R v Davidson

The evidence

1. So that the precise portion of the agreed facts that were before Judge Haesler SC that is put forward as tendency evidence can be properly understood, it is necessary to say something of the facts that took place prior to those facts.
2. On 29 January 2017 the accused went to the ALDI store in Albion Park Rail. He was carrying an aluminium baseball bat. He approached a woman working the checkout at register 5 and struck her with full force on her head using the baseball bat. She fell to the floor unconscious. The accused proceeded to kick her whilst she was on the ground in an attempt to get closer to the register.
3. A number of persons sought to confront the accused including a staff member who jumped on the accused's back and put his arms around the accused's neck and chest. The accused swung the baseball bat at that staff member and struck him on the back of the head three or four times.
4. Ultimately the accused was restrained and, after the police arrived, he was arrested and taken to Lake Illawarra Police Station. Whilst there he assaulted a police officer.
5. The facts relied upon by the Crown in the present application from the agreed facts are these: 14. After being processed at Lake lllawarra Police Station, the offender was admitted on remand to the MRRC. On 1st February 2017, the offender was placed in 'two out cell', being a cell that accommodates two inmates to a room. Inmate Jamie Robin (23 years old) was also moved into this cell with the offender. When Mr Robin was placed in the cell, the offender was awake and laying on the bottom bunk. Mr Robin laid on the top bunk. 15. Mr Robin saw the offender begin to pace back and forth in the cell and take off his green short sleeved shirt. About 30 mins after being in the cell, food was delivered to the cell for Robin and the offender. Mr Robin hopped down from the top bunk and grabbed his food. As he climbed back onto the top bunk the offender pulled his t-shirt around Mr Robin's throat and pulled him backwards. Once on the ground, the offender continued to choke the victim, rendering him unconscious. 16. Corrective Services Officer Lloyd heard noises coming from the offender's cell and looked through the cell door flap. The offender was repeatedly kicking the victim to the back whilst on the ground. Whilst kicking the victim, the offender continued to pull on a green t-shirt that was wrapped around Robin's neck. CSO Lloyd called for medical response on radio and yelled at the offender to get off the victim. The offender yelled to Lloyd, "Come in here". CSO Lloyd attempted to open the cell door to remove the offender however the offender was aggressive and CSO Lloyd closed the door. The Immediate Action Team (IAT) was called. The offender went back to choking the victim with his t-shirt and continued to kick the victim in the back of the head. CSO Lloyd continued to direct the offender to get away from the victim and come to the door without success. 17. At this time, IAT were on the scene and entered the cell and removed the offender. The victim was unconscious and attended to by nursing staff. He was taken to hospital by ambulance. Upon examination at Westmead Hospital the victim was observed to have suffered petechiae marks to his face and red marks to his neck. A CT scan revealed no further injuries and he was discharged back to the correctional facility later that evening.
6. The Crown also relies on certain remarks of Judge Haesler including that at the time he was arrested he appeared to be drug affected. Judge Haesler also referred to an examination by a forensic psychiatrist, Professor Greenberg, who examined the accused after he was returned to custody. Judge Haesler noted that Professor Greenberg had concluded that the accused had an amphetamine-induced psychosis in partial remission, poly-substance abuse disorder and personality disorder with antisocial features. Professor Greenberg concluded that the accused's further abuse of alcohol and other illicit substances, such as crystal methamphetamine, was likely to exacerbate his personality problems and potentially precipitate further episodes of psychosis.
7. Judge Haesler made reference to the accused's dysfunctional upbringing and his early and ongoing exposure to violence and alcohol and drug abuse which, his Honour said, had resulted in significant and chronic problems. His Honour went on to say that these factors provided a compelling explanation for the accused's continuing addiction problems and ongoing involvement in criminal offences. His Honour found that the offences could not be divorced from his significant mental and cognitive difficulties. He found that there was a causal relationship between his drug use, his psychosis and the offending.

Submissions

1. In support of its application to lead the evidence, the Crown submitted that the tendency evidence established a tendency on the part of the accused to have a particular state of mind, namely an intention to kill or inflict really serious injury on someone staying in close proximity to him, and to act on that particular state of mind by choking them; that is, to be able to form the intention to act despite any effects of mental illness or self-induced intoxication.
2. The Crown submitted that the significant probative value of the tendency evidence lay in its capacity to make it more likely that: (a) The accused was the person that committed the act of violence that caused the death of the deceased on 9 February 2018; (b) The accused knew the nature and quality of the act he was doing and that he knew what he was doing was wrong; (c) The accused had the capacity to understand events, was able to judge that his actions were wrong and had the capacity to control himself; (d) The accused had the intention to kill or to inflict really serious injury, despite any effects of intoxication.
3. The Crown submitted that although the accused did not necessarily dispute that he was responsible for causing the death of the deceased, the matter was complicated by his reported lack of memory of the incident. In that way there was significant probative value in the tendency evidence to prove that the accused was responsible for the act that caused the deceased's death.
4. The Crown submitted that the evidence has significant probative value because it has the capacity to affect the assessment of the probability of the accused knowing the nature and quality of the act he was doing and that what he was doing was wrong, that he had the capacity to control himself and that he had the intention to kill or to inflict really serious injury despite any effects of intoxication.
5. The Crown pointed to the significant similarities between the present offending and the choking incident in prison. The Crown noted that the accused was intoxicated by methamphetamine in both cases and, that the victim was alone in a cell when they were attacked; that the accused used a t-shirt or something similar or his forearm to choke the victim, and that there was no other interaction between the accused and the victim prior to the attack in each case.
6. The accused did not press the objection that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect. The accused based his opposition only on the basis that the tendency evidence did not have significant probative value.
7. The accused submitted that, of the material sought to be put in evidence by the Crown, only the offence of intentionally choke contrary to s 37(1) of Crimes Act 1900 (NSW) would have any possible probative value. In the same way, the accused submitted that only the material contained in paragraphs 8, 9 and 14 of Judge Haesler's Remarks on Sentence could constitute tendency evidence. Those paragraphs were as follows: 8. Davidson was remanded in custody and sent to the MRRC, Silverwater. On 1 February 2017 he was placed 'two out" in a cell with Jamie Robin. Mr Robin noticed Davidson was pacing up and down. Davidson took off his t-shirt. Meals were delivered. As Mr Robin collected his meal Davidson put the T-shirt around his neck and choked him until he fell unconscious to the ground. He then kicked him while pulling on the T-shirt. A Corrective Services Officer heard a noise and looked into the cell. He tried to get into the cell but Davidson was too aggressive. The cell was locked while he got support from an Immediate Action Team (IAT) and medical help. Davidson continued his attack on Mr Robin until the IAT arrived and removed him from the cell. 9. Mr Robin was taken, still unconscious, to Westmead Hospital. He was examined and soon after returned to custody. Apart from marks on his neck and facial petechiae no medical follow up was required. Facial petechiae are burst blood vessels indicative of strangulation. … 14. Mr Robin was vulnerable to attack because he was locked in a cell with Davidson. He had nowhere to go and security concerns meant help took time getting to him. He was choked into unconsciousness placing him at considerable risk. The attack continued for some time. It did not stop until specialist Corrective Services staff intervened. He then had to return to gaol having first-hand knowledge that his safety could not be guaranteed. These circumstances call for a substantial custodial penalty.
8. The accused submitted, however, that the facts disclosed only one such previous occasion of similar offending and in that way could not be said to give rise to a tendency. Reference was made to the decision of RHB v R [2011] VSCA 295 at [18]-[22].

Determination

1. Section 97(1) of the Evidence Act provides: 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. The Dictionary defines probative value when speaking of evidence as meaning, the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
3. In Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52, the plurality said at [40]: [40] … The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. [41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
4. There are two matters that the Crown seeks to prove with the assistance of the tendency evidence. The first is that it was the accused who committed the act of choking the deceased. The second is that he did it with the intention of at least inflicting really serious injury. On the second aspect, the Crown seeks to prove that, notwithstanding the accused's known mental health issues and the fact that he at least asserts that he was intoxicated with methamphetamine and Xanax, he nevertheless was able to form the requisite intent.
5. In my opinion, the fact that he had previously attempted to choke or strangle another inmate whilst the accused was under the influence of methamphetamine, does not say anything about his intention to commit the present act. It seems to me to be question begging to assert that because he has done a similar act before when similarly intoxicated, that demonstrates knowledge on his part of what he was doing and his intention to do it. That is a matter which can only be determined ultimately with the assistance of the expert evidence of professionals who examined him on each occasion. Moreover, even if the professionals determined that on the earlier occasion he had the requisite intention, that in itself says nothing to help resolve the same issue on the present occasion.
6. In my opinion, the Crown cannot adduce the evidence for the purpose of demonstrating the accused's intention.
7. The somewhat more difficult question is whether the Crown can adduce the evidence to show that the accused committed the act regardless of his intention or state of knowledge. The principal problem is that there is only the one prior occasion. However, as noted earlier, the Crown points to the striking similarity between the two offences.
8. In Hughes the plurality said at [64]: The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment. (emphasis added)
9. However, the highlighted sentence in that extract is directed to the significance of the probative value of what has already been established as a tendency. So much is clear by the first two sentences of that paragraph.
10. Nevertheless, in some cases a tendency itself may be able to be established by reason of the unusual nature of the activity or offending about which it is sought to adduce similar evidence. That can be gleaned by what was said by Nettle JA (with whom Harper JA agreed) in RHB at [18]. Justice Nettle identified a number of unusual features of the offending that were also demonstrated in the evidence sought to be led as tendency evidence. In answer to a defence submission that the approach was unduly wide because it would mean that whenever someone in the applicant's position committed a sexual offence against a female relative, evidence of that would be admissible if he were ever charged with another sexual offence, Nettle JA said the submission was based on a false premise. His Honour went on to say at [20]: In this case, there was not just one previous occasion when the applicant offended, but three. His Honour also said at [22]: It does follow from the fact that, because in this case there are three occasions of prior offending which are regarded as relevant to and probative of the charged act, in another case one previous act of offending would be regarded as relevant and probative of the act which is charged in that case.
11. Section 97 of the Evidence Act is headed "The tendency rule". The section is concerned with evidence of the "character, reputation or conduct of a person, or a tendency that a person has or had". Whilst it would not be impossible to say that a person has a tendency to act in a particular way because they have done it once before, that would be the exception rather than the rule. Like the other nouns referred to, "tendency" suggests something that a person has by reason of repetition. As I have said and as RHB appears to recognise, very unusual similar facts might, in rare cases, constitute a tendency.
12. I do not consider that the facts of the present offending are so unusual that it could be said that a similar offence committed 12 months earlier demonstrated a tendency. True it is that both victims were inmates but that was not unexpected because the accused has spent most of his adult life in custody. The fact that each of the victims were in a cell by themselves apart from the accused is scarcely unusual because the accused would have been less likely perform the act if other people were present. The fact that on both occasions the accused had consumed methamphetamine beforehand is not unusual inasmuch as he had been using that drug for a lengthy period of time. There is nothing in the facts to suggest that he consumed it in order to carry out the act; it was simply that the act was carried out during a time that he was so intoxicated. As to the method of strangling, whilst a T-shirt was used in the 2017 offence, it is unclear whether in the present offending (as the Crown appeared to acknowledge) a T-shirt or something similar was used, or whether it was the accused's forearm.
13. There is a further difficulty, at least insofar as the Crown relies on the Remarks of Judge Haesler. The Crown seeks to rely on those Remarks, seemingly for his Honour's findings about the accused's drug use and its relationship with his offending. Section 91 of the Evidence Act provides: Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. The Crown seeks to use findings of fact of Judge Haesler to prove the existence of a fact in the present trial, namely, that the accused carried out the offending and did so with the intention of causing really serious injury or death to the deceased. That is what s 91 precludes.
14. In my opinion, the evidence sought to be tendered by the Crown for the purpose of demonstrating that the accused carried out the act in relation to the deceased is not tendency evidence.
15. I do not think that anything said by the High Court in R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 at [50] is authority to the contrary. What the High Court was speaking of there was the admissibility of evidence in the situation where there is evidence of uncharged acts in sexual matters, frequently involving children. That is a different situation as the judgment makes clear at [48] where the uncharged acts: May be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM [IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14] or exhibit a special, particular or unusual feature of the kind described in Hughes.

Context evidence

1. The evidence sought to be adduced as context evidence consisted of the following: (a) The agreed facts on sentence before Judge Haesler SC; (b) The statement of Jamie Robin (the victim in the earlier choking offence); (c) The statement of Robert Lloyd (the prison officer who discovered the accused attempting to choke the earlier victim); (d) The statement and photographs of Senior Constable Daniel Warner (who investigated the earlier choking offence); (e) Notification of review of revocation of parole and the breach of parole report; (f) The report of Professor Greenberg (who examined the accused after the earlier offences); (g) The report of the psychologist, Ms Emma Hubner (who prepared a report for the sentence proceedings before Judge Haesler SC); (h) Justice Health records from 30 January 2017; and (i) The telephone call from the accused to his mother from custody on 7 February 2017 (a week after the earlier offending).
2. The Crown submitted that the evidence should be admitted, in the alternative, as context evidence. The Crown put the matter in the following ways: a. Evidence of the earlier incident provides context as to why the accused was an inmate at MRRC and further, why he was in a cell by himself rather than being with another cellmate; b. The evidence of the earlier incident and associated sentence proceedings is relevant as to the movements of the accused around the time of the murder (that is, that he was due to appear at court for sentencing on the day before the murder); c. The evidence of the earlier incident demonstrates that the accused is physically capable of committing the act; d. The evidence of the accused's drug use at the time of the earlier incident provides circumstantial evidence of the extent of the accused's drug use and the impact of the use of drugs on the accused; e. The evidence of Dr Greenberg provides an assessment of the accused proximate to the earlier incident but relevantly, in circumstances where the accused was said to have been drug affected at the time but subsequently receiving treatment; f. The evidence of Ms Hubner provides an assessment of the accused proximate to the murder (but referable to the earlier incident); g. The Justice Health records provide evidence of assessment and diagnosis of the accused and provide evidence of the accused's state of mind in the 12 months leading up to the murder; h. The telephone call is relevant as it provides evidence of the accused's state of mind. In addition, it contains what may be considered to be admissions. That is, the accused states, 'I'm going to knock the next person they put me in, in with mum. I'm going to kill 'em I'm going to do 25 years'. The admission is relevant to the defences as raised by the defence. i. The evidence generally is relevant to the opinions of both Dr Adam Martin and Dr Olav Nielsen [sic]. The earlier incident and Justice Health records are referred to by both expert witnesses.
3. The accused submitted that context evidence is not necessary in the present case, particularly as this is a judge alone trial. The accused would rely on ss 135 and 137 of the Evidence Act on the basis that the evidence really amounts to evidence of bad character.
4. The circumstances of the present offending make clear why it was necessary for the present trial to be a judge alone trial. There is no doubt that there would have been prejudice to the accused if a jury was empanelled. It is not necessary to decide whether that prejudice would have been significant.
5. I do not consider that the main issue in relation to context evidence is one of prejudice. There must be some considerable doubt that the accused is prejudiced simply because I am aware of this information, whether it is admitted or not, in a judge alone trial. This was a matter discussed by Johnson J in R v Droudis (No. 13) [2016] NSWSC 1350 at [78]-[95]. That approach has been followed by Hamill J in R v Qaumi & Qaumi [2016] NSWSC 1473 at [51] and R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487 at [37].
6. The real issue is whether the evidence has probative value.
7. Context evidence usually arises in cases involving sexual offending, most frequently in relation to children. In some cases it may in fact be relationship evidence but in other cases it may be similar to relationship evidence.
8. In DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, McClellan CJ at CL (Hidden and Fullerton JJ agreeing) said at [28]: Whatever be the position under the common law, the accepted position in New South Wales is that evidence of "relationship" may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act: Qualtieri; R v AH (1997) 42 NSWLR 702; R v Fraser (NSWCCA, unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the "context" in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above [in HML v R (2008) 235 CLR 334; [2008] HCA 16]. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the "context" in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence.
9. In ES v R (No.1) [2010] NSWCCA 197 Hodgson JA (with whom Whealy and Buddin JJ agreed) said at [41]: Context evidence can have probative value in various ways, such as to show that the alleged offences were not isolated incidents, and thus to explain lack of surprise or resistance or complaint by the complainant, or explain why the accused was confident enough to do the act.
10. In determining whether the evidence has any probative value, the question that can be asked is whether there is a need to explain any aspect of the present offending by the admission of the evidence. Accordingly, it is necessary to consider briefly each of the matters for which it is asserted by the Crown that context needs to be given.

(a) Evidence of the earlier incident provides context as to why the accused was an inmate at MRRC and further, why he was in a cell by himself rather than being with another cellmate.

1. There is no need to explain why the accused was an inmate at MRRC. He was an inmate and it was in the gaol environment that the index offence was committed. The fact that he was in a cell by himself, presumably because of the choking incident in 2017, provides no context to the index offence where the accused went into another cell and attacked the deceased.

(b) The evidence of the earlier incident and associated sentence proceedings is relevant as to the movements of the accused around the time of the murder (that is, that he was due to appear at court for sentencing on the day before the murder).

1. Whether or not the accused was due to appear at Court for sentencing on the day before the murder is not shown to be relevant. There is no evidence suggesting a connection between the two events.

(c) The evidence of the earlier incident demonstrates that the accused is physically capable of committing the act.

1. The physical capability of the accused committing the act does not appear to be an issue.

(d) The evidence of the accused's drug use at the time of the earlier incident provides circumstantial evidence of the extent of the accused's drug use and the impact of the use of drugs on the accused.

1. The evidence concerning the accused's drug use appears in the medical reports of Dr Nielssen and Dr Martin.

(e) The evidence of Dr Greenberg provides an assessment of the accused proximate to the earlier incident but relevantly, in circumstances where the accused was said to have been drug affected at the time but subsequently receiving treatment.

(f) The evidence of Ms Hubner provides an assessment of the accused proximate to the murder (but referable to the earlier incident).

(g) The Justice Health records provide evidence of assessment and diagnosis of the accused and provide evidence of the accused's state of mind in the 12 months leading up to the murder.

(i) The evidence generally is relevant to the opinions of both Dr Adam Martin and Dr Olav Nielssen. The earlier incident and Justice Health records are referred to by both expert witnesses.

1. The report of Dr Greenberg is referred to in the reports of Dr Nielssen and Dr Martin. It, together with the report of Ms Hubner and the Justice Health records would appear to me to be relevant when considering the defence of mental illness and substantial impairment, and for providing some detail concerning the extent of the drug use of the accused.
2. The material referred to in these paragraphs is scarcely context evidence. It is simply admissible evidence relevant to the principal issues at this trial (referred to at [4] above). I would, subject to any other specific objections to it, admit this material generally, and not in any limited fashion as context evidence.

(h) The telephone call is relevant as it provides evidence of the accused's state of mind. In addition, it contains what may be considered to be admissions. That is, the accused states, 'I'm going to knock the next person they put me in, in with mum. I'm going to kill 'em I'm going to do 25 years'. The admission is relevant to the defences as raised by the defence.

1. This telephone conversation on 7 February 2017 occurred shortly after the earlier choking incident, some 12 months prior to the index offence. The accused was not put in the deceased's cell; as far as is known, he was in a cell by himself since the February 2017 incident.
2. If the call is sought to be used as evidence of intention, or self-knowledge of what the accused did in February 2018, it fails to take into account his mental state and drug consumption on the day of the 2018 offending. It is also very difficult to accept that a statement of intention made 12 months earlier in such general terms could have any probative value.
3. The telephone call is not context evidence.

Conclusion

1. The Crown's application to lead the evidence as tendency evidence is rejected. The Crown's application to lead the evidence as context evidence is rejected without prejudice to the right of the Crown to tender the reports of Professor Greenberg, Ms Emma Hubner and the Justice Health records.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2019