New South Wales Court of Criminal Appeal CITATION : R v Player [2000] NSWCCA 123 FILE NUMBER(S) : CCA 60607/99 HEARING DATE(S) : 12 April 2000 JUDGMENT DATE : 12 April 2000 PARTIES : Regina (Respondent) Adam PLAYER (Appellant) JUDGMENT OF : Priestley JA at 20; at 24; Smart AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/22/0285 LOWER COURT JUDICIAL Naughton DCJ OFFICER : COUNSEL : CM Cook (Appellant) MC Marien (Crown Respondent) SOLICITORS : JS Fordham (Appellant) SE O'Connor (Crown Respondent) CATCHWORDS : EVIDENCE - later events closely related in time and place to alleged offence - not propensity evidence but admissible as going to appellant's state of mind. LEGISLATION CITED : Evidence Act 1995, s 97 Hoch v R (1988) 165 CLR 292 Pfennig v R (1994-95) 182 CLR 461 CASES CITED: R v Beserick (1993) 30 NSWLR 510 O'Leary v R (1946) 73 CLR 566 R v Adam [1999] NSWCCA 189 DECISION : See paragraphs 18 and 19 IN THE COURT OF CRIMINAL APPEAL No 60607/99 PRIESTLEY JA FOSTER AJA SMART AJ Wednesday, 12 April, 2000 REGINA -V- ADAM PLAYER JUDGMENT 1 PRIESTLEY JA: Justice Smart will give the first reasons of the Court. 2 SMART AJ This stated case concerns the admissibility of certain evidence tendered by the Crown in a prosecution arising out of events that occurred in the early hours of 8 June 1996. 3 The accused was charged pursuant to s. 195(a) of the Crimes Act 1900 with maliciously damaging property belonging to another, namely, a shop window at The Fruit Market in Rawson Street, Epping. The Crown alleged that while in a drunken and aggressive state the appellant smashed a glass fruit shop window of The Epping Fruit Market. The Crown case was a circumstantial one. 4 Naughton DCJ was satisfied of the following beyond reasonable doubt: (i) Early on 8 June 1996 a glass window in the Epping Fruit Market was broken. The market was located in an arcade that ran between Rawson Street and Beecroft Road, Epping. (ii) Two Crown witnesses who worked at the Epping Hotel as security guards heard the sound of breaking glass and went to Rawson Street. Some minutes later they saw the appellant walking across Rawson Street near the entrance to the arcade. (iii) The appellant was in an aggressive state. He was seen kicking over a bin in Rawson Street and then walking some distance to the corner of Bridge and Rawson Streets where he kicked and slashed or karate chopped a "for sale" sign. He was next seen walking around the corner into Bridge Street and kicking another bin. When one of the witnesses asked the appellant why he had kicked the "for sale" sign, he replied, "what for sale sign?" One of the witnesses observed the appellant to be intoxicated. (It is the material in this subparagraph whose admissibility is challenged.) (iv) It is about 92 metres from the arcade to the corner of Bridge and Rawson Streets. (v) Shortly after the appellant was seen by the security guards a number of Pepsi Cola bottles, which came from inside the fruit market, were found in the gutter of the road outside that market. (vi) The appellant had a Pepsi Cola bottle behind his back when seen and spoken to by the security staff. (vii) There were no persons other than the appellant and the security guards in the vicinity shortly after the smashing of the window. (viii) The security guards recognised the appellant from his previous attendances at the Epping Hotel. (ix) In an ERISP held by the police at a later time the appellant said he could remember nothing of the night in question after he had entered a night club around 12.30 am on 8 June 1996 as he was intoxicated. 5 The judge admitted the evidence to which objection was taken (para 4(iii)) on the ground that it was relevant because it was evidence that the appellant was in an aggressive state when seen in the close vicinity of the Fruit Market shortly after the sound of glass being smashed was heard by the security guards. 6 The appellant contended that the evidence was not admissible because: (a) This was similar fact type evidence and it was not sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause. Reliance was placed on Hoch v The Queen (1988) 165 CLR 292 at 294 and Pfennig v The Queen (1994-1995) 182 CLR 461 at 481-483. The fact in issue was whether the appellant broke the shop window. (b) As propensity evidence is a special class of circumstantial evidence the question is whether there is a rational view of the evidence that is consistent with the innocence of the accused. If so, the evidence should be rejected. The propensity evidence to be admissible must raise the objective improbability of some event having occurred, other than that asserted by the prosecution. In the present case it was equally possible that someone else smashed the window and that the appellant chanced upon the scene later and picked up a Pepsi Cola bottle. (c) The evidence in question was not admitted as part of the res gestae. Further, it could not be so admitted. The evidence was admitted to establish that the appellant was in an aggressive mood. (d) The evidence of kicking had little probative value as to the committing of the offence charged and was so prejudicial that it should have been excluded. 7 The appellant also relied on s. 97 of the Evidence Act 1995 and did so before the judge. That section reads: " The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 8 The phrase used in the Act is "significant" probative value. The Act now governs the position but the previous learning is of great assistance. It was common ground that no notice had been given by the D.P.P. that the evidence in dispute was to be lead. 9 The Crown contended that the evidence was not tendency evidence under Part 3.6 of the Evidence Act 1995 and therefore did not have to meet the requirements of that Part. It also contended that the evidence was otherwise admissible. Theses submissions are correct. 10 In Regina v Beserick [1993] 30 NSWLR 510 at 520 Hunt CJ at CL said: "It is but a very familiar principle of the law of evidence that subsequent behaviour may be regarded in order to indicate the state of mind which existed at an earlier time…..and it matters not whether [the acts] precede the time of the offence charged: (ibid) or succeed it." 11 The Crown pointed out that to prove the offence the prosecution had to establish that the appellant, in breaking the window, acted maliciously. The challenged evidence was evidence of conduct by the appellant evincing a particular state of mind at a time so close to the commission of the offence as to permit an inference that the same state of mind was in existence at such commission. 12 Put another way, the aggressive state of mind which did not baulk at damaging or attempting to damage the sign and the bins was but a continuation of the state of mind when the window was broken and some Pepsi Cola bottles were removed and placed (or thrown) in the gutter outside the fruit market. The incidents were very close in time. The evidence was admissible to establish the appellant's state of mind at the time the window was broken. 13 The Crown also contended that the smashing of the window by the appellant was part of a transaction consisting of connected events. The "transaction" was a rampage. It was alleged that the appellant, after leaving the hotel in a drunken state embarked upon a course of aggressive and destructive conduct. It was submitted that without the challenged evidence the conduct which constituted the offence charged could not be truly understood and, isolated from it, could only be represented as an unreal and not very intelligible event. The impugned evidence put the conduct which constituted the offence charged into context. 14 This submission was based upon O'Leary v The King (1946) 73 CLR 566 where Dixon J. said at 577-8: "Without (the evidence in question) the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude, and therefore, to implicate him in the resulting homicide." 15 In Regina v Adam [1999] NSWCCA 189 at para 25 this Court held that the principle in O'Leary had not been abolished by the Evidence Act 1995. The Court also rejected the submission that evidence which was admissible only under the principle in O'Leary could not satisfy the test of relevance in s. 55 of the Evidence Act, and hence under s. 56 would not be admissible. At para 26 the Court said: "…evidence which properly falls within the principle as stated by Dixon J in O'Leary would be evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" and hence would satisfy the test of relevance in s. 55 of the Act." 16 In Adam the position was summed up thus in paragraph 30: "…Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person "in the past" or evidence tending to show that he has a particular "disposition" or "propensity" or "inclination" and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required)…" I would follow Adam . 17 This resolves the admissibility point. The smashing of the window was part of the same connected series of events, namely "a drunken aggressive and destructive rampage in the early hours of Saturday morning". The material in question was admissible. 18 The question in the stated case, namely: "Did I err in law in admitting evidence of the appellant kicking over two rubbish bins and attacking a "for sale" sign, either by way of karate chop, kick or both as referred to in paragraph 1 of the case?" should be answered "no". 19 The case should be remitted to Judge Naughton with this answer. 20 PRIESTLEY JA: I agree that the question for this Court should be answered "no". 21 The case for the appellant depended on the proposition that the evidence in question was propensity evidence. In my opinion it was not. 22 In my view the evidence was admissible material which the judge hearing the appeal in the District Court could take into account in considering the appellant's state of mind at times relevant to the commission of the alleged offence, and thus was relevant to a matter in issue in the District Court appeal. 23 I agree with the orders proposed by Justice Smart. 24 FOSTER AJA: I likewise agree with the orders proposed. I also agree with the reasons that have been given and there is nothing I wish to add. 25 PRIESTLEY JA The orders will be as proposed by Justice Smart. 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. 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