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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: Vojneski v The Queen
Citation: [2016] ACTCA 57
Hearing Dates: 2, 3 May 2016
Decision Date: 10 November 2016
Reasons Date: 10 November 2016
Before: Murrell CJ, Refshauge and Wigney JJ
Decision: Appeal against conviction dismissed.
Appeal against sentence allowed. Appellant sentenced to 19 years’ imprisonment with a nonparole period of 10 years’ imprisonment. See [140].
Catchwords: CRIMINAL LAW – EVIDENCE – Tendency evidence – use of tendency evidence – tests for admissibility – whether misdirection on tendency evidence –– similarity between tendency incidents – no substantial miscarriage of justice – similarity of tendency incidents and offence incident
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – murder – whether case in the worst category – public protection
Legislation Cited: Court Procedures Act 2004 (ACT) s 76 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Evidence Act 2011 (ACT) ss 55, 97, 101, Dictionary Supreme Court Act 1933 (ACT) s 37E, 37O
Court Procedure Rules 2006 (ACT) rr 5312, 5531
Cases Cited: BP v The Queen [2010] NSWCCA 303 Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199 Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568 Elomar v The Queen [2014] NSWCCA 303; 316 ALR 206 Festa v The Queen [2001] HCA 72; 208 CLR 593 Fillippou v The Queen [2015] HCA 29; 256 CLR 47 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 HML v The Queen [2008] HCA 16; 235 CLR 334 House v The King [1936] HCA 40; 55 CLR 499 Hughes v The Queen [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 90 ALJR 529 Munro v The Queen [2014] ACTCA 11 R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 R v Costa (No 1) [2015] ACTSC 63 R v Eastman (Unreported, Supreme Court of the ACT, Carruthers AJ, 10 November 1995) R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v Ford [2009] NSWCCA 306, 273 ALR 286 R v Hillier (Unreported, Supreme Court of the ACT, Grey J, 16
2
March 2005) R v Lam [2014] ACTSC 49 R v Lockyer (1996) 89 A Crim R 457 R v McDougall (Unreported, Supreme Court of the ACT, Gray J, 21 July 2011) R v O’Keefe [2009] NSWCCA 121 R v Schmidt [2013] ACTSC 295 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Steer and Williams (Unreported, Supreme Court of the ACT, Crispin J, 16 October 1997) R v Vojneski [2014] ACTSC 66 R v Vojneski (No 4) [2014] ACTSC 307 Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 Velkoski v The Queen [2014] VSCA 121; 45 VR 680 Vojneski v The Queen [2015] ACTCA 44
Texts Cited: Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) New South Wales Judicial Commission, Criminal Trials Courts Bench Book, vol 1 (Update 52) Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016)
Parties: Aleksander Vojneski (Appellant)
The Queen (Respondent)
Representation: Counsel
Mr S Gill and Mr A Hopkins (Appellant)
Mr J White SC and Mr J Hiscox (Respondent)
Solicitors
Darryl Perkins Solicitors (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Numbers: ACTCA 56 of 2014; ACTCA 20 of 2015
Decision under appeal:
Court/Tribunal: Supreme Court of the ACT
Before: Burns J
Date of Decision: 11 April 2014; 3 September 2014 and 11 November 2014
Case Title: R v Aleksander Vojneski
Citation: [2014] ACTSC 66; [2014] ACTSC 307
3
MURRELL CJ AND REFSHAUGE J:
Introduction
1. On the night of 27 March 2012, Paula Conlon (the deceased) was stabbed to death in
her bedroom at the home that she shared with a young boarder, A. The perpetrator
used “severe” force to inflict 11 stab wounds and four incised wounds to the deceased,
principally to her chest, heart and lung regions, and to her forearms. The murder
weapon was not located.
2. Prior to her death, the deceased was in a relationship with the appellant. The appellant
was charged with murdering the deceased.
3. At the trial, the identity of the perpetrator was the central issue. The defence did not
address the jury on mental impairment or self defence, although evidence of the mental
instability of the accused was admitted without objection.
4. The prosecution advanced a circumstantial case to prove that the appellant was the
murderer.
5. The circumstances upon which the prosecution relied included alleged tendencies of
the appellant. The prosecution asserted that the appellant tended to become quickly
aroused to anger and, when angry, to use knives to threaten people and to inflict harm
on people and objects.
6. Another circumstance upon which the prosecution relied was the existence of possible
motives for the appellant to murder the deceased, including the motive that, just before
the deceased’s death and at a time when the appellant was short of money to buy
drugs, he discovered that the deceased had purchased clothing. The prosecution said
that this discovery may have aroused a tendency of the appellant to become angry and
violent when he was not provided with money for drugs and, by that route, may have
provided the appellant with a motive to kill the deceased.
7. On 3 September 2014, a jury found that the appellant was guilty of murder.
8. On 11 November 2014, Burns J (the trial judge) sentenced the appellant to life
imprisonment: R v Vojneski (No.4) [2014] ACTSC 307 (Vojneski No.4).
9. Initially, the appellant appealed only against sentence. Later, Penfold J granted the
appellant leave to appeal against conviction on the grounds that the trial judge had
erred by admitting tendency evidence and had misdirected the jury in relation to
tendency evidence: Vojneski v The Queen [2015] ACTCA 44 (Leave Decision).
Grounds of Appeal
10. First, the appellant contended that the trial judge should have rejected the evidence of
the tendency incidents because, under s 101 of the Evidence Act 2011 (ACT)
(Evidence Act), the probative value of the evidence did not substantially outweigh its
prejudicial effect, regardless of whether the incidents were considered individually or
cumulatively (the s 101 ground).
11. Second, the appellant submitted that the trial judge had misdirected the jury by telling
them to disregard any similarities between the tendency incidents and the offence
4
incident when assessing the weight to be given to the tendency evidence (the
misdirection ground).
12. Third, the appellant submitted that the sentence was manifestly excessive and that the
trial judge had erred in the manner in which he approached the sentencing exercise
(the sentence grounds).
13. A decision under s 101(2) is reviewable pursuant to the principles stated in House v
The King [1936] HCA 40; 55 CLR 499 (House v The King). In Hughes v The Queen
[2015] NSWCCA 330 (Hughes) at [189], the NSWCCA said:
(Section 101 (2)) involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2).
A similar approach was taken in R v O’Keefe [2009] NSWCCA 121 (O’Keefe) at [49]
and Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 (Saoud) at [6] and [60].
14. However, we note that, in IMM v The Queen [2016] HCA 14 (IMM), the issue was not
directly raised, and the majority determined the matter without regard to House v The
King limitations.
Leave to appeal
15. The prosecution submitted that the appellant should be permitted to argue neither
conviction ground.
16. The prosecution argued that, as the s 101 ground involved an appeal against an
interlocutory order, leave was required under s 37E(4) Supreme Court Act 1933 (ACT).
In support of the contention that leave should be refused, the prosecution said that, at
no time, prior to or during the trial, did the appellant seek to appeal the decision and it
was not until 7 May 2015, almost six months after the appeal against sentence was
lodged, that the appellant sought to add conviction grounds. The delay militated
against the grant of leave to appeal the interlocutory order.
17. In relation to the misdirection ground, the prosecution relied on Court Procedure Rules
2006 (ACT) (CPR) r 5531. Rule 5531 does not speak of “leave”. Rather, subject to
another order of the Court of Appeal, it prevents a person from pursuing a ground of
appeal concerning an alleged misdirection if the person failed to object at the trial. The
prosecution noted that the appellant did not seek a redirection on the point now taken,
although his counsel did ask for further directions about other matters and the trial
judge made most of the requested redirections.
18. In addition, in relation to both conviction grounds, the prosecution submitted that the
belated attempt to appeal had an “armchair quality”: Munro v The Queen [2014]
ACTCA 11 per Burns J at [128] (Refshauge and Penfold JJ agreeing).
19. In our view, the appellant should be permitted to pursue both grounds.
20. When dealing with the question of leave to appeal out of time on both conviction
grounds in the Leave Decision, Penfold J addressed delay at [21]–[24], finding that the
appellant’s explanation for the delay was “not particularly persuasive” but, on the other
hand, any fault lay with the appellant’s lawyers rather the appellant himself. Her Honour
considered the s 101 ground in some detail. At [89] her Honour opined that some or all
of the tendency evidence had been wrongly admitted and there might be a miscarriage
5
of justice if the appellant was refused leave to appeal out of time. Her Honour did not
examine the misdirection ground in any detail because she considered that the merits
of that ground depended on the merits of the s 101 ground. Her Honour referred the
question of whether leave should be granted under r 5531 to the three-member Court
of Appeal.
21. Given Penfold J’s views about delay and the merits of the s 101 ground, we would not
refuse leave to appeal the s 101 ground or to decline to make an order under r 5531 on
the related misdirection ground.
22. There are other reasons for reaching this conclusion.
23. As to the s 101 ground, it is true that an application for leave to appeal from an
interlocutory order should be filed not later than seven days after the day that the
interlocutory order is given: r 5312 CPR. However, if an application to appeal a pre-trial
tendency evidence ruling is filed prior to the trial, the Court of Appeal is unlikely to
entertain the application prior to the trial because that would delay the trial. In addition,
until the trial occurs, one cannot know what the witnesses will say about the tendency
incidents, and what they say may affect the strength of any appeal. Further, if the
accused is acquitted, it will be unnecessary to hear the application. The criminal
process should not be unnecessarily fragmented by appeals against interlocutory
orders. In Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478 (a civil
case), the High Court decided that, on an appeal from a final order, an interlocutory
order may be challenged when the order affected the final judgment. In this case, the
tendency evidence had the capacity to affect the conviction.
24. The provisions of s 76(2) of the Court Procedures Act 2004 (ACT) are worth noting.
Section 76(2) enables a court to make a pre-trial ruling on evidence. Such a ruling is
prima facie binding on the trial judge and “is taken to be part of the trial of the accused
person”: ss 76(3) and (4). Section 76 is designed to enable trials to run more quickly
and smoothly. It would be unfortunate if the efficiencies achieved by s 76 were
undermined by the pre-trial hearing of applications for leave to appeal to the Court of
Appeal against rulings made under s 76.
25. In this case, the appellant’s objection to the admission of the evidence of tendency
incidents was always alive. There were good practical reasons for not pursuing an
application for leave to appeal prior to the trial and, in the Leave Decision, Penfold J
expressed the view that the admission of the tendency evidence may have resulted in
a miscarriage of justice. For all these reasons, the appellant should be granted leave
to appeal the interlocutory ruling concerning the admission of tendency evidence.
26. Rule 5531 requires an appellant to seek a redirection at the time when the contested
direction is made, enabling a trial judge to correct any error at the time of the trial. The
failure to seek a redirection may be treated as a concession that any error was
immaterial; it was not noticed or, if noticed, it was considered trivial in the context of the
way in which the trial was run.
27. In this case, the asserted misdirection resulted from an exchange between defence
counsel and the trial judge concerning tendency evidence; it occurred as the trial judge
was responding to and correcting what had been said by defence counsel. Defence
counsel’s failure to seek a redirection was not an “unexplained failure to take a point”:
Hughes at [236]. Consequently, r 5531 should not impede an appeal against the
asserted misdirection.
6
The circumstantial case
28. In addition to tendency circumstance/s, the prosecution relied upon the following non-
tendency circumstances:
(a) The appellant and the deceased were in a relationship.
(b) During the afternoon and evening of 27 March, the appellant was at the
deceased’s residence. The pair drank alcohol and listened to music.
(c) Apart from the appellant, the deceased and A, there was no evidence that
anyone else was present at the deceased’s flat in the period shortly before the
murder.
(d) Prior to 9:42 pm on 27 March, the deceased’s mobile telephone was used to
contact drug associates of the appellant who were not known to the deceased.
Some of the communications concerned the acquisition of illegal drugs on credit
(“on tick”).
(e) The murder occurred at about 10:05 pm. A was in his bedroom (which was
adjacent to the deceased’s bedroom). He was wearing headphones and playing
games on the Internet. When he had been playing “League of Legends” for
about 20 minutes, he heard a scream that sounded like the deceased’s voice and
seemed to emanate from her bedroom. D, the person with whom A was playing
“League of Legends”, was verbally communicating with A while they played. D
also heard a piercing scream about 20 minutes into the game. A computer
examiner said that the game had commenced at 9:45 pm.
(f) About 15 minutes after he heard the scream, A heard a tap running in the
kitchen. He then heard the side gate opening or closing.
(g) The deceased’s injuries were consistent with the killer having used a cook’s knife
that was part of a knife block set that was kept in the deceased’s kitchen. After
the murder, the cook’s knife was found to be missing. It was never located.
(h) The appellant’s fingerprint was found on the fusion knife that sat within the knife
block set adjacent to the usual position of the cook’s knife. The fusion knife was
not suitable for use as a stabbing weapon. Admittedly, the position of the
fingerprint was also consistent with normal use of the fusion knife.
(i) When arrested, the appellant had a wound on the leading edge of his right index
finger which was consistent with offensive knife injury.
(j) Consistent with the deceased attempting to defend herself against the appellant,
the appellant’s DNA was found under the deceased’s right fingernails, her right
forearm was injured and there appeared to be scratches on the appellant.
(k) The appellant’s blood was found on the outside door handle of the deceased’s
bedroom and on the floor below the handle.
(l) A bag on the deceased’s bed contained clothing that the deceased had
purchased online. The bag had been delivered on the day of the murder. There
was a bloodstained cut (or stab) on the bag. The blood contained the deceased’s
DNA. The cut was consistent with the weapon that had been used to kill the
deceased. The appellant’s fingerprints were on the bag.
7
(m) The appellant and the deceased were short of money. Earlier on 27 March the
deceased had borrowed $50 petrol money from a friend.
(n) Previously, the appellant had expressed jealousy about the deceased’s
relationship with her estranged husband and A.
(o) At 7:52 am on 28 March, the appellant was discovered unexpectedly by a friend
of the appellant’s brother. He found the appellant asleep in a van outside his
residence. The van was a work van owned by the appellant’s brother. The van
was often parked at the friend’s residence, which was very close to the
appellant’s brother’s workplace. However, the van had not been there on the
previous night. The appellant did not drive, but relied upon public transport or lifts
provided by friends. The deceased’s residence was closer to the appellant’s
residence than to the friend’s house.
(p) When he was discovered on the morning of 28 March, the appellant was wearing
different clothes from those that he had been wearing on the night of 27 March.
The clothes that the appellant had been wearing on 27 March were not found.
(q) The appellant and the deceased had communicated by telephone very
frequently, but on 28 and 29 March the appellant made no attempt to contact the
deceased.
(r) There was no forensic evidence linking another person to the murder. There was
no suggestion that another person had a motive to murder the deceased.
29. There was evidence that, at about 11:00 pm on 27 March 2012, neighbours of the
deceased heard yelling followed by the slamming of a car door and the sound of a car
screeching away. The prosecution did not rely upon this evidence, suggesting that the
event may have been unrelated.
The tendency rule
30. Section 97 of the Evidence Act provides:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
...
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(Emphasis added)
31. The Dictionary to the Evidence Act states:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
8
32. Section 101(2) of the Evidence Act provides:
Tendency evidence about a defendant... that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The tendencies
33. Pursuant to s 97(1)(a) of the Evidence Act, the prosecution gave notice of its intention
to adduce tendency evidence of 14 incidents between 2001 and 2012.
34. In the amended tendency notice, the prosecution listed “particulars of the tendency of
which evidence is to be adduced” (emphasis added), including:
(a) A tendency to become quickly aroused to anger and to act violently when
angered.
(b) A tendency to threaten people with knives.
(c) A tendency when angry, to use knives to inflict harm on people or damage
objects.
(d) A tendency to act violently when under the influence of alcohol and/or
marijuana.
(e) A tendency to become angry and violent when not provided with money for
drugs.
Although the amended tendency notice referred to “particulars of the tendency”
(suggesting only one tendency), each “particular” referred to a separate tendency.
35. At the admission stage, the matter was approached by asking whether a particular
tendency incident evidenced one or more separate tendencies. However, in reality,
the prosecution case at the trial relied upon the combination of tendencies (a) – (d) to
establish one behavioural tendency that conformed to the way in which the
perpetrator behaved at the time of the murder.
36. Of themselves, tendency (a) (the tendency “to become quickly aroused to anger and
to act violently when angered”) and tendency (d) (the tendency “to act violently when
under the influence of alcohol and/or marijuana”) are not distinctive or “particular”
ways of behaving. On the other hand, a tendency to become quickly aroused to
anger (or, as the trial judge put it, “to become irrationally or disproportionately angry”),
and then to use knives to threaten or inflict harm on people or objects is such a
tendency.
37. Had the prosecution relied on one relatively distinctive tendency (to become
irrationally or disproportionately angry and then to use knives to threaten or inflict
harm on people or objects) rather than four tendencies (two of which were not at all
distinctive), this would have brought considerable focus to the determination of the
admissibility of the tendency incidents and the framing of jury directions.
38. In relation to tendency (e) (to “become angry and violent when not provided with
money for drugs”) the prosecution said that, at the time of the offence, the appellant
was seeking drugs and was short of money, so may have become enraged at the
deceased’s recent online purchase of clothing (developed a motive to kill) and
9
(consistent with the motive and in conformity with a tendency to behave violently
when not provided with money for drugs) then murdered the deceased.
39. This analysis of the asserted tendency/s is apparent with the benefit of hindsight; it was
not clearly articulated to the trial judge.
The evidence supporting the tendencies
40. On 11 April 2014, the trial judge decided to admit evidence of eight of the 14 incidents
upon which the prosecution sought to rely to establish the asserted tendencies, finding
that the evidence of each incident had significant probative value and satisfied the test
in s 101 of the Evidence Act: R v Vojneski [2014] ACTSC 66.
41. On a tendency evidence application, a judge is necessarily constrained by the
evidence and information available at the time of the application, which may not match
the evidence adduced at the later trial. However, in this case, there was reasonable
consistency between the foreshadowed evidence and the evidence that was adduced
at the trial.
42. The evidence of the tendency incidents that was adduced at the trial can be
summarised as follows:
1 The Skyfire Incident. This incident occurred in March 2001 when the appellant was
17 years old. At the flat occupied by the appellant and his family, there was a verbal
altercation between the appellant and J, the appellant’s sister’s partner. The appellant
had a poor relationship with J. Following the altercation, J departed and the appellant
remained in the flat with his sister, two children and a cat. The appellant had a blunt
knife. He went to the kitchen, obtained a kitchen knife, approached the cat and made a
sawing motion on the neck of the cat. The appellant told his sister “I should kill you”
and began to laugh. He gave his sister another knife, saying “Take this to protect
yourself”. J returned to the flat. The appellant greeted him brandishing the knife and
then used his fist to strike J in the head. A struggle ensued between the appellant and
J, during which J attempted to seize the knife. J hit the appellant, snapped the blade of
the knife, pinned the appellant to the ground, kneed him in the head and kicked him in
the face. J ran to his car, pursued by the appellant. The appellant picked up a child’s
scooter and threw it at J’s car, damaging the windscreen. As a result of the incident, J
was bleeding and had a swollen face. The appellant’s sister was very upset. The
appellant pleaded guilty to assaulting J and thereby occasioning to him actual bodily
harm, assaulting his sister, and intentionally destroying the windscreen of J’s car.
When interviewed by Mr Killick, a psychologist, in 2004, the appellant appeared to have
genuine difficulty recalling this incident and events associated with the 2002 “Barbecue
Incident”. The trial judge admitted the Skyfire Incident on the basis that it supported
tendencies a), b) and d).
2 The Barbecue Incident. On 23 November 2002, after a family barbeque dinner at
which a significant quantity of alcohol was consumed, there was a tense discussion
between the appellant and J. The relationship between the appellant and J was
fractured; the appellant was concerned that J had been violent towards his sister and J
had made a complaint against the appellant (although the appellant had said earlier
that evening that he harboured “no hard feelings” toward J). The appellant obtained a
penknife or pocketknife from a kitchen drawer, “calmly walked” towards J and stabbed
him in the chest, puncturing J’s lung. The appellant then departed. In 2004, the
appellant told Mr Killick, the psychologist, that he had been intoxicated with alcohol and
10
marijuana at the time of the incident. The appellant was convicted of intentionally and
unlawfully using an offensive weapon (a knife with a 4 inch blade) against another
person in circumstances likely to endanger human life and assault occasioning actual
bodily harm. The trial judge admitted this evidence to support tendencies a), b), c) and
d).
3 The Mother Incident. On 3 September 2004, the appellant and his mother were at
home. The appellant became frustrated because of symptoms that may have been
associated with the medication that he was taking (he was having difficulty with
chewing and speaking). The appellant’s mother was knitting. The appellant hit his
mother in the head. She sustained a two inch laceration to her forehead. The facts
tendered at the sentencing hearing stated that the impact of the blow had caused the
victim’s forehead to split open but, at the trial, the appellant’s mother said that the injury
may have been caused by a knitting needle, rather than being the direct result of the
appellant’s blow. When police attended, the appellant was “strangely calm”. He was
convicted of assault occasioning actual bodily harm. The trial judge admitted this
evidence to support tendency a).
4 The Former Partner Incident. In September 2007, the appellant was at his unit with
his then partner. She told him that she had provided her telephone number to another
man. The appellant became upset. He walked into the kitchen, grabbed a knife and,
while holding the knife, said that he would stab his partner. She ran to a neighbour’s
house. The appellant followed. She accompanied him back to his flat and, as they were
walking back, he seemed to be calm. He told her that he had the knife in his pocket but
would not use it. In cross-examination, the appellant’s former girlfriend agreed that her
police statement was made many years after the incident and she may have been
mistaken about whether she saw a knife before she ran to the neighbour’s house. A
few days after the incident, the appellant reported to his case manager that he had
responded to his girlfriend’s statement by obtaining a knife, and that he was “planning
to hurt himself with it, not anyone else”, but had decided to go to bed instead. He
realised that he had scared his girlfriend. The trial judge allowed this evidence in
relation to tendencies a) and b).
5 The Tyres Incident. In the early hours of 6 February 2011, the appellant threatened
to slit his neighbour’s throat. Minutes later, another man told the appellant that he
should go home. The appellant responded by saying that he would stab the man. A
short time later, the appellant used a knife to stab all the tyres of his neighbour’s car.
When the appellant noticed that the neighbour was looking at him, the appellant waived
the knife at the neighbour, and said that he was going to stab him. The neighbour
called the police. Police attended the appellant’s unit and saw a kitchen knife on the
coffee table just inside the front door. The appellant was too intoxicated to be
interviewed. Two days later, the appellant told a psychologist and a nurse that, prior to
the tyres incident, he had consumed alcohol and Xanax tablets and he could not
remember what had happened. Two or three days later, the appellant drove past the
neighbour and screamed that he would slit the neighbour’s throat and kill him. The
appellant pleaded guilty to intentionally damaging the tyres. The trial judge admitted
this evidence in relation to tendencies a), b), c) and d).
6 The Balcony Incident. On 16 January 2012 the appellant and the deceased were at
the appellant’s flat. Both were highly intoxicated. After examining messages on the
deceased’s mobile telephone, the appellant concluded that she had recently spent a
night with her estranged husband. He contacted the deceased’s friend C and
11
questioned her. C reassured him that the deceased had not spent a night with her
estranged husband. In response to reports of screaming, police attended the
appellant’s unit at 10:45 pm, and found the deceased outside the unit, in an intoxicated
and “hysterical” state. She was crying to be let back in to the unit. She was wearing a
dressing gown or similar attire. The police did not observe any injury to the deceased.
The appellant told the police that he had been drinking with the deceased and they had
begun to argue, then he had evicted her and thrown her clothes from the balcony. He
wanted her to leave. The police concluded that the appellant was intoxicated. They
assisted the deceased to leave the scene. C’s mother, M, collected the deceased. That
night and over the following days, the deceased told M that the appellant had obtained
a knife, cleaned it and threatened her before “[throwing her] over the balcony… with no
clothes” and then “[throwing] her clothes out”. M saw bruising on the deceased’s arms
and neck. C saw bruising on the deceased’s arms that was consistent with the
deceased having been held over the balcony railing. The trial judge allowed this
evidence in relation to tendencies a) and b).
7 Use of Drugs. After initially presenting as an uncooperative witness, the appellant’s
mother gave evidence that the appellant became sad and angry when he could not
access drugs and she preferred to give him money for drugs rather than deal with his
behaviour. She gave him $300–$400 per week. The appellant’s brother gave evidence
that the appellant had begun to use “ice” two or three years prior to 2012. The
appellant often became frustrated and verbally abusive if not given money for drugs
and the appellant’s brother gave money to the appellant, believing that the money
would be used to purchase drugs. The trial judge allowed this evidence in relation to
tendencies a) and e).
8 The Prison Incident. In 2013 the appellant was a remand prisoner at the Alexander
Maconochie Centre. After 1 pm on 29 August 2013, the appellant spoke to a prison
officer, alleging that another prisoner had forged the appellant’s signature on a buy-up
form and had obtained buy-up goods for which the appellant had been charged. After
making enquiries, the prison officer suggested that the appellant complete a prisoner
complaint form. At about 2:45 pm, the appellant approached the prison officer and
punched him three times in the head. Several officers were required to restrain the
appellant. The trial judge noted the prejudice associated with revealing that the
appellant had been held in custody, but his Honour considered that the prejudice could
be mitigated by directing the jury that the appellant was only in custody awaiting trial on
the charge before them. The trial judge admitted the evidence in relation to tendency
a).
43. The prosecution also sought to lead the evidence of incidents 1, 2, 4, 5 and 6 and two
other incidents as coincidence evidence, but the application was refused.
Sections 55, 97 and 101 of the Evidence Act
1) Is there tendency evidence that is relevant under s 55 of the Evidence Act?
44. A tendency under s 97 of the Evidence Act is a tendency “to act in a particular way or
to have a particular state of mind”, i.e. a tendency to think or act in a relatively
distinctive (“particular”) way. To qualify as “tendency evidence”, evidence of one or
more “tendency incidents” must show a behavioural or mental “tendency” and must not
be a random collection of incidents that say nothing “particular” about the offender’s
thinking or behaviour.
12
45. It is important to carefully articulate the tendency that evidence is said to prove: R v
Lam [2014] ACTSC 49 (Lam) at [40]. As discussed in [34]–[37] above, careful
articulation was absent in the present case.
46. In Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016)
(Odgers) at 669 [EA.97.60], the author quotes from Australian Law Reform
Commission, Evidence, Interim Report No 26 (1985) vol 1, [797], describing the role of
tendency evidence as follows:
if an individual has behaved in a particular way in a particular situation, that individual is likely to behave in a similar way in a similar situation.
47. In criminal proceedings, tendency evidence is often called to show that, at the time of
the alleged offence, the accused tended to think or act in a particular way that makes it
more likely that he or she committed the offence because the behavioural or mental
tendency of the accused conformed to the offending behaviour. Or, to put it another
way, evidence may support an inference that the accused tended to behave or think in
a particular way which makes it more likely that the accused did so at the time of the
offence: R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 at [22]–[23] and Elomar
v The Queen [2014] NSWCCA 303; 316 ALR 206 at [359]. In IMM v The Queen [2016]
HCA 14; 90 ALJR 529 (IMM) at [104] Gageler J said:
The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence of the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of a fact in issue of the accused’s actual state of mind at the time when the circumstances of the alleged offence.
(Citations omitted)
48. Like any other evidence, in order to be admissible tendency evidence must be relevant
within the meaning of s 55 of the Evidence Act; it must be capable of elucidating a “fact
in issue” in the proceedings. At the s 55 admissibility stage, the questions are:
(a) Has the tendering party identified a s 97 tendency (a tendency to act or think
in a “particular” way)?
(b) Are the incidents (individually or in combination/s) capable of establishing the
asserted tendency?
(c) What is the relevant “fact in issue” in the proceedings?
(d) If the fact finder accepted that the tendency incidents occurred and showed
the asserted tendency, could the tendency inform the fact in issue (often -
could it inform whether the accused committed the offence because the
tendency conforms with what is otherwise known about the offending
behaviour)?
49. When (as is usual) the prosecution relies on several incidents to establish an asserted
tendency, the incidents must contain an inherent element of “similarity” in order to
demonstrate a “tendency” and engage the section: Saoud per Basten JA at [28]. It is
always useful to consider the similarities (and dissimilarities) between “tendency
incidents” for the purpose of deciding whether they do support the existence of the
asserted tendency to think or act in a “particular” way. Speaking of similarities between
tendency incidents, at 677 Odgers says:
13
As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do an act of a distinctive kind.
(Citations omitted)
50. However, incidents may support an inference that an accused has a behavioural
“tendency” even if the incidents themselves are somewhat dissimilar. In this regard,
there is a fundamental distinction between tendency evidence and coincidence
evidence. Unfortunately, the two rules are apt to be confused. Under the coincidence
rule, similarity between events is the critical issue; the coincidence rule requires a
comparison of the similarities between two or more events (usually, one is the offence
event) for the purpose of deciding whether it is improbable (or implausible) that the
events can be explained by coincidence. On the other hand, the tendency rule
requires that the tendency be considered alongside the offence event. At 675, Odgers
states:
The distinction between tendency and coincidence reasoning needs to be emphasised, notwithstanding the fact that essentially the same test of admissibility applies (see ss 98 and 101). The existence of “similarity” is not essential to tendency reasoning, while it will always be a necessary requirement for coincidence evidence (see s 98). This provision, unlike coincidence evidence under 98, is not “based upon similarities”. It is not essential that the evidence reveal “striking similarities” or “unusual features”.
(Citations omitted)
2) Section 97: Does the tendency evidence have significant probative value?
51. In criminal proceedings, the prosecution generally seeks to rely upon a tendency to
think or act in a relatively disreputable way, and the evidence adduced to support the
tendency is inherently prejudicial. In Saoud, at [30], Basten JA (with whom Fullerton
and R A Hulme JJ agreed) said that:
"tendency" is seen as a risky form of circumstantial evidence capable of causing prejudice.
52. Consequently, the Evidence Act prescribes that, before it can be admitted, tendency
evidence must be more than merely relevant (probative). It must have “significant
probative value” and the probative value must “substantially outweigh” any “prejudicial
effect”: ss 97 and 101 of the Evidence Act.
53. The probative value of evidence is the degree of its relevance to a fact in issue:
R v Lockyer (1996) 89 A Crim R 457 at 459. Or, as the majority said in IMM at [46]:
The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
(Emphasis added)
To a similar effect, at [103], Gaegler J said that in order to have “significant” probative
value, evidence must be “important” or “of consequence” to proving or disproving the
existence of a fact in issue, but the capacity of the evidence to prove or disprove the
fact need not be “substantial.”
54. In theory, the extent and nature of similarities between tendency incidents is not critical
to the determination of “significant probative value”: Saoud at [40], [47]–[48], Hughes at
[166]–[167]. However, in practice, when considering whether tendency evidence has
“significant probative value” it is important to examine the similarities between the
14
tendency incidents. A high degree of similarity between tendency incidents may show
a strong and distinctive tendency which, because of its strength and distinctiveness,
may be more influential in the context of fact-finding.
55. It is not necessary to analyse what the Victorian Court of Appeal meant in Velkoski v
The Queen [2014] VSCA 121; 45 VR 680 when, having concluded at [165] that the law
regarding tendency evidence had developed differently in NSW and Victoria, at [171] it
said:
It is the degree of similarity of the operative features (of the tendency incidents) that gives the tendency evidence its relative strength.
Any difference between the approach taken in NSW and that taken in Victoria is
unlikely to lead to a different outcome. Regardless of whether, in principle, similarity
between tendency incidents is essential or inessential to a consideration of “significant
probative value”, in practice it will almost always be important.
56. Theoretically, it is the tendency (rather than the supporting evidence) that is to be
compared to the offence incident. However, at a practical level it is important to
consider the similarities between the tendency incidents and the offence incident. A
tendency can be discerned only by examining the tendency incidents from which the
tendency is to be inferred. A high degree of similarity between the tendency incidents
and the offence incident may show that a distinctive behavioural tendency of the
accused conforms closely to the offending conduct. In BP v The Queen [2010]
NSWCCA 303 at [108] Hodgson JA (Price and Fullerton JJ agreeing) said:
It is not necessary in criminal cases that ... there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.
57. Generally, both the distinctiveness of the tendency (often evidenced by very similar
tendency incidents) and the degree of conformity between the tendency and the
offending conduct (often, but not necessarily, shown by similarity between the tendency
incidents and the offence incident), that determines the probative value of tendency
evidence (the degree to which the tendency evidence has the capacity to influence
fact-finding). But ultimately it is conformity between the tendency and the offending
conduct that informs probative value: Hughes at [183]. As tendency incidents are only
evidence of a tendency, some caution should be exercised when directly comparing
the similarities between tendency incidents and the offence incident. In the case of
coincidence evidence, the position is otherwise; the relevant comparison is a direct
comparison of the similarities between one incident and another (usually the offence
incident).
58. Two other matters warrant mention.
59. First, a decision that evidence has significant probative value is a decision about the
capacity of the evidence to influence the fact-finder; about the reasoning process that is
open to a jury: R v Ford [2009] NSWCCA 306; 273 ALR 286 (Ford) at [52], Saoud at
[33].
60. Second, as a matter of logic, it is hard to see that the probative value of tendency
evidence can be diminished (or strengthened) by the fact that there are (or are not)
other circumstances that, regardless of the tendency evidence, may establish the fact/s
in issue, i.e. because the prosecution case is otherwise strong (or weak). In some
15
cases, the contrary position has been advanced, presumably because s 97(1)(b)
invites the court to consider whether the proposed tendency evidence will “either by
itself or having regard to other evidence” have significant probative value.
3) Section 101: Does the probative value of the tendency evidence substantially
outweigh any prejudicial effect?
61. Section 101(2) requires the identification of the probative value and the prejudicial
effect of the tendency evidence. Then a balancing exercise must be conducted on the
facts of each case: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95], Hughes at
[190].
62. At the s 101 stage of the inquiry, it is necessary to identify the type or types of
prejudicial effect in question: Ford per Campbell JA at [64].
63. The reference to prejudicial effect is a reference to unfair prejudice; the risk that the
fact-finder will misuse the evidence in an unfair way by giving it more weight than it
logically deserves or by responding emotionally to the inflammatory content of the
evidence, where the risk cannot be cured by direction: Festa v The Queen [2001]
HCA 72; 208 CLR 593 per McHugh J at [51] (Festa), Lam at [31]–[32], R v Costa
(No 1) [2015] ACTSC 63 at [44]. As noted above, tendency evidence usually raises
disreputable conduct, i.e. contains inherent prejudice. But in many cases this
prejudicial effect can be greatly reduced by appropriate jury directions. In particular
cases, tendency evidence may have another prejudicial effect.
64. In O’Keefe at [60], Howie J (with whom McColl JA and Grove J agreed) observed:
The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally.
We agree. For example, a tendency to “behave badly” would be so general that, even if
it did qualify as a tendency to behave in a “particular” way (which, in our view, it would
not), it would not enable the supporting tendency evidence to pass the s 101 test.
Again, this emphasises the need to carefully articulate a specific tendency.
65. We note that a consideration of the facts in O’Keefe suggests that, from a prosecution
perspective, it sets a high threshold for when tendency evidence has “significant
probative value”.
4) The jury’s use of tendency evidence
65. Once tendency evidence is admitted, it is for the jury (or other fact-finder) to consider
whether the evidence does establish an asserted tendency to think or act in a
“particular” way. If the jury finds that the evidence does establish an asserted tendency,
then the tendency is a circumstance that can be used to inform a “fact in issue”, and
the jury must decide what weight to attach to the tendency circumstance.
66. In deciding whether evidence does establish an asserted tendency, and the weight to
attach to the tendency, the jury will need to ask:
(a) What, if any, mental or behavioural tendency do any (or all) of the tendency
incidents establish? The answer to this question will usually include a
consideration of the similarities between the tendency incidents, the number of
such incidents and when the incidents occurred vis a vis the offence incident.
16
(b) What weight should be given to an established tendency? The answer to this
question will often involve considering the degree to which the tendency is
distinctive (as evidenced by the tendency incidents) and the extent to which
the tendency conforms with what is independently known about the offending
behaviour.
67. From the above discussion, three points emerge that are important to this appeal.
68. First, to the extent reasonably possible, the prosecution should articulate a distinctive
tendency. Such articulation will aid a determination of whether the asserted tendency is
a tendency to act or think in a “particular” way, whether the tendency incidents
evidence the asserted tendency, the probative value of the tendency evidence, the risk
of prejudice associated with the evidence and the weight that the fact-finder should
attach to it.
69. Second, when considering whether the evidence supports the inference of a tendency,
it is necessary to consider the similarities between tendency incidents.
70. Third, when considering the degree of probative value attaching to tendency evidence,
whether the probative value substantially outweighs any prejudicial effect and the
weight that should be attached to tendency evidence, it is usually important to consider
both the similarities between the tendency incidents (how distinctive is the tendency?)
and the similarities between the tendency incidents and the offence incident (how
closely does the established tendency conform with the offence?).
The decision to admit tendency evidence
71. The trial judge approached the admission of tendency evidence in a manner that was,
in principle, correct. His Honour acknowledged the importance of identifying the “fact in
issue” to which the proposed tendency evidence related: at [48]. His Honour observed
that, in determining “probative value”, the approach in R v Shamouil (2006) 66 NSWLR
228 should be followed, i.e., the judge should not usurp the function of a jury by
predicting how the jury would view the evidence: at [39]–[41]. Applying Dao v
The Queen [2011] NSWCCA 63; 81 NSWLR 568 per Simpson J at [148], his Honour
noted that, in the context of “significant probative value”, “significant” means “important”
or “of consequence”: at [43]. This approach was consistent with the subsequent
decision of the plurality (French CJ, Kiefel, Bell and Keane JJ) in IMM at [50]–[54].
72. His Honour was satisfied that each of the alleged tendencies was relevant to the
principal fact in issue, i.e. whether the appellant was the person who killed the
deceased; if the jury was satisfied that the accused had a relevant tendency, then the
jury could use that tendency to reason towards a finding that the appellant was the
person who killed the deceased: at [50]–[51].
73. The trial judge identified the prejudicial effect of tendency evidence revealing criminal
or disreputable acts, and the important role that directions may play in ensuring that a
jury does not use the evidence in an unfair way, as evidence that the accused is a
person of bad character who is therefore more likely to have committed the offence: at
[45].
74. The trial judge correctly considered each tendency incident separately when deciding
whether the probative value of the evidence substantially outweighed any prejudicial
effect. His Honour was also correct to consider each separate in incident in the context
of the other incidents.
17
The appellant’s submissions on the admission of tendency evidence
75. The appellant submitted that the tendency evidence should not have been admitted
because:
(a) The prosecution erroneously relied upon the tendency evidence to reason in a
circular way; the prosecution reasoned that the appellant was prone to anger,
using knives when angry, demonstrating violence when angry, when denied
money for drugs and when under the influence of drugs or alcohol, the
prosecution speculated that the offence contained those features and then the
prosecution concluded that the appellant must be the perpetrator.
(b) The probative value of the evidence did not substantially outweigh its prejudicial
effect, as required by s 101. The admission of the tendency evidence was highly
prejudicial. It did little more than put the appellant’s criminal record before the jury
and paint the appellant as “a knife wielding maniac who was likely to have done
something crazy”. The Mother Incident showed the appellant to be a person of
such deplorable character that he would injure his mother. The Prison Incident
was prejudicial because it showed that the appellant was a prisoner at the time of
the incident.
76. The first submission raises s 55 and/or s 97 considerations rather than s 101
considerations. The submission does not clearly relate to the grounds in the Notice of
Appeal. We do not accept the submission. Our brief reasons are given below.
77. In relation to point (b), as to most of the tendency incidents, we do not accept that the
trial judge’s decision (that the probative value of the tendency evidence substantially
outweighed its prejudicial effect) was plainly unreasonable or unjust. However, in
relation to the Mother Incident and the Prison Incident, we consider that the evidence
should have been rejected. Our reasons are given below.
Was the finding of significant probative value based on a circular argument?
78. In written submissions, the appellant said:
10. ...the tendency evidence was used both to construct what had happened, on the basis that it was the Appellant acting in accordance with the identified tendencies, and then to establish, by virtue of the Appellant having tendencies that matched what had happened, that he was the offender.
11. Specifically, on the basis that the Appellant was prone to anger, prone to threaten or use knives when angry, prone to be violent when angry, when denied money for drugs and when under the influence of drugs or alcohol, the case was constructed such that these features were said to exist, and this was what had occurred. If this was what occurred, which could only be speculated on the basis of the tendencies, then it was the Appellant, who bore these tendencies, who was responsible. The use of the tendency, particularly going to the central use of identification of the offender, was inherently circular.
The appellant relied upon observations of Penfold J in the Leave Decision at [64].
79. The appellant’s submissions assumed that the tendency evidence was designed to go
directly to the issue of whether the appellant committed the particular offence on the
particular day. It was not. Tendency evidence is circumstantial evidence. It is indirect
evidence; it may allow an inference that the accused had a behavioural tendency at the
time of the offence and that circumstance may support a finding of guilt.
18
80. The prosecution case was that the way in which the murder was committed (an
apparently frenzied stabbing of a domestic partner with a kitchen knife) conformed to
the appellant’s tendency to act in such a way. In addition, in relation to tendency (e),
the prosecution said that the appellant tended to become angry when not provided with
money for drugs and it should be inferred that, on 27 March 2012, the appellant was
without money for drugs and would have tended to become angry, giving the appellant
a possible motive to kill the deceased. This possible motive was itself merely a
circumstance.
81. The prosecution argued that, when all the circumstances (including both the non-
tendency circumstances referred to in [28] above and the tendency circumstances)
were taken together, the only rational inference was that the appellant was the
perpetrator. This reasoning process is not circular.
Did the probative value of the tendency evidence substantially outweigh any
prejudicial effect?
82. In the notice of appeal, the appellant did not dispute that the tendency incidents had
“significant probative value” within the meaning of s 97(1)(b), i.e. they had significant
capacity to inform the issue of whether the appellant was the person who murdered the
deceased.
83. The appellant argued that a significant prejudicial effect attached to the tendency
evidence; the sheer weight of the evidence of generalised bad character and criminal
disposition might have caused the jury to reason that the appellant was “a nasty piece
of work” and was therefore the sort of person who would stab his partner to death. The
appellant submitted that, prompted by the tendency evidence, the jury may have
returned a guilty verdict for emotional reasons.
84. On the appeal, the question is whether the outcome of the s 101(2) balancing exercise
was unreasonable or plainly wrong.
85. The trial judge was entitled to conclude that, when taken together, the Skyfire Incident,
the Barbecue Incident, the Former Partner Incident, the Tyres Incident and the Balcony
Incident were capable of establishing that the appellant had a long-standing
behavioural tendency to become “irrationally or disproportionately angry” in a domestic
context, and then obtain a knife (on three occasions, the knife was obtained from the
kitchen and on the other occasions it may well have been obtained from the kitchen)
and use the knife to threaten or stab the victim. The incidents spanned 11 years. The
Balcony Incident involved the deceased (the appellant’s most recent domestic partner)
and it occurred about 10 weeks before the deceased was murdered. This relatively
distinctive tendency conformed to the offence. Consequently, the trial judge was
entitled to conclude that the evidence had significant probative value.
86. The evidence was prejudicial in the sense that it revealed disreputable conduct by the
appellant, but as the disreputable conduct was what gave the evidence its probative
value, it was not unfair prejudice. Any unfair prejudice arising from misuse of the
evidence (by reasoning that, if the appellant was a person of generally bad character,
he was more likely to have committed the murder) could be adequately addressed by
appropriate directions.
19
87. As part of the Royal Commission into Institutional Responses to Child Sexual Abuse,
an empirical study was undertaken to examine jury reasoning in relation to tendency
evidence: Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury
reasoning in joint and separate trials of institutional child sexual abuse: An empirical
study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016)
(the study). The study found that, although conviction rates were higher in trials where
tendency evidence was led, “none of the juries in the tendency evidence trial...
engaged in impermissible tendency reasoning”: at 136.
88. It does not follow that, because the accused had committed crimes such as assault and
threaten to kill, the jury’s emotive reaction might be to punish him for the much more
serious offence of murder. Juries are robust and are not readily overwhelmed by
disturbing evidence. In any event, the subject matter of the tendency incidents was
relatively benign. The tendency incidents were not factually horrific or otherwise likely
to inspire an overly emotional response. If properly instructed, it is hard to see that a
jury would misuse the evidence, either by fallacious reasoning or by becoming diverted
by the inflammatory content of the evidence: Festa per McHugh J at [51]. The Royal
Commission study found “no evidence of emotional or illogical reasoning in any of the
trials in which tendency evidence had been admitted”: at 114.
89. Evidence that the appellant became angry and abusive when he could not access
drugs was admitted in relation to tendencies (a) (the tendency to become quickly
aroused to anger and to act violently when angered) and (e) (the tendency to become
angry and violent when not provided with money for drugs). For the reasons already
explained, when considered in isolation, tendency (a) did not amount to a s 97
tendency. The principal significance of the evidence was in relation to tendency (e) and
the circumstance of motive. The evidence was potentially influential in relation to these
matters. The appellant did not identify any particular prejudice associated with the
evidence, merely complaining that, when it was taken with the other tendency
evidence, there was an overwhelming volume of bad character evidence.
90. In relation to these tendency incidents, the conclusion of the trial judge was not
unreasonable or plainly wrong.
91. The Mother Incident and the Prison Incident are in a different category.
92. The Mother Incident was admitted only to establish tendency (a) (a tendency to
become quickly aroused to anger and to act violently when angered) which, in isolation,
scarcely qualifies as a tendency to act in a “particular” way. The incident occurred eight
years before the offence. It involved a punch, not a knife. We consider that this
incident did not have significant probative value; it was not potentially “influential in the
context of fact-finding”. On the other hand, it did not have a significant prejudicial effect.
At the trial, it became clear that the appellant may not have deliberately caused the
injury to his mother (the injury may have been caused accidentally by a knitting needle)
and the appellant’s aggression may have been because he was adjusting to new
medication. These factors, the age of the incident and the fact that limited anger was
displayed in the incident, establish that both any probative value and the potential for
prejudice were very low.
93. The evidence of the Mother Incident should have been excluded because it did not
evidence a tendency to behave in a “particular” way, it lacked significant probative
20
value and, because it lacked significant probative value, the probative value did not
substantially outweigh any prejudicial effect.
94. Similarly, the prosecution lead evidence of the Prison Incident only to establish
tendency (a) (a tendency to become quickly aroused to anger and to act violently when
angered) which, considered in isolation, is not really a tendency to act in a “particular”
way. The Prison Incident was quite different in nature from the other tendency
incidents. It occurred in a prison context, not a domestic context. The grievance that
provoked the appellant to strike the prison officer may have been a legitimate
grievance. No knife was involved. Like the conduct the subject of the Mother Incident,
the conduct was relatively benign. As to the additional prejudice associated with
disclosure that the appellant was a prison inmate, the trial judge correctly identified that
such prejudice could be adequately addressed by directing the jury that the appellant
was in custody awaiting trial on the subject charge.
95. The evidence of the Prison Incident should have been excluded because it did not
evidence a tendency to behave in a “particular” way, it lacked significant probative
value and, because it lacked significant probative value, any probative value did not
substantially outweigh any prejudicial effect.
96. In summary, evidence of the Mother Incident and the Prison Incident should have been
excluded because it did not evidence a tendency to behave in a “particular” way and
failed the s 55, s 97 and s 101 tests. The appellant has not established that the trial
judge was unreasonable or plainly wrong to admit the other tendency evidence; it was
well open to his Honour to conclude that the other tendency evidence was capable of
establishing a s 97 tendency or tendencies that were significantly probative of a fact in
issue (whether the appellant was the murderer) and that the probative value of the
evidence substantially outweighed any prejudicial effect.
The misdirection ground
97. On the appeal, the appellant contended that the italicised sentence in [101] below was
erroneous.
98. We agree, but we consider that the error did not result in a substantial miscarriage of
justice.
99. After giving general directions and directing the jury about the evidence of motive, his
Honour directed the jury about tendency evidence. First, his Honour explained the
general nature of tendency evidence in the following way:
This evidence is before you because the Crown says that there is a pattern of behaviour that reveals that the accused has a tendency to act in a particular way. The Crown says that these earlier incidents reveal a pattern of behaviour on the part of the accused that reveal he had a tendency to act in particular ways.
100. Next, his Honour referred to the five tendencies upon which the prosecution relied. His
Honour corrected an error in the prosecution address (the prosecutor had referred to
the appellant’s tendency to be attracted to knives, but this was not one of the five
tendencies).
101. His Honour then referred to defence counsel’s submission that the jury would give little
weight to the tendency incidents because there were few similarities or parallels
between those incidents and the offence. His Honour went on:
21
I want to make it clear that this evidence is not led by the Crown to establish that the accused stabbed Paula Conlon because of similarities between the earlier incidents and the events of the 27
th of March 2012. The purpose of leading this evidence is to establish
that the accused had certain tendencies as at the date of the murder of Paula Conlon. You will readily understand that it is not necessary that these earlier events have any striking similarity to the events of the 27
th of March 2012 before they may establish that the
accused had one or more of the tendencies alleged by the Crown. You should not ask yourself whether there are similarities between these earlier incidents and the events of the 27
th of March. The question you should ask yourself is whether you are satisfied that the
accused, as at the 27th of March, had any of the tendencies alleged by the Crown. It is not
necessary that each incident had features demonstrating or being capable of demonstrating all of the alleged tendencies. A particular incident may have features capable of demonstrating only one alleged tendency or it may have features capable of demonstrating more than one.
(Emphasis added)
102. The trial judge took the jury through the eight tendency incidents. His Honour directed
the jury that, before it could rely upon the circumstance of a tendency, the jury would
first have to be satisfied beyond reasonable doubt that one or more of the tendency
incidents occurred. Second, the jury would have to be satisfied beyond reasonable
doubt that the evidence proved a relevant tendency. His Honour repeatedly referred to
the need for proof beyond reasonable doubt.
103. The second italicised passage was not entirely inaccurate. The trial judge was pointing
out that the key issue was not whether the tendency incidents were similar (let alone,
strikingly similar) to the offence incident, but whether and to what extent there was
conformity between the tendency and the offending conduct. His Honour was saying
that tendency incidents were only evidence of relevant tendencies. As the reference to
“striking similarity” shows, the trial judge was emphasising that the tendency incidents
were admitted to support tendency, not coincidence. Consequently, the relevant
comparison was not a direct comparison of the similarities between the tendency
incidents and the offence incident, but a consideration of whether the tendency that
was established by the tendency evidence conformed to what was independently
known about the offence incident.
104. However, it was wrong to suggest that the jury should not compare the tendency
incidents with the offence incident for the purpose of identifying similarities. That is
because tendencies can only be divined and explained by tendency incidents.
Comparison of tendency incidents with the offence incident enables a jury to decide
how closely the tendency/s established by the tendency evidence conform/s with the
offence, i.e. for the purpose of deciding what weight to attach to the tendencies.
105. To the extent that the direction was somewhat inaccurate, we note that it was given by
way of elaboration of the preceding statement that “it is not necessary that these earlier
events have any striking similarity to the events of 27 March 2012 before they may
establish that the accused had one or more of the tendencies alleged”. That statement
was completely accurate. Further, in the sentence that followed the somewhat
inaccurate statement, the trial judge posed the correct question: whether the jury was
satisfied that, at the time of the offence, the appellant had any of the alleged
tendencies. A related and valid point that the trial judge repeatedly made was that the
jury should not look at each tendency incident in isolation to determine whether it
showed a relevant tendency, but should look at the incidents as a whole.
22
106. The trial judge gave otherwise unimpeachable directions about tendency, both in his
Honour’s opening remarks and in his Honour’s final directions.
107. It is arguable that the trial judge’s directions about tendency evidence were overly
favourable to the defence. His Honour directed the jury that the prosecution must prove
the relevant tendency incidents beyond reasonable doubt before they could be used to
support the existence of the asserted tendency. In addition, the trial judge directed the
jury that any tendency must be proved beyond reasonable doubt. These directions
followed the standard direction in the New South Wales Judicial Commission, Criminal
Trials Courts Bench Book, vol 1 (Update 52) [4–227] (the Bench Book). But, as the
Bench Book authors point out at [4–225], it is doubtful that it is necessary to prove an
asserted tendency beyond reasonable doubt (at least in relation to cases other than
child sexual assault cases, in relation to which see HML v The Queen [2008] HCA 16;
235 CLR 334). However, this point was taken neither at the trial nor on the appeal and
it is merely noted in passing.
Proviso
108. As we have identified errors in relation to the admission of evidence and in the
summing up, it is necessary to consider whether the errors could have led to a
substantial miscarriage of justice.
109. The erroneous admission of evidence about the Mother Incident and the Prison
Incident was inconsequential and could not have prejudiced the accused in any
significant way. The lack of probative value attaching to the evidence was patent. Any
prejudicial effect was minimal.
110. The somewhat inaccurate direction in the summing up is one line in an otherwise
exemplary summing up. It could not have diverted the jury from the task of working out
whether the appellant had the alleged tendencies and, if so, the weight that should be
attached to that circumstantial evidence.
111. We are satisfied that, when considered both individually and in combination, the errors
have not resulted in a substantial miscarriage of justice in the sense that the errors
deprived the appellant of a chance of acquittal that was fairly open to him: Fillippou v
The Queen [2015] HCA 29; 256 CLR 47.
112. The appeal against conviction should be dismissed.
113. Since we have prepared these reasons, we have had the advantage of reading in draft
what Wigney J has written about the tendency evidence in this case. We agree with
his Honour’s additional remarks.
Sentence
114. The trial judge sentenced the appellant to life imprisonment.
115. His Honour correctly observed that the penalty of life imprisonment is reserved for the
worst class or category of murder, where the circumstances were so heinous and
grave as to call for the imposition of the maximum penalty: at [82].
116. The appellant submitted that:
(a) The sentence of life imprisonment was manifestly excessive.
(b) The offence was not in the worst category.
23
(c) The trial judge erred by imposing a disproportionately heavy sentence in order
to protect the community.
(d) The sentence should have been mitigated because the appellant’s mental
illness meant that he was less culpable for the offence and serving the sentence
would be more onerous.
“Worst category of murder”
117. The trial judge correctly identified the features that were relevant to an assessment of
the objective seriousness of the offence.
118. At [83] of the sentencing remarks, the trial judge concluded that, objectively, the
offence was in “the worst category of murder”. His Honour reached that conclusion
because of the sustained brutality of the stabbing attack (which persisted as the
deceased struggled to defend herself), the fact that the appellant took advantage of the
deceased’s love of and trust in him to kill her in her own bedroom, the fact that the
deceased was helpless and unarmed, and the fact that the appellant intended to kill the
deceased (the appellant attacked the deceased’s chest area, it was not a case of
acting with reckless indifference to the probability of death): at [20]. His Honour also
noted that the appellant’s actions were not entirely spontaneous; after obtaining the
weapon from the kitchen there was a short period during which the appellant could
have reflected on his actions: at [20].
119. On the other hand, the trial judge also found that the appellant’s mental illness reduced
his moral culpability for the offence (thereby mitigating the objective seriousness of the
offence): at [79] and [87]. At [79] his Honour stated:
I accept that you do not have the same level of self-control and the ability to exercise reasoned judgment [sic] as a person who does not suffer from the type of mental illness which you suffer. As a consequence, it may be accepted that your moral culpability for this crime is reduced. I am satisfied, however, that you understood the nature and quality of your acts and that what you were doing was wrong when you killed Paula Conlon.
120. Factors that may aggravate the objective seriousness of an offence of murder include
significant premeditation and planning (as in R v Hillier (Unreported, Supreme Court of
the ACT, Gray J, 16 March 2005)), cold-blooded murder for monetary or other reward
(as in the case of R v Steer and Williams (Unreported, Supreme Court of the ACT,
Crispin J, 16 October 1997), a contract killing (Burrell v The Queen [2009] NSWCCA
163; 196 A Crim R 199), aggravating surrounding circumstances such as tormenting
the victim or gratuitously disfiguring the body (R v McDougall (Unreported, Supreme
Court of the ACT, Gray J, 21 July 2011)), use of a dangerous weapon such as a
firearm, attack on a person who is particularly vulnerable, commission of the offence in
company (as in R v Schmidt [2013] ACTSC 295) and the killing of a public official in
connection with the official’s public duties (as in R v Eastman (Unreported, Supreme
Court of the ACT, Carruthers AJ, 10 November 1995)). Apart from the factor of
vulnerability, none of these aggravating features was present in this case.
121. The offence was horrific. It involved a frenzied loss of control by a mentally unstable
offender who turned on his vulnerable partner in her own home, inflicting 15 sharp
force injuries with a “severe” degree of force. However, the absence of significant
aggravating features and the presence of mental illness that reduces moral culpability
mean that, objectively, the offence was not in “the worst category of murder.”
24
Mental illness made imprisonment more burdensome
122. At [34] of the sentencing remarks, the trial judge correctly observed that, in addition to
reducing moral culpability for offending conduct, mental illness may inform sentencing
because it may affect the application of various sentencing purposes and may make
imprisonment more burdensome (more punitive) for the offender.
123. The appellant had a long history of polysubstance abuse and mental illness. He
experienced auditory hallucinations from 14 or 15 years old. From 2001, when he
attempted suicide at 17 years of age, the appellant often turned to public mental
health services, using them as both an inpatient and an outpatient. By 2009, the
appellant had been diagnosed as suffering from paranoid schizophrenia, exacerbated
by the abuse of amphetamines and cannabis.
124. From 2004, the appellant was regularly medicated for psychosis, but his treatment
was complicated by non-compliance with medication requirements and substance
abuse. In schizophrenics, psychostimulants such as amphetamines can reduce
feelings of alienation and emptiness (making such drugs attractive), but also
exacerbate psychotic symptoms, including hallucinations and delusions, and negate
the beneficial effects of antipsychotic medication. The appellant had frankly told
Professor Mullen that he enjoyed using illicit drugs, particularly “ice”, because they
made him feel more normal.
125. In custody, the appellant was stable and compliant with treatment but continued to
experience symptoms of mental illness. He had spent many months in the Crisis
Support Unit, which was “locked down” for 23 hours a day. The trial judge concluded
that incarceration would be somewhat more difficult for the appellant when compared
to a person who did not suffer from the appellant’s mental illness: at [80].
126. The fact that incarceration would be somewhat more difficult for the appellant
because of his mental illness is a factor that was liable to attract some leniency.
Protection of the community
127. The trial judge was aware of the appellant’s history of violence. The appellant had a
criminal record for assault occasioning actual bodily harm (2005, sentenced to
12 months’ imprisonment which was suspended) and damaging property (2011,
sentenced to a 12-month good behaviour order). The tendency incidents and
information about violent misconduct in custody provided further background
information about propensity to violence.
128. The author of the pre-sentence report assessed the appellant as being at high risk of
reoffending while he continued to deny accountability for the offence and failed to
address illicit substance use.
129. The appellant informed Professor Mullen that he had suspected that the deceased had
been unfaithful with multiple partners. Professor Mullen said that 10% of males with
schizophrenia experience pathological jealousy and delusions of infidelity, associated
with high rates of violence towards their partners and suicide. Professor Mullen agreed
that, because of his mental illness (and associated pathological jealousy) and
substance abuse, the risks of violence towards a partner and suicide were high. If the
appellant was returned to the community immediately, there was a very high risk that
he would reoffend. The risk was informed by the nature of the appellant’s mental
25
illness, his substance abuse, the potential for jealousy and the appellant’s lack of
insight into his behaviour and associated lack of ability to control it.
130. It was Professor Mullen’s opinion that, in order to reduce the risk of reoffending, the
appellant should be placed in a secure forensic mental health facility for a minimum of
five years. Professor Mullen opined that the appellant would need regular medical
supervision for the rest of his life.
131. The trial judge accepted that the appellant’s mental illness created an increased risk of
future violence: at [78]. His Honour found that it was unclear whether the danger could
“ever be reduced to an acceptable level”: at [87]. Consequently, his Honour considered
that the executive, advised by the Sentence Administration Board, was the body best
placed to assess the risk that the appellant would present to the community if he was
released: at [89]. His Honour was reassured by the prospect that, if released on
licence, the appellant would be closely supervised for the remainder of his life.
132. The trial judge was well aware that a need to protect the public could not justify a
sentence that was disproportionate to the objective seriousness of the offence: at [90].
At [91] his Honour said:
The need to protect the public cannot justify an increase in the appropriate sentence, but it may justify withholding a reduction that would normally attend proof that the offender committed the offence while subject to a disturbed mental state.
133. This is a correct statement of principle. However, his Honour did not apply that principle
in the present case. For the reasons stated above, objectively speaking, the offence
was not in the “worst category of case” and did not, prima facie, call for a sentence of
life imprisonment.
134. As noted above, mental illness may inform sentencing purposes in a variety of ways. It
may increase the weight to be attached to the purpose of protecting the public. An
increased need to protect the public may, for example, be considered alongside the
additional punitive effect of incarceration that is associated with an offender’s mental
illness. But mental illness cannot increase the sentence that is otherwise appropriate,
having regard to the objective seriousness of the offence.
135. As this offence was not, objectively speaking, in the “worst category”, we conclude that
the trial judge’s concern about the risk of serious reoffending wrongly influenced his
Honour to increase the otherwise appropriate penalty to the maximum penalty.
Re-sentence
136. The objective seriousness of the offence has been canvassed. The appellant’s
subjective circumstances are set out above and in the trial judge’s reasons for
sentence. We take those matters and the supporting evidence into account.
137. We have considered s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)
and referred to the relevant factors.
138. All the sentencing purposes in s 7 of the Sentencing Act are relevant to the re-
sentencing exercise. In re-sentencing the offender, we respect the trial judge’s
assessment that, because of his dual diagnosis and the nature of his mental illness, the
appellant poses a risk to public safety generally, and he poses a serious risk to the
safety of future partners. Consequently, protection of the public is a dominant
sentencing consideration.
26
139. In their submissions, both parties referred to comparative cases. As a group, the cases
provide an indication of the usual sentencing range in this jurisdiction; they are of some
use as a “yardstick” when setting an appropriate sentence.
Orders
140. The Court makes the following orders:
(a) The appeal against sentence is allowed.
(b) Otherwise, the appeal is dismissed.
(c) The appellant is sentenced to 19 years’ imprisonment from the date of arrest,
29 March 2012, to 28 March 2031.
(d) We fix a nonparole period of 10 years’ imprisonment from 29 March 2012 to
28 March 2022.
I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell and his Honour Justice Refshauge.
Associate:
Date: 10 November 2016
WIGNEY J: 141. In September 2014, a jury convicted the appellant, Aleksander Vojneski, of the murder
of his then domestic partner, Ms Paula Conlon. In November 2014, the trial judge
sentenced the appellant to life imprisonment. The appellant appealed both his
conviction and sentence.
142. The primary issue in the conviction appeal is whether the trial judge erred in admitting
evidence that tended to prove that the appellant had a tendency to act in various
particular ways. Complaint was also made about a small aspect of his Honour’s
directions to the jury concerning the tendency evidence.
143. The primary issue in the sentence appeal is whether the sentence of life imprisonment
was manifestly excessive. Was the appellant’s murder of Ms Conlon amongst the
worst class or category of murder?
144. I have had the considerable benefit of reading the reasons to be published by the Chief
Justice and Refshauge J. I agree with the orders proposed by their Honours. Subject
to the following additional observations, primarily by way of elaboration, I also agree
with their Honour’s reasons.
145. I gratefully adopt their Honour’s detailed consideration of the procedural history of the
proceedings, including the issue concerning leave to appeal; the evidence led at the
trial, including the tendency evidence; and, the trial judge’s judgment concerning the
admissibility of the tendency evidence. I will for the most part use the same
abbreviations used by the Chief Justice and Refshauge J in describing the different
categories of tendency evidence.
27
146. It is also unnecessary for me to repeat what their Honours have said concerning the
operation of ss 97 and 101 of the Evidence Act 2001 (ACT) and the law concerning
tendency evidence generally. The issue on the appeal is not so much the relevant law
and principles. Rather, it is the application of the relevant law to the evidence in issue.
The admissibility of the tendency evidence
147. It is difficult not to be critical of the manner in which the Crown dealt with the relevant
tendency evidence. That is so for a number of reasons.
148. First, the Crown appears to have been guilty of overreach. While the Crown’s case
against the appellant was largely circumstantial, it was nonetheless a strong case. It
was largely unnecessary for the Crown to rely on at least some of the evidence it
sought to tender on tendency grounds. Much of the tendency evidence had the
capacity to overcomplicate the trial. Worse still, some of the evidence that the Crown
sought to lead on tendency grounds was, to say the very least, tenuous. The primary
judge was plainly correct to reject the tender of the evidence concerning six of the
fourteen “incidents” that the Crown initially sought to adduce. The Crown should be
discouraged from tendering every possible skerrick of potential tendency evidence that
it is able to muster. Some judgement should be exercised.
149. Second, the tendency notice relied on by the Crown was unnecessarily complex,
convoluted and confusing. That was not just a matter of form. The notice specified six
seemingly separate but nonetheless overlapping alleged tendencies. The evidence
that was said to capable of proving all or some of those six tendencies related to 14
distinct “incidents”. None of the incidents was said to be capable of demonstrating all
of the six tendencies. Some of the incidents were said to be capable of only
demonstrating one of the six tendencies.
150. It would plainly have been preferable for the Crown to specify one, or perhaps two,
particular and distinct tendencies. It was never clearly explained why the alleged
tendencies were disaggregated in the way they were in the notice. The reason may be
that, if not disaggregated, it would have been difficult for the Crown to justify the
admission of evidence of at least some of the incidents which tended to prove only very
general tendencies. The Crown should not be encouraged to draft tendency notices in
such complex and convoluted terms.
151. Third, some of the six specified tendencies were expressed in very broad and general
terms. The clearest examples were the first specified tendency, being a “tendency to
become quickly aroused to anger and to act violently when angered” and the fourth
specified tendency, being the tendency “to act violently when under the influence of
alcohol or marijuana or a combination thereof”. As the Chief Justice and Refshauge J
point out, those alleged tendencies were hardly distinctive or particular. Indeed,
perhaps regrettably, it could perhaps be said that many people in the general
community probably share such tendencies. It is difficult to see how evidence which
was only capable of proving one or even both of those general tendencies could
possibly have had significant probative value as required by s 97 of the Evidence Act.
152. Fourth, the Crown never clearly articulated exactly how the six tendencies specified in
the notice had significant probative value. What was the relevant fact or facts in issue
in the trial to which the tendency evidence was directed? How did proof of any of the
six tendencies affect the assessment of the probability of the existence of that fact or
those facts? In contrast to the convoluted and disaggregated tendency notice served
28
by the Crown, the Crown tended to treat the tendency evidence in a general and global
fashion and to gloss over exactly how each of the asserted tendencies was said to be
significant or important to the fact or facts in issue at the trial.
153. The convoluted and confused manner in which the Crown presented and sought to
justify the tendency evidence led the primary judge to erroneously admit some of the
evidence. I agree with the Chief Justice and Refshauge J that the evidence of the so-
called Mother Incident and Prisoner Incident should have been rejected.
154. Considered in the context of the balance of the evidence led at the trial, and the facts in
issue, it was not open to the primary judge to conclude that the evidence concerning
those two incidents had significant probative value. I am unable to see how the
evidence concerning those two incidents was capable of proving a tendency which had
the capacity to indirectly effect, to any significant extent, the assessment of the
probability of any fact in issue at the trial. At its very highest, the evidence concerning
those two incidents was capable of demonstrating no more than that the appellant had
a tendency to punch people if angered or upset by something. Proof of such a general
tendency could not have provided any significant support for an inference that it was
the appellant who was responsible for the violent stabbing of his domestic partner on
the night in question. The evidence relating to those two incidents was not capable of
satisfying s 97 of the Evidence Act. It should have been rejected.
155. As for the remaining six tendency incidents, there are some troubling aspects of at
least some of the evidence that the Crown adduced supposedly to prove that the
appellant possessed those tendencies. Some of the evidence adduced by the Crown
in fact appeared to stray beyond evidence relating to the specific incidents and alleged
tendencies. The appellant’s appeal grounds and submissions did not, however,
directly challenge any specific evidence which was admitted on tendency grounds.
The appellant made no real attempt to take the Court to any specific evidence that he
claimed was particularly prejudicial or did not, in fact, constitute tendency evidence.
Rather, the appeal grounds and submissions were pitched at a much more general
level and focused primarily on the general nature of the six incidents and alleged
tendencies. This was, to a certain extent, consistent with the appellant’s approach to
the tendency evidence at the trial. Once the trial judge determined that evidence
concerning the various incidents was admissible on tendency grounds, for the most
part the appellant did not raise any further objection to any specific evidence that was
said to relate to the incidents in question.
156. The appellant’s main argument, in simple terms, was that the other incidents were not
sufficiently similar to what the evidence otherwise revealed about the stabbing of
Ms Conlon on the night in question to justify or support a finding of significant probative
value. The submission was, in effect, that the evidence concerning the six incidents
lacked probative force because the evidence did not reveal any similar features which
could logically or cogently support the inference that the appellant had been
responsible for the violent stabbing of Ms Conlon. It was also contended that the
reasoning that supposedly supported the admission of the tendency evidence was
inherently circular. That was said to be because there was no evidence to prove that
the offence was committed in a manner that in any way corresponded with the other
incidents and alleged tendencies. In the appellant’s submission, the Crown sought to
use the tendency evidence to provide “boot strap” support for what was no more than a
case theory or speculation.
29
157. The probative value of the tendency evidence concerning the six incidents must be
considered in the context of the other evidence led by the Crown. That evidence was
capable of establishing the following matters: the appellant and Ms Conlon were in a
relationship; the appellant had been with Ms Conlon on the afternoon and evening of
the murder; the appellant and Ms Conlon had been consuming alcohol that evening;
the appellant had made a number of telephone calls that night which indicated that he
had been attempting to acquire drugs on credit; DNA from blood found on floor tiles
near the room where Ms Conlon was stabbed, and on the door handle to that room,
was consistent with the appellant’s DNA; the appellant had an injury on his hand which
was consistent with an offensive knife injury; Ms Conlon’s injuries were consistent with
the killer having used a cooks knife that was found to be missing from the kitchen and
was never recovered; the appellant’s fingerprints were found on a plastic bag which
contained clothes which had been purchased online by Ms Conlon; that bag had
sustained cuts which were consistent with having been made by the murder weapon;
there was blood on the cuts to the bag which was consistent with Ms Conlon’s blood;
the appellant’s DNA was located under Ms Conlon’s fingernails in a manner consistent
with Ms Conlon attempting to defend herself and in circumstances where the appellant
appears to have had scratches on his person; on the morning following the murder the
appellant was discovered in a van used by his brother which was parked outside the
residence of his brother’s friend; when found, the appellant was wearing different
clothes to those that he had been wearing the previous night; and, the clothes that the
appellant had been wearing on the night in question were never recovered.
158. There could be little doubt that the stabbing murder of Ms Conlon was both violent and
vicious and appeared to be the product of anger, if not rage.
159. The appellant did not give evidence at his trial.
160. Considered in the context of the evidence as a whole, it is not difficult to see why
evidence which tended to prove that the appellant had a tendency to quickly lose his
temper, particularly when affected by alcohol or drugs and, when angry, to use knives
in a violent or threatening manner, could have significant probative value. Such
evidence, if considered together with the other circumstantial evidence, was capable of
significantly supporting the inference that it was the appellant who was responsible for
the violent stabbing murder of Ms Conlon. It would, in short, have been open to the
jury to infer that, consistent with this tendency, the appellant lost his temper with
Ms Conlon on the night in question (perhaps as a result of Ms Conlon having used
money to purchase clothing online in circumstances where the appellant was in search
of drugs but had no money) and grabbed a knife from the kitchen and violently stabbed
her.
161. Use of the tendency evidence in this way would not involve circular reasoning. The
flaw in the appellant’s argument concerning circular reasoning is that it essentially
ignored the other circumstantial evidence. It ignored, in particular, the evidence
concerning the violent nature of the attack on Ms Conlon which suggested that Ms
Conlon’s attacker acted in considerable anger and utilised a knife seized from the
kitchen, together with the forensic evidence that was capable of linking the appellant to
the attack. The Crown did not seek to use the tendency evidence to support what was
merely speculation or a case theory. Nor did the primary judge admit the evidence on
that basis. The evidence was admitted on the basis that it was significantly probative
circumstantial evidence that was consistent with the balance of the circumstantial
30
evidence concerning the nature and circumstances of the violent stabbing of Ms
Conlon.
162. In these circumstances, it was, at the very least, open to the primary judge to find that
evidence relating to the following incidents (using the abbreviations referred to in the
judgment of the Chief Justice and Refshauge J) had significant probative value: the
Skyfire Incident; the Barbecue Incident; the Former Partner Incident; the Tyres Incident
and the Balcony Incident. His Honour dealt with the evidence of those incidents by
reference to the capacity of the evidence to prove a number of the disaggregated
tendencies specified in the Crown’s convoluted tendency notice. The better approach
would have been to treat the evidence as capable of proving that the appellant had a
tendency to quickly lose his temper, particularly when affected by alcohol or drugs, and
when angry, to use knives in a violent and threatening manner. For the reasons
already given, evidence which was capable of proving such a tendency, when
considered in the context of the balance of the evidence as a whole, was capable of
having significant probative value: it was capable of being important, or of
consequence, in proving that it was the appellant who was responsible for the violent
stabbing of Ms Conlon.
163. It was equally open to the primary judge to find that the probative value of the evidence
substantially outweighed any prejudicial effect of that evidence. The appellant
contended that there was a high risk that the jury would use the evidence to make a
decision on an improper basis logically unconnected with the issues in his case. He
contended that there was a risk that the jurors might reason from the “sheer weight of
the generalised, bad character or criminal disposition evidence” that the appellant was
the kind of person who would have committed the offence in question. The appellant
placed particular reliance on the decision of Howie J (with whom McColl JA and Grove
J agreed) in O’Keefe v R [2009] NSWCCA 121.
164. That submission has no merit. While it may be accepted that the relevant tendency
evidence was prejudicial to the appellant, in the sense that it revealed that the
appellant had engaged in bad conduct in the past, it does not follow that the jury was
likely to misuse the evidence or make a decision on an improper or emotional basis. I
agree with the Chief Justice and Refshauge J that the tendency incidents in question
were not particularly horrific or likely to inspire an improper or emotional response.
That is particularly the case where, as here, the jury was given careful and clear
instructions by the trial judge relating to how the evidence could and could not be used.
The facts and circumstances of this case are far removed from the facts and
circumstances considered in O’Keefe. There is no basis to conclude that, in finding
that the probative value of the evidence relating to the six incidents in question
substantially outweighed any prejudicial effect, the primary judge failed to identify the
correct principles, or misapplied the applicable principles, or that the finding was
unreasonable.
165. I am, however, somewhat troubled by the evidence relating to what the Chief Justice
and Refshauge J refer to as the Use of Drugs incident. This was not so much evidence
of an incident. Rather, it comprised somewhat general and rather unsatisfactory
evidence from the appellant’s mother and brother which tended to show that in some
circumstances the appellant became sad and angry, or frustrated and verbally abusive,
if they did not give him money for drugs. The general effect of the evidence was that
both the appellant’s mother and brother gave the appellant money rather than deal with
the appellant’s behaviour if the request was denied. The evidence relating to this
31
supposed tendency differed from the evidence relating to the other incidents (putting
aside the Mother Incident and the Prisoner Incident) because it did not involve any
threatened or actual physical violence involving a knife.
166. The primary judge admitted the Use of Drugs evidence primarily on the basis that it
tended to prove that the appellant had a capacity to become angry and violent when
people did not provide him with money for drugs. His Honour found that the evidence
had significant probative value because it was “an important part of the Crown’s case
that the accused was angry with the deceased because he could not obtain drugs on
[the night in question] in part because she had no money to purchase them”: R v
Vojneski [2014] ACTSC 66 at [71].
167. It is, with respect, somewhat difficult to see how evidence which was capable of
proving no more than that the appellant had a tendency to become angry when not
given money to buy drugs could alone have significant probative value. The evidence
did not go so far as to establish that the appellant had a tendency to act physically
violently or to use knives in such circumstances. Those occasions where the appellant
did use knives in a violent or threatening manner did not relate to occasions where the
appellant was not given money for drugs. The evidence was also limited to
circumstances involving requests for money from the appellant’s mother and brother,
not friends or persons with whom the appellant had a domestic or intimate relationship.
168. There was also very little evidence to suggest that the circumstances on the night of
Ms Conlon’s murder were in any real sense similar to the circumstances the subject of
this tendency evidence. While it is strictly not necessary to prove a striking similarity
between the tendency incidents and the incident in question, the probative value of the
tendency evidence generally hinges, to an extent, on the existence of some such
underlying similarity or conformity. There was some evidence to suggest that the
appellant had been attempting to source drugs on the night of the murder and that he
was short of money. There was, however, little or no evidence that the appellant had
sought or demanded money for drugs from Ms Conlon on the evening in question, or
that Ms Conlon was unwilling or unable to give him that money.
169. It was no doubt part of the Crown case that the appellant was angry with Ms Conlon on
the evening in question. An important piece of circumstantial evidence in the Crown’s
case was the stabbing of the parcel containing Ms Conlon’s online purchase. The
forensic evidence connected the appellant to that parcel and the stab marks were
consistent with the use of the knife that was used to stab Ms Conlon. This perhaps
supported the inference that the person who murdered Ms Conlon was angry about her
online purchase. It is difficult to see why anyone other than the appellant would be
angry with Ms Conlon about that matter. It is, however, somewhat difficult to see why
that circumstance was capable of justifying evidence from the appellant’s mother and
brother about the appellant’s reaction in the past when they did not give him money for
drugs.
170. Of even more concern is that the evidence that the Crown actually led at trial to prove
the appellant’s tendency to react angrily when not provided with money for drugs
appeared to extend to evidence which established no more than the appellant’s past
history of drug use and abuse. It appeared to extend to evidence relating to his erratic
and violent behaviour when he was either under the influence of, or was craving or
withdrawing from drugs, particularly the drug “ice”. There was, however, no evidence
to suggest that the appellant was under the influence of ice on the evening in question.
32
171. The difficulty for the appellant, however, is that, as adverted to earlier, once the primary
judge decided to permit the Crown to lead evidence which was capable of proving that
the appellant had a tendency to react angrily when not provided with money for drugs,
no further objection was taken to specific evidence led by the Crown in relation to this
alleged tendency. The appellant did not, for example, object to any specific evidence
led by the Crown on the basis that it went beyond proving that tendency, or that it was
particularly prejudicial. No specific objection to evidence on that basis was taken at the
trial. Nor, on appeal, did the appellant take the Court to any specific evidence which, in
his submission, went beyond proof of the asserted tendency or was particularly
prejudicial. As noted earlier, the appellant’s submissions, both before the primary
judge and on appeal, did not descend into specifics, but rather were pitched at a much
more general level.
172. Given the somewhat unsatisfactory way that the Use of Drugs evidence was dealt with,
both before the primary judge and on appeal, it is difficult to resolve the question
whether this evidence was properly admitted as tendency evidence. As noted earlier,
the Crown’s tendency notice was unnecessarily convoluted and confusing. The
argument before the primary judge proceeded at a high level of generality, particularly
in relation to the Use of Drugs evidence. His Honour’s reasons for admitting this
evidence are sparse. No further objection was taken at trial to specific evidence led by
the Crown under the guise of proving this tendency. Nor were the appellant’s appeal
grounds or submissions directed at any specific evidence. Having read that evidence, I
am far from convinced that much of it was of significant probative value. Had further
specific objection been taken to at least some of the evidence, it may well have been
appropriate to reject it.
173. On balance, however, whilst I have some significant misgivings about some of the
specific evidence led by the Crown purportedly to prove this particular tendency, I am
unable to conclude that the trial judge erred in principle in admitting evidence that
tended to prove that the appellant became angry when deprived of money to acquire
drugs. That is primarily because proof that the appellant had such a tendency should
not be considered in isolation. It was at least open to the trial judge to find that such a
tendency, considered alongside and together with other evidence that showed that the
appellant had a tendency to act violently and use knives when incited to anger, was
capable of having significant probative value. It was, in short, at least open to the trial
judge to conclude that the probative value of the evidence of the appellant’s mother
and brother was significant when considered in the context of the other tendency
evidence.
174. In all the circumstances it was also open to the trial judge to find that the probative
value of this evidence was greater than any prejudicial effect. As with the other
tendency evidence, there was nothing particularly prejudicial about evidence that
simply tended to prove that the appellant had a tendency to lose his temper and act
violently when denied money to use for drugs. Nor was the jury likely to misuse such
evidence given the trial judge’s generally clear and careful directions concerning the
use of the tendency evidence generally.
175. I therefore agree with the Chief Justice and Refshauge J that the trial judge did not err
in admitting that evidence of the tendency incidents other than the Mother Incident and
the Prisoner Incident.
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The misdirection
176. I agree with the Chief Justice and Refshauge J that the primary judge erred in directing
the jurors that they should not ask themselves whether there were similarities between
the tendency incidents and the events of the night when Ms Conlon was murdered.
That direction went too far.
177. In assessing the weight and significance that they may give to the tendency evidence,
it was open to the jury to consider whether there was any material similarity or
conformity between any proven tendency and what other evidence revealed about the
circumstances of the evening in question. That reasoning process might well involve a
consideration of any similarities between the various tendency incidents and what the
evidence otherwise showed about the incident on the night in question. His Honour
was wrong to direct the jury, in effect, that they should not engage in that sort of
reasoning process.
The proviso
178. I agree with the Chief Justice and Refshauge J that, despite the erroneous admission
of the evidence of the Mother Incident and the Prisoner Incident, and the misdirection,
the conviction appeal should be dismissed by reason of the proviso in s 37O(3) of the
Supreme Court Act 1933 (ACT). I am satisfied that, despite those errors or
irregularities, the appellant received a fair trial according to law and was not otherwise
deprived of a chance of acquittal that was fairly open to him: Filippou v The Queen
[2015] HCA 29; 256 CLR 47 at 54–55 (per French CJ, Bell, Keane and Nettle JJ).
There was no substantial miscarriage of justice.
179. The case against the appellant was a strong circumstantial case. The evidence that
was wrongly admitted was, in the face of the otherwise compelling circumstantial case,
relatively insignificant and unlikely to have been given any real weight by the jury. The
Mother Incident and the Prisoner Incident was capable of proving no more than that the
appellant had a tendency to be quickly aroused to anger and, when so angered, tended
to act violently. The violence involved in the Mother Incident and Prison Incident,
however, involved only a punch or punches. The evidence concerning the other
incidents that was properly admitted as tendency evidence was capable of proving not
only that the appellant had a tendency to be quickly aroused to anger, but that when so
angered, he tended to use knives in a threatening or violent manner. That tendency
evidence no doubt subsumed the evidence concerning the Mother Incident and the
Prisoner Incident, such that it is difficult to see how there was any prospect that the jury
would have given that evidence any material weight.
180. Nor, in all the circumstances, was there any risk that the evidence of the Mother
Incident and the Prisoner Incident would have had any real prejudicial effect. Subject
to the one minor error just referred to, the trial judge gave careful directions concerning
the proper use of the tendency evidence, including the Mother Incident and the
Prisoner Incident specifically. The evidence of those two incidents was not such as to
be likely to cause the jury to decide the matter on any improper or emotional basis.
Indeed, the evidence largely paled into insignificance alongside the balance of the
evidence.
181. As for the misdirection, it involved only one sentence in an otherwise clear and
unimpeachable summing up. Read in the context of the summing up as a whole, and
in the context of the summing up and directions given specifically in relation to the
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tendency evidence, it is not possible to conclude that the misdirection would have had
any real impact on the jury. That may perhaps explain why no complaint was made, or
any redirections sought, by counsel for the appellant at the trial.
182. Considered either alone or in combination with the erroneous admission of the
evidence of the Mother Incident and Prisoner Incident, it cannot be concluded that the
misdirection resulted in a substantial miscarriage of justice. It did not deprive the
appellant of a chance of acquittal that was fairly open to him.
The sentence appeal
183. I agree with the Chief Justice and Refshauge J that the sentence appeal should be
allowed and that the appellant should be re-sentenced as their Honours propose.
184. The murder of Ms Conlon was undoubtedly a heinous and horrific crime. It was not
open for the trial judge to conclude, however, that it was within the worst class or
category of murder. As the Chief Justice and Refshauge J point out, the appellant’s
mental condition reduced his moral culpability. There was also an absence of
significant aggravating features. The offence was deserving of a condign sentence, but
not life imprisonment. I agree with the Chief Justice and Refshauge J that an
appropriate sentence would be a sentence of imprisonment for 19 years with a non-
parole period of 10 years.
I certify that the preceding forty four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney
Associate:
Date: 10 November 2016