[2015] NSWCCA 10
Galea v Farrugia [2013] NSWCA 164
Hughes v The Queen (2017) 263 CLR 338
[2017] HCA 20
IMM v The Queen (2016) 257 CLR 300
Source
Original judgment source is linked above.
Catchwords
NS v R (2012) 84 NSWLR 758[2012] NSWCCA 9
El‑Haddad v R (2015) 88 NSWLR 93[2015] NSWCCA 10
Galea v Farrugia [2013] NSWCA 164
Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14
McPhillamy v The Queen [2018] HCA 52(2018) 361 ALR 13
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56[2018] HCA 40
Reeves (a pseudonym) v R (2013) 41 VR 275
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE (REVISED)
The accused in this matter has pleaded not guilty to the murder of Andrew Drake (the deceased). There is no issue that the deceased died as a consequence of being stabbed by the accused. The stabbing occurred, on the accused's case, following an altercation between the deceased and the accused's father. The accused asserts that he needed to intervene in that altercation in order to protect his father. It is part of the accused's case that his father was attacked by the deceased with a knife.
By an amended tendency notice dated 25 January 2021 counsel for the accused seeks to elicit evidence of three particular matters on the basis that such evidence demonstrates a tendency on the part of the deceased to be violent and unpredictable. Before I come to the precise terms of that notice, it is appropriate that I set out the following passage of defence counsel's opening address to the jury: [1]
What happens over the next few moments, perhaps no more than 30 seconds, maybe a minute, this is where the dispute in this case lies. There is no doubt that David Sharpe had his left hand badly slashed with a knife, and he lost enormous amounts of blood, both inside and outside the shed. He lost some skin which fell onto the ground on the concrete path between the shed and the house. None of that is in dispute. What is in dispute is what happens in that very brief period of time between the accused and Penny Drake getting into the shed, trying to break up that fight and Andrew Drake collapsing on the grass outside. It is not in dispute that the accused did in fact stab and kill Andrew Drake, but on the accused's case it wasn't murder. On the accused's case he did that in order to defend his father from an ongoing attack from Andrew Drake. This is a case about self‑defence, about the accused seeking to defend his father. This is a case about the consequence of that fight. This is a case about the accused's perception when he saw this fight occurring that he needed to intervene necessarily to defend his father. It is the accused's case that Andrew Drake did have a knife and that Andrew Drake had slashed the hand of David Sharpe. It is the accused's case that there was a wrestle and that the tragic events involving Mr Sharpe stabbing and killing Andrew Drake following thereafter. The accused's case is that this stabbing of the deceased was a reasonable response to the circumstances as he perceived them at the time. Significantly there is going to be no suggestion during this trial that there was any animosity between the accused and the deceased. In fact, the families, the Drakes on one side of the fence and the Sharpes on the other barely knew each other. There was no reason for the accused to want to stab and kill the deceased other than on the accused's case, to defend his father.
Against that background the amended tendency notice is partly in the following terms:
(1) The person whose tendency is the subject of the evidence sought to be adduced is the deceased Andrew Peter Drake.
(2) The tendency sought to be proved by the defence is the tendency of the deceased, to act in a particular way, namely, to be violent and unpredictable in his behaviour.
(3) The substance of the tendency evidence the defence proposes to lead is contained within the following documents:
(a) The video taken by CCTV cameras at the Royal Mail Hotel on 9 March 2013; [2]
(b) COPS event created 9 March 2019 which details the event captured in the CCTV footage, of the deceased smashing the front window on the Royal Mail Hotel with his right fist (the third incident);
(c) COPS event created 14 May 2014 which details an allegation of Andrew Drake hitting a person on Wallace Street, Braidwood (the second incident); and
(d) COPS event created 18 May 2008 which details an allegation of Andrew Drake hitting a person after leaving the Bayview Hotel in Batemans Bay (the first incident).
The COPS entry in respect of the first incident reads in part as follows:
About 12.45am police received a phone call at the station from Sharon of Batemans Bay Taxis stating a male had been assaulted and was lying motionless on the footpath o/s the phone booth located close to the police station. Police exited the station and saw victim Roberts lying on the ground and another male attempting to assist Roberts. Roberts got to his feet unassisted but was unsteady on his feet due to his intoxication. Police observed that Roberts had swelling to his left eye and left cheek area, there was no blood on his lower lip.
…
Police attended the Bayview Hotel and spoke to security staff. One staff member directed police to a male wearing a white jacket and jeans that matched the description given earlier by the witness. The staff member told police that Roberts had harassed this male earlier in the pub and as a result Roberts had been asked to leave. Police spoke to this male who identified himself as Andrew Drake. When asked what occurred Drake stated that he and Roberts had been friends. During the evening Roberts has harassed Drake to the point where Roberts has become oblivious to Drake's requests to be left alone. Drake also alleged the that Roberts had grabbed him by the throat. As a result of this action Drake punched Roberts "because he grabbed me by the throat."
No charges were laid against the deceased as a consequence of that incident.
The COPS entry in relation to the second incident reads in part as follows:
About 12.30pm police spoke with the POI, Andrew Drake. Drake admitted to hitting the victim once but claimed it was in self-defence as McGlone hit him first. This is somewhat consistent with the comments made by McGlone during the phone call mentioned in the previous narrative of DSC Pieper. Drake was offered the opportunity to supply a statement in relation to being hit however declined.
Again, no charges were laid against the deceased as a consequence of that incident.
The third incident, which is obviously the most recent in time, occurred on 9 March 2019. That was only a matter of approximately 5 weeks prior to the deceased's death. The context in which it occurred appears in a statement of Nina Garcia, the deceased's former partner, who was working at the Royal Mail Hotel in Braidwood at the time. It is apparent that in the period leading up to the evening of 9 March 2019 the deceased and Ms Garcia had an argument, following which the deceased repeatedly sought to speak with Ms Garcia when she was working at the hotel. In the face of his persistence, Ms Garcia asked the deceased to go home. The deceased reacted to these circumstances by suddenly smashing a plate glass window of the hotel from the street front with his fist, causing it to shatter inwards. The incident is depicted on CCTV footage, which shows staff inside the hotel understandably becoming alarmed at what occurred.
Section 97 of the Evidence Act 1995 (NSW) ("the Act") is in the following terms:
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.
Although the Crown made reference to the notice being served at a relatively late stage, no specific reliance was placed upon s 97(1)(a). Accordingly, the issue for determination is whether or not the evidence, either wholly or partly, will have significant probative value, either by itself or in combination with other evidence. The term "probative value" is defined in the Dictionary to the Act as meaning:
The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In this context, the term "significant" means "important" or "of consequence". [3]
Counsel for the accused accepted that the first two incidents were remote in time. He also accepted that none of the three incidents involved the deceased using a knife. Nevertheless, he submitted that the key issue in dispute between the parties in the present incident was that of self-defence and/or the defence of another. It was submitted that in these circumstances, the conduct of the deceased in each of the three incidents was significantly probative of the reason why the accused asserts that he was forced to act in the manner in which he did, and stab the deceased.
Counsel further submitted that the evidence demonstrated that what had occurred on the night of the deceased's murder was not, in terms of the deceased's alleged behaviour, an isolated incident, and that it further demonstrated that the deceased was a person with a temper who had the capacity to behave violently, absent any degree of provocation. It was submitted that if the jury remained unaware of this evidence, it may be more difficult to accept the accused's assertion that it was the deceased who first attacked the accused's father, and that anything he (i.e. the accused) did was in response to that attack.
The Crown submitted that none of the incidents supported the asserted tendency. The Crown emphasised that the first two incidents occurred a long time ago, and in particular contexts which were far removed from the circumstances of the present case. In terms of the first incident, the Crown pointed to the fact that the deceased had reacted to being provoked. In terms of the second, the Crown submitted that the deceased had acted in self-defence. The Crown also pointed out that the deceased was not charged with any offence arising out of either incident. As far as the third incident was concerned, the Crown again sought to distinguish it from the circumstances of the present case. It was submitted, in particular, that the deceased's act of breaking the window had occurred in the context of what might be neutrally described as a domestic dispute, and that, like the first two incidents, did not involve the use of a knife. The Crown went so far as to submit that the third incident was not violent in nature.
As I have said, the sole issue for determination concerns the probative value of the evidence. In assessing the probative value of the evidence, I must assume that if it is admitted, the jury will accept it. [4]
There are a number of factors which may, in a given case, be relevant to an assessment of the probative value of proposed tendency evidence. They include the issue to which the evidence is relevant, the number of occasions of particular conduct that are relied upon, the time lapse between each occasion, any geographic connection between the alleged conduct, and the degree of specificity of the conduct or alleged tendency. [5] That said, a close similarity between the incidents is not essential for the evidence to be admitted as tendency evidence. [6] Moreover, a single instance of conduct may, in a given set of circumstances, have sufficient probative value to come within the terms of s 97 of the Act [7] That said, I recognise that in a case where limited instances of conduct are relied upon as tendency evidence, considerable care must be taken before the evidence is admitted. [8] Necessarily, the assessment of probative value of evidence of this kind requires the consideration of two separate factors. The first is the extent to which the evidence is supported by the tendency, and the second is the extent to which the tendency makes more likely the facts making up the charge. [9]
I have set out above those passages from the opening address of counsel for the accused to demonstrate what is in fact in issue in the present case. It is by reference to that issue that the probative value of the evidence must be determined.
The first and second incidents are obviously remote in time. They occurred in specific contexts, far removed from that in which the deceased was murdered. The deceased's conduct in the first incident appears to have arisen in response to a degree of provocation, whilst his conduct in the second appears to have been in the nature of an act of self‑defence. In my view, a combination of all of those factors leads to the conclusion that the evidence of those two incidents has limited probative value. It follows that the test in s 97 of the Act is not met in respect of the evidence of either incident.
However, the third incident falls into an entirely different category. First and foremost, that incident is not remote in time. It occurred a matter of weeks prior to the deceased's death. Secondly, whilst I accept that it did not involve the use of a knife, I am unable to accept the Crown's submission that it was not violent. The Macquarie Dictionary defines the term "violent" as:
1. acting with or characterised by uncontrolled, strong, rough force such as a violent blow…
The Oxford English Dictionary defines the term as:
1. action or behaviour characterised by the doing of deliberate harm or damage...
On any definition, and indeed on any common sense view, what the deceased did in smashing the hotel window with his fist was a wanton display of gratuitous violence. The fact that it did not involve the use of a knife does not alter the inherently violent nature of the deceased's conduct. I acknowledge, in view of the conclusions I have reached in respect of the first and second incidents, that the third represents a single instance of conduct which is sought to be relied upon as tendency evidence. However, as I have noted, there is authority for the proposition that a single incident may be capable of constituting evidence of a relevant tendency. Whether it does so will depend on the facts and circumstances of the particular case. In my view, the facts and circumstances of the present case as I have outlined them, particularly the accused's case that it was the sudden violence of the deceased towards his father which caused him (the accused) to act as he did, support the admission of evidence of the third incident as tendency evidence.
For all these reasons, I have come to the view that the evidence of the third incident meets the test in s 97 of the Act. I propose to admit it as tendency evidence. The jury will be directed in due course as to how that evidence is to be treated in the course of their deliberations.
[2]
Endnotes
T44.22-48
It is accepted that the reference to 9 March 2013 is an error, and that the correct date is 9 March 2019.
See for example IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [103]; R v Lockyer (1996) 89 A Crim R 457; and DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [57] ‑ [60].
See IMM at [39]; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [69].
See, for example, El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [70]‑[72].
See Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [34].
See Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 at [56].
See Galea v Farrugia [2013] NSWCA 164 at [85].
See Hughes at [41]; McPhillamy v The Queen [2018] HCA 40; (2018) 361 ALR 13 at [26] ‑ [27].
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Decision last updated: 24 February 2021