Callaway (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0018

ETHAN CALLAWAY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms.

---

JUDGES:	McLeish, Kaye and T Forrest JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2024
DATE OF JUDGMENT:	21 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Ethan Callaway] (County Court of Victoria, Judge Carlin, 27 January 2024)

---

CRIMINAL LAW – Interlocutory Appeal – Applicant charged with 13 charges of rape, 12 charges of common assault, one charge of attempted rape, one charge of intentionally damaging property and one charge of make threat to kill – Ruling admitted evidence supporting tendencies that applicant believed he was entitled to engage in non-consensual sexual activity with complainant, was physically violent to complainant and believed he was entitled to be so – Whether judge erred in ruling – Judge did not err – Leave to appeal refused.

Evidence Act 2008, ss 97 and 101.

Hughes v The Queen (2017) 263 CLR 338; R v Bauer (2018) 266 CLR 56; Taylor v The Queen [2020] NSWCCA 355; Henderson (a pseudonym) v The Queen [2017] VSCA 237; Harlin (a pseudonym) v The King [2023] VSCA 269, considered.

---

Counsel
Applicant:		Mr J Connolly with Mr H Lewis
Respondent:		Mr J Shaw
Solicitors
Applicant:	Ms E Allen, Victorian Aboriginal Legal Service
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA

KAYE JA

T FORREST JA:

This appeal is against a tendency ruling of Judge Carlin in the County Court, admitting into evidence matters contained in two tendency notices filed pursuant to s 97(1) of the Evidence Act 2008.[2]
[2]DPP v [Ethan Callaway] (County Court of Victoria, Judge Carlin, 27 January 2024) (‘Reasons’).
The applicant is currently before her Honour in the County Court charged with 13 charges of rape,[3] 12 charges of common assault,[4] one charge of attempted rape,[5] one charge of intentionally damaging property,[6] and one charge of make threat to kill.[7]
[3]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[4]Contrary to common law.
[5]Contrary to ss 321M and 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[6]Contrary to s 197(1) of the Crimes Act 1958.
[7]Contrary to s 20 of the Crimes Act 1958.
The offences are alleged to have occurred in the course of an intermittent 13 year relationship between the applicant and the complainant.
Amended Tendency Notice A (‘Notice A’) relates to the rape and attempted rape charges. Amended Tendency Notice B (‘Notice B’) relates to the charges of common assault.

The notices

The tendencies alleged, and the issues they are related to, are as follows:

Notice A

2.The Prosecution seek to rely upon the tendency of the Accused to:
2.1.Act in a particular way, namely;
To engage in sexual activity with [the complainant] whom he commenced a relationship with in 2003, in circumstances where it was clear that she was not consenting to engage in that activity.[8]
[8]Para 2.1 of Notice A is not the subject of this appeal. The other three tendencies asserted in the notices (in para 2.2 of Notice A and paras 2.1 and 2.2 of Notice B) are disputed.
2.2.Have a particular state of mind, namely;
A belief that as the partner of [the complainant], whom he commenced a relationship with in 2003, he was entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to engage in that activity.

The issues that these tendencies are said to relate to are:
(a)whether the applicant carried out the acts said to constitute the rape and attempted rape charges (the ‘rape charges’); and,
(b)whether the applicant carried out those acts with the intent necessary to find him guilty of the rape charges.

Notice B

2.The Prosecution seek to rely upon the tendency of the Accused to:
2.1.Act in a particular way, namely;
To be physically violent towards [the complainant], with whom he commenced a relationship in 2003, by choking her, and/or punching her to the face and body, and/or forcing her head into objects and the ground.
2.2.Have a particular state of mind, namely;
A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003, he was entitled to be physically violent towards her by choking her, and/or punching her to the face and body, and/or forcing her head into objects and the ground.

The issues that these tendencies are said to relate to are:
(a)whether the applicant committed the acts that are the subject of the common assault charges; and
(b)whether the applicant committed those acts with the intent necessary to find him guilty of those offences.
Each notice summarises the evidence relied upon to support the asserted tendencies. The full notices are reproduced in Annexure A and B to these reasons.
The applicant’s position at trial is that all sexual conduct with the complainant during the relationship was consensual, and he did not ever physically assault the complainant.[9]
[9]Reasons, [3].
The evidence relied upon to support the Notice A tendencies is largely derived from the charged acts, which are contended to be cross-admissible between the rape charges, although there is some little evidence of uncharged acts. Similarly, the evidence relied upon to support the Notice B tendencies is also largely derived from the charged acts.
Apart from the events summarised within Row 10 of Notice A, each other event relied upon to establish the asserted tendency in dispute is the subject of a charge or charges on the indictment.

The ruling

Her Honour briefly set out the facts of the offending, and the procedural history and contents of Notice A and Notice B. The judge then correctly and concisely summarised the operation of s 97 of the Evidence Act 2008, stating:[10]
[10]Reasons, [14], [16] and [17].
Tendency evidence is not admissible under s 97 of the Evidence Act 2004 unless, taking the evidence at its highest, it either by itself, or in combination with other evidence in the case, has significant probative value, meaning it makes significantly more likely any facts making up the elements of the offence charged.
…
To determine whether the impugned evidence has significant probative value in relation to any particular charge it is necessary to determine:
·first, the facts in issue in relation to the charge;
·secondly, the extent to which the evidence supports the existence of the claimed tendency; and
·thirdly, the extent to which the tendency makes more likely the facts in issue.
If the evidence, by itself or together with other evidence, strongly supports the tendency and the tendency strongly supports the facts that make up the charge, the evidence is more likely to have a high degree of probative value.
Dealing with Notice A and Notice B together, her Honour concluded that the impugned evidence had significant probative value in that:
(a)each piece of evidence sought to be relied upon (excepting Row 2 and Row 5 of Notice A, which the judge excluded for vagueness) supported the asserted tendency and did so strongly in combination with the other evidence in the case;[11] and
[11]Reasons, [22].
(b)the tendencies make more likely the facts in issue for the relevant charges.[12] In particular, the tendencies were said to bolster the complainant’s credibility by helping to remove a doubt that might have otherwise attached to her account.[13]
[12]Reasons, [25].
[13]Reasons, [26] citing Hughes v The Queen (2017) 263 CLR 338, 361–2 [59]–[60]; [2017] HCA 20 (‘Hughes’).
Responding to the applicant’s submissions on vagueness, her Honour considered that the tendencies asserted were broad but permissible. Reference was made to the notice in R v Bauer,[14] in which the tendency was a sexual interest in a child, or a child of a certain age, and a willingness to act on that interest. Bauer was said to exemplify tendencies in child sex offence cases that are broad but permissible. The judge also referred to Taylor v The Queen,[15] in which the tendency was to be violent or threatening towards female partners — the tendency was not too broad.[16]
[14](2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
[15][2020] NSWCCA 355.
[16]Reasons, [28]–[29].
Her Honour emphasised that the tendencies asserted in this case had been narrowed in a number of respects. Both notices were confined to a longstanding domestic relationship. Notice A was confined to circumstances in which the complainant had made her lack of consent clear. Notice B asserted a tendency to be physically violent in a number of specific ways.[17]
[17]Reasons, [30].
Her Honour was not satisfied that the significant probative value of the tendency evidence was outweighed by its prejudicial effect, so as to be excluded under s 101 of the Evidence Act 2004 (or the similar provisions in ss 135 and 137).[18]
[18]Reasons, [32]–[33].

This application

Proposed ground 1

Ground 1: The trial judge erred in admitting the tendency evidence in [Notice A] for the purpose of proving the state of mind asserted at 2.2 of that notice.

No dispute was taken on this application with the accuracy of any of the contents of Notice A. The argument put by the applicant was that it was not open to the judge on the totality of the evidence summarised in Notice A (excepting rows 2 and 5) to conclude that the evidence strongly supported the tendency to have the state of mind specified in para 2.2. This tendency was, it was said, a specific tendency that could only be proved by very specific evidence. A belief that one has an entitlement to engage in sexual activity with one’s partner regardless of her contrary wishes requires stringent evidence and not speculative and selectively chosen evidence over an intermittent 13 year relationship. The applicant went on to submit, albeit faintly, that even if the evidence passed through the s 97 gateway, its probative value did not outweigh the danger of unfair prejudice under s 101.
The respondent submitted that the evidence relied upon in Notice A was ample to support the tendency asserted in para 2.2. It was submitted that, given that the respondent accepted the evidence strongly supported a tendency by the applicant to engage in sexual activity with the complainant when it was clear that she was not consenting,[19] it was but a short step to conclude that a related tendency by the applicant to believe he was entitled to engage in that activity when she was not consenting[20] was also strongly supported by the same evidence.
[19]The tendency alleged in para 2.1 of Notice A.
[20]The tendency alleged in para 2.2 of Notice A.

Conclusion on proposed ground 1

The judge was right to uphold para 2.2 of Notice A. The evidence summarised in Table A of Notice A, save for rows 2 and 5, strongly supports the existence of the tendency specified in para 2.2. With the exception of the evidence referred to in row 10, all other evidence in Table A relates to the 13 charges of rape, the attempted rape charge, and three of the common assault charges.
The acts that comprised this alleged offending occurred within a relationship that spanned approximately 13 years intermittently. When considered with all the evidence in the case, the judge’s conclusion that the applicant’s conduct displayed a sense of ownership over the complainant is entirely justified. We have arrived at this conclusion having regard to the following conduct:
•The evidence relevant to the 13 rape charges and one charge of attempted rape set out in rows 1, 3, 4 , 6 to 9, and 11 to 15 in Table A of Notice A.
•Early in the relationship, between 2004 and 2006, when the complainant told the applicant ‘[she] could not do this anymore’ (effectively, that she should not be subjected to further sexual violence), the applicant threatened to kill her family and make her watch him do so if she left him.
•In approximately 2010, the applicant stated to the complainant that she belonged to him and their relationship would never be over.
•On the occasion that was the subject of charge 13 (make threat to kill), between 2010 and 2012, the applicant, upon discovering that the complainant had been messaging another man, threatened to kill her.
•On the occasion that was the subject of charges 17 and 18 (common assault and rape), between 2011 and 2012, the applicant called the complainant a whore and a slut and told her that he owned her.
•On the occasion that was the subject of charges 24 and 25 (rape and common assault), the applicant told her that he had to show her that he had all the power in the relationship.
Further, if established, the tendency makes considerably more likely the facts constituting each charged offence. The tendency is sufficiently explicit to bear strongly on the disputed conduct. It should be borne steadily in mind that the defence in this case is that during the 13-year intermittent relationship there were no physical assaults and no occasions of non-consensual sex. A tendency of the applicant to believe that he could do whatever he wanted with the complainant (because he was entitled to), including having sexual intercourse with her without her consent, and assaulting her if she displeased him,[21] is necessarily powerfully probative of the disputed charges of rape, attempted rape and common assault. It was conceded by the applicant in pre-trial argument that if the evidence did support the tendency, then the tendency strongly supported the facts relating to the offending.
[21]Reasons, [24].
Section 101 of the Evidence Act 2008 provides further restrictions in criminal proceedings on the admission of tendency evidence. Relevantly, it reads:
Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The applicant contends that the tendency asserted under para 2.2 of Notice A would permit the prosecution at trial to attach a pejorative label to conduct that is not justified on the evidence. In discussion, the applicant contended that allowing para 2.2, and particularly the word ‘entitled’, could lead the prosecution to use terms such as ‘misogynous’ or ‘chauvinistic’ to describe the applicant’s tendency. The applicant argued that the tendency added little to the prosecution case beyond the tendency asserted in para 2.1 of Notice A, and carried with it the baggage of loaded words imbued with prejudice to the overall detriment of the applicant’s character.
For the reasons we have set out at paras [19 ]to [21] of these reasons, the judge was right to conclude that the probative value of the tendency evidence is very high.
We consider there is little risk of unfair prejudice arising from the admission of this evidence. Whilst words of this type (‘misogynous’ and ‘chauvinistic’ for example) should not be used by a prosecutor, they are amenable to a judicial direction to the effect that the jury should focus on the evidence itself, use the evidence in the way specified by the judge, and ignore emotional language or feelings of prejudice or sympathy to any party.
The jury will be directed at trial as to the intellectual nature of their task and that they must avoid acting upon feelings of prejudice or sympathy towards any party in the case. If necessary, depending on the language used at trial, a specific direction along these lines concerning ‘loaded words’ can be tailored by the trial judge as well.
We agree with the decision of the trial judge to permit the prosecution to rely on the tendency asserted at para 2.2 of Notice A and the evidence that is said to support it.
Leave to appeal under this proposed ground must be refused.

Proposed grounds 2 and 3

Ground 2: The trial judge erred in admitting the tendency evidence in [Notice B] for the purpose of proving the tendency asserted at 2.1 of that notice.
Ground 3: The trial judge erred in admitting the tendency evidence in [Notice B] for the purpose of proving the state of mind asserted at 2.2 of that notice (as described in the Ruling in paragraph [10]).

The tendencies asserted under these grounds are in substance:
(a)a tendency by the applicant to be physically violent towards the complainant over the course of their relationship by choking her, punching her to the face and body and forcing her head into objects and the ground; and
(b)a tendency by the applicant to have a belief that, as the complainant’s partner, he was entitled to be physically violent towards her by choking her and/or punching her to the face and body and/or forcing her head into solid objects.
The applicant denies the occurrence of any of the violent incidents identified in Notice B. The tendencies are relied upon by the respondent as relevant evidence of proof of all the common assault charges on the indictment.
The judge dealt with the tendencies in Notice A and Notice B compendiously, stating:
In totality and taken at its highest, the evidence demonstrates that the accused had a sense of ownership over the complainant such that he believed he was entitled to do with her what he wanted, including having sexual intercourse with her without her consent and assaulting her if she displeased him. The evidence also demonstrates that he repeatedly acted on that belief by doing those things. It does not matter that some of the individual pieces of tendency evidence are remote from others, because the evidence as a whole shows a continuing attitude and a continuing course of conduct over 13 years. In this sense it is similar to the facts in Bauer[22] which involved a continuum of sexual conduct over 10 years involving charged and uncharged acts.
[22]R v Bauer (2018) 266 CLR 56.
As to whether the tendencies make more likely the facts in issue for the relevant charges, in my view they do.
The issue in each charge is whether the acts occurred as alleged by the complainant. Her credibility will be critical. The probative value of the evidence is not just that it makes it more likely that the accused acted in the manner alleged, but also that it helps to remove a doubt that might otherwise attach to the complainant’s account. In the words of the majority of the High Court in Hughes at [60] –
The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant having offended once, was likely to offend again. Rather its force was that in the case of this individual accused the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.[23]
[23]Hughes (2017) 263 CLR 338, 361–2 [59]–[60].
Whilst the courts might frequently see cases of domestic violence, [the complainant’s] allegations may not accord with the jury’s experience of ordinary human behaviour, either in terms of what the accused is alleged to have done or in terms of her behaviour in staying with him and/or resuming the relationship after a separation. If they knew that the accused had assaulted and raped the complainant on a regular basis from the time she was 14 or 15 years old they may understand why he felt able to continue to act in that manner and why she did not leave him once and for all.[24]
[24]Reasons, [24]–[27].

In argument on this appeal, the applicant submitted that the tendencies asserted in paras 2.1 and 2.2 of Notice B suffered from the same vice as was identified in Henderson v The Queen.[25] In that case, this Court said:
[25][2017] VSCA 237 (‘Henderson’).
In the present case, the Crown seeks to prove a tendency in general terms for the applicant to engage in physical and verbal violence towards the complainant. In defining the tendency, the Crown appears to have taken the various acts of violence and abuse described in the admitted paragraphs and then arrived at a form of words which covers those acts and the acts for which the applicant is now facing trial. This has produced an alleged tendency that is, on any view, expressed in wide terms.[26]
[26]Ibid [56].
In Henderson, the tendency was expressed very broadly:
Mistreat and abuse the complainant verbally and physically and putting her in fear by engaging in:
(a)verbal threats of violence towards the complainant during the course of the relationship;
(b)physical violence toward the complainant during the course of the relationship;
(c)use of a cigarette lighter and/or a cigarette to burn the complainant in the genital region, accompanied by sexual activity;
(d) threats and/or physical violence accompanied by sexual activity;
(e) use of ice accompanied by violence.[27]
[27]Ibid [9].
The Court in Henderson concluded that this tendency was inadmissible as tendency evidence in support of all charges (common law assault, two charges of rape, intentionally causing injury and (alternatively) recklessly causing injury). The Crown needed ‘to define more specifically the tendency which it asserts, in order to then relate that tendency to a particular charge’.[28] The Court said: ‘[w]e are unable to see how the fact that the applicant might have punched or slapped the complainant in 2010 (even if such punching or slapping was ongoing) could be significantly probative on the issue of whether the applicant anally raped the complainant in 2015’.[29]
[28]Ibid [58].
[29]Ibid.
On this application, the applicant further contended that the tendency asserted in Notice B can be distinguished from other tendencies asserted in similar intimate partner violence cases where physical and verbal violence was said to be used as a ‘means of control’ over the complainant.[30] In the present case, the tendency is relied upon simply to prove the relevant offending acts. The applicant further submitted that the totality of the acts in Notice B are not directly probative of the asserted tendency. Thus, the applicant submitted that:
[30]For example, Harlin (a pseudonym) v The King [2023] VSCA 269.
(a)the acts relied upon to establish the tendency fell short of doing so; and
(b)even if the acts do establish the tendency, the tendency is too broadly expressed to have significant probative value to facts in issue in the common assault charges.
In response, the respondent contended that the tendency asserted was expressed in quite specific terms including choking, punching to the face and body, and forcing her head into objects or the ground. It was submitted that the judge’s conclusion that the tendency asserted was not ‘too broad to deprive them of significant probative value’,[31] particularly as the tendency was confined to the applicant’s long-standing relationship with the complainant and there were no issues with the offender’s identity, was correct.
[31]Reasons, [28].
The respondent submitted that the asserted tendency strongly supported the facts that made up the common assault charges, as they made it more likely that the applicant acted in the manner alleged on each occasion, and because the tendency helped to explain why the complainant continued her relationship over such a long period when the jury’s experience of ordinary human behaviour may suggest otherwise, without having regarding to the evidence.

Conclusion on proposed grounds 2 and 3

We consider that the judge was correct to allow the prosecution to rely on both tendencies asserted in paras 2.1 and 2.2 of Notice B. The evidence relied upon to establish that the accused has those tendencies asserted is, in summary, as follows.
•On an occasion between 2003 and 2004, when the complainant was 14, during an argument, the applicant used his hand to grab her by the throat and squeezed it, cutting off her airway so that she became lightheaded.[32]
[32]Notice B, Row 1.
•On an occasion between 2003 and 2009, the applicant punched the complainant with a clenched fist to the mouth, splitting her lip.[33]
[33]Notice B, Row 2 — uncharged act.
•On an occasion between 2006 and 2009, the applicant smashed the complainant’s head into a bedroom wall, making a large hole in the plaster.[34]
[34]Notice B, Row 7.
•On an occasion between 23 October 2009 and 24 May 2012, when the complainant was between 20 and 22, at the Dandenong Plaza, the applicant accused the complainant of looking at another male. When the complainant said she did not want to have sex with the male, he called her a whore and a liar, and later in the car park choked her. He only desisted from doing so when he noticed a bystander.[35]
[35]Notice B, Row 14.
•At an eastern suburban address, the applicant pushed the complainant, causing her to fall into a cabinet and breaking it. The applicant stopped her leaving and they struggled on the ground. He smashed her head against the floor repeatedly, apologised which she rejected, and then smashed her head again, and then stood up and kicked her in the back of the head.[36]
[36]Notice B, Row 16.
•At the same address, in the driveway, the applicant pushed the complainant’s head against her car. She fell to the ground and he grabbed her by the head, causing her head to strike the ground. He caused her head to strike the ground on multiple occasions.[37]
[37]Notice B, Row 17.
•Between October 2011 and May 2012, at a time when the relationship between them was not active, the complainant approached the front door of her house. The accused opened the front door, from inside asked where the children were, called her a ‘whore’ and a ‘slut’ and said that he ‘owned’ her. He then endeavoured to punch her, connecting repeatedly with her right hand.[38]
[38]Notice B, Row 24.
•Between October 2011 and May 2015, at an address in the eastern suburbs, the applicant pushed the complainant against the wall of a bedroom and then pushed her head into the wall, damaging the plaster.[39]
[39]Notice B, Row 26.
•Between the start of 2012 and the end of 2013, at a location in Victoria, the applicant attempted to punch the complainant, connecting with her left hand and breaking the skin.[40]
[40]Notice B, Row 27 — uncharged act.
•Between May 2012 and May 2014, at the house of the complainant’s mother, the applicant took the complainant outside the house, forced her against a wall, took her back inside the house, and then pushed her against another wall, whilst choking her by squeezing her throat tightly, causing extreme pain and difficulty breathing.[41]
[41]Notice B, Row 30.
•At the applicant’s mother’s house between May 2012 and May 2014, the complainant arrived to collect her children. The applicant told her to go outside with him, accused her of having sex with another person, pushed her into a wood fence, began to punch her body, placed his hands around her neck and began to choke her. The complainant called him a ‘pussy’ and said, ‘kill me because I’m not scared anymore’. The applicant then held her by the throat tightly. The complainant was unable to breath for a time and felt dizzy. The applicant punched the complainant hard in the lower stomach causing her severe pain and making her fall to the ground. He then kicked her in her side several times as she lay on the ground.[42]
[42]Notice B, Row 31.
•On 31 January 2015, the complainant was at home with her children in Bayswater North. The applicant came to visit her children. He asked the complainant for sex. She replied, ‘no’. He pushed her onto a bed, climbed on top of her and attempted to remove her pants. She kept pulling them up. The applicant then punched her in the stomach three times — the last time most forcibly. He then had sex with her as she was crying. He removed his penis from her vagina, ejaculated on the bed and restrained her from leaving the bed. The complainant punched the applicant twice to the head. The applicant then punched the complainant to the head and face approximately eight times. This caused the complainant considerable pain and distress. He told her that he had ‘all the power in the relationship’.[43]
[43]Notice B, Row 33.
•In August 2016, the applicant attended the complainant’s home in Wantirna. An argument broke out and he struck the complainant with an open hand to the cheek.[44]
[44]Notice B, Row 34.
•On 15 August 2016, at the Wantirna house, the applicant, heavily affected by alcohol, told the complainant he wished to have sex with her. Despite her resistance and requests for him to stop, the applicant penetrated the complainant’s vagina with this penis. During this incident, the applicant placed his hand around her neck and commenced to choke her. She sustained scratches to the front of her neck and consequently pain upon swallowing.[45]
[45]Notice B, Row 35.
This review of the various incidents relied upon by the respondent in support of the relevant tendency demonstrates with some clarity that the tendencies asserted can be established. The nature, duration and extent of this identified violent conduct demonstrates an underlying unity or pattern which, taken with the other evidence in the case, leads inexorably to the conclusions that (a) the evidence is capable of establishing the asserted tendencies; and (b) the tendencies strongly support proof that the applicant acted in the manner alleged and had the requisite intent to commit each of the offences identified in Notice B.
Whilst the impugned tendencies asserted under this proposed ground are expressed reasonably broadly, this does not deprive them of significant probative value given the repetitive and idiosyncratic violent conduct attributable to the applicant. That probative value may assist in removing doubt that the applicant behaved in the way alleged, and with the intent alleged, because the tendencies may ‘appear improbable having regard to ordinary human experience’ without having regard to the evidence in the notice.[46] Further, the probative value extends to providing an explanation as to why the complainant did not simply leave the applicant. It may be that the tendencies asserted provide an answer to what may otherwise appear inexplicable or unusual.
[46]Hughes (2017) 263 CLR 338, 361–2 [59]–[60].
It follows that we agree with the judge that neither of the tendencies asserted under Notice B are too broad to be deprived of significant probative value.
Further, we agree with the judge that the probative value of the tendencies asserted in Notice B was not outweighed by the evidence’s prejudicial effect. As in the discussion under proposed ground 1, we consider that most, if not all of the prejudice occasioned by the admission of this evidence as tendency evidence comes from its high probative value. It has the potential to be very damaging to the applicant’s case, but this is because it is capable of greatly assisting proof of the relevant charges; not because it invites some form of unfair reasoning process. As observed in paras [25] and [26] of these reasons, if there is any potential for unfair prejudice it can be treated by judicial direction.
Leave to appeal under all proposed grounds must be refused.
---

ANNEXURE A

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

BETWEEN-

THE DIRECTOR OF PUBLIC PROSECUTIONS AND

[ETHAN CALLAWAY]

Court Reference: CR-22-029093

Indictment No: N10135488

AMENDED NOTICE PURSUANT TO SECTION 97(1)(a)

OF THE EVIDENCE ACT 2008 (VIC)1

Notice A: Tendency to engage in sexual activity in circumstances where it was clear that

the complainant did not consent, or in circumstances where he did not reasonably

believe that the complainant was consenting to the sexual activity2

Date of document: 31 January 2024

Filed on behalf of: The Director of Public Prosecutions

Prepared by: Solicitor’s Code: 7539

ABBEY HOGAN Telephone: 0418416 628

Solicitor for Prosecutions Email: [email protected]

565 Lonsdale Street Ref: Ms Victoria Gillis

Melbourne VIC 3000

Pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) the Prosecution gives notice that it intends to adduce evidence which will establish the tendency of the Accused to have a particular state of mind and to act in a particular way.

The Prosecution seek to rely upon the tendency of the Accused to:

2.1. Act in a particular way, namely;

To engage in sexual activity with [the complainant], whom he commenced a relationship with in 2003, in circumstances where it was clear that she was not consenting to engage in that activity.

1 Note: This version of the notice was filed to avoid any doubt in relation to Row 10 of Table A. Despite the prosecution advising her Honour that the prosecution sought to amend the Notice by including paragraph 109 from the opening in Row 10 of Table A – that amendment was overlooked when the amended document dated 24 January 2024 was filed with the court (See footnote 2 below). Her Honour made it clear that she was ruling on the basis that the Notice was in the present form.

2 Note: This amended notice was prepared to reflect the concessions made, and to correct a number of errors that were highlighted during, the pre-trial hearing on 24 January 2024.

2.2. Have a particular state of mind, namely;

A belief that as the partner of [the complainant], whom he commenced a relationship with in 2003, he was entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to engage in that activity.

3. The evidence relied upon to establish the tendency set out in Table A, below.

The issues in the case to which Tendency Reasoning applies are:

4.1. Whether the accused committed the acts that are the subject of charges 2, 3, 5, 7, 8, 9, 14,

15, 16, 18, 20, 21, 24 & 27; and

4.2. Whether the accused committed the said acts with intent necessary to find him guilty of the offences alleged in charges 2, 3, 5, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24 & 27.

The tendency set out at paragraph 2.1 and paragraph 2.2 is relied upon in support of the following charges as making more likely the facts founding those charges.

CHARGES
FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES

2. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting.

       3. Attempted Rape
Actus reus - Did the accused attempt to intentionally sexually penetrate
[the complainant] by introducing his penis into her anus without her consent.
Mens rea – Did the accused attempt to sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

5. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       7. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her mouth without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       8. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

9. Rape Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       14. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his finger into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       15. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       16. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

18. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       20. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       21. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

       24. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

27. Rape
Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while
he did not reasonably believe that she was consenting to the act of sexual penetration.

TABLE A

Substance of Evidence Relied Upon

to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Row 1

Date: Between 25 May 2004 and 24

May 2005

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 25 May

2004 and 24 May 2005 when the complainant was 15 and living with her mother in [...], the accused was lying in bed with the with the complainant. No one else was at home at that time.

The accused tried to kiss her and was feeling her body with his hands. The complainant, who did not want to have sex with him, repeatedly told him to ‘stop’. The accused persisted and began to take her pants down.

The complainant again told him to

‘stop’. She kicked him in an attempt to

get him to stop and move away. However, he persisted and removed

her pants. He also held on to her legs

so that she was not able to kick him again.

Then while the complainant was crying, and begging him to stop, the accused inserted his penis into her vagina. She used her feet to try and push him away. However, he continued to penetrate her vagina with his penis and had sex with her until he ejaculated in her vagina. He was not using a condom.

After he ejaculated the accused got off the complainant and walked out of her bedroom. [The complainant] stayed in the bedroom. About an hour later the accused came back into the bedroom and apologised to her. He told her that he would never do it again. [The complainant] did not tell anyone about what had happened at that time.

Charge 2 - Rape

Target of offending:

[The complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a relationship with in

2003, in circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with

her in circumstances where it was clear

that she was not consenting to

engage in that

activity.

See [the complainant] at pages 78 (paragraphs 9 &
10) and 438 of the depositions.
See [the complainant] at page 79 (paragraph 11)
of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Row 2

Date: Between 25 May 2004 and 24

May 2005

Time: Unknown

Place: [...]

Substance of Evidence:

The complainant recalled that about two or three months after the incident that is the subject of charges 3 and 4, the accused raped her again while she was still living with her mother in [...]. However, she was not able to recall much about that incident, apart from the fact that it occurred at her mother’s house.

Not the subject of a charge

Target of offending:

[The complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he

commenced a relationship with in

2003, in

circumstances where

it was clear that she

was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to

engage in that activity.

See [the complainant] at page 79 (paragraph 12)
of the depositions.

Row 3

Date: Between 25 May 2005 and 24

May 2007

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 25 May

2005 and 24 May 2007, when the complainant was between 16 and 17 years of age and still living with her mother in [...], the accused and the complainant were in her bedroom. No one else was at home at that time. They were laying on her bed. The complainant was laying on her stomach, while the accused was laying on top of her.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he

commenced a relationship with in

2003, in circumstances where it was clear that she

was not consenting

See [the complainant] at page 79 (paragraphs 12
& 13) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

The complainant moved, to try to get the accused to move from her back. However, he remained on top of her and attempted to insert his penis into her anus.

The complainant told him that she did not want to do it and asked him to get off her and stop. The accused persisted and told her to ‘relax’.

While she was telling the accused to stop, [the complainant] tensed her buttocks to stop him, but he continued to try to place his penis into her anus. After a period of time, the accused relented and got off the complainant.

Charge 3 – Attempted rape

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was entitled to engage in

sexual activity with her in circumstances

where it was clear that she was not

consenting to

engage in that activity.

Row 4

Date: Between 25 May 2007 and 24

May 2009

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 25 May

2007 and 24 May 2009, when the complainant was between 18 and 19

years of age and living with the

accused at [...], the complainant was alone with the accused in the lounge room.

The accused grabbed [the complainant] and pushed her in the back, causing her to lay face down over the back of the couch. She screamed at him and told him to stop and let her go.

The accused responded by using one hand to hold her face down on the couch. He used his other hand to grab her around the back of the neck, around the centre of her shoulder blades. As he pinned her face down to the couch. The accused then used one of his hands to begin pulling [the complainant’s] pants down. When they were

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he commenced a

relationship with in

2003, in circumstances where

it was clear that she

was not consenting to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was entitled to engage in

sexual activity with her in circumstances

where it was clear

See [the complainant] at page 80 (paragraphs 15
& 16) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

partly down her legs, he then used his foot to pull them down to the bottom

of her legs.

While [the complainant] was yelling at him to stop, the accused inserted his penis into her vagina from behind.

[The complainant] responded by trying to stand up and pull away from him. However, the accused responded by pushing her forcefully back onto the couch as he continued to penetrate her from behind.

After the accused had been penetrating her vagina for some time, [the complainant], who had been crying throughout the incident, stopped resisting as she was too scared to move. The accused let go of her and continued to penetrate her vagina from behind as she was crying and laying over the back of the couch. He stopped penetrating her after he ejaculated in her vagina.

Charge 5 – Rape

that she was not consenting to

engage in that activity.

Row 5

Date: Between 27 July 2009 and 24

May 2010

Time: Various

Place: [...]

Substance of Evidence:

After [the complainant] moved out of [...], the accused continued to live in the unit in [...]. However, he did not leave the complainant alone. During that period of time, he told her that she ‘belonged to him’ and that their relationship would never be over.

Despite being separated, when [the complainant] saw the accused, he would sometimes tell her that he wanted sex with her, and then have sex with her She would sometimes tell him that she did not want to, and sometimes

‘give in’ because she knew it would

happen anyway.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a

relationship with in

2003, in circumstances where

it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of

See [the complainant]
at pages 80 & 81
(paragraph 17) and page
84 (paragraph 30) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Not the subject of a charge

[the complainant],

whom he commenced a

relationship with in

2003, he was entitled to engage in

sexual activity with

her in circumstances where it was clear

that she was not

consenting to engage in that activity.

Row 6

Date: Between 27 July 2009 and 24

May 2010

Time: In the afternoon

Place: In the car near the accused’s

home in Dandenong

Substance of Evidence:

On an occasion between 27 July

2009 and 24 May 2010, when the complainant was 20 years of age, she

drove to the accused’s home and

spoke to him while they were sitting in her car on a street around the corner from his unit. [The complainant] was about 8 months pregnant at that time and had been to an appointment with her obstetrician at […] Hospital. She wanted to discuss her pregnancy and what arrangements would be made for the birth of their child with the accused.

While they were talking, the accused asked [the complainant] to perform oral sex on him. He then removed his penis from his pants and [the complainant] told him, ‘No’. She then told him that she would take him home.

The accused then took the key for [the complainant’s] car.

He grabbed her by the hair and placed his other hand on the back of her neck. He forced her head into his lap. [the complainant] attempted to resist, pushing back against him, and again said, ‘No’. The accused responded by pushing her face towards his penis.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a

relationship with in

2003, in circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(b) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to

engage in that activity.

See [the complainant] at pages 83 & 84
(paragraphs 26 to 28) and
450 to 451, records from
[…] Clinic at page 191 and certificate of registration at page 195 of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

The complainant refused to open her mouth, and the accused threatened

to hurt her and ‘break her jaw’ if she didn’t open her mouth.

In response to the threat, [the complainant] stopped resisting and the accused forced his penis into her mouth. He moved his penis in and out of her mouther for a period of time before he ejaculated in her mouth

Charge 7 - Rape

Row 7

Date: Between 27 July 2009 and 2

October 2011

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 27 July

2009 and 2 October 2011 before

[CA] was born, when the complainant was between 20 and 22 years of age, she went with the accused to visit his mother at her home at [...]. At a time when no other people were at the house, the accused was with the complainant on a bed in the front room. The accused told her that he wanted to have sex with her. [The complainant] told him that she did not want to have sex with him.

The accused then penetrated her vagina with his penis while [the complainant] was not consenting.

Charge 8 - Rape

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with [the complainant],

whom he commenced a

relationship with in

2003, in circumstances where

it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with

her in circumstances where it was clear

that she was not consenting to

engage in that activity.

See [the complainant] at page 84 (paragraphs 31
& 32) of the depositions.

Row 8

Date: Between 23 October 2009 and

24 May 2011

Time: Unknown

Target of offending: [the complainant]

See [the complainant]
at page 85 (paragraphs

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Place: [...]

Substance of Evidence:

On an occasion between 23 October

2009 and 24 May 2011, several months after [CJ] was born when [the complainant] was between 20 and 21 years of age, [the complainant] and the accused went to visit his mother at her home at [...], While they were at his mother’s home, the accused told [the complainant] that he wanted to have sex with her. She said, ‘No’ and told him that she did not want to have sex with him. He persisted and she tried to push him away.

Their daughter [CJ] who was very young, was in the room, or near to the door of the room.

The accused called out to his mother and asked her to take [CJ] away. His mother complied and took [CJ] away and shut the door to the room. The accused then placed his penis into [the complainant’s] vagina while she was making it clear that she did not want to have sex with him.

After that incident [the complainant] came out of the room and found [CJ] laying on a blanket in another room.

Charge 9 - Rape

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a

relationship with in

2003, in circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to

engage in that activity.

33 & 34) and 451 to
453 of the depositions.

Row 9

Date: Between 25 May 2010 and 24

May 2011

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 25 May

2010 and 24 May 2011, when the complainant was 21 years of age, she went to visit the accused at his unit in [...]. While she was with him, the accused asked her to talk to him. She complied and they went into a rear bedroom and sat on a mattress.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he

commenced a

relationship with in

2003, in circumstances where

it was clear that she

was not consenting to engage in that activity.

See [the complainant] at page 90 (paragraphs 46
& 47) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

After they were in the room, the accused began to touch the

complainant, and he tried to kiss her. He then placed his hands down her

pants. [The complainant] told him that she did not want to do that. She moved back and tried to push him away from

her.

She continued to tell him, ‘No, I don’t want to’. The accused responded by telling her to ‘Shhh’. He then continued to move his hands not her pants and penetrated her vagina with her fingers.

[The complainant] continued to tell him to stop and tried to pull his arm out of her pants. The accused persisted and continued to penetrate her vagina with his fingers (Charge 14 – digital rape).

After resisting the accused for a period of time, [the complainant] gave up, as her past experience with the accused led her to believe that he would have sex with her whether she resisted or she did not.

The accused then removed her pants and penetrated her vagina with his penis. [The complainant] lay still while the accused penetrated her, as the accused continued to penetrate her until he ejaculated in her vagina. The accused was not using a condom (Charge 15 – Penile rape).

After the accused ejaculated, he said,

‘Well, that was fucking shit’. He then got off [the complainant] and walked out of the room and left his unit with [CJ].

Charges 14 & 15 – Rape

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was entitled to engage in

sexual activity with her in circumstances where it was clear

that she was not consenting to

engage in that activity.

Row 10

Date: Between 11 to 30 September

2010

Time: Unknown

Target of offending:

[the complainant]

See [the complainant] at pages 85 & 86
(paragraphs 35 to 37) and

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Place: […] South Australia

Substance of Evidence:

On 11 September 2010 the accused, [the complainant] and [CJ] travelled to […] in South Australia to visit the accused’s family. They stayed there for a few weeks.

They were staying with the accused’s brother […] in Berry. On an occasion early in the morning when they were in a bedroom in the hallway at […]’s home, they were laying on a mattress when the accused climbed on top of [the complainant]. He was touching her, and she told him to stop, and that she did not want to have sex with him. She felt like she wasn’t able to scream at him as there were children in the house. She tried to push him off her, but he persisted and forced his penis into her vagina.

Not the subject of a charge

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he commenced a

relationship with in

2003, in circumstances where

it was clear that she

was not consenting to engage in that

activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was entitled to engage in

sexual activity with her in circumstances

where it was clear that she was not consenting to

engage in that activity.

pages 444 to 445 of the depositions. .

Row 11

Date: Between 2 October 2011 and

24 May 2012

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 2 October

2011 and 24 May 2012, when the complainant was 22 years of age and living at the unit on [...], she was at home with [CA] who was about two months old.

[The complainant] was laying on her bed, patting [CA] on the back in an effort to get him to fall asleep. The accused came into the bedroom and climbed onto the bed and climbed on top of her. She told him to stop and that she

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he

commenced a relationship with in

2003, in

circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

See [the complainant] at page 93 (paragraphs 53
& 54) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

did not want to have sex with him. The accused persisted, despite the fact

that [the complainant] was crying and begging him to stop and penetrated

her vagina with his penis.

While the accused was penetrating [the complainant], [CA] began to cry. [The complainant] reminded the accused that [CA] was lying next to them. He responded by telling her that [CA] was ‘too little’ suggesting that [CA] would not know what they were doing. The complainant continued to beg the accused to stop. However, he continued to penetrate her vagina for a period of time. He was not wearing a condom.

Charge 16 - Rape

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was entitled to engage in

sexual activity with her in circumstances

where it was clear that she was not consenting to

engage in that activity.

Row 12

Date: Between 2 October 2011 and

24 May 2012

Time: Unknown

Place: [...]

Substance of Evidence:

On another occasion between 2

October 2011 and 24 May 2012, when the complainant was no longer

in a relationship with the accused, she

was returning home to her house in [...]. As she approached the front door, the accused opened the door and asked her where the children were. The accused did not have permission to be inside the house and had entered without [the complainant’s] knowledge.

[The complainant] told him to leave. As she walked into her home, the accused pushed her against the back of the front door. He called her a ‘whore’ or a ‘slut’ and told her that he ‘owned’ her.

He then threw a punch at her. The punch connected with the back of [the complainant’s] right hand as she had held it up to protect herself. The accused

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual

activity with [the complainant], whom he commenced a relationship with in

2003, in circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(b) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was entitled to engage in sexual activity with

her in circumstances where it was clear

that she was not

See [the complainant] at pages 94 & 95
(paragraphs 56 to 64) and
pages 460 to 462 and pages 493 to 494 of the depositions. See also photobook 1.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

repeatedly punched her hand, causing pain, and a bruise which covered a large part of the back of her hand (Charge 17 – Common law

assault.

The accused took [the complainant] into the front bedroom. He pushed her backwards onto the bed and climbed on top of her. She tried to push him away, but the accused placed his entire weight onto her, which meant that she could not move him and found it hard to breath.

The accused then removed [the complainant’s] pants. She struggled with him and was able to move away from him slightly. The accused was attempting to place his penis into her vagina. [The complainant] continued to struggle and was able to move away from him slightly, so that she was still on the bed in the corner of the room.

The accused then got on top of her and penetrated her vagina with his penis. He continued to penetrate her until he ejaculated in her vagina. He was not using a condom (Charge 18

– Rape).

Charge 17 – Common law assault

Charge 18 - Rape

consenting to engage in that

activity.

Row 13

Date: Between 1 January 2012 and

24 May 2015

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 1 January

2012 and 24 May 2015, when the complainant was between 22 and 25 years of age, she was at her home in Bayswater North. It was on an occasion after [CA] was born and after she had made the initial report to the Knox Police. The accused was present, and they were in [the complainant’s] bedroom on the bed.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a

relationship with in

2003, in circumstances where it was clear that she was not consenting

See [the complainant] at pages 101 & 102
(paragraphs 86 to 90) of
the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

The accused began to touch her body, and she pushed him away and told him that she did not want to have sex with him.

The accused persisted and placed his hands into her pants, and into her underwear. [The complainant] told him to stop and tied to pull his arm out of her pants. He ignored her and placed his fingers into [the complainant’s] vagina and continued to penetrate her despite her protests (Charge 20 – Digital rape).

The accused then removed [the complainant’s] pants and underpants and removed his own clothes. He climbed on top of [the complainant], who attempted to push him away and repeatedly told him that she did not want to have sex with him. The accused grabbed both of [the complainant’s] arms and help them above her head. She attempted to move away from him to stop him from placing his penis into her vagina. The accused told her to ‘stop’. He then let go of her arms and she tried to push him away from her again. The accused then directed her to put her arms back and not to move them.

[The complainant] complied but continued to tell the accused that she did not want to have sex with him. He then penetrated her vagina with his penis and sexually penetrated her for a period of time (Charge 21 – Penile rape).

While they were in the bedroom, [CJ] came to the door, and the accused told her to go away and play.

Charge 20 – Rape

Charge 21 - Rape

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was

entitled to engage in sexual activity with

her in circumstances

where it was clear that she was not consenting to engage in that activity.

Row 14

Date: 31 January 2015

Time: Unknown

Target of offending:

[the complainant]

See [the complainant]

at page 104 (paragraphs

95 to 97), and pages

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Place: [...]

Substance of Evidence:

On 31 January 2015, when the complainant was 25 years of age, she was at home with the children at [...], when the accused came to visit the children.

The accused asked [the complainant] for sex. She said, ‘No’ and he pushed her along the hallway into the bedroom. The accused then lay on the bed next to [the complainant]. She tried to get off the bed several times. However, on each occasion the accused pushed her down, making sure that she stayed on the bed. The accused then climbed on top of [the complainant] and attempted to remove her pants.

[The complainant] said, ‘No’, and each time that he managed to pull her pants down slightly, she would pull them back up. The accused then punched [the complainant] to the left side of her stomach and told her to stop. He then punched her in the stomach twice. The last punch involved the most force and caused [the complainant] to hold her stomach and start crying.

The accused then pulled [the complainant] pants and underwear from her. He lifted her legs, before he penetrated her vagina with his penis. As he was penetrating [the complainant], she was telling him to ‘stop’ and ‘get off me’. She repeatedly tried to push him away from her and move back on the bed to get away from him. As he penetrated her, the accused told [the complainant] to stop, or he would ejaculate inside her vagina (Charge 24 – Rape).

After he had penetrated her vagina for a period of time, the accused removed his penis from [the complainant’s] vagina and ejaculated onto the bed.

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant],

whom he commenced a

relationship with in

2003, in circumstances where it was clear that she was not consenting

to engage in that activity.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], whom he commenced a relationship with in

2003, he was

entitled to engage in sexual activity with her in circumstances where it was clear that she was not consenting to

engage in that activity.

105 (paragraphs 92 to
112) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

[The complainant] tried to get off the bed. However, the accused held her down, forcing her to stay on the bed until he had finished ejaculating.

[The complainant] then punched the accused twice to the left side of his head. The accused became angry and punched [the complainant] to the back left side of her head and face approximately eight times. She placed her left hand over her head to protect herself, and the accused continued to punch her making contact with her hand. The blows caused [the complainant] considerable pain and she began to cry.

The accused continued to punch her for a short time, and the stopped as [the complainant] was crying, and her left hand was sore and swollen. He told her that he had to show her that he

‘had all of the power in the relationship’ (Charge 25 – Common

law assault).

Charge 24 – Rape

Charge 25 – Common law assault

Row 15

Date: 15 August 2016

Time: Unknown

Place: [...]

Substance of Evidence:

On 15 August 2016, [the complainant] was at her home on [...] with the accused. He was heavily affected by alcohol, and they were both laying on her bed. [The complainant] was trying to get to sleep.

The accused told her that he wanted to have sex with her. [The complainant] told him that she did not want to have sex with him.

The accused climbed on top of [the complainant], and she tried to push him from her. She began to cry and told

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To engage in sexual activity with

[the complainant], whom he commenced a

relationship with in

2003, in circumstances where

it was clear that she

was not consenting to engage in that

activity.

Have a particular state of mind, namely;

See [the complainant]
at page 113 & 114 (paragraphs 11 & 12) of
the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

him to stop. The accused removed

[the complainant’s] pants. While he was laying on top of her, he penetrated [the complainant’s] vagina with his penis.

The accused continued to penetrate [the complainant] for a period of time before he removed his penis from her vagina (Charge 27 – Rape).

During that incident, while [the complainant] was laying on her back, the accused placed his hand around her neck and choked her (Charge 28 – Common law assault) .

After the accuse removed his penis from [the complainant’s] vagina, the accused sat on the end of her bed and said, ‘I’m an idiot. I’m an idiot. What did I

do? I’m sorry?’.

He continued, ‘I’m sorry. I don’t know what I was thinking, the old me wouldn’t have stopped, you should be happy I stopped’.

He then tried to hug [the complainant]. However, she was crying and pushed him away.

As a result of the assault, [the complainant] sustained scratches to the front of neck, and her throat hurt when she swallowed.

Charge 27 – Rape

Charge 28 – Common law assault

(a) A belief that as the partner of [the complainant], whom he commenced a

relationship with in

2003, he was

entitled to engage in sexual activity with

her in circumstances

where it was clear that she was not consenting to engage in that activity.

ANNEXURE B

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS AND

[ETHAN CALLAWAY]

Court Reference: CR-22-02093

Indictment No: N10135488

AMENDED NOTICE PURSUANT TO SECTION 97(1)(a)

OF THE EVIDENCE ACT 2008 (VIC)

Notice B: Tendency to be physically violent and be physically controlling1

Date of document: 24 January 2024

Filed on behalf of: The Director of Public Prosecutions

Prepared by: Solicitor’s Code: 7539

ABBEY HOGAN Telephone: 0418 461 628

Solicitor for Prosecutions Email:[email protected]

565 Lonsdale Street Ref: Ms Victoria Gillis

Melbourne VIC 3000

Pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) the Prosecution gives notice that it intends to adduce evidence which will establish the tendency of the Accused to have a particular state of mind and to act in a particular way.

The Prosecution seek to rely upon the tendency of the Accused to:

2.1. Act in a particular way, namely;

(a) To be physically violent towards [the complainant], with whom he commenced a relationship in 2003, by choking her, and/or punching her to the face and body, and/or forcing her head into objects and the ground.

2.2. Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003, he was entitled to be physically violent towards her by choking her, and/or punching her to the face and body, and/or forcing her head into objects and the ground.

.

1 Please note: This document was amended to reflect the concessions made by the prosecution during legal argument conducted on 24 January 2024.

3. The evidence relied upon to establish the tendency set out in Table A, below.

The issues in the case to which Tendency Reasoning applies are:

4.1. Whether the accused committed the acts that are the subject of charges 1, 3, 10, 11, 12,

17, 19, 20, 21, 24, 25 and 28; and

4.2. Whether the accused committed the said acts with the intent necessary to find him guilty of the offences alleged in charges 1, 3, 10, 11, 12, 17, 19, 20, 21, 24, 25 and 28.

The tendency set out at paragraph 2.1 and paragraph 2.2 is relied upon in support of the following charges as making more likely the facts founding those charges.

CHARGES
FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES

1. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

3. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

10. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

11. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

12. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

17. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

19. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

20. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

21. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

24. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

25. Common law assault

Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

28. Common law assault Actus reus - Did the accused assault [the complainant].

Mens rea – Did the intentionally assault [the complainant] without lawful
excuse.

TABLE A

Substance of Evidence Relied Upon

to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Row 1

Date: Between 25 May 2003 and 24

May 2004

Time: Unknown

Place: [...]

Substance of Evidence:

Not the subject of a charge

On an occasion between 25 May

2003 and 24 May 2004, when the complainant was 14 years of age and living with her mother and younger brother in [...], the accused came to her home for a visit. None of the complainant’s family were home at that time.

They were arguing while they were in the front hallway near the front door. During the argument, while the accused was standing in front of and very close to [the complainant], he used one hand to grab her by the throat. He squeezed her throat making it impossible for her to breath and she became lightheaded. After a period of time, he let go of her throat.

Charge 1 – Common law assault

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003,

by choking her, and/or punching her

to the face and body, and/or forcing her head into objects

and the ground.

Have a particular state of mind, namely;

(a) A belief that as the

partner of [the complainant], with whom hecommenced a relationship in 2003, he was entitled to be physically violent towards her by choking her, and/or punching her to the face and body, and/or forcing her head into objects

and the ground.

See [the complainant] at pages 77 & 78 (paragraph
7) of the depositions.

Row 2

Date: Between 25 May 2003 and 23

October 2009

Time: Unknown

Place: [...]

Substance of Evidence:

On another occasion between 25

May 2003 and 23 October 2009,

before [the complainant’s] daughter [CJ] was born, and probably while she was

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant],

See [the complainant] at pages 81 (paragraph 19)

and pages 443 to 444 of the depositions.

Substance of Evidence Relied Upon to Support Tendency

was living with her mother in [...], the accused was with her at her home. They began to argue, and the accused punched [the complainant] with a clenched fist. He struck her on the right side of her bottom lip. When she disclosed the incident to investigators, [the complainant] was able to remember the injury that she received but was not able to recall the accused striking her.

The force of the punch caused the complainant’s bottom lip to split open and caused her significant pain.

The accused apologised to her and told [the complainant] that he did not mean to hit her that hard.

Not the subject of a charge

Features of Evidence

Establishing the Tendency

with whom he commenced a relationship in 2003, by choking her, and/or punching her to the face and body, and/or forcing her head into objects
and the ground.

Have a particular state of mind, namely;

(a) a belief that as the partner of [the complainant], with whom he commenced a
relationship in 2003,
he was entitled to be physically violent towards her by choking her, and/or punching her to the face and body, and/or forcing her head into objects
and the ground.

Relevant Witnesses and

Depositions Reference

Row 7

Date: Between 25 May 2006 and 24

May 2009

Time: Unknown

Place: [...]

Substance of Evidence:

On another occasion, between 25

May 2006 and 24 May 2009 when the complainant was aged between 17

and 19 years of age and living with

the accused at his unit in [...], the accused and [the complainant] were arguing in the bedroom.

The accused grabbed [the complainant] by the hair and smashed her head into the plaster wall of the bedroom. The force used by the accused, caused the complainant’s head to make a large hole in the plaster. [The complainant], who was concerned about her safety felt significant pain.

Charge 4 – Common law assault

Target of offending: [the complainant]

Act in a particular way, namely;

(a) To be physically violent towards
[the complainant], with whom he commenced a
relationship in 2003, by choking her,
and/or punching her to the face and body,
and/or forcing her head into objects
and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a

See [the complainant] at pages 81 & 82

(paragraph 20) and 444 of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

relationship in 2003,

he was entitled to be physically violent

towards her by choking her, and/or

punching her to the face and body, and/or forcing her

head into objects and the ground.

Row 14

Date: Between 23 October 2009 and

24 May 2012

Time: During the day

Place: Dandenong Plaza

Substance of Evidence:

On an occasion between 23 October

2009 and 24 May 2012, when the complainant was between 20 and 22

years of age, she was with the

accused and their daughter at the Dandenong Plaza when the accused claimed that she had been looking at another male. He asked [the complainant] if she wanted to have sex with the male. [The complainant] told him that she didn’t even know which male he was talking about.

The accused responded by calling

her a ‘whore’ and a ‘liar’.

When they were in the car park at the shopping complex, the accused grabbed [the complainant] by the back of her neck. He wrapped his hand around her neck and used his hand to choke her. [The complainant] was not able to breath properly.

While he was choking the complainant, they noticed that another woman was nearby watching the. The accused let go of [the complainant] and continued to yell at her.

They then drove from the shopping complex. The accused later told [the complainant] that it was her fault that the woman was staring at them.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards [the complainant],

with whom he commenced a

relationship in 2003, by choking her, and/or punching her

to the face and body, and/or forcing her

head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be physically violent

towards her by choking her, and/or punching her to the

face and body, and/or forcing her

head into objects and the ground.

See [the complainant] at pages 88 & 89
(paragraphs 43 & 44) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Charge – 10 – Common law assault

Row 16

Date: Between 23 October 2009 and

24 May 2012

Time: Unknown

Place: [...]

Substance of Evidence:

On one occasion during that period, the accused lost his temper and yelled at [the complainant]. He then pushed her, causing her to move backwards quickly, and to fall onto a cabinet. The contact with the cabinet caused the doors of the cabinet to break.

[The complainant] got up and tried to leave via the front door. However, the accused stopped her, and they struggled. [The complainant] fell onto the kitchen floor on her back. They accused lay on top of her.

The accused then grabbed [the complainant] by the head. Using both of his hands he then repeatedly smashed the side of head into the kitchen floor. [the complainant] repeatedly yelled at him to stop. However, he continued to strike her head against the floor repeatedly, causing her significant pain.

After a period of time, he got off her and told her that he was sorry. He tried to hug her, but she told him to

‘fuck off’.

The accused responded by grabbing [the complainant] by the head and smashing it into the floor again. He then stood up and kicked her in the back of the head before he walked away.

Charge 11 Common law assault

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically

violent towards [the complainant], with whom he commenced a relationship in 2003, by choking her, and/or punching her to the face and body, and/or forcing her head into objects

and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be physically violent towards her by

choking her, and/or punching her to the

face and body, and/or forcing her head into objects

and the ground.

See [the complainant] at page 91 (paragraph 48)
and pages 457 to 459 of
the depositions.

Row 17

Date: Between 23 October 2009 and

24 May 2012

Time: Unknown

Target of offending:

[the complainant]

See [the complainant] at pages 91 & 92
(paragraphs 49 & 50) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Place: [...]

Substance of Evidence:

On another occasion during the same period of time, when the complainant was with the accused in the driveway near her car, the accused was yelling at her before he pushed her up against her car. He pushed [the complainant] head back against the car, causing her to fall to the ground. The accused then leaned over her and grabbed her by the head, forcing it to strike the ground. The accused continued to yell at her and struck the back and side of her head against the ground on multiple occasions causing her significant pain.

After the accused stopped forcing her head against the ground, [the complainant] got up, but was feeling dizzy and sick. She was unable to stand without leaning against her car. She got back into her car, and the accused yelled at her that she had to leave, or he would continue to hurt her.

Charge 12 – Common law assault

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he commenced a

relationship in 2003, by choking her,

and/or punching her to the face and body, and/or forcing her

head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a

relationship in 2003, he was entitled to be physically violent

towards her by choking her, and/or

punching her to the face and body, and/or forcing her

head into objects and the ground.

Row 24

Date: Between 2 October 2011 and

24 May 2012

Time: Unknown

Place: [...]

Substance of Evidence:

On another occasion between 2

October 2011 and 24 May 2012, when the complainant was no longer in a relationship with the accused, she was returning home to her house in [...]. As she approached the front door, the accused opened the door and asked her where the children were. The accused did not have permission to be inside the house and had entered without [the complainant’s] knowledge.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003,

by choking her,

and/or punching her to the face and body, and/or forcing her head into objects

and the ground.

Have a particular state of mind, namely;

See [the complainant] at pages 94 & 95
(paragraphs 56 to 64) and pages 460 to 462 and pages 493 to 494 of the
depositions. See also photobook 1.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

[The complainant] told him to leave. As she walked into her home, the accused pushed her against the back of the

front door. He called her a ‘whore’ or a ‘slut’ and told her that he ‘owned’

her.

He then threw a punch at her. The punch connected with the back of [the complainant’s] right hand as she had held it up to protect herself. The accused repeatedly punched her hand, causing pain, and a bruise which covered a large part of the back of her hand (Charge 17 – Common law assault).

Charge 17 – Common law assault

(a) A belief that as the partner of [the complainant], with whom he commenced a

relationship in 2003, he was entitled to be physically violent

towards her by choking her, and/or

punching her to the face and body, and/or forcing her

head into objects and the ground.

Row 26

Date: Between 2 October 2011 and

24 May 2015

Time: Unknown

Place: [...]

Substance of Evidence:

On another occasion between 2

October 2011 and 24 May 2015, when the complainant was between 22 and 25 years of age, she was at home in her [...] with the accused in the rear bedroom.

The accused pushed [the complainant] against the wall of the room near the doorway into the room. He then pushed her head into the wall causing some damage to the plaster.

Charge 19 – Common law assault

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he commenced a

relationship in 2003, by choking her,

and/or punching her to the face and body, and/or forcing her

head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a

relationship in 2003, he was entitled to be physically violent

towards her by choking her, and/or

punching her to the

See [the complainant] at page 94 (paragraph 55)
and page 459 of the depositions. See also real estate lease document
and photograph book 6.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

face and body, and/or forcing her

head into objects and the ground.

Row 27

Date: Between 1 January 2012 and

31 December 2013

Time: unknown

Place: Unknown location in Victoria

Substance of Evidence:

On another occasion between 1

January 2012 and 31 December

2013, when the complainant was aged between 22 and 24 years of

age, they were together in an

unknown location in Victoria. The accused became angry with her and

threw a punch at her. [The complainant] blocked the punch with her left hand. The punch connected with the back of [the complainant’s] left hand, causing a cut just below her knuckles.

Not the subject of a charge

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003, by choking her,

and/or punching her to the face and body,

and/or forcing her head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a

relationship in 2003, he was entitled to be physically violent

towards her by choking her, and/or

punching her to the face and body, and/or forcing her

head into objects and the ground.

See [the complainant] at page 100 (paragraph 84)
of the depositions.

Row 30

Date: Between 25 May 2012 and 24

May 2014

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion between 25 May

2012 and 24 May 2014, when the complainant was between 23 and 24 years of age, she visited the accused’s mother at her home in

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003,

See [the complainant] at pages 97 to 99
(paragraphs 73 to 78) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

[...]. The accused was present. He took [the complainant] out of the house and began to argue with her, as he believed that she had received SMS messages from another person.

As he was yelling at her, he pushed [the complainant] against a wall, before he pushed her back inside the house. He then pushed her against a wall and placed his hand around her throat under her jaw and began to choke her. He squeezed her throat between his thumb and fingers tightly. [The complainant] felt extreme pain as the accused crushed her throat, was unable to breath or swallow.

Charge 22 – Common law assault

by choking her, and/or punching her

to the face and body, and/or forcing her

head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be physically violent

towards her by

choking her, and/or punching her to the face and body, and/or forcing her head into objects and the ground.

Row 31

Date: Between 25 May 2012 and 24

May 2014

Time: Unknown

Place: [...]

Substance of Evidence:

When [the complainant] attended at the accused’s mother’s home in [...] to collect her children. The accused was sitting in the kitchen with his mother.

[The complainant] went inside and spoke to the accused’s mother. The accused told her to come outside with him. [The complainant] told him that she just wanted to take the children home. The accused persisted and told her to go outside with him. She complied and went outside with him.

Once they were outside, he began to yell at her and asked her where she had been. He accused her of having sex with somebody.

Target of offending: [the complainant]

Act in a particular way, namely;

(a) To be physically violent towards [the complainant],

with whom he commenced a

relationship in 2003, by choking her, and/or punching her

to the face and body, and/or forcing her

head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be physically violent

towards her by

See [the complainant] at pages 98 & 99 (paragraphs 78 to 80) and pages 467 to 468 of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

The accused then pushed [the complainant] into a wooden fence and began to punch her and hit her about the body. The accused then placed his hands

around her neck and began to choke her. After a period of time, he let go, and [the complainant] called him a ‘pussy’ and said, ‘Kill me because I’m not

scared anymore’. The accused then

placed one hand around her throat and squeezed it tightly. [The complainant] was unable to breath and began to feel dizzy. She grabbed his hands and dug her nails into his hands to try to make him let go.

The accused smirked, and said, ‘Oh, you flinched. You haven’t done that in a while. I missed it’.

As they struggled, they moved to the middle of the front yard, and the accused punched [the complainant] hard in the lower stomach. That caused her to experience severe pain and fall to the ground. The accused then kicked her in the side a few times as she lay on the ground. She was crying and holding her lower stomach due to the pain.

Charge 23 – Common law assault

choking her, and/or punching her to the

face and body, and/or forcing her

head into objects and the ground.

Row 33

Date: 31 January 2015

Time: Unknown

Place: [...]

Substance of Evidence

On 31 January 2015, when the complainant was 25 years of age, she was at home with the children at [...], when the accused came to visit the children.

Target of offending:

[the complainant]

Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003, by choking her,

and/or punching her to the face and body,

and/or forcing her head into objects

and the ground.

See [the complainant] at page 104 (paragraphs 95
to 97), and pages 105 (paragraphs 92 to 112) of
the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

bed several times. However, on each occasion the accused pushed her

down, making sure that she stayed on the bed. The accused then climbed

on top of the complainant and attempted to remove her pants.

After he had penetrated her vagina for a period of time, the accused removed his penis from [the complainant’s] vagina and ejaculated onto the bed. [The complainant] tried to get off the bed. However, the accused held her down, forcing her to stay on the bed until he had finished ejaculating.

The accused continued to punch her for a short time, and the stopped as [the complainant] was crying, and her left hand was sore and swollen. He told her that he had to show her that he

‘had all of the power in the relationship’ (Charge 25 – Common law assault).

Charge 25 – Common law assault

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be physically violent

towards her by choking her, and/or punching her to the

face and body, and/or forcing her

head into objects and the ground.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

Row 34

Date: August 2016

Time: Unknown

Place: [...]

Substance of Evidence:

On an occasion in August 2016, the accused attended her home and began to argue with [the complainant]. During the argument, he struck her on the cheek with his hand. He apologised and [the complainant] asked him to leave.

The accused arranged for a friend to collect him, and he then left her home.

Charge 26 – Common law assault

Target of offending:

[the complainant]

To Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003, by choking her,

punching her to the face and body and

forcing her head into objects and the ground.

Have a particular state of mind, namely;

(a) A belief that as the partner of [the complainant], with whom he commenced a relationship in 2003,

he was entitled to be

physically violent towards her by choking her, punching her to the face and body and forcing her head into objects and the ground.

See [the complainant] at page 112 & 113
(paragraph 11) of the depositions.

Row 35

Date: 15 August 2016

Time: Unknown

Place: [...]

Substance of Evidence:

On 15 August 2016, [the complainant] was at her home on [...] with the accused. He was heavily affected by alcohol, and they were both laying on her bed. [The complainant] was trying to get to sleep.

The accused told her that he wanted to have sex with her. [The complainant] told him that she did not want to have sex with him.

Target of offending:

[the complainant]

To Act in a particular way, namely;

(a) To be physically violent towards

[the complainant], with whom he

commenced a relationship in 2003,

by choking her, punching her to the face and body and

forcing her head into

See [the complainant] at page 113 & 114
(paragraphs 11 & 12) of the depositions.

Substance of Evidence Relied Upon to Support Tendency

Features of Evidence

Establishing the Tendency

Relevant Witnesses and

Depositions Reference

The accused climbed on top of [the complainant], and she tried to push him from her. She began to cry and told him to stop. The accused removed [the complainant’s] pants. While he was laying on top of her, he penetrated [the complainant’s] vagina with his penis.

The accused continued to penetrate the complainant for a period of time before he removed his penis from her vagina..

During that incident, while [the complainant] was laying on her back, the accused placed his hand around her neck and choked her (Charge 28 – Common law assault) .

After the accuse removed his penis from [the complainant’s] vagina, the accused sat on the end of her bed and said, ‘I’m an idiot. I’m an idiot. What did I

do? I’m sorry?’.

He continued, ‘I’m sorry. I don’t know what I was thinking, the old me wouldn’t have stopped, you should be happy I stopped’.

He then tried to hug [the complainant]. However, she was crying and pushed him away.

As a result of the assault, [the complainant] sustained scratches to the front of neck, and her throat hurt when she swallowed.

Charge 28 – Common law assault

objects and the ground.

Have a particular state of mind, namely;

(b) A belief that as the partner of [the complainant], with whom he commenced a

relationship in 2003, he was entitled to be physically violent

towards her by choking her,

punching her to the face and body and

forcing her head into

objects and the ground.

CHARGES	FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES
2. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting.
3. Attempted Rape	Actus reus - Did the accused attempt to intentionally sexually penetrate [the complainant] by introducing his penis into her anus without her consent. Mens rea – Did the accused attempt to sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
5. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
7. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her mouth without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
8. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.

9. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
14. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his finger into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
15. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
16. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
18. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
20. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
21. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
24. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he was aware that she was not consenting or might not be consenting or while not giving thought as to whether she was consenting or might not be consenting to the act of sexual penetration.
27. Rape	Actus reus - Did the accused intentionally sexually penetrate [the complainant] by introducing his penis into her vagina without her consent. Mens rea – Did the accused sexually penetrate [the complainant] while he did not reasonably believe that she was consenting to the act of sexual penetration.

CHARGES	FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES
1. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
3. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
10. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
11. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
12. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
17. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
19. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
20. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
21. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
24. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.
25. Common law assault	Actus reus - Did the accused assault [the complainant]. Mens rea – Did the intentionally assault [the complainant] without lawful excuse.

[2024] VSCA 103

21 May 2024