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District Court 24 June 2016

R v CJ

[2016] NSWDC 110

Assault & violence
EVIDENCE TENDENCY EVIDENCE SIGNIFICANT PROBATIVE VALUE POTENTIAL PREJUDICE

Citation: R v CJ [2016] NSWDC 110
Court: District Court of NSW
Date: 24 June 2016
Judge(s): Whitford SC DCJ

Background

An accused mother (referred to as CJ) was arraigned on an indictment alleging that she recklessly caused grievous bodily harm to her infant son (MJ), who was born in April 2014. In July 2014, when MJ was approximately three months old, he was admitted to hospital with seizures. Subsequent investigations revealed bilateral subdural haematomas, retinal haemorrhages, and other findings that medical specialists considered consistent with shaken baby syndrome.

Neither the accused nor other household members provided an explanation for the injuries. Police identified a 14-year-old neighbour (EP) who, after being prompted by her mother's suggestive question following public disclosure of the shaking hypothesis, reported having seen the accused handle MJ in a manner she described as shaking during the weeks before his hospitalisation.

The Crown served a tendency notice seeking to adduce EP's observations as tendency evidence, on the basis that it demonstrated a tendency in the accused to shake her baby vigorously. The accused objected to the evidence on multiple grounds under the Evidence Act 1995.

Legal Issues

  • Whether the tendency evidence was relevant under sections 55 and 56 of the Evidence Act 1995
  • Whether the tendency evidence had significant probative value as required by section 97 of the Evidence Act 1995
  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect on the accused as required by section 101 of the Evidence Act 1995
  • Whether a single, equivocal incident can constitute a "tendency" under section 97, and whether such evidence can satisfy the significant probative value threshold where the Crown case rests entirely on that tendency combined with opportunity

Decision

Issue 1: Relevance

Whitford SC DCJ accepted that, on the assumption the evidence would be accepted by the jury, it was capable of affecting the assessment of the probability of a fact in issue, namely whether the accused caused the injuries by shaking the baby. The court found the tendency evidence was technically relevant, noting that objections about the absence of direct evidence of the act causing injury and the alleged circularity of reasoning were more appropriately addressed at the significant probative value and prejudice stages (at [36]).

Issue 2: Significant probative value under section 97

The court found the tendency evidence failed to satisfy the section 97 threshold of significant probative value (at [70]). Several compounding weaknesses informed that conclusion. The evidence comprised a single, equivocal incident: EP's initial demonstration was entirely benign and only became more animated after sustained questioning and the use of a prop doll (at [53]-[54]). Importantly, it was common ground that the handling EP observed could not have caused, and did not cause, the injuries MJ suffered (at [66]). The medical evidence allowed for the injuries to have occurred at any point over a two-week window, creating a large field of persons with access to the child who could not rationally be excluded (at [67]-[68]). The Crown case depended entirely on the combination of tendency evidence and opportunity, with no other direct or circumstantial evidence connecting the accused to the injuries (at [43]-[44]). The court also identified a fallacious circularity in the Crown's reliance on Dr Vimpani's proposition that EP's observations were consistent with the natural history of shaken baby syndrome, since that proposition assumed the very fact it sought to prove (at [69]).

Issue 3: Prejudicial effect under section 101

The court proceeded to consider section 101 for completeness, finding that even if the evidence had significant probative value, it would still be inadmissible because its probative value did not substantially outweigh its prejudicial effect (at [73]-[80]). Given that the Crown case rested entirely on the tendency evidence and opportunity, the prior incident observed by EP would inevitably assume disproportionate significance before the jury (at [75]). The subject matter, involving serious harm to a helpless infant, was likely to provoke powerful emotional responses. The court considered that no directions could adequately cure the risk of impermissible reasoning, particularly arising from the circular proposition that the prior handling was consistent with the natural history of shaken baby syndrome (at [77]-[79]).

Orders Made

The evidence of EP was excluded. The court found that the tendency evidence failed to satisfy the significant probative value threshold under section 97, and separately that its prejudicial effect was not substantially outweighed by its probative value under section 101 (at [70]-[80]).

Key Takeaways

  • Under section 97 of the Evidence Act 1995, a single incident may in principle establish a tendency, following the binding authority of Aravena v R [2015] NSWCCA 288, but a single equivocal incident may still fail to reach the threshold of significant probative value, particularly where the Crown case depends entirely on that tendency combined with opportunity (at [47]-[48], [60]).

  • Where tendency evidence relates to conduct that could not have caused the injuries alleged, and the injuries may have been inflicted within a wide time window accessible to multiple persons, the evidence is unlikely to satisfy the significant probative value requirement because reasonable hypotheses inconsistent with guilt cannot be excluded (at [66]-[68], [71]).

  • A Crown submission that prior conduct is consistent with the "natural history" of a condition such as shaken baby syndrome may be circular if it presupposes the guilt of the accused as a premise for that consistency, and that circularity undermines both probative value and introduces unfair prejudice (at [69], [77]).

  • The District Court confirmed that where tendency evidence will inevitably assume overwhelming significance out of proportion to its actual connection to the offending, and where no directions can adequately cure the resulting risk of impermissible reasoning, the section 101 balance requires exclusion (at [75]-[80]).

  • The absence of any direct evidence, any other circumstantial evidence linking the accused to the harmful act, and any evidence from the victim leaves tendency-plus-opportunity reasoning particularly vulnerable to challenge at both the section 97 and section 101 stages of the admissibility analysis (at [43]-[44], [75]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 – ss 55; 56; 97 and 101

Cases
- Hughes v R [2015] NSWCCA 63
- Elomar & Ors v R [2014] NSWCCA 303
- R v Gale & Duckworth [2012] NSWCCA 174
- Aravena v R [2015] NSWCCA 288
- R v Ford [2009] NSWCCA 306
- IMM v R [2016] HCA 14
- Dupas v R [2012] VSCA 328
- R v Shamouil (2006) 66 NSWLR 22
- DSJ v R [2012] NSWCCA 63.