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Supreme Court 4 February 2016

R v Dent

[2016] NSWSC 99

Assault & violenceHomicideTheft & property
CRIMINAL LAW EVIDENCE TENDENCY AND CO INCIDENCE SS 97, 98 EVIDENCE ACT EVIDENCE OF PREVIOUS MURDERS

Citation: R v Dent [2016] NSWSC 99
Court: Supreme Court of New South Wales
Date: 4 February 2016
Judge(s): R A Hulme J

Background

The accused was charged with the murder and robbery of a 52-year-old man at Wickham Park, Newcastle, in March 2014. The Crown alleged that the accused, acting with three others in a joint criminal enterprise, lured the victim to the park, violently assaulted him causing fatal blunt force trauma, bound and gagged him, and stole his property and attempted to access his bank account.

The Crown sought to adduce evidence of a striking historical parallel. In October 1977, when the accused was 17, he allegedly assaulted two men near Passmore Oval at Wickham, causing their deaths, and took money from them. The accused had made admissions to others at a pool hall that night and later gave a partial account to police, claiming self-defence.

The Crown argued this 1977 incident was admissible as tendency and coincidence evidence to prove the accused acted intentionally and with a state of mind to inflict grievous bodily harm in the 2014 offence. The accused objected, and Hulme J heard argument on 1 February 2016, ruling the evidence inadmissible on 4 February 2016.

  • Whether the 1977 incident was admissible as tendency evidence under s 97 of the Evidence Act 1995 (NSW), specifically whether it had "significant probative value"
  • Whether the 1977 incident was admissible as coincidence evidence under s 98 of the Evidence Act 1995 (NSW) on the basis that similarities between the two incidents made coincidence improbable
  • Whether, under s 101, the probative value of the evidence substantially outweighed its prejudicial effect on the accused

Decision

Hulme J held that the central obstacle to admissibility was the 37-year gap between the 1977 events and the 2014 charged offence. Even accepting that the 1977 conduct established a tendency at that time, the lapse of nearly four decades so significantly diluted the probative force of the evidence that it could not reach the threshold of "significant probative value" required by ss 97 and 98.

His Honour also noted that the evidence failed the additional test under s 101. Even if some residual probative value existed, it could not be said to substantially outweigh the prejudicial effect on the accused. A jury would find it very difficult to approach such evidence with appropriate restraint, given that it effectively revealed the accused had killed before.

On the coincidence evidence, Hulme J examined the similarities the Crown relied upon. Several were dismissed as unremarkable: victims being in their 50s, the use of substantial violence, and a motive to rob were features common to many serious offences. One similarity was given some weight: the Crown's case that the accused specifically chose to lure the 2014 victim to Wickham Park, the same general location as the 1977 incident, when a closer location might have been more convenient. However, even that similarity said little or nothing about whether the accused acted with the intention to inflict grievous bodily harm in 2014.

Considering the combined effect of all asserted similarities, Hulme J was not persuaded that the evidence crossed the threshold of significant probative value when assessed as coincidence evidence either. The evidence of the 1977 deaths was accordingly excluded in both its tendency and coincidence capacities.

Orders Made

• The evidence of Mr Dent having murdered two men in 1977 was excluded.

Key Takeaways

  • A 37-year gap between prior conduct and the charged offence was held to reduce the probative force of tendency evidence to the point where it could not satisfy the "significant probative value" threshold under ss 97 and 98 of the Evidence Act 1995 (NSW).
  • Under s 101, tendency and coincidence evidence adduced by the prosecution in criminal proceedings must clear a higher bar: its probative value must substantially outweigh its prejudicial effect. Evidence of prior killings was found to carry a particularly acute risk of prejudice that effective jury directions could not reliably address.
  • Superficial similarities between two incidents, such as victims being of similar age, the use of serious violence, and a motive to rob, carry limited weight in a coincidence evidence analysis when those features are common to many serious offences.
  • A locationally specific similarity (the accused allegedly choosing to lure a victim to the same general area as earlier offending) was acknowledged as having some significance but was found insufficient, alone or in combination with other similarities, to establish significant probative value.
  • The decision illustrates that the passage of time is a critical and potentially decisive factor in assessing whether prior conduct evidence meets the statutory thresholds for tendency and coincidence evidence in New South Wales.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 101
- Evidence Regulation 2015 (NSW), cls 5, 6

Cases:
- Hughes v R [2015] NSWCCA 330
- R v Watkins [2005] NSWCCA 164; 153 A Crim R 434