R v Page [2012] NSWDC 307

District Court New South Wales

Medium Neutral Citation: R v Page [2012] NSWDC 307 Decision date: 13 February 2012 Before: Cogswell SC DCJ Decision: Evidence admitted. Catchwords: CRIMINAL LAW - Evidence - admissibility - evidence of conduct by the accused evincing an aggressive and threatening state of mind - threatening behaviour an element of robbery - evidence relevant to state of mind of the accused - evidence of events closely connected in time and place - general discretion to exclude evidence - exclusion of prejudicial evidence - unfair prejudice outweighed by high probative value. Legislation Cited: Evidence Act 1995 (NSW) ss 135, 137. Cases Cited: O'Leary v The King [1946] HCA 44; 73 CLR 566. R v Adam [1999] NSWCCA 189; 106 A Crim R 510. R v Player [2000] NSWCCA 123; 217 ALR 578. Category: Interlocutory applications Parties: Regina (Crown) Harley Page (accused) Representation: Counsel: GW Coles (Crown) S Corish (accused) File Number(s): DC 2011/00026212

Judgment 1This is a robbery case. The prosecution will allege that the accused, Harley Page, robbed Jordan Smith. The prosecution wants to tender some evidence of the accused being involved in something else a short time before the alleged robbery. The defence objects to the tender of that evidence arguing that it is propensity evidence. 2Mr GW Coles, who is appearing as prosecutor in this case, will allege that Harley Page robbed Jordan Smith on 20 January 2011. The prosecution case is that Harley Page engaged in threatening behaviour towards Jordan Smith. 3The alleged robbery occurred near, but not at, a service station. Mr Coles wants to call a witness, John Rei, who was getting petrol at the service station. He witnessed two young men who appeared to be drunk "yelling and swearing at a young male who was on a bike". The cyclist rode off and one of the young men threw a bottle at the cyclist and both started to chase him. Mr Rei then went in to pay for his petrol and as he was coming out a young girl came running towards him asking for help because her boyfriend, she said, had just been beaten up. Mr Coles will claim that Mr Harley Page was responsible for the beating up of the young girl's boyfriend and stealing property from him. 4Mr S Corish, of counsel, who appears for Harley Page, objects to the tender of the evidence from Mr Rei about what happened with the cyclist whom the two young men chased away. Mr Coles relies on the principle of admissibility referred to by the High Court in O'Leary v The King [1946] HCA 44; 73 CLR 566. He also referred me to decisions of the Court of Criminal Appeal of this State in R v Adam [1999] NSWCCA 189; 106 A Crim R 510 and R v Player [2000] NSWCCA 123; 217 ALR 578. 5In Adam at [30] the Court - comprising Spigelman CJ, James and Bell JJ - distinguished between disposition or propensity or inclination evidence of behaviour "in the past" on the one hand and, on the other hand, evidence of behaviour "as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate" to the time of the alleged offence "as to permit an inference that the same state of mind continued up to the time of the offence". 6Smart AJ in Player - with whom Priestley JA and Foster AJA agreed - at [11] - [13] pointed to the relevance of evidence in that case as being evidence of an accused's state of mind or evidence of a transaction. Mr Norrish poses the rhetorical question. CORISH: Corish your Honour. HIS HONOUR: What did I say? CORISH: Mr Norrish is a judge. HIS HONOUR: Yes you are right. 7Mr Corish asked rhetorically how one decides if the events are part of a connected series of events which he says begs the question. He argued that the two events are, in fact, entirely separate. I do not need to find, at this stage, whether the events are part of a single transaction. I am satisfied that the evidence of the behaviour towards the cyclist was evidence of conduct by the accused evincing a particular state of mind, namely aggressiveness and threatening behaviour. 8One of the elements of the charge of robbery, which Mr Harley Page faces, is threatening behaviour or putting fear into the alleged victim. It is clear that the events are reasonably close in time because all that occurred between Mr Rei seeing the cyclist being chased and being approached by the robbery victim's girlfriend, was that he went to pay for his petrol. 9The evidence, in my opinion, is relevant to the state of mind of the accused and is therefore admissible. CORISH: Your Honour pleases. HIS HONOUR: All right I-- CORISH: Your Honour didn't refer to it but I'm sure it was uppermost in your Honour's mind. It wasn't just the facts before the two alleged robberies or the robbery then the assault and robbery was also the second incident-- HIS HONOUR: No I didn't know you objected to that I thought it was just paragraph-- CORISH: That's were I started my - that was where I started my objection your Honour in relation-- HIS HONOUR: I thought it was just paragraphs 4 and 5. CORISH: I started off objecting to what happened afterwards, that is the interaction where Mr Rei arms himself with a pole, that's the second time at the service station. HIS HONOUR: And you're objecting to that evidence on the same grounds? CORISH: On the same grounds. HIS HONOUR: Yes. CORISH: And I'm sure your Honour will rule the same way. HIS HONOUR: I'm sure as well but I should give reasons. CORISH: Your Honour, if your Honour pleases. HIS HONOUR: All right. CORISH: And I would also add, and this was in my submissions when I referred to the unfair prejudice of the evidence, that's also invoking a discretion, in my submission, under 137-- HIS HONOUR: Thank you. CORISH: --and also to the extent that it incorporates a similar discretion under 135, but 137 is specific to criminal procedure. HIS HONOUR: Yes, yes, yes, thank you. 10Mr Corish has indicated that he has always maintained that he objects to evidence of what happened after the young woman approached Mr Rei at the service station, as well as the evidence that I have just ruled on. When the young girl ran up complaining that "these two men behind me have just beaten up my boyfriend", Mr Rei says that the two young men who were following her were the same whom he had seen before. 11What followed then was that one of the men started throwing rocks at Mr Rei, who became fearful for his own safety, as well as the safety of the girl whom he had sent into the service station office. He picked up a steel jack handle and frightened them away. To my mind the evidence of the two young men, or of him seeing the two young men who were chasing the girl, is clearly admissible because I understand that evidence will show that the girl was the girlfriend of the alleged victim. 12To my mind, evidence of the behaviour of one of the men, in the company of the other, which resulted in, as Mr Rei said, feeling that he "was in fear for my safety" is also relevant to the state of mind of that man and would be relevant to the state of mind of the other man who was with him at the time, which is, in turn, relevant to the question of whether or not behaviour consistent with a robbery with threatening behaviour occurred. 13Mr Corish also argues that I should refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice. That objection is made under s 137 of the Evidence Act 1995 (NSW). The probative value, in my opinion, is high. Mr Corish tells me that his client was nearby when the events which were said to encompass a robbery occurred but was not a participant. To my mind evidence from Mr Rei of behaviour before and after which suggests an aggressive state of mind is of high probative value, particularly given the issue which Mr Corish outlines. 14To my mind there is not a danger that there would be any unfair prejudice to the accused. The evidence is obviously prejudicial in the sense that it tends to prove that he had an aggressive state of mind, but it is not unfairly so. It is evidence of events which are closely connected both in time and place. Its relevance is limited, at this stage, to the state of mind of the accused. Given that its relevance is limited in that respect, I do not regard any prejudice - which may be argued to be unfair - as outweighing its high probative value. I would not refuse to admit the evidence under s 137 of the Evidence Act. 15For the same reasons I do not regard the probative value of the evidence as substantially outweighed by any danger that it might be unfairly prejudicial to the accused or misleading or confusing or result in an undue waist of time. Accordingly, I would not exercise my discretion under s 135 of the Evidence Act. 16For those reasons I will, in due course, admit the evidence.