Citation: R v Nikolovski (No 1) [2017] NSWSC 1450
Court: Supreme Court of New South Wales
Date: 18 September 2017
Judge(s): Wilson J
Background
The accused stood trial charged with the murder of a man in Wickham on 7 March 2015, and with armed robbery of the same victim during the same incident. The Crown alleged the accused was one of three people who attended the deceased's home in the early hours of that morning, armed and disguised, during the course of which the deceased was shot and killed by a co-offender. The Crown's case rested primarily on the evidence of a third participant who had been granted prosecutorial indemnity, together with intercepted communications and circumstantial evidence.
The Crown sought to lead tendency evidence establishing that the accused had a tendency to commit armed robberies with others while armed with weapons. The proposed evidence drew on facts relating to a series of convictions and other offences dealt with on sentence, spanning incidents in 2011, 2015, and an ACT offence in 2011. The accused opposed admission of that evidence by notice of motion.
Legal Issues
- Whether the Crown's proposed tendency evidence was admissible under the Evidence Act 1995 (NSW), specifically whether its probative value substantially outweighed any prejudicial effect on the accused, as required by s 101(2) of that Act.
Decision
Wilson J identified the tendency the Crown sought to establish: that the accused had a tendency to commit robberies with others while armed with weapons. The prior offences involved coordinated, armed, disguised attacks on licensed premises and clubs, typically targeting staff at closing time. The charged offence, by contrast, was an armed robbery at a private residence during the early hours of the morning.
Her Honour found the probative value of the tendency evidence was limited. The prior offending was of a "very distinctive character" that was "wholly dissimilar" to the charged offences. As a result, the tendency evidence could do no more than establish the accused was a person inclined to commit armed robberies, without meaningfully connecting him to the specific circumstances alleged.
The prejudicial effect, by contrast, was found to be considerable. Wilson J identified several specific risks of misuse: a jury might reason that because the accused committed armed robberies on other occasions, he must have committed the robbery of the deceased; or that he must be one of the men seen in the house that night simply because he is an armed robber; or that his extensive criminal history made him a bad person deserving of conviction. Her Honour concluded no direction could adequately overcome that prejudice.
Applying s 101(2), Wilson J held that the probative value did not outweigh the prejudicial effect to any extent, let alone substantially. The evidence amounted to little more than evidence of bad character, without the probative significance required to make it admissible as tendency evidence. Accordingly, the tendency notices of 21 August 2017 and 12 September 2017 were excluded.
Orders Made
• Excluded the evidence set out in the tendency notices of 21 August 2017 and 12 September 2017
Key Takeaways
- Under s 101(2) of the Evidence Act 1995 (NSW), tendency evidence adduced by the prosecution against a defendant is inadmissible unless its probative value substantially outweighs its prejudicial effect, a threshold higher than the general relevance test.
- Where prior offending is of a distinctively different character from the charged offence, the probative value of tendency evidence is reduced because the similarity that gives tendency reasoning its logical force is absent.
- The Supreme Court identified three specific and foreseeable ways in which a jury could misuse tendency evidence in this context, and found that no jury direction would be sufficient to cure the resulting prejudice.
- Tendency evidence that amounts, in substance, to no more than evidence of bad character fails to meet the s 101(2) threshold, regardless of the number or seriousness of prior offences tendered.
- The question of whether probative value "substantially outweighs" prejudicial effect under s 101(2) requires a qualitative assessment of the connection between the tendency and the charged conduct, not merely a count of similar prior acts.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 98, 101
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Cases
- Hughes v Queen [2017] HCA 20
- R v Ford (2009) 201 A Crim R 451