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Court of Criminal Appeal 23 December 2003

Regina v Li

[2003] NSWCCA 407

Assault & violencePublic order & justice offences
CRIMINAL LAW: APPEAL AGAINST CONVICTION DETAIN FOR ADVANTAGE, COMMON ASSAULT COMPLAINANT FORMER WIFE OF APPELLANT EVIDENCE OF PRIOR INCIDENTS OF VIOLENCE WHETHER ADMISSIBLE AS TENDENCY EVIDENCE WHETHER DIRECTIONS ADEQUATE.

Citation: Regina v Li [2003] NSWCCA 407
Court: New South Wales Court of Criminal Appeal
Date: 23 December 2003
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

The appellant was convicted in the District Court of detaining a person for advantage and common assault, following an incident at a Summer Hill unit on 23 July 2001. The complainant was his estranged former wife, from whom he had been divorced that same month after a marriage of several years. The couple had a young child together.

At trial, the complainant gave evidence about a series of violent incidents during the marriage, including events as far back as 1998. She described a pattern of physical violence and controlling behaviour by the appellant. The Crown sought to rely on this prior conduct evidence both as background relationship evidence and, in respect of the detention charge, as tendency evidence under the Evidence Act 1995.

The appellant appealed against both convictions, challenging the admissibility of the prior incidents evidence and the adequacy of the trial judge's directions to the jury on how that evidence could properly be used.

  • Whether evidence of prior incidents of violence and controlling behaviour was admissible as relationship and background evidence
  • Whether that same evidence was admissible as tendency evidence under Part 3.6 of the Evidence Act 1995, and if so, in relation to which counts
  • Whether the trial judge's directions to the jury adequately distinguished between the use of the evidence as relationship evidence and its use as tendency evidence
  • Whether, if error was established, the proviso under s 6(1) of the Criminal Appeal Act 1912 should nonetheless be applied to dismiss the appeal

Decision

The Court held that all the prior incidents evidence was properly admissible as relationship and background evidence. It depicted a deteriorating marriage marked by violence, controlling conduct, separation, divorce, and the appellant's repeated attempts to revive the relationship. On that basis, the evidence was before the jury regardless of any separate tendency analysis.

On the question of tendency evidence, the Court found the prior conduct was also admissible as tendency evidence in relation to the first count (detention for advantage). The Court clarified that s 97 of the Evidence Act is not confined to evidence showing a tendency to commit a specific offence; it extends to a tendency "to act in a particular way." Here, the evidence of the appellant's propensity for violence and control in stressful marital situations was relevant to whether the complainant was effectively detained on the night in question. In particular, it explained her decision to escape via the balcony rather than leave through the front door past the appellant.

However, the Court expressed reservations about the use of the same tendency evidence in relation to the second count of common assault. In that context, the only available reasoning was the impermissible chain that "he has done it before, so he probably did it again," which could not satisfy the test under s 101(2) requiring that probative value substantially outweigh prejudicial effect.

The critical error identified was in the trial judge's summing up. The directions referred to both tendency and relationship evidence but drew no distinction between the two uses, and failed to specify the particular tendency the jury was permitted to reason about in relation to the first count. The Court found that this lack of specificity meant the jury may have used the evidence in an impermissible way. The Crown's argument that the proviso should apply was rejected, as the case turned substantially on the complainant's evidence and the errors raised serious questions about the fairness of the trial.

Orders Made

  • Appeal allowed
  • Convictions on the first and second counts quashed
  • New trial ordered

Key Takeaways

  • Under s 97 of the Evidence Act 1995, tendency evidence need not demonstrate a tendency to commit the specific offence charged; evidence showing a tendency "to act in a particular way" is sufficient, provided it meets the admissibility requirements in Part 3.6.
  • The Court of Criminal Appeal confirmed that the test for admissibility of tendency evidence is governed by the Evidence Act, not the common law test in Pfenning v The Queen (1995) 182 CLR 461, following R v Ellis [2003] NSWCCA 319.
  • Where prior conduct evidence is admitted for multiple purposes, clear and specific jury directions are required that distinguish between its use as relationship evidence and its use as tendency evidence, and that explain precisely how each use applies to each count.
  • Tendency evidence showing a propensity for violence in a relationship context may be admissible to help explain a complainant's behaviour and thereby support an element of a charge, even where that evidence does not directly show a tendency to commit the particular offence.
  • A failure to direct the jury with the necessary specificity about the permitted and impermissible uses of tendency evidence is a ground for overturning a conviction, and the proviso will not apply where the erroneously used evidence formed a significant part of the Crown case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 95, 97, 101
- Crimes Act 1900 (NSW), ss 61, 90A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v AH (1997) 42 NSWLR 702
- R v Ellis [2003] NSWCCA 319
- Festa v The Queen (2001) 208 CLR 593
- Pfenning v The Queen (1995) 182 CLR 461