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Supreme Court 7 February 2019

R v Johnson (No 2)

[2019] NSWSC 144

Homicide
EVIDENCE LAW

Citation: R v Johnson (No 2) [2019] NSWSC 144
Court: Supreme Court of New South Wales
Date: 7 February 2019
Judge(s): Campbell J

Background

The accused was standing trial before Campbell J, sitting without a jury, for the murder of a man stabbed in Campsie on 29 June 2017. The accused admitted stabbing the deceased twice in the groin and upper leg, severing the femoral artery and causing death. The live issues at trial were whether the accused held the specific intent required for murder, whether he acted in self-defence, and whether he acted under extreme provocation.

Before the trial proper commenced, the Crown sought a ruling under section 192A of the Evidence Act 1995 (NSW) on whether evidence of two prior stabbings could be admitted as tendency evidence under section 97. The two prior offences were a 1992 stabbing for which the accused was convicted of malicious wounding, and a 1993 fatal stabbing for which he was convicted of murder.

The Crown argued this prior conduct established a tendency that the accused knew, from experience, that stabbing someone with a knife could cause death or really serious injury. The defence opposed admission on multiple grounds, including that the tendency was too general and that a gap of approximately 25 years between the prior offences and the present stabbing was seriously telling against admissibility.

Legal Issues

  • Whether the proposed tendency evidence satisfied the "significant probative value" test under section 97 of the Evidence Act 1995 (NSW)
  • Whether, if section 97 was satisfied, the probative value of the tendency evidence substantially outweighed its prejudicial effect under section 101(2)
  • Whether the lapse of approximately 25 years between the prior offences and the present offence precluded a finding of significant probative value
  • Whether the differences in circumstances between the prior offences and the current charge undermined the probative force of the tendency

Decision

Issue 1: Identifying the tendency and the fact in issue

The court emphasised that the critical fact in issue was the mental element of murder, specifically whether the accused intended to cause death or really serious injury when he stabbed the deceased. Because the accused admitted the act itself, there was no issue as to the actus reus. The Crown's reformulated tendency was that when the accused stabs a person with a knife, he knows from prior experience that his action could cause death or really serious injury (at [25]-[27]).

Issue 2: Significant probative value under section 97

Applying the principles from Hughes v The Queen and McPhillamy v The Queen, the court observed that tendency evidence must be capable of rationally affecting the assessment of the probability of the fact in issue to a significant extent, and that this requires an "open-textured inquiry" guided by appropriate caution (at [18], [26]). The court concluded that the proposed evidence went no higher than demonstrating that the accused was a person likely to offend again with a knife, which is not sufficient to satisfy the test (at [42]). The differences in circumstances across the three incidents were material: the 1992 offence was an opportunistic, spontaneous attack on a stranger in company; the 1993 offence involved personal animosity and aspects of premeditation against a known victim; and the present offence appeared to involve a mistaken belief or grievance against what was otherwise a stranger (at [43]). Taken together, these differences meant the evidence could not be said to be significantly probative of the tendency as formulated (at [42]-[43]).

Issue 3: Effect of the 25-year gap

The court declined to treat the approximately 25-year gap between the 1993 murder and the 2017 stabbing as determinative in itself. It noted that the accused's lengthy period of imprisonment for the prior offences, followed by supervision upon release, would have deprived him of the opportunity to act on any such tendency. An extended lapse of time is therefore not necessarily preclusive of tendency evidence, but it is a relevant consideration (at [44]).

Issue 4: Section 101 and prejudice in a judge-alone trial

Having found the section 97 threshold was not met, the court's observations on section 101 were stated to be contingent on being wrong about section 97. The court noted that the risk of misuse of tendency evidence is attenuated when a judge sits without a jury, because any misuse would be detectable on appeal from the judge's reasons. Had the section 97 threshold been satisfied, the court indicated it would have admitted the evidence under section 101(2) (at [46]-[47]).

Orders Made

  • Under section 192A of the Evidence Act 1995 (NSW), the evidence contained in MFI 1 is not admissible under section 97(1) of that Act.

Key Takeaways

  • Under section 97 of the Evidence Act 1995 (NSW), tendency evidence must be capable of rationally affecting the assessment of the probability of the relevant fact in issue to a significant extent. Evidence that merely shows an accused is someone who tends to use a knife does not satisfy that threshold where the fact in issue is specific intent for murder (at [42]).

  • Differences in the circumstances of prior offences and the current charge are central to the section 97 analysis, even where close factual similarity is not required. The more general the tendency as formulated, the more vulnerable it may be where factual differences are pronounced (at [42]-[43]).

  • An extended lapse of time between prior tendency conduct and the conduct charged does not automatically preclude admissibility. A court may take into account explanations for the gap, such as the accused's incarceration, when assessing whether a tendency remained operative (at [44]).

  • The "open-textured inquiry" required by section 97 calls for judicial caution, particularly in marginal cases, given the risk that wrongly admitted tendency evidence may cause a trial to miscarry. This caution applies even where the tribunal of fact is a judge sitting alone, though the risks associated with such evidence are attenuated in that setting (at [18], [46]-[47]).

  • Where a judge sits alone, any misuse of admitted tendency evidence would be detectable on appeal from the judge's reasons, which the Supreme Court treated as a relevant consideration when assessing prejudice under section 101(2) (at [47]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101, 192

Cases
- Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92
- McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13
- Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528