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Supreme Court 4 December 2017

R v Wilson (No 3)

[2017] NSWSC 1680

HomicideDomestic & family violence
CRIMINAL LAW MURDER SPECIAL HEARING JUDGE ALONE TENDENCY EVIDENCE VICTIM’S TENDENCY ESTABLISHED

Citation: R v Wilson (No 3) [2017] NSWSC 1680
Court: Supreme Court of New South Wales
Date: 4 December 2017
Judge: Schmidt J

Background

The accused was charged with the murder of her long-term partner under s 18(1)(a) of the Crimes Act 1900 (NSW). On 12 February 2013, she struck him with a metal pole and threw or poured recently boiled water over him at their shared home. He died from the combined effects of multiple burns, blunt force injuries, and an advanced liver condition caused by long-term alcoholism.

The accused had previously been found unfit to stand trial following a consensus among psychiatric experts. As a result, the proceedings took the form of a special hearing before Schmidt J sitting alone, conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW). The purpose of a special hearing is to determine, on the limited evidence available, whether the accused committed the offence, applying the ordinary criminal standard of proof.

The accused raised self-defence, provocation, excessive self-defence, and substantial impairment as defences. In that context, she served a tendency notice seeking to rely on two tendencies: that the deceased had a tendency to act violently toward intimate partners, and that she herself had a tendency not to report or pursue prosecution of his serious assaults against her.

  • Whether evidence of the deceased's tendency to act aggressively or violently toward intimate partners was admissible under s 97 of the Evidence Act 1995 (NSW), in circumstances where the deceased was not intoxicated at the time of his death
  • Whether evidence of the accused's tendency not to report or pursue prosecution of the deceased's violence against her was admissible under s 97
  • Whether each tendency had significant probative value within the meaning of s 97(1)(b), having regard to the defences the accused relied upon

Decision

Schmidt J first set out the applicable legal framework. Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is inadmissible unless the court considers it will have significant probative value. Drawing on IMM v The Queen [2016] HCA 14 and Hughes v The Queen [2017] HCA 20, her Honour confirmed that the evidence must be influential in fact-finding, and must serve as a stepping stone toward an inference that the person acted, or had a particular state of mind, on the occasion in question. At the threshold admissibility stage, the court assumes the tendency evidence will be accepted.

On the deceased's tendency, the Crown argued that a critical dissimilarity existed: the deceased had consumed no alcohol for five days before his death, whereas his prior violent conduct occurred when he was heavily intoxicated. Schmidt J rejected the Crown's contention that this dissimilarity severed the necessary connection between the prior pattern of conduct and the fatal events. Her Honour found the tendency was established and that the evidence could provide a foundation for an inference that the deceased acted in conformity with it on 12 February 2013.

On the accused's tendency, the Crown relied on police computer records (COPS entries) to argue that she had in fact reported incidents of the deceased's violence on multiple occasions. Schmidt J examined the COPS entries in detail, noting that the majority of reports between 2007 and 2012 were made by neighbours, bystanders, or relatives rather than by the accused herself. Her Honour concluded the evidence did not support the Crown's characterisation and that the tendency was established on the material available.

Both tendencies were held to have significant probative value. Together with the other evidence, they made the accused's defences of self-defence and provocation significantly more likely, satisfying the requirements of s 97.

Orders Made

  • The proposed tendency evidence is admissible.

Key Takeaways

  • Under s 97 of the Evidence Act 1995 (NSW), tendency evidence must have significant probative value, meaning it must be influential in fact-finding and capable of supporting an inference about a person's conduct or state of mind on the occasion in question.
  • A dissimilarity between the circumstances of prior conduct and the circumstances of the charged offence does not automatically defeat admissibility; the court assessed whether the connection remained sufficient to support the relevant inference despite the deceased being sober at the time of his death.
  • Where police records are relied upon to rebut an alleged tendency, the court examined the source of each report carefully. Records initiated by third parties rather than the accused did not establish that the accused herself had a practice of reporting violence.
  • At the threshold stage of a tendency ruling, the court assumes the tendency evidence will be accepted, and considers it together with the other evidence to be adduced in the proceedings.
  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is conducted as nearly as possible to a criminal trial, and the ordinary rules of evidence, including the tendency rule, apply within that framework.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), s 97
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19(2), 21(1)

Cases
- Hughes v The Queen (2017) ALR 187; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330
- R v Wilson [2015] NSWSC 1538
- R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505
- Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55