Did the trial judge err in applying O'Leary ?: Samadi ground 2: Djait ground 7
47 It was alleged that her Honour erred in admitting into evidence the events of incident 2 (count 4) upon the trial of incident 1 (counts 1-3) as being part of the one transaction. It was submitted that this was not a case where the approach permitted by the principles stated in O'Leary applied.
48 The Crown, at trial, proposed to rely upon the evidence in relation to count 4 to prove, that in respect of counts 1, 2 and 3, the appellants had an intention to steal, notwithstanding that there was no evidence of any property having been stolen. It was proposed to prove that intention from the circumstances surrounding the interaction of the complainants with the appellants, as well as the circumstances surrounding the offence and actual theft of property from the complainant in count 4. It will be remembered that the incidents in counts 1, 2 and 3 and in count 4 occurred on the same night and within a relatively short time of each other.
49 The Crown relied upon the principles stated in O'Leary as permitting it to pursue that course. The principle had earlier been stated by the High Court in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367. In that case, Dixon J, with whom Latham CJ agreed, stated, at 375:
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued ." (Emphasis added)
50 In O'Leary, the appellant was convicted of a murder which was committed on 7 July 1946. A question arose as to the admissibility of evidence of assaults upon other persons committed by the accused on 6 and 7 July 1946. Those assaults were violent and unprovoked and the victims were fellow employees of both the appellant and the man killed. The victim had been struck violently on the head about eight or nine times and then kerosene had been poured on him and his clothes set on fire. Evidence of the other assaults was admitted at trial upon the grounds that the attack upon the deceased was brutally violent, that the deceased was drunk and helpless at the time and that the injuries had been inflicted to the head. The two former characteristics were present in the case of the other assaults proved and in one or two of them there were head injuries. The evidence had been admitted as similar evidence of acts which showed more than a general disposition to violence or his bad character.
51 This basis of admissibility was rejected by the High Court. However, there was an alternate basis upon which it was held to be admissible. Dixon J stated, at [577]-[578]:
"The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide. Examples of the admission of evidence of connected incidents of one transaction will be found in R. v. Cobden (1862) 3 F. & F. 833 [176 E.R. 381]; R. v. Voke (1823) Russ. & Ry. 531, at p. 533 [168 E.R. 934, at p. 935]; R. v. Rearden (1864) 4 F. & F. 76 [176 E.R. 473], and as to this case see per Cussen J. in R. v. Herbert (1916) V.L.R. 343, at p. 349."
52 Latham CJ rejected the basis upon which the evidence had been admitted at trial. He said, at 574-575, that it would be a dangerous extension of the principles relating to the admissibility of similar fact evidence to hold that the circumstance that a crime was savage and brutal was sufficient to justify evidence that on other occasions the accused had been guilty of savage and brutal acts. The Chief Justice considered, however, that there was another basis upon which the evidence was admissible. After referring to the fact that all the assaults were incidents in a drunken orgy that took place over the course of the evening of 6 July and the early hours of 7 July, his Honour said that such evidence "was admissible to show the probability that [the accused] would attack another man in a fit of drunken fury". Evidence that the accused had actually attacked particular fellow employees without cause during this period was also evidence showing the probability that he would attack some other fellow employee. His Honour then said:
"Such evidence puts the act of attacking [the victim] in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of 'facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.' - per Dixon J. in Martin v. Osborne ." (Citation omitted)
53 The principle stated by Dixon J in O'Leary was considered by this Court in R v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267; 106 A Crim R 510. There, the Court, constituted by Spigelman CJ, James and Bell JJ (as her Honour then was), were concerned with an appeal from a murder conviction of an off-duty police officer. The appeal was allowed, but on a point not concerned with the Court's comments relating to O'Leary. In Adam, evidence had been admitted at trial that the accused, some time before the first stage of the attack on the deceased, had been staring at one of the patrons at the tavern where the murder occurred. In his address to the jury, the Crown had referred to this incident, stating, "there is aggressiveness, it is not as if they are just peace loving types". The comment was made in respect of the accused and one other person.
54 On the appeal in Adam, it was submitted that this evidence was admissible as tending to show the accused's state of mind at the time of the offence. It was also submitted that it was admissible under the principles stated in O'Leary, namely, that the accused's conduct "formed an integral part of a 'transaction' consisting of connected events, including both phases of the attack on [the deceased]". It was argued on the appeal that the principle of the admissibility of evidence stated in O'Leary had been abolished by the Evidence Act. This argument was rejected (see at [24] ff).
55 It had also been argued that evidence of that incident was "tendency evidence" within Pt 36 of the Evidence Act and was not admissible to prove the accused had a tendency to act in a particular way, or had a particular state of mind, because the preconditions for the admission of such evidence under the Act had not been satisfied. The Court, at [27], said:
"If evidence of the appellant staring at Dennis Oshana was an integral part of a connected series of events happening on the night of 18 April 1997, which included the assaulting of David Carty and which could not be truly understood without reference to the evidence (that is, if the evidence came within the O'Leary principle) or if the evidence of the appellant staring at Dennis Oshana was evidence of conduct by the appellant at a time sufficiently proximate to the time of the alleged assaulting of David Carty to permit an inference to be drawn that the appellant had the same continuing state of mind at the time of the alleged assaulting of David Carty as he had at the time of the staring, then such evidence would not, in our opinion, be tendency evidence within Pt36."
56 The Court noted, however, that there would have been a serious question in the case whether evidence that at some indeterminate time prior to the assault of the deceased, the appellant had stared, even hostilely, at some other person in the tavern, would be admissible on the bases in O'Leary and the other bases upon which the Crown had relied. However, the jury had been appropriately directed that that incident was of no moment and that they should not draw any inference from it: see also R v Player [2000] NSWCCA 123 at [14]-[16].
57 In the matter presently before the Court, the trial judge ruled that the evidence on count 4 was admissible in respect of counts 1-3 in accordance with the principles in O'Leary. Her Honour's reasoning was as follows:
"It seems to me that in the case before me the evidence surrounding count 4 indeed is evidence so close both in time and physically to the other three that it can be said to be part of the same transaction and the circumstances surrounding count 4 are relevantly admissible to explain and prove the state of mind of the [appellants] at the time they were with the first three complainants and to be used by the jury to draw the inferences the Crown will ask them to draw, both in relation to intention to steal and the administration of the drug Clonazepam based on the reportedly described symptoms."
58 The appellants contended that this evidence was not so . They submitted that the incidents are quite different transactions. In incident 1, two women were involved (in fact, it was two women and one man). In incident 2, a homosexual man was involved. It was submitted that mere temporal proximity was not a legitimate basis for admission. Further, it was submitted that simply because two events could be characterised as involving the same two men drugging two sets of victims on the same night, it was not indicative of both events being part of the same transaction.
59 It was also submitted that when regard was had to the use to be made of the evidence relating to incident 2, it was to prove the appellants' intention to enable each appellant to commit the indictable offence of stealing property. It was submitted that such reasoning in this case was flawed, because there was a more compelling inference, or at least, an equally available inference, that the intention could have been of an attempt to sexually or indecently assault the female victims.
60 It was also submitted that incident 2 was quite different in that the drink spiking took place in the victim's home, whereas in incident 1, the drink spiking had occurred at a bar.
61 The Crown contended that her Honour had correctly admitted the evidence in respect of incident 2 as evidence relating to the counts arising out of incident 1, within the principles of O'Leary. Three matters were in issue in the counts arising out of each of those incidents: first, the identity of the offenders; secondly, whether the offenders had administered a stupefying drug to the victims; and thirdly, the intention of those offenders when doing so.
62 The Crown submitted that given the following matters, the evidence was admissible in accordance with the principles in O'Leary. First, both incidents involved the same two offenders. Secondly, both incidents were integral parts of a connected chain of events involving the appellants at and about the vicinity of the Pontoon Bar at around midnight on 13-14 October. Incident 2 began almost immediately upon the cessation of incident 1, in the vicinity of the Pontoon Bar, where SM was approached by the appellants. Finally, the Crown contended that incident 1 could only be presented as an "unreal and not very intelligible event" without: (1) forensic evidence that the appellants had administered Clonazepam to SM, the victim in incident 2, thereby providing an appropriate evidentiary basis for the inference the appellants had also administered that drug to the victims in incident 1; and (2) the evidence that the appellants had done so to enable the larceny of the property of SM provided an appropriate evidentiary basis for the inference that the appellants had similarly administered the drug to the victims of incident 1 to enable the larceny of their property.
63 In my opinion, there was no error in the trial judge permitting the evidence in respect of count 4 to be admitted to explain and prove the state of mind of the appellants at the time they were with the complainants in incident 1 and to be used by the jury to draw the inference, both in relation to the intention to steal and the administration of the drug Clonazepam, based upon their symptoms. Had the jury been instructed that the evidence in incident 2 was not part of the same overall circumstances, incident 1 would, in my opinion, be, as was said in O'Leary, "an unreal and not very intelligible event". It would simply be an event where persons had some wrong purpose.
64 The question then becomes whether the relevant intention for the purposes of s 38 could be inferred, or whether, as was submitted by the appellants, the more compelling, or at least equally available inference, was that the appellants intended to sexually assault the women. In my opinion, the relevant intention for the purposes of s 38 could be inferred from the circumstances proved in respect of count 4. However, even if there was arguably more than one intention operating on the minds of the appellants at the time that they spiked the drinks, that does not mean that the Crown could not restrict its case and allege an offence in respect of one of those intentions. Not does it diminish the force of the evidence that that on that night, the appellants were involved in a process of spiking the victims' drinks for the purpose of committing an indictable offence which was to enable them to steal, even if they may also have had some other intention, such as, for example, to commit a sexual offence. Accordingly, this ground of appeal should be dismissed.