I am conducting a special hearing concerning a number of charges brought against the defendant, Mr Green, the principal charge being one of the murder of Ms Teah Luckwell sometime between about 5:30 pm on 27 March 2018 and about 8 or 9 pm, depending upon which evidence is accepted from lay witnesses, on 28 March 2018.
There is no doubt on the evidence that Ms Luckwell was violently killed in her own home. The principal question is whether, on the limited evidence available, the Crown have proved beyond reasonable doubt that Mr Green committed the offence charged in accordance with the terms of s 59 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
I interpolate that I have had heard evidence in the proceedings from two consultant psychiatrists which raises the question of, if the Crown have proved that Mr Green committed the offence, whether he is not criminally responsible on the basis of the mental health impairment defence referred to in s 28 of the Act. However, I will leave that consideration to one side for present purposes.
By reason of his unfitness to plead, Mr Green maintains his innocence to the offences charged, and Mr Bouveng of learned counsel who appears for him, I expect, given the way that the case has been run, will be submitting that the Crown have failed to discharge their heavy onus of proof and the verdict ultimately should be one of not guilty of the offences charged, without the need to have any reference at all to the mental health impairment defence.
I am presently concerned with ruling upon the admissibility of evidence the Crown wish to tender pursuant to a tendency notice served at an appropriate time prior to the commencement of the special hearing. That tendency notice concerns evidence of an event which occurred on 29 October 2017 and it is the Crown case that the circumstances of that event demonstrate a tendency on the part of Mr Green, which is significantly probative of the Crown case.
It is necessary, I think, to say something about the nature of the Crown case generally. The body of Ms Luckwell was initially observed by some passers-by sometime after 8 pm on 28 March 2018. A little later, after 9 pm, a neighbour returning home made the same observation; that neighbour went to investigate and on looking into the premises, realised that Ms Luckwell was either very severely injured or perhaps deceased, and she raised emergency services by dialling triple-0.
Subsequent forensic examination demonstrated that the cause of Ms Luckwell's death was the infliction of three stab wounds to her body. Two of those stab wounds were to the left side of her neck, a little below the ear, and the third was to her back around the area of the scapula. Of the two stab wounds to the neck, one of them penetrated the bony part of her cervical spine, severing an artery protected by the vertebral bodies of the cervical spine causing severe blood loss from which she died.
The evidence of the forensic pathologists called in the case was to the effect that to penetrate that part of the body, moderate to significant force was required and that the implement used would be a sharp single-sided knife having a blade of some not insignificant length.
A series of photographs were shown to the forensic pathologist, who gave concurrent evidence by and with the consent of counsel, and each of the three knives which they identified as being capable of inflicting the fatal injury were the type of knife one might regard as a chef's or a kitchen knife that most households would have in amongst the kitchen implements. The knives that the witnesses were shown were knives that had been obtained or seized by police during the course of their investigations into Ms Luckwell's death, including by combing the vicinity of the part of South Tamworth where she resided.
The Crown case against Mr Green is wholly circumstantial, and as the learned Crown Prosecutor reminded me for the purpose of ruling upon this question of admissibility, it is necessary for me to take the Crown case at its highest and also to weigh the disputed evidence as its highest.
The matters relied upon, apart from those which may be provided by the tendency evidence, if it is admissible, include a number of circumstances which are said to support the inference that Mr Green was in the near vicinity of Ms Luckwell's residence in the early hours of 28 March 2018. The evidence demonstrates that he was frequently walking around that general locality for various purposes.
One of the witnesses, a person with whom Mr Green was with at times during that night, a Mr Bennie McCarthy, gave evidence that at a material time Mr Green was armed with a knife. And, I am prepared to infer for the present limited purposes, a knife of the type that would fit the description of the knife by which the fatal injuries were inflicted given by the forensic pathologists. There is also evidence putting Mr Green in the very near vicinity of Ms Luckwell's at the time when the fatal injuries were inflicted, in accordance with the Crown case, at about 4 20 am. In particular, there is evidence of a Mr Morgan and a Mr Allan placing Mr Green only a few doors away from Ms Luckwell's residence, and heading in that direction just before that time.
That time is supported by objective evidence relating to transactions carried out at a nearby service station at 4:24 and 4:27 am by a person in whose company Mr Morgan and Mr Allan came to be very soon after their, I will interpolate, disputed sighting of Mr Green. It is also important to record that other circumstances include that Mr Green knew Ms Luckwell, and indeed, he was formerly a neighbour of hers, residing at a time up until October 2019 in the flat next door to her flat
Three witnesses who lived near Ms Luckwell's home heard a piercing scream from a female at around 4.20 am. Shortly after that time, CCTV footage at what has been referred to as the "Robert Street flats", where Mr McCarthy lived, showed a person whom the Crown submit, I would infer, in due course is Mr Green, hurrying back into that apartment complex. There is also footage showing him leaving those premises some little time before. On his return, he had shed the T-shirt and jacket he had been wearing when he left.
There is credible evidence that Mr Green was a person who turned off the power switches at another nearby residence around the same time, and who, later, lunged at an occupant of those premises who opened the door to investigate the trouble, armed with an implement which that witness described as a "Poker", but the Crown submit I may be able to infer was a knife or other sharp object.
The fact that the person who lunged was armed with some sharp implement is evinced by damage to the front door sustained when the occupant managed to slam it closed to forestall any injury by the lunging person. It is said that that evidence is significant in terms of Mr Green's state of mind at about the time that Ms Luckwell was killed. That is to say, that he had an aggressive state of mind and was prepared to use some kind of weapon to inflict injury on the occupants of a home.
It is in the context of all of these circumstances, which the Crown submits I will find in due course have been established by the evidence, that I am invited to consider the admissibility of the tendency evidence. The tendency evidence consists of, as I have said, an incident which occurred on 29 October 2017 between Mr Green and a Mr Chris Jones who gave evidence in the case, mainly about other relevant topics.
There is no doubt that the October 2017 incident of which Mr Jones gave evidence occurred. Indeed, the evidence before me given on the voir dire, establishes that Mr Green pleaded guilty to the offence of assault occasioning actual bodily harm arising out of the incident.
Before descending into the details of the incident, I should set out the evidence I received on the voir dire in relation to it, lest it be important for other purposes. The evidence consists of the following:
1. The testimony of Mr Chris Jones given on the voir dire. This evidence is at transcript pages 1405 to 1410, and 1426 to 1432;
2. A series of six photographs of the injuries said to have been received by Mr Jones at para 11 of the police statement of Mr Jones of 30 October 2017, admitted as Exhibit VDN;
3. The oral testimony of Detective Senior Constable Trent O'Rourke, the officer-in-charge of the investigation into the incident, given on the voir dire on 29 September 2021, and recorded at transcript pages 1632 to 1640; and
4. Seven photographs of the crime scene taken by Detective O'Rourke or other police officers on 29 October 2017, admitted as Exhibit VDO.
The tendency notice was served on 10 March 2021, and there is no issue about its adequacy. According to that notice, the evidence is tendered to prove that Mr Green had a tendency to act in a particular way, namely: (i), in the early hours of the morning; (ii) being armed with a knife; (iii), approach a person known to him with whom he has a grievance; and (iv), with very little to no provocation; (v), uses the knife to stab that person multiple times to their neck area.
It is convenient to summarise the evidence of Mr Jones, taken at its highest by reference to the police statement I have referred to, Exhibit VDN ([11]), which is in the following terms [when Mr Green approached he said]:
"What's in your pockets? I put my hand straight in my jeans pockets. As I did this [Mr Green] went 'whack, whack' and hit me with his right hand to the left side of my head. I backed off two metres after being hit. I didn't see anything in Jesse's hand when he hit me. I checked my face and felt blood on the left side of my face. I said 'Johno, he stabbed me', Johno then grabbed [Mr Green] in, like, a bear hug, and said, 'Start running'. I dropped the can [of pre-mixed alcoholic drink] onto the road, and then ran down to Bourne Street across Sussex Street and into the paddock area near the youth centre. I ran back up to Cossa Street, and went home."
The evidence of Detective O'Rourke established that a knife depicted in Exhibit VDO, was found in the gutter near what was taken to be the crime scene, and there is no real dispute about that. From my viewing of the photographs, I would describe the knife as a silver-coloured dinner knife. Forensic testing on the knife failed to link it to either Mr Green or Mr Jones.
Detective O'Rourke also said in evidence that the agreed facts upon which Mr Green entered his plea of guilty did not contain any reference to a knife or to a stabbing, and that the only charge brought against him by police at any time leading up to his plea on about 7 February 2018 was the charge of assault occasioning actual bodily harm.
Counsel have reminded me of the relevant authorities in relation to the matter in their very helpful written submissions. Mr Bouveng referred me to IMM v The Queen (2007) 257 CLR 300; [2016] HCA 14 at [46]; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [27], [39] and [41]; and TL v R [2020] NSWCCA 265 at [207]. The learned crown prosecutor accepts that those are the applicable authorities but places particular emphasis upon the judgment of Hoeben CJ at CL in TL at [196] and [206]-[207]. His Honour said:
"… the requirement for close similarity should arise when the tendency evidence is the only or predominant evidence that goes to identity."
The Crown submits that this is not such a case given all of the other circumstances to which I have referred which the Crown submits are capable of identifying Mr Green as the person who committed the offence of murdering Ms Luckwell.
That submission is made in the context of the High Court saying in Hughes (at [39]):
"In criminal proceedings where [tendency evidence] is adduced to prove the identity of the offender for a known offence, the probative value of the tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence."
The plurality Justices also said at [41]:
"In summary, there is likely to be a higher 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 proof of a fact that makes up the offence charged."
The element of the offence charged here, that which the tendency evidence is tendered to prove, is that Mr Green was the person whose act caused the death of Ms Luckwell. That is, the tendency evidence is tendered to identify the offender for a known offender.
In referring to these authorities first, I have perhaps put the cart before the horse. The admissibility of tendency evidence in a criminal case where the evidence is tendered against an accused person is governed by a combination of s 97 and s 101 of the Evidence Act 1995 (NSW).
There is no issue here about the tendency notice for the purpose of s 97. The issue here is that presented by s 97(1)(b), whether 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. And by reference to s 101(2), which provides that tendency evidence 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 real question that divides counsel in relation to this question of admissibility relates to the s 97 question about whether the tendency evidence proffered does have significant probative value in the sense discussed by the High Court, particularly in Hughes; and the minor premise whether, for the purpose for which the tendency evidence is to be used, it needs to have a close similarity between the occurrence said to constitute the crime and the event with which the tendency evidence is concerned.
Mr Bouveng submits that, having regard to the terms of the tendency as formulated in the notice, the tendency evidence does not establish the factors to which I have referred, and even if it did, the evidence is such that it could not be said that the evidence has the requisite significant probative value. He strongly submits that given the issues in the case, this evidence can only be admissible for the purpose of identifying Mr Green as the putative offender, and in that regard, the statements of the High Court to which I have referred require a close similarity between the tendency evidence and the offence alleged.
I must say that, having regard to that strong statement from the High Court (Hughes at [39]), I, with the greatest of respect, have difficulty understanding how the Court of Criminal Appeal could apparently water it down in the manner which the passage relied upon from TL v R might be taken as suggesting. It may be accepted that similarity is not a statutory condition of the admissibility of tendency evidence, but it does have a part to play in the valuation of the probative value of tendency evidence required to be undertaken for the purpose of s 97 on the one hand, and s 101 on the other.
I am of course bound by judgments of the Court of Criminal Appeal. Even accepting that no higher degree of similarity is required in the circumstances of this case because other circumstances are relied upon to identify Mr Green as the putative offender, there does need to be a degree of similarity, it seems to me, between the events before it can be said in this case that the tendency evidence has the requisite significant probative value. In this regard, I remind myself of para [41] of Hughes, where the plurality Justices said:
"[Tendency evidence] is likely to [have] a higher degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) that the tendency strongly supports the proof of a fact that makes up the offence charged."
So far as the former statement is concerned, it is clear that probative value can be assessed in conjunction with other evidence as the express terms of s 97 demonstrate and it is necessary that the tendency goes to proof of an element of the offence charged as the second statement makes clear.
In my judgment, there is no real similarity at all between the events of 29 October 2017 and the events of 27 or 28 March 2018. I have described the severe nature of the injuries inflicted upon Ms Luckwell and the nature of the instrument necessary to inflict those injuries, and in particular, the injury causing death.
There was just no comparison really between that event and the event that befell Mr Jones. I accept that he said immediately that he had been stabbed, and that he maintains that he had been stabbed ever since. But he saw no knife; he saw nothing in Mr Green's hand. Although, I am prepared to infer, his evidence supports the conclusion that Mr Green struck him twice by reference his use of the onomatopoeia, "whack, whack".
The more obvious injury was to his face, high on his cheek near his temple area, and not to his neck. The other injury was behind his ear, not below it. That injury was not discovered by him until a day or two later. If the evidence is capable of supporting a conclusion that he was stabbed, he certainly was not stabbed with a knife. Such an implement would have been visible to him, and if some other sharp object was used, it was not an object capable of inflicting any serious injury upon him.
There is a vast difference between arming oneself with a kitchen or chef's knife and having some other less dangerous implement which is capable of breaking the skin but not of inflicting any serious injury even when applied to another with force as the expression "whack, whack" suggests in the case of Mr Jones.
Even putting the events of 29 October 2017 into the context of the other circumstances to which I have referred, which the evidence may be capable of proving as the Crown submits, I am not of the view that the events of 29 October 2017 add anything to the probative value of that set of circumstances. That set of circumstances may well have high probative value when taken together as a whole, and that set of circumstances certainly does go to an element of the offence, but adding the events involving Mr Jones, in my opinion, adds nothing to the probative value of the set of circumstances otherwise relied on by the Crown.
I would also be of the view that the probative value of the tendency evidence alone does not substantially outweigh any prejudicial effect it may have upon the defendant. I acknowledge one way in which tendency evidence may have a prejudicial effect is, if the tribunal of fact misuses it to reason in an impermissible way, and it may be, as the Crown submits, that a professional judge is less likely to do so than a jury of lay persons. However, that is not the only way in which such a matter may have prejudicial effect.
The admission of evidence that the defendant has committed a previous crime of violence - not so previous, only a few months before Ms Luckwell was killed by someone - has its own prejudicial effect inasmuch as it may suggest that Mr Green is a person generally who is likely to commit acts of violence, and I acknowledge such a mode of thinking would be impermissible. But I am satisfied that given the lack of any real similarity between what happened in October and what happened in March, there is a danger that even a professional decision-maker might fall into that error.
In the circumstances, I am not satisfied that the conditions for the admission of the evidence of what happened on 29 October 2017 satisfy the conditions for its admissibility in this hearing as tendency evidence, and I reject the evidence I have described at the start of these reasons.
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Decision last updated: 14 October 2021