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

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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

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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

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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

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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.

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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.

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(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.

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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

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(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

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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

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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.

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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