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Court of Criminal Appeal 1 September 2017

Adams v R

[2017] NSWCCA 215

Homicide
CRIMINAL LAW CONVICTION APPEAL JUDGE ALONE TRIAL OFFENCE OF MURDER VICTIM’S BODY NOT FOUND WHETHER THE VERDICT WAS UNREASONABLE

Citation: Adams v R [2017] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 1 September 2017
Judges: Hoeben CJ at CL, R A Hulme J, Wilson J

Background

The appellant was convicted of the murder of a woman who disappeared in the early hours of 24 September 1983. Her body was never found. The trial, conducted by Button J sitting alone, proceeded on the basis of constructive murder: the Crown alleged the appellant strangled the deceased to force her to have sexual intercourse with him, causing her death.

The Crown's case depended heavily on tendency evidence. Because no body was ever recovered, the prosecution relied on evidence from three other women who gave accounts of being strangled and sexually assaulted by the appellant in circumstances bearing significant similarities to the Crown's account of the deceased's death. The Crown submitted the appellant had a tendency to meet women at bars, gain their trust, offer them a lift, and then strangle them to compel sexual intercourse.

The appellant did not give evidence at trial. He maintained that after leaving the bar with the deceased, they engaged in consensual sexual activity, he fell asleep, and she was gone when he woke. The appellant was convicted by Button J on 4 November 2016 and sentenced to a total term of 20 years' imprisonment with a non-parole period of 15 years.

The appeal raised nine grounds, covering the following key legal questions:

  • Whether the trial judge erred by finding a tendency that the Crown had not specifically contended for or notified
  • Whether the tendency evidence of two of the three women (Ms Hyde and Ms Brown) was properly admitted under s 97 of the Evidence Act 1995 (NSW), having regard to significant probative value and the s 101 balancing test
  • Whether the trial judge adequately directed himself as to the proper use of tendency evidence and its inherent dangers, as required by s 133 of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge was required to be satisfied beyond reasonable doubt that the underlying conduct giving rise to the tendency had occurred before acting on that tendency
  • Whether, when assessing whether a particular tendency incident occurred, the trial judge was permitted to draw on evidence from other tendency incidents
  • Whether a document was properly admitted as a business record under s 69 of the Evidence Act 1995 (NSW)
  • Whether the trial judge misconstrued a defence argument and treated it as a factual admission
  • Whether the verdict was unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge failed to exclude reasonable alternative hypotheses inconsistent with guilt as required by s 133(2) of the Criminal Procedure Act 1986 (NSW)

Decision

Grounds 1 and 3 (leave refused): The Court refused leave to appeal on the ground that the trial judge found a tendency not specifically identified by the Crown, and on the ground concerning self-direction about tendency evidence. Those grounds did not establish error warranting intervention.

Grounds 2 and 4 to 5 (tendency evidence): The Court upheld the admission of the tendency evidence from Ms Hyde and Ms Brown. The tendency evidence was found to have significant probative value that was not substantially outweighed by the risk of unfair prejudice, satisfying both ss 97 and 101 of the Evidence Act. On Ground 4, the Court confirmed that the trial judge was not required to be satisfied beyond reasonable doubt as to the underlying tendency incidents before taking them into account in determining whether the tendency existed: the relevant standard applied to the ultimate finding of guilt, not to each constituent piece of reasoning. On Ground 5, the Court held that the trial judge was entitled to consider evidence from multiple tendency incidents together when assessing whether the asserted tendency was established, rather than evaluating each incident in strict isolation.

Ground 6 (business records): The Court rejected the challenge to the admission of Exhibit 4B as a business record. The document satisfied the requirements of s 69 of the Evidence Act, including that the representation was made by a person with relevant personal knowledge and was not made in connection with litigation or investigation within the meaning of s 69(3).

Grounds 7 to 9 (trial miscarriage, unreasonable verdict, alternative hypotheses): The Court found no error in the trial judge's treatment of the defence's argument, which was not improperly treated as an admission. The verdict was not unreasonable: given the properly admitted tendency evidence and the other circumstantial evidence (including the appellant's conduct involving his car in the days following the deceased's disappearance), it was open to Button J to be satisfied of guilt beyond reasonable doubt. The trial judge's reasoning process, which clearly identified the inferences drawn and addressed alternative explanations, satisfied the requirements of s 133(2) of the Criminal Procedure Act.

All three judges agreed the appeal should be dismissed.

Orders Made

  • Leave to appeal refused on Grounds 1 and 3
  • Remaining grounds of appeal (Grounds 2, 4, 5, 6, 7, 8, and 9) dismissed
  • Conviction upheld

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge assessing tendency evidence is not required to be satisfied beyond reasonable doubt that each tendency incident occurred as a discrete step before using that conduct to establish the existence of a tendency.
  • Evidence from multiple tendency incidents may be considered collectively when determining whether an asserted tendency exists; the trial judge is not confined to examining each incident in isolation against only the evidence directly relating to that particular incident.
  • A murder conviction may stand where the victim's body is never recovered, provided the evidence as a whole, including properly admitted tendency evidence, is sufficient to satisfy the tribunal of fact beyond reasonable doubt.
  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence is admissible only where it has significant probative value and that value is not substantially outweighed by the risk of unfair prejudice; the Court confirmed these thresholds were met on the particular facts.
  • No appellate error arises merely because a trial judge articulates a tendency in terms that differ somewhat from the Crown's own formulation, provided the substance of the tendency relied upon falls within the scope of the notified tendency evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 37, 61D
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 55, 69, 70, 97, 101, 137, 192

Cases:
- R v Adams (No 6) [2016] NSWSC 1565 (judgment below)
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- Thompson v The Queen [1989] HCA 30; 169 CLR 1
- Barca v The Queen [1975] HCA 42; 133 CLR 82
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- Elomar v R [2014] NSWCCA 303; 316 ALR 206
- Greenhalgh v R [2017] NSWCCA 94
- Thornton v R [2017] NSWCCA 86
- Hughes v R [2015] NSWCCA 330
- DJS v R [2010] NSWCCA 200
- Doyle v R; R v Doyle [2014] NSWCCA 4
- JWM v R [2014] NSWCCA 248
- Atai v R [2014] NSWCCA 210