Supreme Court New South Wales Medium Neutral Citation: R v Jacobs (No 5) [2013] NSWSC 946 Hearing dates: 24 June 2013 Decision date: 26 June 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: 1. The evidence relating to the manslaughter committed by Mr Terrence Price is admissible. 2. The evidence with regard to other matters on the criminal record of Mr Price is inadmissible, at least with regard to tendency purposes. 3. There would be no credibility consequences to the accused if the facts relating to the manslaughter committed by Mr Price were placed before the jury. 4. The evidence of the tendency of the accused to connect himself verbally with firearms is inadmissible. Catchwords: EVIDENCE LAW - application for advanced ruling pursuant to s 192A of Evidence Act - proposed cross-examination of Crown witness with regard to past offences - Crown witness convicted of manslaughter - tendency adduced by accused of Crown witness to act violently - whether evidence has significant probative value - whether facts in remarks on sentence admissible pursuant to s 91 of Evidence Act - evidence of manslaughter admissible as tendency evidence - undisputed facts found in remarks on sentence admissible - no adverse credibility consequences EVIDENCE LAW - whether tendency of accused to threaten people verbally with regard to firearms admissible - tendency evidence adduced by Crown of accused - whether evidence has significant probative value - whether probative value of evidence substantially outweighs prejudicial effect - tendency of accused inadmissible Legislation Cited: Evidence Act 1995 Cases Cited: R v Cook [2004] NSWCCA 52 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 121 Category: Procedural and other rulings Parties: Regina Michael Allan Jacobs Representation: Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant) File Number(s): 2012/89001 Judgment 1Application has been made by defence counsel for an advance ruling pursuant to s 192A of the Evidence Act 1995, to which I shall subsequently refer as "the Act". The issue is to do with whether, if defence counsel is permitted to lead certain evidence in cross-examination of a Crown witness, the Crown would be permitted to lead certain evidence about the accused as a result. The Crown has not submitted that an advance ruling should not be given. In the circumstances, and because the issue raises important strategic questions in the trial, I consider that such a ruling should be provided by me. Background 2The background is as follows. The issue in this trial is whether the accused shot the deceased and thereby murdered him. The defence case is that another man was present at the scene, a Mr Terry Price, who in truth committed the offence. In support of that contention, defence counsel proposes to put to Mr Price, and if denied presumably prove, that Mr Price pleaded guilty to a manslaughter committed in 2003, that is, nine years before this shooting murder. Defence counsel has indicated that he would also seek to adduce various other aspects of the criminal record of Mr Price, including matters to do with assaults, unlawful possession of ammunition, and repeated unlawful possession of knives. All of that material is said by defence counsel to demonstrate tendencies on behalf of Mr Price relevant to whether in truth he committed this offence. Reliance was placed upon s 97 of the Act. 3The Crown's position was that all of the evidence, in truth, is not evidence of a tendency of Mr Price, but is merely credibility evidence relating to him. The Crown Prosecutor indicated that, if the evidence were admitted, he would seek leave to attack the credibility of the accused pursuant to ss 104, 108A and 108B of the Act. Furthermore, if the evidence of the tendency or tendencies of Mr Price were admitted, the Crown Prosecutor indicated that he would seek to lead evidence of a tendency of the accused, namely, that he had said to a Ms Rooney at some indeterminate stage in the decade of the 2000s that he possessed a firearm and threatened to use it against her. The proposed tendency evidence of the Crown with regard to the accused would be also founded upon evidence from a Mr Andrew Sampson that, at an indeterminate time and during an argument with the accused, the accused said to that witness that he would shoot him. 4To complete this thumbnail sketch of the background, evidence has been led in the trial that the accused was a disqualified driver at the time of the shooting; that he had committed that offence repeatedly; and that he was in some danger of being at least bail refused if detected driving unlawfully again. There has also been evidence foreshadowed, over objection, that at the time of the shooting the accused had ingested methylamphetamine and was affected by it. 5With regard to Mr Price, it came out in cross-examination of his father that at one stage he was not living in Tamworth because he, Mr Price junior, was detained in prison. 6The evidence that was placed before me on the voir dire was as follows. Criminal records of the accused and Mr Price were tendered, as was a document reflecting the remarks on sentence pertaining to the manslaughter conviction of Mr Price. An ERISP of Mr Price of 2 March 2012, in which he accepts that he can at times be violent and that he had "done time for manslaughter" was also placed before me on the voir dire. Finally, a statement of Ms Rooney, with particular regard to paragraph 8, and a statement of Mr Sampson, with particular regard to question and answer 75, were also tendered. Submissions - tendency evidence about Mr Price 7Mr Hoyle SC submitted that the evidence should be admitted as tendency evidence, namely, a tendency on the part of Mr Price to behave violently and kill people. He submitted that the evidence is not being tendered for a credibility purpose or, at the very least, not for that purpose only (see s 101A of the Act). He did not seek to resist a limitation, pursuant to s 136 of the Act, to the effect that any such evidence should be used by the jury as going to tendency only, with the result that, if such limitation occurred, my summing-up should contain a short direction to the jury not to use the evidence for a credibility purpose. 8Focusing on the manslaughter in particular, he submitted that the facts of that matter demonstrate a number of separate tendencies on the part of Mr Price. They are a tendency to inflict fatal violence over something relatively minor; after which Mr Price fled or at least tried to flee; that occurred spontaneously; and, finally, that occurred in the context of illicit drugs. 9Defence counsel submitted that tendency evidence tendered on behalf of an accused person need only cross the two hurdles contained in s 97 of the Act. 10The first component is notice, but he submitted that there is no need for me to trouble myself about that question because the foreshadowed evidence is derived from the Crown brief. 11The second component is a need for the demonstration of significant probative value. Mr Hoyle submitted that the evidence is indeed significant, in light of the fact that the defence case is that there is a reasonable doubt as to whether Mr Price murdered the deceased and, within a decade previously, Mr Price had committed an unlawful homicide against another person. 12Turning to the submissions of the Crown, he submitted, as I have foreshadowed, that in truth the evidence goes to credibility and not tendency of Mr Price. If that is so, he submitted that, if it is admitted, then the Crown could and should well be granted leave to lead credibility material about the accused. That would be pursuant to s 104(4) of the Act if the accused gives evidence. Or, if the accused does not give evidence, pursuant to ss 108A and 108B, in light of the previous representations of the accused that have been and will be admitted into evidence to the effect that Mr Price was the shooter. The Crown Prosecutor did not resist with great force the lesser matters on the criminal record of Mr Price being used as material going to his credit. Determination - tendency evidence about Mr Price 13The first question to be answered is whether all of the evidence under consideration is relevant. I consider that it is. It is well known that the test in s 55 is low and expansive. I consider that, in considering whether the Crown has proven beyond reasonable doubt that the accused is the murderer and Terry Price is not, it is relevant that some years before Terry Price committed a manslaughter. I also consider the other matters contained on the criminal record of Mr Price are relevant, albeit less so. 14If the evidence is relevant, the next question is whether, if it is tendency evidence, it has significant probative value. Clearly that is an extra hurdle above relevance that applies to tendency evidence led by an accused. Probative value is defined in the dictionary of the Evidence Act as follows: "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 15"Significant" is not defined in the Act, but decisions of the Court of Criminal Appeal of New South Wales have held that it should be understood to mean important or consequential. 16In a recent decision of R v XY [2013] NSWCCA 121, an appeal to do with the related topic of s 137 of the Act, Basten JA, with whom Hoeben CJ at CL explicitly agreed in this regard, said that the concept of probative value as defined in the Evidence Act is speaking of the capability of the evidence to advance the case of the tendering party. That decision also generally confirmed the decision of the New South Wales Court of Criminal Appeal in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 to the effect that questions of reliability or credibility of such evidence are for the jury and not for me. 17I consider it to be important evidence that Mr Price has previously killed a human being unlawfully. It has a capability to advance the defence case that to my mind is significant. It is not just a matter, for example, of Mr Price being violent in the course of fights in country hotels. By contrast, it is something as serious as an unlawful homicide. It is also the case that, whilst it is quite true that that event occurred some years before 2012 and there are distinctions between the two incidents, such as the use of a different weapon and the fact that the deceased in the manslaughter was certainly not a police officer, I consider that there are also some similarities between the circumstances of the manslaughter and the defence case here that give rise to the secondary tendencies, if I may call them that, upon which Mr Hoyle relies. 18I consider that the evidence foreshadowed has significant probative value in light of the issues in the trial. It is true that it is one incident only, and that argues against the establishment of a tendency on the part of Mr Price. On the other hand, an unlawful homicide is a matter of some seriousness and, in any event, it is possible for a tendency to be established by one other incident, depending upon its probative value. 19I should note that the Crown Prosecutor has not taken any point with regard to notice in the circumstances. 20It follows that, to my mind, I consider that, if the evidence is to be characterised as tendency evidence, it passes the test in s 97 and is therefore admissible. 21As for the other matters on the criminal record of Mr Price, I know nothing of the facts of them. All of them are less serious offences. Many of them were committed many years before 2012. Although I consider that they are relevant and have some probative value, I am not, on the material before me, satisfied that they have significant probative value. Accordingly, at least at this stage, I would not permit defence counsel to lead them for a tendency purpose. In light of the position of the Crown Prosecutor, it may be that Mr Hoyle would seek to lead that material as credibility evidence. So be it, though of course that may lead to adverse consequences to the accused. 22I should at this stage deal with a separate point raised by the Crown Prosecutor. He submitted that s 91 of the Act stands in the way of defence counsel using the remarks on sentence in cross-examination. Section 91(1) of the Act is as follows: "Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding." 23The Crown Prosecutor submitted that the fact in issue in the proceedings between Mr Price and the Crown was whether Mr Price was guilty of murder or manslaughter. I respectfully disagree with that submission. A reading of the remarks on sentence demonstrates that the facts found were based almost exclusively on agreed facts prepared after a plea of guilty to manslaughter. The only issue was whether or not Mr Price was guilty of manslaughter by way of excessive self-defence or an unlawful and dangerous act, and Barr J stated that that disputed question boiled down to a consideration of whether or not Mr Price possessed an intention to inflict grievous bodily harm at the time of that homicide. It follows that the remarks on sentence are findings of fact admissible to prove facts that were not in issue. In other words, in my opinion, the remarks on sentence are admissible to prove all of the objective features of the manslaughter, except an intention to inflict grievous bodily harm on the part of Mr Price at the time he committed that offence. 24Turning to the true characterisation of the evidence foreshadowed by defence counsel, I do not consider that it is credibility evidence as defined. That is because, bearing in mind s 101A of the Act, I do not consider that it is relevant only to the credibility of Mr Price. It is relevant, to my mind, to tendencies of Mr Price. It follows that I do not consider that the evidence in truth is not tendency evidence but evidence of credibility only. As I have said, if one were sought, in light of my characterisation of the evidence, I would be open to a direction limiting the evidence to that effect, though I do not consider that I need to determine that question at this stage. 25In short, I consider that the facts of the manslaughter committed by Mr Price are admissible as tendency evidence. Submissions - tendency evidence about the accused 26The question then becomes what consequences could flow from the admission of that evidence. In light of my characterisation of the evidence as tendency evidence and not credibility evidence, I do not consider that any credibility consequences can accrue against the accused if the evidence is adduced. However, as I have said, quite apart from that potential adverse consequence, the Crown Prosecutor also relied upon s 97 and s 101 with regard to proposed tendency evidence pertaining to the accused. If the evidence of the tendency of Mr Price were admitted, the Crown Prosecutor submitted, thereafter the test contained in s 101 with regard to the tendency of the accused could be made out. 27As I have indicated, that tendency is said to be a connection between the accused and a firearm or firearms of some sort based on things said by the accused at indeterminate times to Ms Rooney and Mr Sampson. 28The Crown Prosecutor submitted, in short, that the probative value of that evidence is altered and heightened by way of the admission of evidence of the tendency of Mr Price. He submitted that, as a result of that alteration and heightening, the tests in s 97 and s 101 are made out. 29Mr Hoyle took no point about notice, and it is clear that this proposal was foreshadowed some little time ago in the course of the proceedings. 30Again, Mr Hoyle does not oppose there being an advance ruling pursuant to s 192A with regard to this question. However, Mr Hoyle submitted that the evidence could not be admissible. 31First, he submitted that the admission of the evidence of the tendency of Mr Price cannot in truth alter the probative value of the evidence of the tendency of the accused. In other words, he submitted those are discrete questions to be analysed by me separately. 32Secondly, he submitted that the probative value of the foreshadowed evidence of the tendency of the accused is not high at all. He submitted that it is founded on nothing more than words, not the sighting of an actual firearm. He submitted that it is not clear what kind of firearm the accused could have been referring to. He submitted that the date of these conversations of which Mr Sampson and Ms Rooney speak is indeterminate, perhaps years before. 33From the Bar table he invited my attention to other problems said to attach to the evidence, but I made it clear my ruling would be founded only upon evidence tendered in the voir dire. 34Thirdly, Mr Hoyle submitted that the prejudicial effect of the evidence would be very high. He submitted that the evidence cannot link the accused to the firearm in question found at the scene of the shooting. He submitted that it leads only to a generalised connection between the accused and criminality related to firearms. Determination - tendency evidence about the accused 35It may be seriously doubted whether the admission of the evidence of the tendency of Mr Price affects the assessment of the admissibility of the evidence of the tendency of the accused. Again, returning to the decision of XY v R, Basten JA spoke of the need to assess the probative value of the evidence discretely, in the sense that the Court should do so without reference to other evidence in the trial, including that led or proposed to be led by the defence. His Honour referred to what Simpson J had said in the decision of New South Wales Court of Criminal Appeal in R v Cook [2004] NSWCCA 52. That approach argues against the "reactive" submission of the Crown Prosecutor that the evidence passes the tests in ss 97 and 101 of the Act once the evidence with regard to Mr Price's tendency is admitted. 36There is also a question in my mind whether the evidence is in truth to be characterised as tendency evidence, or perhaps could be characterised as evidence of the offence itself. In other words, could it potentially be evidence of the possession of a firearm to which the accused referred and which is the firearm found at the scene of the shooting? However, in light of the way in which the learned Crown Prosecutor presented the argument, I think that I must analyse the evidence as tendency evidence. 37Even accepting that the admission of the evidence about Mr Price "changes the equation" about the admissibility of the evidence about the tendency of the accused, s 97 and s 101 in combination present a high hurdle against the admission of the evidence. 38Whilst I consider that the evidence has some probative value, it is not easy to determine that it has significant probative value, to use the phrase used in s 97 of the Act. That is so in light of its lack of clarity as to weapon, the lack of clarity as to date, and the fact that no firearm was actually sighted. 39Furthermore, s 101 sets up a hurdle of statutory exclusion that applies to tendency evidence about an accused in a criminal trial that does not apply to evidence about a Crown witness who is an alternative offender on the defence case. 40It is also noteworthy that the jury has already heard, in effect, that the accused is a repeat traffic offender who was in danger of being bail refused as a result of his offences and who was also a drug user. I consider that it would be prejudicial indeed for the jury to hear of a claimed connection on the part of the accused with a firearm at some indeterminate stage. I consider that the result would be a significant risk that the jury would think prejudicially of the accused as nothing more than a violent drug addicted member of the criminal milieu of Tamworth. 41In short, even if the evidence possesses significant probative value and therefore passes the test in s 97, I am not satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. It follows that s 101 excludes the proposed evidence. Summary 42To summarise my advance ruling then, in short, I consider that the evidence of the tendency of Mr Price is admissible founded upon the facts of the manslaughter pursuant to s 55 and s 97. I do not consider that such evidence is credibility evidence as defined in s 101A of the Act. If that evidence is led by defence counsel, I would not permit the Crown Prosecutor to lead credibility evidence about the accused pursuant to ss 104(4), 108A and 108B. And if it is admitted it is not the case I would permit the Crown Prosecutor to lead the foreshadowed tendency evidence about the accused, because of its failure to pass the test in s 97 or, at least, s 101 of the Act. Conclusion 43The result is the past violence of one man, Mr Price, would be admissible but the verbal connection between the other man, the accused, and a firearm in the past would not be. That may seem surprising, but it is founded upon two important points of distinction. First, the past violence of Mr Price is founded upon an admission by way of a plea of guilty and agreed facts. The asserted tendency of the accused is to do with alleged nebulous statements about some firearm or other at some time or other. 44Secondly, and more importantly, the evidence led in the defence case does not need to satisfy the test in s 101 of the Act, in contrast to the evidence sought to be led by the Crown Prosecutor. Parliament has clearly taken a different approach with regard to tendency evidence led against an accused in a criminal trial. 45Of course rulings on evidence can change as further evidence is led in the trial and issues alter. Not only that, this is an advance ruling that inherently seeks to predict developments. But at this stage, and unless the state of the evidence and the issues changes significantly, the approach I propose to adopt is that the evidence relating to the manslaughter committed by Mr Price is admissible. The evidence with regard to other matters on his criminal record is inadmissible, at least with regard to tendency purposes. There would be no credibility consequences to the accused if the facts relating to the manslaughter committed by Mr Price were placed before the jury. And, finally, the evidence of the tendency of the accused to connect himself verbally with firearms is inadmissible. ********** 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: 16 July 2013