Citation: R v MR, JB and CS (young persons) (No 3) [2024] NSWSC 259
Court: Supreme Court of New South Wales
Date: 15 March 2024
Judge: Huggett J
Background
Three young persons face a joint charge of murder following the death of the deceased. One accused, MR, does not dispute that he stabbed the deceased and caused his death. His defence is self-defence: he claims the deceased provoked a confrontation, agreed to a fist fight, and then produced a knife and moved towards MR before the fatal blow was struck.
MR sought to introduce evidence of seven prior incidents involving the deceased to establish that the deceased had tendencies to threaten or provoke physical confrontations, to engage in fights, and to use weapons including knives and hammers. The Crown objected on the basis that the evidence lacked sufficient probative value to satisfy the admissibility threshold under the Evidence Act 1995 (NSW).
The Crown's primary position was that the real dispute at trial concerned whether the deceased was armed with a knife at the relevant moment, and that most of the proposed tendency events were either too dissimilar or insufficiently detailed to bear meaningfully on that question.
Legal Issues
- Whether the seven proposed prior incidents involving the deceased satisfied the "significant probative value" requirement for tendency evidence under s 97 of the Evidence Act 1995 (NSW)
- Whether, even if significant probative value were established, the discretion to exclude the evidence under s 135 of the Act should be exercised on the basis of unfair prejudice to the Crown
- Whether the notice requirements for tendency evidence under s 97 should be dispensed with
Decision
Huggett J considered each of the seven proposed incidents in turn. Three were ruled inadmissible. One alleged altercation was excluded because the person involved had refused to make a statement and the available detail was insufficient to give the evidence probative value. Two other incidents, including a brief school fight and a complaint by a student described as not entirely credible, were excluded because they did not meaningfully advance the tendency argument.
Four incidents were admitted as tendency evidence. These included: a 2020 affray at the home of a related party where the deceased attended armed with a concealed hammer; a 2021 unprovoked assault at a fast food restaurant; a 2022 incident at a pizza shop where the deceased produced a knife during an altercation, held it up, and only put it away when called out before handing it off and continuing to fight; and a 2022 incident where the deceased challenged a police officer to a fight, adopted a boxing stance, and behaved aggressively after arrest.
Huggett J found that these four events, taken at their highest, were sufficient to meet the threshold of significant probative value. They were relevant to whether the deceased was armed at the time of the fatal stabbing and to the broader factual matrix of the self-defence claim. The court noted that MR bears no burden of proof and need only point to matters that raise a reasonably possible alternative to the Crown's case.
On the s 135 discretion, Huggett J declined to exclude the evidence. The fact that the deceased could not give his account of the prior incidents did create some prejudice, but that prejudice fell well short of substantially outweighing the significant probative value the court had identified. The court also noted that the Crown would be entitled to adduce contextual evidence in relation to the admitted incidents if it chose to do so.
Orders Made
- Notice requirements for tendency evidence under s 97 of the Evidence Act 1995 (NSW) dispensed with
- Event 73856475 (2020 affray with concealed hammers): admissible as tendency evidence
- Event 73811236 (2020 alleged assault on CT): not admissible as tendency evidence
- Event 446153592 (2020 school altercation): not admissible as tendency evidence
- Event 79147746 (2021 assault at fast food restaurant): admissible as tendency evidence
- Event 80796544 (2021 school complaint): not admissible as tendency evidence
- Event 1111655090 (2022 pizza shop incident involving a knife): admissible as tendency evidence
- Event 87547848 (2022 confrontation with police): admissible as tendency evidence
All admissibility rulings are subject to any further objection as to the precise details of the evidence.
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is admissible only where the court is satisfied that it has significant probative value. In this case, four of seven proposed incidents cleared that threshold; three did not.
- Probative value is assessed incident by incident. Lack of detail, an absence of supporting statements, or a failure to advance the specific tendency argued each independently justified exclusion of three incidents here.
- Where a self-defence claim turns partly on whether a deceased was likely to have been armed, prior incidents involving that deceased producing or using weapons can carry sufficient probative value to be admitted as tendency evidence about the deceased's conduct.
- The inability of a deceased person to respond to prior incident allegations does not automatically trigger exclusion under s 135. The resulting prejudice must substantially outweigh probative value before the discretion to exclude arises.
- A defendant relying on self-defence is not required to prove the tendency on the balance of probabilities. It is sufficient to raise a reasonably possible alternative to the prosecution's version of events.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97 and 135
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311