R v Sheard

The Crown case

1. The following summary of the Crown case is taken from the Crown Case Statement, supplemented by other witness statements tendered on the voir dire.
2. As stated above, at the time of receiving the wounds which caused his death, the deceased was in a holding cell, cell 4, with the accused and 13 other inmates waiting access to AVL suites to appear in court. There was a CCTV camera in the cell.
3. The CCTV recorded the accused and the deceased in cell 4 between 8.55am and 11.31am. During most of this time, they were positioned at opposite ends of the cell. At approximately 10.04am, the deceased was recorded at the rear of the cell talking to other inmates and revealing a shiv stashed in his shorts. At this time, the accused was at the front of the cell facing away from the deceased. At 10.40am, for about two minutes, the two men interacted when the accused passed near the deceased to use the toilet. There was no conversation recorded, but both men appeared to laugh.
4. At about 11.29am, an inmate named Paul Harris was requested by the deceased to cover the CCTV camera with toilet paper. Harris did so. In his witness statement, he states that he thought the deceased was either going to smoke a cigarette or take drugs. The CCTV camera made no further recording of the cell due to this obstruction. The following events occurred over approximately the next hour.
5. Some time later, Harris heard the deceased say, "I'm hanging out". There is evidence that the deceased was addicted to illicit drugs at the time. He had been in custody for about a month. He was not yet on an opiate replacement programme in custody. Drugs provided under such a programme include suboxone and bupomorphine.
6. At some time after that comment, Welford, who was also in cell 4, went to get his suboxone dose. It was administered in wafer form (that is, to be put under the tongue and dissolved). On this occasion, Welford did not let it dissolve. Instead, he removed the wafer and sat near the accused. They were seen to be talking. At this time, the deceased "came out of nowhere" and kneed the accused under the chin. A fist fight followed. The accused was knocked to the floor. The fighting stopped when correctional officers attended cell 4. The accused was observed to have a swollen right eye but refused medical treatment. The officers left.
7. The statement of Mr Harris discloses that there were some occasions in the short period thereafter when both men produced shivs, but things calmed down and they put them away. Sometime after that, the deceased was at the back of the cell, the accused was "doing laps" of the cell and Harris was facing away when he heard a "boom". He looked over to see the accused stabbing the deceased with his blade. It happened quickly. The accused held the deceased's shirt and repeatedly stabbed the deceased in the stomach and chest with an upward thrusting motion. The deceased ran to the front of the cell, stood on a bench and produced his shiv, but was not seen to use it. The accused, continuing to strike at the deceased, inflicted another stab wound to the deceased's thigh as the deceased kicked at the accused in defence. The deceased called out for guards.
8. From this point in time, there is video footage taken by one of the correctional officers on a handheld device. It shows the deceased standing on a bench cowering near the front of the cell and the other inmates yelling.
9. Emergency medical assistance was obtained by correctional officers, but the deceased lost consciousness and was pronounced dead at 12.57pm. The cause of death was a stab wound to his right mid-chest which entered the middle lobe of the right lung. The deceased had suffered eight stab wounds to his torso and limbs.
10. The Crown case is that the accused intended to kill the deceased.
11. In addition to the evidence of Mr Harris, the video footage (CCTV and handheld) and the evidence of correctional officers, the Crown also relies on acts and statements of the accused made in the immediate aftermath to the assault to demonstrate consciousness of guilt. That evidence includes that the accused attempted to dispose of his shoes and the shiv after the incident with the assistance of Mr Welford and Mr Bennis. This is the conduct that gives rise to the accessorial liability of the co-accused to the offence under s 33(1)(a) of the Crimes Act.
12. There is also evidence that the accused made statements to other inmates and correctional officers to the effect that the deceased was "crazy" and stabbed himself to death. The Crown alleges this is so "demonstrably false" as to demonstrate consciousness of guilt.

The tendency notice

1. The Crown proposes to adduce evidence to establish that the accused has the following specified tendencies to either act in a particular way or have a particular state of mind. I have retained the paragraph numbering in the Notice: "2. The tendency sought to be proved is his tendency to act in a particular way, namely: a. To be in possession of contraband weapons ('shivs') while in custody. b. To use a weapon to assault other prisoners. c. To use a weapon with intent to cause serious injury to other prisoners. 3. The tendency sought to be proved is his tendency to have a particular state of mind, namely: a. To intend to cause serious injury when he uses a weapon to assault other prisoners."
2. The source of the evidence to support these tendencies is described in the Notice and is summarised below.

The tendency evidence

1. The Crown tendered the Crown case statement, several witness statements and a statement of agreed facts in relation to a prior assault. In support of the specified tendencies, the Crown relies on two categories of evidence: that going to the possession of shivs in custody and a previous assault on an inmate on 24 December 2019 with a shiv.
2. In respect of the tendency at paragraph 2(a) of the Notice (ie "possession of contraband weapons ('shivs') while in custody"), the Crown seeks to rely on the following evidence.
3. First, the statement of Suia Fiso dated 24 April 2020 is relied upon. He was a correctional supervisor in the Immediate Response Team at Parklea at the time. The Crown relied upon [9] of his statement in which he stated: "I have dealt with Sheard before, mainly for targeted cell searches. Sheard is well know [sic] to me as someone who carries weapon [sic] on his person or in his cell. I have been involved in about five (5) - ten (10) targeted cell searches involving Sheard. Due to this, I have some level of rapport with Sheard."
4. Secondly, the Crown relies upon the statement of Daniel Brown dated 30 March 2021. He was an intelligence officer at Parklea at the time. The Crown relies upon [3]-[9] of his statement and the annexure "MTC Broad Spectrum records" for "cell searches" of the accused for the period 1 January 2019 to 22 April 2020 at Parklea. These records showed that on five occasions between these dates the accused was found to be in possession of a gaol-made weapon or shiv (the accused was searched a total of 22 times during this period; on five other occasions, he was found to be in possession of other contraband, which is not presently relevant).
5. Thirdly, the Crown relies upon the statement of Senior Constable Christopher Moore dated 28 April 2020 at [10]-[12]. SC Moore attended Parklea on the day after the assault and coordinated the search of certain cells. He described briefing officers "with regards to the circumstances surrounding the murder" and that they would be "searching for any shives [sic] or other bladed implement". SC Moore then set out the items located during the searches of the different areas at the gaol.
6. Blades and razor blades were found in cell 1, as well as one handmade shiv. A razor blade was found in cell 3. Cell 5C was the cell occupied by the accused. In it, police found a "white plastic handmade shiv", a "silver flat piece of metal and a silver metal rod" and a "silver metal shiv". Cell 5B30 was the cell occupied by the deceased in which police found a "wooden shiv" and a "metal piece".
7. Fourthly, the Crown relies upon the statement of Detective Senior Constable Bradley Jorgenson dated 8 May 2020 at [26]-[28]. DSC Jorgenson was involved in the investigation of the incident on 22 April 2020 and attended Parklea on that day and on 23 April 2020. He described, inter alia, overseeing searches carried out by police in the gaol. In particular, he recalled observing a "large amount of property" which had been "located in the cell of [the accused] after the homicide of [the deceased]". This included "paint tins, paint rollers, chemical bottles, glue, gloves, nuts, bolts and screws and many more items", and his colleague DSC Lehrer handled a "goal made weapon (Shiv)" which had been seized from the accused in March 2020 by correctional officers. DSC Jorgenson also described what was found in Cell 5C3 (presumably the same cell as identified by SC Moore as Cell 5C above), being four items: a "plastic shiv", "piece of metal", "metal shiv" and "shiv" found variously around the cell.
8. In respect of the tendencies at paragraphs 2(b) ("use a weapon to assault prisoners while in custody") and 3(a) ("intend to cause injury using weapon") of the Notice, the Crown seeks to rely on the following evidence: 1. Statement of John Hytongue dated 3 January 2020; 2. Statement of David Blazejko dated 16 January 2020; 3. Statement of Saad Mihideen dated 30 January 2020; 4. Statement of Sonam Dean dated 16 January 2020; 5. Statement of agreed facts, Emmett Raymond Sheard, Justice link no. 202000055261.
9. The Crown does not separately set out any evidence sought to be relied upon in respect of the tendency at paragraph 2(c), "to use a weapon with intent to cause serious injury to other prisoners". I infer that this is because 2(c) relies upon the same evidence as for 2(b) and 3(a).
10. All of this additional evidence pertains to one incident which occurred at Parklea on 24 December 2019. On that date, the accused and John Hytongue were inmates at Parklea. The two men were not known to each other.
11. At about 2.30pm, the accused was being escorted by two correctional officers, Saad Mihideen and Sonam Dean, from "Area 1 (protective custody)" to "Area 5 (mainstream)" at Parklea. He was not restrained as he was pushing a trolley carrying his belongings.
12. As they approached the area between Area 1 and Area 5, Hytongue and another inmate David Blazejko were working on a kitchen truck nearby. The accused left his trolley and walked towards Hytongue and Blazejko. Both men later stated that they did not know the accused nor why he approached. The correctional officers followed 2-3 metres behind the accused.
13. The accused produced a shiv from the front of his pants (the weapon was made from a sharpened piece of metal wrapped with a cloth at one end as a handle; the blade was 10.5cm long and the handle was 8cm long). The correctional officers saw that an item was produced, but not that it was a shiv.
14. Blazejko described that he saw "a bloke sneaking up the wall towards" him and Hytongue. The man (the accused) said "Merry Christmas" and raised his left arm as if to initiate a hug. Blazejko said, "[f]uck off" because he did not know the man.
15. The offender hugged Hytongue and used the shiv in his right hand to stab him in the right bicep and right flank of his torso at the ribs. The accused released Hytongue, and the latter asked, "[w]here do I know you from?". He did not realise that he had been stabbed. The accused smiled and walked away.
16. After the stabbing, one of the guards said to Hytongue, "[y]ou've been stabbed in the artery". Hytongue felt a warm liquid running down the right side of his pants and saw blood coming from the right side of his ribs and right bicep. Blazejko took off his shirt and wrapped it around Hytongue's wounded bicep and Hytongue took off his own shirt and applied it to his wounded side.
17. The accused walked past Dean towards the exit to the space, still holding the shiv. Dean and Mihideen told him to "stop" and Mihideen activated an emergency alert. After being directed again, the accused dropped the shiv and kneeled down. He was handcuffed and removed from the area. Mihideen retrieved the shiv from the floor.
18. Hytongue suffered a 2cm puncture wound to the right upper arm, a 1cm puncture wound to his right flank and an abrasion to his left thumb. On 20 February 2020, the accused was arrested and charged. He pleaded guilty to one count contrary to s 35(2) of the Crimes Act (recklessly inflict grievous bodily harm) on agreed facts, which were tendered by the Crown on the present application.
19. As for the reason why the accused was being transferred from Area 1 to Area 5, Mihideen states that the accused "was being transferred out of protective custody as his SMAP [Special Management Area Placement] order had been revoked due to behavioural issues he was having inside protective custody". After the stabbing, Mihideen instructed the accused the drop the weapon. Eventually, the accused complied and said, "I told you I couldn't go to Area 5". Later, when the officer was exiting the gaol after finishing his shift, he walked past the accused (who was in the "clinic") who said, "[s]orry Chief".
20. Dean makes similar comments as to why the accused was being moved. He also describes that when approaching Hytongue, the accused "just calmly walked over to one of the other inmate sweepers". Then, after inflicting the wounds, the accused "turned, calmly walked past me heading towards the Clinic gate". When Dean directed the accused "stop", he replied, "I'm all good miss" and continued walking.

Evidence relied upon by the accused on tendency hearing

1. In addition to relying upon the statements of officers Fiso, Moore and Jorgenson, the accused tendered the following evidence, all served on him as part of the Crown brief. The material is relied upon on two bases: to put the proposed tendency evidence in some context and also to establish that the deceased had a tendency to commit acts of violence in order to get access to drugs.
2. Mr Evers, for the accused, accepted that he had not filed a tendency notice in relation to the tendency of the deceased. He said he did not propose to do so unless the tendency evidence in respect of the accused was admitted. Although he sought to adduce the evidence of the deceased's tendency on the voir dire to rebut the accused's tendency under s 97(2)(b) of the Evidence Act, it seems to me that that provision is aimed at rebuttal of tendency evidence of a person in the form of evidence to show that that person (in this case, the accused) did not have the tendency alleged. It does not apply to a positive assertion of a tendency of somebody else, such as the deceased.
3. I resolved the issue by provisionally admitting the evidence for the purpose of considering the Crown's application given that I have the statutory power to waive the need for a tendency notice: see s 100(1) of the Evidence Act.
4. First, the accused relies upon the statement of Paul Harris dated 28 April 2020. I have already summarised some of his evidence above. His evidence is relied upon by the accused to show that the deceased was "hanging out" for drugs, saw Welford with drugs sitting with the accused and then attacked the accused.
5. Secondly, the accused relies upon the handwritten statement of Jesse Sbrugnera dated 27 April 2020. He is an inmate who has provided a statement to the effect that the deceased had been making threats to the accused prior to 22 April 2020 and that the accused was worried about getting stabbed. He was not present in cell 4 on 22 April 2020. The Crown indicated its intention to call this witness and perhaps to seek leave under s 38(1) of the Evidence Act to cross-examine him.
6. Thirdly, the accused relies upon the statement of Samuel Hawthorne dated 22 April 2020. He was one of the correctional officers on duty outside cell 4 on 22 April 2020. He saw the accused and the deceased exchange blows. He also saw that they both had shivs. The Crown and the accused join issue as to what stage of the fatal fight this officer saw.
7. Fourthly, the accused relies upon the statement of Dominic Zinghini dated 23 April 2020. He was another officer on duty outside cell 4 on 22 April 2020. He heard a radio call that prisoners were fighting and responded. The first thing he described is seeing both the accused and the deceased with shivs, and the deceased saying, "get me out of here".
8. Fifthly, the accused relies upon the statement of Wise Lagilevu dated 12 May 2020, another officer on duty outside cell 4 on 22 April 2020. He saw the accused injured after the earlier fist fight. He then tried to look at the CCTV footage to work out what had happened when "within about 20 or 30 seconds" he heard someone call "inmates are fighting" and returned to cell 4. The first thing he saw was the accused standing in the middle of the cell with a shiv facing the officers and the deceased sitting on one of the benches near the cell door. He gave the camera to Shellie Brown (a correctional officer) who continued recording. Mr Lagilevu got the deceased out of the cell.
9. Sixthly, the accused relies upon the statement of Nathan Attard dated 22 April 2020. He was another officer on duty outside cell 4 on 22 April 2020. He saw the initial fight and called to other officers. He stated that by the time he got to the cell the fighting had stopped and the accused had a swollen eye. He stood nearby thereafter and about five minutes later saw the accused "lash out". He initially thought it was another fist fight but then saw that the accused had a weapon. It was very fast. He saw the deceased standing on the bench, the accused trying to stab him and the deceased kicking him away. The deceased also had a shiv. He described the accused as saying to the deceased, who was bleeding heavily and asking to be removed from the cell, "[s]ee what happens when you fuck with me, you get got. Fuck you. I hope you die…".
10. Seventhly, the accused relies upon the Inmate Profile of the deceased that showed a long custodial history including drug and other infringements. He had assaulted another inmate on 12 March 2020, five weeks before he died. There were also earlier entries including this on 31 January 2017: "Inmate assaulted another inmate within 9 wing yard by way of cowardly snap kick to the head from behind, then two punt kicks to the face while on the ground". And on 28 July 2018: "Gaol made improvised weapon found in cell". The profile refers to other acts of violence or threats made by the deceased to others, including correctional officers. Similarly, his criminal history is long and includes numerous drug and violence offences.
11. Eighthly, the accused relies upon the photographs of items found in the deceased's cell in the search in the aftermath of his death, showing two sharpened weapons.
12. Finally, the accused relies upon two entries from the deceased's Justice Health records, in the form of handwritten notes by the deceased. The first was dated 26 March 2020, that is, three and a half weeks before his death. The deceased wrote, "Need to get back on the Methadone or Bupe [bupomorphine] program I was on it when I came in three weeks ago I have asked several times to see someone". He wrote that he was "institutionalised" and did not know "where [his] minds at"; he walked "laps all day with a broken leg" and was "going crazy in pain all day n night between these three issues" (sic). The three issues were, interpreting the note as best I can, a severe toothache, a broken leg ("both tibian fibia", presumably meaning tibia and fibula) and his need to access methadone or bupomorphine. By way of "Overall Summary" Mr Black wrote: "I need to get on the methadone or bupe program I'm sick hanging out cant sleep/rest, diaroha. Shooting up after people, using dirty fits, need a blood test. In pain tooths killing me. I shouldn't have to live like this I was prescribed this medication on the outside. Where is the duty of care."
13. The second entry is dated 8 April 2020 and is shorter. Mr Black wrote: "I need to get on the bupe (or methadone!) program I was on it on the outside I'v been in jail for a month now and have been using needles and doing whatever it takes to get drugs I shouldn't have to do this for a drug I was prescribed on the outside I'v been doing sexual favours, violence anything to get my medication also I'm on Avanza I'm in pain I'v got a broken leg n dental issues. I'm going to end up killing someone I need urgent help. URGENT."

The accused's submissions

1. The defence case is that both altercations between the deceased and the accused were initiated by the deceased, and that the accused's actions in stabbing the deceased were in response to a direct threat to the life of the accused by the deceased. The accused was also stabbed in the course of that altercation. The accused contends that he believed his conduct was necessary to defend himself and contends that his response was a reasonable response in the circumstances as perceived by him.
2. The accused submitted that even if the evidence relied upon is capable of establishing the tendencies asserted by the Crown, those tendencies, in the circumstances of this case, do not have significant probative value in respect of the ultimate fact in issue at trial, that being whether at the time the accused stabbed the deceased he did so in self-defence. If the Crown does not negative to the criminal standard that the accused was acting in self-defence at the time he inflicted the fatal stab wounds, then the accused will be not guilty of the count of murder, irrespective of whether the jury is satisfied that the accused was both armed and caused the fatal injuries. But if the Crown succeeds in negativing self-defence, the accused will in all likelihood be convicted of murder.
3. The challenge to the Crown's tendency notice is twofold. First, the relevance of the accused's previous possession of shivs was disputed. It was submitted that this could not advance the Crown case in the context where there is direct evidence that he had a shiv at the time of the fatal altercation. Secondly, although it was accepted that the most compelling part of the Crown's application is the attack on Mr Hytongue, being an unprovoked assault using a bladed weapon on another prisoner, there are differences relied upon to distinguish it.
4. In relation to the events on 22 April 2020, it was submitted that there were two separate altercations on that day of different severity, and that the deceased's state of mind in relation to the first altercation is relevant to his state of mind in relation to the second altercation, particularly where there is evidence that the first altercation between the accused and the deceased was interrupted when correctional officers arrived. In other words, the accused will invite the jury to conclude that the deceased was the aggressor throughout. It was the deceased who first produced a weapon, albeit it was then put away.

The Crown's submissions

1. On the Notice, the Crown contended that the facts in issue to which the asserted tendencies go are: 1. Whether the accused stabbed Michael Black with a weapon (a shiv) on 22 April 2020. 2. Whether the accused was acting in self-defence when he stabbed Michael Black. 3. Whether the accused used the weapon with the intention of causing grievous bodily to Michael Black, or to kill him.
2. It was submitted that the consideration should not be limited to the ultimate issue - that is, whether the Crown has proven beyond reasonable doubt that the accused was not acting in self-defence. It was submitted that it was "entirely artificial" to divorce the question of whether the accused had a tendency to assault other prisoners from whether he acted in self-defence. If the Crown were to prove that the accused had a tendency to use a weapon to assault other prisoners, that would go directly to the question of whether he was acting in self-defence. It was submitted that a person with such a tendency would be less likely to be acting in self-defence and more likely to be an aggressor in a situation where he was armed with a shiv in a cell with the deceased.
3. It was also submitted that if the Crown were to prove that the accused had a tendency to intend to cause serious injury when he used a weapon to assault other prisoners, that too would go directly to the question of whether he was acting in self-defence. This is because a person with such a tendency would be less likely to be acting in self-defence and more likely to be an aggressor in a situation where he was armed with a shiv in a cell with the deceased.
4. As for the assault on Mr Hytongue, it was noted that there were many similarities between that assault and the fatal assault on the deceased including the following: 1. Both included the use of a gaol-made weapon; 2. Both shivs were a bladed and/or pointed weapon; 3. Both times the accused stabbed the victim both in the chest area and in the arm; 4. At the time of both attacks the victim was not actively threatening the accused; 5. On both occasions the victim was a fellow inmate - the attack occurred inside a prison.
5. It was submitted that it was the combined effect of the similarities that is important and that it is an error to consider individual similarities separately. In reliance upon this proposition, the Crown noted the decision in R v Matonwal & Amood [2016] NSWCCA 174 in which the Court of Criminal Appeal held that the trial judge fell into error by considering individual similarities separately (in the context of multiple armed robberies). Although that was a case concerned with coincidence evidence within s 98 of the Evidence Act, it was submitted that the reasoning is equally applicable to tendency evidence.
6. The Crown submitted that it would be "well open" to the jury to conclude that the assault on Mr Hytongue was not an act of self-defence by the accused (indeed no other conclusion is rationally possible), but, rather, involved a different state of mind - a state of mind which involved an assault on another prisoner with the intention to cause that person serious injury. Even if the jury were to conclude that the state of mind was "merely" one which involved an intent to assault another prisoner, that would have significant probative value on the question of whether the accused acted in self-defence when he wounded the deceased.
7. It was submitted that proof of a tendency to use a weapon to assault other prisoners and a tendency to use a weapon with intent to cause serious injury to other prisoners assists the Crown to prove that the accused was not acting in self-defence; these matters are clearly interrelated.
8. As for the accused's reliance upon the fact that the deceased also had a violent tendency, it was noted that the accused has not served a tendency notice on the Crown which prevented reliance on that argument. It was conceded that despite the absence of a tendency notice, some of the evidence relied upon by the accused is otherwise relevant (eg the Justice Health records), but the Crown objected to the evidence that the deceased has a history of violence and a history of being in possession of contraband bladed weapons. It was submitted that Mr Harris' evidence is admissible as part of the chain of circumstances leading to the incident which caused the death of the deceased, but not to prove a tendency on the part of the deceased.
9. In response to the accused's submissions, it was contended that the accused is inviting the Court to itself assess the actual probative value of the evidence, rather than assessing the probative value of the evidence by taking it at its highest, which is not the proper function of the Court when determining the admissibility of the evidence. Rather, the Court should assess the question of probative value by examining the potential of the evidence to prove the asserted tendencies, together with the potential of the evidence to prove the facts in issue as set out in the Notice.
10. Overall, it was submitted that the tendency evidence makes it more likely that the accused attacked the deceased, not in self-defence, with the intention of causing serious injury. When the evidence is assessed in the context of all of the other evidence in the case (in particular, the nature of the actions of the accused in repeatedly stabbing the deceased with upward thrusting motions), its (potential) probative value is only increased.

Consideration

1. Only "relevant" evidence is admissible. Such evidence is defined in s 55(1) of the Evidence Act as that which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." In IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 ("IMM") the majority (French CJ, Kiefel, Bell and Keane JJ) observed the following at [38]-[39] in relation to s 55: "By s 55, evidence is relevant if it 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.' There can be no doubt that the reference to the effect that the 'could' have on proof of a fact is a reference of the capability of the evidence to do so. The reference to its 'rational' effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance."
2. It was not disputed by the accused that the evidence the Crown relies upon is relevant. The focus of the objection turned on the application of s 97 of the Evidence Act which is in these 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.
3. "Tendency evidence" was explained by Simpson J (as her Honour then was) in Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [124], in this way: "Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion."
4. There are two questions for determination before the tendency evidence could be admitted under s 97 of the Evidence Act: 1. Was reasonable notice of the intention to adduce the evidence given? 2. Does the court think that the evidence, either by itself or in conjunction with other evidence in the Crown case, has significant probative value?
5. The accused did not contend that no reasonable notice has been given. The main issue in dispute was whether the evidence, either by itself or in conjunction with other evidence in the Crown case, has significant probative value. "Significant" in this context was explained by the majority in IMM as follows at [46]: "The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact finding."
6. Similarly, in Hughes v Queen (2017) 263 CLR 338; [2017] HCA 20 at [16], the majority (Kiefel CJ, Bell, Keane and Edelman JJ) ("Hughes") said: "The probative value of evidence is the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind or to act in a particular way to the likelihood that the person had the particular state of mind or acted in a particular way on the occasion in issue. The starting point requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence." (Emphasis added.)
7. In McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52, the High Court considered tendency evidence from many years earlier in a child sexual assault trial. The Court was not satisfied that the tendency evidence met the threshold requirement of s 97(1)(b) of the Evidence Act. The Court concluded at [32] that the evidence of the earlier sexual assaults was not capable of affecting the assessment of the likelihood that the appellant committed the offences against the complainant "to a significant extent". It was held that the evidence rose no higher than to "insinuate" that because the appellant had committed sexual assaults ten years before, in different circumstances, he was the kind of person who was more likely to have committed the offences alleged.
8. In discussing these High Court decisions in Taylor v R [2020] NSWCCA 355, Bell P (as his Honour then was) observed the following at [120]: "McPhillamy, read in conjunction with IMM, highlighted the fact that, whilst striking or even close similarity is not required for tendency evidence to have significant probative value, the less similar the tendency evidence is, the less likely it is to qualify as being of 'significant probative value'."
9. In considering whether the evidence has significant probative value, the Court is considering whether the tendency evidence makes more likely "to a significant extent" the facts that make up the elements of the charged offence: R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [125] per Campbell JA (with whom Howie and Rothman JJ agreed). The evidence need not have this effect by itself, it is sufficient if the disputed evidence together with any other evidence to be placed before the jury has this effect. In Hughes the majority further stated at [41]: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
10. Thus, the first question is the extent to which the evidence supports the tendency asserted by the Crown and the second question is the extent to which the tendency makes more likely the facts making up the offences. Therefore, even if the Court is of the view that the accused has the tendency or tendencies alleged by the Crown, the Crown still must establish that the evidence sought to be led has "significant probative value".
11. As set out above, the Crown identified the tendencies of the accused as being to act in the following three ways: 1. To be in possession of contraband weapons ('shivs') while in custody. 2. To use a weapon to assault other prisoners. 3. To use a weapon with intent to cause serious injury to other prisoners.
12. The Crown also asserted a tendency to have a particular state of mind, namely, to intend to cause serious injury when he uses a weapon to assault other prisoners.

Does the evidence support the tendency alleged?

1. As to the first of these tendencies, the accused does not dispute that he was found to be in possession of shivs on a number of occasions as alleged. I am satisfied that the Crown can establish that the accused had a tendency to carry a shiv in custody. The number of times he was found in possession of a shiv establishes such a tendency.
2. As for the tendency to use a weapon to assault other prisoners, and to do so with intent to cause serious injury, the Crown relies upon both the possession of the shivs and the earlier assault on Mr Hytongue. The accused does not dispute that he wounded Mr Hytongue as alleged. He pleaded guilty to that charge. Nor does he dispute that he used a shiv on Mr Black on 22 April 2020. Even though only one assault is relied upon, taking the evidence at its highest, I am satisfied that it could establish the relevant tendency.

Does the tendency evidence have significant probative value?

1. The critical question is whether the evidence has significant probative value: to what extent can the tendency evidence assist the jury is assessing the fact in issue, being whether the accused stabbed the deceased in self-defence or, as the Crown alleges, in an unprovoked act of retribution?
2. The question of whether the tendency to carry shivs has significant probative falls to be considered in the context that the Crown accepted that it was common for prisoners to carry shivs and no doubt such evidence will be adduced in cross-examination from correctional officers called as witnesses at the trial. Both the accused and the deceased were carrying a shiv at the time of the fight between them, and shivs were found in both of their cells after the fatal altercation.
3. The Crown submitted that the significant probative value of this evidence is not undermined by the fact that the inference could be drawn that the accused possessed the shivs for self‑defence. The significant probative value was said to be the fact that he possessed them for the potential of aggression.
4. I have considered the Crown submission that the fact that the accused was found to be in possession of shivs on six occasions, in addition to the one used to stab the deceased, makes it more likely that he was an aggressor than acting in self-defence. The fact that he had so many is certainly consistent with him always wanting to have one available. The Crown evidence is that they were confiscated on five occasions prior to 22 April 2020. Even taking the Crown case at its highest, the fact that he had so many shivs is consistent with a tendency to possess one but does not assist as to the reason he did so: was it in order to defend himself or be an instigator? I am not satisfied that this evidence is capable of affecting the assessment of the likelihood that the accused was not acting in self-defence at the relevant time to a significant extent. I would not admit it.
5. The next question is whether the tendency to assault other inmates with intent to cause serious injury has significant probative value. I have considered the similarities between the assaults identified by the Crown. I accept the Crown submission that such similarities fall to be assessed in combination rather than individually. But considering them in combination only highlights the lack of similarity once it is accepted that they both took place in the custodial setting. The Crown relies on the fact that both assaults included the use of a gaol-made weapon. But that is the only weapon available to any inmate. Similarly, the fact that the shiv on each occasion was bladed goes no further than describing them both as shivs. The fact that the victim on both occasions was a fellow inmate is not unusual either given that everybody around him was an inmate except for the corrections officers.
6. As for the assertion that both times the accused stabbed the victim it was in roughly the same area, that factor must be considered in the context of the nature of the attack as described by onlookers. The evidence in relation to the attack on Mr Hytongue, as summarised above, is that the accused calmly went up to the victim who was not moving, hugged him and moved on. The victim did not know he was stabbed until afterwards. The accused was polite and calm afterwards and simply stated that he had told officers that he did not want to be moved back into the general population. The accused was prepared to stab another inmate in plain sight of correctives officers, knowing he would be caught and charged (as he was) to show his strong opposition to going back into the general population. He did not know the victim and had no animus towards him.
7. By way of contrast, the Crown case is that the accused stabbed the deceased as an act of retribution because he bettered him in a fight moments beforehand.
8. The final similarity as between the two assaults relied upon by the Crown is that, on the Crown case, at the time of both attacks the victim was not actively threatening the accused. On the face of it, this is a significant similarity, but the Crown case is that the accused killed the deceased as an act of retribution. Although no specific motive for the earlier attack was identified it was clearly not an act of retribution as, on the Crown case, the accused and Mr Hytongue did not know each other.
9. The deceased died shortly after a previous altercation in which he kicked and punched the accused, in an attempt to access suboxone. The accused appeared to have access to suboxone from Mr Welford. At the conclusion of that altercation, the deceased pulled out a bladed weapon. The accused did similar. At the urging of other inmates, both put the weapons away in their shorts. At the time of the fatal injury, both the deceased and the accused were armed with bladed weapons. There are significant differences to the attack on Mr Hytongue.
10. I have considered the Crown submission that I would not consider the significant probative value of the tendency evidence only in the context of the one issue in dispute, being self-defence but, rather, in the context of all of the elements of the offence of murder. Although it is to be accepted that the jury must be satisfied of all of the elements of the offence in order to convict the accused of murder, the only fact actually in issue is whether the accused acted in self-defence. That is the real fact in issue in this trial.
11. In support of the contention that the evidence had significant probative value, the Crown relied upon the fact that the tendencies advanced are specific rather than general. As the majority stated in Hughes at [64]: "… A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant."
12. It seems to me that a tendency to carry a shiv in prison or to assault other inmates are somewhat general tendencies and, sadly, common. Although it is to be accepted that a tendency to assault another inmate with intent to do serious injury is somewhat more specific, as the comparison I have undertaken above shows, the two assaults were not sufficiently similar to satisfy me that the evidence had significant probative value within the meaning of s 97(1). In light of the principles derived from the decisions I have referred to above, I would not admit the evidence of these tendencies either.
13. Even if I had been satisfied that the tendency evidence had significant probative value, I am not satisfied that the Crown can satisfy s 101 of the Evidence Act, which is in these terms: 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 outweighs the danger of unfair prejudice to 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.
14. The Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) amended s 101 such that it now reflects the language of s 137 of the Evidence Act. Section 101 is only applicable when the Crown seeks to adduce tendency evidence about an accused person. It would not apply to any application by the accused to adduce tendency evidence of the deceased.
15. The danger of unfair prejudice to the accused should the evidence be admitted is the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: "The focus is upon the d anger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case …".
16. In Hughes at [17] the majority made the observations in relation to the types of prejudice that can be created by the use of tendency evidence. These included: "The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
17. The unfair prejudice in the present matter is that the jury would reason that the accused is a person of bad character who has previously assaulted someone in an unprovoked and senseless manner in custody. Although it is to be accepted that all tendency evidence is evidence of bad character, the balance in this matter militates against the admission of the evidence for the reasons I have already provided when assessing whether it has "significant probative value". Furthermore, there is already the prejudice to the accused arising from the fact that he was in custody at the time of the assault. In so concluding I have had regard to appropriate directions that could be given to overcome such prejudice.
18. Finally, as for the question of the admissibility of the material relied upon by the accused on this application, Mr Evers indicated that he would only seek to rely on tendency evidence in respect of the deceased in the event that I admitted the tendency evidence of the accused. I have not admitted it. Otherwise, I was satisfied that the evidence of the Crown witnesses Mr Harris and the correctional officers was relevant and admissible on this application on the basis that the assessment of the significant probative value of the Crown evidence was to be undertaken in the context of the other Crown evidence. It is admissible at trial and was admissible on this voir dire.
19. As for the evidence of the findings of the shivs in the deceased's cell, that material was part of the Crown tender in any event. It was admissible to consider the probative value of the fact that shivs were found in the cells of both the accused and the deceased after the fatal fight but will not be admitted at trial given that I have excluded the evidence of the accused's tendency to possess shivs.
20. As for the deceased's inmate profile and criminal history, I did not find them to of assistance. The identified tendency is to inflict violence to get drugs. The material in those documents did not establish such a tendency.
21. Finally, as for the deceased's statements to Justice Health, it seems to me that would be admissible as a business record under s 69 of the Evidence Act. Thus, although some of the evidence relied upon by the accused would be otherwise admissible, I am not satisfied that any of it would have established the tendency provisionally advanced on behalf the accused.

ORDERS

1. Accordingly, I make the following order: 1. The evidence set out in the amended tendency notice dated 31 May 2022 is excluded.

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