R v Gale

The Crown's first tendency application

1. The Crown gave notice by a letter to the defence dated 24 October 2019 ("the first tendency notice") that it intends to adduce tendency evidence pursuant to s 97(1) of the Act, to the effect that the accused had a tendency "to act in a particular way, namely, (i) to carry a knife in public places and (ii) to stab, or attempt to stab the body of other persons".
2. In written submissions, the Crown contended that the relevance of evidence tending to establish that the accused, and not the deceased, was carrying the knife, is that the truth of the accused's claim that he acted in self-defence is "significantly impugned". In oral submissions, the Crown sought to interpret "public places" to mean situations other than those when the accused had an excuse for possessing a knife. However, the Crown did not apply to amend the notice so as to remove and replace the words "public place".
3. In written submissions, the Crown submitted that evidence that the accused stabbed or attempted to stab other persons previously, other than in self-defence, is relevant to, and probative of, an assessment of whether the accused was acting in self-defence on this occasion.
4. I note that the Crown did not frame the tendency in its notice in terms of prior stabbings or attempted stabbings "other than in self-defence", but rather stabbing or attempted stabbing simpliciter. Again, the Crown has not sought to amend that aspect of the tendency notice accordingly. Those submissions followed the accused's written submissions, in which the accused disputed the relevance of a tendency to stab or attempt to stab, when the stabbing by the accused is not a fact in issue.
5. The material that the Crown seeks to adduce in order to establish the said tendencies is in the form of three sets of documents which it proposes to tender in the trial, each relating to earlier offences committed by the accused which involved the accused possessing a knife at the time. In each set, the key document is the police fact sheet.
6. The first police fact sheet concerns a break, enter and steal in a suburban house committed by the accused and another man, Brian Riley, in 1996 ("the 1996 incident"). Police arrived while the men were still inside the house and attempted to arrest them as they left the premises. A struggle ensued between a police officer, Constable Donald, and Mr Riley, who called out to the accused to stab the officer. The accused then emerged from the house holding a small-bladed knife about 15cm in length. The police fact sheet continued: "[The accused] advanced towards Constable Donald and began to wave the knife in a horizontal motion in front of the officer. [The accused] began to lunge at Constable Donald. Constable Donald retreated but kept hold of Riley. Riley shouted, 'Stab him Mick, stab him Mick.' Constable Donald moved backwards keeping Riley between himself and [the accused]. When Constable Donald was unable to retreat any further he let go of Riley."
7. Shortly afterwards another officer attended and both officers gave chase to the accused, eventually catching and disarming him. Police established that the accused had taken the knife from the kitchen of the house. In a subsequent recorded interview, the accused told police that "he had removed the knife from the kitchen in case their [sic] was trouble and that he had intended only to scare the police officer not injure him".
8. The charges proffered against the accused concerning his use of the knife were "use weapon to avoid apprehension" pursuant to s 33B of the Crimes Act 1900 (NSW) and "carry cutting weapon" pursuant to what is now s 547D of that Act. The accused was not charged with an offence that captured any allegation that he attempted to stab Constable Donald.
9. The second document is a police fact sheet for, inter alia, the offence of "wounding with intent to cause grievous bodily harm" pursuant to s 33 of the Crimes Act, in 2006 ("the 2006 incident"). The police facts are to the effect that the accused and the victim, Paul Sutherland, both resided in different parts of a guest house complex. During the course of an argument in Mr Sutherland's room, whilst Mr Sutherland had his back to the accused, the accused stabbed Mr Sutherland multiple times to the head with a knife. They then struggled, Mr Sutherland broke free and ran, but the accused gave chase and stabbed Mr Sutherland in his chest and left arm. In an ensuing electronically-recorded interview, the accused made "full admissions", explaining that they had been in conflict over various matters, including drugs. The police facts relevantly state: "During the afternoon [the accused] obtained a small black handled 'kitchen' style knife from a friends [sic] room inside the premises, before obtaining a further knife from his bedroom. The accused placed both knives in the rear of his pants and also grabbed a schooner glass, before confronting the victim who was inside his bedroom. At this time the accused claimed that his 'brain snapped' and he just attacked him."
10. The victim suffered two lacerations to the scalp, each about 4cm in length, a punctured left lung and multiple significant lacerations to his left arm.
11. The third set of police facts concerns an offence of possessing a knife in a public place without a reasonable excuse, pursuant to s 11C of the Summary Offences Act 1988 (NSW) in 2016 ("the 2016 incident"). At about 2.55am on 11 July 2016, police spoke to the accused at a service station and searched him. They informed the accused that he was about to be searched, and the accused offered that he had a knife, which he handed over. It was a 15cm black handle serrated kitchen knife and sheath in the front of his shorts, behind the waist band. The accused explained that he was carrying the knife "for protection".
12. Subsequent to the date of the tendency notice, the Crown came into possession of a statement of Ms Lynn, and seeks leave to amend the tendency notice so as to rely on the following anticipated evidence from her: "I have seen [the accused] carry knives before. It was about a year or two before the incident when [the deceased] was killed. It was in McCabe Park Wollongong and [the accused] threatened a guy. I don't know who that guy was. The argument was over methadone and [the accused] was really angry with this guy. He pulled out a knife and threatened him. I don't believe this incident was reported to police."
13. The defence does not oppose leave being granted to amend the tendency notice. I grant leave and pursuant to s 100 of the Act, I dispense with notice requirements in respect of the amended notice. There is no further detail of this alleged observation ("the McCabe Park incident").

The Crown's second tendency application

1. The Crown's second tendency notice is in the form of a letter to the defence dated 19 November 2019 ("the second tendency notice"), indicating that it intends to adduce tendency evidence pursuant to s 97(1) of the Act, to the effect that the deceased had a tendency "not to carry a knife in public places". The material that the Crown intends to adduce in order to establish the said tendency is evidence from three witnesses, whose statements were attached to the tendency notice.
2. The first is by Noelene McKernan, who is the deceased's mother. Ms McKernan stated that her son resided with her until the age of 11, when he left to live with his father. Ms McKernan stated: "Over the years between 11 years and 21 years, [the deceased] and I went on numerous holidays together. Whilst he was living in Wagga, I would see [the deceased] on school holidays."
3. The deceased finished school in Year 10. He returned to live with Ms McKernan for three months when he was aged 21, before moving in with his girlfriend, with whom he had five children within four or five years. The deceased, his partner and their children would visit Ms McKernan "on a regular basis for several years". The relationship was on and off, but in periods where the deceased and his partner were not together, the deceased would continue to visit his mother with just the children.
4. Ms McKernan stated that when her son lived with her until the age of 11 years, she "never saw him in possession or playing with knives" and over his lifetime, she had "never seen [the deceased] in possession of a knife or heard of him carrying a knife".
5. The second statement is by Ms Lynn, who stated that she had known the deceased since about 1999, when she would see him "every second day for a very long time". Ms Lynn also stated that she would see the deceased around the methadone clinic, but did not otherwise quantify how often she had seen him, or how well she knew him. Ms Lynn stated: "During the whole time that I knew [the deceased] I never saw him with a knife. I have never known [the deceased] to carry a knife".
6. The third statement is by Detective Senior Constable Robert Starr, who attached a copy of the deceased's criminal history and reviewed his police "event" record. The deceased had 18 charges, primarily for assaults and domestic violence-type offences, over his adult life. Detective Starr said that on each arrest the deceased would have been searched and, if he had been found to be in possession of a knife, that fact would have been a separate charge, and there were no such charges. The deceased's event record indicated that on six occasions between 2010 and 2018, he had been searched for a knife. On one such occasion, on 30 March 2012, the deceased was questioned following him abusing police, as they drove past him. The deceased was then told he would be searched, and offered that he had a knife, which he produced. It was a folding blade knife with a wooden handle, which the deceased claimed he had found on the ground shortly before. The deceased was unable to explain why he had not informed police of the knife when he was first questioned. The deceased was given an infringement notice for having a knife in a public place pursuant to s 11C of the Summary Offences Act.

The relevant principles

1. Sections 97and 101 of the Act provide as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. … 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."

Sections 55(1) and 56(1) of the Act: is the proposed evidence relevant?

1. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) set out the sequence of steps to be taken when assessing the admissibility of evidence pursuant to s 97(1). Their Honours noted that the threshold issue for all proposed evidence is relevance pursuant to ss 55(1) and 56(1) of the Act and stated, at [37]: "Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence and tendency evidence."
2. The purpose is identified, in respect of each piece of evidence, by the tendency that is alleged. Therefore, the first step is to assess whether each proposed item of evidence is relevant to that purpose; whether it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated tendency. In that assessment, considerations of credibility and reliability are sidelined.
3. I am of the opinion that the material relied upon in the second tendency notice is relevant to the tendency relied upon; the state of awareness of the deceased's mother and Ms Lynn that they had not seen the deceased carry a knife and had not heard of him doing so or known him to do so is some evidence going to whether the deceased had a tendency to do so. The Crown seeks to rely on the statements of both witnesses in their entirety, which would allow in evidence of the good character of the deceased and other material which is irrelevant to the stated tendencies. For that reason, those aspects are not admissible.
4. The documented results of searches of the deceased by police when in a public place, in terms of whether he was found to have a knife, are also relevant to that purpose.
5. There are some issues of relevance, however, in relation to the first tendency notice.
6. The tendency that the Crown seeks to establish on the part of the accused "to carry a knife in public places", implies a routinely-adopted form of behaviour, as opposed to the accused arming himself with a knife for a specific encounter. Presumably this is because it is not to be suggested by the Crown that the accused set out on this particular morning to attack the deceased. Witness statements tendered by the defence, taken from the Crown brief as served, suggest that the deceased was banned from that methadone clinic, so his presence on that morning would not necessarily have been anticipated. The 1996 and 2006 incidents both involved the accused arming himself immediately before, and for the purpose of, a specific encounter, rather than him deploying a knife that he happened to be carrying, and therefore do not seem to me to be evidence which is relevant to that tendency, as formulated. At the hearing of the application, the Crown accepted that proposition. Therefore I exclude the 1996 and 2006 incidents for the purpose of the tendency by the accused to carry a knife in a public place. The 2016 incident, on the other hand, squarely fits the tendency. The McCabe Park incident is also reasonably capable of being relied upon as evidence of that tendency.
7. The Crown relies upon the 1996 and 2006 incidents as evidence of an alleged tendency by the accused "to stab, or attempt to stab the body of other persons". The Crown accepts that the 2016 and the McCabe Park incidents are not capable of being so construed, the latter because Ms Lynn's observation did not go beyond the accused using the knife to threaten, rather than to attempt to stab someone.
8. The 2006 incident clearly comes within that description. The 1996 incident, however, has the difficulty that the reference in the police facts to the accused "lunging" at Constable Donald with the knife, by itself, is open to relevantly different interpretations; either in the sense of the accused attempting to stab him or only threatening him with the knife. The only charge that referenced the manner in which the accused used the knife, which was "use weapon to avoid apprehension", was consistent with the accused's account that he only intended to "scare" the officer. One may infer that police were of the opinion that the evidence was insufficient to establish an offence that the accused had attempted to stab him. Taking the document as a whole, therefore, it is not relevant to the tendency that the Crown would seek to establish by its tender, namely, that of the accused using a knife to attempt to stab others. For the reasons stated, I also exclude the 2016 and McCabe Park incidents in relation to the alleged tendency on the part of the accused to stab, or attempt to stab, the body of other persons.

Section 97(1)(b) of the Act: does the evidence have "significant probative value"?

1. Section 97(1)(b) requires an assessment of the probative value of the evidence. The term "probative value" is defined in the Dictionary to the 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."
2. For the purposes of s 97(1)(b), the probative value must be capable of being regarded as "significant". In IMM the majority, at [46], considered the meaning of "significant" in this context, as follows: "Cross on Evidence suggests that a 'significant' probative value is a probative value which is 'important' or 'of consequence'. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding." (footnote omitted)
3. For the purpose of this exercise as well, the possible use to which the evidence might be put is to be taken at its highest and with disregard to questions of credibility and reliability: IMM at [47].
4. As to the tendency of the accused to carry a knife in a public place, the 2016 and the McCabe Park incidents, taken together, are in my view of significant probative value, particularly because both occurred approximately within two years of the killing.
5. In relation to the tendency of the accused to stab, or to attempt to stab, others, I do not accept that a single instance of the accused stabbing someone 13 years earlier could assist in establishing such a tendency. Accordingly, I reject the 2006 incident as a basis for this alleged tendency.
6. I turn to the Crown's second tendency notice, that the deceased had a tendency "not to carry a knife in public places". What is contended as the particular act is to not do something which by its nature is not necessarily apparent, since it is not usually obvious whether a person has, or does not have, a knife in their clothing or on their body. This is particularly so since 1998, when s 11C was introduced into the Summary Offences Act, rendering it unlawful to have custody of a knife in a public place without a reasonable excuse, thus providing a motive for a person who is carrying a knife to not inform others of that fact.
7. An assertion, therefore, that a person would not usually carry a knife in public places is of little probative value unless there is an evidentiary foundation establishing that the person making the assertion would be expected to have reliable knowledge of that fact.
8. The assertions to that effect by the deceased's mother and Ms Lynn are constrained by this limitation. Accepting their evidence that, so far as they knew, the deceased did not normally carry a knife, whether their evidence has significant probative value turns on what equipped them to know whether the deceased would, or would not, have a tendency sometimes to carry a knife. A hypothetical example of evidence that would meet this standard might be of a spouse who observed the person in question dressing and undressing regularly, and observed that he or she did not place a knife in their clothing, or remove a knife when undressing.
9. The degree of contact that both the deceased's mother and Ms Lynn had with the deceased in the years shortly before his death is unquantified. A significant lapse in time between the acts relied upon in order to establish a tendency and the incident that gives rise to the charge may be a relevant factor going to whether the evidence is of significant probative value: McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 at [32]. As it happens, it is apparent from the statement of Detective Starr that the deceased did have a knife on his person on at least one occasion, six years before the incident in question, in the middle of the day while he was in a public place. The deceased's explanation that he had just come by it innocently was not accepted by police. Accordingly I reject the evidence of the deceased's mother and Ms Lynn as to whether the deceased had a tendency to carry a knife in public places.
10. Whether the evidence of Detective Starr as to his perusal of the events records and criminal history of the deceased has significant probative value depends on the frequency with which police searched him. Following the 2012 incident when the deceased was found to have a knife, it appears he was arrested on five occasions, the most recent being on 22 May 2017, which was 12 months before his death. It is not known on how many of these occasions the deceased was arrested unexpectedly, so that he would not have had an opportunity to divest himself of any knife beforehand. The most recent knife search was in 2018, but the deceased was not the subject of a knife search in the preceding three years.
11. The Crown conceded in its oral submissions that the second tendency notice was only relevant to the tendency advanced in the first notice concerning the accused carrying a knife; since one of the men had the knife used in the stabbing initially, in the absence of evidence that the deceased did not have a knife, the evidence that the accused carried a knife would lack probative value. The Crown also conceded, in my view correctly, that if the 2016 incident was the only one that is admissible in relation to the tendency to carry a knife, it would be insufficient for that purpose in terms of probative value, because of the parity with the deceased's knife history.
12. As it happens, the end result is that both men on one occasion had been found by police to be carrying a knife in recent years and the accused was also seen on a second occasion to be doing so.

Section 101(2) of the Act: does the probative value of the evidence significantly outweigh the prejudicial effect on the accused?

1. As noted earlier, the parties agree that the primary fact in issue is whether the accused stabbed the deceased in self-defence and that a significant secondary fact in issue is whether the accused initially possessed the knife. It is not in dispute that the accused stabbed the deceased.
2. As I understand the agreed submission, evidence of the possibility that the accused did not originally have the knife arises from the account that Mr Walsh will give of what the accused told him shortly after the incident. In his written submissions, the accused submits that: "… the accused's claim of self-defence is likely to have greater force if the jury were satisfied that the deceased was the one originally in possession of the knife."
3. As the defence appropriately conceded in its written submissions, it would be open to the jury to convict the accused of murder even if it accepted that the deceased had, and dropped, the knife.
4. The 2016 and McCabe Park incidents would only be admissible in respect of the tendency of the accused to carry a knife. That would entail evidence that in 2016, the accused brought to the attention of police that he had a knife on him and produced it, and that at some point in the previous two years to the incident in question, Ms Lynn observed the accused in McCabe Park with a knife.
5. The admissible evidence suggesting that it was not the deceased who had the knife, is the evidence of Detective Starr of searches of the deceased carried out by police, that did on one occasion in fact lead to a knife being produced by him.
6. Although the prejudice occasioned to the accused by this limited evidence could be reduced by appropriate tailoring of it, it is to be gauged alongside the evidence's probative value. In view of what I regard as the limited relevance to the question of self-defence of the issue of who initially possessed the knife and the ambivalent nature of the evidence as to whether either man had a tendency to carry a knife, I have concluded that the probative value of the evidence does not substantially outweigh any prejudicial effect, and accordingly I dismiss the application in respect of both tendency notices.

Orders

1. Accordingly, I make the following orders: 1. The tendency evidence identified in the Crown's tendency notice dated 24 October 2019 is excluded. 2. The tendency evidence identified in the Crown's tendency notice dated 19 November 2019 is excluded.

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