Citation: R v Henry (a pseudonym) [2025] NSWSC 951
Court: Supreme Court of New South Wales
Date: 14 August 2025
Judge(s): McNaughton J
Background
The accused stood charged with the murder of a man found dead in a stairwell of a Sydney CBD building in December 2022. The Crown alleged the accused participated in a fatal assault alongside an alleged co-offender, Mr Lui. Separate trials had previously been ordered by Sweeney J.
The accused's account, given in a police interview and in a recorded conversation with an undercover operative, was that Mr Lui carried out the assault and that the accused had been present but fearful, attempting to stop the violence. The accused sought to support that account with evidence of Mr Lui's disposition toward violent and aggressive behaviour.
Before trial, the accused applied to have Mr Lui's criminal history admitted. The application was advanced on two alternative bases: the principle from R v Cakovski (which permits evidence going to the credibility of an accused's account) and, in the alternative, as tendency evidence under the Evidence Act 1995 (NSW).
Legal Issues
- Whether Mr Lui's criminal history was admissible under the Cakovski principle, as evidence relevant to the credibility of the accused's account of his state of mind and fear of Mr Lui.
- Whether the criminal history qualified as tendency evidence under s 97 of the Evidence Act 1995 (NSW), having significant probative value not substantially outweighed by prejudicial effect.
- Whether the evidence should be excluded under s 135(c) of the Evidence Act on the ground that its probative value was substantially outweighed by the risk of undue waste of time.
Decision
Issue 1: The Cakovski basis
McNaughton J noted that the Cakovski principle permits evidence of a third party's character or conduct to be adduced where it is relevant to the credibility of an accused's account. However, his Honour found it unnecessary to resolve the Cakovski question because the evidence was admissible as tendency evidence in any event.
Issue 2: Tendency evidence under s 97
McNaughton J held that Mr Lui's criminal history, including prior offences of intimidation and the allegations underlying an armed robbery charge in January 2022, demonstrated a tendency to engage in violent and threatening conduct. That tendency was directly relevant to the accused's stated basis for his account: namely, that he feared Mr Lui would turn on him if he did not comply. The evidence carried significant probative value because it went to the plausibility of the accused's state of mind, a matter the jury would need to assess.
His Honour emphasised that the probative value was reinforced by the evidence of Mr Lui's conduct in the hours following the alleged offence, which the Crown itself intended to lead. McNaughton J also noted that tendency evidence does not need to establish the tendency as the only rational inference; it is sufficient that it rationally affects the probability of the fact in issue.
Issue 3: Discretionary exclusion under s 135(c)
McNaughton J rejected the Crown's submission that the evidence should be excluded because it would cause undue waste of time. His Honour characterised the relevant body of evidence as relatively confined, noting it would take minutes rather than hours or days to isolate Mr Lui's role in matters where multiple participants were involved. The court also noted the observation from Cakovski that a trial judge would need to think long and hard before exercising a discretionary exclusion against an accused in a criminal trial.
McNaughton J did indicate that some modifications to the draft agreed facts document were required. Entries that contained only bare one-or-two sentence descriptions without contextual detail, or that merely recorded court orders and detention details without describing the actual offending, should be removed, as they did not demonstrate any relevant tendency.
Orders Made
- The proposed tendency evidence relating to the criminal history of Mr Lui is admitted, subject to modifications to the draft agreed facts document as indicated by the court.
Key Takeaways
- Tendency evidence concerning an alleged co-offender's criminal history can be admissible where it rationally supports the plausibility of an accused's account of their own state of mind at the time of the alleged offence.
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence must have significant probative value. Here, the court found that value in the direct connection between Mr Lui's history of violent and intimidatory conduct and the accused's claim that he acted out of fear of Mr Lui.
- Where the Crown itself intends to lead evidence of a co-offender's post-offence behaviour, that context can reinforce the probative value of tendency evidence going to the same co-offender's disposition.
- Discretionary exclusion under s 135(c) requires that probative value be substantially outweighed by the risk of undue waste of time. A relatively confined body of evidence that can be addressed in minutes will not ordinarily meet that threshold.
- Tendency evidence must describe the relevant offending in sufficient detail to establish the alleged tendency. Bare references to charges, orders made, or detention details, without contextual information about the conduct itself, will not suffice and should be excluded from an agreed facts document.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 135
- Crimes Act 1900 (NSW), s 86
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases
- R v Henry; R v Lui [2024] NSWSC 1491
- R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21
- Hughes v R (2017) 263 CLR 338; [2017] HCA 20
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- TL v R (2022) 275 CLR 83; [2022] HCA 35
- Elias v R [2006] NSWCCA 365
- Elomar v R; Hasan v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
- R v Bryce (No 2) [2014] NSWSC 498; 240 A Crim R 471
- R v Cairney [2024] NSWSC 1451
- R v Holmes (No 5) [2021] NSWSC 115
- R v Martin (No 2) [2024] NSWSC 969