R v MEYN, John Michael (No 5) [2012] NSWSC 1590

Supreme Court New South Wales

Medium Neutral Citation: R v MEYN, John Michael (No 5) [2012] NSWSC 1590 Hearing dates: 19-23, 27-30 November, 3 December 2012 Decision date: 03 December 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Evidence of prior assault of deceased rejected. Catchwords: CRIMINAL LAW - evidence - domestic homicide - evidence of prior domestic violence - relationship evidence - whether tendency evidence - whether significant probative value. Legislation Cited: Evidence Act 1995 - s 97 Cases Cited: - R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 - R v Meyn (No 2) [2012] NSWSC 1449 - R v Serratore [2001] NSWCCA 123 Category: Interlocutory applications Parties: Crown (Prosecutor) John Michael Meyn (Accused) Representation: Counsel: T.W. Thorpe (Crown) K.A. Chapple SC (Accused) Solicitors: Director of Public Prosecutions (Crown) George Sten & Co (Accused) File Number(s): 2011/116480

Judgment 1On the fourth day of this trial, 3 December 2012, objection was taken by Senior Counsel for the accused, Mr Chapple SC, to the Crown leading certain evidence from Ms Angela Walkerden which I will describe. After argument, I indicated that I rejected the evidence and stated I would provide my reasons later. These are my reasons for that ruling. 2In brief summary, the Crown case is that on the morning of 8 April 2011 the accused hit and strangled his ex-partner. This is said to have occurred after she attended at a "granny flat" at the back of his parents' home in which the accused resided. She attended with their infant son. The Crown alleges that while their son was asleep they had sex and that the accused then killed her. The Crown alleges that the accused was possessive of the deceased and jealous of any suggestion that she could see anyone else. In opening the Crown Prosecutor stated: "The Crown case will be that the accused was driven by his jealousy over the fact that the deceased was using this internet dating site. He asked her questions about it, that she got angry, he got angry, and that as a result of that scenario, he then hit her a number of times to the head and strangled her. It is my understanding that the accused will be saying that he was acting in self defence." 3There has been evidence tendered indicating that the relationship between the accused and the deceased commenced sometime around 2006 to 2007 and that they commenced living together soon after. They have two sons together. They ceased living together in February 2011. As I have stated part of the Crown case is that the accused was possessive of the deceased and jealous of the possibility of her seeing other men even after they ceased living together. Evidence has been adduced indicating that on the afternoon of the day that the deceased died the accused twice contacted a male friend of hers and asked if he and the deceased were seeing each other. 4Ms Angela Walkerden gave evidence that on the evening of 11 March 2011 she was at the deceased's home having drinks with the deceased and some of the deceased's neighbours. She returned to her home for a period of time and then came back to the deceased's premises. When she returned she noticed that the deceased was sitting in a car outside the front of her home and that the guests had all left. The deceased's infant son was in the car. The deceased asked Ms Walkerden to drive her to the accused's premises. The deceased told Ms Walkerden that the accused was alleging that she was "having guys over at her house" and that the deceased wanted to prove to him that this was not true. Ms Walkerden then drove the deceased to the accused's home. She waited while the deceased went inside. She said that when the deceased returned she appeared "shaken and upset". At this point objection was taken by Mr Chapple SC. I heard argument on the objection in the absence of the jury. 5Absent any objection, the Crown was intending to lead evidence from Ms Walkerden that the deceased had told her that she was assaulted by the accused. 6In her statement to the police Ms Walkerden stated that when the deceased returned to her car she asked the deceased "Did he believe you?" Ms Walkerden's statement continues: "Yvette seemed to be shaken up and upset, to the point where she looked like she was about to cry but she didn't. I said, 'What happened?' She told me, 'John hit me in the head and I fell to the floor. He kept hitting me and kicking me in front of Taylor'. I said, 'You should call the police and have him charged with assault because you can't let him get away with hitting you, especially in front of Taylor'. Yvette said, 'I don't want to'. ... I tried to convince her to do something about what had happened to her, but she didn't tell me anymore. I drove her home. Once we got home I tried to look for injuries without Yvette seeing me, but I couldn't see anything... ." 7In argument the Crown Prosecutor explained the relevance of this evidence was that it was "part of the relationship that if he was driven by jealousy then he would assault [the deceased]". The Crown sought to characterise this evidence as "relationship evidence". "Relationship evidence" is an elastic term that can sometimes confuse rather than clarify the task of determining admissibility. In my view, properly analysed, the evidence of the accused assaulting the deceased was tendency evidence and consequently was required to satisfy s 97 and s 101 of the Evidence Act 1995 before it could be adduced. 8In this case the evidence which suggests that the accused asserted a form of proprietary control over the deceased and was jealous of her seeing other men does not appear to need to pass the threshold in s 97. I say "appear" because to the extent that Ms Walkerden and other witnesses gave evidence to this effect it was not objected to. In the absence of argument on this it seems to me that evidence that merely showed that in the immediate period prior to her death the accused was possessive of the deceased and jealous of her seeing other men was relevant to proving the events leading to her death, and was not subject to the requirements imposed on tendency evidence (see R v Serratore [2001] NSWCCA 123 at [37] and [42] per Beazley JA with whom Grove and Whealey JJ agreed). 9However, to take the next step and lead evidence suggesting that on a previous occasion this feeling had led him to assault her in my view did involve adducing evidence of the "conduct of" the accused in order to prove he acted in a particular way, namely violently (see s 97(1)). The explanation given by the Crown Prosecutor meant that the only basis upon which this alleged earlier assault could be relevant to the case against the accused is by the application of tendency reasoning, namely by seeking to prove: "... (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind)." (R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 at [23] per Simpson J, with whom McClellan CJ at CL agreed.) 10I addressed the requirements for the admission of such evidence in a judgment I gave earlier in these proceedings (R v Meyn (No 2) [2012] NSWSC 1449 at [14] to [20]). I will not repeat that discussion. 11In this case I was not satisfied that, if adduced, Ms Walkerden's evidence of complaint of a previous assault on the part of the accused towards the deceased would have significant probative value. Taking her evidence at its highest, not much is known about what precipitated the aggression. Was the accused acting out his possessive instincts or did something else trigger the assault? The form of the assault did not appear to be similar to that which killed the deceased namely blows to the head and strangulation. 12In the end the Court is left with a single instance of domestic violence prior to the killing. In this case, for a single prior instance of domestic violence to be admissible as tendency evidence, as opposed to some other basis, there would need to be strong similarities between that occasion and the killing to warrant a conclusion that it has significant probative value (see R v Meyn (No 2) at [20]). In my view there do not appear to be sufficiently common features between this single incident of violence towards the deceased and the events of her death to conclude that the former had significant probative value to prove the Crown's case on the latter. 13Accordingly I rejected the evidence.