No.
1510
of
2003
- The accused, Jennifer Besim, who is presented on a count of
manslaughter by unlawful and dangerous act struck her husband, David
Besim, on
the head with a heavy vase fracturing his skull. The accused denies that her
conduct was unlawful. The defence case is
that she acted in self-defence in
response to violence, and a threat of further violence from the
deceased.
- Mr Forrest Q.C. with Mr Collins who appears for the
accused has foreshadowed that he proposes to call evidence from the first wife
of the deceased to the effect that the deceased had been violent to her during
their marriage. The learned prosecutor initially
objected to such evidence
being admitted on the ground that it was irrelevant and subsequently submitted
that I should exercise a
power to exclude it on the basis that its prejudice to
the deceased's character and the Crown case exceeded its probative
value.
- The evidence is said by the defence to be relevant on three
discrete bases. First, it is submitted that it is relevant to the state
of
mind of the accused at the time that she responded to what the defence contends
was a threat of further violence by the deceased
towards the accused and her
children. The accused in her Record of Interview stated that she believed that
the deceased had been
violent towards his previous wife. The accused did not,
in her evidence refer to this.
- Secondly, the defence relies upon such evidence as bearing upon
the reasonableness of the accused's act.
- Thirdly, such evidence is said to make it more probable that
the deceased acted in the violent manner described by the accused.
In
particular, the defence relies upon the fact that the deceased's former wife
will testify that the deceased became more violent
when she threatened to call
the police.
- The evidence called in this trial, if accepted, is that the
accused's act followed soon after her stated intention to call the police
and
the deceased's response that he would not permit it. The deceased's first wife
will testify that the deceased had become violent
when she threatened to call
the police. The extent of any similarity between the circumstances of the
accused and that experienced
by the deceased's previous wife and its probative
value would be a matter for the jury if such evidence is
admitted.
- Evidence is relevant if it tends to make more probable a fact
in issue. Martin v Osborne[1] and
O'Leary v R[2]
- It is appropriate to refer to the well known passage from the
judgment of Dixon J in Martin v Osborne where his Honour
said:
"The moral tendencies of persons, their proneness to acts or
omissions of a particular description, their reputations and their associations
are in general not matters which it is lawful to take into account and evidence
disclosing them if not otherwise relevant is rigidly
excluded. But the class
of acts and occurrences that may be considered include circumstances whose
relationship to the fact in issue
consists in the probability or increased
probability judged rationally upon common experience that they would not be
found unless
the fact to be proved also existed."[3]
- Evidence of propensity of the accused, though relevant if it
makes a fact in issue more probable, is excluded for reasons of public
policy.[4] Such considerations do not arise
when the propensity concerns a person other than the accused.[5]
- It is in accordance with principle and authority that evidence
of a relevant propensity of a deceased or other witness is allowed
where such
evidence sufficiently bears upon a fact in issue. It would be contrary to
reason to exclude evidence of previous violent
acts of the deceased if such
conduct were relevant to an issue at trial. Evidence of the deceased's prior
violent conduct is admissible
where it may explain the accused's state of mind
at the time of the incident in question. In cases of homicide, the bad
character
of the deceased and previous assaults have been received to show that
the accused had reasonable grounds for apprehending violence.
R v
Biggin[6]; R v Hopkins[7]; R v Griffin[8];
R v Flanagan[9]; R v Kerr (No.
2)[10]; R v Hector[11]; R v Caracella (No. 2)[12]; R v Jackson[13]; Re Knowles[14];
R v Gibb & McKenzie[15];
Masters v R[16]; Harmer v R[17]; R v Mogg[18]; R v Ellem(No. 1)[19]; R v Anderson[20] and R v PP.[21]
- Evidence of an accused's past experiences of violence or
knowledge of violence to others by the deceased may be relevant where
self-defence
or provocation is raised. It may bear upon the accused's state of
mind and the reasonableness of their conduct R v Osland.[22]
- Such evidence may also bear upon whether the deceased acted as
the accused alleges. A pertinent character trait of the alleged
victim may
bear upon whether the victim committed an act in conformity with that character
trait.[23] This rationale provides the
foundation for the admission into evidence of similar fact evidence against an
accused because it provides
circumstantial evidence which confirms the veracity
of the evidence given by another Crown witness and also serves as
circumstantial
evidence of the happening of the events in issue. Hoch v
R[24] and R v MNG.[25]
- It is immaterial whether the accused for this purpose knew of
that character trait before the time of the commission of the alleged
offence.
State of Iowa v Jacoby[26] and R v
Ellem (No. 1).[27]
- Although it was once thought that evidence of facts of which
the accused had no knowledge was not admissible,[28] at least since Knowles' case it has been well
established that the admissibility of such evidence does not depend upon the
accused's knowledge of such facts
if they are consistent with other evidence of
what the deceased did. The passage from Wigmore[29] and referred to in Knowles' case
states:
"Where controversy arises whether the deceased was the aggressor,
one's persuasion will be more or less affected by the character
of the
deceased. It may throw light upon the probabilities of the deceased's action.
The additional element of communication is
unnecessary, for the question is
what the deceased probably did, not what the defendant probably thought that
the deceased was going
to do."[30]
- Though the evidence that the defence wishes to call may
bolster the credit of the accused, it relates to the issues of whether the
deceased acted as the accused claims and may throw light upon the accused's
state of mind. The finality rule as to the pursuit of
questions of credit
issues will generally give way where questions of credit are inextricably
linked with issues in the case. Harmer v R[31]; R v Funderburk[32]; Natta v Canham[33]; R v Chandu Nagrecha[34] and Palmer v R.[35]
- Initially it was submitted by the Crown that the decision in
Knowles' case was very much turned upon the degree of similarity of the
conduct of the deceased on a prior occasion and the deceased's conduct
at the
time of the alleged offence. A similar submission was made by the Crown in
R v PP[36] in which it was said that
the cases of Gibb & McKenzie v R, R v Hector and R
v Knowles all turned upon the close factual connection between the
conduct, the disposition of which it was sought to adduce evidence and the
offence with which the accused was charged.
- Nettle J observed in R v PP, that those cases reflect a
broader principle than the facts of those cases. Evidence of disposition will
be admitted where it may
more readily lead to the conclusion that the victim
behaved in the way it is alleged by the accused that he behaved at the time of
the accused's conduct with which she is charged.
- This conclusion based both upon principle and the line of
authority to which I have referred may have led the learned prosecutor
to
subsequently suggest that I should exercise a power which he described as the
Christie discretion to exclude such evidence as its prejudicial effect,
presumably upon the deceased's character and the Crown case, far outweighed
its
probative value.
- The High Court in the recent decision of R v
Swaffield[37] referred to the following
dicta of Lord Reading in R v Christie[38]:
"Nowadays, it is the constant practice for the judge who presides
at the trial to indicate his opinion to counsel for the prosecution
that
evidence which, although admissible in law, has little value in its direct
bearing upon the case, and might indirectly operate
seriously to prejudice the
accused should not be given against him, and speaking generally, counsel
accepts the suggestion and does
not press for the admission of the evidence
unless he has good reason for it."[39]
The exercise of this discretion is particularly called for if
the evidence has little or no weight but may be gravely prejudicial
to the
accused. R v Christie; Noor Mohamed v R[40]; Harris v Director of Public Prosecutions[41] and Kuruma v R.[42]
- Rules of evidence must be tempered by reason to accommodate
the special need to avoid prejudice or unfairness to an accused. The
exclusion
of admissible evidence sometimes occurs because its reception would be unfair
to the accused in that it might place him
at risk of being improperly
convicted[43] either because its weight and
credibility cannot be effectively tested[44]
or because it has more prejudicial than probative value and so may be misused
by the jury.[45]
- Earlier authority and subsequent cases bear out the existence
of the general discretion in a trial judge to exclude admissible evidence
to
ensure a fair trial for the accused. Domenic v R[46]; Matusevich v R[47]; Phillips v R[48]; Alexander v R[49]; Domican v R[50]; Harriman v R[51]; Pfennig v R[52]
and R v Swaffield.[53] I have treated
the learned prosecutor's invocation of the Christie discretion as a
reference to the discretion in its various forms.
- In Festa v R[54],
Gleeson CJ said:
"If evidence is of some, albeit slight probative value, then it is
admissible unless some principle of exclusion comes into play to
justify
withholding it from a jury's consideration. It is not enough to say that it is
"weak", and whether it is weak might depend
on what use is made of it."[55]
- The basis for the exclusionary principle which supports the
discretion to which I have referred, is the need to procure a fair trial
for
the accused. Evidence that has a probative value may not be admitted where it
works a prejudice to the accused.
- The Crown seeks to exclude probative evidence on the ground
that it may work prejudice, not to the accused, but to the Crown. No
authority
was cited to support the proposition that evidence which logically bears upon
an issue and which the accused seeks to adduce
should be excluded because it
may be improperly used by the jury to the detriment of the prosecution and not
for the exculpatory
consequences of its proper use. No such exclusionary
principle exists.
- When the character or general disposition of a victim is not
in issue in a criminal trial, the accused does not have a right to
blacken the
victim's name. But conduct of the deceased relevant to a fact in issue and
favourable to the accused cannot be excluded
on a discretionary basis.[56] Evidence of disposition of the victim that
tends to advance the exculpation of the accused and which relates to an issue
in the
case cannot be excluded in the exercise of discretion on the ground that
it prejudices the Crown or the deceased.
- Evidence has already been admitted from a variety of sources
that the deceased may have assaulted the accused on previous occasions.
The
jury has been given some explanation as to how such evidence may be relevant to
the issues in the case. Whether such evidence
of the accused's experiences or
her knowledge of the accused's violence to others which the jury accepts will
have any bearing on
the accused's conduct depends upon the jury's findings as
to what the accused and the deceased did and the extent to which such evidence
may assist the jury in determining what did occur.
- A direction is clearly called for that will ensure that such
evidence is used only by the jury in a permissible way and having regard
to its
probative value.
[1] [1936] HCA 23; (1936) 55 CLR 367.
[2] [1946] HCA 44; (1946) 73 CLR 566.
[3] Supra Footnote 1 at 375.
[4] See Attwood v R [1960] HCA 15; (1960) 102 CLR 353;
R v Gibb & McKenzie [1982] 2 VR 155.
[5] See R v Lowery & King [1972] VicRp 109; [1972] VR
939 at 944; Lowery v R. (1973) 47 ALJR 309.
[6] [1920] 1 KB 213.
[7] (1866) 10 Cox CC 229. See also
Heydon, John Dyson (ed.) (2000) Cross on Evidence (6th
Australian edition), Sydney, Butterworths, Volume 1 at paragraph 19095;
Buzzard, John et al (eds.) (1976) Phipson on Evidence
(12th Ed), London, Sweet & Maxwell, at paragraph 542.
[8] (1872) 10 SCR (NSW) 91.
[9] [1946] VicLawRp 24; [1946] VLR 159.
[10] [1951] VicLawRp 31; [1951] VLR 239.
[11] [1953] VicLawRp 72; [1953] VLR 543.
[12] [1958] VicRp 101; [1958] VR 661.
[13] [1982] VicRp 30; [1982] VR 326.
[14] [1984] VicRp 67; [1984] VR 751.
[15] Supra see Footnote 5 R v Gibb &
McKenzie.
[16] [1987] 2 Qd R 262.
[17] (1985) 28 A. Crim. R. 35.
[18] [2000] QCA 244 at 57.
[19] [1995] 2 Qd R 542.
[20] [2000] VSCA 16; [2000] 1 VR 1; (2000) 111 A. Crim. R.
19; and [2000] VSCA 16.
[21] [2002] VSC 522.
[22] [1998] HCA 75; (1998) 197 CLR 316 at 337 per Gaudron
and Gummow JJ; 376 and 380 per Kirby J.
[23] Wigmore, John (1961), Wigmore on
Evidence, Boston, Little Brown, Volume 1A, at paragraph 63.
[24] [1988] HCA 50; (1998) 165 CLR 292.
[25] [2002] VSCA 7.
[26] (1997) 260 NW 2d 828.
[27] Supra Footnote 20 at 547.
[28] Supra Footnote 10 R v
Flanagan.
[29] Supra at Footnote 24 at 470-471.
[30] Supra Footnote 15 at 768.
[31] Supra Footnote 18 at 41.
[32] [1990] 2 All ER 482; (1990) 1 WLR
587.
[33] [1991] FCA 470; (1991) 32 FCR 282.
[34] [1997] EWCA Crim 962; [1997] Cr App R 401.
[35] [1998] HCA 2; (1998) 193 CLR 1 at p. 22 per McHugh
J.
[36] Supra Footnote 22.
[37] (1997) 192 CLR 154.
[38] [1914] AC 545 at 564-565.
[39] Supra Footnote 38 at 183.
[40] [1949] AC 182.
[41] [1952] AC 694 at 707.
[42] [1955] AC 197 at 204.
[43] McDermott v R (1948) 76 CLR 501
per Dixon J at 511-515; Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 at 541 per
Gibbs J.
[44] Supra Footnote 44 McDermott v R;
See also R v Lee [1950] HCA 25; (1950) 82 CLR 133.
[45] Supra Footnote 39 R v Christie at
560; supra Footnote 42 Harris v Director of Public Prosecutions at 707;
supra Footnote 44 Driscoll v R at 541.
[46] [1972] HCA 71; (1972) 128 CLR 114.
[47] [1977] HCA 30; (1977) 137 CLR 633.
[48] [1985] HCA 79; (1985) 159 CLR 45.
[49] [1981] HCA 17; (1981) 145 CLR 395.
[50] [1992] HCA 13; (1992) 173 CLR 555.
[51] [1989] HCA 50; (1989) 167 CLR 590.
[52] [1995] HCA 7; (1995) 182 CLR 461; (1995) 127 ALR
99.
[53] Supra Footnote 38.
[54] [2001] HCA 72; (2001) 208 CLR 593.
[55] Supra Footnote 55 at 599.
[56] Supra Footnote 17 Masters v
Rand supra Footnote 20 R v Ellem (No. 1) at 545.
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