Supreme Court New South Wales Medium Neutral Citation: R v Hines (No 1) [2014] NSWSC 701 Hearing dates: 29 May 2014 Decision date: 04 June 2014 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Count (2) is to be severed from the indictment and there is to be a separate trial in respect of that count. (2) The evidence of the events giving rise to the allegation in count (2) is excluded. (3) The application for severance of count (3) is refused. Catchwords: CRIMINAL LAW - evidence - severance of counts - assault occasioning actual bodily harm - separate trial - murder - accused state of mind - transactional evidence Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Bull v The Queen (2000) 201 CLR 443; De Jesus v The Queen (1986) 61 ALJR 1; HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; Jiang v R [2010] NSWCCA 277; LJW v R [2010] NSWCCA 114; O'Leary v The King (1946) 73 CLR 566; Phillips v The Queen (2006) 225 CLR 303; R v Adam (1999) 106 A Crim R 510; R v Barton [2004] NSWCCA 229; R v Mostyn (2004) 145 A Crim R; R v Venna [1976] QB 421; Sutton v The Queen (1984) 152 CLR 528; Tully v The Queen [2006] HCA 56 230 CLR 234; TWL v R [2012] NSWCCA 57; Category: Procedural and other rulings Parties: Crown Accused: Alan John Hines Representation: Counsel: P McGrath (Crown) E Wilson SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) File Number(s): 2013/52349 Judgment 1The accused Allan John Hines has been arraigned on an indictment containing three counts. The first charge is that he did murder Aaron Jones. The second and third counts are counts of assault occasioning actual bodily harm on two different victims, namely Teegan Jones and Caylan Jones. Mr Hines' trial is due to commence in Broken Hill on 23 June 2014. 2By notice of motion dated 4 May 2014 the accused seeks orders; (1)For severance of the indictment and separate trials; (2)That count (2) - the charge of assaulting Teegan Jones - be severed from the indictment and that there be a separate trial with respect to that count; (3)That count (3) - the charge of assaulting Caylan Jones - be severed from the indictment and that there be a separate trial with respect to that count. 3The accused relies on evidence contained in an affidavit of his solicitor Rebecca Ellen Mitchell and a bundle of documents which became exhibit 1 on the notice of motion. Exhibit 1 contains a copy of the indictment, the Crown case statement, an expanded summary of the evidence prepared by Mr Wilson SC who appears for the accused, a chart which compares the evidence of the crucial witnesses, a chronology, and a number of statements and interviews of the relevant prosecution witnesses. 4There is little dispute between the parties in relation to the approximate chronology of events and the issues which will arise at the murder trial. The major issue at the trial, at least in respect of count one, will be whether the accused had the necessary intention to justify a conviction for murder. The parties also anticipate that two other issues will arise for the jury's consideration. First, whether the accused acted in self defence and, more particularly, whether he should be convicted of manslaughter (not murder) on the basis of excessive self defence: cf s 421 Crimes Act 1900 (NSW). Secondly, whether he should be convicted of manslaughter (not murder) on the grounds of provocation: cf s 23 Crimes Act. 5There will be no dispute at the trial that the act causing death was the act of the accused and, in particular, his act in producing a knife and "stabbing" Aaron Jones. A perusal of the statements of the eyewitnesses shows that there are a variety of accounts as to precisely how the stabbing occurred. One of the crucial witnesses is Teegan Jones (the alleged victim in count 2). 6The questions that lie at the core of the issues to be decided by the jury concern Mr Hines' state of mind at the time that the deceased was killed. It is in that context that the present application falls to be determined. 7The tragic events took place in the town of Wilcannia in the early hours of 19 February 2013. On 18 February 2013 there was a large and significant funeral in the town. A number of people had gathered at the premises where the accused lived with Teegan Jones and at nearby homes. 8The precise timing of events is unclear. However what is clear is that the fatal incident took place at around 1:25 am. In the course of a dispute which arose for reasons that are of no present relevance, both the accused and the deceased produced weapons. It is the Crown case that Mr Hines was the real aggressor. However, there seems to be little doubt on the evidence that the deceased uttered provocative words to the accused and swung a piece of iron at him. In that act, he fell to the ground. The accused then either fell on him or jumped on him and in the course of that action, whatever it was, the knife entered the deceased's body. It was this wound that caused his death. 9Immediately before that fateful moment, and as Mr Hines approached the deceased, a child at the premises (Caylan Jones) attempted to intervene. As he did he was cut with the knife. This is the incident that gives rise to count (3). There is no suggestion that the wound to the child was caused deliberately but, if count (3) goes to the jury, the Crown will submit that his actions were reckless in the sense required for proof of the intention of an assault: see for example, R v Venna [1976] QB 421 at 428-429. 10It can be seen that the incident giving rise to count (3) was immediately proximate to the events giving rise to the murder. Mr Wilson concedes that the evidence relating to the wounding of the child is admissible in the murder trial. However, he submits that count (3) should be severed from the indictment even though evidence upon which it is based will be heard by the jury. He says that holding a joint trial with respect to that count would prejudice or embarrass his client in his defence: cf s 21(2)(a) Criminal Procedure Act 1986 (NSW). 11The issues surrounding the application to sever count (2), that is the assault of Teegan Jones, are very different. That alleged assault occurred some time earlier. While the timing is not precise the parties agree that the evidence tends to suggest that the incident giving rise to the count (2) occurred at approximately 10:30 pm, that is around 2 ½ hours before the stabbing of the deceased. So it is that Mr Wilson takes objection to all of the evidence of the assault of Teegan Jones and to associated acts of aggression which allegedly occurred at about that time. The statements of the relevant witnesses are provided in the defence bundle. There are various versions of what happened but the prosecution case is that he was angry, that he was yelling at people trying to get them to leave his home, that he threw some chairs about and that he struck Teegan Jones both with his fist and then across the back with a chair. 12Mr Wilson submits that the evidence of the incident at 10:30 pm is not relevant to the issues to be determined by the jury in respect of the murder charge. Alternatively, he submits that its probative value is not great in terms of proof of the murder charge and any such probative value is outweighed by the danger of unfair prejudice: s 137 Evidence Act 1995 (NSW). 13It is common ground that if the evidence of the assault on Teegan Jones is inadmissible, the inevitable outcome will be that I would order the severance of count (2). Mr Wilson also submits that, even if the evidence is admissible, the count should be severed from the indictment for much the same reasons that apply to count (3). 14I have been taken to a number of cases where questions of acts of violence or sexual violence, other than the act charged, have been admitted on the basis that those acts are relevant to, or probative of, issues that arise in respect of the charged act. Some of those cases involve allegations of uncharged sexual acts in cases where the primary allegation is an allegation of sexual assault or similar: see Bull v The Queen (2000) 201 CLR 443; LJW v R [2010] NSWCCA 114, Jiang v R [2010] NSWCCA 277. Other cases involve allegations of violence: see O'Leary v The King (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510; TWL v R [2012] NSWCCA 57. 15It is important to interpolate that the Crown eschews any reliance on the evidence of the assault on Teegan Jones as tendency evidence: cf s 97 Evidence Act. Rather, the Crown submits that the evidence is what is sometimes called "transactional" evidence and that, in the present case, it is relevant to Mr Hines' state of mind at the time of the incident that caused the death of Aaron Jones. Mr Wilson submits that if that evidence is admitted, it is inevitable that the jury will engage in some form of tendency reasoning. The Crown Prosecutor conceded that there was some risk of tendency reasoning but that this would apply in any similar case and that it could be cured by careful directions to the jury. 16The Crown Prosecutor places particular reliance on a series of cases in which other acts have been admitted in order to establish the state of mind of the accused at the relevant time. In particular he relies on the decision of the High Court in O'Leary v The King (supra). In essence, the Crown's position is that the state of mind of the accused at the time he allegedly assaulted Teegan Jones is relevant to the state of mind that he had at the time that Aaron Jones was killed. He says that to understand the actions of the accused at the time of the killing, it is essential for the jury to understand that his conduct at that time was preceded by other violent and aggressive behaviour. 17He relies on the fact that in O'Leary v The King, the High Court held that evidence of violent acts by the accused earlier during the day was admissible in proof of a charge of murder. However, the case of O'Leary v The King was very different because the issue at the trial was essentially whether the accused was the person who had committed the act causing death. However, there is little doubt that such evidence may also be relevant to the state of mind of the accused: see, for example, LJW v R (supra) and TWL v R (supra). 18The various authorities to which I have been taken establish that conduct of an accused person prior to the critical event is often admissible in order to establish the state of mind at the time of the critical event. A clear example of that principle can be found in the decision of the New South Wales Court of Criminal Appeal in TWL v R where it was held that the actions of the accused who had said "let's go after people and start fights" was "directly relevant to the existence of the alleged joint criminal enterprise" between various people to assault the victim: per MacFarlan JA at [43]. Similar statements of principle, based around the judgments of the High Court in the case of O'Leary v The Queen are to be found elsewhere: see, for example, R v Adam (1999) 106 A Crim R 510 at [27] and [30] and R v Mostyn (2004) 145 A Crim R 304 at [126]-[124]. 19Various descriptions are given to this kind of evidence when it is not adduced as tendency evidence. Phrases such as "transactional", "context" and "relationship" evidence are sometimes used. However, such labels ought not to distract from the true question of whether the evidence "if it were accepted, could rationally affect (directly or indirectly) the assessment of a fact in issue": s 55 of the Evidence Act. As Callinan J said in Tully v The Queen [2006] HCA 56 230 CLR 234 at [141]: "It is because the terms 'relationship evidence' and 'background evidence' tend, as does so-called 'contextual evidence', to elude definition, or, equally undesirably, to be referred to by judges and prosecutors imprecisely, that the concepts which these terms are assumed to embrace, need careful examination." 20On an analysis of the various cases, it is clear that the admissibility or otherwise of such evidence will depend on the particular facts and circumstances of the case. It is critical to identify with some precision the issues to which the evidence is said to be relevant. As I have said, in O'Leary v The King the issue was more about identification than it was about the state of mind of the accused. However in TWL v R the evidence went directly to state of mind and whether the accused had engaged in a joint criminal enterprise with his co-offenders. 21It is clear from the cases that the question is not a question of timing or immediate temporal proximity. Rather, the question is whether there is a relevant connection between the acts which occurred earlier (or indeed later) and the issue to which those acts are directed. Another way that the Crown put the argument is that the actions of the accused (and his state of mind) cannot be sensibly understood if the jury is not made aware of the earlier assault. 22In the present case there is important evidence that comes from police officers who saw and spoke with the accused between the time of the incident involving Teegan Jones (10:30 pm) and the time of the alleged murder (1:20 am). Mr Wilson relies heavily on that evidence to argue that there is a demonstrated break in the chronology of events, such that the Crown's reliance on the evidence as going to the accused's state of mind must fail. 23As I have said, Mr Wilson goes so far as to suggest that the evidence is not relevant. The test for relevance is set out in section 55 of the Evidence Act (see above at [19]). I am of the view that the evidence is relevant. Even allowing for the passage of 2 ½ hours between the time of the assault on Teegan Jones and the time of the stabbing incident, it seems to me that the evidence of the accused's behaviour 2 ½ hours earlier is capable of affecting an assessment of what was in his mind when Mr Jones was stabbed. I am of that opinion, even though the evidence of the police officers shows that at around 12:30 pm and 1:10 am the accused was in good spirits and appeared to be calm. 24However I do accept the submission that the evidence of the police officers reduces - and reduces to a significant degree - the probative force of the evidence. As I have said the incident involving Teegan Jones occurred at around 10:30 pm. The learned Crown Prosecutor very fairly conceded in argument that there is a "dearth" of evidence as to the accused's behaviour between 10:30pm and 12:30 am-1:00 am when he had a friendly conversation with the police officers. 25In terms of the danger of unfair prejudice, Mr Wilson points to the fact that the incident involving Teegan Jones was an incident which took place in the context of a domestic relationship and the introduction of the evidence may require the accused to explore the nature of that relationship in circumstances where such exploration may be prejudicial because there are other matters currently before the Local Court. I gather that these are other allegations of domestic violence. Mr Wilson also points to the fact that Teegan Jones, who is the sister of the deceased and the domestic partner of the accused, is to be the critical witness in the Crown case as to intention in the murder charge. He submits that the jury will be distracted from a proper analysis of her evidence, and the evidence of various other witnesses to the fatal incident, if the jury is at the same time, considering the question of whether she herself was the victim of an assault. That is a submission which goes more to the question of severance than it does to the question of admissibility but it does provide some colour to the suggestion of unfair prejudice. 26More fundamental to the question of prejudice is the concern that, in spite of direction, the jury will use the evidence to engage in some form of tendency reasoning. In HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; 235 CLR 334, Hayne J said at [113]: "The foundation for the rule excluding evidence of other discreditable acts of an accused is that, despite judicial instruction to the contrary, there is a risk that the evidence will be used by the jury in ways that give undue weight to the other acts that are proved." His Honour went on at [116]: "Secondly, and more fundamentally, the foundation of the general exclusionary rule is that use of the evidence cannot be segregated in the manner suggested. The very risk to which the general rule of exclusion is directed is the risk that the evidence will be misused. Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should." 27In the same case, Gleeson CJ said at [12]: "The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect. It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against." 28There are many similar statements of principle. Mr Wilson relies, for example, on the statement in Phillips v The Queen (2006) 225 CLR 303 (at [79] that: "Criminal trials in this country are ordinarily focused with high particularity on specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct". He also points me to cases such as Sutton v The Queen (1984) 152 CLR 528 and De Jesus v The Queen (1986) 61 ALJR 1. 29Another example is found in Tully v The Queen (supra) where Callinan J said (at [146]): "It is important, in my opinion, that both parties and trial judges pay close attention to any attempt to tender evidence of uncharged acts. If it truly is, as I think it was in Gipp and may have been, if anything, here, propensity evidence, and it is tendered without adverting to its true character as such, the prosecution may obtain the benefit of its prejudicial effect without the disadvantage of the strictures that apply to evidence of that kind." 30I accept that the evidence sought to be led has a legitimate use beyond mere tendency or propensity reasoning. But the danger that the evidence will be misused is a real one. 31I have concluded, taking all of these matters into account, that the evidence is relevant but that its probative value is significantly reduced by the evidence of the police officers who spoke to the accused in the 2 ½ hours or so between the relevant events. This is not a case like O'Leary v The King where various acts of violence were relied upon to prove the identity of the culprit. In O'Leary v The King there was evidence of three occasions when the accused had acted violently in the course of what was described as "a drunken orgy". The other participants in that drunken orgy had not behaved violently whereas the accused had done so. 32As I have said, the absence of any evidence as to the accused's conduct between the time of the alleged assault on Teegan Jones and the time that the police spoke to the accused makes it difficult to determine that his conduct was continually aggressive throughout that period of time. In fact it is impossible to come to that conclusion. While I accept the learned Crown Prosecutor's submission that admissibility does not turn on there being a continued and unbroken course of conduct, the evidence of the police officers provides a critical gap in the evidence as to the accused's conduct, disposition and state of mind. 33Having come to the conclusion that the evidence is relevant but that its probative value is not as great as it might otherwise be, it is necessary to weigh the probative value of the evidence against the risk of unfair prejudice. Apart from the inherent risk of unfair prejudice involved in trying together allegations of violence which are independent of each other, there is also the risk that the jury will engage in tendency reasoning in spite of the Crown Prosecutor specifically eschewing any reliance on the evidence to establish a tendency towards violence and the most careful directions in the course of the trial and summing up. While it is generally accepted that juries will follow the directions given by trial judges, the existence of discretions to exclude evidence such as this and the power of the courts to order separate trials shows that that principle cannot be taken too far. 34I also accept Mr Wilson's submission that, in attempting to rebut the suggestion that his state of mind was aggressive for the period from 10:30 pm until 1:10 am, the accused may be forced to provide some explanation for his relationship with Teegan Jones which will disclose that it was other than a loving, caring and peaceful relationship. In that sense the kind of prejudice which arises is relevantly "unfair" for the purposes of the application of s 137 of the Evidence Act. 35I have reached the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Having come to that conclusion, the provision in s 137 is mandatory. It provides that I "must refuse to admit the evidence adduced by the prosecutor". 36Accordingly I find that the evidence of the assault on Teegan Jones and the surrounding acts of violence is inadmissible. Having reached that conclusion it follows that I must make an order severing count (2) from the indictment. I propose to do so. 37I turn then to the issue surrounding count (3) in the indictment. There is no doubt that the evidence of count (3) is admissible in the trial. In fact it forms part of what once was called the res gestae. Mr Wilson concedes as much. He attempted to articulate various bases upon which the conduct of the trial would be unfair if the charge of assault occasioning actual bodily harm of the child Caylan Jones remained on the indictment. This included the fact that the charges themselves were very different in terms of their seriousness: cf R v Barton [2004] NSWCCA 229. It also included the fact that the victim of count (3), be an 11 year old child, would cause prejudice to the accused. 38To determine this question I must apply the provision of s 21 of the Criminal Procedure Act and consider whether the accused will be "prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the indictment". 39The Crown Prosecutor very fairly raised the fact that he would be relying on "recklessness" to prove the mens rea for the assault charge in count (3). He asked me to consider whether the different mental elements may give rise to prejudice. That could be a matter of concern if it were to be contended by the Crown that the mens rea in respect of count (1) (the murder charge) involved a consideration of reckless indifference to human life. If that were the Crown case, the jury would be confronted with two different definitions of recklessness. However that is not the Crown case. The Crown case is that the accused acted either with an intention to kill or an intention to inflict grievous bodily harm. 40In those circumstances no confusion will arise in the mind of the jury by introducing the concept of recklessness in the context of the assault charge. 41The witnesses to the two offences are the same. The acts giving rise to those two offences took place within seconds of one another. In my view, it is clearly a case that ordinarily would be determined by way of a joint trial. I am unable to discern any relevant embarrassment or prejudice in the conduct of the accused's defence to either the assault charge or the murder charge. Accordingly I can see no basis upon which I could conclude that s 21 of the Criminal Procedure Act requires an order to sever count (3). 42For those reasons, I make the following orders: - (1)Count (2) is to be severed from the indictment and there is to be a separate trial in respect of that count. (2)The evidence of the events giving rise to the allegation in count (2) is excluded. (3)The application for severance of count (3) is refused. ********** 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 July 2014