Citation: R v Johnson (No 6) [2019] NSWSC 147
Court: Supreme Court of New South Wales
Date: 13 February 2019
Judge(s): Campbell J
Background
The accused stood trial for the murder of a man referred to as Mr Morrison, whom he had fatally stabbed. The Crown sought to introduce evidence of two earlier incidents: a 1992 stabbing that injured one victim, and a 1993 stabbing that killed another. The accused had pleaded guilty to a serious offence in respect of the first, and had been convicted of murder in respect of the second.
The Crown's purpose was not to establish a tendency to violence. Rather, it sought to prove that the accused had specific knowledge, at the time he stabbed Mr Morrison, that stabbing a person with a knife is capable of causing death or grievous bodily harm. That knowledge was said to be relevant to whether he intended to kill Mr Morrison or cause him really serious bodily harm.
The accused had been recorded in telephone calls from custody saying he did not intend to kill Mr Morrison, pointing to the location of the wound as evidence of that. The Crown argued the prior-stabbing evidence could rebut that claim by demonstrating the accused's actual knowledge of the lethal potential of knife wounds.
Legal Issues
- Whether evidence of the facts found in earlier proceedings (including the accused's convictions) was excluded by section 91 of the Evidence Act 1995 (NSW)
- Whether expert medical evidence from the prior cases constituted inadmissible hearsay
- Whether the accused's records of interview from the earlier matters established specific knowledge of the consequences of stabbing
- Whether evidence previously rejected as tendency evidence under section 97 could be admitted for a different, non-tendency purpose without contravening section 95
Decision
Issue 1: Exclusion under section 91
Campbell J held that section 91 of the Evidence Act excludes evidence of a decision or finding of fact in an Australian proceeding to prove a fact that was in issue in those earlier proceedings. The facts the Crown sought to establish (including the nature of the injuries caused by the accused's knife use) were facts that had been in issue in the earlier proceedings. Accordingly, Wood J's judgment from the 1994 sentencing could not be relied upon, and those facts were excluded (at [16]).
Issue 2: Hearsay
The Crown also sought to lead expert medical evidence from each earlier case, drawn from statements prepared for the investigation and from evidence given at trial. Campbell J found this evidence was hearsay. The fact that the accused was likely present when expert evidence was given at trial did not make expert medical opinions his own knowledge. The evidence fell within no established hearsay exception, including the business records exception (at [17]).
Issue 3: Records of interview
The admissions the accused made in his records of interview on the day of each earlier offence went no further than disclosing his state of mind at that time. They did not establish that he had acquired specific knowledge of the actual consequences, such as the nature of the injuries or the cause of death, for each victim. Campbell J concluded those admissions were not evidence of the type of knowledge the Crown sought to prove (at [19]).
Issue 4: Section 95 and the tendency evidence gateway
Campbell J observed, without making it a primary basis for the ruling, that admitting this evidence for a non-tendency purpose after it had already been rejected as tendency evidence would likely contravene section 95. Section 95 operates to prevent evidence that has failed the narrow admissibility gateway under section 97 from being admitted indirectly under the guise of relevance to another purpose (at [21]-[23]). This risk reflects concerns, confirmed in Hughes v the Queen and McPhillamy v the Queen, about the fallacious reasoning that prior conduct proves later guilt.
Orders Made
- Evidence as summarised in MFI 20 is rejected
Key Takeaways
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Section 91 of the Evidence Act excludes evidence of findings of fact from prior Australian proceedings where those same facts were in issue in those proceedings, even when the party seeking to rely on the evidence frames its purpose differently in the current trial (at [16]).
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Expert medical opinions from earlier criminal proceedings do not become evidence of an accused's knowledge merely because the accused was likely present when that evidence was given; such evidence remains hearsay and must fall within an established exception to be admissible (at [17]).
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Admissions made by an accused in a record of interview taken on the day of an offence are confined to the state of mind disclosed at that time and do not, without more, establish specific knowledge of the actual consequences suffered by a victim (at [19]).
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Under section 95 of the Evidence Act, evidence that has been rejected for failing the tendency evidence gateway in section 97 cannot be re-admitted by recasting it as relevant to a different purpose; doing so would indirectly circumvent the statutory scheme for tendency evidence (at [21]-[23]).
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A court's assessment of common human experience, including the general proposition that stabbing with a knife can cause death or serious injury, remains available to a fact-finder regardless of rulings on specific items of proposed evidence (at [24]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 35, 91, 92, 93, 95, 137
- Interpretation Act 1987 (NSW), s 31
Cases
- Hughes v the Queen [2017] HCA 20; (2017) 92 ALJR 92
- McPhillamy v the Queen [2018] HCA 52; (2018) 361 ALR 13