Supreme Court New South Wales Medium Neutral Citation: R v Parker [2016] NSWSC 363 Hearing dates: 23 March 2016 Date of orders: 04 April 2016 Decision date: 04 April 2016 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Tendency purpose of evidence rejected. Catchwords: CRIMINAL LAW – evidence – relationship evidence sought to be used for tendency to show aggression and use of knives – use of knife not in issue in the proceedings – prior incidents not clearly aggression by accused – tendency purpose rejected. Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina (Crown) Marianne Parker (Accused) Representation: Counsel: M G Pincott (Crown) E Wilson SC (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW) (Accused) File Number(s): 2013/378140 Publication restriction: Not to be published during the course of the trial. Judgment 1. HIS HONOUR: Marianne Parker, the accused, is charged with the murder of her partner Kenneth Wayne Parker (the deceased) on 16 December 2013. The conduct arises out of a volatile relationship between the accused and the deceased, the circumstances of which relationship is to be adduced in evidence before the Court during the trial before a jury. 2. On 9 March 2016, the Office of the Director of Public Prosecutions served a Tendency Notice and on 21 March 2016 amended the Tendency Notice. Objection is taken by the accused to the use of the evidence to prove a tendency. 3. At this point in time it is worthwhile to note that the deceased has a history of self-harm, including harm with a knife, some of the injuries from which are similar to injuries on the deceased that were not fatal. The fatal wound was a knife wound to the back and it seems that no issue arises in these proceedings that the accused inflicted the fatal injury. At arraignment the accused pleaded guilty to manslaughter and not guilty to murder, which plea the Crown has not accepted in full satisfaction of the indictment. Manslaughter is a statutory alternative available, in New South Wales and elsewhere, to a charge of murder. 4. Thus, the fundamental issue in these proceedings is the state of mind of the accused. The state of mind to which I earlier referred encompasses a number of defences already outlined to the Court, in the absence of the jury. Those defences include the absence of an intention (in part caused by an extraordinary level of intoxication), diminished responsibility and, although not stated, excessive self-defence. 5. While the principles applied in the determination of whether tendency evidence ought be admitted against an accused are well settled in this Court, there are different views expressed by another court and it is often difficult to apply the principles, albeit that the principles themselves are not in dispute and have been stated a number of times by the Court of Criminal Appeal, by which judgments I am bound. 6. The commencement point for the admissibility of evidence must always be the provisions of s 55 and s 56 of the Evidence Act 1995, which render admissible all material that could rationally affect (directly or indirectly) the probability of the existence of a fact in issue in proceedings. 7. To that general statement, there exist exceptions. One of those exceptions is described in the provisions of s 97 of the Evidence Act, which provides that evidence is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind, unless two preconditions are satisfied. I will, for the time being, leave aside the issue of notice. The second and more litigated provision is that the Court must be satisfied "that the evidence will have significant probative value". 8. Further, in the present proceedings, being evidence sought to be utilised for a tendency purpose against an accused in criminal proceedings, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the accused: s 101 of the Evidence Act. 9. With the exception of one instance, with which I will deal separately, each of the circumstances upon which the Crown seeks to rely is a circumstance in which conduct by one or other of the accused or the deceased was involved, there was the use of a knife, alleged assaults and aggression, at least, by the accused. 10. Each of those relationship circumstances is sought also to be used to show the nature of the relationship between the accused and the deceased. That latter use of the material is not tendency evidence, in the strict sense, and there is no issue associated with the provisions of s 97 or s 101 of the Evidence Act relating thereto. 11. The question in relation to the so-called relationship evidence is that it is also sought to be used to show a tendency on the part of the accused in the following manner: 1. to resort to physical violence upon male partners with whom she is involved in a relationship, including the use of a knife to assault – when she became frustrated with them; 2. tendency to be the dominant party in such a relationship; and 3. to become aggressive and threaten violence when intoxicated and engaged in argument, particularly with and towards her partner. 1. As earlier stated, the instances may well be admissible for other reasons other than the tendency purpose. Thus, we are not here concerned with whether evidence is admissible, only whether it can be used to serve as evidence of the tendency of which the Crown has given notice. 2. The difficulty with the tendencies sought to be utilised is the purpose of such tendency. 3. As already stated, there is no substantive issue that the accused utilised a knife. Thus, a tendency to use a knife is not something that is in issue in the proceedings, if its purpose is to show that it is likely that the accused would have used a knife. 4. Secondly, each of the circumstances that amount to relationship evidence are themselves disputed issues. Evidence will be adduced during the course of these proceedings to show a tendency on the part of the deceased to self-harm. Evidence will also be adduced, as already stated, to describe the violent nature of the relationship between the deceased and the accused. 5. Each of the circumstances is moot. Whether, in the course of the earlier occurrences, the accused was so intoxicated as to be unable to form an intent; or was the aggressor; or was seeking to avoid the deceased from engaging in self-harm with a knife; or had diminished capacity are not, without a major mini-trial in relation to each such circumstance, disclosed by the conduct on which the Crown seeks to rely for the tendency. 6. In those circumstances, its probative value is lessened and the danger that the evidence could be used by the jury to prove intent or a state of mind not disclosed by the circumstances themselves is extremely high. In my view the relationship evidence, being the evidence of the violence between the accused and the deceased, while relevant in the sense of s 55 and s 56 of the Evidence Act, does not meet the tests prescribed for criminal proceedings under s 97 and s 101 of the Evidence Act. 7. I have described a slightly different view of the manner in which s 101 of the Evidence Act operates in previous judgments, particularly in the Court of Criminal Appeal, and, if it be necessary so to do, I also make clear that if it were to apply beyond the necessary tests in s 97 and s 101 of the Evidence Act, I would evaluate the evidence to be adduced, for the purpose described in the Tendency Notice, as being of a probative value that is outweighed (while unnecessary, I add substantially outweighed) by the danger of unfair prejudice and inadmissible pursuant to the terms of s 137 of the Evidence Act. 8. The separate aspect with which I must then deal is the evidence relating to a circumstance that occurred in a previous relationship. This circumstance did not involve the use of a knife, but did involve an assault by the accused when drunk. No other context is before the Court for the occurrence in question. In my view, this occurrence, which is a single instance in a previous relationship, is too remote to the issues before the Court in this murder trial and, applying the principles already applied, its probative value is limited while its prejudicial effect is significant and, in my assessment, the probative value of the evidence does not substantially outweigh its prejudicial effect on the accused. This evidence does not meet the test for the use of the material as tendency evidence against the accused in these proceedings. 9. I have not in this judgment ruled on whether the evidence is or would be admissible for another purpose or might otherwise be inadmissible or unable to be used for another purpose pursuant to other provisions of the Evidence Act. It is sufficient to deal with the matter in the way I have and, at this stage, inappropriate to go beyond that. 10. I order that the evidence sought to be adduced for a tendency purpose and subject to the Notice and Amended Notice by the Crown not be admitted or used to prove any one of the three tendencies described. ********** 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 June 2016