Citation: R v LN; R v AW (No. 1) [2017] NSWSC 119
Court: Supreme Court of New South Wales
Date: 23 February 2017
Judge: Johnson J
Background
A mother (LN) and stepfather (AW) were jointly charged with the murder of LN's three-year-old son, Joseph, who died on or about 3 August 2014 at Oberon, NSW. The Crown alleged that Joseph had been subjected to sustained physical abuse by both accused over the 51-day period from when he moved into their home until his death. The Crown's case included evidence from FN, an adult son of LN who was living in the household, who described a pattern of violence, including hitting with a wooden spoon, ice baths, the use of duct tape, and statements by LN about intending to harm the child.
The Crown alleged that LN inflicted the fatal injury with intent to kill or cause grievous bodily harm. Against AW, the Crown relied on a joint criminal enterprise theory: that he was party to an extended agreement with LN to abuse the child and cover up that abuse. The trial was listed to begin on 27 February 2017.
Before the trial commenced, the Crown sought a ruling permitting it to rely on evidence of prior mistreatment of Joseph during those 51 days not only as direct evidence of the offences charged, but also for "tendency purposes" under ss.97 and 101 of the Evidence Act 1995. Both accused accepted that the evidence would be before the jury regardless; the question was whether the Crown could additionally use it to establish a tendency to act in a particular way or to have a particular state of mind.
Legal Issues
- Whether evidence of each accused's conduct toward Joseph during the seven weeks before his death met the threshold of "significant probative value" required for tendency evidence under s.97(1)(b) of the Evidence Act 1995
- Whether, if that threshold was met, the probative value of the tendency evidence substantially outweighed its prejudicial effect, as required by s.101(2) of the Evidence Act 1995
- Whether the same factual evidence can simultaneously serve as direct proof of the offence charged and as tendency evidence, particularly in relation to AW
Decision
Johnson J allowed the Crown to rely on the tendency notice against LN. The evidence of her repeated mistreatment of Joseph over seven weeks, including her expressed desire to cause him serious harm, was capable of demonstrating a tendency to act violently toward the child with intent to injure or kill. That tendency had significant probative value on the question of whether she inflicted the fatal injury with the requisite intent. The probative value was found to substantially outweigh any prejudicial effect, satisfying s.101(2).
The position for AW was different. His Honour found that the evidence the Crown sought to use for tendency purposes was, in substance, the same evidence the Crown was already relying upon as direct proof of AW's guilt as a party to the joint criminal enterprise. The Crown struggled in submissions to articulate any additional tendency purpose that this evidence could serve with respect to AW, and the court found that no genuine separate tendency purpose existed.
Johnson J also noted a structural problem: allowing the evidence to be used for tendency purposes against AW would generate circular reasoning. The jury would be directed to use the same facts both as direct evidence of guilt and as establishing a tendency, with the accompanying jury directions likely to confuse rather than assist. This compounded the court's conclusion that the significant probative value threshold under s.97(1)(b) was not satisfied in AW's case.
Because the s.97 threshold was not met for AW, it was unnecessary to resolve the s.101(2) balancing exercise. Johnson J noted briefly, however, that the risk of confusion from the competing jury directions would likely have generated meaningful prejudice in any event.
Orders Made
- The Crown was permitted to rely upon the tendency notice of 9 February 2017 for tendency purposes in the trial of LN.
- The Crown was not permitted to rely upon the tendency notice of 9 February 2017 for tendency purposes in the trial of AW.
Key Takeaways
- Tendency evidence under s.97 of the Evidence Act 1995 requires the court to identify a genuine tendency purpose that is distinct from, and adds probative value beyond, the direct use for which the evidence is already before the jury.
- Where the Crown's proposed tendency evidence is, in substance, identical to its direct proof of an accused's guilt, no additional "significant probative value" in the tendency use may be established, and the application will fail at the s.97(1)(b) threshold.
- A joint criminal enterprise case does not automatically create a symmetric tendency argument against each co-accused: the court assessed LN and AW separately, reaching different conclusions because their roles in the Crown case were framed differently.
- The risk of circular or confusing jury directions arising from the double use of the same evidence reinforced the refusal of the tendency application with respect to AW, even though jury confusion is more directly relevant to prejudice under s.101(2).
- Prior decisions of the NSW Court of Criminal Appeal in BC v R and AC v R [2016] NSWCCA 21 were considered but found to offer no assistance to the Crown's position in relation to AW.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss.97, 101
- Criminal Procedure Act 1986 (NSW)
- Evidence Regulation 2015 (NSW)
Cases
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- BC v R [2015] NSWCCA 327
- AC v R [2016] NSWCCA 21
- Hughes v R [2015] NSWCCA 330
- Elomar v R [2014] NSWCCA 303; 316 ALR 206
- Aravena v R [2015] NSWCCA 288
- Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v Lockyer (1996) 89 A Crim R 457