Supreme Court New South Wales Medium Neutral Citation: R v Russell (No 2) [2022] NSWSC 1793 Hearing dates: 20-21 April 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: 1) The accused's application to admit tendency evidence pursuant to the tendency notice is accepted. 2) The accused's application to exclude evidence previously given by a witness, Mr Bangel, is rejected. Catchwords: EVIDENCE — Tendency evidence — Criminal proceedings – significant probative value – reasonable notice EVIDENCE — Discretions — Application to exclude evidence – where witness' evidence had previously been given by audio-visual recording – where evidence later adduced by the Crown had not been put to witness during recording of evidence – whether Crown was under an obligation to disclose that evidence Legislation Cited: Criminal Procedure Act 1986 (NSW), s 146 Evidence Act 1995 (NSW), ss 97, 100 Cases Cited: Gardiner v Regina (2006) 162 A Crim R Hughes v R (2017) 263 CLR 338 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Bryce (No 2) [2014] NSWSC 498 R v Cittadini [2008] NSWCCA 256 R v Lockyer (1996) 89 A Crim R 457 R v Sharpe (No 5) [2021] NSWSC 52 Category: Procedural rulings Parties: Regina (Crown) Eric George Russell (Accused) Representation: Counsel: C Taylor (Crown) P Coady (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/398216 Publication restriction: Nil REVISED EX TEMPORE Judgment 1. On 17 December 2019, Damien Roach and Leah Mumbulla died as a result of being stabbed by the accused. The accused admits to stabbing both of the deceased persons but says he was acting in self-defence. He has been charged with the murder of both deceased persons but has pleaded not guilty to both counts. 2. In brief, the Crown case is that both deceased were at a vacant or abandoned unit in the accused's unit block. The accused lived in a unit in the same block. The accused is alleged to have confronted the deceased, an altercation ensued and the accused stabbed both of the deceased. 3. The defence case is that the accused was in his unit on the upper level of the unit block when Mr Roach came to his door, made statements about the former occupant of the unit below owing him money, suggested to the accused that he would be required to pay the money and then produced an axe or tomahawk and attacked the accused. After being struck, the accused obtained a knife from his unit. There was a further altercation at the door of his unit, during which time it seems that Mr Roach was stabbed. Mr Roach started to go down the stairs. The accused followed him but when Mr Roach reached the bottom unit, he collapsed. The accused says that he was then attacked by Ms Mumbulla and the stabbing of Ms Mumbulla occurred in circumstances in which he was acting in self-defence. 4. This judgment deals with two preliminary applications raised by the accused, being: 1. an application that evidence of tendency of both deceased persons to act in violent and threatening ways in the past be admitted; and 2. an application to exclude evidence previously given by a witness, Mr Bangel, before he died (the evidence was recorded and will be shown to the jury) on the basis that the Crown had failed to disclose two statements of Shannon Hargraves prior to Mr Bangel giving his evidence and being cross-examined. The tendency application 1. The tendency notice is undated. I am informed that the tendency notice was served on 12 April 2022. Pursuant to that notice, the accused seeks to rely on the substance of evidence referred to in 25 documents (over the period 2004 to 2019) which include a number of COPS entries, Police facts sheets, ADVOs and criminal histories. 2. It is the accused's submission that the substance of the matters contained in those documents may be used as tendency evidence in accordance with the tendency notice. 3. The Crown opposes the application on a number of grounds, including that: 1. the accused did not give reasonable notice in accordance with s 97(1)(a) of the Evidence Act 1995 (NSW) ('Evidence Act'); 2. the substance of the evidence as referred to in the documents does not have significant prohibitive value. In particular, the Crown submits that most of the documents could not, on a fair reading, assist in establishing the tendency referred to in the notice. The Crown submits that proof of the earlier offending as referred to in the documents is not capable of affecting any fact in issue; in particular, the likelihood that the accused committed the offence with which he has been charged; 3. further, at least in respect of a number of the matters referred to in the bundle of documents, the Court would not be satisfied that the substance of the matters could or would be capable of proof during this trial and the accused should not be permitted to open his case on the basis that such evidence will be adduced; and 4. further, the applicant does not precisely identify the tendency which the evidence the applicant seeks to adduce would support. The tendency notice 1. Whilst it may be that the tendency notice is broad, it seems to me that the notice properly identifies that both deceased persons had a tendency to act in the particular ways set out in the notice. That is, violently and aggressively, in certain situations. I thus do not accept that there is any lack of specificity in the terms of the notice. Reasonable notice 1. What may be deemed reasonable notice depends on the circumstances of the particular case. There is no definition of reasonable notice. The accused submits that I should accept that reasonable notice was given or that I should dispense with the notice requirement in accordance with s 100 of the Evidence Act. 2. Notice was only given 8 days prior to the commencement of the trial and as the Crown submits, there is a volume of documents relied upon by the accused spanning over 15 years which needs to be considered and investigated on behalf of the Crown. However, the applicant submits (and this was not disputed) that the lateness of the notice arises from the failure of the Office of the Director of Public Prosecutions to produce documents sought by the accused quite some time ago. 3. It seems to me that that latter point might provide a basis for dispensing with the requirement that reasonable notice be given, rather than impacting on whether the notice was reasonable. 4. Further, in the end, it is a matter for the accused as to how he seeks to adduce the evidence in support of the asserted tendency. I am not, in this application, making any determination about the admissibility of any particular document. 5. Again, it may be that if notice had been given at an earlier stage, the parties could have worked together to produce a statement of agreed facts or jointly determine how such evidence might have been adduced but the fact that that has not occurred does not mean that the notice was not reasonable. Whilst I acknowledge that the Crown has only had a short period to prepare for the application, the issues (if not the evidence) are confined and I accept that the applicant has given reasonable notice in all the circumstances. 6. As identified by the applicant, there are two steps to the application. Firstly, the accused must establish that the evidence will – either by itself or by having regard to other evidence adduced (or to be adduced) – have significant prohibitive value (s 97(1)(b) Evidence Act). 7. In Gardiner v Regina (2006) 162 A Crim R, Simpson J summarised the approach as follows: "Probative value" is defined in the dictionary to the Evidence Act as: "… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 1. Probative value must be assessed by reference to what the evidence is capable of proving, taking it at its highest: [1] Significant may mean "important" or of "consequence." [2] 2. In Hughes v R, [3] the Court (per Kiefel CJ, Bell, Keane and Edelman JJ) suggested that to assess whether evidence is significant, it is necessary to consider two matters, being: 1. the extent to which the evidence by itself or together with other evidence supports the tendency; and 2. the extent to which the tendency makes more likely the facts making up the charged offence. 1. Of course, in this matter, it is the accused seeking to rely on tendency evidence rather than the prosecution. The accused seeks to rely on the tendency evidence as a means of supporting his assertion that he was acting in self-defence. 2. The essential point made by the Crown is that none of the events referred to in the tendency documents relied upon by the accused are capable of supporting the asserted tendency and that it is at least to a large degree unlikely that the accused will be able to adduce admissible evidence of these events. 3. In R v Bryce (No 2) [4] , Beech-Jones J (as his Honour then was) observed (in a case in which the accused sought to rely on tendency evidence): Further, in this case it must be remembered that the onus of proof on all relevant issues lies with the Crown, yet it is the accused who seeks to adduce the tendency evidence. The accused does so in the anticipation that the evidence will disprove the facts and inferences sought to be drawn by the Crown, or at least leave open one or more reasonable possibilities that are inconsistent with some aspect of the Crown case. 1. His Honour also observed that, at the time of the application, the function of the documents being attached to the tendency notice was to apprise the Crown of the substance of the evidence sought to be adduced. As his Honour said, the accused is not necessarily restricted to only adducing that evidence by the tendering of the reports. I will adopt his Honour's approach in assuming that the accused will be able to adduce evidence of events in admissible form or otherwise by agreement with the Crown. The tendency events 1. Turning now to the events/documents the subject of the tendency notice, I am satisfied that in both matters most, but not all of the events/documents, would be capable of supporting the tendency asserted, in the sense that the evidence would either by itself or, having regard to other evidence to be adduced on behalf of the accused, have significant prohibitive value. 2. In respect of some of the tendency documents, the Crown has emphasised that there would seem little possibility of the accused being able to adduce them as evidence. It seems to me that I should approach the matter not on the basis that I make any decision as to what documents may or may not be admissible but, as his Honour did in Bryce, on the basis that the accused will be able to adduce evidence of those events in an admissible form otherwise by agreement with the Crown. 3. I have reviewed all of the material attached to the tendency notice. The material relates in part to the conduct of deceased, Mr Roach, and partly relates to the conduct of the deceased, Ms Mumbulla. Both parties have helpfully identified why, on their cases, the documents would tend to establish or not establish the tendencies referred to in the tendency notice. 4. Again, I emphasise that a tendency to act in a particular way is not limited to acting in an aggressive, agitated or threatening manner when under the effects of drugs or alcohol. Importantly, it includes a tendency to make threats or use physical violence against people in confrontations, including with the use of weapons. 5. As I understand the defence case, it is that Mr Roach was armed with an axe or tomahawk when the first confrontation with the accused happened and similarly, that Ms Mumbulla was armed with some sort of weapon when she is alleged to have confronted the accused on the lower level. 6. It is important to observe that the accused submits that he is essentially relying on a pattern of conduct or frequency of events over a long period of time as part of establishing the tendency. Ordinarily, it might be difficult to accept that violence in the domestic context happening back in 2005 would have significant probative value. As I understand the accused's submission, it is that the events can both be looked at individually and as part of a pattern which, of course, might suggestively demonstrate the tendency. 7. As set out in the accused's submissions, at a basic level, tendency evidence is tendered to prove by inference that, because on a particular occasion a person acted in a particular way, that person on an occasion relevant to the proceedings acted in a similar way: see R v Cittadini. [5] The accused seeks to show that, because both deceased persons had acted in violent and impulsive ways previously, it is more likely that the accused's account to police on 17 and 18 December 2019 is correct. That is, the accused seeks to use the tendency evidence for the purposes of establishing that his version of events, which involve self-defence, is more likely to be correct. 8. Also as identified by the accused, there does not need to be any unusual feature about the tendency evidence such that it would have significant probative value. Further, as identified by Bellew J in R v Sharpe (No 5), [6] in some circumstances a single incident may be capable of constituting evidence of a relevant tendency. Whether it does so will depend on the facts and circumstances of the particular case. 9. In this matter, the accused seeks to rely on the evidence to establish that both deceased persons had a tendency to use physical violence in confrontations and to make threats to cause injury and in fact cause injury. 10. I will now turn to the particular tabs attached to the tendency notice. As I have said, the Crown does not accept that any of the documents/events would be of significant probative value. I do not propose to provide extensive analysis of each of the tabs in the defence's tendency bundle. However, it does seem to me that there are certain documents which would not be of significant probative value. 11. For example, I do not accept that in respect of Mr Roach, the fact that he has driven a vehicle, if it be a fact, with drugs in his system, would be of significant probative value. That is the document at tab 15 in the bundle. Nor do I accept that the documents behind tabs 8 and 9, being documents which relate to the accused hitting and damaging his father's car whilst it was stationary, would be of significant probative value. 12. Turning now to the other tabs. Firstly, in respect of Mr Roach, it seems to me that the documents behind tabs 1, 2 and 5 all fall into a similar category. Tabs 1, 2 and 5 tend to suggest that Mr Roach physically assaulted victims in a domestic setting (that is, persons with whom he had a relationship), as well as damaging property. 13. For example, behind tab 2 is a COPS sheet relating to events which occurred on 21 February 2005. The COPS sheets may tend to show that Mr Roach abused and then threw a beer bottle at the victim. Behind tab 5 are documents which indicate that Mr Roach engaged in violence against both his girlfriend and his girlfriend's sister, including hitting one of the victims in the face. These documents would tend to suggest that Mr Roach acted in impulsively in doing so and that his response to a confrontation with his domestic partner was to use violence. 14. I accept the accused's submission that I should not distinguish between these documents and other documents merely because they occurred in a domestic or personal situation. I also accept the accused's submission that I should not reject the evidence on the basis that it happened quite a long while ago. It is important to emphasise that the accused seeks to rely on these documents to establish a tendency and a tendency may be established through conduct over a lengthy period. 15. I acknowledge the Crown's submissions, in particular, that the events are different from the events the subject of these proceedings, and that it is not clear how the accused would tend to establish each of the events through documents that are necessarily admissible, but I have already observed that I will approach the matter on the basis of the approach in Bryce. To the extent that the accused is able to adduce evidence of the matters referred to behind tabs 1, 2 and 5 and, subject to being adduced in admissible form, I would permit the accused to adduce such evidence as to the conduct of Mr Roach described in the matters behind those tabs. 16. The same would apply in respect of tab 7. This is an Interim Apprehended Domestic Violence Order which is said to relate to Mr Roach and the person with whom he was in a de facto relationship at the time. It is said that Mr Roach called the victim and threatened her. It is suggested that Mr Roach was intoxicated at the time; there was some reference to money and it is said that Mr Roach turned up and threatened to bust the door down wanting money. There was some damage to property. 17. Again, I am satisfied that evidence relating to those matters will either by itself or, with regard to other evidence the accused may adduce, have significant probative value. 18. Tabs 4 and 6 relate to incidents with Mr Roach's landlord back in 2005 and 2007. According to the Police Facts Sheet, there was an issue between Mr Roach and his landlord in respect of money. After some discussion at the door of the landlord's premises, Mr Roach was heard to say, "Come outside and I will smack you in the head like I did last week." That is said to be evidence supporting the tendency to act in a threatening manner. 19. Similarly, tab 6, at least according to the Police Facts Sheet, suggests that there was a further incident of violence between the landlord (or someone associated with the landlord) and Mr Roach. According to the Police Facts Sheet, the victim was present when the landlord was having a conversation with Mr Roach. Some time immediately thereafter, and for reasons which are not disclosed, Mr Roach struck the victim to the right side of his face and continued to assault him, punching him with both hands around the face. I am satisfied that the evidence referred to in tab 7, taken at its highest, would have significant probative value. 20. I am similarly satisfied about tab 10. That has been the subject of further material produced by the Crown. The events described in tab 10 happened in a two-level unit block. The victim lived in one unit and the accused lived in another unit. Mr Roach is said to have made reference to the victim calling the Police on him and costing him $5,000. According to the Police Facts Sheet, the victim maintained that he was assaulted by Mr Roach with his fists and another unknown object. As part of the material tendered by the Crown, there are statements from the victim, Mr Smith, as to how he was struck by Mr Roach. There are photographs of the injuries to his face. Again, I am satisfied that the material at tab 10 has significant probative value. 21. Further, tabs 11 and 12 seem to be related. The significance of tabs 11 and 12 is that the victim and Mr Roach were drinking together. The accused went to the victim's unit to pick up his belongings. They became involved in a verbal argument. During this argument, Mr Roach punched the victim in the head a number of times. He was said to be intoxicated at the time. Again, referring back to the tendency notice, I am satisfied that the matters referred to in tabs 11 and 12 would have significant probative value. 22. Tabs 13 and 14 describe an event on 21 December 2018 whereby Mr Roach is said to have punched his partner, locked her out of the unit, behaved erratically and locked himself in the unit with his four-month-old child. There is some reference to Mr Roach having a schizophrenic condition but there is no evidence to support that. 23. Further, it again seems to me that such erratic and violent behaviour is evidence which would have a significant probative value in terms of the facts which are in issue in these proceedings. 24. In terms of Ms Mumbulla, the accused relies on the same conduct as against Mr Roach. Indeed, the events set out behind tabs 17 to 25 attached to the tendency notice all describe Ms Mumbulla's involvement in assault occasioning actual bodily harm or wounding, attacking with a knife or lunging with a knife. 25. Indeed, behind tab 25 are documents relating to a domestic dispute between Ms Mumbulla and Mr Roach. According to the COPS report, Ms Mumbulla is said to have attacked Mr Roach, biting at him and lunging at him with a kitchen knife. This is following an argument that occurred between the pair. It is said that after the scuffle, the apartment was ransacked. 26. Tabs 22, 23 and 24 appear to be related. Behind tab 22 is a Statement of Agreed Facts. The Statement of Agreed Facts suggest that the victim was emptying buckets of water over her balcony onto the grass below and some water landed in Ms Mumbulla's unit. Ms Mumbulla approached the complainant. The victim, at some stage, abused Ms Mumbulla. Ms Mumbulla then began to assault the victim including striking her on the left side of the head with a glass and causing the glass to break, which led to bleeding. That matter has again been subject to further disclosure by the Crown. There are photographs of the injury to the victim and related statements. 27. These matters relate to a dispute in a block of units between persons living in the units which started with some verbal issue between the parties and Ms Mumbulla's response was to resort to violence. I am satisfied that the evidence of these matters would, by itself, along with other evidence, have significant probative value. 28. Further, adopting the same approach as I did in respect of Mr Roach, the matters behind tabs 17, 18, 19, 20 and 21 are all to a similar effect. Behind tab 17, Ms Mumbulla is said to have punched a victim in a laneway even though she did not know the victim. 29. Behind tab 18, the COPS sheet refers to Ms Mumbulla striking her partner with a hammer. Tab 19 relates to domestic issues whereby Ms Mumbulla is said to have been intoxicated and holding a knife. Behind tab 20, Ms Mumbulla is said to have pushed open the door to a unit and punched the victim, who was another woman. 30. Although these matters occurred between 2006 and 2014, I accept the accused's submissions that they all are relevant and have significant probative value when considered not in isolation, but as part of a pattern of conduct. In particular, as I have said, it is not necessary for the accused to identify that each of these events occurred while Ms Mumbulla was intoxicated or under the influence of drugs. The tendency notice identifies a tendency to act in a violent, aggressive and threatening way, irrespective of whether Ms Mumbulla might have been under the influence of drugs. 31. In the circumstances, my decision is that the accused may adduce evidence of the conduct of the deceased, Mr Roach, and the deceased, Ms Mumbulla, referable to the alleged tendencies referred to in the tendency notice, as described in the documents to which I have just referred. Application to exclude evidence of Mr Bangel 1. The Crown seeks to rely on an audio-visual recording of evidence given by Mr Bangel in the Local Court on the basis that that evidence was taken at a time when Mr Bangel was very unwell and likely to die. He has subsequently died. 2. The only basis on which the accused objects to the evidence of Mr Bangel being adduced is that, subsequent to Mr Bangel giving evidence in the Local Court, the Crown disclosed two statements of Shannon Hargraves, the former occupant of Unit 3 of the building (being the unit where the deceased had been at some point prior to the stabbing). In particular, the accused refers to a number of comments in Mr Hargraves' statements relating to the accused's alleged earlier threats to Mr Hargraves and apparently attending at his premises on occasions with a knife. 3. The accused submits that if he had been aware that the Crown intended to adduce such evidence – that is, if there had been proper disclosure prior to Mr Bangel giving evidence – then Mr Bangel, who was also an occupant of the unit block, would have been asked about these matters (in circumstances in which the effect of Mr Bangel's evidence was that he had no problem with the accused). 4. I accept that, had the Crown disclosed the statements of Mr Hargraves prior to cross-examination, these matters would have been raised with Mr Bangel. The nature of Mr Bangel's evidence is that he had no real problems with the accused; they were essentially neighbours living in the same unit block. 5. The Crown response to the objection is to confirm that the Crown will not be relying on any evidence from Mr Hargraves to the effect that the accused had threatened him, or threatened to kill his kids, or that the accused had attended Mr Hargraves' unit and threatened him with a knife or yelled that he was "going to kill him". In other words, as I understand it, the Crown will not be adducing any evidence of those matters which would have been the subject of cross-examination of Mr Bangel. 6. The Crown also submits that, in any event, the basis upon which the evidence of Mr Bangel could be excluded is uncertain. Indeed, I remain uncertain as to the basis upon which the accused suggests that I could exclude Mr Bangel's evidence, having regard to the failure to disclose Mr Hargraves's statements. Of course, the Crown has an obligation to disclose. Section 146 of the Criminal Procedure Act 1986 (NSW) refers to the exclusion of evidence of a witness that has not been disclosed; that is, the exclusion of Mr Hargraves's evidence rather than Mr Bangel's evidence. 7. In all the circumstances, I reject the accused's application to exclude the evidence of Mr Bangel, noting again that the Crown has identified and accepted that it will not be adducing evidence of those matters to which I have referred. ********** Endnotes 1. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 2. R v Lockyer (1996) 89 A Crim R 457. 3. (2017) 263 CLR 338, 357. 4. [2014] NSWSC 498 at [10] ('Bryce'). 5. [2008] NSWCCA 256 at [23]. 6. [2021] NSWSC 52 at [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2023