Citation: R v Peterson (No. 3) [2014] NSWSC 1063
Court: Supreme Court of New South Wales
Date: 25 July 2014
Judge(s): Campbell J
Background
The accused faced a special hearing (an inquiry conducted in lieu of a criminal trial, where an accused has been found unfit to be tried) into whether he committed the murder of a friend. The accused's legal representative had conceded that the accused caused the death; the central question was the characterisation of the killing, including the effect of the accused's significant mental and cognitive disabilities on his conduct.
The Crown sought to rely on the evidence of two witnesses, Toni Wilson and Emma Miller. The defence objected to both. Their evidence was taken on the voir dire, meaning the admissibility dispute was resolved outside the presence of any jury, in this case before the judge alone who was conducting the special hearing.
Legal Issues
- Whether the tendency evidence requirement under s 97 of the Evidence Act 1995 (NSW) was satisfied, including whether the Crown had given the requisite notice under s 100
- Whether the court should exercise its discretion under s 100 to dispense with the notice requirement, having regard to the considerations in s 192(2)
- Whether the probative value of Ms Wilson's evidence was significantly outweighed by unfair prejudice to the accused, under ss 135 and 137
- Whether Ms Miller's evidence was admissible, and whether its probative value was outweighed by unfair prejudice
Decision
Issue 1: Tendency evidence and the notice requirement (Ms Wilson)
Campbell J accepted that the Crown's formulation of the tendency, a tendency to act violently towards the deceased when the accused had been drinking and when the accused believed the deceased had wronged him, was sufficiently specific to satisfy s 97. The judge also accepted that the evidence was capable of having significant probative value in the proceeding as a whole, not merely to prove the tendency itself.
However, the notice required by s 100 had not been given until after the hearing had already commenced. The judge treated the discretion to dispense with notice under s 100 as a direction within the meaning of s 192, requiring consideration of the factors in s 192(2). On balance, the judge declined to dispense with the notice requirement. The evidence was characterised as not very important to the overall case, given that the killing itself was admitted and the medical evidence from two psychiatrists and two neuropsychologists was of far greater significance to the characterisation of the accused's conduct. The accused's disability meant every procedural advantage to which he was entitled warranted protection. The evidence was accordingly rejected as tendency evidence.
Issue 2: Alternative basis for admitting Ms Wilson's evidence
The judge found that part of Ms Wilson's evidence was nonetheless admissible for a different, non-tendency purpose, though the precise formulation of that alternative basis was in a portion of the judgment not fully reproduced in the available text. That evidence was admitted under s 136 of the Evidence Act, with its use limited to the alternative purpose only.
Issue 3: Ms Miller's evidence
Ms Miller's evidence was narrower in scope. She had overheard an altercation between two men outside her unit at 9pm on the night the deceased was killed, in an area adjacent to where the accused and the deceased were present that evening. The defence raised arguments under ss 135 and 137, but the judge found that the evidence was capable of having probative value and that any inaccuracies in her account (such as the location of the altercation and her description of the speakers' accents, noting the accused has a significant speech impediment) went to weight rather than admissibility. The evidence was admitted.
Orders Made
- The evidence of Ms Wilson tendered as tendency evidence was rejected.
- Ms Wilson's evidence was admitted for an alternative, limited purpose, with its use restricted under s 136 of the Evidence Act.
- Ms Miller's evidence at transcript pages 34 and 35 was admitted as evidence in the hearing.
Key Takeaways
- Under s 100 of the Evidence Act 1995 (NSW), the discretion to dispense with the tendency notice requirement is to be exercised having regard to the factors in s 192(2), including the importance of the evidence, the nature of the proceedings, and any unfair prejudice to the party opposing admission.
- Where tendency evidence is of limited importance to the issues actually in dispute (here, because the act of killing was conceded and the medical evidence was far more central), that diminished importance weighs against dispensing with the notice requirement.
- A tendency formulated by reference to a specific complainant and specific triggering circumstances can satisfy the particularity requirement in s 97, even where arguments are raised that the tendency is too general to be meaningful.
- Evidence rejected as tendency evidence may still be admissible on an alternative, non-tendency basis, subject to a limiting direction under s 136.
- Inaccuracies or inconsistencies in a witness's account that relate to details of an observed event generally go to the weight of that evidence rather than its relevance or admissibility.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 50, 97, 100 , 135, 137, 192
Cases
- Sokolowskyj v R [2014] NSWCCA 55