Vojneski v The Queen [2016] ACTCA 57

[2016] ACTCA 57

Court of Appeal (ACT)|2016-11-10|Before: Murrell CJ, Refshauge and Wigney JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2016-11-10

Before

Murrell CJ, Refshauge and Wigney JJ

Catchwords

CRIMINAL LAW – EVIDENCE – Tendency evidence – use
of tendency evidence – tests for admissibility – whether
misdirection
on tendency evidence –– similarity between tendency

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – EVIDENCE – Tendency evidence – useof tendency evidence – tests for admissibility – whethermisdirectionon tendency evidence –– similarity between tendencyincidents – no substantial miscarriage of justice – similarityoftendency incidents and offence incidentCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Punishment – sentencing – murder – whether case in the worstcategory – public protection

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Vojneski v The Queen

Citation: [2016] ACTCA 57

Hearing Dates: 2, 3 May 2016

Decision Date: 10 November 2016

Reasons Date: 10 November 2016

Before: Murrell CJ, Refshauge and Wigney JJ

Decision: Appeal against conviction dismissed. Appeal against sentence allowed. Appellant sentenced to 19 years’ imprisonment with a nonparole period of 10 years’ imprisonment. See [140].

Catchwords: CRIMINAL LAW – EVIDENCE – Tendency evidence – use of tendency evidence – tests for admissibility – whether misdirection on tendency evidence –– similarity between tendency incidents – no substantial miscarriage of justice – similarity of tendency incidents and offence incident CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – murder – whether case in the worst category – public protection

On the night of 27 March 2012, Paula Conlon (the deceased) was stabbed to death in her bedroom at the home that she shared with a young boarder, A. The perpetrator used “severe” force to inflict 11 stab wounds and four incised wounds to the deceased, principally to her chest, heart and lung regions, and to her forearms. The murder weapon was not located.
Prior to her death, the deceased was in a relationship with the appellant. The appellant was charged with murdering the deceased.
At the trial, the identity of the perpetrator was the central issue. The defence did not address the jury on mental impairment or self defence, although evidence of the mental instability of the accused was admitted without objection.
The prosecution advanced a circumstantial case to prove that the appellant was the murderer.
The circumstances upon which the prosecution relied included alleged tendencies of the appellant. The prosecution asserted that the appellant tended to become quickly aroused to anger and, when angry, to use knives to threaten people and to inflict harm on people and objects.
Another circumstance upon which the prosecution relied was the existence of possible motives for the appellant to murder the deceased, including the motive that, just before the deceased’s death and at a time when the appellant was short of money to buy drugs, he discovered that the deceased had purchased clothing. The prosecution said that this discovery may have aroused a tendency of the appellant to become angry and violent when he was not provided with money for drugs and, by that route, may have provided the appellant with a motive to kill the deceased.
On 3 September 2014, a jury found that the appellant was guilty of murder.
On 11 November 2014, Burns J (the trial judge) sentenced the appellant to life imprisonment: R v Vojneski (No.4) [2014] ACTSC 307 (Vojneski No.4).
Initially, the appellant appealed only against sentence. Later, Penfold J granted the appellant leave to appeal against conviction on the grounds that the trial judge had erred by admitting tendency evidence and had misdirected the jury in relation to tendency evidence: Vojneski v The Queen [2015] ACTCA 44 (Leave Decision).

The prosecution submitted that the appellant should be permitted to argue neither conviction ground.
The prosecution argued that, as the s 101 ground involved an appeal against an interlocutory order, leave was required under s 37E(4) Supreme Court Act 1933 (ACT). In support of the contention that leave should be refused, the prosecution said that, at no time, prior to or during the trial, did the appellant seek to appeal the decision and it was not until 7 May 2015, almost six months after the appeal against sentence was lodged, that the appellant sought to add conviction grounds. The delay militated against the grant of leave to appeal the interlocutory order.
In relation to the misdirection ground, the prosecution relied on Court Procedure Rules 2006 (ACT) (CPR) r 5531. Rule 5531 does not speak of “leave”. Rather, subject to another order of the Court of Appeal, it prevents a person from pursuing a ground of appeal concerning an alleged misdirection if the person failed to object at the trial. The prosecution noted that the appellant did not seek a redirection on the point now taken, although his counsel did ask for further directions about other matters and the trial judge made most of the requested redirections.
In addition, in relation to both conviction grounds, the prosecution submitted that the belated attempt to appeal had an “armchair quality”: Munro v The Queen [2014] ACTCA 11 per Burns J at [128] (Refshauge and Penfold JJ agreeing).
In our view, the appellant should be permitted to pursue both grounds.
When dealing with the question of leave to appeal out of time on both conviction grounds in the Leave Decision, Penfold J addressed delay at [21]–[24], finding that the appellant’s explanation for the delay was “not particularly persuasive” but, on the other hand, any fault lay with the appellant’s lawyers rather the appellant himself. Her Honour considered the s 101 ground in some detail. At [89] her Honour opined that some or all of the tendency evidence had been wrongly admitted and there might be a miscarriage of justice if the appellant was refused leave to appeal out of time. Her Honour did not examine the misdirection ground in any detail because she considered that the merits of that ground depended on the merits of the s 101 ground. Her Honour referred the question of whether leave should be granted under r 5531 to the three-member Court of Appeal.
Given Penfold J’s views about delay and the merits of the s 101 ground, we would not refuse leave to appeal the s 101 ground or to decline to make an order under r 5531 on the related misdirection ground.
There are other reasons for reaching this conclusion.
As to the s 101 ground, it is true that an application for leave to appeal from an interlocutory order should be filed not later than seven days after the day that the interlocutory order is given: r 5312 CPR. However, if an application to appeal a pre-trial tendency evidence ruling is filed prior to the trial, the Court of Appeal is unlikely to entertain the application prior to the trial because that would delay the trial. In addition, until the trial occurs, one cannot know what the witnesses will say about the tendency incidents, and what they say may affect the strength of any appeal. Further, if the accused is acquitted, it will be unnecessary to hear the application. The criminal process should not be unnecessarily fragmented by appeals against interlocutory orders. In Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478 (a civil case), the High Court decided that, on an appeal from a final order, an interlocutory order may be challenged when the order affected the final judgment. In this case, the tendency evidence had the capacity to affect the conviction.
The provisions of s 76(2) of the Court Procedures Act 2004 (ACT) are worth noting. Section 76(2) enables a court to make a pre-trial ruling on evidence. Such a ruling is prima facie binding on the trial judge and “is taken to be part of the trial of the accused person”: ss 76(3) and (4). Section 76 is designed to enable trials to run more quickly and smoothly. It would be unfortunate if the efficiencies achieved by s 76 were undermined by the pre-trial hearing of applications for leave to appeal to the Court of Appeal against rulings made under s 76.
In this case, the appellant’s objection to the admission of the evidence of tendency incidents was always alive. There were good practical reasons for not pursuing an application for leave to appeal prior to the trial and, in the Leave Decision, Penfold J expressed the view that the admission of the tendency evidence may have resulted in a miscarriage of justice. For all these reasons, the appellant should be granted leave to appeal the interlocutory ruling concerning the admission of tendency evidence.
Rule 5531 requires an appellant to seek a redirection at the time when the contested direction is made, enabling a trial judge to correct any error at the time of the trial. The failure to seek a redirection may be treated as a concession that any error was immaterial; it was not noticed or, if noticed, it was considered trivial in the context of the way in which the trial was run.
In this case, the asserted misdirection resulted from an exchange between defence counsel and the trial judge concerning tendency evidence; it occurred as the trial judge was responding to and correcting what had been said by defence counsel. Defence counsel’s failure to seek a redirection was not an “unexplained failure to take a point”: Hughes at [236]. Consequently, r 5531 should not impede an appeal against the asserted misdirection. The circumstantial case
In addition to tendency circumstance/s, the prosecution relied upon the following non-tendency circumstances:

The trial judge approached the admission of tendency evidence in a manner that was, in principle, correct. His Honour acknowledged the importance of identifying the “fact in issue” to which the proposed tendency evidence related: at [48]. His Honour observed that, in determining “probative value”, the approach in R v Shamouil (2006) 66 NSWLR 228 should be followed, i.e., the judge should not usurp the function of a jury by predicting how the jury would view the evidence: at [39]–[41]. Applying Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568 per Simpson J at [148], his Honour noted that, in the context of “significant probative value”, “significant” means “important” or “of consequence”: at [43]. This approach was consistent with the subsequent decision of the plurality (French CJ, Kiefel, Bell and Keane JJ) in IMM at [50]–[54].
His Honour was satisfied that each of the alleged tendencies was relevant to the principal fact in issue, i.e. whether the appellant was the person who killed the deceased; if the jury was satisfied that the accused had a relevant tendency, then the jury could use that tendency to reason towards a finding that the appellant was the person who killed the deceased: at [50]–[51].
The trial judge identified the prejudicial effect of tendency evidence revealing criminal or disreputable acts, and the important role that directions may play in ensuring that a jury does not use the evidence in an unfair way, as evidence that the accused is a person of bad character who is therefore more likely to have committed the offence: at [45].
The trial judge correctly considered each tendency incident separately when deciding whether the probative value of the evidence substantially outweighed any prejudicial effect. His Honour was also correct to consider each separate in incident in the context of the other incidents. The appellant’s submissions on the admission of tendency evidence
The appellant submitted that the tendency evidence should not have been admitted because:

In written submissions, the appellant said:
...the tendency evidence was used both to construct what had happened, on the basis that it was the Appellant acting in accordance with the identified tendencies, and then to establish, by virtue of the Appellant having tendencies that matched what had happened, that he was the offender. 11. Specifically, on the basis that the Appellant was prone to anger, prone to threaten or use knives when angry, prone to be violent when angry, when denied money for drugs and when under the influence of drugs or alcohol, the case was constructed such that these features were said to exist, and this was what had occurred. If this was what occurred, which could only be speculated on the basis of the tendencies, then it was the Appellant, who bore these tendencies, who was responsible. The use of the tendency, particularly going to the central use of identification of the offender, was inherently circular. The appellant relied upon observations of Penfold J in the Leave Decision at [64].
The appellant’s submissions assumed that the tendency evidence was designed to go directly to the issue of whether the appellant committed the particular offence on the particular day. It was not. Tendency evidence is circumstantial evidence. It is indirect evidence; it may allow an inference that the accused had a behavioural tendency at the time of the offence and that circumstance may support a finding of guilt.
The prosecution case was that the way in which the murder was committed (an apparently frenzied stabbing of a domestic partner with a kitchen knife) conformed to the appellant’s tendency to act in such a way. In addition, in relation to tendency (e), the prosecution said that the appellant tended to become angry when not provided with money for drugs and it should be inferred that, on 27 March 2012, the appellant was without money for drugs and would have tended to become angry, giving the appellant a possible motive to kill the deceased. This possible motive was itself merely a circumstance.
The prosecution argued that, when all the circumstances (including both the non-tendency circumstances referred to in [28] above and the tendency circumstances) were taken together, the only rational inference was that the appellant was the perpetrator. This reasoning process is not circular.

In the notice of appeal, the appellant did not dispute that the tendency incidents had “significant probative value” within the meaning of s 97(1)(b), i.e. they had significant capacity to inform the issue of whether the appellant was the person who murdered the deceased.
The appellant argued that a significant prejudicial effect attached to the tendency evidence; the sheer weight of the evidence of generalised bad character and criminal disposition might have caused the jury to reason that the appellant was “a nasty piece of work” and was therefore the sort of person who would stab his partner to death. The appellant submitted that, prompted by the tendency evidence, the jury may have returned a guilty verdict for emotional reasons.
On the appeal, the question is whether the outcome of the s 101(2) balancing exercise was unreasonable or plainly wrong.
The trial judge was entitled to conclude that, when taken together, the Skyfire Incident, the Barbecue Incident, the Former Partner Incident, the Tyres Incident and the Balcony Incident were capable of establishing that the appellant had a long-standing behavioural tendency to become “irrationally or disproportionately angry” in a domestic context, and then obtain a knife (on three occasions, the knife was obtained from the kitchen and on the other occasions it may well have been obtained from the kitchen) and use the knife to threaten or stab the victim. The incidents spanned 11 years. The Balcony Incident involved the deceased (the appellant’s most recent domestic partner) and it occurred about 10 weeks before the deceased was murdered. This relatively distinctive tendency conformed to the offence. Consequently, the trial judge was entitled to conclude that the evidence had significant probative value.
The evidence was prejudicial in the sense that it revealed disreputable conduct by the appellant, but as the disreputable conduct was what gave the evidence its probative value, it was not unfair prejudice. Any unfair prejudice arising from misuse of the evidence (by reasoning that, if the appellant was a person of generally bad character, he was more likely to have committed the murder) could be adequately addressed by appropriate directions.
As part of the Royal Commission into Institutional Responses to Child Sexual Abuse, an empirical study was undertaken to examine jury reasoning in relation to tendency evidence: Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) (the study). The study found that, although conviction rates were higher in trials where tendency evidence was led, “none of the juries in the tendency evidence trial... engaged in impermissible tendency reasoning”: at 136.
It does not follow that, because the accused had committed crimes such as assault and threaten to kill, the jury’s emotive reaction might be to punish him for the much more serious offence of murder. Juries are robust and are not readily overwhelmed by disturbing evidence. In any event, the subject matter of the tendency incidents was relatively benign. The tendency incidents were not factually horrific or otherwise likely to inspire an overly emotional response. If properly instructed, it is hard to see that a jury would misuse the evidence, either by fallacious reasoning or by becoming diverted by the inflammatory content of the evidence: Festa per McHugh J at [51]. The Royal Commission study found “no evidence of emotional or illogical reasoning in any of the trials in which tendency evidence had been admitted”: at 114.
Evidence that the appellant became angry and abusive when he could not access drugs was admitted in relation to tendencies (a) (the tendency to become quickly aroused to anger and to act violently when angered) and (e) (the tendency to become angry and violent when not provided with money for drugs). For the reasons already explained, when considered in isolation, tendency (a) did not amount to a s 97 tendency. The principal significance of the evidence was in relation to tendency (e) and the circumstance of motive. The evidence was potentially influential in relation to these matters. The appellant did not identify any particular prejudice associated with the evidence, merely complaining that, when it was taken with the other tendency evidence, there was an overwhelming volume of bad character evidence.
In relation to these tendency incidents, the conclusion of the trial judge was not unreasonable or plainly wrong.
The Mother Incident and the Prison Incident are in a different category.
The Mother Incident was admitted only to establish tendency (a) (a tendency to become quickly aroused to anger and to act violently when angered) which, in isolation, scarcely qualifies as a tendency to act in a “particular” way. The incident occurred eight years before the offence. It involved a punch, not a knife. We consider that this incident did not have significant probative value; it was not potentially “influential in the context of fact-finding”. On the other hand, it did not have a significant prejudicial effect. At the trial, it became clear that the appellant may not have deliberately caused the injury to his mother (the injury may have been caused accidentally by a knitting needle) and the appellant’s aggression may have been because he was adjusting to new medication. These factors, the age of the incident and the fact that limited anger was displayed in the incident, establish that both any probative value and the potential for prejudice were very low.
The evidence of the Mother Incident should have been excluded because it did not evidence a tendency to behave in a “particular” way, it lacked significant probative value and, because it lacked significant probative value, the probative value did not substantially outweigh any prejudicial effect.
Similarly, the prosecution lead evidence of the Prison Incident only to establish tendency (a) (a tendency to become quickly aroused to anger and to act violently when angered) which, considered in isolation, is not really a tendency to act in a “particular” way. The Prison Incident was quite different in nature from the other tendency incidents. It occurred in a prison context, not a domestic context. The grievance that provoked the appellant to strike the prison officer may have been a legitimate grievance. No knife was involved. Like the conduct the subject of the Mother Incident, the conduct was relatively benign. As to the additional prejudice associated with disclosure that the appellant was a prison inmate, the trial judge correctly identified that such prejudice could be adequately addressed by directing the jury that the appellant was in custody awaiting trial on the subject charge.
The evidence of the Prison Incident should have been excluded because it did not evidence a tendency to behave in a “particular” way, it lacked significant probative value and, because it lacked significant probative value, any probative value did not substantially outweigh any prejudicial effect.
In summary, evidence of the Mother Incident and the Prison Incident should have been excluded because it did not evidence a tendency to behave in a “particular” way and failed the s 55, s 97 and s 101 tests. The appellant has not established that the trial judge was unreasonable or plainly wrong to admit the other tendency evidence; it was well open to his Honour to conclude that the other tendency evidence was capable of establishing a s 97 tendency or tendencies that were significantly probative of a fact in issue (whether the appellant was the murderer) and that the probative value of the evidence substantially outweighed any prejudicial effect.

Next, his Honour referred to the five tendencies upon which the prosecution relied. His Honour corrected an error in the prosecution address (the prosecutor had referred to the appellant’s tendency to be attracted to knives, but this was not one of the five tendencies).
His Honour then referred to defence counsel’s submission that the jury would give little weight to the tendency incidents because there were few similarities or parallels between those incidents and the offence. His Honour went on: I want to make it clear that this evidence is not led by the Crown to establish that the accused stabbed Paula Conlon because of similarities between the earlier incidents and th the events of the 27 of March 2012. The purpose of leading this evidence is to establish that the accused had certain tendencies as at the date of the murder of Paula Conlon. You will readily understand that it is not necessary that these earlier events have any striking th similarity to the events of the 27 of March 2012 before they may establish that the accused had one or more of the tendencies alleged by the Crown. You should not ask yourself whether there are similarities between these earlier incidents and the events of the th 27 of March. The question you should ask yourself is whether you are satisfied that the th accused, as at the 27 of March, had any of the tendencies alleged by the Crown. It is not necessary that each incident had features demonstrating or being capable of demonstrating all of the alleged tendencies. A particular incident may have features capable of demonstrating only one alleged tendency or it may have features capable of demonstrating more than one. (Emphasis added)
The trial judge took the jury through the eight tendency incidents. His Honour directed the jury that, before it could rely upon the circumstance of a tendency, the jury would first have to be satisfied beyond reasonable doubt that one or more of the tendency incidents occurred. Second, the jury would have to be satisfied beyond reasonable doubt that the evidence proved a relevant tendency. His Honour repeatedly referred to the need for proof beyond reasonable doubt.
The second italicised passage was not entirely inaccurate. The trial judge was pointing out that the key issue was not whether the tendency incidents were similar (let alone, strikingly similar) to the offence incident, but whether and to what extent there was conformity between the tendency and the offending conduct. His Honour was saying that tendency incidents were only evidence of relevant tendencies. As the reference to “striking similarity” shows, the trial judge was emphasising that the tendency incidents were admitted to support tendency, not coincidence. Consequently, the relevant comparison was not a direct comparison of the similarities between the tendency incidents and the offence incident, but a consideration of whether the tendency that was established by the tendency evidence conformed to what was independently known about the offence incident.
However, it was wrong to suggest that the jury should not compare the tendency incidents with the offence incident for the purpose of identifying similarities. That is because tendencies can only be divined and explained by tendency incidents. Comparison of tendency incidents with the offence incident enables a jury to decide how closely the tendency/s established by the tendency evidence conform/s with the offence, i.e. for the purpose of deciding what weight to attach to the tendencies.
To the extent that the direction was somewhat inaccurate, we note that it was given by way of elaboration of the preceding statement that “it is not necessary that these earlier events have any striking similarity to the events of 27 March 2012 before they may establish that the accused had one or more of the tendencies alleged”. That statement was completely accurate. Further, in the sentence that followed the somewhat inaccurate statement, the trial judge posed the correct question: whether the jury was satisfied that, at the time of the offence, the appellant had any of the alleged tendencies. A related and valid point that the trial judge repeatedly made was that the jury should not look at each tendency incident in isolation to determine whether it showed a relevant tendency, but should look at the incidents as a whole.
The trial judge gave otherwise unimpeachable directions about tendency, both in his Honour’s opening remarks and in his Honour’s final directions.
It is arguable that the trial judge’s directions about tendency evidence were overly favourable to the defence. His Honour directed the jury that the prosecution must prove the relevant tendency incidents beyond reasonable doubt before they could be used to support the existence of the asserted tendency. In addition, the trial judge directed the jury that any tendency must be proved beyond reasonable doubt. These directions followed the standard direction in the New South Wales Judicial Commission, Criminal Trials Courts Bench Book, vol 1 (Update 52) [4–227] (the Bench Book). But, as the Bench Book authors point out at [4–225], it is doubtful that it is necessary to prove an asserted tendency beyond reasonable doubt (at least in relation to cases other than child sexual assault cases, in relation to which see HML v The Queen [2008] HCA 16; 235 CLR 334). However, this point was taken neither at the trial nor on the appeal and it is merely noted in passing.

Factors that may aggravate the objective seriousness of an offence of murder include significant premeditation and planning (as in R v Hillier (Unreported, Supreme Court of the ACT, Gray J, 16 March 2005)), cold-blooded murder for monetary or other reward (as in the case of R v Steer and Williams (Unreported, Supreme Court of the ACT, Crispin J, 16 October 1997), a contract killing (Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199), aggravating surrounding circumstances such as tormenting the victim or gratuitously disfiguring the body (R v McDougall (Unreported, Supreme Court of the ACT, Gray J, 21 July 2011)), use of a dangerous weapon such as a firearm, attack on a person who is particularly vulnerable, commission of the offence in company (as in R v Schmidt [2013] ACTSC 295) and the killing of a public official in connection with the official’s public duties (as in R v Eastman (Unreported, Supreme Court of the ACT, Carruthers AJ, 10 November 1995)). Apart from the factor of vulnerability, none of these aggravating features was present in this case.
The offence was horrific. It involved a frenzied loss of control by a mentally unstable offender who turned on his vulnerable partner in her own home, inflicting 15 sharp force injuries with a “severe” degree of force. However, the absence of significant aggravating features and the presence of mental illness that reduces moral culpability mean that, objectively, the offence was not in “the worst category of murder.” Mental illness made imprisonment more burdensome
At [34] of the sentencing remarks, the trial judge correctly observed that, in addition to reducing moral culpability for offending conduct, mental illness may inform sentencing because it may affect the application of various sentencing purposes and may make imprisonment more burdensome (more punitive) for the offender.
The appellant had a long history of polysubstance abuse and mental illness. He experienced auditory hallucinations from 14 or 15 years old. From 2001, when he attempted suicide at 17 years of age, the appellant often turned to public mental health services, using them as both an inpatient and an outpatient. By 2009, the appellant had been diagnosed as suffering from paranoid schizophrenia, exacerbated by the abuse of amphetamines and cannabis.
From 2004, the appellant was regularly medicated for psychosis, but his treatment was complicated by non-compliance with medication requirements and substance abuse. In schizophrenics, psychostimulants such as amphetamines can reduce feelings of alienation and emptiness (making such drugs attractive), but also exacerbate psychotic symptoms, including hallucinations and delusions, and negate the beneficial effects of antipsychotic medication. The appellant had frankly told Professor Mullen that he enjoyed using illicit drugs, particularly “ice”, because they made him feel more normal.
In custody, the appellant was stable and compliant with treatment but continued to experience symptoms of mental illness. He had spent many months in the Crisis Support Unit, which was “locked down” for 23 hours a day. The trial judge concluded that incarceration would be somewhat more difficult for the appellant when compared to a person who did not suffer from the appellant’s mental illness: at [80].
The fact that incarceration would be somewhat more difficult for the appellant because of his mental illness is a factor that was liable to attract some leniency.

The trial judge was aware of the appellant’s history of violence. The appellant had a criminal record for assault occasioning actual bodily harm (2005, sentenced to 12 months’ imprisonment which was suspended) and damaging property (2011, sentenced to a 12-month good behaviour order). The tendency incidents and information about violent misconduct in custody provided further background information about propensity to violence.
The author of the pre-sentence report assessed the appellant as being at high risk of reoffending while he continued to deny accountability for the offence and failed to address illicit substance use.
The appellant informed Professor Mullen that he had suspected that the deceased had been unfaithful with multiple partners. Professor Mullen said that 10% of males with schizophrenia experience pathological jealousy and delusions of infidelity, associated with high rates of violence towards their partners and suicide. Professor Mullen agreed that, because of his mental illness (and associated pathological jealousy) and substance abuse, the risks of violence towards a partner and suicide were high. If the appellant was returned to the community immediately, there was a very high risk that he would reoffend. The risk was informed by the nature of the appellant’s mental illness, his substance abuse, the potential for jealousy and the appellant’s lack of insight into his behaviour and associated lack of ability to control it.
It was Professor Mullen’s opinion that, in order to reduce the risk of reoffending, the appellant should be placed in a secure forensic mental health facility for a minimum of five years. Professor Mullen opined that the appellant would need regular medical supervision for the rest of his life.
The trial judge accepted that the appellant’s mental illness created an increased risk of future violence: at [78]. His Honour found that it was unclear whether the danger could “ever be reduced to an acceptable level”: at [87]. Consequently, his Honour considered that the executive, advised by the Sentence Administration Board, was the body best placed to assess the risk that the appellant would present to the community if he was released: at [89]. His Honour was reassured by the prospect that, if released on licence, the appellant would be closely supervised for the remainder of his life.
The trial judge was well aware that a need to protect the public could not justify a sentence that was disproportionate to the objective seriousness of the offence: at [90]. At [91] his Honour said:

It is difficult not to be critical of the manner in which the Crown dealt with the relevant tendency evidence. That is so for a number of reasons.
First, the Crown appears to have been guilty of overreach. While the Crown’s case against the appellant was largely circumstantial, it was nonetheless a strong case. It was largely unnecessary for the Crown to rely on at least some of the evidence it sought to tender on tendency grounds. Much of the tendency evidence had the capacity to overcomplicate the trial. Worse still, some of the evidence that the Crown sought to lead on tendency grounds was, to say the very least, tenuous. The primary judge was plainly correct to reject the tender of the evidence concerning six of the fourteen “incidents” that the Crown initially sought to adduce. The Crown should be discouraged from tendering every possible skerrick of potential tendency evidence that it is able to muster. Some judgement should be exercised.
Second, the tendency notice relied on by the Crown was unnecessarily complex, convoluted and confusing. That was not just a matter of form. The notice specified six seemingly separate but nonetheless overlapping alleged tendencies. The evidence that was said to capable of proving all or some of those six tendencies related to 14 distinct “incidents”. None of the incidents was said to be capable of demonstrating all of the six tendencies. Some of the incidents were said to be capable of only demonstrating one of the six tendencies.
It would plainly have been preferable for the Crown to specify one, or perhaps two, particular and distinct tendencies. It was never clearly explained why the alleged tendencies were disaggregated in the way they were in the notice. The reason may be that, if not disaggregated, it would have been difficult for the Crown to justify the admission of evidence of at least some of the incidents which tended to prove only very general tendencies. The Crown should not be encouraged to draft tendency notices in such complex and convoluted terms.
Third, some of the six specified tendencies were expressed in very broad and general terms. The clearest examples were the first specified tendency, being a “tendency to become quickly aroused to anger and to act violently when angered” and the fourth specified tendency, being the tendency “to act violently when under the influence of alcohol or marijuana or a combination thereof”. As the Chief Justice and Refshauge J point out, those alleged tendencies were hardly distinctive or particular. Indeed, perhaps regrettably, it could perhaps be said that many people in the general community probably share such tendencies. It is difficult to see how evidence which was only capable of proving one or even both of those general tendencies could possibly have had significant probative value as required by s 97 of the Evidence Act.
Fourth, the Crown never clearly articulated exactly how the six tendencies specified in the notice had significant probative value. What was the relevant fact or facts in issue in the trial to which the tendency evidence was directed? How did proof of any of the six tendencies affect the assessment of the probability of the existence of that fact or those facts? In contrast to the convoluted and disaggregated tendency notice served by the Crown, the Crown tended to treat the tendency evidence in a general and global fashion and to gloss over exactly how each of the asserted tendencies was said to be significant or important to the fact or facts in issue at the trial.
The convoluted and confused manner in which the Crown presented and sought to justify the tendency evidence led the primary judge to erroneously admit some of the evidence. I agree with the Chief Justice and Refshauge J that the evidence of the so-called Mother Incident and Prisoner Incident should have been rejected.
Considered in the context of the balance of the evidence led at the trial, and the facts in issue, it was not open to the primary judge to conclude that the evidence concerning those two incidents had significant probative value. I am unable to see how the evidence concerning those two incidents was capable of proving a tendency which had the capacity to indirectly effect, to any significant extent, the assessment of the probability of any fact in issue at the trial. At its very highest, the evidence concerning those two incidents was capable of demonstrating no more than that the appellant had a tendency to punch people if angered or upset by something. Proof of such a general tendency could not have provided any significant support for an inference that it was the appellant who was responsible for the violent stabbing of his domestic partner on the night in question. The evidence relating to those two incidents was not capable of satisfying s 97 of the Evidence Act. It should have been rejected.
As for the remaining six tendency incidents, there are some troubling aspects of at least some of the evidence that the Crown adduced supposedly to prove that the appellant possessed those tendencies. Some of the evidence adduced by the Crown in fact appeared to stray beyond evidence relating to the specific incidents and alleged tendencies. The appellant’s appeal grounds and submissions did not, however, directly challenge any specific evidence which was admitted on tendency grounds. The appellant made no real attempt to take the Court to any specific evidence that he claimed was particularly prejudicial or did not, in fact, constitute tendency evidence. Rather, the appeal grounds and submissions were pitched at a much more general level and focused primarily on the general nature of the six incidents and alleged tendencies. This was, to a certain extent, consistent with the appellant’s approach to the tendency evidence at the trial. Once the trial judge determined that evidence concerning the various incidents was admissible on tendency grounds, for the most part the appellant did not raise any further objection to any specific evidence that was said to relate to the incidents in question.
The appellant’s main argument, in simple terms, was that the other incidents were not sufficiently similar to what the evidence otherwise revealed about the stabbing of Ms Conlon on the night in question to justify or support a finding of significant probative value. The submission was, in effect, that the evidence concerning the six incidents lacked probative force because the evidence did not reveal any similar features which could logically or cogently support the inference that the appellant had been responsible for the violent stabbing of Ms Conlon. It was also contended that the reasoning that supposedly supported the admission of the tendency evidence was inherently circular. That was said to be because there was no evidence to prove that the offence was committed in a manner that in any way corresponded with the other incidents and alleged tendencies. In the appellant’s submission, the Crown sought to use the tendency evidence to provide “boot strap” support for what was no more than a case theory or speculation.
The probative value of the tendency evidence concerning the six incidents must be considered in the context of the other evidence led by the Crown. That evidence was capable of establishing the following matters: the appellant and Ms Conlon were in a relationship; the appellant had been with Ms Conlon on the afternoon and evening of the murder; the appellant and Ms Conlon had been consuming alcohol that evening; the appellant had made a number of telephone calls that night which indicated that he had been attempting to acquire drugs on credit; DNA from blood found on floor tiles near the room where Ms Conlon was stabbed, and on the door handle to that room, was consistent with the appellant’s DNA; the appellant had an injury on his hand which was consistent with an offensive knife injury; Ms Conlon’s injuries were consistent with the killer having used a cooks knife that was found to be missing from the kitchen and was never recovered; the appellant’s fingerprints were found on a plastic bag which contained clothes which had been purchased online by Ms Conlon; that bag had sustained cuts which were consistent with having been made by the murder weapon; there was blood on the cuts to the bag which was consistent with Ms Conlon’s blood; the appellant’s DNA was located under Ms Conlon’s fingernails in a manner consistent with Ms Conlon attempting to defend herself and in circumstances where the appellant appears to have had scratches on his person; on the morning following the murder the appellant was discovered in a van used by his brother which was parked outside the residence of his brother’s friend; when found, the appellant was wearing different clothes to those that he had been wearing the previous night; and, the clothes that the appellant had been wearing on the night in question were never recovered.
There could be little doubt that the stabbing murder of Ms Conlon was both violent and vicious and appeared to be the product of anger, if not rage.
The appellant did not give evidence at his trial.
Considered in the context of the evidence as a whole, it is not difficult to see why evidence which tended to prove that the appellant had a tendency to quickly lose his temper, particularly when affected by alcohol or drugs and, when angry, to use knives in a violent or threatening manner, could have significant probative value. Such evidence, if considered together with the other circumstantial evidence, was capable of significantly supporting the inference that it was the appellant who was responsible for the violent stabbing murder of Ms Conlon. It would, in short, have been open to the jury to infer that, consistent with this tendency, the appellant lost his temper with Ms Conlon on the night in question (perhaps as a result of Ms Conlon having used money to purchase clothing online in circumstances where the appellant was in search of drugs but had no money) and grabbed a knife from the kitchen and violently stabbed her.
Use of the tendency evidence in this way would not involve circular reasoning. The flaw in the appellant’s argument concerning circular reasoning is that it essentially ignored the other circumstantial evidence. It ignored, in particular, the evidence concerning the violent nature of the attack on Ms Conlon which suggested that Ms Conlon’s attacker acted in considerable anger and utilised a knife seized from the kitchen, together with the forensic evidence that was capable of linking the appellant to the attack. The Crown did not seek to use the tendency evidence to support what was merely speculation or a case theory. Nor did the primary judge admit the evidence on that basis. The evidence was admitted on the basis that it was significantly probative circumstantial evidence that was consistent with the balance of the circumstantial evidence concerning the nature and circumstances of the violent stabbing of Ms Conlon.
In these circumstances, it was, at the very least, open to the primary judge to find that evidence relating to the following incidents (using the abbreviations referred to in the judgment of the Chief Justice and Refshauge J) had significant probative value: the Skyfire Incident; the Barbecue Incident; the Former Partner Incident; the Tyres Incident and the Balcony Incident. His Honour dealt with the evidence of those incidents by reference to the capacity of the evidence to prove a number of the disaggregated tendencies specified in the Crown’s convoluted tendency notice. The better approach would have been to treat the evidence as capable of proving that the appellant had a tendency to quickly lose his temper, particularly when affected by alcohol or drugs, and when angry, to use knives in a violent and threatening manner. For the reasons already given, evidence which was capable of proving such a tendency, when considered in the context of the balance of the evidence as a whole, was capable of having significant probative value: it was capable of being important, or of consequence, in proving that it was the appellant who was responsible for the violent stabbing of Ms Conlon.
It was equally open to the primary judge to find that the probative value of the evidence substantially outweighed any prejudicial effect of that evidence. The appellant contended that there was a high risk that the jury would use the evidence to make a decision on an improper basis logically unconnected with the issues in his case. He contended that there was a risk that the jurors might reason from the “sheer weight of the generalised, bad character or criminal disposition evidence” that the appellant was the kind of person who would have committed the offence in question. The appellant placed particular reliance on the decision of Howie J (with whom McColl JA and Grove J agreed) in O’Keefe v R [2009] NSWCCA 121.
That submission has no merit. While it may be accepted that the relevant tendency evidence was prejudicial to the appellant, in the sense that it revealed that the appellant had engaged in bad conduct in the past, it does not follow that the jury was likely to misuse the evidence or make a decision on an improper or emotional basis. I agree with the Chief Justice and Refshauge J that the tendency incidents in question were not particularly horrific or likely to inspire an improper or emotional response. That is particularly the case where, as here, the jury was given careful and clear instructions by the trial judge relating to how the evidence could and could not be used. The facts and circumstances of this case are far removed from the facts and circumstances considered in O’Keefe. There is no basis to conclude that, in finding that the probative value of the evidence relating to the six incidents in question substantially outweighed any prejudicial effect, the primary judge failed to identify the correct principles, or misapplied the applicable principles, or that the finding was unreasonable.
I am, however, somewhat troubled by the evidence relating to what the Chief Justice and Refshauge J refer to as the Use of Drugs incident. This was not so much evidence of an incident. Rather, it comprised somewhat general and rather unsatisfactory evidence from the appellant’s mother and brother which tended to show that in some circumstances the appellant became sad and angry, or frustrated and verbally abusive, if they did not give him money for drugs. The general effect of the evidence was that both the appellant’s mother and brother gave the appellant money rather than deal with the appellant’s behaviour if the request was denied. The evidence relating to this supposed tendency differed from the evidence relating to the other incidents (putting aside the Mother Incident and the Prisoner Incident) because it did not involve any threatened or actual physical violence involving a knife.
The primary judge admitted the Use of Drugs evidence primarily on the basis that it tended to prove that the appellant had a capacity to become angry and violent when people did not provide him with money for drugs. His Honour found that the evidence had significant probative value because it was “an important part of the Crown’s case that the accused was angry with the deceased because he could not obtain drugs on [the night in question] in part because she had no money to purchase them”: R v Vojneski [2014] ACTSC 66 at [71].
It is, with respect, somewhat difficult to see how evidence which was capable of proving no more than that the appellant had a tendency to become angry when not given money to buy drugs could alone have significant probative value. The evidence did not go so far as to establish that the appellant had a tendency to act physically violently or to use knives in such circumstances. Those occasions where the appellant did use knives in a violent or threatening manner did not relate to occasions where the appellant was not given money for drugs. The evidence was also limited to circumstances involving requests for money from the appellant’s mother and brother, not friends or persons with whom the appellant had a domestic or intimate relationship.
There was also very little evidence to suggest that the circumstances on the night of Ms Conlon’s murder were in any real sense similar to the circumstances the subject of this tendency evidence. While it is strictly not necessary to prove a striking similarity between the tendency incidents and the incident in question, the probative value of the tendency evidence generally hinges, to an extent, on the existence of some such underlying similarity or conformity. There was some evidence to suggest that the appellant had been attempting to source drugs on the night of the murder and that he was short of money. There was, however, little or no evidence that the appellant had sought or demanded money for drugs from Ms Conlon on the evening in question, or that Ms Conlon was unwilling or unable to give him that money.
It was no doubt part of the Crown case that the appellant was angry with Ms Conlon on the evening in question. An important piece of circumstantial evidence in the Crown’s case was the stabbing of the parcel containing Ms Conlon’s online purchase. The forensic evidence connected the appellant to that parcel and the stab marks were consistent with the use of the knife that was used to stab Ms Conlon. This perhaps supported the inference that the person who murdered Ms Conlon was angry about her online purchase. It is difficult to see why anyone other than the appellant would be angry with Ms Conlon about that matter. It is, however, somewhat difficult to see why that circumstance was capable of justifying evidence from the appellant’s mother and brother about the appellant’s reaction in the past when they did not give him money for drugs.
Of even more concern is that the evidence that the Crown actually led at trial to prove the appellant’s tendency to react angrily when not provided with money for drugs appeared to extend to evidence which established no more than the appellant’s past history of drug use and abuse. It appeared to extend to evidence relating to his erratic and violent behaviour when he was either under the influence of, or was craving or withdrawing from drugs, particularly the drug “ice”. There was, however, no evidence to suggest that the appellant was under the influence of ice on the evening in question.
The difficulty for the appellant, however, is that, as adverted to earlier, once the primary judge decided to permit the Crown to lead evidence which was capable of proving that the appellant had a tendency to react angrily when not provided with money for drugs, no further objection was taken to specific evidence led by the Crown in relation to this alleged tendency. The appellant did not, for example, object to any specific evidence led by the Crown on the basis that it went beyond proving that tendency, or that it was particularly prejudicial. No specific objection to evidence on that basis was taken at the trial. Nor, on appeal, did the appellant take the Court to any specific evidence which, in his submission, went beyond proof of the asserted tendency or was particularly prejudicial. As noted earlier, the appellant’s submissions, both before the primary judge and on appeal, did not descend into specifics, but rather were pitched at a much more general level.
Given the somewhat unsatisfactory way that the Use of Drugs evidence was dealt with, both before the primary judge and on appeal, it is difficult to resolve the question whether this evidence was properly admitted as tendency evidence. As noted earlier, the Crown’s tendency notice was unnecessarily convoluted and confusing. The argument before the primary judge proceeded at a high level of generality, particularly in relation to the Use of Drugs evidence. His Honour’s reasons for admitting this evidence are sparse. No further objection was taken at trial to specific evidence led by the Crown under the guise of proving this tendency. Nor were the appellant’s appeal grounds or submissions directed at any specific evidence. Having read that evidence, I am far from convinced that much of it was of significant probative value. Had further specific objection been taken to at least some of the evidence, it may well have been appropriate to reject it.
On balance, however, whilst I have some significant misgivings about some of the specific evidence led by the Crown purportedly to prove this particular tendency, I am unable to conclude that the trial judge erred in principle in admitting evidence that tended to prove that the appellant became angry when deprived of money to acquire drugs. That is primarily because proof that the appellant had such a tendency should not be considered in isolation. It was at least open to the trial judge to find that such a tendency, considered alongside and together with other evidence that showed that the appellant had a tendency to act violently and use knives when incited to anger, was capable of having significant probative value. It was, in short, at least open to the trial judge to conclude that the probative value of the evidence of the appellant’s mother and brother was significant when considered in the context of the other tendency evidence.
In all the circumstances it was also open to the trial judge to find that the probative value of this evidence was greater than any prejudicial effect. As with the other tendency evidence, there was nothing particularly prejudicial about evidence that simply tended to prove that the appellant had a tendency to lose his temper and act violently when denied money to use for drugs. Nor was the jury likely to misuse such evidence given the trial judge’s generally clear and careful directions concerning the use of the tendency evidence generally.
I therefore agree with the Chief Justice and Refshauge J that the trial judge did not err in admitting that evidence of the tendency incidents other than the Mother Incident and the Prisoner Incident. The misdirection
I agree with the Chief Justice and Refshauge J that the primary judge erred in directing the jurors that they should not ask themselves whether there were similarities between the tendency incidents and the events of the night when Ms Conlon was murdered. That direction went too far.
In assessing the weight and significance that they may give to the tendency evidence, it was open to the jury to consider whether there was any material similarity or conformity between any proven tendency and what other evidence revealed about the circumstances of the evening in question. That reasoning process might well involve a consideration of any similarities between the various tendency incidents and what the evidence otherwise showed about the incident on the night in question. His Honour was wrong to direct the jury, in effect, that they should not engage in that sort of reasoning process.

I agree with the Chief Justice and Refshauge J that, despite the erroneous admission of the evidence of the Mother Incident and the Prisoner Incident, and the misdirection, the conviction appeal should be dismissed by reason of the proviso in s 37O(3) of the Supreme Court Act 1933 (ACT). I am satisfied that, despite those errors or irregularities, the appellant received a fair trial according to law and was not otherwise deprived of a chance of acquittal that was fairly open to him: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 54–55 (per French CJ, Bell, Keane and Nettle JJ). There was no substantial miscarriage of justice.
The case against the appellant was a strong circumstantial case. The evidence that was wrongly admitted was, in the face of the otherwise compelling circumstantial case, relatively insignificant and unlikely to have been given any real weight by the jury. The Mother Incident and the Prisoner Incident was capable of proving no more than that the appellant had a tendency to be quickly aroused to anger and, when so angered, tended to act violently. The violence involved in the Mother Incident and Prison Incident, however, involved only a punch or punches. The evidence concerning the other incidents that was properly admitted as tendency evidence was capable of proving not only that the appellant had a tendency to be quickly aroused to anger, but that when so angered, he tended to use knives in a threatening or violent manner. That tendency evidence no doubt subsumed the evidence concerning the Mother Incident and the Prisoner Incident, such that it is difficult to see how there was any prospect that the jury would have given that evidence any material weight.
Nor, in all the circumstances, was there any risk that the evidence of the Mother Incident and the Prisoner Incident would have had any real prejudicial effect. Subject to the one minor error just referred to, the trial judge gave careful directions concerning the proper use of the tendency evidence, including the Mother Incident and the Prisoner Incident specifically. The evidence of those two incidents was not such as to be likely to cause the jury to decide the matter on any improper or emotional basis. Indeed, the evidence largely paled into insignificance alongside the balance of the evidence.
As for the misdirection, it involved only one sentence in an otherwise clear and unimpeachable summing up. Read in the context of the summing up as a whole, and in the context of the summing up and directions given specifically in relation to the tendency evidence, it is not possible to conclude that the misdirection would have had any real impact on the jury. That may perhaps explain why no complaint was made, or any redirections sought, by counsel for the appellant at the trial.
Considered either alone or in combination with the erroneous admission of the evidence of the Mother Incident and Prisoner Incident, it cannot be concluded that the misdirection resulted in a substantial miscarriage of justice. It did not deprive the appellant of a chance of acquittal that was fairly open to him.

Vojneski v The Queen [2016] ACTCA 57

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