Citation: R v Chatimba (No 1) [2021] NSWSC 204
Court: Supreme Court of New South Wales
Date: 10 March 2021
Judge: Wright J
Background
The accused stood charged with the murder of the deceased, having inflicted fatal stab wounds with a knife. There was no dispute that the accused had delivered the fatal blows. The accused's defence was one of self-defence (or defence of another), asserting that the deceased had arrived at the accused's home in an agitated state, threw the first punch without warning, and continued to attack even after the accused produced a knife.
The accused sought to bolster that defence with evidence of a prior incident in which the deceased, while slightly intoxicated at a hotel in 2015, had approached another man in a car park and punched him twice in the face without warning. This prior conduct was said to demonstrate a tendency on the part of the deceased to become physically violent when drinking and to throw unprovoked punches in a confrontation.
The Crown objected to the admission of that tendency evidence. The question before Wright J was whether the evidence met the statutory threshold for admissibility under s 97 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the proposed tendency evidence satisfied s 97(1)(b) of the Evidence Act 1995 (NSW), specifically whether it would have "significant probative value"
- Whether the similarities between the prior incident and the alleged circumstances of the killing were sufficient to give the evidence genuine weight in the context of the self-defence case
Decision
Wright J confirmed that the only question requiring determination was whether the tendency evidence would have significant probative value under s 97(1)(b). The Crown did not press any objection based on failure to comply with the notice requirement in s 97(1)(a), though it reserved the right to raise other objections at trial.
The court identified the relevant fact in issue as whether the deceased, after drinking at a hotel, had initiated the altercation by throwing a punch at the accused and then continuing to attack him. Wright J found meaningful similarities between the 2015 incident and the account advanced by the accused: in both situations, the deceased had consumed alcohol, confronted another person, and delivered unprovoked punches to the face, continuing the assault even when the other person offered no resistance.
Wright J noted that there was also substantial evidence of the deceased's peaceful and non-violent character, and that this evidence was inconsistent with the tendency being asserted. However, that consideration did not preclude admission; it went to weight, not to the threshold question of significant probative value. The tendency, as formulated, was sufficiently specific to bear meaningfully on the core contested facts.
The court was satisfied that the tendency evidence, if accepted by the jury, had the rational capacity to affect the assessment of whether the deceased initiated the assault in the manner the accused described. Admission was accordingly granted, subject to the Crown's preserved right to raise other objections.
Orders Made
• Admit the tendency evidence identified, subject to the Crown's right to object on any other available ground.
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is admissible only where the party seeking to rely on it has given reasonable written notice and the court is satisfied the evidence will have significant probative value, either alone or in combination with other evidence.
- Where tendency evidence relates to the conduct of a deceased person in a murder trial, the relevant fact in issue can be the deceased's initiation of violence rather than any element of the offence itself, which affects how the significant probative value threshold is applied.
- Specificity in the formulation of the tendency matters: the closer the circumstances of the prior conduct to the conduct alleged at trial (including the role of alcohol, the absence of warning, and the continuation of the assault), the more readily a court may find that the evidence passes the threshold.
- The existence of competing character evidence suggesting the deceased was peaceful and non-violent goes to the weight the jury may ultimately give the tendency evidence, rather than defeating admissibility at the s 97 stage.
- Wright J expressly declined to resolve questions about the interaction between "significant probative value" and the standard of proof, noting those issues (explored in Hughes v The Queen and McPhillamy v The Queen) were not directly relevant where the fact in issue was not an element of the charged offence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (the tendency rule)
- Evidence Regulation 2020 (NSW), cl 5(2)(b)
Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 104
- R v Sharpe (No 5) [2021] NSWSC 52
- R v Wilson (No 3) [2017] NSWSC 1680