Citation: R v Warren ROSS (No 2) [2013] NSWSC 2042
Court: Supreme Court of New South Wales
Date: 25 October 2013
Judge(s): Rothman J
Background
The accused faced a murder charge arising from the death of his partner's two-year-old daughter. The Crown alleged that he inflicted fatal head injuries on the child during a disciplinary episode involving a shower, a fall, and repeated contact with a closet door. The child died from a cerebral haematoma caused by a head injury.
The accused had been in a relationship with the child's mother for approximately two months at the time of the death. He had been attempting to toilet-train the deceased in the weeks before her death and, according to the Crown case, became increasingly frustrated with her progress.
This preliminary ruling was issued before the jury was empanelled, so that the parties could understand what evidence would be admitted and for what purpose before opening addresses.
Legal Issues
- Whether the Crown's tendency evidence, given under a formal Tendency Notice pursuant to section 97 of the Evidence Act 1995 (NSW), was admissible and capable of being used for tendency purposes against the accused.
- Whether the accused's own tendency evidence (going to the alleged violent conduct of the mother and the deceased's older siblings) was admissible.
- Whether evidence obtained from the deceased's mother in a preliminary conversation with police was inadmissible due to impropriety in the manner of its collection.
Decision
Rothman J ruled that the majority of the Crown's tendency evidence was admissible and capable of being used as tendency evidence under sections 97 and 101 of the Evidence Act 1995. The Crown sought to establish that the accused had a tendency to assault the deceased in the course of purported discipline, using excessive force with hands, feet, or objects, and to do so in a state of heightened anger involving loss of control. The Crown also sought to prove a tendency to intend harm or be reckless as to its effect, and to be indifferent to the child's age and vulnerability.
His Honour found that the tendency evidence admitted carried significant probative value. It was relevant not merely to show a general criminal disposition, but specifically to prove a propensity to behave in a particular manner toward this particular child, at around the relevant time, together with the accused's likely motive and state of mind. The court also found the evidence probative in undermining any innocent explanation, such as accident or the conduct of another person.
Applying the heightened test under section 101, his Honour was satisfied that the probative value of the admitted tendency evidence substantially outweighed its prejudicial effect on the accused, taking into account anticipated jury directions on the limited use of such evidence. Conversely, the evidence of three witnesses (Mr Shelton, Mr Merritt, and Ms Hannan) and one of the deceased's sisters was found not to meet the required tests and was ruled inadmissible for tendency purposes.
On the impropriety application, the court rejected the argument that preliminary conversation evidence from the deceased's mother was inadmissible because of the manner in which it was obtained. The accused's own tendency evidence, relating to the mother's violent tendencies and the sisters' conduct, was allowed without objection under section 97(2)(b).
Orders Made
- The application to exclude the deceased's mother's preliminary conversation evidence on impropriety grounds was dismissed.
- Tendency evidence from eight Crown witnesses (Carly Knight, Suzanne Munro, Jessica Gray, Peter Cooper, Jennifer Cooper, David Wilson, Paul Coker, Wendy Coker), together with evidence from the oldest sister, the mother of the deceased, and Basil Deaves, was ruled admissible and capable of use as tendency evidence.
- Evidence from Michael Shelton, Paul Merritt, Linda Hannan, and the middle sister was ruled not admissible and not capable of use as tendency evidence.
- The rulings applied only to the paragraphs of each statement relied upon for tendency purposes, and only to the tendency objection; all other grounds of objection were left open.
- The accused's tendency evidence was allowed without objection.
Key Takeaways
- Under sections 97 and 101 of the Evidence Act 1995, tendency evidence adduced by the Crown against an accused must satisfy a two-stage test: significant probative value under section 97, and probative value that substantially outweighs prejudicial effect under section 101.
- Tendency evidence that goes specifically to an accused's propensity toward a particular victim, in a particular manner, around the time of the alleged offence, can attract greater probative weight than evidence showing only a general disposition toward criminal conduct.
- The court confirmed that tendency evidence may legitimately serve to undermine innocent explanations for an injury, including accident or the involvement of a third party, where other evidence supports those alternative hypotheses.
- Not all witnesses named in a tendency notice will necessarily satisfy the admissibility threshold; Rothman J excluded three individual witnesses and one sibling witness whose evidence did not meet the required tests.
- Anticipated jury directions on the proper use of tendency evidence are a relevant consideration when weighing prejudicial effect under section 101, as the court noted in reaching its conclusions on that balancing exercise.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 97, 97(2)(b), 101
Cases:
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
- KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226
- R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228