Supreme Court New South Wales Medium Neutral Citation: R v Hadchiti [2013] NSWSC 1726 Hearing dates: 21 October 2013 Decision date: 30 October 2013 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Evidence admissible Catchwords: CRIMINAL LAW - evidence - tendency - tendency notice - evidence in relation to victim's character, reputation and conduct - tendency to engage in violent conduct towards females, use of weapons and to carry knife on person - evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted - whether evidence has significant probative value - whether evidence admissible Legislation Cited: Evidence Act 1995 Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349 R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 Category: Procedural and other rulings Parties: Regina Michael Hadchiti Representation: Counsel: Mr M Hobart SC (Crown) Mr M Dennis (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Nyman Gibson Stewart (Accused) File Number(s): 2011/347089 Publication restriction: No Judgment 1The accused pressed a tendency notice in relation to evidence proposed to be called as to the victim, Billy Mack's character, reputation or conduct and his tendency to: "Engage in unlawful violent conduct towards females; to use weapons when engaging in unlawful violent conduct; and to carry a knife on his person." 2There were finally only two issues lying between the parties as to the circumstances sought to be relied on. The first related to an incident in May 2002, when Billy Mack was engaged in a physical altercation with a juvenile, during which he elbowed an elderly lady in the head and the second related to an incident in 2008, when Billy Mack was involved in a car chase and reversed a motor vehicle into a police vehicle. 3Section 97 of the Evidence Act 1995 provides: "97 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 unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, 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." 4I concluded that while the evidence as to the second matter could have significant probative value, that related to the first did not, even when considered with other evidence to be adduced. 5This conclusion rested on the following matters. 6The evidence was sought to be relied on in relation to the question of whether the accused was acting in self defence when the fatal wound was inflicted. "Probative value" is defined in the Dictionary to the Evidence Act as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.' As discussed by Simpson J in R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [33]: "(iv) the task that a trial judge undertakes under s97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e. if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible." 7This exercise was further explained by Whealey J in DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [75] as: "the task is to decide the capacity of the evidence, either by itself or having regard to other evidence of the kind mentioned in the section, to be significant (that is, to be of importance or of consequence) in establishing the fact or facts in issue." 8So understood it was in my view apparent that the evidence as to the first matter did not have the capacity to be significant in establishing the facts in issue in this case. Billy Mack was then charged with offences of 'offensive manner' and 'resist or hinder police', but not with assault. The evidence was that the lady who he hit with his elbow and knocked over knew Billy Mack and declined to press any charges against him, because she considered that she had not been hit deliberately, but had been struck because she was in the way, Billy Mack having then been concerned for her son, who was being attended to by ambulance officers. The offences with which he was then charged, appeared to relate to other matters. Contrary to the accused's submission, it could not be concluded that this evidence had significant probative value. Even if it were accepted that the evidence had probative value, it would not be significant and was thus not admissible. 9I came to a different conclusion in relation to the second matter, where the evidence was that police had tried to stop a vehicle that Billy Mack was driving, which was carrying expired registration plates belonging to a different vehicle. When the vehicle was stopped at a traffic light and police officers alighted in order to direct him out of the vehicle, he reversed, ramming the police vehicle behind him, after which he drove off through a red traffic light. He eventually stopped and ran from police, who finally apprehended and restrained him, after a struggle, which necessitated the use of capsicum spray. 10Those matters, particularly the use of a motor vehicle as a weapon, in my view did have the capacity to be significant to establishing the facts in issue in this case, when considered together with the other tendency evidence as to which there was no issue between the parties. That is, I was satisfied that the evidence could rationally affect the assessment of the probability of whether the accused was acting in self defence when the wound which led to Billy Mack's death was inflicted. Contrary to the Crown's submission, it had to be concluded that this evidence had significant probative value and was thus admissible. ********** Amendments 28 April 2016 - Judgment now restricted 28 August 2017 - Publication restriction lifted 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: 28 August 2017