Solicitors:
Solicitor for Public Prosecutions
Aboriginal Legal Service
File Number(s): 2014/102198
[2]
Judgment
HIS HONOUR: On 1 February 2016 I heard submissions on the objection by the accused to the Crown's proposal to adduce tendency and coincidence evidence. On 4 February I ruled that the evidence was inadmissible. The following are the reasons for that ruling.
[3]
Overview of prosecution case
The accused, Anthony Richard Dent, was charged with the murder of Anthony O'Grady at Wickham, an inner city suburb of Newcastle, on or about 25 March 2014. He was also charged with robbery in company inflicting grievous bodily harm upon Mr O'Grady. Both charges arose from the one incident.
Briefly, the Crown alleges that Mr Dent, in a joint criminal enterprise with his co-accused RC and JM, and one Jeffrey Schott, committed a planned robbery of Mr O'Grady in the course of which Mr Dent seriously assaulted him causing fatal blunt force trauma. Mr O'Grady was a 52 year-old man who was known to have wealth. In the late afternoon of 25 March 2014 a plan was discussed between the four men to entice Mr O'Grady to go to Wickham Park where he would be robbed.
The Crown alleges that once Mr O'Grady was in the park, the accused Dent struck him causing him to fall to the ground. Mr Dent hit him further and then started to take his pants off. He removed Mr O'Grady's underwear and used it to gag him. Rope was used to bind his hands to his feet behind him. The Crown alleges that Mr Dent removed Mr O'Grady's house and car keys from his pockets and threw them to JM, telling him to go to Mr O'Grady's house and take his car and belongings. JM, RC and Schott then left the park.
Sometime later Mr Dent went to an ATM where he attempted unsuccessfully to withdraw funds from Mr O'Grady's bank account. Subsequent telephone contact indicated that Mr Dent intended to return to the park to obtain Mr O'Grady's correct PIN. Sometime after that, Mr Dent communicated by telephone to the effect that Mr O'Grady was "gone".
Mr O'Grady's body was discovered in the park the following morning and a police investigation commenced. The accused Dent was arrested on 21 April 2014. He made no admissions. DNA consistent with being his was found inside one of Mr O'Grady's pockets, on his underpants, on rope that was used to bind him and on the waist band of his shorts.
The autopsy examination revealed that Mr O'Grady sustained a large number of injuries. They included:
1. Marked facial congestion with poorly defined areas of facial bruising.
2. Intra-oral bruising with laceration at left angle of mouth.
3. Scalp haemorrhage on right forehead and left temporal region.
4. Acute right subdural haematoma.
5. Multiple areas of circular bruising on right and left upper limbs (fingertip bruises).
The immediate cause of death was a large acute right subdural haematoma. There was evidence of bruising to the scalp and face, indicative of blunt force trauma. The pathologist opined that the deceased likely suffered a number of blows to the face and head. The presence of a gag in the mouth was likely to have caused a degree of asphyxiation contributing to death. Being bound and lying face down would have further restricted his capacity to breath.
[4]
The proposed tendency and coincidence evidence
The Crown gave notice of its intention to adduce tendency and coincidence evidence pursuant to ss 97 and 98 respectively of the Evidence Act 1995 (NSW) ("the Act").
Section 97, relevantly, is in the following terms:
"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.
…"
Section 98, relevantly, is in the following terms:
"98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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.
Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
…"
The provisions of s 101 are important:
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. …
The Crown gave notice in writing of its intention to adduce the evidence by letters to the accused's solicitor of 24 November 2015. No issue was raised as to the reasonableness of such notice, or with the sufficiency of compliance with the provisions of cls 5 and 6 respectively of the Evidence Regulation 2015 (NSW).
The tendency of the accused that the Crown sought to prove is:
"his/her [sic] tendency to act in a particular way, namely
● to assault males
● to inflict serious injuries upon those males
● to take property from those males
● to do so in and around public parks in Mayfield
or to have a particular state of mind, namely
● To intentionally inflict grievous bodily harm upon others".
The "2 or more events" the subject of the coincidence issue are said to be:
"Anthony Richard Dent assaulting Ronald Hamilton and Allan Charles Sichter thereby inflicting fatal injuries to them, and taking property from them, near Passmore Oval Mayfield on 20 October 1977"
and
"Anthony Richard Dent assaulting Anthony O'Grady inflicting fatal injuries and taking property from him near Passmore Oval Mayfield on 25 March 2014".
The coincidence evidence was tendered to prove that the accused Dent:
"(D)id a particular act, namely
● Did assault Anthony O'Grady with an intention of inflicting grievous bodily harm on 25 March 2014
● Did rob Anthony O'Grady of property on 25 March 2014
or had a particular state of mind, namely
● To assault Anthony O'Grady with an intention of at least inflicting grievous bodily harm."
The substance of the evidence in each case was that on the evening of 20 October 1977 Mr Dent, then 17 years of age, assaulted two men near Passmore Oval at Wickham and took $50 off them. The evidence comprises admissions he made to this effect to some young men at a pool hall at about 10.30pm on 20 October 1977: for example, "I just bashed an old drunkie and I got fifty dollars off him … I went up and bashed another two [sic]". He was seen to be in possession of cash amounting to, or approximating, $50. He was breathing heavily as if he had been running and was rubbing his hand, complaining of having a sore knuckle.
The men to whom these admissions were made went to the scene and came across the two victims who were apparently dead. When the accused was told of their observations he said that he did not believe them.
Following his arrest the next afternoon the accused made admissions to police of having been in a fight with two men he had chanced upon but he claimed that they had accosted him and he acted in self-defence. One of the men had his pants down but that was because he had been masturbating. The fight was "a very hard one" and he fought back "heavily". He claimed that the men were alive when he left them each lying on the ground. He had only used his fists and did not strike them after they went to the ground. He admitted having been in possession of about $50 that evening but claimed that it was the proceeds of his social security benefits.
At the hearing of the application the Crown tendered the report of the post-mortem examination of the bodies of the two deceased. It is clear that they sustained substantial and widespread injuries. Mr Hamilton's cause of death was "haemorrhage due to traumatic rupture of the heart" and "multiple skeletal fractures" (for example, it appeared his chest wall had been trodden on or more likely jumped on and virtually all ribs were fractured). Mr Sichter's cause of death was "fractured neck and larynx" and "internal haemorrhage" with the pathologist's opinion being that "considerable force" was used.
The Crown also tendered the accused's criminal record which shows that he was convicted for the murder of the two men, thereby indicating that his claim to police that he was acting in self-defence must have failed (if it was relied upon) and also that it must have been established that he had an intention (at least) to inflict grievous bodily harm.
[5]
Submissions
The learned Crown Prosecutor sought to identify a number of similarities between the events in Wickham Park in 1977 and in 2014. The deceased in 2014 was found within 50 metres of where the bodies of the two men were found in 1977. Both incidents occurred at about 8.00pm. Each victim was known to be a person who drank a great deal and they were all aged in their fifties. Both cases involved a considerable deal of unarmed violence. All three men were left alive but died because of their injuries. The motive to rob in each case was to obtain money. It was also asserted to be of significance that it was the accused's idea to lure Mr O'Grady to Wickham Park, the very place where he had murdered before.
As to the lengthy period intervening between the two events (37 years), the Crown Prosecutor sought to distinguish R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 where it was held that events that occurred 15 years previously that bore some similarity with the events in question were not admissible as tendency and coincidence evidence. The intervening period in which there had been no similar conduct was regarded as of significance in diminishing the probative value of tendency evidence. The basis of the distinction was said to be that for most of the intervening period in the present case the accused had been in custody serving various sentences of imprisonment.
For the reason that homicide is a crime of comparative rarity (tendency evidence is most often tendered in trials for more commonly encountered crimes like sexual assault) it was submitted that the similarities between the two events enhanced the probative value of the evidence: "the tendency to erupt violently and to kill perhaps unsuspecting victims in an outburst of violence with only the weapon of his own body, his hands and knees and feet, this is a tendency which must be regarded as extremely unusual in the community, even among those who commit homicide".
As to the possible prejudicial effect, it was acknowledged that "a jury would then come to know that the accused has killed before" but it was submitted that "the only way that a jury would be able to use that evidence is as evidence that the accused has a tendency to act that way in those circumstances and that he is likely to have acted that way in similar circumstances regardless of them having happened so many years later".
The primary submission of Mr Austin, counsel for the accused, was that the time that had elapsed since 1977 robbed the evidence of having any, or at least significant, probative value. The majority of his submissions were devoted to speculation about what might be the position if one or both of the accused's then co-accused were to give evidence, either in their own defence or if they were to plead guilty and give evidence for the prosecution. I determined upon my ruling at a time when that situation was still somewhat up in the air and it played no part in my reasoning. As it happened, both of them have become prosecution witnesses but this has no bearing upon the question in any event.
[6]
Determination
The recent judgment in Hughes v R [2015] NSWCCA 330 provides a useful summary of the case law on the subject of tendency evidence (at [158] ff) and I had regard to the various principles set out therein.
In assessing the potential probative value of the evidence it is necessary to bear in mind that the purpose for which the Crown seeks to adduce it is to provide a foundation for an inference that the accused was more likely to act in a particular way, or to have a particular state of mind, on the occasion in question.
Assuming the evidence concerning the events in 1977 was accepted by the jury, how confidently could the inference be drawn from it that the accused had a tendency to assault males in and around public parks in Mayfield, inflicting serious injuries upon, and taking property from, them? Similarly, how confidently could the inference be drawn from it that the accused had a tendency to intend to inflict grievous bodily harm upon others?
In my view the answer is that the support for such inferences is not very strong at all. On the limited evidence that the Crown proposes to place before the jury (the criminal record is not to be tendered), it would be known that the accused acted in an extremely violent way towards two men and intended to inflict at least grievous bodily harm upon them in 1977 when he was a 17 year old youth. The jury would infer that the accused probably spent some time in gaol but they would not know anything about what he had done in the balance of the intervening period except that the Crown was not suggesting that he had been involved in any violent conduct in gaol or subsequently.
Whilst there are some similarities between the two incidents as the Crown Prosecutor identified, the number, nature and distinctiveness of similarities are not determinative. What is in issue is the capacity of the evidence to establish that the accused had a tendency to act in a particular way, or to have a state of mind. The Crown case here is that the accused acted in a particular way, and had a particular state of mind, on a single occasion and it is contended that this would establish tendencies that he had to do so, and to think so, some 37 years later on 25 March 2014.
The fact that the accused was not shown to have behaved or thought in a similar way for such a lengthy period of time dilutes the probative force of the tendency evidence to such a degree that it cannot be said that there is significant probative value. Moreover, the conclusion can be easily reached that such probative value that the evidence may have does not outweigh the potential prejudicial effect. It would be very difficult to give effective directions to the jury not to give inappropriate weight to evidence that the accused had killed before.
The Crown's submissions seemed to be entirely devoted to tendency evidence but it had also served a coincidence evidence notice and considerable focus was upon the various asserted similarities so I will deal with it briefly.
Some of the similarities referred to by the Crown were of no real significance. For example, the fact that Mr O'Grady was aged in his 50s and so too were the two unfortunate gentlemen in 1977 is just happenstance. There was no suggestion of the accused selecting victims on the basis of their age. The fact that each man was left alive but died later is of no moment. (I doubt the Crown would say its argument would be weaker if one had died immediately and others not until later.)
The use of a considerable degree of violence in each case is of little significance. Most homicides involving unarmed violence would. A motive to rob is of some significance but not terribly much.
On the other hand, the fact that, on the Crown case, the accused chose to have Mr O'Grady lured to Wickham Park where he had committed the murders in 1977 is of significance. It would have been more convenient to lure him to a closer more convenient location. But this asserted similarity says very little (if at all) about whether the accused acted with an intention of inflicting grievous bodily harm once at the park.
Even looking at the combined effect of the asserted similarities, I was not persuaded that there was significant probative value when considering the evidence as coincidence as opposed to tendency evidence.
[7]
Conclusion
As both tendency evidence and coincidence evidence I was not persuaded that there was significant probative value. For these reasons, the evidence of Mr Dent having murdered two men in 1977 was excluded.
[8]
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Decision last updated: 19 February 2016