2013. To state her primary finding succinctly, she found a hair sample, said to have been seized from the boot of the motor vehicle of the accused in October 1983, has a mitochondrial DNA profile identical to that of a hair seized from the hairbrush, which one could infer had been used regularly by the deceased. Furthermore, she expressed the opinion that one in 2,800 members of the Australian community would be expected to have the same mitochondrial DNA profile.
On 21 January 2014, the hair samples were conveyed from the VIFM to the Unsolved Homicide Team (UHT). They have remained at the UHT since.
To conclude my review of the chronology relating to this issue, Detectives Counsel and Milroy were cross-examined at the committal. They were also cross-examined briefly before me. It is not necessary to detail their evidence above and beyond the review that I have already provided, except to say that it was not disputed at the hearing that, although former Detective Walsh is alive, he is not able to give evidence, due to a debilitating medical condition.
To summarise then the salient aspect of the Crown case with regard to the hair sample said to have been taken from the boot, it can be seen that the Crown can generally account for the movement of the matter vacuumed from the boot of the car from October 1983 until November 1983.
The Crown can also generally account for the movement of a number of items said to include a hair taken from that matter from January 2003 until today.
But the Crown cannot account, in any detailed or coherent way, for the movement or provenance of the hair (that is, the hair that it submits was seized from the boot of the car of the accused in 1983, and was also the hair that was analysed in 2013) between 10 November 1983 (when the items were delivered to the AAEC at Lucas Heights) and 17 January 2003 (when the sealed box was located at Mosman Police Station by two detectives). In particular, where the items went on which dates during that period of over 19 years is shrouded in mystery, as is the question of who placed them in the box, who fixed the two printed labels to the box, and who sealed it.
To use an expression well-known to criminal lawyers, the chain of custody with regard to the exhibit that was the subject of scientific analysis cannot be established. The result is that the evidence is by no means conclusive that the hair that was the subject of mitochondrial DNA analysis is indeed the hair that was seized from the boot of the car of the accused. That state of affairs founds the controversy about s 137 of the Act.
Proposed tendency evidence
On 17 March 2014, the Crown sent a tendency notice to the solicitors for the accused. Its relevant portions are as follows:
1. The person whose "tendency" is the subject of the evidence sought to be adduced is Robert John Adams.
2. The tendencies sought to be proved are:
(a) His tendency to act in a particular way, namely to be sexually violent towards women.
(b) His tendency to act in a particular way, namely to use choking as a method of violence against women.
(c) His tendency to act in a particular way, namely:
a. To meet women either in public bars or cafes by approaching them,
b. To ingratiate himself with these women,
c. To entice them into getting into his vehicle,
d. To use violence, including to place his hands around their throats and apply considerable pressure, for the purpose of forcing them to have sexual intercourse with him, and
e. To only release this pressure if and when the women acquiesced to sexual activity with him.
(d) His tendency to have a particular state of mind, namely to become violent including to the point of strangling a woman if his sexual advances were turned down.
The tendency notice goes on to refer to the evidence that I shall now summarise, again chronologically. I shall also set out very briefly my understanding of the position of the accused with regard to each incident said to demonstrate a tendency on his part (a "tendency incident").
Incident One
The first incident commenced on 4 August 1975. At around 3:00 PM, the complainant, Andrea Hyde, then 28 years of age, was approached by the accused at a café in Circular Quay. He introduced himself as "Bob". The pair chatted, and arranged to meet the next day.
Sometime after 5:00 PM on 5 August 1978, the accused picked up Ms Hyde from her place of work in the Rocks in a car that was a sedan. The accused told Ms Hyde that he was taking her out to dinner, but that he first had to go home to change his clothes. The accused drove Ms Hyde to a suburb of Sydney that she later described as having many large homes, and parked the car off the street. He invited her inside for a cup of coffee. She agreed.
The accused led Ms Hyde to a "worker's cottage" attached to a large home. Once inside, he requested that Ms Hyde have sexual intercourse with him. She refused, and mentioned that she had recently had an abortion and was experiencing some bleeding as a result of that procedure.
The accused picked up Ms Hyde, carried her into the bedroom, and forcefully placed her on the bed. He then got on top of her, and began strangling her with both of his hands around her throat. She struggled to breathe, but remained conscious. Fearing that she would be strangled to death, Ms Hyde eventually "acquiesced" to having sexual intercourse with the accused.
The accused removed her tights, underpants and shoes, but left the rest of her clothes on. He then had penile/vaginal intercourse with her without her consent. He also forced her to perform oral sex on him. After attempting to have penile/anal intercourse with Ms Hyde, the accused again had penile/vaginal intercourse with her, and ejaculated as a result.
Thereafter, the accused instructed Ms Hyde to go to the bathroom to wash herself. He unlocked the door to the cottage, and Ms Hyde quickly ran outside. She left her belongings inside the cottage. She gained the attention of an approaching motorist, and was driven to a nearby Scout Hall. The police were promptly contacted.
On that same evening, the police located the accused with the property of Ms Hyde in his bag. After a positive identification of the accused by Ms Hyde in an identification parade at North Sydney Police Station, the accused was charged with rape. The matter was committed for trial in September 1975. However, Ms Hyde fled Sydney before the trial, and the matter was no billed.
The position of the accused is that he has never admitted to any offence arising from his interaction with Ms Hyde. He does not dispute, however, her identification of him as the man in whose company she was on the evening in question, and the fact that they engaged in sexual intercourse.
Incident Two
The second incident occurred on 30 May 1976. The complainant, 32 year old Ellen Moon, met the accused at the Skiff Club at Mosman, a suburb on the lower North Shore of Sydney. The accused approached Ms Moon, introduced himself as "Bob", and asked her to dance. She agreed, and after a short period the pair retired to the veranda of the club to talk.
Whilst on the veranda, the accused asked Ms Moon whether she would like to go out to dinner, or go to his house for a cup of tea. Ms Moon declined, and told the accused that she was going home instead. The accused offered to walk Ms Moon to her car, but said that he had to get a jumper out of his own car on the way. They walked to his car.
After retrieving his jumper, the accused insisted that Ms Moon get in the front seat of his car. She agreed, and the pair kissed for a short while before the accused drove to a nearby park.
At the park, the accused attempted to grab Ms Moon's breasts. She pushed him away, but he became aggressive. After she voiced her discomfort, the accused put his hands around Ms Moon's throat and demanded that she hold his penis. She refused, and the accused said, "I'll count to five and if you haven't done it I'll choke you". He then began to apply pressure to her throat, and asked her to "open your legs" before making the following threat: "Either fuck me now or I'll fuck you when I kill you, and you won't be able to talk when you're dead, I'll strangle you and throw you in the river".
The accused then had penile/vaginal intercourse with Ms Moon without her consent. He did not ejaculate. Afterwards, the accused told Ms Moon that he had "done a terrible thing", and asked her to take him to a Police Station. She refused, and he drove her to her car instead.
On that same evening, she reported the matter to police.
On 31 May 1976, the accused was charged with rape arising from his conduct towards Ms Moon. He entered a plea of guilty to that charge on 6 September 1976. On 28 September 1976, the accused was convicted and sentenced by O'Brien J, the Chief Judge of the Criminal Division, in the Supreme Court at Sydney to imprisonment for six years, with a non-parole period of 12 months. He was released to parole on 18 April 1978.
The position of the accused is that he does not dispute that he is the person who interacted with Ms Moon on that evening. It is also part of the Crown case, of course, that he has publicly and solemnly admitted that he raped Ms Moon, by way of his plea of guilty to that offence.
Incident Three
The third incident occurred in late July or early August 1978. The complainant, 20 year old Karen Brown, met the accused at a bar in the North Sydney area. The accused approached Ms Brown, introduced himself as "Bob", and offered to buy her a drink. Later in the evening, the accused asked Ms Brown whether she wanted a lift home. She accepted his offer, and the two of them left in the white Holden sedan of the accused.
The accused drove Ms Brown to an isolated reserve, and locked the car doors. After positioning himself on top of her in the passenger seat, he had penile/vaginal intercourse with her without her consent.
Throughout the ordeal, the accused had his hands around the throat of Ms Brown and applied pressure to her windpipe. Fearing that she would be strangled to death, Ms Brown did not attempt to resist the accused. The accused ejaculated.
Afterwards, he drove Ms Brown to a house located somewhere near the Pacific Highway in the northern suburbs of Sydney. Ms Brown was then led to a bedroom in the home. There she was raped on a mattress on the floor by the accused on at least two separate occasions. She attempted to escape, but she failed and he pushed her back onto the mattress. Despite her requests to be driven home, the accused refused to allow Ms Brown to leave the confines of the bedroom, even to urinate.
The following morning, the accused agreed to drive Ms Brown to Chatswood. From there, she walked to her home. Ms Brown reported what had occurred to the police, but ultimately decided not to pursue the matter.
Many years later, she did give the police a further statement. She also engaged in a photographic identification parade and indicated two photographs, one of which is of the accused (I interpolate to say that the Crown prosecutor did not seek to dissuade me from my initial thought that that evidence has negligible probative value). More importantly, however, she gave the police a registration number of the vehicle driven by her assailant that was identical or very similar to the number-plate of a vehicle that could indeed be associated with the accused as at the middle of 1978.
The accused disputes the proposition that he is the man who interacted with Ms Brown, and points to a number of discrepancies between what she said to police about the incident as recorded in a report of 7 August 1978, and what she has said in her statement to police of 14 January 2013. In particular, he points to a number of inconsistencies in the description of the man alleged to have sexually assaulted Ms Brown.
Incident Four
The fourth incident occurred on 15 September 1978. The complainant, 27 year old Susan Hartman, met the accused at Matches, a bar and discothèque in North Sydney. The accused approached Ms Hartman on the dance floor, and asked her to dance. She accepted his invitation. Shortly thereafter, the two of them went to the upstairs courtyard of the venue and had a drink together.
At about 1:15 AM, Ms Hartman told the accused that she wanted to go home. She was intent on catching a taxi, but the accused insisted that he drive her home. A short time later, the pair left the vicinity of the bar in the accused's white Holden motor vehicle.
Upon arrival at her address, the accused stopped the car and asked Ms Hartman whether he could be invited inside. She agreed, and the pair went upstairs to her apartment.
Once inside, the accused pushed Ms Hartman to the floor and held her wrists above her head. Whilst on top of her, he said, "I'm going to rape you…do you want to be conscious or unconscious?" After screaming for her housemate (who was not home at the time), Ms Hartman told the accused that she was feeling sick, and needed to be released for a brief moment. The accused did so, and Ms Hartman ran out of the apartment and knocked on the door of a downstairs neighbour, who assisted her.
On 17 September 1978, Ms Hartman attended the North Sydney Police Station. After being shown a number of books containing photographs, Ms Hartman possibly identified the accused as her attacker.
On 19 September 1978, the accused was charged with the offence of assaulting a female. He eventually entered a plea of guilty, and his lawyer indicated that the plea was entered on the basis that the evidence given by Ms Hartman at committal was correct. On 14 December 1978, the accused was convicted of the offence, and fined the sum of $100.
I understand the position of the accused to be that he does not dispute that he is the man who had an interaction with Ms Hartman. Again, the Crown case is that, by his plea of guilty, the accused has formally admitted that he assaulted her, and that he has adopted the correctness of her depositions as underpinning that offence.
That concludes my assessment of the Crown case. It is convenient now to turn to the objection about the hair analysis.
The evidence about the hair - s 137 of the Act
Submissions of the accused
The accused conceded that, pursuant to s 70 of the Act, there is some evidence (namely, the labelling of the box and of the brown paper bag containing the hair that was subsequently analysed) that the hair that was analysed in 2013 is indeed the hair that was taken from the boot of the car of the accused in 1983. The section is as follows:
70 Exception: contents of tags, labels and writing
The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed:
(a) in the course of a business, and
(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.
It was not disputed by the accused that it is open to infer that the markings on the brown paper bag were placed there by Detective Walsh. It was also not disputed that it is open to infer that the various markings were placed there and on the box in the course of "a business", as defined in the Dictionary of the Act.
As a result of the operation of the section, it was also accepted by the accused that the evidence of the analysis of the hair in question is relevant, as that concept is defined in s 55 of the Act.
As I have said, the focus of senior counsel for the accused was instead upon s 137 of the Act. That well-known section is as follows:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Turning first to the question of probative value, the accused submitted that, by way of s 70, the contents of the labels constitute some evidence of what was contained inside the box and the paper bag. But it was said that it is by no means determinative, or even particularly powerful, evidence. In other words, it was submitted that the probative value of the evidence is not overly high, particularly in the circumstances that I have outlined of the chain of possession being obscure for a period approaching two decades.
The accused accepted that in determining a question of admissibility pursuant to s 137, one must take the Crown case at its highest (in accordance with the decisions of R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 and R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363). But the accused submitted that, even if one does so, the evidence suffers from serious deficiencies. In particular, he submitted that one can see from photographs tendered before me that some bags containing exhibits were not properly sealed; that the provenance of some items in plastic bags in the box is mysterious; and that there may well have been contamination of exhibits, even leaving aside entirely the lacuna in continuity.
In short, the accused submitted that, even in accordance with the current understanding of how one must approach the question of probative value, it could not be said to be overly high.
Turning to the danger of unfair prejudice, there were two bases upon which it was said that there is indeed a significant danger of unfair prejudice.
First, former Detective Walsh (the witness who, on the Crown case, took the sample from the boot of the car and marked the brown paper bag) is not available for cross-examination. Nor can one determine the identity of the person or persons who made any of the other markings that attract the operation of s 70 of the Act. That is so because of the gaps in the Crown case to which I have referred.
In short, the evidence of the various markings that support the proposition that the analysed hair of 2013 is indeed the seized hair of 1983 are an exception to the rule against hearsay, and, in the particular circumstances, no one who made those markings will be able to be cross-examined about that hearsay evidence. In other words, the accused will be effectively prohibited from disputing the evidence, or even testing or exploring it.
Secondly, it was said that exploring the deficiencies in the chain of possession in front of the jury will be an intricate and time-consuming process. The jury would be tempted simply to say that the hair tested was indeed the hair seized, without properly applying their minds to whether they could truly be satisfied of that proposition. It could well be that any attack on the provenance of the evidence - which would in truth, it was said, be a soundly-based attack - could be seen by the jury as mere quibbling or point taking on the part of the accused. Far from permitting the accused to advance a legitimate criticism of the Crown case, it was said, doing so could actually prejudice the jury against him.
In short, it was submitted that the evidence does not possess a high probative value, but on two separate bases it carries a danger of being markedly unfairly prejudicial to the accused. Accordingly it was said that the section is engaged, and therefore I must exclude the evidence.
Crown submissions
The Crown submitted that the evidence is undoubtedly relevant.
Separately, it was explained that the Crown thesis in support of the count of murder is that the accused inflicted violence by way of strangulation upon the deceased in order to force her to have sexual contact with him. That proposition is largely founded on the tendency evidence said to support that thesis. But on the occasion of the early hours of 24 September 1983, it was said, he "just went too far", with the result that his actions caused the death of the deceased.
As part of disposing of her body, he at one stage placed it in the boot of the Commodore. Although the accused took steps to clean both the boot and the rest of the car, the hair located by the police and subsequently analysed is indeed, on the Crown theory, a hair of the deceased. The statistics underpinning that proposition and derived from the DNA analysis, whilst not of the utmost magnitude, are certainly not lacking in strength. In short, it was said that the evidence is powerfully probative within the Crown case, understood as a whole.
In any event, the Crown submitted that the developing jurisprudence of the New South Wales Court of Criminal Appeal over the past ten years or so establishes that the determination of the true probative value of any evidence is vouchsafed to the jury at trial, not to the trial judge at the stage of objection pursuant to s 137 of the Act. In light of the well-known definition of probative value contained in the Dictionary of the Act, it is for me to judge merely the potential value of the evidence, not its actual value.
In short, the Crown submitted that the probative value of the evidence must be assessed by me as high.
As for unfair prejudice, the Crown submitted that, in one sense, all admissible, probative prosecution evidence is prejudicial to the interests of an accused person. But it was said that it is perfectly open to defence counsel at trial to attack the relative weakness of the statistic derived from the DNA analysis, and to attack the undeniable gaps in the chain of custody. In short, I interpreted the submission to be that there is no unfair prejudice arising from the admission of the evidence. And, if there were some prejudice in the latter sense of the word, then the position of the Crown was that it would be open to the trial judge to give the jury firm directions not to use or react to the evidence in any prejudicial way.
In short, it was said that the evidence is powerfully probative, but gives rise to no unfair prejudice. For those reasons, the Crown submitted that s 137 is not engaged.
Determination about evidence of hair analysis
I do not consider that s 137 of the Act is engaged. I say that for the following reasons.
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.
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.
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.
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.
Thirdly, whether the tendency evidence is admitted or not, it can be seen from the summary that I have provided of other aspects of the prosecution case that, on the material placed before me on the voir dire, the position of the accused is that he had sexual intercourse with a woman, whom he had never met before, in his motor vehicle, in the early hours of the morning. Thereafter, she disappeared, never to be seen again, whilst he was unconscious or sleeping. He left the scene and made no enquiries about her whereabouts. There is evidence that, quite soon after that event, he was seen to be extensively cleaning the car in question, including its boot.
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.
In short, I consider that the probative value of the evidence must be assessed as being high.
Turning to the question of unfair prejudice, I do not identify any that arises.
Section 70 is a mechanism whereby Parliament has seen fit to carve out an exception to the rule against hearsay contained in s 59 of the Act. It is true that, in the circumstances of this case, no one can be cross-examined about the tags and labels that are rendered admissible for a hearsay purpose pursuant to s 70 of the Act. But that can hardly be uncommon; in many cases, it will be impossible to identify the person who created the markings and thereby made the representation. Indeed, in the case of mass-produced labels that are attached to items in a factory, for example, it will surely be almost always impossible to determine which particular production line worker attached a particular label to a particular item.
And the same may be said about other sections of the Act that constitute exceptions to the rule against hearsay: it is not uncommon for the party against whom the evidence is tendered to be unable to cross-examine anybody effectively about the truth of its contents. An example that springs readily to mind is s 65 of the Act, which renders admissible for a hearsay purpose the previous representations of persons who are, for various reasons, unavailable to be cross-examined.
Separately, it is one thing to say that the operation of the section is prejudicial to the interests of the accused; to the extent that s 70 makes admissible previous representations that, pursuant to s 59, would otherwise not be admissible, that is indeed "prejudicial" in a sense to the defence case. But it is another thing to say that the operation of a facilitative section that Parliament has chosen to create gives rise to unfair prejudice. I say that because an accused person has an entitlement to a fair trial according to law; the latter part of that well-known phrase must encompass those aspects of the Act, including exceptions to the rule against hearsay, that operate adversely to him or her at trial.
Secondly, I do not accept that a jury will focus on the evidence unquestioningly, and will fail to attend to the evidence of the break in the chain of possession of almost two decades. To the contrary, I consider that senior counsel for the accused will be well able to bring home to the jury, forcefully but concisely, that aspect of the matter, both in cross-examination of police officers and scientists, and in final address. And that will be able to be done in such a way that does not occasion unfair prejudice to the accused. I do not accept that a jury will regard exploration of a period of almost two decades in which the Crown cannot account with precision for the movements of an important exhibit as mere "quibbling" on behalf of the accused.
In summary, I assess the probative value of the evidence of the hair analysis as quite high. Although I consider that the evidence is prejudicial in the sense that the accused will not be able to impugn it by cross-examination, that is a result of a choice made by Parliament; the evidence is not unfairly prejudicial. Nor is it unfairly prejudicial for the reason that the jury will fail to attend to criticisms of it; to the contrary, I am confident that the jury will understand and fairly assess the attack made upon it.
Because I have not identified any basis upon which the evidence could be unfairly prejudicial, s 137 is not engaged. I therefore reject the submission that the evidence must be excluded pursuant to that section.
The objection to the tendency evidence
Crown submissions
The process of the provision of written and oral submissions very helpfully refined the issues between the parties. My summary of their positions will reflect that refinement, and be concise.
The ultimate position of the Crown prosecutor was to accept that it would indeed be very prejudicial for the one jury to hear from all of the tendency witnesses in a murder trial in which it is alleged the accused had sexually assaulted and strangled the deceased. His fundamental submission, however, was that all of the other tendency incidents are so powerfully probative that the test in s 101(2) of the Act is made out.
Submissions of the accused
The accused did not submit that there was any question of concoction (in the sense of deliberate fabrication) occurring between two or more complainants. Nor did he submit that there was any question of contamination (in the sense of any complainant learning of the allegation of another complainant, or hearing about any aspect of the murder allegation, and thereafter unconsciously tailoring her evidence as a result). That means that I do not need to grapple with the difficult questions that can arise in assessing probative value when either or both concoction or contamination is alleged: see, for example, McIntosh v R [2015] NSWCCA 184 at [47] (Basten JA, with whom Hidden and Wilson JJ agreed); Jones v R [2014] NSWCCA 280 at [88] (Bellew J, with whom Gleeson JA and Schmidt J agreed).
Senior counsel did submit that the fact that the deceased was assaulted by an entirely separate person outside a wine bar in the inner northern suburbs of Sydney on the evening in question must detract, to some degree, from the force that the tendency evidence is said to have with regard to the murder allegation. I understood him to be saying that the entirely separate assault demonstrated that drunken male violence against women late at night is regrettably hardly unusual, and my assessment of the probative value of the tendency evidence must take into account that fact.
Senior counsel submitted that young men meeting young women at licensed premises in the suburbs of Sydney in the evening with an eye to romance and intimacy is also hardly particularly probative or unusual; indeed, it happened and happens constantly.
He also submitted that, in truth, there is no direct evidence of any sexual assault of the deceased, or the infliction of any violence whatsoever to her by the accused. In other words, I understood him to be submitting that there is an element of dangerous "bootstrapping" in the effort by the Crown to use tendency evidence to assert that particular things happened between the accused and the deceased when there is no evidence from any other source of those things occurring.
He drew attention to the fact that the tendency incidents were by no means uniform. For example, the first incident featured neither a meeting late in the evening in licensed premises, nor sexual intercourse in a car; much of the third incident was in the alleged extended period of detention in a home; and the fourth incident did not feature any strangulation.
Senior counsel explained that, with regard to the third incident, there will be a dispute at trial as to whether the assailant was indeed the accused. He submitted that, even allowing for the evidence about the registration plate, the case is not strong, because of the passage of time before the photographic identification, and the internal discrepancies between the descriptions of the attacker, and with the actual appearance of the accused. He submitted that "taking the case at its highest" in accordance with the authorities must be reflected by the proposition that, in highly questionable circumstances, the accused has been said to be the assailant, rather than by the proposition that the accused is indeed the assailant.
During discussion, I queried with senior counsel for the accused whether it was possible that the first part of the third incident (including the sexual assault in the motor vehicle) was admissible, but the second part (featuring detention in a home, and repeated sexual assault at that location) was not. Senior counsel disavowed any "fall-back position" in that regard (TT 76.45 [30.7.15]).
He emphasised that, whatever directions I see fit to give, there will be a severe prejudicial effect arising from one jury hearing so many serious sexual allegations from other women in a murder trial in which it is alleged a woman was sexually assaulted before death. And he submitted that, on a true analysis, the probative value of the tendency evidence does not substantially outweigh that inevitable outcome.
Determination with regard to tendency evidence
Legal principle
In light of the many decisions of the Court of Criminal Appeal of New South Wales and of the High Court of Australia about the admissibility of tendency evidence, I invited the parties to consider whether a summary of the law to be applied by me could be agreed. At the end of the hearing, both senior counsel submitted that the correct approach to the question of "significant probative value" is that recently outlined by Leeming JA (with whom McCallum and R A Hulme JJ agreed) in El-Haddad v R [2015] NSWCCA 10. There, his Honour said at [65]-[72]:
[65] The question posed by the statute is what is significant probative value in this context?
[66] In Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; 61 FCR 171 Lehane J formed the view that guidance was available from cases decided before the Evidence Act came into force. I respectfully agree. As much is common ground in New South Wales and Victoria (see Velkoski at [162] and Saoud v R [2014] NSWCCA 136 at [38]). The statutory text did not emerge from a vacuum. Where as here the legislative text is patently open-textured, the immediate context - namely, its replacement of common law rules restricting the use of a particular type of evidence - is especially apt to illuminate its legal meaning.
[67] Lehane J said:
"What is clear is that courts have exercised a considerable degree of caution in admitting similar fact or tendency evidence. They have described the degree of cogency required of such evidence in a number of ways, some at least of which give some guidance, I think, as to the meaning of the concept of "significant probative value" which appears in s 97. For example, there are the phrases "striking similarities" and "underlying unity" seen in some of the criminal cases … It is clear also that where in reported cases evidence of this kind has been admitted, it has been, as a matter of common sense, clearly and strongly probative of the relevant fact in issue …"
[68] To similar effect, in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 485, Mason CJ, Deane and Dawson JJ said (emphasis added):
"the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it."
[69] The language which has been used to describe the requisite significant cogency was conveniently explained further in Phillips v R [2006] HCA 4; 225 CLR 303, a decision on the position at common law (see at [8]), by a unanimous High Court at [54]. Their Honours referred to "the need for similar fact evidence to possess some particular probative quality", the requirement of "a strong degree of probative force" and that the evidence must have "a really material bearing on the issues to be decided".
[70] Accepting as I do that ss 97 and 98 need not equate to the common law test which they replaced, I still regard that background as informing "significant" in s 97. The same appears from DSJ v The Queen [2012] NSWCCA 9; 84 NSWLR 758 at [45]-[46]. "Significant" is directed to the probative value of the evidence. One way in which tendency evidence possesses significant probative value turns on the degree of generality or specificity with which the "tendency" is stated. A tendency which is stated with too high a level of generality will prove a handicap to its having significant probative value. Examples may be seen in Townsend v Townsend [2001] NSWCA 136 at [78], Ibrahim v Pham [2007] NSWCA 215 at [264] and R v Ford [2009] NSWCCA 306 at [53]. Conversely, "generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value": BP v R [2010] NSWCCA 303 at [108].
[71] Most recently, in Sokolowskyj v R [2014] NSWCCA 55 at [40], Hoeben CJ at CL said that:
"One of the difficulties for the Crown in establishing 'significant probative value' was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly."
[72] That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.
I am respectfully bound by what the Court of Criminal Appeal said in that judgment, of course, and by the entirety of the exegesis that has been developed by that Court and the High Court of Australia with regard to the relevant sections of the Act over the past 20 years. Nevertheless, in determining this matter I have kept in mind that, in the ultimate, I am simply called upon to apply a straightforward statutory test to the evidence that has been placed before me on the voir dire. That test is contained in the following sections of the Act:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
Dictionary
Part 1 Definitions
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In light of the passage of time between the service of the tendency notice and the hearing of the motion, there can be no question about lack of notice. The real point of dispute between the parties was whether the test contained in s 101(2) of the Act is made out. I turn now to discuss the two factors to be weighed by me pursuant that test.
Any prejudicial effect the foreshadowed evidence may have upon the accused
It is convenient to discuss this aspect of the matter first.
To my mind, the possibility of unfair prejudice if any of the evidence from the other complainants is admitted in the murder trial is extremely high. That is because I consider that, if a jury that is determining whether the Crown has proven beyond reasonable doubt that the accused strangled the deceased as part of the process of sexually assaulting her and thereafter disposed of her body, also hears evidence that the accused sexually assaulted and inflicted severe physical violence upon another young woman or other young women, then there is a great risk that the jury will react emotionally and irrationally to that evidence.
That is particularly so if the jury hears from all four tendency complainants: there is the potential for the jury to be simply overwhelmed by the multiplicity of women who are said to have suffered at the hands of the accused. No doubt directions can be crafted by the trial judge to ameliorate that risk to some degree, and no doubt the jury will heed those directions to the extent that they are able. Nevertheless, whatever directions are given, I consider that the possibility of a prejudicial effect upon the accused in those circumstances would be very high indeed.
The real question is whether the foreshadowed evidence is so compellingly probative as to substantially outweigh the very significant possibility of unfair prejudice.
Probative value of each tendency incident
It is useful to assess the probative value of the evidence of each tendency incident by summarising, first, the facts of the murder allegation, and thereafter, the facts of the proposed tendency allegations.
In accordance with well-established authority, I shall analyse the tendency evidence on the assumption that it is accepted by the jury. That includes the evidence in support of incident three; I do not accept the proposition that it can be analysed other than on the basis that the accused was indeed the assailant. To do otherwise, and embark upon my own analysis of the strengths and weaknesses of the Crown case in support of that tendency incident would, to my mind, usurp the function of the jury.
In short, the Crown case with regard to the murder of the deceased is that the accused:
● in the year 1983, when he was a much younger man;
● approached the deceased, a young woman in her early 30s;
● who had been drinking heavily;
● at licensed premises open to the public;
● in the early morning;
● in the inner northern suburbs of Sydney;
● engaged in conversation with her;
● arranged for the two of them to travel in his car, with himself as the driver;
● whilst the car was stationary;
● used violence in order to have sexual intercourse with her;
● strangled her as part of the use of that violence;
● had penile/vaginal sexual intercourse with her;
● ejaculated as a result of that sexual intercourse;
● caused her death by way of the infliction of violence to her person;
● at the time of the commission of the act causing death, possessed one of the three mental elements for murder, or killed the deceased in circumstances amounted to felony murder as then defined; and
● thereafter disposed of the body.
It can be seen that many parts of the Crown case are not disputed by the accused. Indeed, the only factual matters that are really in dispute are the propositions that the accused used violence in order to have sexual intercourse with the deceased; strangled her; caused her death as a result; and disposed of her body.
The evidence from Ms Hyde in support of the first tendency incident taken at its highest is that the accused:
● in the year 1975, when he was a much younger man;
● approached a woman in her late 20s;
● in commercial premises open to the public;
● late in the afternoon;
● in the centre of Sydney;
● engaged in conversation with her;
● arranged for the two of them to travel in his car with himself as the driver;
● after the two of them entered his home, sought to have sexual intercourse with her;
● used violence in order to achieve that goal;
● strangled her as part of that violence;
● after strangling her, had penile/vaginal intercourse with her without her consent; and
● ejaculated as a result of that sexual intercourse.
The evidence from Ms Moon with regard to the second incident taken at its highest is that the accused:
● in the year 1976, when he was a much younger man;
● approached a woman in her early 30s;
● at licensed premises open to the public;
● in the evening;
● in an inner northern suburb of Sydney;
● engaged in conversation with her;
● caused her to enter his car;
● thereafter, whilst the car was stationary;
● inflicted violence upon her person in order to have sexual intercourse with her;
● as part of that violence, manually placed pressure on her windpipe and threatened to choke her;
● at the time of the infliction of violence threatened to inflict death by strangulation of her;
● had penile/vaginal sexual intercourse with her without her consent;
● did not ejaculate as a result; and separately
● the accused solemnly admitted that he had penile/vaginal sexual intercourse with that woman without her consent, knowing that she was not consenting, by way of his plea of guilty to the offence of rape.
The evidence from Ms Brown in support of the third incident taken at its highest establishes that the accused:
● in the year 1978, when he was a much younger man;
● approached a young woman who was 20 years of age;
● at licensed premises open to the public;
● that were located in the inner northern suburbs of Sydney;
● engaged in conversation with her;
● arranged for the two of them to travel in his car, with himself as the driver;
● whilst the car was stationary;
● inflicted violence upon the person of the young woman;
● which included manual strangulation;
● inflicted that violence with the intention to have sexual intercourse with the young woman without her consent;
● had sexual intercourse with her in those circumstances in the car;
● ejaculated as a result of that sexual intercourse; and thereafter
● took Ms Brown to a house in the northern suburbs of Sydney; detained her against her will for an extended period; and had penile/vaginal sexual intercourse with her against her will on two further occasions.
The evidence from Ms Hartman in support of the fourth incident taken at its highest establishes that the accused:
● in 1978, when he was a much younger man;
● approached a young woman who was 20 years of age;
● in the evening;
● at licensed premises open to the public;
● located in an inner northern suburb of Sydney;
● engaged in conversation with her;
● arranged for the two of them to leave in his car, with himself as the driver;
● asked to be invited inside her home;
● inside the home inflicted violence upon her;
● verbally expressed the explicit intention to have penile/vaginal sexual intercourse with her without her consent;
● referred to the possibility of her becoming unconscious as a result of violence inflicted upon her by himself; and separately
● the accused solemnly and publicly admitted, by way of his plea of guilty to the offence of assaulting a female, that he had unlawfully applied force to the person of Ms Hartman without her consent.
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.
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.
As I have said, there is no question in this case of concoction or contamination playing any role in the reduction of the probative value of each of the tendency incidents, and therefore any reduction in the role that those incidents can play in reasoning that the accused did indeed cause the death of the deceased in the circumstances alleged by the Crown.
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.
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.
In short, whether analysed individually or as a whole, I regard the probative value of the tendency evidence as being compellingly high.
Evaluative judgment pursuant to s 101 of the Act
I turn now to assess whether any of the four incidents relied upon as tendency evidence passes the test contained in the section. Again, I shall adopt the approach of first considering each incident on its own.
If it were simply a case of the tendency evidence demonstrating that the accused at one stage of his life was in the general habit of sexually assaulting women, I would not be satisfied that such evidence passed the test in s 101 of the Act, in light of the very real possibility of it having a severe prejudicial effect upon the accused that I have already identified: see Sokolowskyj v R [2014] NSWCCA 55 at [40].
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.
To my mind, even when analysed strictly separately, the evidence in support of each incident passes the test in the section (leaving aside for a moment the alleged offences against Ms Brown at the house, which form the latter part of incident three). The position is even clearer when the tendency evidence is considered as a whole, that whole being much greater than the sum of its parts.
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 exception to that, to my mind, are the allegations that form the second part of incident three with regard to Ms Brown. The evidence that the accused detained her and repeatedly sexually assaulted her inside a home will certainly be extremely prejudicial in the murder trial. And yet, because it does not share the great particularity that the other tendency incidents share with the interaction between the accused and the deceased, its probative value is substantially less. Whether one examines the second part of incident three individually, or within the context of all of the other proposed tendency evidence, my thought after reflection is that that evidence does not pass the test contained in s 101 of the Act.
Having said that, at the hearing, I indicated to both parties, in light of their position that the question of the admissibility of the evidence of Ms Brown could not be divided up, that I would not "consider that ancillary question" (T 76.28 [30.7.15]). It is quite possible that that statement of mine influenced whether the learned Crown prosecutor said anything about the topic in reply. In those circumstances, despite the view that I currently hold, I think that I should not formally reject the second part of the third incident. Apart from anything else, it is possible that there are tactical reasons why senior counsel for the accused would wish the jury to hear it.
For the time being, I am content simply to have indicated my current view about the second part of incident three, without excluding it. But if senior counsel for the accused, in light of my other rulings, wishes to re-agitate it, I think he should be permitted briefly to do so (subject to further submissions from the Crown, of course).
Conclusion regarding tendency evidence
To summarise my view about the four incidents relied upon by the Crown as tendency evidence: I accept that there is a very real possibility of significant prejudice to the accused if the jury in the murder trial also hears about those other matters.
However, (with the exception of the second part of incident three) I am affirmatively satisfied that, assuming the evidence to be accepted by the jury, many aspects of the admitted interaction between the accused and the deceased are so compellingly similar to many aspects of other occasions upon which the accused inflicted serious violence (on three occasions, including manual strangulation) in order to sexually assault other young women, that the probative value of each of the incidents substantially outweighs the prejudicial effect that it will undoubtedly have upon the accused at his trial.
The relevant test having been made out, the evidence is not to be rejected by me.
Conclusion regarding both matters
In short, I do not consider that the evidence of the analysis of the hair engages s 137 of the Act. Therefore it will not be excluded.
I consider that most but not all of the foreshadowed tendency evidence passes the test contained in s 101 of the Act.
The portion that does not pass the test is the evidence of Ms Brown about being detained and sexually assaulted inside a home by the accused. Despite that view of mine at this stage, the evidence will not be excluded for the time being, in light of the position adopted by senior counsel and by me at the hearing.
Finally, the matter should return before the Criminal List Judge on the next arraignments day for further determination about future listings and other matters.
Rulings and order
I make the following rulings:
1. The evidence about the hair analysis is admissible.
2. The tendency evidence foreshadowed in the tendency notice of 17 March 2014 is admissible.
I make the following order:
(3) The matter is listed in the arraignments list on 12 February 2016 at 10 AM.
[2]
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Decision last updated: 26 September 2016