THE COURT: On 8 November 2017, the Court heard and determined a Crown appeal in relation to a ruling as to evidence during the course of a trial that is currently underway. The appeal was taken pursuant to the terms of s 5F(3A) of the Criminal Appeal Act 1912. The effect of the orders made by the Court was to allow the appeal and reserve reasons. These are the reasons for the orders of the Court.
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Background Circumstances
The respondent, MM, pleaded not guilty to 4 charges the most serious of which is wound with intent to cause grievous bodily harm, contrary to s 33 (1)(a) of the Crimes Act 1900. The other charges are recklessly wound, affray and use of an offensive instrument with intent to commit the indictable offence of assault, contrary the provisions in s 35(3), s 93C(1) and s 33B(1)(a) of the Crimes Act, respectively. The trial is proceeding.
A Notice of Appeal dated 6 November 2017 was filed and, because the trial was adjourned for 24 hours to enable the appeal to be determined, the Court dealt with the appeal as a matter of urgency.
The issue, determined by the trial judge, relates to the admissibility of Remarks on Sentence in a previous trial in order to prove an admission to agreed facts ("the Agreed Facts") upon which, it is said, the prior sentence proceedings were based.
It is unnecessary to recite all of the facts in the current proceedings and, given that the matter is to be heard by a jury, probably inappropriate. It is sufficient, for present purposes, to note that, on 29 August 2013, another judge of the District Court sentenced the respondent on two counts of recklessly wounding a person whilst in company, contrary to s 35(3) of the Crimes Act. The sentence imposed is irrelevant.
The Certificate of Conviction has already been tendered in the current proceedings, but the Crown seeks, in the current proceedings, to rely upon admissions of the respondent in the previous proceedings to show a tendency or tendencies that the respondent has or had to act in a particular way. Those tendencies are:
1. to possess a knife;
2. to use a knife to stab persons;
3. to use a knife in a physical altercation;
4. to assault persons whilst in the company of other males;
5. to wound persons with a knife whilst in the company of other males; and
6. to wound multiple persons in the course of one altercation.
The aforesaid tendencies were notified pursuant to the terms of the Evidence Act 1995 and sought to be adduced pursuant to the terms of s 97 of the Evidence Act.
On 19 October 2017, the current trial judge conducted a voir dire on the admissibility of proposed tendency evidence. It should be noted that, during the course of submissions before the Court on this appeal, it was clarified by the Crown that the tendency went not only to the act of stabbing, but to defeat the proposition that there was a reasonable possibility that the stabbing was accidental or an act of self-defence or provoked and also to identify the respondent, amongst others, as the person who stabbed the victim.
In the course of dealing with the issues between the parties, the trial judge has ruled that the tendency evidence could be adduced. This Court is not concerned with the correctness of that ruling.
During the course of the proceedings on 19 October 2017, the Crown tendered a bundle of documents relating to the prior offences, including statements of the victims and a document headed "Agreed Facts" that, the Crown alleged, had been prepared for the purposes of the earlier sentencing proceedings. The Agreed Facts are signed by a representative of the Crown, but not by the respondent.
As earlier stated, on 23 October 2017, the trial judge ruled that the evidence of tendency in the Crown notice was admissible. The trial judge issued reasons for judgment.
The Agreed Facts contain a number of allegations that are only marginally relevant, if at all, to the tendency issue and/or the issues in these proceedings. As a consequence, between 23 October 2017 and 6 November 2017, the parties sought to reach an agreed version of the Agreed Facts that could be tendered to the jury. Those efforts were incomplete and, at the stage of the appeal, unsuccessful. On 6 November 2017, the Crown sought to tender the Agreed Facts from the 2011 proceedings, as the tendency evidence.
When the respondent submitted to the trial judge that the Agreed Facts were not signed by the respondent during the earlier proceedings and that the transcript of the earlier proceedings was not available, the Crown sought to refer to and rely upon the Remarks on Sentence in the previous proceedings, which, it said, confirmed that the facts were agreed, in support of the proposition that the Agreed Facts were admissions by the respondent.
Initially, the trial judge indicated that he would allow the Remarks on Sentence to be adduced as tendency evidence. On 5 and 6 November 2017, the trial judge raised with the parties two decisions of the Supreme Court (R v Jacobs (No 5) [2013] NSWSC 946 and Cuong Ly v HIH Insurance Limited (in Liquidation) [2015] NSWSC 790).
Having raised with the parties the two earlier mentioned judgments and given the parties an opportunity to comment on those judgments, the trial judge, on 6 November 2017, ruled that the Agreed Facts and the Remarks on Sentence were inadmissible and indicated that the Crown could tender only the Certificate of Conviction relating to the 2011 offending.
The basis for that ruling was that the trial judge followed the reasoning of Brereton J in Cuong Ly v HIH, supra. In the reasons for judgment for that ruling, delivered, ex tempore, the next day, his Honour said:
"If it was the statement of facts or a variation of the statement and the facts was to be put before the jury, particularly in respect of words that were said-and - and as I understand it, that is of an insulting racial type - that would go to the similarities in the particular matter before this Court, I do not agree. The evidence as to what was said at the commencement of the altercation are contradictory, and at this time, I have not heard the accused's evidence, if he is to give evidence, but I have heard the matters in cross-examination put by the accused's counsel, which, in my mind, are equivocal as to whether or not there is a racial inference that might be drawn.
Having considered the matter, I am of the view will that what can be put is effectively the elements of the charge that was pleaded to in 2013, and not the facts. And in that regard, that document should include the elements of the charge to which the plea was entered. The Court should not enter into any question of fact where witnesses have already given evidence, or may not have given statements, possibly evidence, where the Court is not in a position to make any determination."
Part of the reasoning of the trial judge, based upon the submissions of the parties and the previous judgments to which reference has already been made, relied upon the provisions of s 91 of the Evidence Act to the effect that evidence of a decision or finding of fact, relevantly, in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
Perhaps understandably, the parties' written submissions in this appeal address at length the application of s 91 of the Evidence Act. However, during discussions with the Court, it was correctly conceded that s 91 of the Evidence Act has little or nothing to do with the current issue.
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Characterisation of Dispute and Consideration
The major difficulty associated with the ruling of the trial judge stems from a mischaracterisation of the matters to be decided. As earlier stated, this Court is not dealing with the admissibility of the tendency evidence or whether it meets the tests in s 97 and s 101 of the Evidence Act. The immediately preceding sentence should not be understood to suggest that the Court has any view, for or against, such issues. It is only intended to clarify that the Court, as presently constituted, is not dealing with the issues at all.
The characterisation of the issue is that the debate before the trial judge concerned whether the Agreed Facts were admissible to prove tendency. That question is required to be determined in a voir dire. A voir dire was conducted.
During the course of the voir dire, issue was taken as to whether the Agreed Facts were "admissions" by the respondent, given the circumstance that the Agreed Facts were not signed by the respondent. It was submitted that the absence of the Applicant's signature meant that the Agreed Facts were not, as a matter of fact or law, agreed and could not be used as admissions of the respondent.
In that context, the Remarks on Sentence were sought to be tendered, as an exhibit on the voir dire only, as proof that the Agreed Facts were, in fact, agreed.
Thus, the Remarks on Sentence were being utilised not as evidence of a finding of fact in the earlier proceedings, being a fact that was in issue in that proceeding, but were being adduced for the purpose of proving that certain facts were not in issue in the earlier proceedings and to prove the existence of agreement between the parties as to the facts upon which the earlier sentence hearings proceeded (i.e. to prove that the statements said to be admissions were uttered). In those circumstances, s 91 of the Evidence Act does not preclude the admissibility of the Remarks on Sentence on the voir dire.
During the course of submissions in this appeal, it was accepted, correctly, that the Remarks on Sentence could not be adduced in the proceedings before the jury, but only on the voir dire to prove the agreement to the facts alleged to be admitted.
During the course of submissions, the provisions of s 191 of the Evidence Act were discussed. The provisions of s 191 of the Evidence Act are not relevant to the current debate.
First, the Agreed Facts are not agreed facts in the proceedings before the trial judge in these proceedings. Secondly, in the prior sentence proceedings they were not an agreed fact under s 191 of the Evidence Act and, in particular, because they were not signed by both parties.
Thirdly, there is no suggestion that the Agreed Facts in the earlier proceedings were agreed facts pursuant to the provisions of s 191 of the Evidence Act and, further, there is no suggestion that the Agreed Facts were not admissions made generally and beyond the proceedings to which they related. If they were intended to be a statement of agreed facts limited to the then sentencing proceeding and without admission of the facts generally, one would expect a statement in the document to that effect.
For the foregoing reasons, the Court issued the orders on 8 November 2017, the substantive aspects of which, as a matter of abundant caution, are recited below:
1. Allow the appeal.
2. Set aside the order made by Judge Maiden on 6 November 2017.
3. The Remarks on Sentence of Judge Arnott SC in R v Mohammad Moussa on 29 August 2013 are admissible on the voir dire to prove the existence of an agreement or admission to a prior wounding by knife.
4. Note that, in the absence of the parties reaching agreement in relation to the admission of the Agreed Facts in Annexure B to the Affidavit of Megan Betteridge sworn 7 November 2017, that it is a matter for the trial judge to determine any objections to the admissibility of the Agreed Facts.
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Decision last updated: 07 August 2018