Citation: R v Abdallah (No 1) [2015] NSWSC 2156
Court: Supreme Court of New South Wales
Date: 2 February 2015
Judge(s): Adamson J
Background
The accused was charged with murder arising from a fatal stabbing in February 2013. The Crown sought to lead tendency evidence in the form of a statement and committal evidence from the sister of the deceased, who was herself involved in an earlier altercation with the accused.
That earlier altercation occurred several months before the deceased's death. During an argument at the accused's home, the accused took a knife from her kitchen and inflicted a laceration on the deceased's sister, leaving a scar. The accused denied the allegation.
The Crown wished to use this evidence to support its case that the accused had a tendency to arm herself with a knife during arguments and to use it to threaten or injure the other party. This tendency was said to be directly relevant to whether the accused acted aggressively or in self-defence when she stabbed the deceased.
Legal Issues
- Whether the earlier altercation constituted tendency evidence within the meaning of s 97 of the Evidence Act 1995 (NSW)
- Whether that evidence had "significant probative value" as required by s 97(1)(b)
- Whether the probative value of the evidence "substantially outweighs" any prejudicial effect on the accused, as required by s 101(2), such that it could be admitted
Decision
Issue 1: Whether the evidence was tendency evidence with significant probative value
Adamson J was satisfied that the evidence qualified as tendency evidence under s 97 (at [5], [13]). The tendency sought to be established was the accused's inclination to arm herself with a knife during arguments, to threaten participants, and to cause injury, reflecting an intention to intimidate (at [3]). The accused's counsel properly conceded the evidence was relevant and had some probative value, though he argued it lacked the significance required by s 97(1)(b), pointing to the strength of CCTV footage already in evidence (at [6]). Her Honour rejected that submission and found the evidence did have significant probative value, particularly given its potential to assist the jury in determining whether the accused acted aggressively or in self-defence when she stabbed the deceased (at [4], [13]).
Issue 2: Whether probative value substantially outweighed prejudicial effect
Despite finding significant probative value, Adamson J held that the Crown had not satisfied the higher threshold in s 101(2) of the Evidence Act (at [13]). The accused's counsel argued that admitting the evidence would effectively create a trial within a trial over a contested incident, with a real risk the jury would be distracted from the central question of the accused's mental state at the time of the stabbing (at [10]). The Crown submitted that the prejudice contemplated by s 101 is evidence being used for a purpose other than its admitted purpose, relying on the Court of Criminal Appeal's analysis in Dao v R [2011] NSWCCA 63 (at [12]). Her Honour did not accept that the probative value substantially outweighed the prejudicial effect and excluded the evidence on that basis (at [13]).
Orders Made
- Evidence excluded
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence must have "significant probative value" before it can be considered for admission; relevance alone is not sufficient (at [6]).
- Even where tendency evidence clears the s 97 threshold, s 101(2) imposes a further, more demanding requirement: probative value must substantially outweigh any prejudicial effect on the accused (at [9], [13]).
- The Supreme Court here found that a single prior altercation involving a knife, though significantly probative, did not meet the s 101(2) standard where admission risked creating a contested mini-trial that could distract the jury from the central issue (at [10], [13]).
- The Crown's argument, drawn from Dao v R [2011] NSWCCA 63, that "prejudicial effect" in s 101 refers only to evidence being used for an improper purpose did not persuade the court to admit the evidence in this case (at [12]-[13]).
- A concession by defence counsel that evidence is relevant and has some probative value does not foreclose a successful objection at the higher s 101(2) stage (at [6], [13]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 97, 101
Cases
- Dao v R [2011] NSWCCA 63