Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Offences of unlawful injury to property and causing grievous bodily harm - Defences of accident and self-defence - Proposed cross-examination of accused as to steroid use and its effects - Evidence potentially relevant to accused's state of mind - Danger of unfair prejudice outweighing probative value.

Evidence Act 2001 (Tas), s137.

Judgment Number: [2008] TASSC 38

1 The accused was charged on indictment with one count of unlawfully injuring property contrary to the Criminal Code, s273, and one count of causing grievous bodily harm, contrary to s172. Pleas of not guilty were entered to both counts.

2 The trial commenced on 22 July 2008 and had reached the stage at which the accused had given examination-in-chief. At that point, I was asked to determine, as had been previously foreshadowed, the admissibility of evidence sought to be adduced in cross-examination, and the propriety of questions to be put.

3 After hearing submissions, and before the cross-examination commenced, I ruled that the evidence sought to be adduced was not admissible on the accused's trial, and that the cross-examination would not be permitted.

5 The accused's trial was due to start on 23 June 2008. On 17 June 2008, the Mercury newspaper published a front page headline story entitled "Gang Wife's Charity Bid". The article referred to an impending visit to Hobart of Roberta Williams, the ex-wife of convicted murderer and Melbourne underworld figure, Carl Williams, for a charity event to be held on 26 June 2008.

6 The third paragraph of the front page article read:

"The promoters of the visit - Moonah's Xtreme Physique Gym - said they had approached Ms Williams after the runaway success of the Channel Nine series Underbelly."

7 Carrying over from page 1 onto page 2, the article continued:

"Xtreme Physique's owners, brothers Wayne and Shaune Howlett, have had their own chequered past.

In 2006 the weightlifters received two-years' suspension from the Australian Sports Anti-Doping Authority.

Wayne [the accused] was stripped of his 100gk national title after returning a positive drug test for steroids.

Ms Williams has served six months' gaol for ecstasy trafficking."

8 It is common ground that one of the owners of Xtreme Physique is the accused and that the Wayne Howlett referred to in the article is also the accused.

9 On 19 June 2008, Blow J heard an application to stay these proceedings on the basis of the prejudice to the accused created by the article. The result was that the matter was removed from the list, with an indication that the trial should not be listed before at least five weeks had elapsed.

10 Blow J said there was an unacceptable risk that jurors might associate the accused with the Williams family (or another Melbourne criminal family), or with the suspension from weightlifting, or with the stripping of his weightlifting title. Accordingly, a juror, aware of the association of the accused with "criminals, drug cheats or drug traffickers" and of the particular information, might treat the accused less favourably in relation to his credibility.

11 The Crown case was that in the early hours of the morning of 18 November 2006, the accused was involved in an altercation with his then girlfriend outside a Salamanca Place bar. The woman was sitting in the front passenger seat of a taxi, with the accused standing at the front passenger side door. The two were arguing.

12 It is alleged that the accused then broke the front passenger window and reached in to grapple with the woman. The breaking of the window was the subject of the first count.

13 The evidence suggests that a group of about four or five males then approached this scene, with one, the complainant, touching the accused on the right shoulder, or (depending on which version of events is accepted), saying something to the accused without touching him.

14 The accused is alleged to have spun around and immediately struck the complainant a forceful blow which, on the medical evidence, rendered him immediately unconscious, causing him to drop to the ground. The Crown case as to the second count was that the accused was in a rage and that he lashed out at the complainant in anger.

15 In his evidence-in-chief, the accused said that he had been out that night with his girlfriend and five people from Melbourne who were his guests. The accused was involved in the sport of powerlifting, and one of the Melbourne group was of international renown in this sport. The accused agreed that he wanted to make a good impression on them. The group had gone into the bar, almost immediately after which the accused's girlfriend became very abusive towards another female patron, causing bar workers to intervene.

16 The woman then became involved in a heated argument with a female security guard. The accused said he was embarrassed and angry, that he got "fed up" with her and told her she was going home. He then took her outside and flagged down a taxi.

17 The accused put the woman into the taxi, and paid the driver to take her home. The taxi was driven off, but it had to stop a few car lengths further down the road. At that point, the woman wound down the window on her side, (apparently partially), and shouted abuse at the accused who was then making his way back into the bar. It was then that he returned to the taxi. He attempted to prevent the woman getting out, in the course of which, the accused said, he accidentally broke the window.

18 The accused said that he heard a number of male voices from behind him telling him to leave the woman alone and then he was grabbed from behind over the right shoulder, the person responsible putting his arm across his throat "neck area", which caused him difficulty in breathing.

19 He said he wriggled his way out of the hold, spun around and was confronted by five men, or at least five men, and a particular person "... seemed to be coming at me again and I just defended myself with one punch and he just went down ...".

20 Obviously, this raises the issue of self-defence.

21 The Crown sought to cross-examine the accused about his suspension from the sport of powerlifting; specifically, that the Australian Sports and Doping Authority had suspended him from competitive powerlifting on 23 November 2006 in relation to a sample collected in Brisbane on 6 October 2006. (The accused's counsel later corrected the date of the taking of the sample to some time on 29, 30 or 31 July 2006.)

22 The sample tested positive for Nandralone and Methandienone. Both are controlled substances under the Misuse of Drugs Act 2001. Hence, use of those drugs amounts to an offence, albeit a summary one.

23 It was intended to cross-examine the accused to establish his suspension due to the use of anabolic steroids, and then to ask about his use between the taking of the sample and the date of the offences, together with "any previous steroid use as well".

24 The next intended step was to cross-examine the accused as to the effect of steroids on him. The Crown proposed to ask him about his knowledge of the condition known as "roid rage" and whether he felt that he suffered from that.

25 I was told that "roid rage" is a term given to a commonly known condition which may afflict people who take large doses, usually on a regular basis, of anabolic steroids. One of the main symptoms of the condition, self-evidently, is to act in a very aggressive manner.

26 The point of the cross-examination was, of course, to adduce evidence tending to establish that the accused would have had, and did have, difficulty controlling his aggression, and that his level of anger was much higher than he admitted.

27 It would appear that the positive test and the suspension would not have been denied by the accused. In the event that it was, the Crown suggested it might seek to call rebuttal evidence.

28 There was less certainty about whether the Crown would seek to call evidence in rebuttal if the accused denied knowledge of the "roid rage" condition, and its symptoms and manifestations.

29 Whether this evidence could be properly characterised as rebuttal evidence as distinct from evidence in a re-opened "split" case, and whether it would have been permitted, need not be determined.

30 The first issue is whether the evidence sought to be adduced was relevant within the meaning of the Evidence Act 2001 ("the Act"), s55. If not, it could not be adduced.

31 The Act, s55(1), provides that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of the fact in issue in the proceeding.

32 Section 55(2) directs that evidence is not taken to be irrelevant only because it relates to the credibility of a witness. The latter provision should be read literally, so that if the "only" relevance of particular evidence relates to credibility, it does not necessarily mean that it will not be relevant to a fact in issue.

33 It might be thought that the evidence of the positive drug test and the consequent suspension, taken in isolation, would be relevant only to credibility. However, the establishment of those facts would be the foundation for cross-examination as to the continued use of steroids up until the time of the offences.

34 To excise that part of the proposed cross-examination from the balance would, I think, produce an artificial result.

35 The primary issues in this trial are the question of the accused's intention in relation to the act causing the damage to the taxi window, and the question of self-defence. Very plainly these would be facts in issue within the meaning of s55; see Smith v R [2001] HCA 50; (2001) 206 CLR 650 at 654 par[7].

36 In this trial, as to the first count, the Crown must prove that the accused either intended to break the window, or foreseeing the likelihood of that event, carried out his actions regardless of the risk; Hodgson v R [1985] TASSC 40; [1985] Tas R 75.

37 The question of whether the accused was in an uncontrollable rage, or at least, that his admitted anger may have been greater than he asserted, is conceivably relevant to a fact in issue, in the sense that it could rationally affect the assessment of the probabilities relating to the requisite intention required by the Code, s273. The information elicited by the cross-examination could well form part of the jury's reasoning process.

38 As to the second count, the Crown must prove the act of the accused was not done in self-defence. The Criminal Code, s46, provides that a person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.

39 It is well understood that there are two questions involved in this determination. The first question is whether the accused genuinely believed he was acting in defence of himself. If the jury is satisfied beyond reasonable doubt that he did not believe the circumstances required the use of force in self-defence, then the deliberations go no further.

40 If the jury is not so satisfied, the question is whether the amount of force that was used was reasonable in the circumstances as the accused believed them to be. The Crown needs to satisfy the jury beyond reasonable doubt that the amount of force used was unreasonable.

41 If it be necessary, as to the "elements" of self-defence I would refer to Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 685, which restates the common law in terms which are applicable to the Code, s46; see Walsh v R 68/1993.

42 To my mind the cause and extent of the accused's anger would be relevant in considering the first question. Evidence that the accused may have been in an uncontrollable rage caused by the use of steroids could rationally affect the assessment of the probabilities as to the question of whether the accused believed the circumstances required him to use force.

43 The same evidence is relevant, in the same way, as to the second question of whether the amount of force used was reasonable.

44 The Act, s102, provides that evidence that is relevant only to a witness's credibility is not admissible. Section 103(1) creates an exception to the credibility rule where the evidence is adduced in cross-examination and has substantial probative value.

45 The submissions of both counsel for the Crown and counsel for the accused moved from relevance under s56, to whether the evidence ought be excluded under s137. Having regard to the nature of the evidence under discussion, I think this to have been the correct approach.

46 Because of the relevance which the evidence may have, I take the view that the application of the credibility rule does not arise. In short, taking the evidence sought to be adduced as a whole, as I have outlined, it is not relevant only to the accused's credibility.

47 The Act, s137, requires the Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

48 In L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381, this balancing exercise was held to involve the making of the judgment and not the exercise of the discretion; see Underwood CJ at 401 pars[51] - [52], and Tennent J at 408. If the probative value is judged to be outweighed by the danger of unfair prejudice, exclusion must follow.

49 "Probative value" is defined as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

50 As I have noted, the fact of the positive drug test and the consequent suspension were likely to have been admitted by the accused. I can only speculate as to what his answers may have been in relation to his continued use of steroids beyond the date of the taking of the sample giving rise to the positive test. Similarly, I can only speculate as to his responses to questions about "roid rage" and any effect on him of steroid use.

51 The facts likely to be admitted by the accused would, of themselves, have limited probative value. But the evidence sought to be adduced included the fact of the accused's continued steroid use that such use caused him to be abnormally aggressive and not be able to control his anger, and that this was his condition at the time of the offences. That evidence would have at least some probative value within the meaning of the Act.

52 As to the meaning of "unfair prejudice" in s137, Blow J in W v R [2006] TASSC 52; (2006) 16 Tas R 1 at 43, referred to the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at par[644] as "... a very useful exposition ...". That exposition is as follows:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

53 In my judgment, the evidence sought to be adduced would create an unacceptable risk that the jury would be distracted from its task, and may use the evidence to make a decision on an improper basis, or on a basis logically unconnected with the issues. If the accused admitted the taking of steroids he would be admitting to offences under the Misuse of Drugs Act. That, and the context in which that use occurred, which included a suspension from the accused's sport, may trigger an emotional response in substitution for a logical, balanced approach.

54 There may well be a strong and immediate temptation to simply regard the accused as dishonest. Moreover, the spectre of steroid use, (particularly perhaps in the sport of powerlifting), and its possible side effects could create hypersensitivity to the nature and extent of the accused's admitted anger and to the degree of force used.

55 A difficulty which is created for the accused by the Crown pursuing its objective, is that the questions themselves, although obviously not evidence, may themselves create unwarranted suspicion and criticism adverse to the accused's interests, even if the allegations are denied.

56 The risk of such danger may well be heightened by any lingering effect of the article in the Mercury, set out earlier in these reasons. This trial commenced two days short of the five weeks which his Honour suggested as appropriate. This was done, it should be said, without objection, but it remains a relevant consideration.

57 I take the view that there are proper and effective means to cross-examine the accused about his admitted anger other than those proposed. I think the danger of unfair prejudice outweighs the probative value of the evidence sought to be adduced.