Citation: R v Green (No 9) [2021] NSWSC 1318
Court: Supreme Court of New South Wales
Date: 8 October 2021
Judge: Campbell J
Background
The defendant, Mr Green, faced a special hearing (a form of trial conducted where an accused is unfit to plead) on a charge of murder. The deceased, Ms Luckwell, was found at her home in South Tamworth and had died from three stab wounds to her neck and back. The Crown case was entirely circumstantial, placing Mr Green in the immediate vicinity of the deceased's home around the time of her death, and including a witness who observed Mr Green carrying a knife consistent with the fatal weapon that night.
Because Mr Green was unfit to plead, the proceedings were conducted as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The question for Campbell J was not guilt in the ordinary criminal sense, but whether the Crown had proved beyond reasonable doubt that Mr Green committed the offence as required by s 59 of that Act. A separate question of mental health impairment under s 28 of the Act was noted but set aside for this ruling.
The Crown sought to tender tendency evidence relating to an earlier incident in October 2017 in which Mr Green had assaulted a man named Mr Jones. The Crown argued this demonstrated a tendency significantly probative of the question of who killed the deceased. The ruling concerned only the admissibility of that tendency evidence.
Legal Issues
- Whether the October 2017 incident involving Mr Jones was admissible as tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW)
- Whether the tendency evidence had significant probative value, particularly in establishing the identity of the offender
- Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the defendant
Decision
Campbell J identified the central question as whether the tendency evidence had significant probative value in identifying Mr Green as the killer. The Crown argued that the October 2017 incident showed a tendency to use a knife or sharp implement when confronting others, mirroring the stabbing death of the deceased in March 2018.
On the facts, however, the October 2017 incident did not involve a knife. Mr Jones's evidence revealed that Mr Green had used a different implement, one described as capable of breaking the skin but not inflicting serious injury, applied with a "whack, whack" motion. This stood in stark contrast to the murder, which required a kitchen-style knife of significant blade length and moderate to significant force to penetrate the cervical spine.
Campbell J concluded the degree of similarity between the two incidents was low. Even when the tendency evidence was placed in the context of the other circumstantial evidence relied on by the Crown, it added nothing to the probative value of that broader body of evidence. The surrounding circumstances, taken together, may themselves have carried significant probative value on the question of identity, but the October 2017 incident did not meaningfully augment that case.
The judge also rejected the Crown's submission that the risk of prejudicial misuse was reduced because the tribunal of fact was a professional judge rather than a lay jury. Campbell J accepted that prejudice could arise even for a professional decision-maker, because evidence of a prior act of violence committed only months before the murder carried a real danger of encouraging an impermissible inference that Mr Green was generally prone to violence. Given the low similarity between the incidents, that risk was not adequately controlled. The tendency evidence was therefore excluded.
Orders Made
• The evidence of what happened on 29 October 2017 is rejected and not admitted as tendency evidence.
Key Takeaways
- Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence going to identity must have significant probative value, and that value must substantially outweigh any prejudicial effect before it is admissible in a criminal proceeding.
- Where the degree of similarity between a tendency incident and the charged offence is low, the evidence is unlikely to satisfy the significant probative value threshold, even when considered alongside other circumstantial evidence.
- A prior violent incident does not automatically bolster an otherwise strong circumstantial Crown case: Campbell J found the October 2017 assault added nothing to the probative weight of the broader set of circumstances already in evidence.
- The fact that the fact-finder is a professional judge rather than a lay jury does not eliminate the risk of unfair prejudice from tendency evidence; impermissible propensity reasoning remains a live concern in judge-alone or special hearing proceedings.
- The distinction between the implement used in a prior incident (capable only of minor injury) and the weapon used in a charged stabbing (a substantial kitchen-style knife wielded with significant force) was material to the similarity analysis and ultimately determinative of admissibility.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 101
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 59
Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- TL v R [2020] NSWCCA 265