Supreme Court New South Wales Medium Neutral Citation: R v Peterson (No. 3) [2014] NSWSC 1063 Hearing dates: 21 - 25 July 2014 Decision date: 25 July 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: 1I will reject the evidence of Miss Wilson, so far as it is tendered as tendency evidence. 2I will admit that evidence for that purpose, limiting its use to that purpose alone, in accordance with the provisions of s 136 of the Evidence Act. 3Accordingly, my ruling in respect of her evidence is that her evidence at transcript 34 and 35 is admitted as evidence in the hearing. Catchwords: EVIDENCE - admissibility - tendency evidence - whether notice requirement should be dispensed with - whether unfair prejudice to do so Legislation Cited: Evidence Act 1995 (NSW), ss 50, 97, 100 , 135, 137, 192 Cases Cited: Sokolowskyj v R [2014] NSWCCA 55 Category: Interlocutory applications Parties: The Queen (Crown) John Francis Peterson (Accused) Representation: Counsel: C Maxwell QC (Crown) C Smith (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2012/173835 Judgment 1This is a special hearing into whether the accused committed the offence of murdering the deceased, a friend of his. In support of its case, the Crown led the evidence of two witnesses, Toni Wilson and Emma Miller. The defence objected to the admission of their evidence and their evidence was taken on the voir dire. The purpose of the evidence of each witness is different and I will deal with them separately. 2Ms Wilson's evidence is tendered as tendency evidence within s 97 of the Evidence Act 1995 (NSW). Alternatively, the Crown says her evidence is nonetheless relevant for other purposes, a point to which I will return. 3Mr Smith of counsel, who appears for Mr Peterson, has a threshold objection that he has been given no notice as required by the provisions of s 100 and substantial objections that the evidence is so vague as not to establish any tendency at all, has no significant probative value of any tendency; and, this being a proceeding in the nature of a criminal proceeding, that the probative value of the evidence is substantially outweighed by any prejudicial effect it may have on the accused. 4In a nutshell, Ms Wilson, who was a resident of the block of units in which the accused resided, gave evidence (specifically at transcript 83) to the effect that the accused and the deceased had had a few altercations when they were drunk. It is fleshed out further. She also talks about a specific incident which she estimated took place some months before the deceased was killed, in which the deceased and the accused were fighting over whether the remaining contents of a bottle of whiskey belonged to the accused or the deceased. 5I point out that evidence about this specific fight was also given by Mr Birks, although at the time that was introduced it was tendered on the basis of relationship or context evidence. 6I have also heard evidence of other previous incidents, including an incident of pushing and shoving coming from a Mr Reeves and an incident of the deceased being aggressive to the accused given by Mr Sells. In that evidence Mr Sells described the deceased striking the accused. 7The tendency, which the evidence of Ms Wilson establishes, is formulated in this way. First, a tendency to act violently towards the deceased when the accused had been drinking and secondly a tendency to act violently towards the deceased when the accused thought the deceased had wronged him. 8I also interpolate that I have heard evidence in this case from two psychiatrists, and two clinical neuropsychologists, about the nature of the accused's mental incapacity, an aspect of which, it seems to me part of what I will refer to as the underlying condition, a combination of mild to moderate intellectual disability and a frontal lobe disorder, is he exhibits aggression from time to time. 9By reference to the judgment of Hoeben J, CJ at CL law in Sokolowskyj v R [2014] NSWCCA 55 at 39 [to 43] Mr Smith argues that, notwithstanding the careful formulation by the learned senior Crown Prosecutor of the asserted tendency, it has such a high level of generality that the tendency asserted is meaninglessness. In this regard I asked the Crown about what might be general experience of life that many people in our community become aggressive towards people close to them when they are drunk. Learned senior counsel argued that the formulation showed that it was a specific tendency, not generally, to act in a certain way towards a specified person. I think there is some force in that categorisation. 10It seems to me that the formulation of the tendency or tendencies is sufficiently specific to satisfy the requirement of s 97 that the accused had a tendency to act in a particular way. I will leave that to one side for a moment. 11The question initially is; does the evidence of Ms Wilson have significant probative value? The expression "significant probative value" in s 97(1)(b) must be a reference to significant probative value in the hearing generally and not significant probative value to establish the tendency. I did not understand Mr Smith to argue otherwise and, indeed, the question of significant probative value is to be adjudged, I think, according to the language of the statute not only by treating the evidence on its own, but also by having regard to the other evidence adduced by the Crown in the hearing, which I have summarised in a broad way. 12It seems to me that prima facie taking the evidence of Ms Wilson in its context and all of the evidence led by the Crown at the trial that the evidence is capable of having significant probative value as to not only the aggressive tendencies of the accused generally, but of his aggressive tendency at least in certain circumstances towards the deceased. The evidence of the specific incident, as I have referred to, provides an example I think of that matter. 13That brings me to the question of whether the probative value of that evidence substantially outweighs any prejudicial effect on the accused. In this regard I think it is fair to say, although the requirement of notice is a separate condition of the admission of tendency evidence, Mr Smith's argument was to emphasise the absence of notice as an aspect of the prejudicial effect of the evidence on the accused. 14Although the statement has been served as part of the brief, I infer some time ago, and certainly at an appropriate time for the accused and his legal representatives, for all practical purposes, to know which witnesses were likely to be called. What is important is a requirement for notice of the intention to adduce tendency evidence. That is to say to know of the use to which the evidence is put. The first notice of the tendency was given to Mr Smith after the commencement of this hearing before me, on Tuesday afternoon, by which time a deal of lay evidence had already been given. 15Mr Smith points again to the general nature of the evidence of Ms Wilson. As I understand the argument that is put is that the evidence at transcript 83 is so general and non-specific that no sensible investigation into it could have been undertaken, certainly not from this Tuesday, but whenever it was given. To that extent the accused cannot be put in the position, and has not been put in the position, to investigate it and to marshal evidence which might counter it. 16Under s 100 I am empowered to direct that the tendency rule does not apply to particular tendency evidence despite the failure to give notice. It seems to me that such a direction in accordance with the provisions of s 100 is a direction for the purposes of s 192 and it may be relevant to consider, therefore, the specific matters referred to in subsection 2 of that provision in considering whether I should give such a direction over the opposition of the accused. 17There is no suggestion that the admission of the evidence would affect the length of this hearing. Unfairness I have referred to and the way in which it was put, which is a factor which favours not making a direction. The importance of the evidence is a question. It seems to me that the evidence is not very important in this case. It is not very important in this case because Mr Smith has admitted that the accused killed the deceased. As I remarked in argument the question really is, what is the characterisation of that killing? 18I have already encountered other evidence and most importantly the medical evidence in relation to the effect of the accused's condition upon him, which seems to me to be much more persuasive of what behaviour might be expected of a person labouring under his disabilities than the observations of lay persons. The fact that the evidence is not very important is a factor which favours not making a direction. 19The nature of the proceedings, of course, is a special hearing, which I have outlined, and that is to say an inquiry as to whether or not Mr Peterson committed the most serious offence known to our criminal law after the offence of treason. 20Given that, and given his disability, every procedural advantage which he is entitled to should be safeguarded in my judgment. 21I suppose this being a judge alone trial, in theory, I could adjourn the hearing to give the defence an opportunity to look into this tendency evidence to see whether it can be countered by other evidence, but given the nature of the evidence, and its relative generality, even if the tendency is formulated with particularity, I do not think an adjournment would serve any practical purpose from the defence's point of view. 22Given these considerations, I am of the view that I ought not make the direction sought that I dispense with the notice requirement under s 97, and accordingly, I will reject the evidence of Miss Wilson, so far as it is tendered as tendency evidence. 23I think, however, that it is admissible, mostly for another purpose. The passage at page 83- 8 - 21T, is of such generality that it seems to me that Mr Smith is correct: it does not really satisfy the basic test of relevance under s 55 of the Evidence Act, bearing in mind the limited issues which are being litigated in this court, so I reject lines 8 to 21. 24I think the balance of the evidence, especially in relation to the specific incident of the accused and the deceased fighting over the remnants of the bottle of whisky, is relevant as to the nature of their relationship, and I will admit it on that basis. 25The nature of the relationship, it seems to me, still remains relevant in as much as the Crown Prosecutor pointed out the question of intoxication, and accordingly, the behaviour of the accused when intoxicated remains relevant to questions as to self-defence, which has been raised, and also, perhaps more importantly, to substantial impairment which has been raised. I will admit that evidence for that purpose, limiting its use to that purpose alone, in accordance with the provisions of s 136 of the Evidence Act. 26The evidence of Miss Miller has a very narrow scope. She heard an altercation between two men speaking in ordinary Australian accents outside her unit at 9pm on the night the deceased was killed. She lives in a neighbouring block occupied by the accused, where the accused and the deceased were, according to other evidence, that night. 27So far as she could tell, relying upon her hearing only, the voices were talking in the area between the blocks of units, that is to say outside. And to the extent to which there is other evidence that there was an altercation between the accused and the deceased on the night, it largely comes from the history given by the accused to the psychiatrist and neuropsychologists, taken together with statements he made to lay persons on the morning of 31st May 2012. 28It is true that that evidence tends to suggest that any argument between them took place inside the unit of the accused, and not outside, and indeed on one possible view of the evidence, it was prompted by the deceased falling out with the accused and saying he was leaving, the accused in turn remonstrating with him to stay. The content of the conversation overheard by Miss Miller has that flavour about it, even if matters such as the accents she described, in particular, the accused speaks with a definite and obvious speech impediment, and as to whether the conversation was taking place outside, not inside are demonstrably wrong. Essentially, they go to weight, and not to relevance, which of course is the cutting edge of admissibility. 29I am of the view that I should admit Miss Miller's evidence. All questions of admissibility should be determined on the assumption, pro temp that the evidence will be accepted. 30I have not lost sight of the fact that I think Mr Smith argued that s 135, or perhaps 137, was in play here, but it seems to me that, given the other evidence to which I have made reference, Miss Miller's evidence is capable of having probative value, and I do not think it is outweighed by any unfair prejudice, indeed, it is difficult to see what the prejudice might be in respect of her evidence. 31Accordingly, my ruling in respect of her evidence is that her evidence at transcript 34 and 35 is admitted as evidence in the hearing. ********** 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: 08 August 2014