Supreme Court New South Wales Medium Neutral Citation: R v Johnson (No 6) [2019] NSWSC 147 Hearing dates: 6; 7; 8; 11; 12; 13 February 2019 Date of orders: 13 February 2019 Decision date: 13 February 2019 Jurisdiction: Common Law Before: Campbell J Decision: Evidence as summarised in MFI 20 is rejected Catchwords: STATUTORY INTERPRETATION – Interpretation Act 1987 NSW, s 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament EVIDENCE LAW – Hearsay evidence, evidence not falling into one of the established hearsay exceptions Legislation Cited: Evidence Act 1995 (NSW), ss 35, 91, 92, 93, 95, 137 Interpretation Act 1987 (NSW), s 31 Cases Cited: Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92 McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13 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. I am ruling on the admissibility of proposed evidence which is summarised in a document that the learned Crown Prosecutor has handed up which has been marked MFI 20. 2. The evidence is described as proposed evidence of knowledge on the part of the accused, Mr Johnson. The particular knowledge sought to be introduced by this evidence is knowledge that Mr Johnson is said to have acquired as to the harmful potential of stabbing a person with a knife; that is to say, that he had specific knowledge, when he fatally stabbed Mr Morrison, that stabbing a person with a knife is capable of resulting in death or really serious injury. 3. It is said that Mr Morrison acquired that specific knowledge from his previous experience, first on 5 August 1992 when he stabbed Mr Warren Hourigan in the neck; and secondly, on 15 June 1993 when he stabbed Mr Peter Miller a number of times, specifically to the upper back which resulted in Mr Miller's death. 4. It is important to point out that Mr Johnson pleaded guilty to a serious offence in relation to Mr Hourigan's injuries; and secondly, that he was convicted of the murder of Mr Miller. He was sentenced for both matters by Wood J in this Court on 3 June 1994. 5. It is also important to record that prior to the commencement of the trial proper, I made a ruling under s 192A of the Evidence Act 1995 (NSW) that a body of evidence, including the evidence relied upon for present purposes, was not admissible under s 97 of the Evidence Act as tendency evidence. 6. And, by way of introduction, it is also important to record that the Crown does not propound this evidence as tendency evidence; acknowledges that it cannot be used as such; nor does it rely in any way upon the fact of the convictions for that earlier offending. It simply seeks to lead evidence a) of what happened; and b) of Mr Johnson's knowledge of the consequences of his actions. 7. The argument on behalf of the Crown is that evidence of knowledge of the harmful consequences of stabbing people with a knife extending to death, or grievous bodily harm, is a fact which, together with other evidence in the case, is capable of proving that at the time Mr Johnson stabbed Mr Morrison, he had the actual specific intention of either killing him or causing him really serious bodily injury. 8. Mr Ozen SC for Mr Johnson objects to the evidence on a number of bases. I interpolate that given that this body of material has been in existence for some time, and that both counsel have had access to it, the Crown Prosecutor had hoped that if I ruled that the facts sought to be proved were relevant, that the material could be introduced by asking a series of leading questions of the Officer in Charge of the investigation into Mr Morrison's death, Detective Senior Constable Trappmann, who is still in evidence before me. It seems, however, that this means of proof will not be available because Mr Ozen's objections extend to the means by which these facts are sought to be proved. He contends that the proffered means of proof are not admissible because each of them offends one or other exclusionary rule established by the Evidence Act. 9. Mr Ozen submits that the matter sought to be established that knives can cause very serious injury or death, and that the accused knew that, could not seriously be gainsaid. He submits that all adults in our community would be possessed of that knowledge as part of the common knowledge that people of ordinary intelligence acquire through their ordinary experience of life. Learned Senior Counsel instructed me in the basics of logic, and that the nature of knowledge illustrates the argument. 10. It was also argued that if those threshold objections were overcome, the evidence ran into the difficulty of my previous ruling. The thrust of this argument was that if relevant, it was only relevant as tendency evidence, and I had already ruled that the evidence did not fit through the narrow gateway for the admissibility of such evidence. 11. Finally, Mr Ozen argued that were it otherwise admissible, it should be excluded in the application of the evaluative process required by s 137. 12. The learned Crown Prosecutor joined issue on each ground, arguing that s 91 of the Evidence Act in its terms did not apply. So far as the judgment of Wood J was concerned, he was not seeking to prove facts that were in issue in those proceedings but rather a fact in issue in the current proceedings. The accused's state of knowledge was a relevant fact, and it had particular relevance in this case because of the admission into evidence of the so-called "gaol calls" which were played in evidence last night and this morning. From those calls it is apparent that the accused said to a number of different people on a number of separate occasions that he did not mean to kill Mr Morrison. To make good that proposition he pointed out that he stabbed Mr Morrison in the leg rather than in the heart, abdomen, or where a vital organ may well be severely injured. 13. The Crown pointed out that there was no reason why evidence that had been rejected as tendency evidence should not be admitted for another legitimate purpose, and s 95 of the Evidence Act did not prohibit its use for the purpose to which the Crown wished to put the evidence. 14. Although one may question whether the facts of the previous matters involving Mr Hourigan and Mr Miller could seriously be disputed by the accused, one does need to bear in mind that at common law, and under the Evidence Act, the fact of a previous conviction for a similar crime is not admissible per se to prove an accused person's guilt of the charge he is currently facing. 15. Part 3.5 of the Evidence Act, which contains s 91, has the heading, 'Evidence of Judgments and Convictions'. That heading is part of the Act: s 35(1) Interpretation Act 1987 (NSW). Section 91 has the heading, "Exclusions of Evidence of Judgments and convictions". The heading of the section itself is not part of the Act: s 35(2) Interpretation Act. However, it is a useful label to use when approaching the section. It is interesting that the operative part of s 91 does not refer to convictions but rather refers to evidence of the decision or a finding of fact in an Australian proceeding, which it would of course include a conviction. Section 91 excludes evidence of a decision or finding of fact to prove a fact in issue in earlier proceedings. There are established exceptions under s 92, and savings under s 93. None of the matters contained in those sections applies in this case. There is also a limited exception to the credibility rule under s 106 of the Evidence Act which permits proof of convictions in certain circumstances which do not apply here. 16. I am of the view that the objection taken to the admission Wood J's judgment is well taken. Although s 91 excludes receiving evidence of a finding of fact in another Australian proceedings to prove the existence of a fact that was an issue in those proceedings, the fact that is relevant here is a fact that was in issue there, being the nature of the injury inflicted by Mr Johnson using a knife in each of those two previous cases. And I am satisfied that those facts so far as they depend upon the evidence to be found in the judgment of Wood J are excluded by virtue of s 91 of the Evidence Act. 17. I can deal compendiously with other matters. From each case, expert evidence, in Mr Hourigan's case found in statements prepared as part of the investigation, and in Mr Miller's case, found in the evidence at the trial of the accused, is sought to be led to establish what the consequences were in fact for each of the victims of those crimes. It seems to me that the expert opinions of legally qualified medical practitioners can hardly be sheeted home as knowledge of the accused, even though I am prepared to accept that he was in all probability present when the evidence was given. It seems to me that this evidence is by definition hearsay evidence, and given that on the one hand it was prepared for the purpose of a criminal prosecution, and on the other was evidence in court, does not fall within any of the established exceptions to the hearsay rule, such as, say, the business records exception. 18. That leads me to "admissions" by the accused in the respect of records of interview. I have read those admissions carefully, and it is notable that, as one would expect, they were made on the day of his arrest for each of the crimes; and as it happens, that was the same day as each of the crimes was committed. 19. It cannot be said that he knew the exact mechanism of on the one hand, injury, and on the other hand, death, at that stage. The admissions relied upon in Hourigan's case are that he used a knife to stab him in the neck, and in Mr Miller's case that he intended to kill when he stabbed him with a knife, do not go beyond admissions as to his state of mind at that time. They are not evidence of specific knowledge in relation to the actual consequences for each of those victims at the relevant time leading to, as I have said, injury on the one hand and death on the other. In my judgment, those admissions are not evidence of knowledge of the type which the Crown seeks to prove. 20. It is clear that those primary objections for the admissibility of the evidence and my rulings in relation to them are sufficient to dispose of the matter, and it is probably imprudent to go beyond that. I would simply observe that there are difficulties with admission of this evidence given my previous ruling in relation to tendency. 21. In my own view, it is highly arguable that the admission of the evidence, given my previous ruling, would contravene the provisions of s 95 of the Evidence Act. Without going into detail, my understanding of the effect of s 95 is that it really operates to exclude the rule that evidence once admitted is admitted for all purposes, and may be used as evidence of any fact which it is capable of proving. 22. The purpose of the exclusion of evidence that has been found to be not admissible for other purposes is to be found in Part 3.6 of the Act. The enactment of specific provisions for the reception of tendency evidence involves that narrow gateway for its admission. This is because such evidence may be, a) inherently prejudicial; and b) may be highly susceptible to misuse by fallacious logic. This type of fallacious logic is referred to in the cases of Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92 and McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13. It involves the risk that the decision-maker will reason that because the accused acted in a certain way on previous occasions, he must have acted in the same way on the occasion in question. 23. As I have said, the purpose of s 95 is to bolster the effect of s 97. If a body of evidence fails to pass through the s 97 gateway, it is not to be admitted under the guise of being relevant for some other purpose. And by that means indirectly circumventing the legal effect of s 97. 24. During the course of submissions both counsel adverted to, as I have said, what might be taken to be the common experience of ordinary people that stabbing someone with a knife is an activity which is capable of causing serious injury or death, and I would not regard my ruling in relation to this specific evidence as having any affect upon my ability to consider that matter of common experience in my assessment of the evidence after I have heard all of it and had the benefit of the arguments of learned counsel as to what I should make of it 25. My ruling is that the evidence summarised in MFI 20 is rejected. ********** 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: 22 February 2019