R v Johnson (No 2) [2019] NSWSC 144

Supreme Court New South Wales

Medium Neutral Citation: R v Johnson (No 2) [2019] NSWSC 144 Hearing dates: 6; 7 February 2019 Date of orders: 07 February 2019 Decision date: 07 February 2019 Jurisdiction: Common Law Before: Campbell J Decision: Under s192A, Evidence Act 1995, rule that the evidence contained in MFI 1 is not admissible under s97(1) of the said Act. Catchwords: EVIDENCE LAW – Tendency evidence significant probative value – differences in tendency evidence submitted – requirement of degree of specificity between tendency events – extended length of time between tendency events not necessarily preclusive of tendency. Legislation Cited: Evidence Act 1995 (NSW), ss 97, 101, 192 Cases Cited: Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92 McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 Category: Procedural and other rulings Parties: Regina (Crown) Douglas Johnson (Accused) Representation: Counsel: G.J. Tabuteau (Crown) E. Ozen SC (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused) File Number(s): 2017/195278

Judgment 1. At his election, and with the consent of the Crown, the accused is standing trial before me without a jury for the murder of David Morrison which is said to have occurred on 29 June 2017 in the suburb of Campsie. The Crown case is that the accused stabbed Mr Morrison with a knife twice about the area of his groin and upper leg resulting in the femoral artery being severed, which caused Mr Morrison's death. 2. On arraignment the accused pleaded not guilty. However, through his counsel he has admitted that he stabbed Mr Morrison, and that this caused his death. The issues that will be litigated at the trial are whether when he stabbed Mr Morrison: the accused had the requisite specific intent of inflicting really serious personal injury or killing Mr Morrison; he was acting in self-defence; or alternatively, whether when he stabbed Mr Morrison he was acting under extreme provocation. It is unnecessary for present purposes to descend into the detail of the "defences". 3. The parties have asked me to rule in advance of the commencement of the trial proper upon the admissibility of certain evidence which the Crown relies upon as tendency evidence under the provisions of s 97 of the Evidence Act 1995 (NSW) ("the Act"). The advance ruling is sought under the provisions of s 192A of the Act. 4. For the purpose of the ruling I have received on the voir dire a folder of material containing statements, a transcript of an ERISP with the accused, and transcripts of evidence taken at a previous trial which are said to be the evidence which satisfies the conditions of admissibility of tendency evidence under s 97. 5. If I am satisfied about the application of s 97, it will also be necessary for me to consider the provisions of s 101 as to whether the probative value of the tendency evidence substantially outweighs any prejudicial effect to the accused.