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Supreme Court 30 October 2013

R v Hadchiti

[2013] NSWSC 1726

Homicide
CRIMINAL LAW EVIDENCE TENDENCY TENDENCY NOTICE WHETHER EVIDENCE ADMISSIBLE

Citation: R v Hadchiti [2013] NSWSC 1726
Court: Supreme Court of New South Wales
Date: 30 October 2013
Judge(s): Schmidt J

Background

The accused faced trial in connection with the fatal wounding of a man named Billy Mack. The central factual question was whether the accused had acted in self-defence when inflicting the wound that caused the victim's death.

The defence sought to rely on tendency evidence about the victim under section 97 of the Evidence Act 1995. Specifically, the defence served a tendency notice proposing to adduce evidence that the victim had a tendency to engage in unlawful violent conduct toward females, to use weapons during violent conduct, and to carry a knife on his person.

Two specific incidents remained in dispute between the parties. The first occurred in May 2002, when the victim was involved in a physical altercation with a juvenile during which he elbowed an elderly woman in the head. The second occurred in 2008, when the victim reversed a motor vehicle into a police car during a confrontation with officers.

  • Whether each of the two disputed incidents, individually or together with other tendency evidence, had "significant probative value" within the meaning of section 97(1)(b) of the Evidence Act 1995
  • Whether the 2002 incident involving the elderly woman was admissible as tendency evidence
  • Whether the 2008 vehicle ramming incident was admissible as tendency evidence

Decision

Schmidt J applied the two-step test for significant probative value drawn from R v Fletcher and DSJ v R; NS v R. The first step requires assessing whether the evidence has the capacity to rationally affect the probability of a fact in issue. The second step requires assessing whether the probative value the jury might ascribe to the evidence would be significant, in the sense of being of importance or consequence to establishing those facts.

Applying that test to the 2002 elbow incident, the court found the evidence did not meet the threshold. The elderly woman who was struck declined to press charges and believed the contact was accidental, with the victim having been concerned for her son who was being attended to by ambulance officers. The charges arising from that incident related to offensive manner and resisting police, not assault. Even accepting some probative value, the court concluded it would not be significant and therefore the evidence was inadmissible.

The court reached the opposite conclusion regarding the 2008 incident. The victim, when confronted by police over expired registration plates, reversed his vehicle directly into a police car and then fled through a red light before struggling with officers and requiring capsicum spray to subdue. The court found that the use of a motor vehicle as a weapon, considered together with the other tendency evidence about which there was no dispute between the parties, had the capacity to rationally affect the assessment of whether the accused was acting in self-defence when the fatal wound was inflicted.

On that basis, the 2008 incident was found to have significant probative value and was ruled admissible.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under section 97 of the Evidence Act 1995, tendency evidence about a victim is admissible only where the court is satisfied it will have "significant probative value," assessed through a two-step process: first, capacity to rationally affect a fact in issue; second, whether that effect would be significant rather than merely marginal.
  • The Supreme Court held that an incident in which a victim incidentally struck an elderly bystander during a separate altercation, without any assault charge resulting, lacked the significance required for admissibility as tendency evidence.
  • Where a victim used a motor vehicle as a weapon against police officers in a confrontation, the court found that conduct capable of significant probative value on the question of self-defence, particularly when assessed alongside other undisputed tendency evidence.
  • Tendency evidence about the victim in a homicide trial is not restricted to the accused's own prior interactions with the victim; prior conduct toward third parties can satisfy the tendency rule where it is sufficiently probative of the relevant tendency.
  • In assessing significant probative value, the court must consider each piece of evidence not only in isolation but also in conjunction with other tendency evidence the party intends to adduce.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 97 (the tendency rule), s 100, Dictionary (definition of "probative value")

Cases
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349