AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 2 August 2019

R v Davidson (No. 1)

[2019] NSWSC 980

Assault & violenceHomicide
EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS CONTEXT EVIDENCE CRIMINAL PROCEEDINGS ALONE TRIAL

Citation: R v Davidson (No. 1) [2019] NSWSC 980
Court: Supreme Court of New South Wales
Date: 2 August 2019
Judge: Davies J

Background

The accused was charged with murdering a fellow inmate at Silverwater prison on 9 February 2018, allegedly by strangling him in his cell. The accused did not dispute that he caused the deceased's death, but he had no memory of the act. His defences were mental illness, substantial impairment by reason of mental health impairment, and manslaughter by reason of self-induced intoxication (he claimed to have consumed Xanax and methamphetamine on the day). The trial proceeded before a judge alone, without a jury.

In the lead-up to trial, the Crown gave notice of its intention to lead tendency evidence under s 97 of the Evidence Act 1995 (NSW). That evidence centred on an earlier incident in February 2017, when the accused had choked and assaulted a fellow inmate at the MRRC remand centre, less than a year before the index offence. The Crown also sought to use remarks from a District Court sentencing judgment, Justice Health records, expert reports, and a telephone call in which the accused made what appeared to be a threat to kill future cellmates.

The accused moved to exclude the tendency evidence. At the hearing, the Crown also sought to have the same material admitted as context evidence.

  • Whether the proposed tendency evidence satisfied the requirements of s 97 of the Evidence Act 1995 (NSW), in particular whether it had "significant probative value"
  • Whether a single prior instance of similar conduct is capable of establishing a tendency
  • Whether the proposed evidence was admissible as context evidence in a judge-alone trial, and whether it had sufficient probative value for that purpose
  • Whether the Crown could use findings of fact from an earlier sentencing judgment to prove a fact in the current proceedings, given s 91 of the Evidence Act 1995 (NSW)

Decision

Tendency evidence

Davies J rejected the Crown's tendency evidence application. The critical difficulty was that only one prior instance of similar conduct was relied upon, namely the February 2017 choking incident at MRRC. His Honour held that a single prior incident is not, of itself, sufficient to establish a tendency. The proposed tendency, that the accused was inclined to form an intention to kill or inflict serious injury on those in close proximity and to act on it by choking them, was not adequately demonstrated by one episode alone. The application therefore failed at the threshold of establishing a tendency at all, quite apart from the question of significant probative value.

His Honour also considered the Crown's alternative arguments that the tendency evidence would assist in establishing that the accused performed the act, that he had the requisite intention, and that he retained the capacity to control his conduct despite his mental state. These arguments did not cure the fundamental problem that a single prior incident cannot ground a tendency finding.

Context evidence

The Crown's fallback position was that the same material, plus additional evidence including expert reports, Justice Health records, and a telephone call, should be admitted as context evidence. Davies J rejected this application as well. In a judge-alone trial the concern about jury prejudice is reduced, but the real question remains whether the context evidence has genuine probative value. His Honour found that the prior incident and most of the additional material did not explain any aspect of the current offending in a way that required admission as context evidence. Much of it, including the expert reports and Justice Health records, was simply admissible as relevant evidence going to the principal issues (mental illness and substantial impairment) and would be admitted on that basis, without any limiting characterisation as context evidence.

The telephone call and the use of the sentencing judgment

The telephone call, recorded on 7 February 2017, contained a statement by the accused that he would kill the next person placed in a cell with him. Davies J rejected its use as context evidence or as evidence of intention in relation to the 2018 offending. A general statement of intention made 12 months before the index offence, without accounting for the accused's mental state and drug consumption at the time of the killing, carried no meaningful probative value. Separately, his Honour noted that using factual findings from the District Court sentencing remarks to prove facts in the present trial was impermissible under s 91 of the Evidence Act.

Orders Made

  • The Crown's application to lead tendency evidence under s 97 of the Evidence Act 1995 (NSW) was rejected.
  • The Crown's application to lead the evidence as context evidence was rejected, without prejudice to the Crown's right to tender the reports of Professor Greenberg, Ms Emma Hubner, and the Justice Health records as generally admissible evidence.

Key Takeaways

  • A single prior instance of similar conduct is insufficient to establish a tendency for the purposes of s 97 of the Evidence Act 1995 (NSW). Without multiple instances capable of revealing a pattern, the threshold question of whether a tendency exists at all is not met.
  • Even where jury prejudice is not a live concern in a judge-alone trial, proposed context evidence must still demonstrate genuine probative value. The mere fact that evidence provides background does not make it admissible as context evidence.
  • Under s 91 of the Evidence Act 1995 (NSW), findings of fact recorded in an earlier court judgment cannot be used to prove the existence of those facts in a subsequent trial. The Crown's attempt to rely on factual findings from the District Court sentencing remarks was held to be an impermissible use of that material.
  • Evidence that is inadmissible as tendency or context evidence may still be admissible on a different basis. The expert reports and Justice Health records were treated as generally admissible evidence relevant to the defences of mental illness and substantial impairment, even though they failed to qualify as context evidence.
  • A statement of general criminal intention made approximately 12 months before an offence, without connection to the specific circumstances of that offence, is unlikely to carry sufficient probative value to be admitted as evidence of intention or self-knowledge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 37, 428C
- Evidence Act 1995 (NSW), ss 91, 97, 135, 137
- Criminal Procedure Act 1986 (NSW)

Cases
- DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
- ES v R (No 1) [2010] NSWCCA 197
- Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
- R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
- R v Droudis (No. 13) [2016] NSWSC 1350
- R v Mervyn Davidson [2018] NSWDC 45
- R v Qaumi & Qaumi [2016] NSWSC 1473
- R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487
- RHB v R [2011] VSCA 295