Supreme Court New South Wales Medium Neutral Citation: R v Warren ROSS (No 2) [2013] NSWSC 2042 Hearing dates: 25 October 2013 Decision date: 25 October 2013 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: 1. Because the Crown no longer presses the evidence, it is unnecessary to state an attitude to the admissibility of the conversation between Ms X and Ms Deaves. 2. As to the remainder of the application to reject evidence on the basis of impropriety in the manner in which it is said to have been obtained, the application is rejected and the evidence of Ms Deaves is, in that respect, admissible. 3. I make the following rulings on the admissibility of the evidence that is subject to the Tendency Notice and its use (see table at [8]) 4. The foregoing is not a reference to all of each of the statements, only to the paragraphs relied on for tendency purposes. 5. Further, the foregoing ruling deals only with the tendency issue and no other ground of objection. 6. Reasons for the foregoing rulings are reserved and will be issued as soon as practicable. Catchwords: CRIMINAL LAW - admissibility of tendency evidence - preliminary ruling - evidence of past abuse of deceased by accused Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Category: Interlocutory applications Parties: Regina (Crown) Warren Ross (Offender) Representation: Counsel: E. Balodis (Crown) S. McNaughton SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Mcwilliams Lawyers (Offender) File Number(s): 2011/310910 Publication restriction: None Judgment 1HIS HONOUR: On 25 October 2013, the Court issued rulings on the admissibility of certain evidence sought to be tendered and used as tendency evidence. There was also an application that certain evidence of the deceased's mother not be admitted because of the manner in which it was obtained. 2The latter application was dismissed and the Court ruled that the evidence of the deceased's mother in a conversation preliminary to statements to police was not inadmissible on the basis of an impropriety in the manner in which it was obtained. No ruling has been made on the admissibility of the evidence otherwise. 3The Crown seeks to tender evidence referred to in the Tendency Notice issued by the Crown under s 97 of the Evidence Act 1995 on 17 October 2013. Tendency evidence is also sought to be adduced by the accused and a notice was produced on 25 October 2013, although reference was made to the evidence prior to the production of the notice. 4The tendency evidence upon which the accused relies relates to the mother of the deceased and seeks, by statements and/or evidence of prior conduct, to prove a tendency to be violent when angry, to show no remorse for her violence and/or to discipline her children, including the deceased, in an excessive way involving violence. It also seeks to adduce tendency evidence in relation to the two older siblings of the deceased proving, by reference to prior conduct, school documents, medical records and prior statements of others, that one or each of the children are violent in the home to her family members and, in the case of the older sibling, violent at school to other children for no apparent reason without, in any of the foregoing, displacing any remorse. 5No objection is taken to the tendency evidence sought to be adduced by the accused. It is allowed, if for no other reason, under the provisions of s 97(2)(b) of the Evidence Act. 6The tendency evidence sought to be adduced (or used in that way) by the Crown was the subject of notice, as earlier stated. It seeks to adduce evidence in relating to the tendency of the accused and, by that evidence, prove that the accused has a tendency to act in a particular way, namely, to assault the deceased ostensibly for the purpose of disciplining her, but far in excess of what was reasonable using his hands or feet or objects; and/or to assault the deceased in a high state of anger associated with a loss of control of himself. 7It also seeks to adduce evidence showing a tendency to have a particular state of mind, namely, to intend that harm be caused to the deceased by his assaults or to be indifferent to the effect such assaults had upon her; and/or to be indifferent to her age and level of understanding when engaged in disciplining her. Objection is taken, by the accused, to the admissibility of the evidence and/or its use for a tendency purpose. 8On 25 October 2013, at the conclusion of the argument and the time taken to read the statements of evidence upon which the Crown seeks to rely, the Court provided a ruling in the following terms: "[1] Because the Crown no longer presses the evidence, it is unnecessary to state an attitude to the admissibility of the conversation between Ms X and Ms Deaves. [2] As to the remainder of the application to reject evidence on the basis of impropriety in the manner in which it is said to have been obtained, the application is rejected and the evidence of Ms Deaves is, in that respect, admissible. [3] I make the following rulings on the admissibility of the evidence that is subject to the Tendency Notice and its use: Carly Knight Admissible Able to be used as tendency evidence Suzanne Munro Admissible Able to be used as tendency evidence Jessica Gray Admissible Able to be used as tendency evidence Peter Cooper Admissible Able to be used as tendency evidence Jennifer Cooper Admissible Able to be used as tendency evidence David Wilson Admissible Able to be used as tendency evidence Paul Coker Admissible Able to be used as tendency evidence Wendy Coker Admissible Able to be used as tendency evidence Michael Shelton Not admissible Not able to be used as tendency evidence Paul Merritt Not admissible Not able to be used as tendency evidence Linda Hannan Not admissible Not able to be used as tendency evidence Oldest sister Admissible Able to be used as tendency evidence Middle sister Not admissible Not able to be used as tendency evidence Mother of diseased Admissible Able to be used as tendency evidence Basil Deaves Admissible Able to be used as tendency evidence [4] The foregoing is not a reference to all of each of the statements, only to the paragraphs relied on for tendency purposes. [5] Further, the foregoing ruling deals only with the tendency issue and no other ground of objection. [6] Reasons for the foregoing rulings are reserved and will be issued as soon as practicable." Facts 9This matter is being dealt with by way of preliminary hearing so that the parties are in a position to understand that which will be admitted (and for what purpose) at the time of the opening to the jury. As a consequence, the facts are not established and the nature of the case of the Crown, including any possible answer to it, has not been developed. The Court has been provided with each of the statements and/or other documents that are the subject of objection and, of course, has a statement of the Crown Case. 10The substantive hearing deals with a charge of murder against the accused, who is alleged to have inflicted fatal injuries on the daughter of his partner. The deceased was 2 years and 8 months old at the time of her death. 11The accused's partner at the time was the deceased's mother. They had been in a relationship for a short time, approximately two months. The deceased had two older sisters at the time of her death, each of whom lived with the mother and the accused. 12The mother moved into property, which later became the alleged crime scene, on or about 29 June 2011. 13The accused apparently had been attempting to toilet train the deceased. The Crown case is that he was frustrated that she would not learn as quickly as he had expected and threatened to leave the deceased's mother on account of the tension in the relationship caused by these events. The accused, apparently, commenced the toilet training regime about four weeks before the deceased's demise. 14At the time that the fatal injuries were occasioned, there were four persons, it seems, in the household other than the deceased. They were the accused; the mother; and the two older sisters. The deceased died of a cerebral haematoma caused by haemorrhaging, in turn occasioned by injury to the head. 15The allegation, largely contained in the evidence of the mother, is that the accused became frustrated during a course of punishment, which I will outline later, took the deceased into the bathroom banged her head on the shower screen or wall of the shower whilst showering the deceased after she had soiled herself. 16After banging her head against the shower, the accused, it is said, held the deceased over the toilet, then dropped her to the floor and kicked (or pushed her with a leg) across the wet wooden floor resulting in her head hitting the door of a closet so hard that she bounced back partially, whereupon the accused repeated the conduct. The deceased, it is said, banged her head twice on the closet door. 17It is not clear, from the medical evidence that I have read, whether the head injury was caused by the banging of the head on the shower wall or the banging of the head on the closet, assuming, in each case, that the events occurred as described by the mother. 18The accused seeks to adduce evidence, to which there is no objection, of the attitude of the mother, earlier described, her lack of remorse, her anger management issues and her history of occasioning greater punishment than was appropriate to her children. The accused also seeks to adduce evidence of the violence of each of the older sisters towards the deceased and other children. Each of those, presumably, is for the purpose of raising the reasonable hypothesis that a person other than the accused may have inflicted the fatal injuries, assuming they were inflicted by somebody and not the result of a fall or accident. 19The Crown seeks to adduce evidence in a number of categories. Those categories can be broadly described. They relate to a number of incidents associated with the treatment or alleged treatment of the deceased by the accused. 20The first incident was an assault, allegedly by the accused, on the deceased approximately one month before the fatal injuries occurred. The assault occurred in the street and, it is said, was witnessed by a number of independent witnesses. 21The evidence of Carly Knight is central to this episode. She describes the incident in graphic terms. The man, later identified as the accused, picked the smaller child off the ground by the arm and struck the child with his other hand so hard that the child flew through the air. The accused then walked past the child (and Ms Knight) yelling while he did. Ms Knight telephoned the police and informed them of what she had seen. The police responded. Ms Knight then went on holidays and on her return saw the picture of the deceased on the front page of the newspaper, contacted the police and identified the deceased as the younger child struck by the accused on the earlier occasion and then identified the accused from a range of photos. 22The incident was also witnessed by Peter and Jennifer Cooper and Suzanne Munro. Mr and Mrs Cooper identified a different date for the incident and there are inconsistencies between the details of the incident seen by Mr and Mrs Cooper, Ms Munro and Ms Knight. Nevertheless, albeit based only on the reading of a statement, the evidence of Ms Knight is probative and the differences in the description of the incident seem to relate more to the usual differences between that which is seen and/or recalled by observers of an incident. 23The foregoing incident was also described by Jessica Gray and the same comments apply thereto. 24The next incident upon which the Crown relies in their Tendency Notice is evidence of punishments meted out by the accused on each of the children and in particular the deceased. That evidence derives from the statements of each of the older sisters, the mother and David Wilson. Each of the mother and two older sisters describe punishments over a number of days, if not weeks, during which time the accused was said to have been seeking to toilet train the deceased. 25The version of events given by the middle daughter (the younger of the two older sisters) relates to punishment meted out to her (as distinct from the deceased) and otherwise is insufficiently detailed to justify the drawing of an inference as to inappropriate or excessive punishment of the deceased that would be more probative than prejudicial. 26Mr Wilson's statement alleges that he attended on the house of the accused in order to buy marijuana from him. In the course of that visit, he witnessed the deceased running laps of the living room and noticed an injured hand. Each event was explained by the accused in terms that might be suggested was evidence of prior conduct that also discloses a prior state of mind from which a jury may draw an inference of an admission, of unusual and excessive punishment of the deceased and of the accused's state of mind while the punishment was being effected at the time that the fatal injuries were inflicted. The statement of the accused is not adduced as an admission but, rather, as part of the conduct to establish state of mind and to evidence repeated conduct of excessive abuse. 27The third incident to which I will refer is an incident described by neighbours of the accused and the mother, being Mr and Mrs Coker. They describe an incident in which, subject to proper identification of the sounds heard and the voices, the accused whipped and/or otherwise abused the deceased. It was not the occasion when the fatal injuries were occasioned. 28The next incident or incidents relate to the evidence of Michael Shelton, Paul Merritt and Linda Hannan. 29Mr Shelton lived with the accused and the mother for a short period of time. He describes the accused's discipline of the deceased in very general terms. This material does not provide sufficient detail to satisfy the Court that its probative value outweighs the prejudice afforded to the accused by it being adduced. . He does however describe yelling and screaming and bruises on the deceased's body, including on her back, upper arms and legs. He testifies to suspicion, but gives no direct evidence, of the detailed mistreatment of the deceased. Mr Shelton testifies to the fact that he spoke to the accused about his mistreatment of the children, but does not recall the details of the conversation. 30Mr Merritt, who lived nearby, assisted the accused with some mechanical work on a motor vehicle. He testifies as to the relationship between the three children and the accused. Part of that evidence relates to the deceased doing laps of the lounge room and to a racist comment relating to the children's skin colour. Mr Merritt testifies to hearing one of the girls screaming loudly (without identifying which girl) one night in the week prior to the death of the deceased, but otherwise does not identify the child. In my view the prejudice is great and the probative value problematic and I do not consider this evidence significantly probative (s 97) of the fatal conduct; nor do I accept that the evidence, if adduced, substantially outweighs its prejudicial effect (s 101). 31Ms Hannan works for a group that provides support for persons with mental health problems and attended meetings with the mother of the deceased. To the extent that the evidence of Ms Hannan is sought to be used against the accused by the drawing of an inference relating to conduct or state of mind, the evidence is extremely general and not especially probative. 32The foregoing summary of evidence is not intended to be a full summary of the evidence to be given or seemingly to be given by each of the witnesses. Nor is it intended to give a summary of all that each of the witnesses might say that is relevant. Rather, it addresses that which the Crown relies upon for the drawing of the inferences on the basis of tendency as to the accused's conduct and state of mind at the time the fatal injuries were inflicted and seeks to have the evidence admitted and used as tendency evidence in the proceedings against the accused. There is some evidence in the foregoing that is not necessarily inconsistent with the innocence of the accused. I do not deal with that evidence or the admissibility of that evidence. The Provisions of the Evidence Act 33As that which this judgment seeks to deal is evidence adduced by the Crown against the accused to be used as tendency evidence, the most relevant provisions of the Evidence Act are ss 55, 97, 101 and the definition of "probative value". 34Section 55 of the Evidence Act prescribes that evidence is relevant in a proceeding if it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". The definition of "probative value" is the "extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In other words, given the not unexpected alignment of the definition of that which is relevant and probative value, probative value is, loosely, the extent or degree to which evidence is relevant. 35The structure of the Evidence Act, as has been pointed out on a number of occasions, is that all relevant evidence is rendered admissible (s 56 of the Evidence Act), unless the Act provides for particular evidence to be inadmissible. 36Section 97 is one of those provisions in the Evidence Act that operates to exclude certain evidence, unless the evidence meets certain criteria. The terms of s 97(1), the sub-section most relevant to these issues, is as follows: " s 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." 37We can ignore, for present purposes, the provision requiring reasonable notice. No issue arises in these proceedings or in this objection as to the notice provisions. 38As can be seen from the foregoing recitation of the provision of s 97(1) of the Evidence Act, evidence of the character, reputation or conduct of a person or a tendency that the person has or had is not admissible to prove that the person has a tendency to act in a particular way or to have a particular state of mind unless the Court is satisfied that the evidence, either by itself or having regard to other evidence, has significant probative value. 39Further to the foregoing condition for admissibility, the provisions of s 101 apply because the evidence is sought to be adduced by the Crown against the accused, and requires that the probative value substantially outweighs its prejudicial effect on the accused. The relevant terms of s 101 are as follows: "s 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." Principles and Consideration 40As may be clear from the foregoing, and is otherwise trite, the first hurdle for the admissibility of any evidence under the tendency rule (or any other provision of the Evidence Act) is that the evidence is relevant. During the course of discussion in a number of cases the term "relevant" is used when discussing the hurdle of "significant probative value". This infelicitous expression is understandable, given the obvious relationship, previously identified, between the definitions of "probative value" and "relevant". Nevertheless, to avoid doubt, I reiterate that evidence cannot be considered under s 97 of the Evidence Act unless it is relevant as described in s 55 of the Evidence Act. 41Once it is appreciated that a proceeding involves an issue as to the state of mind of a particular person or the probability of that person acting in a particular way, material that goes to a history of that state of mind or a history of conduct of like kind would, generally, rationally affect the probability of the occurrence of the state of mind or the existence of the conduct at the relevant time. It may, of course, not prove the state of mind or the conduct. Sometimes, it may prove the opposite. Other times it may affect the probability of the existence of the state of mind or occurrence of the conduct less than significantly. Nevertheless, in the case of evidence that is said, rationally, to be evidence of a tendency, the relevance test is a relatively minor hurdle. 42A significantly greater hurdle is the exclusion of the material as admissible, unless the material is of a significant probative value. The submissions on behalf of the accused, in these proceedings, in part, relied on inconsistencies, reliability and credibility. The Court of Criminal Appeal in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 (Spigelman CJ, Simpson and Adams JJ) considered whether the assessment of probative value under s 97(1)(b) and s 101(2) should take account of issues of credibility and reliability. The Court there held (see [61]-[65]) that such issues should not be taken into account. Nevertheless, there is a necessity to take issues of that kind into account in some circumstances. There are times when the issues of credibility and reliability are so profound that a fact finder would not be capable of relying upon the evidence, if admitted. 43The question that must be answered is whether the material "could rationally affect" the assessment of the probability. If it could rationally affect (and sometimes any effect would not be rational and other times the effect would be so minimal that it could not be relied upon), then it is relevant to the issue to which it goes. As stated by Simpson J in Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [124]: "Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion." 44It is the test in the statute, rather than the common law, to which one must look in dealing with the admissibility (and use) of materials sought to be tendered for the purpose of proving a tendency. Nevertheless, the common law history of the admissibility of such evidence may be used as a guide in the necessary assessment of the material's probative value. As I stated in KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226 at [44], that which is rendered impermissible and inadmissible by s 97 is the chain of reasoning that allows prior conduct to be used to prove relevantly present conduct, not necessarily the fact of the prior conduct itself. In KJR, I said: "[42] The common law may be used as a useful guide to an understanding of the provisions in both ss 97 and 98 but, ultimately, the terms of the statute prevail: R v Ngatikaura [2006] NSWCCA 161 (per Simpson J, with whom I agreed); R v Fletcher [2005] NSWCCA 338 (per Simpson J at [60], with whom McClellan CJ at CL agreed and per Rothman J at [157]); R v Ellis (2003) 144 A Crim R 1 (per Spigelman CJ, with whose reasoning the High Court agreed, see [2004] HCA Trans 488, p 40-41). [43] While there are similarities between the provisions of s 97 and 98 of the Evidence Act, there are distinctions and the purpose of each section is different. [44] The purpose of s 97 of the Evidence Act, dealing with tendency evidence, is to render impermissible a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced, as a matter of law, the evidence is not admissible: DPP v Boardman [1975] AC 421 at 453, per Lord Hailsham. [45] The chain of reasoning that is rendered impermissible by s 97 is that chain of reasoning which: ... shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged ... It was also accepted that in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force ... must clearly transcend the prejudicial effect of mere criminality or propensity." (Pfennig v R (1995) 182 CLR 461 at 480-481 per Mason CJ, Deane and Dawson JJ) (emphasis added)." 45The exercise is not in the strict sense discretionary. It is an evaluative process in which the Court is required to assess whether the obstacles prescribed by s 97 (and, in this case, subsequently in s 101) have been satisfied. 46Tendency evidence is likely to be highly prejudicial: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [104] and it is, fundamentally, for that reason that the provisions s 97 and s 101 have been promulgated. 47In this instance the various incidents of conduct go to essential and important issues in the trial: the identity of the person or persons (if any) inflicting the injuries; and the state of mind of that person. 48The tendency evidence is also adduced for the purpose of disproving any innocent explanation for the infliction of the injuries. In terms of the issues to which the evidence goes, it is highly important. 49Further, in terms of the manner in which the evidence may properly be used, it is being used not merely to show that the accused is likely to engage in criminal conduct, or even criminal conduct of a particular kind. Rather, it is being used to show a propensity to conduct himself in a particular manner towards this particular deceased at or about the time at which the injuries occurred, the motive for that conduct and the state of mind of the accused in engaging in that conduct. 50Further, and importantly, the facts as disclosed, including the tendency it may establish, support evidence otherwise available of the conduct of the accused in a way that affects whether there is a reasonable hypothesis consistent with the injuries occurring by accident or the injuries occurring at the hand of another. 51In each case, the evidence will, if accepted, have significant probative value. 52Moreover, given that it is sought to be adduced by the Crown against an accused and that the additional requirements of s 101 apply, I make clear that notwithstanding the likelihood that evidence of this kind will have a prejudicial effect, the probative value of this evidence substantially outweighs any prejudicial effect it may have on the accused. I take into account, in the latter assessment, the directions that I anticipate will be made in relation to the use of the evidence. 53As is made clear from the terms of the orders I have issued, I do not consider that the evidence of Mr Shelton, Mr Merritt and Ms Hannan, nor the evidence of the younger of the two sister witnesses meet the tests to which I have referred. That latter evidence is neither admissible, under s 97, nor able to be used as tendency evidence pursuant to the terms of s 101 of the Evidence Act. 54As made clear in the ruling that I have recited, I have not dealt with the admissibility of that evidence, here ruled inadmissible as tendency evidence, for any other purpose. Nor have I dealt with any other objection that may be taken to the evidence that I have ruled to be admissible or capable of being used as tendency evidence pursuant to the provisions of s 101 of the Evidence Act. ********** 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: 20 August 2014