R v Parker

The so-called tendency evidence

1. The Crown case is that the deceased was either unwilling or unable to inject himself and therefore it ought be concluded that the accused either injected him, or assisted him to inject himself, with the heroin which caused his death.
2. In support of this proposition the Crown relied on the following evidence: 1. Evidence of the deceased's sister, Margaret McBride, that she had used intravenous drugs with the deceased and she had injected him on several occasions because he told her that he could not do it himself; 2. Evidence of Michael Ballard, Ms McBride's partner, that the deceased could not inject himself and "always had to get someone to do it for him" and that Mr Ballard had seen the deceased arrange for others to inject drugs into him; 3. A medical record of Sarah Harvey, Registered Nurse, which recorded: "Presented to clinic c/o vomiting last few days. Thinks it is related to drug use, has had IV ice and IV buprenorphine. Vital signs OK. Pupils pinned. Reassurance given. Lump over injection site, states was injected by another person."
3. The Crown also relied on an observation made by a nurse who assisted Dr Olaf Nielssen at a review he conducted on 29 April 2016 that the deceased "seems to have a coarse tremor". No objection was taken to this evidence by the accused as long as it was limited to Dr Nielssen's observations and a description of the meaning of the term, "coarse tremor".
4. The Crown submitted that it had not served a tendency notice because the evidence was not tendency evidence. Mr Crown sought to distinguish between a tendency on the one hand and a fact on the other, and relied on Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [358] (Bathurst CJ, Hoeben CJ at CL and Simpson J). He contended that, in the present case, the Crown case was based on the fact that the deceased did not inject himself and that the evidence set out above went to prove that fact. In the course of argument, the Crown submitted that, if it were properly to be characterised as tendency evidence, the notice requirements ought be waived as the evidence was of significant probative weight.
5. The relevant path of inferential reasoning for tendency evidence was summarised as follows by the Court of Appeal said in Elomar v R at [359]-[360]: "[359] . . . Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. [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. . . . Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way . . . on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct . . . on that occasion."
6. Mr Ozen drew my attention to other evidence which is to be called in the Crown case that the deceased frequented an injecting room in which drug users are required to self-inject and are prohibited from having any third person inject them, or assist with the injections.
7. In my view, the evidence set out in (1)-(3) above is plainly tendency evidence. The Crown seeks to prove by the evidence referred to above that the deceased did not inject himself, but had others inject him with intravenous drugs, on other occasions, for the purpose of proving that the accused did not inject himself on 23 June 2016 and that the accused (who, on the Crown case, was the only other person present) injected the deceased.
8. Accordingly, the admission of the evidence referred to above is limited by the tendency rule in s 97 which requires fulfilment of two conditions: first, that, relevantly, the Crown has given reasonable notice in writing of its intention to rely on the evidence (s 97(1)(a)); and, second, that the court thinks that the evidence, by itself, or with other evidence in, relevantly, the Crown case, will have "significant probative value" (s 97(1)(b)). Mr Ozen did not take any point about notice but submitted that the evidence did not have significant probative value. Further, he submitted that, even if the evidence were admissible pursuant to s 97, it ought be excluded pursuant to ss 135 and 137.
9. The question whether the Crown can exclude the possibility that the deceased alone injected himself is a significant, if not the principal, issue in the proceedings. Mr Ozen conceded that if the Crown could prove that the accused injected the deceased or helped him inject himself, the accused would be guilty of manslaughter by unlawful and dangerous act. It is not in issue that the deceased died as a result of a heroin overdose. Nor is it in issue that the heroin which caused his death had been supplied to the deceased by the accused.
10. I am satisfied that the evidence referred to above, which tended to prove that the deceased did not inject himself on other occasions, has a "significant probative value" within the meaning of s 97(1)(b), since, if accepted, it substantially increases the prospect that shortly prior to his death, the deceased did not inject himself and that, therefore, the accused injected him, or helped the process of injection in some way. In my view, the evidence strongly supports proof of the deceased's tendency (to have others inject him because he could not do it himself); and the deceased's tendency strongly supports the proof of a fact that makes up the offence charged (that the accused injected the deceased or assisted him to inject himself). In these circumstances, such evidence has significant probative value: Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ).
11. It is also necessary to consider s 101(2), which prohibits the use of tendency evidence about a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
12. Mr Ozen submitted that unfair prejudice could arise in the present case because there was a "real risk that the jury will impermissibly attach weight" to the evidence of Ms McBride and Mr Ballard. I do not accept that this is a relevant prejudice: what is required is unfair prejudice. Prejudice is not the other side of the coin to probative Crown evidence. I am not satisfied that Mr Ozen has identified any relevant prejudicial effect which could be caused by the evidence in this category. In these circumstances I am satisfied that the probative value of the tendency evidence substantially outweighs any prejudicial effect that it may have on the accused.
13. I am not satisfied that the evidence ought otherwise be excluded under ss 135 or 137. In particular, I am not satisfied that there is a danger that the tendency evidence might be either unfairly prejudicial or misleading or confusing.

The business record of Ms Harvey

1. The content of the business record is set out above. The background to the tender can be shortly stated. The Crown intended to call Ms Harvey as a witness but was unable to locate her. Consequently it decided to tender the business record instead of endeavouring to tender her statement pursuant to s 65, objection having been taken to that course.

The evidence

1. The Crown adduced evidence from Senior Constable Courtney Cruikshank who is the officer in charge of the investigation. Ms Cruikshank deposed that she obtained a statement from Ms Harvey on 29 June 2016. On 24 April 2018 she attended Matthew Talbot Hostel, where Ms Harvey had been employed as a nurse when the statement was taken. She learned that Ms Harvey no longer worked at the hostel and was travelling around Australia. On that day, Ms Cruikshank rang the mobile number which Ms Harvey had provided to her previously and left a message. On 21 May 2018 Ms Cruikshank phoned the number again and left a message. On 2 June 2018 she sent an email to an email address recorded on NSW Police holdings for Ms Harvey and attached a subpoena to the email. On that day she rang Ms Harvey again and left a message.
2. Ms Cruikshank conducted a check on vehicles registered in Ms Harvey's name. She noted the address noted on the vehicle registration. She did a location enquiry on that address and ascertained that a Mr Harvey was linked to that address. She telephoned the number and learned that Mr Harvey was Ms Harvey's father. He told her that Ms Harvey was working on an organic farm in the hinterlands near the Sunshine Coast and did not have any reception or Wi-Fi but could be contacted on a landline. Mr Harvey refused to provide the landline to Ms Cruikshank but told her that he would ask Ms Harvey to call police.
3. On 18 June 2018 Ms Cruikshank phoned Mr Harvey again. He told her that he had passed on the message to his daughter. He refused to provide any further contact details for Ms Harvey but indicated that he would ask her to contact police. On 24 June 2018 Ms Cruikshank tried to call Ms Harvey again. There was, again, no answer. Detective Senior Constable Agostino phoned Mr Harvey's landline and spoke with Mrs Harvey (Ms Harvey's mother) who informed him that her daughter was no longer working on the organic farm but was travelling around Australia. Mr Agostino explained the seriousness of the matter to Mrs Harvey who said that she would ensure that Ms Harvey contacted police.
4. On 28 June 2018 Ms Cruikshank again emailed Ms Harvey and tried to call her and left a message on her mobile phone.
5. Ms Cruikshank also gave evidence that she had made enquiries on Facebook of persons named Sarah Harvey and downloaded images for the two persons of that name. She showed the photographs to two separate police officers who were familiar with Ms Harvey's appearance, both of whom confirmed that the images were not those of Ms Harvey.
6. On 28 June 2018 Ms Harvey also placed a warning notice on the vehicle registered in Ms Harvey's name. She understood this warning to operate Australia-wide and to inform all police officers throughout Australia that, if they sighted that vehicle, they ought stop the vehicle to serve a subpoena on Ms Harvey.
7. Ms Cruikshank also downloaded a list of organic farms in the Sunshine Coast. However, before she had made enquiries of any of those farms, she learned that Mr Agostino had been told by Mrs Harvey that Ms Harvey had moved on.
8. Ms Cruikshank confirmed in cross-examination that she had not made an IASK enquiry, which was accepted to be a mobile phone check which would indicate the details of calls made to and from a particular mobile phone number. Ms Cruikshank said that she considered whether to make a call charge inquiry or arrange for a subpoena to be issued to banks to determine whether Ms Harvey was withdrawing money but decided against these courses as she considered that they would be unproductive. She took into account that Ms Harvey was travelling and that it was unlikely that local police would be able to find her even if they knew that she had withdrawn money from a particular ATM at a particular time.

The parties' submissions

1. Mr Ozen accepted that the medical record of Ms Harvey was capable of being regarded as having been created as part of a business, within the meaning of s 69. He also accepted that it fell within the exception to the hearsay rule. However, Mr Ozen submitted that the business record ought be excluded pursuant to ss 135 or 137, because its admission would cause unfair prejudice to the accused.
2. Mr Ozen submitted that the medical record was, on its face, only a summary of what must have been a more extensive interchange between the deceased and Ms Harvey. He relied on various authorities to the effect that evidence of a representation ought be given in proper form, rather than expressed as a conclusion.
3. Mr Ozen also contended that its shorthand expression would make it more difficult to follow its content and meaning, than were oral evidence to be given of the exchange. He also submitted that its probative value was not particularly high since, at best, it proved that on one occasion the deceased had been injected by a third party. Mr Ozen contended that this evidence was of substantially lesser weight than the oral evidence to be called from Ms McBride and Mr Ballard (referred to above) as to repeated occasions on which they had used intravenous drugs with the deceased, who had asked them to inject him on the basis that he was unable to inject himself. In addition, Mr Ozen submitted that the admission of the business record would deprive him of the opportunity of testing the evidence of its maker, Ms Harvey, and that this, of itself, would cause unfairness to the accused.
4. Further, Mr Ozen submitted that he was entitled to give notice under s 167 to request that Ms Harvey give evidence on oath so that she could be cross-examined. Section 166 defines "request" as including "in relation to a previous representation - [a request] to call as a witness the person who made the previous representation": s 166(f). He submitted that it was reasonable for him to make the request outside the time provided for in s 168 (21 days after the notice of intention to adduce evidence of a previous representation is given) because he had only recently learned that the Crown proposed to tender Ms Harvey's clinical note. He submitted that the Crown had failed to comply with the request that Ms Harvey be called "without reasonable cause" and that, accordingly, I ought direct the Crown to comply with the request pursuant to s 169.
5. As to the matters to be taken into account in deciding whether such a direction ought be made pursuant to s 169, he submitted that Ms Harvey's evidence was very important (s 169(5)(a)); there was likely to be a dispute about the deceased's capacity to inject himself intravenously (s 169(5)(b)); that there was a reasonable doubt about the accuracy of the business record, having regard to the disparity between Ms Harvey's statement and the clinical note (s 169(5)(e)); that it could not be inferred that compliance with the request would involve undue expense or delay or would not be reasonably practicable as the police had not yet taken all reasonable steps to locate Ms Harvey and secure her attendance (s 169(5)(g)); and that the proceedings, being a criminal trial for manslaughter were of the utmost importance (s 169(5)(h)).
6. The Crown submitted that there was no unfair prejudice in the admission of Ms Harvey's clinical note. He contended that although it did not purport to be a transcript of the exchange between the deceased and Ms Harvey, its limits were obvious on its face. The Crown also submitted that Ms Harvey was relevantly "unavailable" within the meaning of the Dictionary to the Act and that therefore the Crown had a reasonable excuse for not complying with the request and ought not to be directed pursuant to s 169(1)(a) to comply with the request to call Ms Harvey. Further, the Crown submitted that the test of whether Ms Harvey was "unavailable" was not the same as the test in s 169 whether the Crown had failed to comply with a notice without reasonable cause.

Consideration

1. The purpose of the enactment of the statutory predecessor to s 69 was articulated in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, in which Hope JA referred to the reliability of business records which have been created by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned (549). His Honour said at 549: "Where what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth."
2. The relevance of the business record to the Crown case is that it tends to show that, on one occasion, the deceased had been injected with intravenous drugs by a third person and that this act had caused swelling. The business record tends to establish the history given by the deceased (that he had been injected by a third party) and the observation by Ms Harvey (that there was swelling, which was explained by the deceased on that basis). There are at least two relevant representations: the representation to the deceased which explained the swelling and the representation in the notes of Ms Harvey's observation of the swelling. Although the admission of this evidence would deprive the accused's counsel of the opportunity of cross-examining Ms Harvey, this opportunity is of limited value in any event, since she has not been located by the Crown. To reject the evidence would remove a piece of tendency evidence from the Crown case which would otherwise remain in the category of such evidence addressed above.
3. I am not persuaded that there is any unfair prejudice arising from the circumstance that the precise words used by the deceased are not recorded verbatim in the clinical note. Unlike the cases referred to by Mr Ozen in argument (which concerned oral contracts comprised of statements made between the parties; or representations made and relied upon by persons in a commercial context who suffered detriment as a result of such reliance), this is not a case where such precision affects the weight of the evidence. Nor do I consider there to be any unfair prejudice in the document being in a summary form which includes medical terms. In the absence of agreement that, for example, "IV" means "intravenous", this can be explored with any of the medical practitioners who will be called in the Crown case. I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial or misleading or confusing. Nor am I satisfied that its probative value is outweighed by the danger of unfair prejudice.
4. However, notwithstanding the admissibility of the clinical note as a business record, there remains outstanding the question whether, as a matter of fairness, the Crown should be required to call Ms Harvey, either pursuant to a direction under s 169 or by reason of its obligation to call all material witnesses in its case.
5. It seems to me that the decision whether a direction ought be made under s 169 ought be deferred to permit the Crown to obtain an order for substituted service on Ms Harvey through her parents at their known address. It may be that Ms Harvey will answer the subpoena which will have the result that she can be called as a witness in the Crown case.
6. Counsel have not opposed this course and have both confirmed that the delay occasioned by this process will not impede the progress of the trial. The Crown is prepared to open without reference to the evidence of Ms Harvey. Mr Ozen has confirmed that his opening (following the Crown's opening) can similarly omit reference to that evidence. In these circumstances, I will defer ruling on the question whether the Crown ought be permitted to rely on the clinical note if Ms Harvey is not called as a witness. If she is not to be called, there is a further question whether her statement is admissible. These questions will be determined following the return of the subpoena when the question of her availability may be clearer.

Whether the Crown ought be permitted to open on manslaughter by criminal negligence

1. In its Crown Case Statement the Crown has identified that it puts its case against the accused on two bases: first, manslaughter on the basis of unlawful and dangerous act; and secondly, manslaughter by criminal negligence. It accepts, consistently with Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (Burns), that mere supply of an illegal drug does not amount to an unlawful and dangerous act for this purpose. Accordingly the Crown accepts that, in order to prove manslaughter by unlawful and dangerous act, it will need to prove that the accused injected the deceased or assisted him to inject himself. The second basis, that of criminal negligence, depends on the Crown establishing that the accused owed a duty to the deceased.
2. It is important to note that the criteria for the two types of involuntary manslaughter are not necessarily mutually exclusive: Burns at [7] (French CJ). However, for the purposes of testing whether the Crown is entitled to open its case to the jury on this basis it is necessary to assume that the Crown is not able to prove that the accused injected the deceased or helped him to inject himself: see Burns at [47] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
3. Mr Ozen submitted that there was no positive act by the accused to which the Crown could point which could give rise to a duty of care in the relevant criminal sense. He sought to distinguish R v Taktak (1988) 14 NSWLR 226 (Taktak) in which the appellant had transported the deceased, who had taken illegal drugs, to premises where he attempted to look after her. He submitted that, in that case, the appellant had voluntarily assumed a duty to look after the deceased. He contended that, in the present case, all that had occurred was that the deceased came to the accused's room to obtain heroin, that he had been supplied with heroin and that he had died in the accused's room as a result of the heroin which had been supplied. He submitted that the present case was relevantly no different from the case of Burns, which will be addressed in further detail below.
4. The Crown submitted that the accused had, in effect, secluded the deceased behind the closed door of room G4, of which the accused was the exclusive occupant after he had used heroin, thereby depriving him of the possibility of obtaining help from others.
5. Mr Ozen in response submitted that there was no evidence as to the state of the deceased at the time Mr Chick was permitted to enter room G4. In these circumstances, he contended that there was no evidence which would permit the jury to be satisfied that the accused had committed any act which could be regarded as amounting to seclusion of the deceased at a time when he was known to be in a compromised state.
6. Whether this is sufficient to permit the Crown to open its case to the jury on the basis of manslaughter by criminal negligence depends on an analysis of the authorities, the principal of which is Burns. In that case, Mrs Burns had, together with her husband, supplied methadone to the deceased in their home. The deceased used methadone which had been supplied to him by the appellant at her premises. There was evidence that, when the suggestion of calling an ambulance was made, the deceased said, "Don't worry about me, I'll be right." Subsequently the deceased left the appellant's premises (at her request and insistence), walked down a number of steps and crossed a yard and was later found dead in a toilet block nearby. There was insufficient evidence to conclude that Mr and Mrs Burns had injected the deceased with methadone, which had the effect that it was not open to the jury to convict on the basis of manslaughter by unlawful and dangerous act.
7. The High Court refused to order a new trial on the basis of manslaughter by criminal negligence because it found that there was insufficient evidence to ground any duty of care for that purpose. It found that the appellant had neither voluntarily assumed the care of the deceased, nor had she secluded him so as to deny him the opportunity that others would save him.
8. In Burns, the High Court considered decisions from other jurisdictions which concerned manslaughter by criminal negligence. Their Honours approved the taxonomy set out by Yeldham J in Taktak. French CJ said, at [22], that criminal liability may arise for breach of a duty of care owed to another in the following circumstances (which were not exhaustive): a statutory duty; a duty that arises from a certain status relationship or from contract; a duty that arises from the voluntary assumption of care of another; or from the seclusion of a helpless person so as to prevent others from rendering assistance. In the present case it was accepted that the only possible basis for a duty of care was the last-mentioned.
9. The High Court in Burns also considered cases where the defendant has played such a causative part in the sequence of events which has given rise to the risk of injury that a duty to take reasonable steps to avert or lessen the risk may arise. R v Miller [1983] 2 AC 161 (Miller) was regarded as a classic example of such a case where the appellant had inadvertently started a fire and failed to take any steps to remove the danger or warn others at risk.
10. The High Court also considered R v Evans [2009] 1 WLR 1999 (Evans), in which the appellant supplied her 16-year old half-sister with heroin. After the half-sister exhibited signs of opiate overdose, she failed to seek assistance. The English Court of Appeal held that the appellant was "under a plain and obvious duty to take reasonable steps to assist or provide assistance" to her half-sister, not because of the sibling relationship, but because she had created or contributed to the creation of a state of affairs which she knew, or ought reasonably to have known, had become life-threatening. It is not clear whether the High Court in Burns approved the reasoning in Evans, although it did approve the reasoning in Miller in so far as it bore on the precise facts of that case (namely, that the appellant had created the peril by starting the fire). The plurality in Burns specifically left open the question whether a defendant whose act, without his knowledge, imperils another, becomes subject to a duty to take reasonable steps to prevent the peril from resulting in the harm when the defendant becomes aware of the peril: [104]. Indeed, the plurality at [105] confirmed that it considered the relevant act which created the peril in that case was the deceased's voluntary act in taking the methadone.
11. On the assumption (which is necessary to make for present purposes) that the deceased injected himself with heroin, the relevant act which created the peril is that act, rather than any act of the accused. As referred to above, the supply of heroin to the deceased is not sufficient to create the peril since it was not the supply of heroin that caused the danger but its use. At [107] the plurality said: "However, courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act. The relationship of supplier of prohibited drugs and recipient does not lend itself to the imposition of such a duty. Apart from considerations of incongruity, there is absent the element of control which is found in those relationships in which the law imposes a duty on a person to act to preserve life." [Footnotes omitted; emphasis added.]
12. The plurality also said, at [108], that it was a matter for the legislature, and not for the courts, to criminalise the supply of illegal drugs which resulted in death by overdose of the person to whom the drugs had been supplied.
13. In the present case, there was not merely a supply by the accused to the deceased at his premises (room G4). There was also an element of control exercised by the accused over the room and the deceased's occupancy of it. This control was manifested when Mr Chick came to the door of G4. Despite Mr Chick's persistent knocking on the door, the accused failed to open the door for some period. This evidence (which is evident from the CCTV footage to which no objection is pressed) is capable of being regarded as a manifestation of the accused's control over his room, which included a right to determine who would enter the room and a concomitant right to exclude others from entering the room.
14. In my view, the evidence of control by the accused of his room at the time when the deceased was inside the room distinguishes the present case from Burns. In Burns, the deceased left the appellant's premises and went (with or without the assistance of Mr Burns) to the toilet block, where he was later found dead. The present case is not merely a case where a drug user dies of an overdose at the supplier's premises, but rather one where the supplier has excluded others, who have sought to enter the premises for their own purposes (such as Mr Chick) by refusing to open the door, despite persistent knocking.
15. However, having regard to my rejection of Mr Chick's statement, there is no evidence of the state of the deceased when he entered the room. Accordingly, the Crown cannot exclude the possibility that the deceased was still alert during the period that the accused refused to answer the door to Mr Chick. The Crown accepted that, in these circumstances, there was no basis on which it could maintain its case of manslaughter by criminal negligence, since the seclusion was the only available foundation for this category of manslaughter in the present case. Thus the Crown confirmed that it will put its case of manslaughter solely on the basis of unlawful and dangerous act.

Rulings

1. For the reasons given above, I make the following rulings and orders: 1. I reject the statement of Brendan Chick dated 31 July 2016. 2. I direct that the tendency rule is not to apply to the following evidence despite the Crown's failure to give notice in accordance with s 97 of the Evidence Act 1995 (NSW): 1. the evidence in paragraphs [9] and [10] of Margaret McBride's statement dated 12 July 2016; 2. the evidence in paragraphs [6] and [7] of Michael Ballard's statement dated 12 July 2016; 3. the clinical note made by Sarah Harvey of her consultation with the deceased on 15 June 2016. 1. I admit the evidence referred to in (2)(a) and (b) above pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW). 2. I defer ruling on the admissibility of the evidence referred to in (2)(c) above pursuant to ss 48 and 69 of the Evidence Act 1995 (NSW), pending return of a subpoena served on Ms Harvey. 3. Note that the Crown no longer proposes to put its case against the accused on the basis of manslaughter by criminal negligence in light of the ruling in (1) above.

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 July 2018