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Supreme Court 28 February 2023

R v Carberry (No 3)

[2023] NSWSC 166

Homicide
CRIMINAL LAW EVIDENCE TENDENCY WHERE ACCUSED CHARGED WITH MURDER WHERE ACCUSED RAISED SELF DEFENCE

Citation: R v Carberry (No 3) [2023] NSWSC 166
Court: Supreme Court of NSW
Date: 28 February 2023
Judge: Hamill J

Background

The accused stood trial for the alleged murder of the deceased following a stabbing in Griffith in September 2020. The prosecution case was that the accused lured the deceased to an address, using messages from a mutual acquaintance as bait, and then attacked him in an unprovoked assault motivated by jealousy and an intention to steal the deceased's car. The deceased was stabbed twice in the chest and died at the scene.

The accused denied any plan to rob or ambush the deceased. His case was that the deceased initiated the physical confrontation, that the deceased produced the knife, and that the accused acted in self-defence. The accused indicated he would give evidence to that effect at trial.

On the eve of the sixth day of trial, the accused served a tendency notice under s 97 of the Evidence Act 1995 (NSW), seeking to admit evidence of the deceased's prior violent conduct. The notice was served very late, and the prosecution objected to the evidence. The trial was adjourned briefly to allow both parties to address the issue, and Hamill J ruled on admissibility at 2:00 pm on 28 February 2023.

  • Whether the court should dispense with the notice requirement under s 97(1)(a) of the Evidence Act 1995 (NSW), given the lateness of the tendency notice.
  • Whether evidence of the deceased's prior violent conduct had "significant probative value" as required by s 97(1)(b).
  • Whether that evidence was capable of giving rise to the tendency asserted: namely, that the deceased had a tendency to be violent when his goals were frustrated.

Decision

Notice requirement: Hamill J dispensed with the notice requirement under s 100(1) of the Evidence Act. The prosecution did not oppose a direction under s 100, and the judge gave significant weight to the fairness with which the prosecution had responded, the availability of a short adjournment to alleviate any prejudice, the marginal impact on trial length, and the serious consequences for the accused if the evidence were excluded on a purely procedural basis.

The tendency asserted: The accused sought to establish that the deceased had a tendency to become violent when his goals were frustrated. The proposed evidence included the deceased's criminal history, police facts sheets recording assault and stalking offences in 2016 and 2017, and Local Court evidence from the father of the deceased's former partner. In the context of the trial, the accused argued that the deceased's romantic advances toward the mutual acquaintance had been persistently rejected, and that when the deceased arrived and found the accused present, his frustration at being denied what he wanted provided the trigger for violence.

Significant probative value: The prosecution argued the prior incidents were isolated, involved relatively low-level violence, occurred within family dynamics, were remote in time, and were not followed by any further known violence. Hamill J acknowledged those factors had some impact on the weight of the evidence, particularly after hearing evidence about the 2016 incident directly. Nonetheless, applying the High Court's framework across a line of decisions including Hughes v The Queen, The Queen v Bauer, McPhillamy v The Queen, Kadir v The Queen, TL v The King, and IMM v The Queen, the judge concluded that the extent to which the evidence might bear on the facts in issue was significant, and the admissibility threshold was met.

Additional basis for admission: Hamill J also noted the evidence was independently relevant and admissible on the reasoning in R v Cakovski, where Hodgson JA and Hulme J addressed the use of prior violent conduct to reduce the improbability of an accused's claim that the deceased was the aggressor. Where only the accused will assert that the deceased initiated the violence, evidence of the deceased's prior conduct can render that account less improbable. The judge left open whether tendency evidence adduced by an accused attracts a less stringent test than tendency evidence led by the prosecution, as resolution of that question was unnecessary.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 100(1) of the Evidence Act 1995 (NSW), a court may dispense with the written notice requirement for tendency evidence under s 97, and will weigh factors including trial length, fairness to the opposing party, the potential importance of the evidence, and the consequences for the party seeking to adduce it.
  • Evidence of a deceased person's prior violent conduct can satisfy the "significant probative value" threshold in s 97(1)(b) even where the incidents are relatively isolated, some years old, and occurred in a different context, provided they are capable of supporting the tendency asserted.
  • A further, independently applicable basis for admitting such evidence arises from R v Cakovski: prior acts of violence by a deceased can reduce the apparent improbability of an accused's claim that the deceased was the aggressor, particularly where the accused is the sole witness to that effect.
  • The Supreme Court declined to resolve whether tendency evidence adduced by an accused is subject to a less stringent test than tendency evidence adduced by the prosecution, noting that question remains open after decisions such as R v Holmes (No 5) [2021] NSWSC 115 and The Queen v Majak [2022] NTSC 57.
  • The factual connection between the tendency alleged and the circumstances of the charged offence matters: Hamill J found the deceased's pattern of becoming violent when frustrated was capable of applying directly to the circumstances in which the fatal altercation occurred.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 100, 192
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- TL v The King (2022) 96 ALJR 1072; [2022] HCA 35
- R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21
- R v Holmes (No 5) [2021] NSWSC 115
- The Queen v Majak [2022] NTSC 57
- Elomar v R (2004) 316 ALR 206; [2014] NSWCCA 303
- Director of Public Prosecutions v Dixon (Ruling No 1) [2020] VSC 743
- DPP v Wilson (Ruling) [2021] VSC 766