The accused was arraigned yesterday on an indictment charging that, on 9 March 2016, he murdered his stepfather, Kenneth John Perry. He entered a plea of "not guilty of murder but guilty of manslaughter" which was not accepted by the Crown in discharge of the indictment. He is to stand trial on the charge of murder before a jury who will be empanelled tomorrow.
The Crown case, in general terms for present purposes, is that in the course of a disagreement or argument about the accused's continued residence in the home of his mother and stepfather, and the use he was making of that home, the accused became violent, assaulted the deceased and threw him from a first floor balcony.
I understand that the forensic pathologist's evidence will be that the deceased died from a broken neck induced by a compressive force applied to the top of his head when he fell onto his head, probably onto the retaining wall of a garden bed below the balcony.
Two issues are expected to arise concerning the criminal responsibility of the accused, if any, for the death of Mr Perry. The first relates to self-defence, which matter seems to arise out of the various accounts that the accused gave to police at the time of, and after, his arrest. A second issue which, perhaps, is not so directly relevant presently is whether he has available to him the partial defence of substantial impairment.
I am asked to rule upon the Crown's application for the admission of tendency evidence. The notice required by s 97 Evidence Act 1995 (NSW) is dated 2 November 2017. I am informed by Mr Young of Senior Counsel, who appears for the accused, that it was not received in his chambers until the afternoon of 3 November when he returned from other professional commitments before the Arraignments Judge.
Section 97 of the Evidence Act is in the following terms:
"Evidence of the character, reputation or conduct of a person, or a tendency that the 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 two conditions are satisfied. The first condition is that reasonable notice has been given to the accused of the prosecution's intention to adduce the evidence: s 97(1)(a); and the second condition is 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: s 97(1)(b).
I note by way of further introduction that, as will become apparent, because the evidence relates to a tendency that the deceased is said to have had rather than the accused, the provisions of s 101(2) do not apply, although s 135, and perhaps more relevantly s 137, are to the same effect.
I should say that, on the accounts given by the accused, the issue relating to self-defence seems to be that, to put it in general terms, the deceased lost his temper with the accused and physically attacked him, including striking him, at least on one account, with a chair with sufficient force to bend the leg of the chair. The accused says that to defend himself from what he perceived to be a life-threatening attack, he embraced the deceased in a bear hug and lifted him so that his posterior was resting on the balcony rail.
The accused says when he released him from that hug the deceased toppled over. It is trite law where self-defence is raised as a real issue on the trial of a person for murder, or indeed for other crimes, it is for the prosecution to prove beyond reasonable doubt that the defence is not available. To this extent, negativing self-defence can be equated, at least by analogy, with an element of the offence of murder.
That brings me then to the tendency notice. The tendency identified by the Crown in its notice under s 97 had three aspects as follows:
"The Crown maintains that the deceased, Kenneth Perry had the following tendencies:
(1) He had a tendency to be even tempered.
(2) He had a tendency to be non-aggressive.
(3) He had a tendency to be easy going."
In the course of oral argument, Mr Rosser of her Majesty's Counsel, who appears as Crown Prosecutor, focused on a tendency to be not aggressive. He argued that that tendency, if established, would go squarely to the assessment of the probability, or improbability, as the Crown would put it, of the deceased having attacked the accused as the accused claims (see 4.20T).
It should also be recorded that s 96 extends a reference in the Act to doing an act to include failing to do that act, and emphasis is placed upon that by the prosecution. That is to say, the tendency upon which they rely is for the deceased not to be a person who would act in the way that the accused said he acted on the day of his death.
The tendency notice referred to the evidence of seven witnesses being Ms De Key-Perry, the wife of deceased and mother of the accused; Ms Diane Wells; Mr Toby Weatherall; Ms Rebecca McEwen; Mr David Perry, the brother of the deceased; Mr Geoffrey Battle, a fellow church member of the deceased; and Mr Lincoln Perry, his son from a previous marriage. However, after the detailed argument from both counsel, I understood the Crown in reply to restrict reliance on this topic to the evidence of Diane Wells, Lincoln Perry and David Perry; (see T 18 line 45).
I will observe in passing that it seemed to me that in any event the evidence of Mr Weatherall and Ms McEwen, which emphasised his easy-going nature and helpfulness in general terms, was perhaps not to the point of the tendency sought to be established, even taken together with the other evidence. It seemed to me that the same can be said of the specific representations made by Ms De Key-Perry.
The evidence that is expected to be adduced from Ms Wells includes evidence of her overhearing previous domestic disputes between the deceased and the accused when the accused formerly lived in the family home. I interpolate that Ms Wells heard part of the disputation that occurred on 9 March 2016. At paragraph 5 of her statement dated 10 March 2016, she says:
"Over the three year period I have heard [the accused] yell at [the deceased] on a few occasions. When [the accused] yells at [the deceased] [he] yells loudly, and I have seen [the accused] getting agitated. I have never heard [the deceased] yell back at [the accused]. I have heard [the deceased] talking to [the accused] to try and calm him down when [the accused] gets into these moods."
The evidence of Mr David Perry is directed solely to the asserted tendency, and the whole of his statement addresses matters which are said to be relevant to that matter only. It includes the following statements: that from a young age the deceased was always one to avoid conflict of any sort; evidence is given of his interaction with an uncle who was said to be a volatile man, often provocative in his words and manner; the observation, apparently, of the brother was that the deceased never rose to that provocation but would walk away from the conflict.
There is evidence about his service as a minister in the Salvation Army Church which I think is not particularly relevant; if I may be allowed the biblical observation, even Jesus drove the money changers out of the temple (Matthew 21:12-17). However, perhaps of more relevance is paragraph 8 which relates his service at a halfway house for reforming ex-convicts known as Gordon House. The deceased's brother says he witnessed him interacting with residents who were often volatile and the deceased was a man who diffused the situation rather than exacerbating it. There are other similar statements.
The evidence Lincoln Perry, the son of the deceased, also relays evidence about Gordon House and his father's mild manner when dealing with issues at that place. He described that place as often a very hostile environment. He also records at paragraph 11 that the accused would sometimes become aggressive; I interpolate it is expected there will be evidence that the accused is a long-time sufferer from schizophrenia and that the deceased would always respond with calmness and composure.
The admissibility of tendency evidence has received the attention of the appellate courts in the Australian judicial hierarchy; in particular, in recent times, of the High Court of Australia. I think it only necessary at this stage to refer to the recent decision of the High Court in Hughes v The Queen [2017] HCA 20. It is important, however, to emphasise that the present case is concerned with a tendency in the deceased rather than in the accused. And most commonly, but of course not always in criminal proceedings, the relevant tendency the subject of the tender relates to a tendency or indeed perhaps propensity in the accused. Hughes was such a case.
However, the guidance provided by the High Court, it may be said, is of general application. Neither of the learned and experienced Senior Counsel who appeared to argue the point before me was able to find a decision of an appellate court directly on point, and it is necessary therefore to return to general principles and indeed primarily to the words of the statute itself.
Obviously the touchstone of the admissibility of all evidence is relevance, which is dealt with in s 55 of the Act. Section 97 creates a general exclusion subject to an exception. Evidence which is excluded by s 97 is by definition otherwise relevant, and I did not understand Mr Young SC to argue that the evidence which it is expected the prosecution will seek to adduce from these witnesses was not relevant. In my judgment, the evidence is relevant. Obviously, the evidence: (a) relates to the previous interactions of the accused and deceased of a similar kind; similarity is not essential to admissibility as tendency evidence; and (b) relates, as well, to the manner which the deceased brought to the resolution of conflict so far as others were in a position to identify it.
I have no doubt that evidence of this type is, in a general sense, relevant to the issue of whether he attacked the accused as the accused says. It is just as relevant as will be the evidence that he was a man of 74, and the accused was a man aged around 50 at the time, and that the deceased had physical disabilities including a colostomy bag which he had worn after a bout with bowel cancer. It cannot be said that those types of physical and personal characteristics are not relevant to the question of the likelihood of him attacking the accused.
It seems to me that evidence of the type sought to be adduced is capable of proving that the deceased had a tendency to act in a particular way; that is to say, that he had a tendency to be non-violent and non-aggressive in situations of conflict. That, to my mind, is relevant. It is not admissible, however, unless the conditions which I have identified are satisfied. Moreover, even if those conditions are satisfied, there remains the question of whether the evidence should be excluded under the provisions of s 137 of the Act.
The Regulations made under the Evidence Act and the Rules of the Supreme Court do not prescribe any time for the giving of notice. Therefore, the question of whether the notice is reasonable is a question which is to be adjudged by reference to the particular circumstances of the case, no fixed time being required.
If one, however, has regard to the content of the Regulation made under the Act, one notices that the notices are required to contain detail about the evidence which is expected to be led, and one would infer from that that given the difficulty that might ordinarily be experienced by an accused in answering evidence of matters which occurred when he was not present, sufficient information and opportunity is to be given to the defence to make inquiries which will enable it to test or answer the evidence once it is led at the trial.
Now, in this regard the statement of Ms Wells was served with the original brief. It contained paragraph 5 and, although no notice was given that paragraph 5 in particular would be relied upon, it has been in the possession of the defence for a very long time and I am satisfied, in respect of it, that sufficient and reasonable opportunity had been given for inquiries to be made; indeed for Ms Wells to be interviewed, if that was thought appropriate, to equip the defence to test, challenge and contradict that evidence if it were led at the trial.
The statements of Messrs Perry were only served at the start of September. That is two months ago, but they were served without notice that the prosecution intended to rely upon them as tendency evidence. However, when one reads the statements in full, it seems to me that the content could have no relevance other than as evidence about the propensity or tendency of the deceased to act in a particular way, and perhaps it could have been anticipated that that was the purpose to which it would be put. In any event, the purpose was not made explicit until, as I have said, last Friday.
When I asked Mr Young about what inquiries the defence wished to make, acknowledging the difficulties, I think, with respect, it can be said that, other than, perhaps, checking on or inquiring about matters which might go to the credibility of the evidence, there was little that one could undertake by way of objective investigation to be in a better position to meet the evidence than the defence are now.
Learned Senior Counsel acknowledged that perhaps some of that difficulty could be met by undertaking what is commonly referred to as a Basha inquiry. It seems to me that, although the notice was short, the matters relied upon are suitably explicit and, even in respect of Messrs Perry, the short notice given in this case is reasonable and I am satisfied affirmatively that the first condition has been fulfilled. However, should the defence wish to examine those witnesses on the voir dire before the jury hears that evidence, I would look upon such an application favourably.
I turn then to the second condition, which is whether this evidence, either on its own or having regard to other evidence in the prosecution case, has significant probative value.
As the High Court pointed out in Hughes, by reference to the dictionary in the Evidence Act, the probative value of evidence is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Their Honours went on to say, by reference to a previous decision of theirs: "Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent": see Hughes at [16] and IMM v R (2016) 257 CLR 300 at 314 [46]. Their Honours also pointed out, in the same paragraph, that:
"The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence."
As I have said, the issue of self-defence, although not strictly speaking an element of the offence, is like an element of the offence in as much as the Crown has to negative the defence beyond reasonable doubt.
Their Honours, at various places in the plurality judgment, posed two questions as follows (at [18]):
"In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused."
That second question, however, does not arise here, except in the context of s 137 because, as I have said, the condition in s 101 does not apply to the evidence sought to be led in this case.
Focusing for the moment on the first question then about significant probative value, I am satisfied that if accepted by the jury and, for present purposes, I must assume that it will be (see IMM), the evidence sought to be led could have significant probative value. I understand that "significant" in the statutory context means something real; of more than trivial effect; and that the evidence is of substance. I am satisfied that evidence of the type sought to be led could affect the probability, by reducing it to a significant extent, of the deceased having attacked the accused in the way which I expect the evidence will suggest the accused has said. It seems to me that the well-known difficulties with the admission of tendency evidence really arise for consideration in the context of s 137. I am, therefore, satisfied that the prosecution has established the necessary conditions for the admission of the evidence.
I turn then to s 137 and I record in passing that I did not understand Mr Young to rely upon the discretionary provisions of s 135. Section 137, in contradistinction to s 135, is couched in mandatory terms as follows:
"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."
The High Court observed, at paragraph [17] of Hughes that:
"The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue."
All persons are subject to the frailties of the human condition and a person, if I may adopt another metaphor, with the patience of a saint may snap on a given occasion. It may also be, as the High Court pointed out in Hughes at paragraph [17], that there is a risk that, in the assessment of the prosecution case, that is to say, when the jury is assessing whether the prosecution has discharged its onus of negativing self-defence, that the jury could have an emotional response to the tendency evidence. That is to say, given the evidence would suggest from Ms Wells that the deceased was able to, apparently, exercise self-control in the face of provocation from the accused, or from Mr Perry that he was a man accustomed to dealing with emotionally-charged situations with calmness, the jury may, in an emotional way, consider him to be a thoroughly decent man and may take a jaundiced view of the evidence which could operate to the unfair prejudice of the accused. That is, as I understand it, the nature of the argument that is put forward.
At paragraph [21] of the judgment, the Justices participating in the plurality judgment observed that the Australian Law Reform Commission's report on the Evidence Act referred to research which suggested that "[a] person's general disposition was found to be of little value as a predictive tool, whereas a person's behaviour in similar situations might justify prediction" (Report No 26, Interim, 1985). It seems to me that the nature of the evidence which I have referred to, expected to be led from the witnesses, rather falls into the latter category and not the former.
It should also be borne in mind, as has been pointed out, the legislature did not act upon the Law Reform Commission's draft in relation to s 97, and that the jurisprudence in New South Wales has taken an approach which gives the language of the section full effect, free from any restrictions that might be read in from an understanding of the previous common law. The High Court, I think, specifically approved this approach to the interpretation of the section in IMM and in Hughes.
The cases also indicate that in deciding this question of whether the probative value will be outweighed by unfair prejudice, one has to consider what other resources are available to the judge to guard against that risk. I acknowledge that for the reasons addressed by the High Court there is such a risk present in this case. It seems to me, however, given the fundamental assumption that jurors do accept and follow directions given by trial judges, that those risks can be adequately assuaged in this case by two considerations.
The first is, given the necessary difficulties the defence will face in meeting the evidence, particularly of Messrs Perry, that it would be appropriate, if one were sought, to give the jury a warning under s 165, at the point of reception of the evidence about its "reliability" for the reasons which I have rehearsed in this judgment. Moreover, it seems to me that a direction can be given to the jury about the use that can be made of the tendency evidence in their deliberations, including the limitations upon it. The jury can be reminded that - I will put it in general terms for present purposes - even if they are satisfied, and I will say beyond reasonable doubt, that Mr Perry was a person who had a tendency not to be aggressive, but to act with calmness in the case of conflict, as I have said, such a person of eminent self-control can snap if sufficiently provoked.
Secondly, given what appears to be a history of friction between the deceased and the accused against the background of the accused's mental illness, the jury would understand that even a self-controlled person might eventually snap when confronted with one incident of aggravation too many and the jury can be directed along those lines. I am sure that such observations would accord with their experience of life and with their understanding of the apparent probability of events.
For those reasons, I am not satisfied that the potentially prejudicial effect of the evidence outweighs what I have found to be its significant probative value and I rule that the evidence I have identified from the expected testimony of Ms Wells, Mr David Perry and Mr Lincoln Perry is admissible in accordance with the requirements of section 192A Evidence Act.
[2]
Amendments
30 May 2024 - Publication Restriction lifted due to completion of legal process
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Decision last updated: 30 May 2024