R v LN; R v AW

Supreme Court of NSW|2017-02-20|Before: Johnson J

Judgment

JOHNSON J: Each of LN and AW is charged with the murder of a child, Joseph, on or about 3 August 2014 at Oberon in the State of New South Wales.
The trial of LN and AW is to proceed before a jury commencing on 27 February 2017.
In advance of trial, an issue has arisen for determination concerning the admissibility and use of certain evidence at the trial. It is accepted by each Accused that the evidence in question will be admitted, and thus will be before the jury. The question is whether the Crown should be permitted to rely upon this evidence against each Accused for tendency purposes under ss.97 and 101 Evidence Act 1995.

The Crown Case Against LN and AW

What follows is drawn from the Crown Case Statement (Exhibit PTD).
Joseph was born in April 2011. LN was his mother. AW was his stepfather. Joseph's natural father died in late 2010.
It is the Crown case that, during the 51-day period between 13 June 2014 and 3 August 2014 whilst Joseph lived with LN and AW in Oberon, multiple injuries were inflicted upon him by each of the Accused. It is the Crown case that both of the Accused were aware of the other's violence towards Joseph and were party to a joint criminal enterprise to abuse the child and to cover up the abuse.
It is the Crown case that on or about 3 August 2014, Joseph received an inflicted injury that caused him to go into cardiac arrest at about 12.50 pm on 3 August 2014. He was pronounced dead at Westmead Children's Hospital on 6 August 2014. Joseph was three years and four months old at the time of his death.
From around the time of his birth in 2011, Joseph lived with his grandmother (LN's mother) at Rockdale. It is said that whilst he lived with his grandmother and her family, he was described as a happy child. Over the course of his life, Joseph was immunised and visited a general practitioner when sick. It is the Crown case that Joseph had no relevant illness or injury during the period he was living with his grandmother at Rockdale.
LN met AW in 2011 (after Joseph was born) and they formed a relationship. LN and AW have a daughter of their relationship who was born in March 2013 (whom I will call "Mary", which is not her real name).
After Mary's birth, LN and AW moved to a house in Oberon. AW was listed at Centrelink as LN's carer.
On about 14 February 2014, LN changed Joseph's surname to that of AW by registration at the Office of Births Deaths and Marriages.
In about March 2014, FN (LN's eldest son who was then 22 years old) moved into the Oberon house.
In June 2014, LN contacted her mother and asked to have Joseph come and live with her. The grandmother initially refused and LN threatened to take legal action in this regard. After further discussions within the family, a decision was made to return Joseph into his mother's care. 13 June 2014 - Joseph Moves to Oberon
On 13 June 2014, LN and AW drove to Rockdale and took custody of Joseph, then about three years and two months old.
On 21 June 2014, a photograph taken by AW showed Joseph with a bruise to the side of his head which, at that time, had been shaved.
On 30 June 2014, LN and AW took Joseph to a Child and Family Health Clinic in Oberon. AW told the nurse, Sarah Martin, that he thought that the child had rickets. The nurse noted that Joseph had visible sores on his face, arms and ankles which had been treated with a red substance. Joseph was referred for a hearing test and to a dental clinic.
On 2 July 2014, Joseph was taken to the Bathurst Hospital Dental Service where he was seen by a dental therapist, Jennifer James. With the exception of his face, Joseph was completely covered in clothing. Joseph had a graze that ran down the centre of his forehead, nose and chin. According to AW, Joseph received this injury after a fall whilst running on the carpet. AW said that Joseph was not a fast runner and had something wrong with his feet. He told Ms James that Joseph could not walk properly let alone run. Joseph was found to have significant dental decay. AW said it was because of his grandparents. He told the nurse that Joseph had been "knocked about before they got him". Ms James told LN and AW to take Joseph to the Emergency Department to have his face looked at.
On that day, Joseph was taken to the Emergency Department where he was examined. He weighed 17.4 kilograms. An innocent explanation was maintained for the injuries.
On 7 July 2014, Joseph had six teeth extracted by Dr Narayan Prasad. Dr Prasad did not notice any visible injuries on that day.
On 10 July 2014, AW took Joseph to a hearing test. He told the nurse, Alana Benson, that Joseph did not walk because he had rickets and that he had only had him for a couple of weeks as the child had been abused by his mother. Joseph was covered by a big jacket which was left on throughout the testing. Joseph had left middle ear fluid and the nurse recommended some gentle exercises to clear the fluid.
As at 21 July 2014, Centrelink recognised AW as the 100% carer for Joseph. At that time, AW was receiving compensation from Racing NSW relating to an injury whilst working as a stable hand. Centrelink payments commenced for Joseph by this time.
FN, who is to be called as a Crown witness, states that he witnessed LN and AW smack Joseph after the child's arrival in the house. On one occasion, about three weeks after the child's arrival, FN saw LN grab Joseph by the shoulders and shake him in a way described as very hard, with the child's head going back and forth. FN described the child as falling to the ground afterwards and developing a stare after this incident that he did not previously have.
The Crown alleges that both LN and AW hit Joseph with a wooden spoon on his legs and bottom. According to FN, LN and AW would also use an esky to give the child ice baths. The esky would be filled with water and ice and the child would be made to sit in it. Both LN and AW were present whilst this was occurring. It is the Crown case that the purpose of these baths was to hide the injuries inflicted upon the child.
According to FN, on one occasion he found Joseph lying face down on the floor with a graze on the right side of his temple. The child was crying. LN and AW told FN to leave Joseph where he was. AW told FN that Joseph was being a "fuck head". It is said that Joseph remained lying in the same way for at least 30 minutes.
It is alleged that FN saw AW apply duct tape to close Joseph's eyes. FN also saw AW use duct tape to hold a ball in Joseph's mouth. He saw him feed the child salt. FN heard LN say that she was going to pummel Joseph's head in with a baseball bat.
On 28 July 2014, an electrician visited the Oberon premises to repair some electrical wiring. He observed Joseph sitting on his bottom with his legs crossed. He was told by LN and AW that the child would not touch the power point as he just sits there. The electrician was of the view that the child was autistic and he did not make a sound and was staring into "thin air". The electrician mentioned the child to the real estate agent.
FN states that he saw further injuries to Joseph in the days prior to his death, including: 1. a graze to his forehead above the right eye; 2. grazes near both of his temples; and 3. injury to his lips.
AW told FN that the injuries to Joseph were from the child rubbing his head on the cot and self-mutilation. AW put mercurochrome on the injuries. At around this time, Joseph is said to have wet himself in his cot. The sheets were removed from the cot and Joseph commenced sleeping in a baby bouncer.
The following day, FN tried to speak to Joseph but he just stared at him. He saw Joseph close his eyes even though he was awake. FN described AW as trying to open Joseph's eyes.
On the afternoon of 2 August 2014, FN saw LN burst into tears and cradle Joseph. She was feeding him formula through a syringe. In the days prior to Joseph's cardiac arrest, he was eating only milk and water. LN told AW not to touch the child. On that night, Joseph was rolled in a blanket and put to sleep in the baby bouncer.
According to Dr Michael Rodriquez, a neuropathologist with the Department of Forensic Medicine who became involved in the investigation after Joseph's death, Joseph had suffered a previous subdural haemorrhage in the right middle cranial fossa overlying the temporal lobe. Dr Rodriquez believes this injury occurred several weeks before death. It is the Crown case that this is consistent with an inflicted injury occasioned after Joseph moved to Oberon. Events on 3 August 2014
On 3 August 2014, FN states that he woke to find Joseph sitting on the floor in the front of LN's chair. FN states that AW and LN were not speaking to each other. FN states that he saw AW dress Joseph and change his nappy. He saw bruises on the child's legs and bottom. He saw AW go outside and get the dogs into their harnesses and put on a long lead connecting the two dogs.
FN states that AW led the dogs through the house and started towards the park. It is the Crown case that FN is not telling the truth in stating that Joseph went to the park as well. It is the Crown case that Joseph was left with FN and that he is not telling the truth because he feared that if he was the person who had Joseph in his care at the time of his cardiac arrest, he would be implicated.
According to FN, LN carried Mary outside and Joseph walked behind her. The three followed AW across the road into a park. FN states that he went inside and spent 20 minutes in the lounge room before getting some vegetables from the vegetable patch.
At 12.37 pm, a photograph was taken of Mary in the park. This photograph was found on LN's mobile phone.
Across the park was a skate ramp and two young men, SM (then aged 17 years) and BB (then aged 15 years), were present on that day with their skate boards. Both observed a family on the other side of the park. The family consisted of a man, a woman, two dogs and one child. The dogs were joined by an orange rope.
SM saw the child, whom he described as a girl, get knocked over by the dogs' lead. The child got back up and was walking around before the family left the park.
BB saw the child get back up and walk around after the child had fallen over. He described the child as having long blondy-brown hair. He saw the male in a grey hoodie carry the child across the road.
Shortly after the family left the park, both SM and BB noticed an ambulance arrive.
FN states that he was walking to the back door of the Oberon house from the garden when he heard LN call out his name. He could see her walking across the front garden with Joseph in her arms. He met LN at the front door and took Joseph and ran him into the lounge room where he placed him on the floor. He could not feel a pulse. He told LN to call "000". There was white froth on Joseph's mouth. FN commenced CPR. AW came into the lounge room and poked one of Joseph's' eyes. He said that Joseph was playing at it. It is the Crown case that FN's account of seeing Joseph being carried back into the house from the park is untrue for reasons mentioned at [33] above.
LN made a "000" call at 12.54 pm on 3 August 2014. She said "We were out in the park playing with my three year old son and we were running around and then the dogs ran past him and knocked him over and then he went limp and he was still breathing and then he started gurgling and now I don't think he's breathing".
FN continued CPR on Joseph until an ambulance arrived at about 1.00 pm. Paramedic Matthew Wilkinson was the first on the scene. He spoke to AW, who told him that Joseph had been knocked over in the park by a dog. AW added that he was initially OK and that they brought him back to the house where he became catatonic.
Joseph was unresponsive when the paramedics arrived. Various police and paramedics noted a number of injuries to the child, his face and head which appeared to be inconsistent with falling backwards on a grassy area.
CPR was commenced and adrenalin was administered. Whilst working on Joseph, Mr Wilkinson saw that he had abrasions to both temples and to the zygomatic arch and there was redness to the forehead. Joseph Conveyed to Westmead Children's Hospital
A helicopter crew arrived at 1.42 pm including Dr Daniel Moi and another paramedic, Mark Ellis. Mr Wilkinson noticed fresh bruising to Joseph's forehead as the child was carried from the house. Mr Ellis also noted that a bruise to the child's forehead was developing as the resuscitation went on.
Joseph was airlifted to the Westmead Children's Hospital. Paramedic Michael Tweedle was the helicopter pilot on the day and he was aware that the child had a pulse during the flight to Westmead.
The helicopter arrived at Westmead Children's Hospital at 2.43 pm.
A brain CT scan undertaken at Westmead Children's Hospital revealed that Joseph had "diffuse extensive supratentorial cerebral oedema without evidence of herniation. Bilateral subdural convexity haematomas. Bilateral intraocular haemorrhages".
A CT of the spine displayed "Loss of differentiation between the upper cervical spine cord and intraspinal subarachnoid space, suggestive of intraspinal subdural and/or subarachnoid haemorrhage, no fracture seen".
Joseph required maximal support including ventilation. Efforts of treatment continued for a period of about three days but Joseph did not regain consciousness. Joseph was declared dead at 1.26 pm on 6 August 2014.
The cause of Joseph's death was stated as out-of-hospital cardiac arrest as a result of blunt-force craniospinal injury which caused hypoxic-ischemic encephalopathy. The Police Investigation
Police conducted an investigation into the death of Joseph. Warrants were obtained for the use of surveillance devices to record conversations involving LN and AW. In addition, LN and AW each participated in recorded interviews and walkthrough interviews with police.
In summary, LN and AW maintained throughout the investigation that Joseph was walking in the park opposite his house when he was tripped by a rope that was connected to the two dogs.
It is the Crown case that Joseph was not in the park at all on 3 August 2014 and that the incident concerning a child falling involved the young girl, Mary. It is the Crown case that, even if Joseph was in the park on that day, the incident described by LN and AW did not cause his death given the circumstances surrounding Joseph's life at the Oberon house and admissions which were allegedly made by each Accused.
The Crown alleges that each of LN and AW made admissions concerning the use of violence towards Joseph over a period of time whilst he lived at Oberon. Put shortly, the Crown seeks to rely upon statements made by LN and AW in interviews with police, or allegedly made in conversations with FN as general evidence in the trial as well as being the foundation for use for tendency purposes as well.

The Central Trial Issue

Notices of Defence Case under s.143 Criminal Procedure Act 1986 relied upon for each Accused indicate that each Accused will contend that the injury causing Joseph's death occurred by accident as a result of a fall in the park on 3 August 2014.
It is said that the central issue in the trial will relate to the cause of Joseph's death.

The Ways in Which the Crown Puts its Case Against LN and AW

The Crown puts its case against LN on the basis that she committed a voluntary act on or about 3 August 2014, accompanied by an intention to kill or to inflict grievous bodily harm or with reckless indifference to human life, with that act causing Joseph's death.
The Crown puts its case against AW on the basis of extended joint criminal enterprise. The Crown will allege that LN inflicted fatal injuries upon Joseph on or about 3 August 2014 and that, from the time that Joseph came to live at Oberon on 14 June 2014, each of LN and AW engaged in a joint criminal enterprise to assault him and/or to expose him to the danger of death or serious injury and/or to fail to care for him, and that AW foresaw the possibility that LN, during the course of that joint criminal enterprise, might commit a voluntary act causing Joseph's death, whilst having the requisite intent for murder, namely an intent to kill or to inflict grievous bodily harm (T29, 21 February 2017).

The Crown's Tendency Notices

The Crown initially served tendency notices with respect to each Accused which were dated 9 November 2016. Those tendency notices were subsequently withdrawn and, in their place, tendency notices dated 9 February 2017 were served upon the legal representatives for each Accused. The Tendency Notice Concerning LN
The tendency notice with respect to LN (Exhibit PTA) states that the tendency sought to be proved is LN's tendency: 1. to act in a particular way, namely to inflict violence on her three-year old son, Joseph, between 14 June 2014 and 3 August 2014; 2. to have a particular state of mind, namely to be preoccupied with killing Joseph and/or to want to kill him between 14 June 2014 and 3 August 2014.
The tendency notice referred to statements made by LN as contained in five source documents: 1. a video and transcript of a walkthrough interview at the park with LN and police on 13 August 2014; 2. a transcript of a recorded interview with LN and police on 4 September 2014; 3. a transcript of a recorded interview with LN and police on 15 September 2014; 4. a transcript of a further recorded interview with LN and police on 15 September 2014; and 5. a statement of FN dated 17 September 2014.
As amended at the pretrial hearing on 21 February 2017, the tendency notice is said to bear upon the following facts in issue in the prosecution of LN: 1. that LN by an act or acts of violence inflicted upon her son, Joseph, on or about 3 August 2014 caused the death of Joseph; 2. that LN inflicted the injury or injuries causing Joseph's death with the intention to inflict grievous bodily harm or to kill Joseph.
Broadly speaking, the extracts from these various documents record LN stating that she used force against Joseph on a number of occasions, and in a number of forms, and having thoughts of killing Joseph and wanting to kill him in the period between 13 June 2014 and 3 August 2014. These matters are expressed in different ways, but may be summarised shortly in this way. The Tendency Notice Concerning AW
The Crown's tendency notice with respect to AW (Exhibit PTB) states that the tendency sought to be proved is AW's tendency to act in a particular way, namely to inflict violence and ill-treat three-year old, Joseph, a child in his care.
The notice refers to statements made by AW in six source documents: 1. the transcript of a recorded interview between AW and police on 3 August 2014; 2. a transcript of a walkthrough involving AW and police on 13 August 2014; 3. a transcript of an interview of AW by police on 12 September 2014; 4. a video and transcript of a walkthrough involving AW and police on 17 September 2014; 5. a transcript of a recorded interview of AW by police on 17 September 2014; and 6. a statement of FN dated 17 September 2014.
As amended at the pretrial hearing on 21 February 2017, the Crown contends in the notice that the tendency evidence sought to be adduced bears upon the following facts in issue in the prosecution of AW: 1. that AW was engaged in a joint criminal enterprise with LN to assault and ill-treat Joseph, a child in his care, between 14 June 2014 and 3 August 2014; 2. that AW acted in this way to expose Joseph to the danger of death of serious injury.
Put shortly, the statements made by AW, as contained in these interviews and the statement of FN, involve admissions that AW used violence of various forms towards Joseph over the time he was living at the Oberon house.

The Crown Application to Rely Upon Evidence for Tendency Purposes

It is necessary to consider three topics in determining the Crown application to rely upon this evidence for tendency purposes: 1. whether the Crown gave each Accused reasonable notice in writing of its intention to adduce the evidence: s.97(1)(a) Evidence Act 1995; 2. whether the Court thinks the evidence will, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value: s.97(1)(b); 3. if the requirements of s.97(1)(b) are satisfied, the tendency evidence about an accused person cannot be used against that person unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on that accused person: s.101(2).

The Notice Issue - s.97(1)(a)

Mr Wilson SC, counsel for LN, made submissions concerning the requirement for reasonable notice with respect to the proposed tendency evidence. I will deal briefly with that issue.
In my view, the Crown's tendency notices dated 9 February 2017 set out in sufficient detail the tendency or tendencies upon which the Crown seeks to rely, and the suggested link between the alleged tendency and the facts in issue with respect to each Accused. Unlike the Crown's original tendency notices dated 9 November 2016, the tendency notices of 9 February 2017 included summaries of the substance of the evidence to which the notice related together with dates, times, places and circumstances at or in which the alleged conduct occurred, as contained in the particular interviews or the statement of FN referred to in the notices. I am satisfied that the tendency notices of 9 February 2017 complied with the requirements of Clause 5 Evidence Regulation 2015.
It is correct to observe that the tendency notices of 9 February 2017 were served 11 days prior to the date fixed for trial, namely 20 February 2017. As it happens, the date for empanelment of the jury was put back to 27 February 2017 at the request of the parties.
The parties were in a position on 20 February 2017 (if not before) to address the Crown application that this evidence be used for tendency purposes, with written and oral submissions being made by counsel for each of the Accused. Clearly, the ruling which I am making will be known to the parties prior to the empanelment of the jury on 27 February 2017.
It was not submitted that any actual prejudice had been suffered by either Accused as a result of the relevantly late notification by the Crown of its intention to rely upon this evidence for tendency purposes.
I am satisfied that the requirements of s.97(1)(a), concerning reasonable notice in writing by the Crown, have been satisfied with respect to each of LN and AW in this case. If it had been necessary to resort to a grant of leave to the Crown under s.192 Evidence Act 1995, I would have made any necessary grant of leave.
I have kept in mind that the evidence in question will be admitted at the trial and accordingly will be before the jury. The present controversy relates to the use of that evidence and, in particular, whether it may be relied upon for tendency purposes.
I have kept in mind, as well, that there does not appear to be an issue that each Accused made the statements referred to in the February notices, the vast majority of which have been recorded electronically.
Accordingly, I am satisfied that reasonable notice has been given by the Crown of the application to rely upon evidence for tendency purposes against each of LN and AW.

Applicable Legal Principles Concerning Tendency Evidence

If evidence is admissible for a non-tendency purpose, it cannot be used for tendency purposes unless the requirements of ss.97 and 101 are met: s.95 Evidence Act 1995.
Tendency evidence is a species of circumstantial evidence: Elomar v R [2014] NSWCCA 303; 316 ALR 206 at 277 [356]. Elsewhere in Elomar v R, it was said at 278 [359]: "Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning."
In Elomar v R, the Court of Criminal Appeal said at 260 [253]: "Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 at [124]."
The Court of Criminal Appeal continued in Elomar v R at 278 [360]: "The process of reasoning is: on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; it can therefore be concluded or inferred that the person had a tendency to act in that way; by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency. Alternatively: on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind; it can therefore be concluded or inferred that the person had a tendency to have that state of mind; by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency. Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."
In considering the probative value of evidence under s.97(1)(b), an assumption of the jury's acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 [52].
As it happens, nearly all of the evidence relied upon by the Crown (which is the subject of this judgment) is in video, audio or documentary form. It does not appear that there would be any issue of credibility or reliability about that material in any event. It may be that issues of credibility or reliability will arise concerning FN's evidence.
With respect to the concept of "significant probative value", the word "significant" means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46].
As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has "significant probative value" is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83].
In IMM v The Queen, the High Court said at 313-314 [45]: "The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence."
Application of the "significant probative value" test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light.
I note that in Hughes v R at [182], the Court of Criminal Appeal said that an assessment of significant probative value involved consideration as to whether there is a real possibility of an alternate explanation consistent with innocence.
It is appropriate to consider the level of generality of the stated tendency for the purpose of assessing significant probative value: R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at 468 [53]; Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528 at 537-538 [40].
The evidence need not demonstrate a tendency to commit a particular crime. It is not necessary for the acts relied upon to be rare or unusual: Aravena v R [2015] NSWCCA 288 at [87]. There is no need for there to be a striking pattern of similarity between the incidents: R v Ford at 485 [125]. However, qualitative differences in conduct are relevant: Sokolowskyj v R at 538 [41]-[43]; BC v R at [78]-[81].
The second step, being a s.101(2) assessment, calls for consideration of probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the Accused.
In DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at 597 [150], Simpson J observed that the term "prejudicial effect" in s.101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted. In R v Ford, at 469 [58], Campbell JA addressed the topic of prejudice under s.101(2) of the Act in the following way: "The same concept, of evidence being prejudicial if it involves a risk of an unfair trial, has been adopted in relation to section 101(2). In R v RN [2005] NSWCCA 413, this Court (Sully J, with whom Grove and Howie JJ agreed) adopted, as expressing the essence of the task called for by section 101(2), the statement by McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528-9: 'If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial'."

Reliance Upon Evidence for Tendency Purposes Against LN

Mr Wilson SC made helpful written and oral submissions on the question of the Crown's proposed use of evidence against LN for tendency purposes. I have had regard to the written submissions of Senior Counsel (MFI1) together with oral submissions made by him and by the Crown at the pretrial hearing.
The Crown contends that LN had a tendency to act in a particular way and to have a particular state of mind as set out at [61] above. The Crown identified the facts in issue as to which the proposed tendency evidence would apply (at [63] above).
The Crown seeks to rely upon the tendency evidence involving acts of LN over a period of time, and statements made by her as to her state of mind at different times, including an intention to harm or kill Joseph, as a means of proving, by a process of deduction, that LN at the time when it is asserted that the fatal injury was inflicted, acted in a violent way towards Joseph whilst having a particular state of mind, namely an intention to kill him or inflict grievous bodily harm against him. The Crown alleges that the fatal injury was inflicted by LN on or about 3 August 2014, but does not attempt to identify the precise time when it occurred, although it is contended that it took place in the Oberon house.
Accordingly, the Crown will invite the jury to draw an inference that, because LN had a tendency to cause physical harm to Joseph with a particular state of mind (intending to kill him or cause serious harm), that those aspects constitute stepping stones along the way to a conclusion that LN in fact struck the fatal blow or blows to Joseph on or about 3 August 2014 accompanied by the relevant intention for the crime of murder. The principles explained in Elomar v R at [80]-[82] above are called in aid by the Crown in this regard.
I am satisfied that reliance upon this evidence in this way carries significant probative value. The evidence is significantly influential in the context of fact finding in this trial. In reaching this view, I have had regard to the role of the tendency evidence in conjunction with all the evidence to be adduced by the Crown in the trial.
Mr Wilson SC submitted that the Court should have regard to whether there is a real possibility of an alternate explanation consistent with innocence in this case, relying upon the principle mentioned at [89] above. It was argued that the Court should have regard to the alternate explanation arising from the suggested fall in the park where, on the defence argument, Joseph sustained a head injury.
It will be apparent from what I have said earlier that there are very live issues in the trial, as to who was in the park, and what in fact occurred. I have taken into account the intention of the defence to rely upon this scenario but I do not consider that that proposed argument undermines what is otherwise the significant probative value of the evidence. It will, in due course, be a matter for the jury to consider what findings of fact should be made in light of all the evidence to be adduced at the trial.
Accordingly, I am satisfied that the evidence has significant probative value so as to satisfy the requirement in s.97(1)(b) Evidence Act 1995.
I turn to the assessment under s.101(2) of the Act to consider whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on LN. I have kept in mind the principles referred to at [92]-[93] in undertaking this task.
In considering the issue of prejudice, it is important to note that the evidence will be before the jury in any event for other purposes. This is not a case where the evidence will only be before the jury if admitted for tendency purposes.
I am satisfied that the proposed tendency evidence with respect to LN has substantial probative value. I am satisfied, as well, that the probative value of that evidence substantially outweighs any prejudicial effect which the evidence may have on LN in this trial. I note, as well, that there is no factual dispute in this case that LN said the things which are attributed to her in the tendency notice, at least in the various recorded interviews undertaken with her by police.
It is appropriate to keep in mind that the Court will give directions to the jury concerning the use of this evidence for tendency and other purposes. A draft direction concerning tendency evidence against LN has been furnished by the Crown (MFI3) and I have taken into account this material for the purpose of this ruling.
I record my conclusion that the evidence upon which the Crown seeks to rely against LN for tendency purposes is, in my view, admissible for that purpose having regard to the requirements of ss.97 and 101 Evidence Act 1995.

Reliance Upon Evidence for Tendency Purposes Against AW

Ms Moen, counsel for AW, submitted that the evidence upon which the Crown sought to rely should not be permitted for tendency purposes against AW. It was noted that the Crown puts its case against AW on the basis of complicity, where AW is not said to have inflicted the fatal injuries and may not have been present when they occurred.
Ms Moen noted that the evidence relied upon by the Crown in the tendency notice of 9 February 2017 was already admissible as direct evidence as to the existence of the joint criminal enterprise, and AW's alleged participation in it during the period from 14 June 2014 to 3 August 2014. It was argued that, although admissible for that purpose, there was no identifiable tendency purpose against AW upon which the Crown is able to rely in this case. It was submitted, as well, that if the evidence was admitted for tendency purposes as well, there were areas of prejudice which would arise.
The Crown made oral submissions in support of the tendency application against AW (T65-70, 21 February 2017).
I have already concluded that evidence is admissible for tendency purposes against LN. It was part of my reasoning, applying statements in Elomar v R in particular, that the proposed tendency evidence in the case of LN could be used appropriately in the relevant inference-drawing process in her case.
The position is different with respect to AW. The statements of AW over a period of time, and his admissions as to conduct and words, are to be relied upon by the Crown as part of its proof that AW was party to a joint criminal enterprise with LN and that AW participated in that joint criminal enterprise. As I understand the Crown case, the Crown does not contend that AW struck the fatal blow to Joseph, nor that he was necessarily present when that occurred.
In reality, the Crown relies upon this evidence in proof of the elements of the offence which it alleges AW has committed.
It is important to keep in mind that s.97(1) is concerned with evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind. The assessment as to whether the evidence has "significant probative value" under s.97(1)(b) must focus upon that suggested use of the evidence. Here, the evidence which the Crown seeks to rely upon for tendency purposes is, in reality, the same evidence that the Crown relies upon to prove the offence against AW. I do not see any additional tendency purpose available to the Crown with respect to this evidence. The difficulties which the Crown had in submissions in articulating how the tendency principle would operate with respect to AW, confirms my conclusion that the evidence cannot, in fact, be used for a tendency purpose (T68-70, 21 February 2017).
Further, even if there was some tendency purpose available against AW (which I do not find), a substantial degree of confusion would be introduced into the directions to the jury with respect to tendency evidence concerning AW. There is almost a process of circular reasoning where the Crown relies upon the same matters as direct evidence of AW's guilt, whilst at the same time saying that those matters also reveal a relevant tendency.
I am not satisfied in the case of AW that the evidence, which will otherwise be before the jury, has significant probative value as tendency evidence to be adduced against him.
In these circumstances, it is not necessary to consider the application of s.101(2) by reference to the probative value of the evidence and its prejudicial effect. It is sufficient to observe that, if this evidence was able to be used for tendency purposes, a measure of prejudice may well arise from the likely confusing directions which a jury would be given as to its use.
To the extent that the Crown relied upon passages in BC v R and AC v R [2016] NSWCCA 21, I record my conclusion that nothing said in those cases is of assistance to the Crown with respect to AW.
I decline to allow the Crown to rely upon the evidence contained in the tendency notice of 9 February 2017 for tendency purposes in the trial of AW.

Conclusion

For the above reasons: 1. I allow the Crown to rely upon the evidence contained in the tendency notice of 9 February 2017 with respect to LN for tendency purposes; 2. I decline to permit the Crown to rely upon the evidence contained in the tendency notice of 9 February 2017 with respect to AW for tendency purposes.

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