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Supreme Court 10 October 2013

R v FEW

[2013] NSWSC 1486

Homicide
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE

Citation: R v FEW [2013] NSWSC 1486
Court: Supreme Court of New South Wales
Date: 10 October 2013
Judge: Fullerton J

Background

The accused stood trial on a charge of murdering a 2½-year-old child on 1 April 2011. The trial proceeded before Fullerton J sitting without a jury. The cause of death was not in dispute: the child died from a fracture to the base of the skull with associated bilateral subdural haemorrhage and brain swelling, sustained within a narrow 20-minute window on the morning of 30 March 2011.

The central contest was whether that fatal head injury was deliberately inflicted by the accused or was the result of an accidental fall from a pram at a maximum height of 1.5 metres. Post-mortem examination also revealed extensive bruising across multiple areas of the child's body, which the Crown relied upon as additional evidence that the injuries were deliberately inflicted.

The accused contended that, to the extent any injuries were deliberately caused, the child's mother or her boyfriend may have been responsible. The child had been in the mother's care on multiple occasions during the week before her death. This factual dispute about the source of the secondary bruising gave rise to the evidentiary question the court resolved in this judgment.

  • Whether evidence of the child's mother's past violent behaviour was admissible as tendency evidence under s 97 of the Evidence Act 1995
  • Whether that evidence met the threshold test of relevance under s 55 of the Evidence Act 1995
  • Whether the evidence had sufficient probative significance to justify admission as tendency evidence, beyond mere general relevance

Decision

The accused served a tendency notice under s 97 of the Evidence Act 1995 seeking to lead evidence that the child's mother had a tendency to behave violently, particularly when frustrated or feeling out of control. Three categories of past conduct were particularised: incidents in 2008 in which the mother punched walls and a cupboard door after arguments; a January 2011 incident in which she punched her own wheelchair-bound mother in the face; and incidents in February 2011 in which she forcibly restrained the deceased child in a pram, including by pushing the child's face backwards into it.

Fullerton J accepted that the identity of the person who inflicted the secondary injuries was a fact in issue in the trial. The Crown contended the tendency relied upon was expressed too broadly, and that the incidents were too minor to meet either the relevance threshold under s 55 or the heightened significance requirement in s 97(1)(b). The Crown argued the pram incident, at its highest, demonstrated only firm or strict discipline rather than a tendency to violence.

Her Honour was satisfied that the evidence did meet the threshold test of relevance under s 55. After making a reasoned evaluation of the likely significance the evidence would carry in determining when and by whose hand the secondary injuries were inflicted, she also held that the evidence particularised in paragraphs (b) and (c) of the tendency notice was admissible under s 97. That is, the January 2011 incident involving the grandmother and the February 2011 incidents involving the child in the pram crossed the admissibility threshold.

The evidence in paragraph (a), concerning the 2008 wall-punching incidents, did not satisfy the requirements for admission as tendency evidence and was excluded.

Orders Made

• Evidence particularised in paragraphs 10(b) and 10(c) is admissible as tendency evidence under s 97 of the Evidence Act
• Evidence at 10(a) does not qualify for admission as tendency evidence under s 97 of the Evidence Act

Key Takeaways

  • Tendency evidence adduced by an accused to implicate a third party is subject to the same statutory framework under s 97 of the Evidence Act 1995 as tendency evidence led by the Crown, including both the relevance threshold in s 55 and the heightened significance requirement in s 97(1)(b).
  • Where the identity of the person who inflicted injuries on a deceased victim is genuinely in contest, that question constitutes a fact in issue capable of supporting the admission of tendency evidence directed at an alternative suspect.
  • Not all incidents of past conduct particularised in a tendency notice will necessarily qualify for admission: the Supreme Court admitted two of the three categories of conduct and excluded the earliest, which was more remote in time and less probative of the specific tendency alleged.
  • The tendency relied upon by the accused was refined during argument from a general tendency to violence to a tendency to display violent behaviour when frustrated or feeling out of control. The court's assessment of admissibility proceeded on that more precisely framed characterisation.
  • Under s 97(1)(b), it is not sufficient for tendency evidence to be merely relevant; it must carry an additional degree of significance or importance in establishing or discounting proof of a fact in issue, a standard the court applied in distinguishing between the admitted and excluded incidents.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 97
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29

Cases cited: None identified in the judgment text or metadata.