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Supreme Court 21 April 2022

R v Russell (No 2)

[2022] NSWSC 1793

Homicide
EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS SIGNIFICANT PROBATIVE VALUE REASONABLE NOTICE DISCRETIONS

Citation: R v Russell (No 2) [2022] NSWSC 1793
Court: Supreme Court of New South Wales
Date: 21 April 2022
Judge: Cavanagh J

Background

The accused faced two counts of murder arising from the stabbing deaths of two people, Damien Roach and Leah Mumbulla, on 17 December 2019 in a shared unit block. The accused did not dispute that he stabbed both persons, but maintained he acted in self-defence throughout. His account was that Mr Roach came to his door armed with an axe or tomahawk, attacked him, and that Ms Mumbulla subsequently attacked him on a lower level of the building.

Two preliminary applications were heard before trial. The first was the accused's application to adduce tendency evidence concerning the violent and aggressive behaviour of both deceased persons. The second was the accused's application to exclude an audio-visual recording of evidence given by a witness, Mr Bangel, who had since died.

Legal Issues

  • Whether the accused gave reasonable notice of the tendency evidence under s 97 and s 100 of the Evidence Act 1995 (NSW), despite serving the tendency notice only 8 days before trial.
  • Whether the documents and events described in the tendency notice were capable of establishing that both deceased had a tendency to act violently and aggressively in confrontations, and whether that tendency evidence had significant probative value under s 97(1)(b).
  • Whether Mr Bangel's audio-visual evidence from the Local Court should be excluded on the basis that the Crown had failed to disclose the statements of another witness (Mr Hargraves) before Mr Bangel's evidence was recorded.

Decision

Issue 1: Reasonable notice of tendency evidence

The court accepted that 8 days' notice was reasonable in the circumstances, despite acknowledging the volume of documents spanning 15 years (at [9]-[13]). Cavanagh J found that the lateness arose substantially from the Crown's own delay in producing documents the accused had sought earlier, which could itself have grounded a dispensation from the notice requirement under s 100 of the Evidence Act (at [11]). The court also noted that the issues raised by the notice, while extensive, were sufficiently confined (at [13]).

Issue 2: Significant probative value of the tendency documents

The court found that most of the events and documents in the tendency notice were capable of supporting the asserted tendency that both deceased acted violently and aggressively in confrontations (at [22]). Following the approach in R v Bryce (No 2), Cavanagh J assumed the accused would be able to adduce the evidence in admissible form or by agreement with the Crown, rather than ruling at this stage on the admissibility of each document (at [21], [23]).

For Mr Roach, the court found significant probative value in documents showing: threats and violence against a de facto partner involving demands for money (at [37]-[38]); threats and physical assault of a landlord during a money dispute (at [39]-[40]); punching a victim multiple times during a verbal altercation (at [42]); and erratic and violent behaviour including punching his partner and locking himself in a unit (at [44]). The court excluded documents relating to drug-driving and property damage, finding those lacked significant probative value (at [32]).

For Ms Mumbulla, the court found significant probative value in documents showing: lunging at Mr Roach with a kitchen knife during a domestic dispute (at [45]-[46]); striking a neighbour with a glass during a unit-block dispute (at [47]-[48]); and a pattern of conduct including punching strangers, striking a partner with a hammer, and holding a knife while intoxicated (at [49]-[51]). The court emphasised that the tendency asserted was not limited to conduct while intoxicated, and that individual incidents could be viewed collectively as a pattern (at [51]).

Issue 3: Exclusion of Mr Bangel's audio-visual evidence

The court rejected the application to exclude Mr Bangel's Local Court evidence (at [59]). The accused argued that, had the Crown disclosed Mr Hargraves's statements earlier, he would have cross-examined Mr Bangel on the accused's alleged threats to Mr Hargraves. The court accepted that those matters would have been put to Mr Bangel, but noted the Crown's commitment to not adducing the contested evidence from Mr Hargraves at trial (at [57]). Cavanagh J also expressed uncertainty about the legal basis for excluding Mr Bangel's evidence in response to the Crown's non-disclosure of a different witness's statements, noting that s 146 of the Criminal Procedure Act 1986 (NSW) addresses exclusion of the undisclosed witness's evidence, not a separate witness's evidence (at [58]).

Orders Made

  • The accused's application to admit tendency evidence pursuant to the tendency notice was accepted.
  • The accused's application to exclude the audio-visual evidence of Mr Bangel was rejected.

Key Takeaways

  • Where a tendency notice is served late due to the Crown's own failure to produce requested documents, that circumstance may support dispensing with the notice requirement under s 100 of the Evidence Act 1995 (NSW) rather than leading to a finding that the notice was unreasonable (at [11]).

  • Following R v Bryce (No 2), a court determining significant probative value at the tendency notice stage may assume the accused will adduce the relevant events in admissible form or by agreement, and need not rule on the admissibility of each individual document at that point (at [21], [23]).

  • Tendency evidence is not confined to incidents closely resembling the conduct alleged at trial. Domestic and older incidents can have significant probative value when viewed collectively as part of a pattern demonstrating a tendency to use violence in confrontations, even if each individual incident occurred in a different context (at [35], [51]).

  • Section 146 of the Criminal Procedure Act 1986 (NSW) provides for the exclusion of evidence from a witness whose material was not disclosed, not for the exclusion of a separate witness's evidence as a remedy for the non-disclosure (at [58]).

  • A single incident can be sufficient to constitute evidence of a relevant tendency, though whether it does so depends on the facts and circumstances of the particular case, consistent with the approach confirmed in R v Sharpe (No 5) (at [29]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 146
- Evidence Act 1995 (NSW), ss 97, 100

Cases
- Gardiner v Regina (2006) 162 A Crim R
- Hughes v R (2017) 263 CLR 338
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Bryce (No 2) [2014] NSWSC 498
- R v Cittadini [2008] NSWCCA 256
- R v Lockyer (1996) 89 A Crim R 457
- R v Sharpe (No 5) [2021] NSWSC 52