Supreme Court New South Wales Medium Neutral Citation: R v MR, JB and CS (young persons) (No 3) [2024] NSWSC 259 Hearing dates: 11 and 14 March 2024 Date of orders: 14 March 2024 Decision date: 15 March 2024 Jurisdiction: Common Law Before: Huggett J Decision: (1) The notice requirements for evidence to be adduced by MR pursuant to s 97 of the Evidence Act 1995 (NSW) are dispensed with. (2) Event 73856475 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (3) Event 73811236 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (4) Event 446153592 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (5) Event 79147746 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (6) Event 80796544 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (7) Event 1111655090 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). (8) Event 87547848 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). Catchwords: EVIDENCE – tendency evidence – MR charged with murder – MR raising self-defence – MR seeks to adduce evidence of previous conduct by the deceased as tendency evidence – objection by the Crown – whether evidence has significant probative value Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 Texts Cited: Nil Category: Procedural rulings Parties: Rex (Crown) MR (Accused) JB (Accused) CS (Accused) Representation: Counsel: E Balodis (Crown) A Evers (MR) S Talbert (JB) C Wasley (CS) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Criminal Defence Lawyers Australia (MR) Legal Aid Commission (JB) Caulfield Solicitors (CS) File Number(s): 2022/00221664; 2022/00221698; 2022/00221444 Publication restriction: Certain names have been anonymised to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Judgment restricted to the parties until the jury returns its verdicts. JUDGMENT 1. MR, JB and CS are charged jointly with the murder of AS ("the deceased"). 2. MR does not dispute that he stabbed the deceased thereby causing his death but contends when he did that act, he was acting in self-defence. His case as foreshadowed by his counsel Mr Evers in his opening address, is to the following effect: 1. When the deceased came out the front of TK's house, so did his friend BR. The deceased was looking for trouble and in a challenging and aggressive tone asked MR, "Where are you going?" The deceased gave the impression he was looking to start a fight and he did that by telling MR that MR's girlfriend AE had tried to touch his dick. It is not suggested that that was a truthful assertion but rather that the deceased did this to start trouble. 2. Immediately upon hearing the deceased say those words, AE became angry and called the deceased a liar. The deceased then commenced to argue with MR and MR said words to the effect, "I thought we were boys". The deceased laughed at that suggestion by MR and flicked his cigarette towards MR. MR asked the deceased if he wanted to fight and the deceased appeared to pull up his shorts and adopt a fighting stance. 3. Anticipating a fist fight, MR punched the deceased to the face which knocked him backwards. The deceased then pulled out a knife thereby changing the fight from a fist fight to a knife fight. 4. MR's case is that the deceased then moved towards MR. MR was armed with a knife and then struck the fatal blow that killed the deceased. 1. MR intends to adduce evidence of previous incidents involving the deceased on the basis they demonstrate a tendency (or tendencies) on the part of the deceased to act in particular ways. Namely: 1. To threaten physical confrontations with other persons, including threatening other people with weapons. 2. To provoke physical confrontations with other persons. 3. To engage in physical confrontations (fights) with other people. 4. To engage in physical confrontations using weapons, including hammers and knives. 1. It is submitted the asserted tendencies are relevant to the following facts in issue: 1. Whether the deceased was acting aggressively towards MR shortly before the stabbing. 2. Whether the deceased was trying to provoke MR into fighting with him. 3. Whether the deceased agreed (by words and/or by conduct) to fight MR shortly before MR punched him. 4. The probability that the deceased was armed with a knife at the time he was stabbed. 5. The probability that the deceased would use a knife in any confrontation with MR. 1. Mr Evers accepts the evidence he intends to adduce invokes tendency reasoning which is inadmissible unless the requirements of s 97 of the Evidence Act 1995 (NSW) are met. 2. In so far as there was a failure to comply with the notice requirements for tendency evidence the Crown takes no issue and it is appropriate that I dispense with notice requirements. 3. In order to prove one or more of these asserted tendencies Mr Evers relies on seven events to raise the reasonable possibility that the deceased was acting aggressively, that he wanted to provoke a fight with MR, that he agreed to fight MR and that when the deceased was punched by MR pursuant to the agreed fight, he pulled out a knife and moved towards MR. 4. To place some of these events in context, it is common ground that by the time of his death, the deceased and BL, a young person who the deceased attended primary school with, had by June 2022 a relatively long history of tension and mutual animosity. It is further apparent that that animosity soured relationships between the deceased and BL's father DL and between the deceased and BL's friend, the young person CT. COPS Event 73856475 1. On 28 January 2020 the deceased committed an offence of affray with three adult co-offenders at the home where the young person BL resided with his parents including his father DL. Each offender was armed with a hammer secreted in the side of their pants. COPS Event 73811236 1. On 16 March 2020 police received information from CT that a male he believed to be the deceased had bashed him on 13 March 2020. CT reported that he had no injuries and believed the "fight" related to ongoing friend issues. CT did not provide a statement. On 6 June 2020 police contacted CT to ascertain whether he wished to make a statement. CT refused telling police, "it was just two fourteen year olds having a scuffle". 2. I do not intend allowing evidence relating to Event 73811236 to be admitted. CT refused to make a statement and the proposed evidence is lacking sufficient detail as to have probative value. COPS Event 446153592 1. On 19 June 2020 police received information that the deceased and another student LF had engaged in a physical altercation at school over an issue relating to a photograph of the deceased's girlfriend. The altercation apparently lasted less than one minute and was captured on mobile phone footage by an unknown person. After the altercation the deceased and LF shook hands. The incident was dealt with by the school's internal procedures. 2. I do not intend allowing evidence relating to Event 446153592 to be admitted. This incident does not advance the tendency argument made by Mr Evers. COPS Event 79147746 1. On 19 March 2021 BL was working at Kentucky Fried Chicken at Werrington. The deceased entered the restaurant and approached BL and punched BL several times to the head causing actual bodily harm. COPS Event 80796544 1. On 18 June 2021 police received information from a student T-J G who went to the deceased's school that on 17 June 2010 the deceased allegedly assaulted him. Enquiries with the school indicated that there had been multiple incidents between the deceased and T-J G and suggested that T-J G was not "completely innocent" and was known to be untruthful at times. The complaint was dealt with by the school's internal procedures. 2. I do not intend allowing evidence relating to Event 80796544 to be admitted. This incident does not advance the tendency argument made by Mr Evers. COPS Event 1111655090 1. On 2 April 2022 BL and CT were at a local Domino's Pizza restaurant ordering food. The deceased and his friend BW arrived at the shop while BL and CT were waiting for their order to be completed. After BL left the shop the deceased punched BL several times and BL punched the deceased several times. BL managed to step back from the deceased whereupon the deceased withdrew a knife from his pants, held it up against his face and began walking towards BL. BL called out to CT and the deceased put the knife back in his pants. The deceased said to BL, "Let's fight" and took the knife out of his pants and handed it to BW who was standing nearby. The deceased ran towards BL with his hands in front of his face and with closed fists. The deceased then punched BL to the head area several times before grabbing BL's hoodie and dragging him to the floor. The deceased swung his leg towards BL's face however CT intervened and stopped the deceased. BL got up and walked away with CT. COPS Event 87547848 1. On 10 April 2022 the deceased yelled offensive words and made gestures with his fingers towards a passing police car. Police stopped the car in order to speak to the deceased. The deceased yelled, "Fuck you", and "Fuck you nigger." When the officer got out of his car, the deceased continued to act aggressively yelling, "Film me nigger, fuck you". The deceased then challenged the officer to a fight, saying, "I'll fucken smash you", and raised his clenched fists and moved into a boxing stance. After the deceased was arrested, he continued to behave in a violent fashion, including spitting at police. Police formed the opinion the deceased was experiencing an alcohol-related psychosis. Submissions 1. The Crown objects to MR adducing any evidence said to demonstrate a tendency or tendencies on the part of the deceased. The Crown submits the proposed evidence does not have significant probative value because it is simply evidence of a general tendency on the part of the deceased to be violent or perhaps to want to fight someone in circumstances which are dissimilar to those before this Court. Save for Event 87547848, the deceased had no prior relationship with MR (it is not suggested that the deceased knew MR from the first gathering at TK's home) and on any account, what happened was spontaneous and out of the blue. 2. Furthermore, the Crown does not challenge the evidence that the deceased made a provocative (and false) comment directed to MR and flicked a cigarette at him and pulled up his pants indicating he wanted to fight. The Crown thus contends that the "real dispute" as far as its case against MR is concerned is the probability that the deceased was armed with a knife at the time MR ran onto him (and not the deceased running onto MR). In so far there is evidence of one event that involved a knife (Event 1111655090), the Crown contends that it is the only incident that has the requisite probative value but observes that this event occurred in the context of the long-standing dispute with BL and during that event the deceased did not use the knife in the physical altercation or fight with BL but placed it to the side. 3. Accordingly, the Crown contends that the proposed tendency evidence does not have the capacity to be "influential" [1] in raising a doubt about the account to be advanced and relied upon by MR and in particular whether the deceased had a knife when MR ran onto him (or as MR contends, when the deceased ran onto MR). Consideration 1. It does not necessarily follow that simply because the Crown does not challenge certain evidence, the jury will accept that evidence. On the evidence already before the jury, the jury may consider it unlikely or improbable that the deceased would suddenly initiate a fight with MR in circumstances where he (the deceased) was otherwise apparently in good spirits and having a good time and the evening was amicable and uneventful. Mr Evers asserts that one answer to that may be because the deceased was a person with the tendencies asserted which he argues is demonstrated by the evidence sought to be adduced. 2. In assessing whether the evidence sought to be adduced has significant probative value, two inter-related but separate matters must be considered. Firstly, the extent to which the evidence establishes the tendency or tendencies asserted. Does the tendency evidence sought to be adduced have strength in establishing the tendency (or tendencies) for which MR contends? Secondly, the extent to which the existence of the tendency or tendencies makes more likely the facts underpinning the account MR seeks to advance. 3. Events 73856475 and 1111655090 are capable of supporting a finding that the deceased had a tendency to threaten physical confrontations with other persons including threatening other people with weapons. This tendency makes more likely that the deceased threatened a physical confrontation with MR on 4 June 2022 including threatening him with a knife. 4. Events 73856475, 1111655090 and 87547848 are capable of supporting a finding that the deceased had a tendency to provoke physical confrontations with other persons including relevantly when intoxicated (Event 87547848). This tendency makes more likely that the deceased (who was intoxicated) provoked a physical confrontation with MR on 4 June 2022. 5. Events 73856475, 79147746, 1111655090 and 87547848 are capable of supporting a finding that the deceased had a tendency to engage in physical confrontations with other people, including when the deceased was in possession of a weapon, which makes more likely that the deceased was in possession of a knife when he confronted MR. However, these events are not capable of supporting a finding that the deceased used a knife to assault another person (by which I mean an assault constituted by an actual application of force) because the evidence indicates that although the deceased was in possession of a knife at the time Event 1111655090 occurred and had it in his hand at two particular points in time, he put that knife aside when he engaged in actual physical contact with BL. 6. I accept that the capacity of Events 73856475, 79147746, 1111655090 and 87547848 to establish the asserted tendencies is weakened by the fact Events 73856475, 79147746 and 1111655090 all occurred in a context of ongoing mutual animosity between the deceased and BL. However, that is balanced against the fact the deceased's conduct occurred on a number of occasions over approximately an 18-month period. I further accept that only Event 87547848 appears to involve relevant conduct on the part of the deceased whilst intoxicated. One event can have the capacity to disclose a relevant tendency. [2] Event 87547848 was close in time to the incident before the Court and the autopsy report reveals a reasonably significant blood alcohol reading in the deceased's post-mortem blood. 7. In my view, the capacity of the asserted tendencies to negate the fact in issue in the Crown's case against MR, that is that MR was not acting in self-defence when he stabbed the deceased, is of some substance. MR has no burden of proof and need only point to matters tending to disprove critical prosecution issues by showing a reasonably possible alternative. I am persuaded that Events 73856475, 79147746, 1111655090 and 87547848 when taken at their highest are sufficient to meet the requirement of significant probative value. 8. I have considered the Crown's arguments in relation to exercising my discretion pursuant to s 135 of the Evidence Act to exclude the evidence on the basis it would be unfairly prejudicial to the Crown because it would be misleading and of course the deceased is not able to provide any version of the events in question. The prejudice occasioned by the latter fact is a long way from substantially outweighing the probative value of the evidence I consider to be admissible which I have found is significant. 9. I do not consider there is any basis to exercise my discretion pursuant to s 135 of the Evidence Act. To the extent there is other available evidence that places the evidence I have admitted into context, the Crown would be entitled to adduce such evidence if it so choses. Formal Orders 1. The formal orders are: 1. The notice requirements for evidence to be adduced by MR pursuant to s 97 of the Evidence Act 1995 (NSW) are dispensed with. 2. Event 73856475 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 3. Event 73811236 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 4. Event 446153592 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 5. Event 79147746 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 6. Event 80796544 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 7. Event 1111655090 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). 8. Event 87547848 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence). ********* Endnotes 1. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [103]. 2. See Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 at [56]. 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: 09 April 2024