R v Gale [2020] NSWSC 8

Supreme Court New South Wales

Medium Neutral Citation: R v Gale [2020] NSWSC 8 Hearing dates: 22 November 2020 Decision date: 17 January 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) The tendency evidence identified in the Crown's tendency notice dated 24 October 2019 is excluded. (2) The tendency evidence identified in the Crown's tendency notice dated 19 November 2019 is excluded. Catchwords: EVIDENCE – tendency evidence – criminal proceedings – admissibility – whether evidence relevant – whether evidence has significant probative value – whether the probative value substantially outweighs any prejudicial effect it may have – evidence excluded Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 97, 101 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 Category: Procedural rulings Parties: Regina Michael Graham Gale (Accused) Representation: Counsel: M Fox (Crown) P D Young SC; S Fraser (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Morrisons Law Group (Accused) File Number(s): 2018/140832

Judgment 1. HIS HONOUR: These are two applications made by the Crown in a forthcoming murder trial to rely on tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) ("the Act"). 2. The accused, Michael Gale, is charged that he murdered Steven Edwards on Friday 4 May 2018 at Wollongong. An outline of the Crown case, insofar as it is relevant to the applications before me, is to the following effect. At the time of the alleged offence, the accused was aged 49 years and the deceased was aged 39 years. The men had a history of animosity towards each other; the accused apparently believed that the deceased had assaulted an elderly woman in January 2017. On 4 May 2018, both men arrived independently of each other at a methadone clinic in Wollongong, shortly before it was due to open, which was at 6am. The deceased was accompanied by two female friends, Deborah Hunter and Karen Lynn. 3. It is alleged that the accused approached the deceased and said, "This is for hitting the old lady", punched him twice, kicked him to his chest and then stabbed him once in his chest with a knife. The deceased fell to the ground, bleeding profusely. The accused walked off, saying, "Dog. He was just a fucking dog, who cares". Ms Lynn yelled at the accused, "What the fuck did you do that for?" The accused then punched Ms Lynn to the left side of her face and rode off on his pushbike. Police and an ambulance arrived shortly after, but the deceased could not be revived. The autopsy established that the stab wound to the chest pierced the aortic valve, which was the cause of death. Neither the accused nor the deceased were observed to be carrying or producing a knife, and one was not located at the scene. 4. It is anticipated that the evidence will include an account the accused gave to a witness, David Walsh, shortly after the stabbing, to the effect that the deceased and the accused were arguing and pushing and shoving each other. The accused became aware of something being dropped, picked it up and hit the deceased with it. 5. In their written submissions concerning the two applications, the parties agree that the primary issue for trial is whether the accused was acting in self-defence when he stabbed the deceased and, relevant to that issue, whether the accused or the deceased initially possessed the weapon used in the stabbing. The Crown seeks to exclude the proposition that the deceased initially possessed a knife, partly by seeking to rely upon two bodies of tendency evidence.