Citation: R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21
Court: NSW Court of Criminal Appeal
Date: 19 August 2004
Judge(s): Hodgson JA; Hulme J; Hidden J
Background
The appellant was convicted of murder following a stabbing that occurred in Strathfield in the early hours of 20 May 2001. The deceased, who was heavily intoxicated, died from four stab wounds to the chest and an incised wound to the face. The appellant did not dispute that he inflicted the wounds.
The critical issue at trial was whether the appellant acted in self-defence. He gave evidence that the deceased had kicked and threatened him repeatedly, declaring he would kill him, and that the knife he used had fallen from his sock rather than been deliberately drawn. The Crown, by contrast, alleged the killing arose from a plan to rob the deceased, with the deceased's companion used as a lure.
Central to the appeal was the trial judge's rejection of two pieces of evidence: that the deceased had killed three people some 23 years earlier, and that on the same night as the stabbing, the deceased had threatened another man by saying he would kill him "like I killed the other three people." The appellant argued this evidence was essential to his self-defence case, because without it his account of the deceased's extreme aggression appeared implausible.
Legal Issues
- Whether evidence of the deceased's prior killings (committed 23 years earlier) was admissible, either as tendency evidence or on some other basis, to support the appellant's claim of self-defence
- Whether evidence of a threat made by the deceased on the night of the killing, referencing those prior killings, was similarly admissible
- Whether, if the evidence was wrongly excluded, the conviction could nonetheless stand by application of the proviso (that is, whether no substantial miscarriage of justice occurred despite the error)
Decision
The Court of Criminal Appeal held that the trial judge erred in excluding both pieces of evidence. The evidence of the deceased's prior killings and the threat he made on the same night, referencing those killings, were relevant and probative because they lent credibility to the appellant's account of the deceased's violent threats. Without that evidence, the jury was left to assess an account that would have seemed, in the court's words, highly unlikely.
On the question of admissibility, Hodgson JA and Hulme J considered the evidence admissible not only as tendency evidence but also on other grounds, including as evidence going to the effect the deceased's statements had on the appellant's state of mind. Hidden J agreed on the outcome but took a somewhat different path, concluding that the evidence was necessarily tendency evidence, since its probative force lay in demonstrating the deceased's propensity for extreme violence against those who crossed him.
All three judges agreed the evidence satisfied the requirements for tendency evidence under the Evidence Act 1995. Because it was tendered by an accused, it was not subject to the higher threshold of "substantial" probative value required under s 101 (which applies to tendency evidence led by the Crown). The court noted that while lack of notice under s 97 could have been a consideration, it had not formed part of the trial judge's reasons, and the court indicated that the discretion to exclude under s 135 would need to be exercised with great care before being used against an accused in a criminal trial.
The court declined to apply the proviso. Given that the excluded evidence was directly relevant to the central contest at trial and that a jury's assessment of the appellant's credibility may well have been affected by its absence, a substantial miscarriage of justice could not be ruled out.
Orders Made
- Appeal allowed
- Conviction quashed
- New trial ordered
Key Takeaways
- Tendency evidence tendered by a defendant in a criminal trial is not subject to the "substantial probative value" requirement imposed on Crown tendency evidence by s 101 of the Evidence Act 1995; the lower threshold in s 97 applies instead.
- Evidence of a deceased's prior violent conduct can be admissible in a self-defence case where it gives credibility to an account of the deceased's threats that would otherwise appear implausible to a jury.
- A threat made on the same night as a killing, in which the deceased referenced earlier murders, was found to have enhanced probative value because it connected the historical conduct directly to the events in question.
- Hidden J's reasons confirm that courts should be slow to exercise the discretion under s 135 of the Evidence Act to exclude evidence where doing so would operate against an accused in a criminal trial.
- In dismissing the application of the proviso, the Court of Criminal Appeal reinforced that where excluded evidence goes to the heart of the only live issue at trial, a substantial miscarriage of justice cannot readily be dismissed.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 100, 135, 137
- Crimes Act 1900 (NSW), ss 418 to 422
Cases:
- Festa v The Queen (2001) 208 CLR 593
- Killick v The Queen (1981) 147 CLR 565
- Lawrence v The Queen (1981) 38 ALR 1
- R v Chin (1985) 157 CLR 671
- R v Soma (2003) 212 CLR 299
- R v Lockyer (1996) ACrimR 457
- R v Martin [2000] NSWCCA 332
- Shaw v The Queen (1952) 85 CLR 365