R v PP [2002] VSC 523

Supreme Court of Victoria|2002-11-27|Before: NETTLE J

In the absence of the jury, application has been made by counsel on behalf of the accused to have admitted into evidence the record of some of the convictions of the deceased. Those convictions include:

s convictions on 3 October 2000 for armed robbery, recklessly causing injury, aggravated burglary with an offensive weapon, robbery and unlawful assault;

s convictions on 21 February 2001 for unlawful assault, common law affray, possession of a dangerous article, forging a prescription for a drug of dependence, attempted possession of prescribed drugs, handling, receiving and retention of stolen goods, theft from a shop, and consumption of liquor by a minor;

s a conviction on 8 August 2001 for possession of cannabis.

It has been submitted on behalf of the accused that evidence of the convictions is admissible in accordance with the principles adumbrated by the Full Court in R v Gibb & McKenzie[1], where the court said:

"The question posed by the application for leave to appeal is thus whether an accused may lead evidence of the disposition or propensity of the person under whose duress he says he has acted in support of his defence of duress. Now, evidence of an accused's `bad character' is relevant to the general issue whether he is guilty of the crime charged, but in the ordinary case it cannot be led by the Crown: it is excluded for reasons of policy and humanity. See Attwood v. R[2] in the case of a co-accused who seeks to raise a defence of duress, however, no such considerations lead to the exclusion of the evidence and the question for decision, therefore, is whether the evidence is relevant. When a defence of duress is raised it is not now to be regarded as making the act of the accused involuntary: it is a defence on its own. See D.P.P. for Northern Ireland v. Lynch[3]. `A crime is said to be committed under duress (or duress per minas) when there is a threat of physical harm in case the act be not done': Glanville Williams, Criminal Law, The General Part[4], quoted in R. v. Dawson[5]. See also R. v. Hurley and Murray[6]. The first element to be established by the accused who raised duress (for he bears some evidential burden: R. v. Bone[7] or negatived by the Crown is that there has been a threat of physical harm made. An issue is thus raised in the trial. In the present case it was an issue between the Crown and Claridge and between the Crown and McKenzie. It was relevant to that issue that Gibb was a person of violent disposition and it was also relevant that Gibb was a person who had a reputation for violence. Evidence of either of those facts, if it were available, would be logically probative of the fact in issue: see Cross on Evidence[8]. Put in another way the evidence would tend to make it more probable that Gibb made the threat and, therefore, had probative value which made it relevant to the issue between the Crown and McKenzie[9]

The same point was made by the Full Court in Re Knowles[10], where the court said:

"The evidence before us makes it tolerably clear that counsel at the trial were firmly of the view that the evidence of Swaine and evidence such as Saunders could give, was irrelevant and therefore inadmissible. The basis for such a belief was undoubtedly the line of single Judge authority in this State commencing with a ruling by Lowe J. In R. v. Flanagan[11]. That ruling was that in cases in which the defence of self-defence or accident is an issue, evidence of facts of which the accused had no knowledge is not admissible. The reported cases indicate that for some years the ruling was generally followed. However, in R. v. Hector[12], Sholl J. permitted evidence to be given not only of the accused's knowledge of incidents of which the accused had personal knowledge, or of which he had been informed, but also evidence of the occurrence of incidents, deposed to by third parties, which incidents are consistent with other evidence given by the accused of his own state of mind and what induced it.[13] This latter view of the law, if we may respectfully say so, is plainly right. As Professor Wigmore has said, where 'a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action ... [the] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The enquiry is one of objective occurrence, not of subjective belief': Wigmore, Evidence[14]. It is to be remembered that the Crown is precluded from calling evidence of the disposition or propensity of an accused person to act in the way alleged at his trial by a rule of public policy despite the fact that it would otherwise be relevant probative evidence. No such principle excluded evidence of the disposition or propensity of a person other than the accused: see R. v. Lowery and King (No. 3)[15] Lowery v. R.[16] The conflict in this State was resolved by this Court in R. v. Gibb and McKenzie[17] in favour of the adoption of the ruling given by Sholl J."

Reliance is also placed upon the decision of the Court of Criminal Appeal in Harmer v R[18], where the court said:

"The learned trial judge upheld the submissions on behalf of the Crown and ruled, in effect, that Hunter's evidence would not be relevant to any issues at the trial and was, accordingly, inadmissible. While it is true that the applicant was not entitled to call evidence going merely to the credit of a Crown witness, it is equally well established that an accused, as the applicant was, is entitled to call in support of his defence in disproof of the Crown case any evidence which is relevant to an issue and this might include evidence touching the disposition, character or violent propensity of some other person: Gibb[19] It must be noted that evidence of propensity to commit the crime charged, of bad character and prior convictions cannot be led by the prosecution; but this is because of the policy of the law as to fairness of a trial and not because it is irrelevant: Attwood[20]. This policy of evidentiary exclusion does not apply to the defence. In Letsoko the Supreme Court (South Africa) provided a lucid statement of the principle. Holmes JA (at 774-775) said: 'The basic principle applicable in this case is that evidence is admissible if it is relevant to an issue in the case. "Relevancy" said Schreiner JA in Matthews[21] "is based upon a blend of logic and experience lying outside the law. The law starts with this practical or commonsense relevancy and then adds material to it or, more commonly, excludes material from it, the resultant being what is legally relevant and therefore admissible." To warrant the legal relevance and the admissibility of what is called similar facts, there must be a sufficient nexus between the evidence sought to be led and the issue of respect of which it is sought to be led.' Here the applicant faced two counts of assaulting Lakey and three counts of assaulting other members of the police force, including Saunders. The issues relating to the assaults were inextricably bound up with those relating to the voluntariness of any confession made by the applicant, and whether he made any at all. In our opinion, credible evidence in the circumstances that Lakey had committed an assault on Hunter of similar severity, using a not dissimilar technique in analogous circumstances, albeit some three or four months beforehand, would have been relevant and was admissible. Of course, it was for the jury to determine whether the evidence was credible. If it did, its tendency in disproof of the prosecution case could hardly be thought insignificant."

It is said on behalf of the accused that the evidence of the deceased's convictions is admissible, in accordance with those principles, as relevant both to a defence of self defence if one is advanced, and also to the question of provocation. It is contended that, if informed of the deceased's convictions, the jury could more likely conclude that the accused was reacting to an act of violence in circumstances which rendered his own conduct no more than self defence or, alternatively, that the deceased's behaviour was so aggressive or otherwise violent as both to amount to provocation and actually to provoke the accused to the actions which he took.

Ordinarily, evidence which goes to no more than disposition of an accused is inadmissible, but that is so in the case the accused because of a rule of fairness rather than reasons of relevance. As a matter of principle it is plain enough that, depending upon the matters in issue, evidence of disposition of a victim can be relevant and is admissible.

As it is put in the passage in Wigmore upon which reliance was placed by the Full Court in Re Knowles:

"Where a controversy arises whether the deceased was the aggressor one's persuasion will be more or less affected by the character of the deceased. It may throw much light on the probabilities of the deceased's action. The additional element of communication is unnecessary for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do."

See also the discussion in the South Australian Full Court in R v Polley[22], and the recent decision of the Queensland Court of Appeal in R v Mogg[23], in which case McMurdo P observed:

"The limits upon receiving evidence of a propensity of a non party are problematical in both civil and criminal law, but in my view the guiding principle remains relevance and capacity to prove a fact in issue... Examples of misconduct by a deceased person that is sufficiently connected with the events in issue are of course receivable. In addition evidence of past acts of violence of the protagonist may come into view through evidence of an accused person's belief concerning the violent nature of the protagonist if such belief may have influenced the way in which the accused behaved during the fight."

The application is opposed by Mr Ryan on behalf of the Crown. Mr Ryan submits that if one looks closely at the authorities to which I have referred, it may be seen that there was in each case a close factual connection between the conduct or disposition of which it was sought to adduce evidence and the offence with which the accused was charged. In R v Hector (upon which the Full Court's decision in Gibb v McKenzie was based) there was a clear factual connection between the disposition of the victim towards the accused or his family and the offence with which he was charged. In Re Knowles the disposition was a disposition towards the accused, and in Harmer the evidence was not so much evidence of disposition generally as similar fact evidence of the way in which the police officer alleged to have assaulted the accused had behaved in the past towards other accused in similar circumstances.

Although Mr Ryan appears to be correct about the facts of those cases, it seems to me to be plain that, at least in Gibb & McKenzie and Re Knowles, the Court proceeded by reference to a principle broader than the facts of those cases, that evidence of disposition of a victim will be admitted if it may more readily lead to the conclusion that the victim behaved in a way it is alleged by the accused that he behaved at the time at which the accused took the action with which he is charged.

Here, because it is said that self defence and provocation may be put to the jury, I consider that the evidence of the deceased's convictions for violent offences is relevant to the nature of an act which the victim is said by the accused to have committed and to which the accused reacted with the conduct with which he is charged.

If it is put to the jury that the accused acted in self defence, evidence that the victim had previously been convicted of violent offences could lead the jury more readily to conclude that the victim behaved so violently at the time in question as to entitle the accused to react with the force that was used by way of self defence. Equally, if the matter is put to the jury on the basis of provocation, evidence that the accused had previously been convicted of offences involving violence could lead the jury more readily to conclude that the way in which the victim behaved on the night in question not only constituted provocation but was provocation of a kind that actually provoked the accused to react in the way in which he did.

None of this is to suggest, of course, that self defence or provocation is necessarily open, nor that it ought be allowed to go to the jury. But because counsel for the accused have throughout the conduct of the defence made significant reference to both self defence and provocation, and because the cross-examination on behalf of the accused has been directed to those ends, I take it that there is a fair probability that I will be asked in the end to allow both issues to go to the jury.

That being so, and observing that when there is doubt about the admissibility of evidence of this kind, the doubt should be resolved in favour of the accused: see R v Patel[24], I think it appropriate that the evidence of the deceased's offences of violence be allowed to go to the jury.

Mr Ryan also submitted that in the cases to which I have referred it appears that more was known of the offences of which it was sought to give evidence than is known in this case, and he contended that because all that is known here is that there was a conviction, the jury might form the view that the offence was more serious than it was when viewed in context.

I do not doubt that if there were evidence available of the context in which the offences occurred, that evidence should be admitted, together with the evidence of the conviction, in order that the jury might consider the matter in context. But as matters stand, there is nothing more known of the circumstances in which those previous offences occurred than that they were sufficient to warrant conviction. I think, however, that in the absence of anything else, that is sufficient to enable them to go the jury. It cannot be doubted that the circumstances were serious, because if they had not been, there would not have been a conviction.

So much then for the offences relating to violence. I take a different view as to those offences which do not involve violence. They do not seem to me to be relevant. Accordingly, in the case of the convictions recorded on 21 February 2001, I am disposed to exclude the conviction for forging a prescription for drug of dependence; the attempted possession of prescribed drugs; the handling, receiving and retention of stolen goods; the theft from a shop; and the consumption of liquor by a minor. And I am disposed also to exclude the conviction recorded on 8 August 2001 for possession of cannabis.

It was submitted by Mr Bourke in support of his contention that the conviction for possession of cannabis should be allowed to go the jury, that when one has regard to the evidence which was given by the toxicologist, Olaf Drummer, as to the relaxing effect of cannabis, the jury might be better enabled by knowledge of the conviction to conclude that the deceased was so much disinhibited by cannabis as to behave in an aggressive fashion towards the accused and generally on the evening in question.

When one has regard to the evidence given by Dr Drummer, however, there is nothing in it which suggests that repeated use of cannabis exacerbates its relaxing or disinhibiting effect; and there is, as far as I can see within the evidence, nothing from which one might reasonably infer that it has that consequence.

In the result, I will allow questions to be asked of the informant to establish the convictions entered on 3 October 2000 for armed robbery; recklessly causing injury; and unlawful assault; and the convictions recorded on 21 February 2001 for unlawful assault; common law affray and possession of a dangerous article.

[6] [1967] VicRp 57; [1967] VR 526 at p. 543, per Smith J

[8] 2nd Aust. ed., p.343, para. 143; cf. R v Sims [1946] KB 531 at p.539

[9] see R v Lowery and King (No. 3) [1972] VicRp 109; [1972] VR 939 at p. 944

[19] [1983] VicRp 78; [1983] 2 VR 155; (1982) 7 A Crim R 385; Lowery and King (No. 3) [1972] VicRp 109; [1972] VR 939 at 944-945, 947; Lowery [1974] AC 85 at 102; Knight v Jones; Ex parte Jones [1981] Qd R 98; Letsoko [1964] 4 SAR 768 and Gosschalk v Rossouw [1966] 2 SAR 476

[24] (1951) 35 Crim App R at 62 at p. 66

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