Citation: R v MEYN, John Michael (No 2) [2012] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 21 November 2012
Judge(s): Beech-Jones J
Background
The accused stood charged with the murder of his ex-girlfriend, with whom he had been in a relationship since 2005 and with whom he shared children. The Crown alleged that on 8 April 2011 the accused bashed and strangled the deceased at his parents' garage, where her body was discovered the following morning. The anticipated forensic evidence pointed to head injuries and asphyxiation as the cause of death.
The Crown's case was that the killing followed a disagreement about the deceased's use of an internet dating site, and that the accused had acted out of jealousy and possessiveness. On that narrative, the Crown sought to adduce tendency evidence drawn from three incidents involving the accused's prior intimate relationships during the late 1990s, when the accused was in his late teens and early twenties.
The voir dire (a preliminary hearing to determine the admissibility of evidence before it is placed before a jury) concerned whether those prior incidents could be led as tendency evidence to show that the accused had a propensity to act violently toward, or in the presence of, a person with whom he had or had had an intimate relationship during a disagreement.
Legal Issues
- Whether the three prior incidents had significant probative value in relation to the facts in issue, as required by s 97 of the Evidence Act 1995 (NSW) for tendency evidence to be admissible
- Whether, taken individually or together, the prior incidents were sufficiently similar to the Crown's allegations to justify tendency reasoning
- Whether the distance in time between the prior incidents and the charged offence reduced their probative force to the point where admissibility could not be established
Decision
Beech-Jones J considered each of the three alleged prior incidents in turn. The first, from October 1997, involved the accused attending an ex-girlfriend's home after she ended the relationship, gripping her arm, and later self-harming with a nail gun. The Crown pressed this incident only faintly. The judge found it involved neither serious physical harm to the ex-girlfriend nor the use of force to her neck, and it fell well short of the relevant statutory threshold.
The second incident, from October 1999, involved the accused placing both hands around the neck of a male work colleague of another ex-girlfriend, Mr Whitton, during a violent confrontation outside Penrith Panthers Club. The judge acknowledged that the manual strangulation of Mr Whitton bore superficial similarity to the Crown's allegations. However, Beech-Jones J found that the act appeared to function as a defensive response to Mr Whitton's pursuit of the accused, rather than an expression of jealousy or possessiveness. That distinction undermined the core of the tendency the Crown sought to establish.
The third incident, from late 1999, involved the accused placing one hand around the throat of his then-girlfriend, Ms Luhovy, during an argument. Beech-Jones J found that at the time of that incident the couple had not broken up and there was no suggestion the accused was acting from jealousy or possessiveness. A single incident from 1999, occurring in a materially different relational context, was insufficient by itself to be significantly probative of whether the accused committed the same act against the deceased in 2011, some twelve years later.
Taking the incidents together, the court concluded that the distance in time, the different identity of the victim in the strangulation incident involving Mr Whitton, and the absence of a consistent pattern of jealous or possessive violence all negated a finding of significant probative value. The tendency evidence was accordingly rejected. It was unnecessary to consider whether s 101 of the Evidence Act, which imposes a further balancing test, would have provided an additional basis for exclusion.
Orders Made
• The tender of the tendency evidence is rejected.
Key Takeaways
- Tendency evidence under s 97 of the Evidence Act 1995 (NSW) requires that the evidence have significant probative value in relation to the specific facts in issue, not merely some logical connection to them.
- Fewer prior incidents demand stronger common features between those incidents and the charged conduct to satisfy the statutory threshold; a single prior act was found insufficient here.
- The context and motivation underlying a prior act matters: an alleged strangulation found to be a defensive reaction rather than an expression of jealousy or possessiveness did not support the tendency the Crown sought to establish.
- Distance in time between prior incidents and the charged offence is a relevant factor weighing against significant probative value, particularly where a span of approximately twelve years separated the events.
- The Supreme Court did not need to address the s 101 balancing test (which weighs probative value against the danger of unfair prejudice) once it was satisfied the evidence failed the threshold requirement of significant probative value under s 97.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW): ss 55, 97, 98, 101, 138
Cases
- Bangaru v R [2012] NSWCCA 204
- DSJ v R [2012] NSWCCA 9; 259 FLR 262
- R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Meyn (No 1) [2012] NSWSC 1441
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75