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Supreme Court 16 July 2024

R v Martin (No 2)

[2024] NSWSC 969

HomicideDomestic & family violence
EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS DEFENCE

Citation: R v Martin (No 2) [2024] NSWSC 969
Court: Supreme Court of New South Wales
Date: 16 July 2024
Judge: Chen J

Background

The accused stood trial for the murder of his partner's former boyfriend, allegedly committed on 3 February 2022 at Erina, New South Wales. The accused shared a home with his partner, Ms Wilson, who had previously been in a long-term relationship marked by drug use and domestic violence with the deceased.

On the day of the alleged murder, the deceased attended the complex where both Ms Wilson and the accused lived. He had spent the day searching for Ms Wilson, and witnesses recorded him making possessive and threatening remarks about her. He ultimately presented at the front door of the accused's unit, and a confrontation occurred in which the accused stabbed the deceased once in the chest, causing his death.

The accused did not dispute the stabbing but argued he acted in self-defence. His case was that the deceased arrived intoxicated, angry and jealous, and instigated a violent confrontation. The Crown disputed this account, pointing to inconsistencies between Ms Wilson's statement and the accounts of neighbouring witnesses.

Legal Issues

  • Whether the accused had given reasonable notice of his intention to adduce tendency evidence, satisfying section 97(1)(a) of the Evidence Act 1995 (NSW).
  • Whether the proposed tendency evidence had "significant probative value" within the meaning of section 97(1)(b) of the Evidence Act 1995 (NSW), in particular whether it was capable of bearing on the deceased's conduct and state of mind at the time of, or immediately before, the fatal confrontation.
  • Whether three distinct tendencies of the deceased could each separately satisfy the admissibility requirements: a tendency to act aggressively or violently in relationships; a tendency to behave possessively or in a controlling manner towards Ms Wilson; and a tendency to act violently in response to jealousy about Ms Wilson or in order to control her.

Decision

Procedural requirement (notice): Chen J found that the accused had given reasonable notice in writing of his intention to adduce tendency evidence, satisfying section 97(1)(a) of the Evidence Act (at [22]). The Crown did not contest this.

The legal framework: Section 97(1)(b) requires that the evidence have "significant probative value." The court noted that this assessment involves two interrelated inquiries: how strongly the evidence supports the asserted tendency, and how probative that tendency is of the facts in issue (at [25]). The court was required to take the proposed evidence at its highest, assuming the jury would accept it (at [26]). Relevantly, because the Crown bore the onus of disproving self-defence beyond reasonable doubt, evidence capable of raising self-defence as a reasonable possibility could carry substantial, and therefore significant, probative value (at [26]).

First and second tendencies (violence and possessiveness/control): The proposed evidence, drawn from police records of a domestic violence incident in November 2021, witness statements, text messages, Ms Wilson's own statement, and a psychologist's report, consistently depicted the deceased as aggressive, violent, possessive and controlling towards Ms Wilson throughout their relationship (at [48]). Chen J found that the evidence strongly supported proof of both the tendency to act aggressively or violently in relationships and the tendency to behave possessively or in a controlling manner towards Ms Wilson (at [49], [52]). Both tendencies were found to be probative of the deceased's state of mind when he arrived at the accused's home on 3 February 2022, and specifically whether he was prepared to use violence to force Ms Wilson to leave with him (at [50], [53]).

Third tendency (violence in response to jealousy): The Crown raised a concern that there was no direct evidence of the deceased having a tendency to act violently towards the accused specifically, or towards any person in a relationship with Ms Wilson (at [56]). Chen J acknowledged this distinction but found that the evidence relied upon, particularly that relating to events on the day of the altercation and in the moments surrounding it, had significant probative value in connection with whether the deceased acted in a particular way and the accused's response if he did (at [56]). The three tendencies were closely related and the evidence substantially overlapped (at [55]).

Orders Made

  • The accused may adduce evidence of the deceased's conduct showing a tendency to act in an aggressive or violent manner towards someone with whom he was in a relationship, particularly Ms Wilson, as described in items 1 to 9 of the amended tendency notice dated 8 July 2024.
  • The accused may adduce evidence of the deceased's conduct showing a tendency to behave in a possessive or controlling manner towards Ms Wilson, as described in items 1 to 9 of the amended tendency notice dated 8 July 2024.
  • The accused may adduce evidence of the deceased's conduct showing a tendency to behave violently in response to feelings of jealousy about Ms Wilson, or in order to control her, as described in items 1 to 9 of the amended tendency notice dated 8 July 2024.
  • All evidence adduced must be in admissible or agreed form.

Key Takeaways

  • Tendency evidence adduced by an accused about a deceased person's conduct can satisfy the "significant probative value" threshold under section 97(1)(b) of the Evidence Act 1995 (NSW) where it bears materially on the deceased's state of mind and likely conduct at the time of the charged offence, even if the prior conduct was directed at a third party rather than at the accused personally (at [56]-[57]).

  • Where the Crown bears the onus of disproving self-defence beyond reasonable doubt, evidence capable of raising self-defence as a reasonable possibility may carry particularly substantial probative weight for the purposes of the section 97(1)(b) threshold (at [26]).

  • Under the framework in Hughes v The Queen (2017) 263 CLR 338, the two inquiries in section 97(1)(b), namely how strongly evidence supports the asserted tendency and how probative that tendency is of the facts in issue, are interrelated and need not be conducted as a strict two-stage exercise (at [25]).

  • Prior violent or controlling conduct within a relationship can be relevant tendency evidence even where most of that conduct was directed at a third party rather than the accused, provided the evidence as a whole is capable of rationally affecting the probability of the nature of the confrontation in question (at [47], [50]).

  • The court confirmed that whether the accused was personally aware of the deceased's tendency to act violently is not determinative of, nor particularly significant to, the admissibility of that evidence as tendency evidence, though awareness may separately ground admissibility for non-tendency purposes (at [47]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Geraghty v R [2023] NSWCCA 47
- 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; (2018) 92 ALJR 1045
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Taylor v R [2020] NSWCCA 355
- TL v The King (2022) 275 CLR 83; [2022] HCA 35