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District Court 13 February 2012

R v Page

[2012] NSWDC 307

Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE ADMISSIBILITY GENERAL DISCRETION TO EXCLUDE EVIDENCE EXCLUSION OF PREJUDICIAL EVIDENCE

Citation: R v Page [2012] NSWDC 307
Court: District Court of New South Wales
Date: 13 February 2012
Judge(s): Cogswell SC DCJ

Background

The accused was charged with robbery, with the prosecution alleging he engaged in threatening behaviour toward the victim and stole property from him. The alleged robbery occurred near a service station on 20 January 2011. A bystander at the service station, who had been filling up his car with petrol, witnessed a sequence of events immediately before and after the alleged robbery took place.

That bystander observed two young men, apparently intoxicated, yelling and swearing at a cyclist, throwing a bottle at him, and chasing him away. Shortly after paying for his petrol, he was approached by a young woman asking for help, saying her boyfriend had just been beaten up. The two men then followed her to the service station, and one of them threw rocks at the bystander, causing him to fear for his own safety and the woman's safety.

The prosecution sought to tender the bystander's evidence of the incidents involving the cyclist and the rock-throwing as relevant background to the robbery charge. The defence objected, arguing it amounted to inadmissible propensity evidence and that, in any event, its prejudicial effect outweighed its probative value.

  • Whether the bystander's evidence of the accused's aggressive conduct toward the cyclist and toward the bystander himself constituted inadmissible propensity evidence, or was instead admissible as evidence of the accused's state of mind at the time of the alleged robbery.
  • Whether the evidence was part of a "connected series of events" within the principle established in O'Leary v The King.
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).
  • Whether the general discretion to exclude evidence under s 135 of the Evidence Act 1995 (NSW) should be exercised.

Decision

Cogswell SC DCJ distinguished between propensity evidence, which relates to an accused's disposition based on past behaviour, and evidence of conduct evincing a particular state of mind at a time sufficiently proximate to the alleged offence to permit an inference that the same state of mind continued up to the time of the offence. This distinction, drawn from the Court of Criminal Appeal's reasoning in R v Adam, was central to the ruling.

His Honour found it unnecessary to determine whether the events constituted a single transaction. It was sufficient that the accused's behaviour toward the cyclist, namely yelling, throwing a bottle, and chasing him, was evidence of an aggressive and threatening state of mind. Because threatening behaviour is an element of the robbery charge, that state of mind was directly relevant. The temporal connection was close: only the time it took the bystander to walk in and pay for his petrol separated the two events.

The judge similarly admitted the evidence of the rock-throwing incident after the young woman approached the bystander. That conduct, which caused the bystander genuine fear, was found to be relevant to the state of mind of both men present, and therefore relevant to whether threatening behaviour consistent with robbery had occurred.

On the discretionary exclusion arguments, his Honour accepted that the evidence was prejudicial in the ordinary sense, meaning it tended to prove the accused had an aggressive state of mind, but held it was not unfairly so. The evidence was closely connected in time and place to the alleged robbery, its relevance was confined to the accused's state of mind, and its high probative value was not outweighed by any danger of unfair prejudice. The court declined to exclude the evidence under either s 137 or s 135.

Orders Made

• Evidence admitted

Key Takeaways

  • The District Court confirmed that evidence of aggressive conduct by an accused is not automatically inadmissible propensity evidence: where the conduct is sufficiently proximate in time and place to the charged offence, it may be admissible as evidence of a particular state of mind continuing to the time of the offence.
  • A court does not need to find that prior conduct formed part of a single transaction before admitting it on this basis; it is enough that the conduct evinces a relevant state of mind at a sufficiently proximate time.
  • Where threatening behaviour or putting a victim in fear is an element of the charge, evidence of aggressive conduct shortly before the alleged offence carries high probative value directed at that specific element.
  • Under s 137 of the Evidence Act 1995 (NSW), evidence that is prejudicial in the ordinary sense, because it tends to prove a damaging fact, is not automatically "unfairly" prejudicial; unfair prejudice must be weighed against probative value, and here the high probative value prevailed.
  • The same result followed under the general discretion in s 135: the court found no substantial danger that the evidence would be unfairly prejudicial, misleading, confusing, or result in undue waste of time.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 135, 137

Cases
- O'Leary v The King [1946] HCA 44; 73 CLR 566
- R v Adam [1999] NSWCCA 189; 106 A Crim R 510
- R v Player [2000] NSWCCA 123; 217 ALR 578