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Supreme Court 17 January 2020

R v Gale

[2020] NSWSC 8

Homicide
EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS ADMISSIBILITY WHETHER EVIDENCE RELEVANT EVIDENCE EXCLUDED

Citation: R v Gale [2020] NSWSC 8
Court: Supreme Court of New South Wales
Date: 17 January 2020
Judge(s): Ierace J

Background

The accused faced trial for the murder of a man stabbed once in the chest outside a Wollongong methadone clinic in the early morning of 4 May 2018. The Crown alleged the accused approached the deceased, said words referencing an earlier assault on an elderly woman, punched and kicked him, then stabbed him with a knife, causing death. The accused was not observed carrying a knife before the attack, and no knife was found at the scene.

The central issue for trial was whether the accused acted in self-defence. A significant subsidiary question was which man initially possessed the knife, given that an account the accused gave to a witness shortly after the incident suggested the deceased had dropped a weapon that the accused then picked up and used.

The Crown brought two pre-trial applications seeking leave to adduce tendency evidence under s 97 of the Evidence Act 1995 (NSW): one directed at showing the accused had a tendency to carry a knife in public and to stab others, and the other at showing the deceased had a tendency not to carry a knife in public.

Legal Issues

  • Whether proposed evidence from three prior incidents involving the accused was relevant to, and had significant probative value for, the tendency alleged against him under s 97(1) of the Evidence Act 1995 (NSW)
  • Whether that tendency evidence, if otherwise admissible, should be excluded under s 101 on the basis that its probative value did not substantially outweigh any prejudicial effect
  • Whether evidence from the deceased's mother, a friend, and a detective was relevant to, and had significant probative value for, an alleged tendency on the part of the deceased not to carry a knife in public

Decision

Issue 1: Tendency of the accused to carry a knife in public places

The court drew a distinction between arming for a specific encounter and habitually carrying a knife. The 1996 incident (a break-and-enter where the accused took a kitchen knife from the house before confronting police) and the 2006 incident (where the accused stabbed a fellow resident during an argument) both involved the accused arming himself immediately before and for a particular encounter. Neither was evidence of a routinely-adopted practice of carrying a knife, and the Crown accepted that characterisation (at [31]). By contrast, the 2016 incident, where police found the accused carrying a kitchen knife at a service station and he explained it was for "protection", was squarely within the tendency as framed. A further incident where a witness observed the accused with a knife in McCabe Park also satisfied that description (at [31]).

Taken together, the 2016 and McCabe Park incidents had significant probative value for the tendency, principally because both occurred within approximately two years of the killing (at [37]).

Issue 2: Tendency of the accused to stab or attempt to stab others

The 1996 incident was excluded on relevance grounds. The reference in the police fact sheet to the accused "lunging" at a constable was ambiguous: it was equally consistent with threatening as with attempting to stab, and the charges actually brought against the accused were consistent only with threatening or wielding the knife to avoid apprehension (at [33]). The 2006 incident, in which the accused stabbed a housemate multiple times, clearly fell within the description. However, the court did not accept that a single stabbing 13 years before the killing in question could establish a tendency to stab or attempt to stab others (at [38]). That sole incident was accordingly rejected.

Issue 3: Tendency of the deceased not to carry a knife in public

The court noted that an assertion that a person does not carry a knife has little probative value unless the witness has a reliable evidentiary basis for knowing whether the person would or would not habitually carry one (at [40]). The deceased's mother's and Ms Lynn's evidence fell short because the degree and recency of their contact with the deceased in the period before his death was unquantified, and crucially, the deceased had in fact been found by police to have a knife on his person on at least one occasion six years before the incident, undermining any assertion of a contrary tendency (at [42]).

Issue 4: Whether the probative value substantially outweighed the prejudice

Even accepting that the 2016 and McCabe Park incidents had significant probative value for the tendency to carry a knife, the court concluded overall that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect within the meaning of s 101. The court observed that the relevance of the knife-carrying tendency to the self-defence issue was limited, and the evidence as to whether either man had a tendency to carry a knife was ambivalent, particularly given that both the accused and the deceased had each been found by police on one occasion to have been carrying a knife in public (at [51]). Both applications were dismissed.

Orders Made

  • The tendency evidence identified in the Crown's tendency notice dated 24 October 2019 is excluded.
  • The tendency evidence identified in the Crown's tendency notice dated 19 November 2019 is excluded.

Key Takeaways

  • Under s 97 of the Evidence Act 1995 (NSW), a tendency must be formulated with sufficient precision: evidence of arming for a specific encounter is not necessarily relevant to an alleged tendency to carry a weapon as a routine practice, even where both involve the same accused and similar conduct (at [31]).
  • Where an alleged tendency is that a person does not do something (such as carry a knife), evidence in support of that tendency carries little probative value unless the witness has a reliable basis for knowing whether the person would or would not engage in that conduct, particularly given that carrying a knife in public is now a criminal offence and therefore typically concealed (at [40]).
  • A single prior instance of conduct, standing alone, may be insufficient to establish a tendency: the Supreme Court rejected a sole stabbing from 13 years earlier as incapable of establishing a tendency to stab or attempt to stab others (at [38]).
  • Section 101 of the Evidence Act 1995 (NSW) requires that probative value substantially outweigh prejudicial effect before tendency evidence becomes admissible in criminal proceedings. Where the tendency evidence is ambivalent and its relevance to the central fact in issue is limited, that threshold may not be met even if the evidence clears the s 97 significant probative value hurdle (at [51]).
  • The Supreme Court confirmed that it would be open to a jury to convict an accused of murder even if the jury accepted that the deceased initially possessed and dropped the knife, which shaped how much weight the knife-possession tendency evidence could carry in relation to the self-defence issue (at [48]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 97, 101

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52