Citation: R v Chambour; R v Khallouf (No 1) [2016] NSWDC 244
Court: District Court of New South Wales
Date: 26 September 2016
Judge(s): Neilson DCJ
Background
Two accused faced trial on charges arising from a violent incident at the Sydney Opera House car park in the early hours of 8 September 2013. The alleged violence followed an affray inside the Opera Bar, during which members of two groups clashed after a minor collision escalated into a fight. The charges against the accused included affray, reckless wounding of multiple complainants whilst in company, and assault occasioning actual bodily harm.
The Crown sought to tender evidence of a prior incident involving one accused, Chambour, at Granville in 2012. The Crown argued this prior incident demonstrated a tendency "to participate in physical violence using a knife with co-offenders," which it contended was relevant to the allegations against Chambour at the Opera House car park.
This ruling was the first of several pre-trial decisions. The question was whether the Granville incident evidence was admissible as tendency evidence under the Evidence Act 1995 (NSW).
Legal Issues
- Whether the prior Granville incident was sufficiently similar to the charged conduct to be admissible as tendency evidence under the Evidence Act 1995.
- Whether the probative value of the proposed tendency evidence substantially outweighed its prejudicial effect on the accused, as required by s 101(2) of the Evidence Act 1995.
- Whether the proposed tendency, as particularised by the Crown, was actually established by the prior incident evidence.
Decision
Neilson DCJ rejected the Crown's application to adduce the tendency evidence. The Crown had framed the tendency as participation in physical violence using a knife "with co-offenders," but the prior Granville incident did not, on the evidence, establish that Chambour had used a knife in company. That gap was fatal to the Crown's case: the tendency as particularised was not made out by the very evidence relied upon to prove it.
His Honour also found that the only real commonality between the Granville incident and the Opera House allegations was the use of a knife. The Crown itself conceded that a mere tendency to use a knife, without more, is insufficient to justify admission of tendency evidence. The facts of the two incidents were otherwise materially different, and the similarities were too thin to meet the threshold of sufficient similarity required for tendency evidence.
Even if some probative value could be identified, his Honour was not persuaded it was significant. Under s 101(2) of the Evidence Act 1995, tendency evidence adduced by the prosecution against a defendant cannot be admitted unless its probative value substantially outweighs any prejudicial effect. Given that identification was in dispute and it was clear someone had used a knife in the car park, there was a real risk a jury would reason impermissibly that, because Chambour had previously used a knife, he must have been the person who did so on the night in question. That prejudicial risk, in the court's view, was not substantially outweighed by the limited probative value of the evidence.
His Honour noted that even a strong warning to the tribunal of fact about the proper use of tendency evidence could not eliminate the risk of impermissible reasoning. The tender was accordingly rejected.
Orders Made
• The tender of the alleged tendency evidence is rejected.
Key Takeaways
- The District Court confirmed that a tendency must be established by the very evidence tendered to prove it: where the prior incident did not demonstrate the accused acting with a co-offender, the Crown could not rely on it to prove a tendency framed as acting "with co-offenders."
- A tendency to use a knife alone, without additional features of similarity, is insufficient to establish a tendency for the purposes of the Evidence Act 1995. The same principle applies to a tendency to use fists or to act in company, each taken in isolation.
- Under s 101(2) of the Evidence Act 1995, tendency evidence adduced by the prosecution is inadmissible unless its probative value substantially outweighs the prejudicial effect on the defendant. This threshold is not easily satisfied where identification is genuinely in dispute and the risk of propensity-based reasoning is high.
- Insufficient factual similarity between the prior incident and the charged conduct will defeat a tendency evidence application, even where both events involve violence. Courts look for meaningful commonalities beyond superficial overlap.
- The possibility that a jury direction will not adequately guard against misuse of tendency evidence is a relevant consideration when assessing prejudicial effect under s 101(2).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Evidence Act 1995 (NSW), s 101(2) (tendency evidence: prosecution use)
Cases
- CGL v DPP [2010] VSCA 26
- DAO v R [2011] NSWCCA 63
- DJS v R [2012] NSWCCA 9
- IMM v The Queen [2016] HCA 14
- O'Keefe v R [2009] NSWCCA 121
- RHB v The Queen [2011] VSCA 295
- R v Abrahamson (Unreported, 1994, Court of Criminal Appeal, South Australia)
- R v Ford [2009] NSWCCA 306
- R v GAC [2007] NSWCCA 315
- R v Harker [2004] NSWCCA 427
- R v Matonwal & Amood [2016] NSWCCA 174
- R v Milton [2004] NSWCCA 195
- R v Watkins [2005] NSWCCA 164
- Sokolowskyj v R NSWCCA 55
- Townsend v Townsend [2001] NSWCA 136