R v ANDREWS [2003] NSWCCA 7

New South Wales Court of Criminal Appeal

CITATION : R v ANDREWS [2003] NSWCCA 7 HEARING DATE(S) : 23 October 2002 JUDGMENT DATE : 6 February 2003

JUDGMENT OF : Heydon JA at 1; Hulme J at 2; Hidden J at 46 DECISION : Leave to appeal granted; Appeal dismissed.

PARTIES : Regina Stephen John ANDREWS FILE NUMBER(S) : CCA 60121 of 2000 COUNSEL : Crown: W Dawe QC Appellant: PR Boulten SOLICITORS : Crown: SE O'Connor Appellant: David H Cohen & Co

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70031/98 FILE NUMBER(S) : LOWER COURT Ireland J JUDICIAL OFFICER :

- 15 - IN THE COURT OF CRIMINAL APPEAL No: 60121/00

HEYDON JA HULME J HIDDEN J

Thursday 6 February 2003 R v Stephen john ANDREWS

Judgment 1 HEYDON JA: I agree with Hulme J that it is not necessary to decide the somewhat difficult issues discussed in [4]-[16], because even if the trial judge erred in one or more of the respects which the appellant alleged, the proviso should be applied for the reasons given by Hulme J. I also agree with Hulme J's observations about sentence, and with his proposed orders. 2 HULME J: On 30 September 1999 the Appellant, Stephen John Andrews, was convicted by a jury of the murder of his de facto wife, Julie Wells Andrews. On 22 February 2000 he was sentenced by Ireland J to imprisonment for a period of 21 years including a minimum term of 16 years both of which periods commenced on 24 December 1997, the date of her death and his arrest. 3 At the Appellant's trial there was no dispute that he had killed his wife by firing shots from a .22 calibre rifle. Two bullets entered her brain and another two bullets were fired. In issue was the question of his intent. It was argued that in light of, inter alia, evidence of the Appellant's ingestion of alcohol and a drug Zoloft, and expert evidence as to their effect, the jury could not be satisfied that at the relevant time the Appellant had an intent to kill or do grievous bodily harm. The Crown sought to pray in aid of its case, evidence of the Appellant's movements on the night and what it describes as evidence of motive, that being jealousy on the part of the Appellant. 4 Evidence falling within this latter category, and to which exception is taken in the appeal, consisted of the following:- (i) Evidence from Alison Andrews, a daughter of the Appellant and deceased who said that on the night of 2 November 1997, at a wedding, another man showed an interest in the deceased, the Appellant "got angry" and a fight occurred between the Appellant and that man which was broken up by Mr Withers. The deceased's mother, Mrs Hawken, gave evidence of having been told by the deceased that on that occasion the deceased started a fight about her. (ii) A Mark Munro gave evidence of social contact with the deceased in 1994 at a time when she and the Appellant were separated. Some months, and it may have been a substantial number of months, after having first met the deceased the Appellant approached Mr Munro in the driveway of his home and said, inter alia, "I am the husband of the sheila you are rooting" and "Don't let it happen again or there will be buckets of blood flowing". (iii) Mr Munro also said that a few days later the Appellant approached him at a bank and on this occasion said, "If that ever happens again, there is going to be blood everywhere." (iv) Mr Munro then recounted an incident which occurred on Anzac Day 1996. He was in the toilet of the Toronto Workers Club. The next thing he remembered was that he was standing, looking down at the floor and noticed a deal of blood on the floor. The blood was coming from a scalp wound and his left side lip was gashed badly over a distance of about 2 inches. Later that night he accused the Appellant of being a "weak king hitting bastard", a club bouncer told the two to "take it over there if youse want to do anything" and while Mr Munro was going "over there" the Appellant hit him from behind and a fight ensued. (v) Mr Withers, a son-in-law of the deceased gave evidence that on the occasion in the Worker's Club, he had gone into the toilet and seen Mr Munro on the floor. When he asked what happened, Mr Munro had said "Stephen Andrews got me from behind". Mr Withers said that later, when he spoke to the Appellant he confirmed the attack. (vi) Mr Withers gave evidence also of a friend of his and Mr Munro's, a Mr Desreaux, saying to Mr Andrews that as he had "done my mate in the toilet, I would like you to come outside", that Mr Andrews did so and of an altercation occurring in the car park. 5 No objection was taken to this evidence when it was given. The trial had commenced on 16 September 1999. Ms Andrews and Mrs Hawken's evidence was given on 17 September, Mr Withers' was given on Monday 20 September, and Mr Munro's on the 22nd. Cross-examination of Mr Munro was, in effect, limited to obtaining confirmation from Mr Munro that he had not felt the blow in the toilet and that his statement to the police was not made until 27 February 1998. There was no re-examination and then, in the absence of the jury, counsel appearing for the Appellant said:- "Your Honour, in respect of Mr Munro's evidence it is my submission that the Crown, by leading that evidence has raised bad character of the accused , and indeed that he has committed offences in the past, those offences being assault or matters of violence, and it is my submission that with reference to that, it is my submission that the jury should be discharged." 6 The Crown Prosecutor responded by saying that the Crown had opened to the jury that the crime was one of jealousy and obsession, that the evidence went to "that very issue, his attitude to his wife and his attitude to people and her relationships or friendships with other people" and that in service of the Crown brief, notice of the evidence had been given. 7 His Honour dismissed the application to discharge the jury. In doing so he observed:- "the purpose of adducing this evidence by the Crown is in support of the contention that the Appellant was jealous of the deceased and of any relationships she may have had with other men". 8 His Honour also observed that the basis of the application for discharge was that bad character had been raised and that, as it was contained in the brief served by the Crown and not objected to, the application was refused. 9 The principal ground of appeal against the Appellant's conviction is that the evidence in paragraphs (ii) to (v) above was irrelevant, and if led to prove the Appellant had a jealous and violent disposition, was tendency evidence. If so, it should not have been admitted because:- (a) no notice under s99 of the Evidence Act and the regulations made thereunder had been given, (b) it did not satisfy the requirement in s101 that "the probative value of the evidence substantially outweighs any prejudicial effect if may have on the defendant", (c) it did not satisfy the requirement laid down by the High Court in Pfennig v R (1995) 182 CLR 461 that, in order to be admitted, there was a "necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency", and (d) it did not satisfy the requirement laid down by the High Court in Pfennig v R (at 481) that it "bears no reasonable explanation other than the inculpation of the accused in the offence charged". 10 His Honour's decision was also criticised on the basis that he did not turn his mind to ss 97, 101 or 137 of the Evidence Act. 11 The admission of the evidence referred to in paragraph (i) was said to lack the degree of probative force necessary for its admission, it did not show how angry the Appellant got, the sort of fight or what the other man might have done to incur the Appellant's ire. There was nothing to show any link between the deceased's death and the incident and its prejudicial weight was likely to have outweighed any probative value. It was said that this evidence also was not the subject of a notice under s99 of the Evidence Act and this was a precondition of admissibility. Reliance was placed on an observation of Kirby J, with whom at least Priestly JA agreed, in AN (2000) A Crim R 176 at 186-7. 12 The contention of the Crown was that the evidence was not "tendency" evidence but was directed to showing the relationship between the deceased and the Appellant and thus admissible and reference was made to Wilson v R (1970) 123 CLR 334 and R v Serratore (1999) 48 NSWLR 101. The Crown did not attempt to justify the admission of the evidence if it was, within the terms of s97, tendency evidence. 13 For my part, I think there is much to be said for the view that the evidence was evidence tendered to prove that the Appellant had a tendency to have a particular state of mind. To say, as the Crown did, that the motive was jealousy carries with it the implications that the Appellant was jealous and, by reason of the nature of the emotion, the implication that he had a tendency to be jealous, to be, in the words of the Oxford English Dictionary, "troubled by the belief, suspicion or fear that the good which one desired to gain or keep for oneself has been or may be diverted to another … apprehensive of being displaced in the love or goodwill of some one; distrustful of the faithfulness of wife, husband, lover". Indeed so much is suggested by Ireland J's statement, made when ruling that the evidence was admissible, and which I have quoted above. 14 But there is also much to be said for the view that if, as seems to be the case, the substance of the evidence objected to was included in the Crown brief when it was served, then the notice requirements of Part 3.6 of the Evidence Act were met. Section 97 requires only that there be "reasonable notice in writing… of the party's intention to adduce the evidence" and although s99 with its requirement of adherence to the terms of the regulation 6 of the Evidence Act Regulations, requires particulars of, "(i) the date, time, place and circumstances at or in which the conduct occurred, and (ii) the name of each person who saw, heard or otherwise perceived the conduct, … so far as they are known to the notifying party"