R v MEYN, John Michael

Tendency evidence 5On 15 June 2012 the Crown served a tendency notice in accordance with s 97(1)(a) of the Evidence Act 1995. The form of tendency identified in the notice is said to be a tendency on the part of the accused to act "in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship". 6The tendency notice identified various statements which were the subject of the notice. The argument on this point has proceeded on the assumption that the relevant witnesses will give evidence to the effect outlined in those statements. The evidence concerns three incidents that occurred in the late 1990s. The accused was born in 1978. These incidents were all said to have occurred when he was in his late teens and early twenties. In April 2011 he was 31. 7I should add that, consistent with the authorities, is it is not part of my function to assess the reliability of the evidence. As I understand, this evidence is in part or in whole disputed. Nevertheless, for the purposes of assessing its admissibility, I am required to take the evidence at its highest. 8The first incident is said to have occurred on 15 October 1997. According to Ms Angela Daley, about two years previously the accused and she commenced a relationship. She describes the first six months as harmonious but the last eighteen months were said to involve abusive conduct by the accused. She stated that in her arguments with the accused he would be aggressive and push her, but he did not punch her. 9On 15 October 1997, about a week after she ended the relationship with the accused, he is said to have come to her house. Her father came across the accused gripping her arm and intervened which allowed her to climb over a fence. According to Ms Daley's father, the accused demanded to see her but calmed down and the police were called. After they spoke to him, the accused left. However, he returned later and attempted to smash a window but was unsuccessful. According to the accused's father, he then shot himself in the stomach with a nail gun. 10This incident did not involve either the accused inflicting serious physical harm upon an ex-girlfriend or the use of force to anyone's neck. The Crown only faintly pressed for the admissibility of this evidence. 11According to Ms Angela Luhovy, she met the accused in mid 1998 and was in a relationship with him for 12 to 18 months. She describes the two of them as having broken up a number of times and then reunited. The second incident sought to be relied upon by the Crown is said to have occurred on 24 October 1999, just after they had broken up for the first time. On that night, Ms Luhovy said that she finished her shift at Penrith Panthers Club and received a lift home from a work colleague, Adam Whitton. She said that as they approached a roundabout at the front of the club, the accused jumped on the bonnet and the roof of the car. In paragraphs 5 and 6 of his statement Mr Whitton describes the events that followed in these terms: "I got to the roundabout, he [the accused] moved out onto the middle of the road, I stopped right in front of him. He jumped onto the bonnet and stomped on it a couple of times. I put the handbrake on and jumped out. He jumped off the car on the passenger side. I went around the back of the car. He came at me, swinging a punch, but it missed. I grabbed him and held his arms. Security arrived. At the same time a couple of mates were yelling at him to stop. Security tackled him to the ground. The duty manager came and with security took him to Mulgoa Road. I then spoke with the duty manager for a while, I got back to the car, drove around the roundabout towards the traffic lights to leave Panthers. He was standing on the side of the road just before the crossing. I drove up to the lights, as I was getting near him, I sped up and try and get past him, he ran onto the road, I heard a loud bang coming from the back of the car. I stopped the car and got out of the car, at this time he was sliding of[f] the back of the car as if he had been on the back. He took off into the carpark, I chased him. I caught and tried to hold him until security got there. He had his back to me, he turned around and punched me with his right fist to the left jaw, I felt pain in the area immediately. He then placed both hands around my neck, digging both thumbs into my throat. He was saying things at the time but I couldn't remember what he was saying. I tried to get his hands off my throat as it was hurting and I was having trouble breathing. I couldn't move his hands, so I placed my hands around his throat, he let go of my throat, I held him a bit longer around the neck. A couple of guys started walking towards me telling me to let him go. I let him go. He ran off back towards the car and jumped on the bonnet, jumping up and down a few times. I ran towards him again and I saw security running to the car as well. He jumped off, running across Mulgoa Road towards the park. Security ran after him." (Emphasis added) Mr Whitton then describes a further chase in which punches were exchanged. 12One inference that could be drawn from Mr Whitton's evidence is that the aggression allegedly shown by the accused in attacking the car arose out of a belief on his part that Mr Whitton was either in a relationship with Ms Luhovy, or one or the other of them was planning that. In that context, the Crown submitted that the critical part of this passage was the alleged actions of the accused in placing his hands around the neck of Mr Whitton and applying force. When taken with other evidence of Ms Luhovy, which I will next describe, the Crown submits that this incident indicates a tendency on the part of the accused to use that method of attack when acting on his jealous or possessive instincts following the break up of a relationship. In a sense, this was a refinement of the tendency alleged against the accused, and it is one that comes closer to the allegations at the heart of the Crown case. 13The third incident is said to have occurred just prior to Christmas 1999 when the accused and Ms Luhovy had reunited for the last time. Ms Luhovy stated that they had been Christmas shopping together. She described that upon their return the accused became abusive and insulting. Paragraph 18 of her statement states: "I got off the bus and Johnny followed me all the way down the street and into my house. The whole time I was saying to him, 'Leave me alone. What is wrong with you? You need some help'. He was being smart at me. At first I thought everyone was out but my dad was actually home. He followed me into the bedroom and I started yelling at him 'leave me alone'! He said 'No, look what you've done'. We were standing facing each other in the bedroom and he very suddenly grabbed me around my neck and pushed me back into the mirror doors of the wardrobe in my room. He grabbed me with one hand and he squeezed a little. He didn't squeeze so hard I couldn't breathe but hard enough that I could feel the pressure of his hand on my neck. I didn't say anything - I just looked him in the eyes, and he was laughing, like a sniggering laugh. He kept holding my neck for about 10 seconds and then he let go and then stepped back. He looked a little shocked himself but he kept laughing a little, the same sniggering type of laugh. I said 'Is that what you want to do? You want to hit me? Come on then - hit me.' I can't remember if he replied to that or not. I said it because when I was looking into his eyes I thought he just wanted to exert power over me. He started walking out of my bedroom. I ran up to him and pushed him in the back and he stumbled up the hallway and I quickly shut the door and locked it and started crying. That was the only time he was physically violent towards me." (emphasis added)

Statutory provisions and significant probative value 14Sections 97 and 101 of the Evidence Act and the definition of "probative value" in Part 1 of the Act's Dictionary provide: "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. ... 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." 15Sections 97 and 101 are exclusionary rules that apply to evidence that a person, in this case the accused, "has or had a tendency ... to act in a particular way". They operate on evidence of a person's tendency which has already met the threshold test for relevance in s 55 of the Evidence Act. As was noted in R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492, by Simpson J at [23] (McClellan CJ at CL agreeing): "... tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind)." 16In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308, at [33] to [35], Simpson J (McClellan CJ at CL agreeing) analysed the steps involved in addressing the tender of tendency evidence under s 97. Her Honour stated: "[33] It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind: (i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury); (ii ) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence 'to be adduced', and implicitly by the use of the subjunctive 'would not' in s 97(1)(b). (iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of 'probative value' contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue; (iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, ie if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible. [34] I have not, to this point, said anything about the identification of the 'fact in issue', the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant. [35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence 'to be adduced' is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated." 17In Bangaru v R [2012] NSWCCA 204, I explained at [263] to [265] (Beazley JA and Hall J agreeing) how the principles stated by Simpson J in Fletcher were endorsed by a five member Court of Criminal Appeal in the context of considering s 98 of the Evidence Act in DSJ v R [2012] NSWCCA 9; 259 FLR 262, with one modification. That modification was the fourth proposition stated by Simpson J in Fletcher at [33]. It was reformulated by Whealy JA (Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreeing) in DSJ at [72] so that the test of significant probative value requires a trial judge to: "[T]ake the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue." 18That said, it has to always be remembered that such "importance" or "consequence" is to be assessed by the evidence's capacity to justify the application of tendency reasoning, as explained in Cittadini, to the evidence sought to be adduced as a means of establishing the facts in issue. 19In R v PWD [2010] NSWCCA 209; 205 A Crim R 75, Beazley JA (Buddin J and Barr AJ agreeing) reviewed the authorities concerning tendency evidence and concluded at [79]: "The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour". PWD was a Crown appeal from a rejection of tendency evidence. The respondent was charged with a number of indecent assaults on male teenage students at a boarding school. The Crown sought to adduce evidence of other indecent assaults. The Crown did not allege that there were "striking similarities" in the respondent's conduct but rather contended there was "a pattern of behaviour, modus operandi, system or pattern and common threads ... in the respondent's conduct" (PWD at [35]). That was held to be sufficient. 20Needless to say these are all matters of fact and degree. A single previous incident may be able to meet the statutory test of significant probative value, however, to do so it is likely that there will need to be strong or even striking similarities between that one incident and the facts in issue so as to enable the test to be met by the use of tendency reasoning. Generally, if there is more than one incident, then the less likely it is that there needs to be such strong similarities to meet the statutory test, bearing in mind that a person's habits, tendencies or modus operandi commonly bend to meet particular circumstances. This is illustrated by the discussion in Bangaru at [267] to [275].

Submissions and consideration 21The Crown Prosecutor noted that the accused's plea puts in issue all of the elements of the crime of murder. He submitted that the tendency evidence that the Crown seeks to lead had significant probative value in relation to whether the accused committed the act or acts which caused the death, especially her asphyxiation, and whether any such acts were undertaken in self defence or involved the accused being the aggressor. In that regard the first incident involving Ms Daley can be disposed of quickly. The incident was remote in time and involved the self infliction of harm by the accused. It bears little similarity to the facts alleged by the Crown in this case. However, the Crown Prosecutor focussed on the second and third instance, in which the accused placed his hands on the throat of a person. This is much closer to what is said to be the circumstances of this case. 22Mr Chapple SC points to the following matters as combining to negate any suggestion that the evidence of the second and third instances has significant probative value. First, he points to the lapse of time between those events and the death of Ms Rathbone in 2011. Second, he noted that with the second incident, and in contrast to Ms Rathbone, Mr Whitton was not a person with whom the accused was either in, or had been in, a relationship. Third, he contended that in Mr Whitton's case the strangling allegation only arose in a context in which Mr Whitton had first chased the accused into a nearby field and was at that point said to be attacking him. Fourth, Mr Chapple SC pointed out that in the case of both Mr Whitton and Ms Luhovy, neither of them was in fact killed. Fifth, Mr Chapple SC noted in Ms Luhovy's case she stated that on no other occasion was the accused violent towards her. 23Mr Chapple's fourth point does not advance the matter far. The fact that neither Mr Whitton or Ms Luhovy were killed is not inconsistent with the accused at that time intending, albeit briefly or unsuccessfully, to inflict grievous bodily harm. In any event, as I have stated, the principal facts in issue to which this tendency evidence is said to relate are whether the accused voluntarily engaged in the act that caused the death of the deceased, that is strangling her, and whether he did so in self defence or was the aggressor. Its relevance to the question of intention was not at the forefront of the Crown's argument. 24However, the balance of Mr Chapple SC's points have considerable force. As I have stated the concept of significant probative value in s 97(1) requires that the tendency evidence have the capacity to be of significance or consequence for the establishment of the relevant fact in issue by the use of tendency reasoning. It follows from the above analysis that there does not necessarily have to be striking similarities between the evidence sought to be adduced and the facts in issue. However, there must be sufficient common features to justify a conclusion that the evidence has the capacity to be of importance or consequence. 25At this point there are only two remaining incidents. As I have stated in broad terms the fewer the previous incidents, the stronger the common features between those incidents and the facts alleged against the accused need to be to meet the relevant statutory test. 26Even if the evidence of Mr Whitton was considered with the incident involving the alleged attempt to strangle Ms Luhovy, three matters negate the suggestion that the apparent attempt to strangle Mr Whitton has significant probative value in demonstrating the facts in issue in this case as identified by the Crown Prosecutor. 27The first two are the distance in time between that event and the events the subject of the Crown's case, and the identity of the victim of that incident compared with the Crown case. The third and most significant matter is that Mr Whitton's statement suggests that the attempted strangulation of him by the accused did not arise from the accused's acting out of jealousy or possessiveness, but as a defensive mechanism to the threat posed by Mr Whitton's pursuit by him, albeit it arose out of the accused's initial aggression. 28This leaves the third incident which is said to have involved violence towards Ms Luhovy. At the time of that incident the accused and Ms Luhovy had not broken up and there was no suggestion in her statement that at that time the accused was acting out of jealousy or possessiveness. In my view, a single incident in 1999 when the accused placed his hands on his then girlfriend's throat is not sufficient by itself to be significantly probative of whether he did the same thing towards his ex-girlfriend, namely the deceased, in 2011 when the state of their respective relationships was very different. 29Accordingly I am not satisfied any of these incidents have significant probative value vis-à-vis the demonstration of the facts in issue. This conclusion makes it unnecessary to consider the operation of s 101 of the Evidence Act which was also relied on by Mr Chapple SC. 30I reject the tender of the tendency evidence. 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 December 2012