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Supreme Court 12 July 2017

R v BT

[2017] NSWSC 1094

Homicide
CRIMINAL LAW ADMISSIBILITY OF TENDENCY EVIDENCE

Citation: R v BT [2017] NSWSC 1094
Court: Supreme Court of New South Wales
Date: 12 July 2017
Judge(s): Hidden AJ

Background

The accused, BT, stood trial for the murder of his infant daughter, HT, who was eight weeks old at the time of her death on 11 August 2014. HT had been born prematurely and was in the care of her parents at a shared family home, along with three other young children. The Crown's case was that BT inflicted repeated acts of violence on HT over a period of weeks, culminating in a fatal blunt force injury to the back of her skull.

The Crown's case was circumstantial. At the time of the fatal incident, only BT, HT, and the couple's older infant, JT, were at the home. A post-mortem examination by forensic pathologist Dr Issabella Brouwer found rib fractures of varying ages, injuries to the face and head, retinal haemorrhages, and an occipital skull fracture, consistent with sustained non-accidental injury over time.

BT gave police an account in which JT had struck HT with a hairbrush and she had then slipped from his grasp and fallen to the floor. Dr Brouwer concluded that account was inconsistent with the injuries she observed. The Crown sought to lead tendency evidence of prior acts of violence against HT and against three other children in BT's care.

  • Whether evidence of BT's prior violent acts against HT was admissible as tendency evidence under the Evidence Act 1995 (NSW).
  • Whether evidence of BT's prior violent acts against the three other children in his care (JT, TF, and CF) was similarly admissible as tendency evidence.
  • Whether, in each case, the significant probative value of the proposed tendency evidence substantially outweighed any prejudicial effect on the accused, as required by ss 97 and 101 of the Evidence Act 1995.

Decision

Evidence concerning HT: admitted. Hidden AJ admitted the tendency evidence relating to HT herself. The six-year-old TF described in a videotaped police interview a persistent pattern of the accused picking HT up and throwing her onto a hard bed, squeezing her chest, and shaking her by the head. TP's statement corroborated elements of this, including observations of shaking. Dr Brouwer's expert opinion was that the pattern of violence described by TF was consistent with the multiple injuries she documented at autopsy, including rib fractures at locations typically caused by forceful squeezing of an infant's chest by adult hands.

Hidden AJ found this evidence formed a crucial plank of the Crown's circumstantial case. The medical evidence corroborated TF's account, significantly increasing the probative value of the tendency evidence. In the context of a case founded entirely on circumstantial evidence, that probative value was found to substantially outweigh any prejudicial effect.

Evidence concerning the other children: rejected. The proposed tendency evidence relating to JT, TF, and CF consisted of accounts of smacking, hitting with a cricket bat, and related physical conduct. Hidden AJ accepted that while this conduct was disturbing, it was vastly different in character and degree from the sustained pattern of violence alleged against HT. The circumstances were unknown, and the conduct might arguably have been intended as chastisement, however excessive. The Crown prosecutor herself acknowledged she was on uncertain ground with this aspect of the application.

Hidden AJ was not persuaded the evidence concerning the other children had significant probative value within the meaning of s 97. He further held that even if some probative value could be attributed to it, that value did not substantially outweigh the prejudicial effect its admission would have on the accused, as required by s 101 in criminal proceedings.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995, tendency evidence in a criminal trial must carry significant probative value, and that value must substantially outweigh any prejudicial effect on the accused before it can be admitted.
  • Where proposed tendency evidence relates directly to the victim and is corroborated by independent expert medical findings, courts may find the probative value threshold is met, even in a purely circumstantial case.
  • A qualitative difference between the alleged conduct toward the primary victim and alleged conduct toward other persons can be decisive: similarity in category alone (violence against children) does not establish sufficient probative connection.
  • The Supreme Court declined to extensively analyse Hughes v The Queen [2017] HCA 20 or analogous authority, finding the admissibility question turned on a straightforward application of the Evidence Act provisions to the facts.
  • Corroboration between lay witness accounts and forensic pathology evidence can materially elevate the probative weight attributed to tendency evidence in cases of alleged non-accidental infant injury.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101

Cases
- Hughes v The Queen [2017] HCA 20
- R v LN; R v AW (No 1) [2017] NSWSC 119