Citation: R v Holmes (No 5) [2021] NSWSC 115
Court: Supreme Court of New South Wales
Date: 9 February 2021
Judge: Campbell J
Background
The accused stood trial for the murder of Chad Hadden, arising from an altercation at a Newcastle hotel in January 2018. Mr Hadden did not die until June 2018. The accused had pleaded not guilty to murder but guilty to manslaughter, a plea the Crown rejected, and the trial proceeded on both counts.
The central facts involved the accused and the deceased consuming a substantial quantity of alcohol at the Queens Wharf Hotel before a scuffle broke out, initiated by the deceased. After both men were ejected separately, they re-encountered each other outside, where the deceased allegedly made threatening remarks before the accused struck the fatal blow. Key factual disputes at trial concerned the accused's state of mind and the manner in which he struck the deceased after he had fallen.
On day six of the trial, the defence made a very late application to rely on tendency evidence concerning the deceased's alleged propensity for irrational violence, particularly following the consumption of alcohol. The tendency notice had not been served within the 21-day pre-trial period required by the Supreme Court Rules 1970 (NSW). The material underpinning the application, including the deceased's criminal record, had been within the defence brief since January 2020.
Legal Issues
- Whether the court should dispense with the requirement to serve a tendency notice within the prescribed time under s 100(1) of the Evidence Act 1995 (NSW)
- Whether evidence of the deceased's seven prior offences involving violence had significant probative value sufficient to satisfy s 97 of the Evidence Act 1995 (NSW)
- Whether the tendency evidence should nonetheless be excluded under s 101 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice
Decision
Campbell J acknowledged the application was made in highly unsatisfactory circumstances. Defence counsel conceded that the relevant material had been in the brief since January 2020 and that the issue first occurred to him only on the Sunday before the trial commenced. Despite describing this delay as a serious concern, the judge concluded that the interests of justice required the evidence to be admitted.
The tendency the defence sought to establish was that the deceased had a propensity to resort to irrational physical violence, particularly following the consumption of alcohol or drugs. The notice identified seven separate offending incidents between 1994 and 2017, involving violence against partners, a parent, and others in the deceased's personal orbit. Campbell J accepted this formulation, adopting the Crown's shorthand description of the tendency for the purposes of the oral ruling.
On the question of significant probative value under s 97, the judge was satisfied the evidence met the threshold. The deceased's pattern of violent conduct across more than two decades, directed at persons close to him and frequently connected to alcohol consumption, bore sufficient relevance to the circumstances of the fatal encounter to justify admission. The judge was not persuaded by the Crown's prejudice arguments, though he acknowledged the Crown had made a strong and well-taken objection.
To manage the lateness of the application, Campbell J fashioned a condition allowing the Crown liberty to call additional evidence in response, whether in its case in chief or in reply, and made clear that if the Crown elected to do so, a direction would be given to the jury that no criticism of the prosecution should follow from that course.
Orders Made
- The accused was granted leave to rely upon the tendency notice served on 8 February 2021.
- Evidence of each of the seven matters identified in the tendency notice was ruled admissible, subject to requirements of form.
- Compliance with s 97(1)(a) of the Evidence Act 1995 (NSW) was dispensed with, on the condition that the Crown have liberty to call such additional evidence as the prosecutor considers necessary to meet the tendency evidence, after any necessary adjournment, whether in its case in chief or in reply, at the prosecutor's election.
- Campbell J noted the circumstances were exceptional, justifying a departure from the general rule that the Crown may not split its case.
Key Takeaways
- A court may dispense with the pre-trial tendency notice requirement under s 100(1) of the Evidence Act 1995 (NSW) where the interests of justice so require, even where the lateness of the application is attributable to an oversight on the part of the party seeking to rely on the evidence.
- Tendency evidence concerning a deceased person's propensity for irrational violence following alcohol consumption can satisfy the "significant probative value" threshold in s 97 where there is a consistent pattern across multiple incidents spanning many years and involving persons close to the deceased.
- There is a meaningful distinction, in the court's view, between a party being aware of material and being aware that the material will be deployed against them at trial. This distinction informed the decision to allow the Crown the opportunity to respond with additional evidence.
- Where tendency evidence is admitted very late in a trial, the remedy for prejudice to the opposing party may lie in granting liberty to call responsive evidence, including, in exceptional circumstances, splitting the Crown's case, rather than in excluding the tendency evidence altogether.
- Under s 97 of the Evidence Act 1995 (NSW), the relevant tendency need not be framed narrowly. A tendency to resort to irrational violence against persons in close personal relationships, frequently connected to intoxication, was accepted as sufficiently precise to support admission across seven distinct prior incidents.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 97, 100, 101
- Criminal Procedure Act 1986 (NSW), s 130A
- Supreme Court Rules 1970 (NSW)
Cases
- Hughes v The Queen (2017) 263 CLR 338
- R v Cakovski [2004] NSWCCA 280
- Elias v R [2006] NSWCCA 365