R v LN; R v AW

The Central Trial Issue

1. 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.
2. 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

1. 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.
2. 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

1. 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 Those tendency notices were subsequently withdrawn and, in their place, tendency notices dated 9 February 2017 were served upon the legal representatives for each Accused.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
2. 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.
3. 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.
4. 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.
5. 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
6. 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.
7. 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.
8. 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.
9. 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

1. 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)

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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

1. 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.
2. 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."
3. 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]."
4. 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."
5. 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].
6. 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.
7. 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].
8. 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].
9. 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."
10. 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.
11. 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.
12. 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].
13. 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].
14. 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.
15. 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

1. 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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

1. 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.
2. 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.
3. The Crown made oral submissions in support of the tendency application against AW (T65-70, 21 February 2017).
4. 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.
5. 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.
6. In reality, the Crown relies upon this evidence in proof of the elements of the offence which it alleges AW has committed.
7. 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).
8. 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.
9. 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.
10. 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.
11. 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.
12. 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

1. 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2017