N8080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 71 OF 2018

THE STATE

V

RICHARD JASON MAGIAU NAMALIU

Waigani: Berrigan, J
2019: 25 and 26 September

CRIMINAL LAW – Evidence –Propensity or Similar Fact Evidence –Relationship Evidence.

Cases Cited:
Papua New Guinea Cases

Beraro v The State [1988-1989] PNGLR 562
The State v Daniel [1988-89] PNGLR 580
The State v Hambo (2010) N4036

Overseas Cases

Makin v Attorney-General (NSW) [1894] AC 57
R v Ball and Ball [1911] AC 47
Noor Mohammed v The King [1949] AC 182
Wilson v The Queen (1970) 123 CLR 334
R v Boardman [1975] AC 421
DPP v P [1991] 2 AC 477
R v Toki No 3 [2000] NSWSC 99
Phillip v The DPP [2017] UKPC 14
Myers, Brangman & Cox v The Queen [2015] AC 314

References Cited

Section 287, 291, 302 of the Criminal Code (Ch. 262).

Counsel

Mr D. Kuvi, for the State
Mr F. Kirriwom, for the Accused

RULING ON EVIDENCE
26th September, 2019 
1.	BERRIGAN J: The accused is charged with the manslaughter of the deceased, Ruby Ann Laufa, on 11 February 2017, contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code).

2.	To establish the charge of manslaughter the State must prove that the accused unlawfully caused the death of the deceased, directly or indirectly: see s. 291 of the Criminal Code.

3.	It is the State’s case that the deceased and the accused were in an intimate relationship that was marred by instances of violence.  On the day of the deceased’s death, she was a passenger in the vehicle the accused was driving.  It is alleged that at the material time the accused had picked her up from her home, that he was driving the vehicle recklessly and dangerously, that he assaulted the deceased and that this caused her to jump from the vehicle to escape further assault.  As a result she suffered head injuries that led to her death later the same day. 

4.	The State invokes s. 287 of the Criminal Code to prove that the accused is guilty of manslaughter through criminal negligence.  Section 287 provides (emphasis added): 

“Duty of Persons in Charge of Dangerous Things
(1) It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.
(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.”

5.	To establish that the accused is guilty of manslaughter through criminal negligence the State must establish beyond reasonable doubt that the accused:  

a.	owed a duty of care;
b.	failed to perform that duty; and 
c.	thereby caused the death of the deceased.

6.	It is well established that this is a very high degree of negligence requiring proof that the accused acted with such disregard for the lives and safety of others as to make his conduct deserving of punishment:  Beraro v The State [1988-89] PNGLR 562.

7.	Whether or not s. 287 of the Criminal Code applies remains to be established.  As does, in my view, the more fundamental question of whether the accused’s conduct, without lawful justification or excuse, directly or indirectly, caused the death of the deceased for the purposes of s. 302 of the Criminal Code.

8.	Central to the State’s case is the allegation that the accused assaulted the deceased and that this caused her to jump from the vehicle, thus causing her death.

9.	The defence objects to the evidence of the State’s witness, Hanley Logoso, on the basis that it contains propensity or similar fact evidence and that its prejudicial value outweighs its probative value. Mr Logoso will be called to give oral evidence in the usual way.  The evidence which the State intends to lead is set out in his affidavit of 2 April 2019, to which the parties have agreed I should have regard in determining the objection.

10.	In his affidavit Mr Logoso deposes to two separate incidents.  At paragraphs 4 and 5 he says that he was at Lamana Hotel on 13 February 2016 to celebrate the deceased’s birthday. Whilst there the accused, who was not invited, forced his way into the area.  He was very drunk.  He demanded to see the deceased and was told to leave. Security guards were instructed to take him out but he physically tried to force his way through a group of people to get to the deceased.  He managed to grab her hand but security guards and others pulled him back.  He lost his footing and fell onto a table.  He behaved in an aggressive and threatening manner. Sometime later in the evening he returned and was again removed by security.

11.	At paragraphs 6 to 9 of his affidavit Mr Logoso says that he was again at the Lamana Hotel in October or November 2016 with a group of friends, including the deceased and the accused.  He was in a room with the deceased’s sister, when the deceased came in crying.  She was bleeding from the forehead and said that the accused had pushed her down the stairs.  They went to confront the accused.  The deceased said that she would get a restraining order to stop him being violent towards her.  Mr Logoso offered to help her.  He contacted her later in the week but she had changed her mind because she was concerned for his family’s reputation as well as that of her own family.

12.	Counsel have indicated that a similar objection will apply to a number of witnesses the State proposes to call.

13.	I have not been referred to any authorities by counsel. There appear to be few reported decisions on the issue of propensity evidence in this jurisdiction.  I have had regard to The State v Daniel [1988-89] PNGLR 580 and The State v Hambo (2010) N4036 (and those referred to within) but they are not directly on point with this case.

14.	In the circumstances I have considered the common law on the subject in the United Kingdom and Australia. 

15.	It is well established that evidence is not admissible unless it is relevant.  It is relevant if, but only if, it contributes something to the resolution of one or more of the issues in the case.  It may do so either directly or indirectly: see Myers, Brangman & Cox v The Queen [2015] AC 314 at [37].

16.	It is also well established that not all relevant evidence is admissible.  Relevant prosecution evidence falls to be excluded if, in the judgement of the trial judge, its admission will be unfair to the accused, in the sense that its prejudicial effect outweighs its probative value: Noor Mohammed v The King [1949] AC 182 at 192.  

17.	Furthermore, it has long been established as an exclusionary rule of evidence at common law that the prosecution may not adduce evidence which shows that the accused has been responsible for some criminal offence, or some reprehensible behaviour, other than that charged:  Makin v Attorney-General (NSW) [1894] AC 57 (Privy Council).

18.	This rule is now given statutory effect, and in some cases modification, in many common law jurisdictions, including the United Kingdom and Australia.  As a result, whilst the authorities from those jurisdictions may well be persuasive this must be borne in mind when considering them.

19.	There has been no statutory modification of the law in this jurisdiction and thus the general rule in Makin stands.

20.	In the case of Myers, Brangman & Cox v The Queen (supra), the Privy Council considered the application of the rule in Bermuda from which an appeal lay, and in which there was no statutory modification of the common law to allow the admission of propensity alone in defined circumstances. 

21.	In considering the rule the Privy Council said at [39]: 

“… Such evidence cannot be said to be irrelevant. Evidence which shows that the defendant has a propensity to offend or behave badly may well be very relevant. But it is normally to be excluded on grounds of fairness, unless there is some reason to admit it beyond mere propensity. Lord Herschell’s famous formulation of the principle is, as Lord Hailsham of St Marylebone subsequently explained in R v Boardman [1975] AC 421 at 451, an application of the unfairness rule in due course to be adumbrated in Noor Mohammed. Lord Herschell said this, at p 65: 

‘It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. 

On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.’

The first sentence encapsulates the general rule that mere propensity to behave badly is to be excluded as unfair. The second states the principle that if evidence of bad behaviour has probative value beyond mere propensity to misbehave it may be admissible, and it gives examples, not in any sense exhaustive, of when it may have such value. The third states an important truth.”

22.	The Court went on to say at [40] (emphasis added):

“Mere propensity to behave badly is to be excluded as unfair.  Admission requires justification beyond such mere propensity.  An example of such justification is so-called similar fact evidence (which was in question in Boardman, and see now DPP v P [1991] 2 AC 447); in such a case the justification arises because the evidence is sufficiently compelling to have real value in controverting innocent coincidence. Another example is the kind of case where there has been a course of violent dispute between the defendant and the victim; there the evidence may be admissible (inter alia) to show either who was responsible for the last (charged) occasion, or the intention with which the defendant acted on that occasion, or to explain the reactions of the two parties. Likewise, in a case of alleged sexual abuse, the history and nature of a relationship said to have been abusive will often be relevant to proving a particular incident charged, even though it also shows prior misbehaviour by the defendant. It is impossible to catalogue every situation in which such justification may be present. But unless it is, evidence of misbehaviour unconnected with the offence charged is not admissible. As Lord Hailsham explained in Boardman at 453F, relying on mere propensity as evidence of guilt is an inadmissible chain of reasoning. If the inadmissible chain of reasoning is the only purpose for which the evidence is to be adduced, the evidence is inadmissible. If there is some other justification for the admission of the evidence, the jury usually needs to be warned not to pursue the inadmissible chain of reasoning.

Moreover, to respect the general rule, where such justification does exist the evidence which is admitted ought normally to be restricted to that which is within the justification. The justification is the measure of the admissibility. The existence of such justification does not generally create “open season” to adduce any evidence of the defendant’s bad character or misbehaviour.”

23.	In Phillip v The DPP [2017] UKPC 14, the Privy Council considered an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (St Christopher and Nevis).

24.	In that case the appellant was convicted of murdering his estranged wife on 16 February 2007.  The case against the appellant was circumstantial, consisting of three independent strands: that the appellant had demonstrated hostility, violence, and possessiveness towards the deceased and was clearly resentful she had left him; that his vehicle was seen close to the deceased’s home during the relevant time; and that DNA matching the deceased was found on his hands following his arrest. The appellant also made a false assertion which was later retracted by him. 

25.	The principal ground of appeal related to the evidence adduced by the prosecution of the history of the relationship between the appellant and deceased.  The evidence of the deceased’s mother and her friend, Yvonne, was that the appellant had over the years exhibited physical aggression and possessiveness towards the accused.  Between them the witnesses gave evidence of four incidents:  

“First, in 2003, Mother had seen Shermelle (the victim) with a swollen arm. She had taxed the appellant with beating her. He had wept and apologised, saying that it would not recur. Second, in February 2006, Yvonne had received a late night telephone call from a distressed Shermelle. She had spoken to the appellant and taxed him with hitting his wife; he had objected that she should keep out of his affairs. The following day Shermelle had a red and swollen ear. Third, a few days after this, Shermelle had come to Yvonne’s home at night. They had set off to find her mother, but had been followed for some distance by the appellant in his car. He had forced their car to stop, rushed up, cursing, had removed the ignition key, and had demanded that Shermelle return home with him. There had been a row in which he accused Yvonne and Mother of interfering and damaging the marriage. Shermelle had corrected him to say that the problem in the marriage was that he would not stop hitting and abusing her. The appellant had sought to justify himself by saying that Shermelle had refused to tell him where she was going. At the end of the row he apologised and promised not to hit her again. Then, in May 2006, Shermelle left the appellant, arriving with some possessions at Yvonne’s home. Within a few weeks she had moved to the rented house in Prospect where she was eventually killed. The appellant either stayed from time to time with her there or perhaps for a short period lived there, until about November/December when he left and she changed the locks to exclude him. The fourth incident of which evidence was given occurred later in December 2006 when he arrived unannounced and insisted on removing household items…. Mother spoke of his hostility to Shermelle on this occasion, which was manifested also by seizing a necklace which she wore and aiming to throw a bottle of water at her, until Mother intervened.”.

26.	In ruling the evidence admissible the Privy Council said at [7] to [9]:

“It is of course correct that … evidence which does no more than demonstrate that the defendant is a violent person will ordinarily be inadmissible: Makin v Attorney General for New South Wales [1894] AC 57, as explained recently by the Board in Myers Cox and Brangman v The Queen [2015] UKPC 40; [2016] AC 314, paras 37-41. But this was not the present case. The present case is a typical example of evidence which is undoubtedly admissible. The evidence was not simply (or indeed at all) that the appellant was given to outbursts of violence or temper in general.It was that he exhibited persistent hostility towards the deceased in particular, which he expressed in violence to her. Born out of frustration his behaviour may have been, but the evidence showed that he resented her leaving him and bore her active and violent ill will. That went to support the case that it was he, rather than some stranger, who accosted her in her own yard and killed her. It was evidence of motive to harm the particular victim of the offence. Such evidence has always been admissible, certainly where the identity of the killer is the issue. It may also be admissible where the killing is admitted by the accused but the issue is the intention with which it was done, or whether it was provoked, but those circumstances are not this case. 

This commonplace principle was recognised as long ago as 1910 in R v Ball and Ball [1911] AC 47. The issue in that case was whether it was admissible to prove the physically affectionate relationship between the defendants in order to support the charge of incest on the occasions indicted. But in the course of argument Lord Atkinson offered (at p 68) an observation which has been treated ever since as axiomatic and cited for generations in Archbold’s Criminal Pleading (see currently the 2017 ed at 13-31): 

“Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought,’ in as much as it is more probable that men are killed by those that have some motive for killing them than by those who have not.” 

… For the same reasons, any application to the judge to exclude this evidence as unfairly prejudicial under the principle in Noor Mohammed v The King [1949] AC 182, 192 … would have been doomed to failure. There is nothing unfair about proving that the accused has an animus against the particular victim whom he is charged with injuring.”

27.	In my view both these Privy Council cases, particularly the latter are persuasive authority.  

28.	Similarly, the Courts in Australia have long recognised that evidence may be relevant, not to show bad character, or similar fact or propensity, but to show the relationship between the accused and victim.  

29.	Where the accused and another person have been in a relationship over a period of time before the occurrence of the acts which give rise to the charge, the relationship between the parties is admissible at common law if it is relevant to the facts in issue in the trial. The rules that govern the admission will depend upon the purpose for which it is admitted:  R v Toki (No 3) [2000] NSWSC 99 at [23] – [24] applying Wilson v The Queen (1970) 123 CLR 334 (emphasis added):

“Evidence of the relationship between the accused and another person can be admissible in order to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time: Wilson v The Queen at 399, 344. The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury.

When used in this way, relationship evidence is not being adduced or admitted to prove any propensity that the accused may have had to act in a particular way.”

30.	In Cross on Evidence, Eighth Australian Edition, 2010, discussing the rule at common law, the author said at [21050] (citations his) (emphasis mine): 

“The evidence may also be relevant, not to show bad character, but to show the relationship between the accused and victim.  But it is not enough for the evidence to show a relationship.  It must be evidence from which a relevant inference can be drawn. The relationship may be one of hostility,or of affection, or marital breakdown… One justification for the admission of relationship evidence is that where there is only one charge, “a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue”.The evidence may be admitted as relevant to the accused’s state of mind.  Thus it may go to intention, motive – hatred or sexual attraction, for example– self-defence or provocation. It may go to the identity of the offender.  It may go to whether an act causing death was an accident or misadventure.  It may go to whether the actus reus took place…Evidence of a hostile relationship called by the Crown may be admissible to rebut a defence contention that the relationship was amicable…

If the relationship is relevant, it can be proved by admissions from the accused; testimony from third parties of their direct observations of quarrels or blows; circumstantial evidence; real evidence in the accused’s possession; testimony by the party to the relationship other than the accused; or since, in cases of violent relationships, that party has usually not survived, statements by that party proved by other witnesses as original evidence, or by way of exception to the hearsay rule”.

31.	With respect to that last point on hearsay, it is to be noted that certain exceptions are provided under statute in Australia.  In this jurisdiction consideration will have to be had to any that would apply at common law.

32.	Returning to the present objection. In my view having regard to the above authorities the evidence of Mr Logoso is not evidence of mere propensity or bad character. 

33.	The accused has not been charged with murder. It is not necessary for the State to establish that he intended to kill or cause the deceased any grievous bodily harm. As above, however, whether or not the accused assaulted the deceased, is very much in issue. 

34.	It is my view that the evidence is relevant to a consideration of what happened in the vehicle on 11 February 2017, and why the accused and the deceased acted as they did.  It goes towards showing the nature and history of the relationship between the accused and the deceased, including whether or not the relationship had broken down, and whether the accused harboured feelings of hostility towards the deceased. It is relevant to whether the accused assaulted the deceased in the vehicle that morning as alleged - or, as put to the State witnesses, it was the deceased who assaulted the accused–and, if the accused assaulted the deceased, whether he acted voluntarily. It may also be relevant to the issue of causation and whether the deceased’s conduct broke the chain of causation or whether she had a well-founded fear of the accused in the vehicle that morning.

35.	In the circumstances, the evidence under paragraphs 4 and 5 of Mr Logoso’s affidavit is admissible for this purpose.  Subject to hearsay considerations, the evidence contained in paragraphs 6, 7, 8 and 9 is also admissible for this purpose.

36.	For similar reasons, it is my view that the probative value of the evidence outweighs any prejudicial effect.

37.	Assuming the evidence is now led and admitted, it will be appropriate for me to remind myself as to the use to which the evidence might be put when I am considering my decision on verdict.  The parties will be at liberty to make submissions about that at the appropriate time.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused