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Supreme Court 15 January 2021

R v Darcy

[2021] NSWSC 12

HomicideFraud & dishonestyDomestic & family violence

Citation: R v Darcy [2021] NSWSC 12
Court: Supreme Court of New South Wales
Date: 15 January 2021
Judge(s): Lonergan J

Background

The accused stood charged with the murder of her domestic partner at Walcha on 2 August 2017. The prosecution alleged she sedated him and then staged his death as a suicide using a plastic bag, elastic, tubing, and a helium cylinder, intending to benefit from his will as sole beneficiary. The accused pleaded not guilty and denied the charge.

Before the trial, the prosecution applied under s 97 of the Evidence Act 1995 (NSW) for a pre-trial ruling permitting it to lead tendency evidence in its case. That evidence came primarily from statements of a former domestic partner and from agreed facts relating to criminal charges arising from the accused's conduct toward that former partner in 2009.

The prosecution sought to establish that the accused had a tendency to sedate domestic partners with prescription drugs and to inflict serious harm on them in order to obtain financial benefit. The accused opposed the application on multiple grounds.

  • Whether the proposed tendency evidence satisfied the notice and significant probative value requirements under s 97 of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused, as required by s 101 of the Evidence Act
  • Whether the similarities between the prior conduct and the charged conduct were sufficiently specific to support the tendencies asserted by the prosecution
  • Whether the time gap between the prior conduct (2009) and the alleged offence (2017) rendered the tendency evidence too remote to be admissible

Decision

Lonergan J granted the prosecution's application in part. Her Honour found that the proposed tendency evidence, considered together with other prosecution evidence to be led at trial, was relevant under s 55 of the Evidence Act and had significant probative value within the meaning of s 97. The court assessed probative value on the assumption that the jury would accept the evidence, without weighing its credibility or reliability, consistent with the approach in IMM v R and Hughes v The Queen.

The court accepted the prosecution's submission that the combination of features present in both the prior conduct and the charged conduct demonstrated a high level of specific similarity. Those overlapping features included the prospect of significant financial gain, a cohabiting and vulnerable victim, the accused's controlling role in domestic circumstances, the use of sedatives, and deliberate acts seriously harming the relevant partner. Taken together, these similarities supported a strong inference of the asserted tendency.

On the question of remoteness, the court was not persuaded that the approximately eight-year gap between the 2009 conduct and the 2017 alleged offence disqualified the evidence. The unusual specificity of the similarities across both episodes outweighed the time difference as a disqualifying consideration.

The court excluded two items from the tendency notice: evidence relating to the serving of oysters kilpatrick to the former partner, and the tendency identified as item 2(d) in the notice. For the remaining evidence, the court found that its probative value outweighed any prejudicial effect under s 101, and indicated that conventional jury directions would be given to guard against reasoning that treated the tendency evidence as proof of bad character or as a substitute for proof of the charged conduct.

Orders Made

  • The prosecution may adduce the tendency evidence set out in its Notice of 20 December 2019, with the following exceptions:
  • The evidence specified in item 4(a) of the Notice relating to the serving of oysters kilpatrick to the former partner
  • The tendency specified in item 2(d) of the Notice

Key Takeaways

  • Tendency evidence in criminal proceedings must satisfy two statutory tests: significant probative value under s 97 of the Evidence Act, and a further requirement under s 101 that probative value substantially outweigh prejudicial effect on the accused.
  • Under IMM v R and Hughes v The Queen, a trial judge assessing probative value must assume the jury will accept the tendency evidence and must not assess its credibility or likely weight. Those questions are left entirely to the tribunal of fact.
  • A high level of specificity in the combination of features shared between prior conduct and charged conduct can satisfy the significant probative value threshold, even without a "striking similarity" or "underlying unity" of the kind that earlier authorities sometimes required.
  • Temporal remoteness of approximately eight years did not, on these facts, render the tendency evidence inadmissible. The unusual degree of similarity across multiple specific features of the two episodes was a countervailing consideration of considerable weight.
  • Conventional jury directions limiting the use of tendency evidence remain the principal mechanism for managing the risk of unfair prejudice, and the court confirmed those directions would be given at trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 98, 101

Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
- R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
- R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 219
- R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209
- R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164
- McPhillamy v R [2017] NSWCCA 130