AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 5 April 2012

R v White & ors (No 3)

[2012] NSWSC 467

Assault & violenceHomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW EVIDENCE TENDENCY AND COINCIDENCE NO SIGNIFICANT PROBATIVE VALUE

Citation: R v White & ors (No 3) [2012] NSWSC 467
Court: Supreme Court of New South Wales
Date: 5 April 2012
Judge: R A Hulme J

Background

Three accused were being tried together. The first accused faced a charge of murder arising from events at a caravan park near Tweed Heads in December 2008. The second and third accused faced charges of being accessories after the fact to that murder, with the third accused also facing a robbery-related charge.

The second accused's defence was duress: he claimed the first accused had threatened him with death or serious injury, compelling him to assist in disposing of the deceased's vehicle and body. That assistance formed the basis of the Crown's case against him as an accessory after the fact.

During the trial, counsel for the second accused sought to cross-examine a Crown witness, and potentially other witnesses, about the first accused's prior conduct and behaviour. The purpose was to establish a tendency in the first accused to threaten people with violence when enlisting their assistance in criminal activity.

  • Whether the proposed evidence met the requirements for admissibility as tendency or coincidence evidence under the Evidence Act 1995
  • Whether the proposed evidence had "significant probative value" in establishing that the first accused had a tendency to threaten associates with violence when seeking their assistance
  • Whether procedural requirements under s 97(1)(a) of the Evidence Act 1995 (the notice requirement) had been complied with, and the consequences of non-compliance

Decision

Hulme J first noted that counsel for the second accused had failed entirely to give the required statutory notice under s 97(1)(a) of the Evidence Act 1995 before seeking to adduce tendency evidence. This oversight was only identified during the course of the trial, and only because another party raised a concern. His Honour observed that the notice requirement serves a genuine purpose: it enables orderly consideration of admissibility questions by all parties and, ideally, allows such issues to be resolved before or around the empanelment of the jury, not in the middle of witness examination.

A notice was ultimately prepared and served, and submissions were heard the following day. The notice identified the alleged tendency as the first accused's propensity to secure the assistance of friends or colleagues in post-offence conduct by threatening them with physical violence, including death or serious injury.

His Honour reviewed each item of proposed evidence referred to in the notice, both individually and collectively. He found the material to be, in many respects, imprecise, general, or entirely unrelated to the situation the second accused claimed to have experienced. The most significant item relied upon concerned a threat of violent retribution in response to a witness cooperating with police, a circumstance so different from the alleged duress that it could not support the tendency asserted. Other items reflected a witness's subjective state of mind, general descriptions of the first accused as volatile, or references to the violent character of associates, none of which advanced the tendency claim.

His Honour concluded that the evidence did not have "significant probative value" in relation to the fact in issue, namely whether there was a reasonable possibility that the first accused had threatened the second accused with death or serious injury. On that basis, the evidence was inadmissible.

Orders Made

• The evidence was ruled inadmissible.

Key Takeaways

  • Under s 97(1)(a) of the Evidence Act 1995, tendency evidence is inadmissible unless the party seeking to adduce it has given reasonable notice. The Supreme Court emphasised that this requirement is not a procedural formality but serves a substantive purpose in ensuring orderly admissibility determinations, ideally before the jury is empanelled.

  • Tendency evidence must reach the threshold of "significant probative value." General descriptions of a person as volatile, unpredictable, or associated with violent individuals will not satisfy that threshold.

  • Where the proposed tendency evidence relates to conduct materially different from the specific conduct alleged, no sufficient inference of tendency can be drawn. A threat directed at a witness for cooperating with police was found to be too remote from a threat allegedly made to coerce assistance in post-offence conduct.

  • Evidence going only to a witness's subjective state of mind does not establish a tendency in another person, and cannot be repurposed to support a tendency inference about that person's behaviour.

  • The failure to comply with notice requirements before trial created inconvenience during proceedings. Hulme J noted that proper notice would have allowed the admissibility question to be resolved without disruption to the jury's time.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 100

Cases
- DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765
- DSJ v R; NS v R [2012] NSWCCA 9
- R v Fletcher [2005] NSWCCA 388; (2005) 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286
- R v Lockyer (1996) 89 A Crim R 457
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v White & ors (No 1) [2012] NSWSC 465