Citation: R v Cairney [2024] NSWSC 1451
Court: Supreme Court of New South Wales
Date: 7 November 2024
Judge: Campbell J
Background
The accused is charged with murdering Jason Smith in Wollongong on 18 December 2022. It is not disputed that the accused stabbed Mr Smith and that the stabbing caused his death. The central issue for trial is whether the Crown can disprove the defence of self-defence beyond reasonable doubt under s 418 of the Crimes Act 1900 (NSW).
Following his arrest, the accused participated in a police interview in which he gave an account supporting a self-defence claim. In advance of trial, the accused sought a pre-trial ruling on the admissibility of tendency evidence concerning the deceased's past conduct.
The tendency notice, dated 31 July 2024, sought to adduce evidence of the deceased's propensity to provoke and engage in physical confrontations (including when intoxicated) and to use or threaten to use a knife in those confrontations. The evidence proposed to support those tendencies arose from records relating to ten prosecutions of the deceased spanning incidents between 9 November 1997 and 3 June 2022. One incident was withdrawn during argument, leaving nine matters in play.
Legal Issues
- Whether the proposed tendency evidence met the threshold of "significant probative value" under s 97(1)(b) of the Evidence Act 1995 (NSW).
- Whether, even if the threshold were met, the probative value of the evidence was outweighed by the danger of unfair prejudice to the Crown under s 135 of the Evidence Act.
- Whether the underlying evidence proposed to establish the tendency was inadmissible hearsay, rendering the admissibility question moot in practice.
Decision
Significant probative value
Campbell J held that the proposed tendency evidence relating to the deceased's tendency to provoke and engage in physical confrontations (sub-paras 2(a) and 2(b) of the notice) satisfied the significant probative value threshold in s 97(1)(b). The relevant facts in issue included whether the deceased was acting aggressively toward the accused shortly before the stabbing, whether the deceased was trying to provoke the accused, and whether the deceased was armed with a knife. The court was satisfied that each of these facts was directly relevant to whether the Crown could exclude the reasonable possibility of self-defence.
However, the court declined to admit the tendency in sub-para 2(c), namely the tendency to use or threaten to use a knife. The court appears to have found that this tendency, cast at its proposed level of generality, did not meet the significant probative value requirement. Campbell J noted throughout that the tendencies were framed at a significant level of generality, a consideration relevant to the s 97 assessment.
Hearsay concerns
Rather than ruling definitively on the hearsay objection in the abstract, Campbell J indicated that whether individual items of evidence were admissible in form would remain a matter for determination at trial. The court was satisfied, however, that there was a real prospect that admissible evidence could be adduced in relation to each incident, so that resolving the substantive tendency question had practical effect.
Unfair prejudice under s 135
The court was not persuaded that s 135 was engaged so as to require exclusion. Campbell J observed that standard jury directions on tendency evidence and general instructions to decide cases dispassionately provide adequate safeguards. Any particularly prejudicial individual items could be addressed through sanitisation at the point of tender, whether by agreement between counsel or by ruling.
Orders Made
- The accused may rely upon the tendencies in sub-paras 2(a) and 2(b) of the tendency notice dated 31 July 2024 (tendency to provoke, and tendency to engage in, physical confrontations including when intoxicated).
- The tendency in sub-para 2(c) (use or threat of a knife) is not admissible.
- Evidence of each of the nine remaining incidents summarised in Annexure A to the accused's written submissions (excluding matter H75699882) is admissible, subject to requirements of form.
Key Takeaways
- Under s 97(1)(b) of the Evidence Act 1995 (NSW), tendency evidence adduced by an accused in support of a self-defence claim must still demonstrate "significant probative value," but the additional admissibility hurdle in s 101 (which applies to Crown tendency evidence against an accused) does not apply.
- The level of generality at which a tendency is framed is a material consideration in assessing whether the significant probative value threshold is met; broadly cast tendencies may satisfy the test for some proposed conduct but not others.
- Campbell J confirmed that the leading High Court and intermediate appellate authorities on tendency evidence (developed in the context of Crown applications) state immutable principles, but those principles must be applied with an awareness that the Crown and defence contexts differ in important respects.
- Standard jury directions on tendency evidence, including that a person with a particular tendency may not act on it in every relevant situation, are relevant to the s 135 unfair prejudice balancing exercise.
- Where hearsay objections to the underlying evidence are raised, a court conducting a pre-trial admissibility ruling under ss 130A and 192A may proceed to determine the substantive tendency question if there is a real prospect that admissible evidence can be led at trial to establish the relevant facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 418 (self-defence)
- Criminal Procedure Act 1986 (NSW), s 130A (pre-trial rulings)
- Evidence Act 1995 (NSW), ss 55, 56, 97 (tendency rule), 101, 135, 192A
Cases
- Elias v R [2006] NSWCCA 365
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- R v Cakovski [2004] NSWCCA 280
- R v Martin (No 2) [2024] NSWSC 969
- R v XY [2013] NSWCCA 121