Citation: R v Jacobs (No 5) [2013] NSWSC 946
Court: Supreme Court of New South Wales
Date: 26 June 2013
Judge: Button J
Background
The accused stood trial for the murder of the deceased by shooting. The defence case was that another man present at the scene, a Crown witness referred to as Mr Price, was the true offender. In support of that case, defence counsel sought to cross-examine Mr Price about his criminal history, including a 2003 manslaughter conviction and other matters involving assaults and possession of knives and ammunition.
The Crown opposed admitting this material as tendency evidence, arguing it went only to Mr Price's credibility. The Crown also indicated it would, if the defence evidence were admitted, seek leave to adduce its own tendency evidence against the accused: specifically, statements allegedly made by the accused to two witnesses connecting him verbally to a firearm and threatening to use it.
Defence counsel applied for an advance ruling under s 192A of the Evidence Act 1995 to resolve the competing applications before the relevant witnesses were called. Button J agreed the ruling was appropriate given the significant strategic questions it raised for the trial.
Legal Issues
- Whether Mr Price's manslaughter conviction and other criminal history constituted admissible tendency evidence under s 97 of the Evidence Act 1995, or merely credibility evidence under s 101A.
- Whether the facts recorded in the sentencing remarks for Mr Price's manslaughter were admissible under s 91 of the Act.
- If the defence tendency evidence were admitted, whether the Crown could then lead credibility evidence about the accused under ss 104(4), 108A and 108B.
- Whether the Crown's proposed tendency evidence about the accused (verbal statements connecting him to a firearm) was admissible under ss 97 and 101 of the Act.
Decision
Tendency evidence about Mr Price. Button J held that evidence of Mr Price's manslaughter conviction was admissible as tendency evidence under ss 55 and 97 of the Evidence Act. The conviction demonstrated a tendency to inflict fatal violence, which the court found had significant probative value in the context of a defence case that Mr Price was the killer. The court rejected the Crown's submission that the material was purely credibility evidence: it was not adduced merely to suggest Mr Price was untruthful, but to suggest he had a propensity for lethal violence.
Facts from the remarks on sentence. The undisputed facts recorded in the sentencing remarks for the manslaughter were admitted to establish the circumstances of that offending. Button J found that s 91, which limits the use of findings from earlier proceedings, did not bar this approach, because the defence was relying on agreed or undisputed facts rather than the sentencing judge's fact-finding conclusions.
No credibility consequences for the accused. Because the tendency evidence relating to Mr Price's manslaughter did not constitute credibility evidence within the meaning of s 101A, admitting it would not open the door for the Crown to attack the accused's credibility under ss 104(4), 108A or 108B.
Crown's tendency evidence about the accused inadmissible. The alleged statements by the accused connecting him verbally to a firearm were found to lack sufficient probative value to satisfy s 97, and in any event failed the more demanding test in s 101, which requires that the probative value of Crown tendency evidence substantially outweigh its prejudicial effect. The statements were described as vague, made at indeterminate times, and insufficiently connected to the specific act of shooting charged. The proposed tendency evidence about the accused was therefore excluded.
Orders Made
• Evidence relating to the manslaughter committed by Mr Price is admissible
• Evidence regarding other matters on Mr Price's criminal record is inadmissible for tendency purposes
• No credibility consequences to the accused if facts relating to the manslaughter committed by Mr Price are placed before the jury
• Evidence of the tendency of the accused to connect himself verbally with firearms is inadmissible
Key Takeaways
- Under ss 55 and 97 of the Evidence Act 1995, evidence of a Crown witness's prior manslaughter can constitute admissible tendency evidence (rather than mere credibility evidence) where the defence case is that the witness, not the accused, committed the charged offence.
- A prior unlawful homicide carries significant probative value as tendency evidence where similarities exist between the circumstances of the prior offending and the defence account of the charged offence, even with the passage of several years between incidents.
- Undisputed or agreed facts recorded in sentencing remarks may be adduced to establish the circumstances of prior offending without necessarily engaging the limitations in s 91 of the Evidence Act.
- Tendency evidence sought to be led by the Crown against an accused faces a higher statutory threshold than equivalent evidence led by the defence: Crown tendency evidence must satisfy the additional test in s 101, requiring that probative value substantially outweigh prejudicial effect.
- Where defence tendency evidence does not qualify as "credibility evidence" under s 101A, its admission does not automatically entitle the Crown to lead credibility material about the accused under ss 104(4), 108A or 108B.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 91, 97, 101, 101A, 104(4), 108A, 108B, 136, 192A
Cases
- R v Cook [2004] NSWCCA 52
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 121