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10
Court of Criminal Appeal 12 April 2000

R v Player

[2000] NSWCCA 123

Also reported as (2000) 217 ALR 578
Theft & property
EVIDENCE

Citation: R v Player [2000] NSWCCA 123
Court: Court of Criminal Appeal, New South Wales
Date: 12 April 2000
Judge(s): Priestley JA, Foster AJA, Smart AJ

Background

The appellant was charged with maliciously damaging property, specifically a glass shop window at the Epping Fruit Market, in the early hours of 8 June 1996. The Crown case was circumstantial. Two security guards from the nearby Epping Hotel heard glass breaking and, minutes later, observed the appellant walking near the scene, carrying a Pepsi Cola bottle and in an aggressive, intoxicated state.

The security guards then watched the appellant kick over a bin in Rawson Street, walk to the corner of Bridge and Rawson Streets where he kicked and karate-chopped a "for sale" sign, and then kick another bin around the corner in Bridge Street. This conduct occurred approximately 92 metres from the fruit market and shortly after the window was smashed.

The appellant challenged the admissibility of the evidence relating to the bins and the sign. The matter came before the Court of Criminal Appeal by way of a stated case from Naughton DCJ in the District Court, asking whether the trial judge had erred in admitting that evidence.

  • Whether evidence of the appellant's aggressive conduct (kicking bins and attacking a "for sale" sign) shortly after the alleged offence constituted inadmissible tendency or propensity evidence under section 97 of the Evidence Act 1995
  • Whether that evidence was instead admissible as going to the appellant's state of mind at the time of the alleged offence
  • Whether the conduct formed part of the same connected series of events as the alleged offence, on the principle established in O'Leary v The King (1946) 73 CLR 566

Decision

The Court of Criminal Appeal held that the trial judge did not err in admitting the evidence. The conduct in question was not propensity or tendency evidence within the meaning of section 97 of the Evidence Act 1995. The court drew on its earlier decision in R v Adam [1999] NSWCCA 189, which confirmed that evidence of an accused's conduct either forming part of a connected series of events or evincing a particular state of mind at a time proximate to the alleged offence does not constitute evidence of disposition or propensity.

The court accepted two complementary bases for admission. First, the appellant's aggressive conduct towards the sign and bins occurred so close in time and place to the smashing of the window that it permitted an inference that the same state of mind, namely drunken aggression, continued throughout. The Crown needed to establish that the appellant acted maliciously in breaking the window, and this evidence bore directly on that mental element.

Second, the court accepted that all of the conduct formed part of the same connected transaction: a drunken, aggressive and destructive rampage in the early hours of Saturday morning. Without the challenged evidence, the commission of the charged offence could not be properly understood or placed in context. On either analysis, the evidence was admissible.

Because the evidence was not tendency evidence, the requirement under section 97(1)(a) for the Crown to give reasonable written notice did not apply. The stated question was answered "no," and the case was remitted to Naughton DCJ accordingly.

Orders Made

  • The stated case question was answered "no" (no error of law was established in admitting the challenged evidence)
  • The case was remitted to Naughton DCJ in the District Court with that answer

Key Takeaways

  • Evidence of an accused's conduct that forms part of the same connected series of events as the alleged offence, or that demonstrates the accused's state of mind at a time closely proximate to the offence, is not tendency evidence and does not engage the notice requirements in section 97 of the Evidence Act 1995.
  • Under the principle in O'Leary v The King, confirmed in R v Adam, courts may admit such evidence where it is necessary to place the charged conduct in its proper context and render it intelligible.
  • Subsequent conduct by an accused can be used to infer a state of mind that existed at an earlier time, provided the connection in time and place is sufficiently close to support that inference.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the characterisation of evidence as "propensity evidence" turns on its true nature and purpose, not merely on the fact that it concerns conduct beyond the charged act itself.
  • No direction warning against tendency reasoning is necessarily required where evidence is admitted on the O'Leary principle, though the court noted that a particular case might call for some form of direction depending on its circumstances.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 97 (the tendency rule)
- Crimes Act 1900 (NSW), s 195(a) (malicious damage to property)

Cases:
- Hoch v The Queen (1988) 165 CLR 292
- Pfennig v The Queen (1994-95) 182 CLR 461
- R v Beserick (1993) 30 NSWLR 510
- O'Leary v The King (1946) 73 CLR 566
- R v Adam [1999] NSWCCA 189