Supreme Court of the ACT|2015-03-13|Before: Murrell CJ

The application to adduce tendency evidence is refused

EVIDENCE - Tendency evidence - probative value - prejudicial effect

Evidence Act 2011 (ACT) , , (1), (2), Dictionary

Festa v The Queen (2001) 208 CLR 593

Gardiner v The Queen [2006] NSWCCA 190

Saoud v The Queen [2014] NSWCCA 136

Stephen Odgers SC, Uniform Evidence Law (Thomson Reuters Australia, 11th ed, 2014)

1. The accused is charged that on 22 July 2012 at Canberra he murdered Terrence Freebody. He has pleaded not guilty by reason of mental impairment. The matter is listed for trial on 23 March 2015.

2. On 22 October 2014 a notice of intention to adduce tendency evidence was filed and served by the prosecution.

3. The accused objects to the proposed tendency evidence.

4. The prosecution alleges that the accused (who was 67 years old) was a neighbour of the deceased (who was 89 years old) and his wife. Prior to July 2012, there had been little interaction between the parties, and there is no evidence of animosity between them. At about 1.20 pm on Sunday, 22 July 2012, the accused invited the deceased and his wife to his house. Over the period of about three and half hours that they were present, the accused consumed a large quantity of wine. He became increasingly intoxicated and antisocial. He used offensive language. When the deceased's wife objected to his language, he ordered her to leave the premises. At 5.01 pm, she did so. Very soon thereafter, the accused began to attack the deceased. At 5.06 pm, the accused telephoned 000. It is alleged that the deceased was moaning in the background. The accused asserted that the deceased had tried to attack him. At the conclusion of the call, the accused swore and threatened to kill the 000 operator. By the time that police attended at 5.26 pm, the deceased had died. A 30 cm knife with a bloodied handle was found adjacent to the accused. The accused threatened to kill the police.

5. It is alleged that the cause of death was blood loss from knife injuries to the throat that severed the deceased's left carotid artery and major veins. In addition, the deceased suffered extensive blunt force trauma to the larynx, which was allegedly caused by the accused stomping upon the deceased. There were significant post-mortem injuries.

6. At 7.05 pm the accused had a blood alcohol reading of 0.157 g of alcohol per 210 L of breath. The deceased had a blood alcohol level of 0.192 g of alcohol per 100 ml of blood.

7. At the trial, the prosecution will submit that the behaviour of the accused towards police on the evening of 22 July 2012 was that of a highly intoxicated but otherwise lucid man. The prosecution will assert that, when the accused stabbed the deceased and killed him, he knew the nature and quality of his conduct, he knew that it was wrong and he could control the conduct. His conduct was the product of alcohol-fuelled anger, not dementia.

8. The accused says that he was suffering from dementia that created a grossly disorganised state of mind and compromised executive functioning, such that he had "little understanding of what he was doing and no capacity to reflect upon or know that his actions were wrong". The accused claims that the dementia from which he suffered was associated with a change in personality and episodes of grossly disinhibited behaviour in response to minor or non-existent provocation.

9. The accused relies on a report of 26 August 2012 from Dr McMahon, a neuropsychologist, that testing revealed impaired memory and intellectual functioning and that the accused met DSM IV criteria for dementia. At page 20 of his report, Dr McMahon said:

...Mr Costa has impaired memory functioning, and this is in the severe range. This may represent a degenerative dementing process, such as in Alzheimer's Dementia, or due to some other intracranial pathology, or be purely attributable to alcohol consumption. ... Mr Costa would have suffered impairment of memory and reduced executive functioning at the material time of the alleged offence, and this may have made him prone to poor planning and judgement, dis-inhibition of behaviour [sic], and possibly delirium in the context [of] alcohol intoxication at the time of the offence.

10. The accused also relies upon a report dated 8 December 2013 from Professor Mullen, a forensic psychiatrist. He had little doubt that the accused was demented and opined that the dementing process would have been present in July 2012. Professor Mullen reported at [34]:

In my opinion, at the time of the attack on Mr Freebody, Mr Costa was in a grossly disorganised state of mind. This is evidenced by what we know of his behaviour and statements on the phone at or about the time of the attack, his incontinence, his behaviour and statements after the police arrived, and his subsequent attempts to explain away the death of Mr Freebody. That the crime was not just unmotivated, but grotesque in nature, whilst not necessarily indicating a grossly disorganised state of mind is compatible, and in my opinion suggestive of, such a state. This state would have left him little understanding of what he was doing and no capacity to reflect upon or know that his actions were wrong. The most important factor in producing this state was, in my opinion, the dementia. If he had not been dementing the alcohol would not have had such a profound effect. Similarly, the antihistamine would not of itself, or in combination with alcohol, have produced this level of mental disorganisation in the absence of dementia. A raised temperature, if it was present, would have further disturbed Mr Costa's dementing brain.

11. Section 28 of the Criminal Code 2002 (ACT) provides:

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

12. Section 33(3) relates to self-induced intoxication. It provides:

If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

13. It is anticipated that the main issues at the trial will be:

(a) Did the accused suffer from a mental impairment (dementia); has the presumption against mental impairment been displaced?

(b) If so, when intoxication is disregarded, did the impairment mean that the accused did not understand the nature and quality of his conduct and did not know that his conduct was wrong (from a reasonable person's perspective)?

14. Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (the Evidence Act), the prosecution seeks to lead evidence of six "tendency incidents" to support one or more of four alleged tendencies.

(a) A tendency to become angry after consuming alcohol.

(b) A tendency to act violently when angered.

(c) A tendency to threaten to kill when under the influence of alcohol.

(d) A tendency to form murderous ideations while intoxicated.

16. The six "tendency incidents" can be summarised as follows.

17. Incident 1. On 11 March 2009, when intoxicated, the accused became angry with his girlfriend and demanded that she leave his residence. When she re-entered, he told her to leave and threatened that, if she failed to leave, he would kill her. He grabbed her around the throat, began to choke her and then pushed her out of his house.

18. On the tendency application, the witness was required to attend for cross-examination but she did not attend, providing a short medical certificate stating that she was unfit for work.

19. Incident 2. On 29 October 2009, when the accused was refused service by a bar attendant at the National Press Club because he was too intoxicated, he became angry and threatened to kill the bar attendant and the duty manager.

20. Incident 3. On 18 January 2010, when very intoxicated, the accused approached a neighbour who was creating a noise by mowing his lawn with a ride-on mower, yelled at him, pointed his finger and (on several occasions) threatened to kill him.

21. Incident 4. Between May and July 2012, a sex worker attended the premises of the accused on about 20 occasions. On the first occasion, the accused gave her a tour of the house. During the tour, he showed her an oil stain on the garage floor and said "I've killed someone, don't worry I'm not going to kill you". Thereafter, on most visits the accused continued the joke by saying "I'm not going to kill you". On 18 July 2012, while he was intoxicated and was engaging in sexual intercourse with the sex worker, the accused placed his hands around her throat and began to squeeze. He said that he was not going to kill her because he had already got it out of his system by killing and burying a person. As a result of the rough behaviour of the accused, she received bruises to her neck, right arm and right hip.

22. Incident 5. On 10 July 2012, the accused was intoxicated. A different sex worker was at his residence. When she refused to extend her session, the demeanour of the accused changed. He started yelling at the sex worker. He told her that he had killed a woman and that no one would ever be able to find her, and then told the sex worker that he would kill her.

23. The witness was required for cross examination on the tendency application, but she could not be located and did not attend.

24. Incident 6. The accused employed a gardener, who also worked for his neighbours. The gardener knew that the accused was often intoxicated by 3 or 4 pm in the afternoon, but had observed no aggressive behaviour associated with the intoxication of the accused. However, during the 2011/2012 summer, when the gardener was using a noisy petrol-powered blower on a neighbouring property, the accused became irate, yelled at the gardener and then approached him saying "If you continue making that noise, I'm going to kill you".

25. Section 55 of the Evidence Act provides:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

26. Evidence is relevant as tendency evidence if it could support an inference that, on the occasion of the alleged offence, the accused thought or acted in the manner asserted: Gardiner v The Queen [2006] NSWCCA 190 at [124], R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] - [23].

27. If evidence is relevant, it is admissible pursuant to s 56 of the Evidence Act unless another provision of the Evidence Act renders it inadmissible.

28. Sections 97 and 101 are such provisions. They provide:

(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 -

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

101 Further restrictions on tendency evidence presented by prosecution

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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. (emphasis added)

29. "Probative value" is defined in the Dictionary to the Evidence Act as follows:

"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. (emphasis added)

30. In considering an application to adduce tendency evidence, the Court must address the following matters:

(a) Could the jury conclude that the evidence shows the alleged tendency?

(b) What are the relevant disputed facts, the assessment of which could rationally be affected by the tendency evidence?

(c) Does the tendency evidence have significant probative value; to what extent could the tendency evidence rationally support the existence of the disputed facts?

(d) Does the probative value of the tendency evidence substantially outweigh any prejudicial affect?

Is the evidence capable of showing the alleged tendency?

31. There is little doubt that each tendency incident is capable of showing alleged tendencies (a) (tendency to become angry after consuming alcohol), (b) (tendency to act violently when angered), and/or (c) (tendency to threaten to kill when under the influence of alcohol).

32. Whether, in the absence of other evidence (for example expert evidence) any or all of the tendency incidents are capable of showing alleged tendency (d) (tendency to form murderous ideations while intoxicated) is another matter. However, for the purposes of this application, the Court will assume that the incidents are capable of showing alleged tendency (d).

33. The next inquiry is to identify the purpose for which tendency evidence is advanced: Gardiner at [124], Cittadini at [20]. What is the relevant disputed fact or facts to which the tendency evidence goes?

34. In this case, the prosecution submits that the tendency incidents go to one or more of the following facts in issue:

(a) The state of mind of the accused at the time of the stabbing.

(b) The knowledge of the accused about what he was doing.

(c) The knowledge of the accused that his conduct was wrong.

35. The prosecution identifies the key fact at issue as whether, at the time of the killing, the accused had a grossly disorganised mind (fact in issue (a)). Facts in issue (b) and (c) are largely caught up in (a).

36. The prosecution says that the tendency incidents show that the threats to kill that were made to police on 22 July 2012 were not unusual behaviour by the accused; they were part of his normal parlance when drunk (a threat to kill was a typical "throwaway line"), and did not evidence an otherwise impaired mind (as suggested by Professor Mullen). In other words, the tendency incidents show a tendency to make grandiose threats to kill when drunk, threats which were not acted upon.

37. Paradoxically, the prosecution also says that the tendency incidents show a much more sinister tendency; a tendency when intoxicated to become angry and violent, to threaten to kill and to form "murderous ideations". The prosecution seeks to rely on such a tendency (or series of tendencies) as one circumstance that supports the argument that will be put at trial that, when the accused was intoxicated on 22 July 2012, he became angry because of the exchanges with the deceased's wife and the 000 operator, causing him to form "murderous ideations" to which he then gave effect by killing the deceased.

Does the tendency evidence have significant probative value?

38. Evidence has some relevance if it "could" rationally affect the assessment of the probability of the existence of a fact in issue; if it would be open to the tribunal of fact to rely on the evidence when determining the existence of a fact in issue.

39. The inquiry about probative value is related; it asks about the extent to which the evidence could bear upon the existence of a fact in issue: Saoud v The Queen [2014] NSWCCA 136. The probative value of evidence is its degree of relevance to a fact in issue: R v Lockyer (1996) 89 A Crim R 457 at 459 per Hunt CJ at CL.

40. In order to be admissible, tendency evidence must have "significant" probative value, that is, it must be capable of bearing upon a fact in issue to a significant extent. In R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 at [33] Simpson J (with whom McClellan CJ at CL and Grove J agreed) said:

..."probative value" is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution. (emphasis in original)

41. In Stephen Odgers SC on Uniform Evidence Law, at pages 477 - 478, the author suggests that the following matters may inform an assessment of the strength (significance) of a tendency inference:

(a) The number of occasions of particular conduct relied upon.

(b) The time gaps between them.

(c) The degree of specificity/generality (ordinariness) of the conduct/alleged tendency; whether it is distinctive or unusual.

(d) The degree of similarity between the conduct on the various occasions (including the conduct sought improved).

(e) The degree of similarity between the circumstances of the conduct.

42. These are not individual tests to be satisfied before tendency evidence is admitted. For example, it is not necessary for there to be a high degree of similarity between the tendency conduct and the crime charged: R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 per Campbell JA at [38], [43]. Nor is it necessary that the tendency conduct has manifested itself on many occasions: Ford per Campbell JA at [45]. However, both are matters that may inform the question of whether particular tendency evidence has significant probative value.

43. In this case the question is: To what extent could each tendency incident (if accepted) assist the jury to decide the state of mind of the accused on 22 July 2012 (whether he was demented/angry and intoxicated)?

Does the probative value of the evidence substantially outweigh the prejudicial effect?

44. As well as being significant, the probative value of the evidence must substantially outweigh any prejudicial effect. Evidence is prejudicial only where there is a real risk that the jury will use the evidence in an unfair way, for example by giving it more weight than it deserves or becoming diverted by the inflammatory content of the evidence: Festa v The Queen (2001) 208 CLR 593 per McHugh J at [51].

45. In this case, the following prejudice has been identified by the accused:

(a) If evidence is led to show that the accused employed sex workers, then the jury may develop a bias against him, reasoning that he is a person of questionable morality. The incidents that do not involve sex workers also suggest that the accused has an unpleasant personality.

(b) The jury may erroneously reason that a tendency to say "I will kill you" is one step removed from a tendency to commit murder, when there is no evidence to support such a proposition. For example, there is no expert evidence to the effect that people who say "I will kill you" (even the subset who form "murderous ideations") are likely to carry out the threat and proceed to murder.

(c) Confusion will be caused by the prosecution's attempt to rely upon the tendency incidents to support two contradictory tendencies: a tendency to make "throwaway" threats to kill, and a tendency to form "murderous ideations" from which actual murder may flow.

Consideration of admissibility of each incident

46. This incident occurred more than three years before 22 July 2012. It occurred in a different context; one involving a domestic relationship. It shows that, in March 2009, the accused was capable of becoming angry and violent when intoxicated. Unfortunately, this is not an uncommon occurrence in the population. But because of the time between the incident and the alleged offence and the difference in circumstances, the incident has little capacity to assist the jury to decide the state of mind of the accused on 22 July 2012. It lacks significant probative value.

47. Further, admission of the evidence would have a prejudicial effect. It suggests that the accused has an unpleasant personality and a propensity to domestic violence. In addition, a jury may confuse the conditional threat that was made during this incident ("I will kill you if you don't leave") with an unconditional threat. The probative value of the evidence does not substantially outweigh any prejudicial effect.

48. This incident occurred almost three years prior to 22 July 2012 in a context that was quite different to that the subject of the proceedings. The incident did not proceed to actual violence.

49. Having regard to the time gap and the context in which the incident occurred, as well as the important feature that it did not proceed to actual violence, the incident lacks significant probative value.

50. Further, any probative value does not substantially outweigh the prejudicial effect caused by the three prejudicial factors referred to above.

51. For the reasons that apply to incident 2, this incident lacks significant probative value and its probative value does not substantially outweigh any prejudicial effect.

52. Tendency incidents 4 and 5 occurred in May - July 2012, shortly before the alleged offence. As dementia is a progressive disease and the accused was intoxicated on all three relevant occasions, it is unlikely that incidents 4 and 5 could be significantly probative of whether the state of mind of the accused on 22 July 2012 was related to intoxication or dementia. If he was affected by dementia on 22 July 2012, he would also have been affected by dementia at the time of incidents 4 and 5, and vice versa.

53. In relation to incident 4, on about 20 occasions the accused told the sex worker "I'm not going to kill you". On only one occasion did he behave violently, and that was in the context of "rough sex", a very different context from that in which the alleged offence occurred.

54. The probative value of the incidents is not significant.

55. Further, significant prejudice is associated with the incidents. Evidence of the involvement of the accused with sex workers may cause the jury to reason that he is a person of questionable morality. The engagement in "rough sex" by the accused would very likely alienate jurors. The statements by the accused that he had killed a woman are highly prejudicial. Any probative value of the incidents does not substantially outweigh the prejudicial effect.

56. Although this incident was reasonably proximate to the alleged offence (it occurred during the preceding summer), the other observations in relation to incident 2 apply. The incident lacks significant probative value and any probative value is outweighed by the prejudicial effect.

57. Even if the incidents are taken as a whole, they go no further than demonstrating a tendency of the accused to become angry when intoxicated and to freely say things such as "I'm going to kill you" or "I'm not going to kill you". Such a tendency is in not uncommon. It is not significantly probative of the facts at issue in the proceedings. Further, the admission of evidence of the tendency incidents would be significantly prejudicial for the reasons set out in [46]-[56] above, and any probative value would not outweigh the prejudicial effect.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

R v Costa (No 1) [2015] ACTSC 63 (13 March 2015)

R v Costa

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R v Costa (No 1) [2015] ACTSC 63 (13 March 2015)