Director of Public Prosecutions v Benn
[2024] ACTSC 38
•2 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Benn |
Citation: | [2024] ACTSC 38 |
Hearing Date: | 29 January 2024 |
Decision Date: Reasons Delivered: | 2 February 2024 23 February 2024 |
Before: | McWilliam J |
Decision: | (1) The Prosecution is permitted to adduce tendency evidence in respect of the third use notified in the Notice of Intention to Adduce Tendency Evidence dated 21 November 2023, namely that the accused had a tendency to become aggressive or violent in response to minor disagreements when the complainant challenged or displeased him. (2) The evidence referred to in Order 1 above is cross-admissible in respect of the charges the subject of the indictment dated 24 August 2023 and the transfer charges CC2022/10137, CC2022/10138, CC2022/10141 and CC2022/10142. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency Evidence – pre-trial application – allegations of assault occasioning actual bodily harm – sexual intercourse without consent – act of indecency – common assault – minor property damage – uncharged acts – whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused – where uncharged acts constituted family violence – relevant as context evidence – evidence admitted. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 54, 60, 116(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74A Evidence Act2011 (ACT) ss 55, 56(1), 97, 101(2), 137m 192A Family Violence Act 2016 (ACT) s 8 Legislation Act 2001 (ACT) s 84 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Sexual Assault Reform Legislation Amendment Act 2023 (ACT) |
Cases Cited: | Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 Chang v Laidley Shire Council [2007] HCA 37; 234 CLR 1 Daniels v The Queen [2016] VSCA 291 Derwish v the Queen [2016] VSCA 72 DPP v Austin (No 3) [2023] ACTSC 204 DPP v McGary (No 5) [2023] ACTSC 242 DPP v DL [2018] ACTCA 61; 14 ACTLR 62 DPP v Ivanisevic [2023] ACTSC 34 Gilmour v Environment Protection Authority; Tableland Topdressing v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Kiss v R [2021] NSWCCA 158 Marshall v The King [2023] ACTCA 11 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Parkinson v Alexander [2017] ACTSC 201 R v Amato [2021] ACTSC 155; 17 ACTLR 1 R v Bauer [2018] HCA 40; 266 CLR 56 R v Djenadija [2015] ACTSC 29 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 Rodway v The Queen (1990) 169 CLR 515 Rowan (pseudonym) v R [2022] VSCA 236 Sharman (a pseudonym) v R [2023] VSCA 56 Taylor v R [2020] NSWCCA 355 TL v The Queen [2022] HCA 35; 275 CLR 83 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 |
Texts Cited: | Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) Stephen Odgers, Uniform Evidence Law (Thomson Reuters,18th ed, 2023) |
Parties: | Director of Public Prosecutions (Prosecution) Justin Isaac Benn (Accused) |
Representation: | Counsel M Dyason ( Prosecution) J Sabharwal ( Accused) |
| Solicitors ACT Director of Public Prosecutions Armstrong Legal ( Accused) | |
File Numbers: | SCC 171 of 2023 SCC 172 of 2023 |
McWILLIAM J:
1․By Indictment dated 24 August 2023, the accused is charged with 6 offences alleged to have been committed over the period between 4 January 2017 to 31 December 2020 against his wife.
2․They are as follows:
(a)Count 1: Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act);
Particulars
On 4 January 2017, the accused pushed the complainant in the back, causing her to fall over the dishwasher and cut her right shin.
(b)Count 2: Sexual intercourse without consent, contrary to s 54 of the Crimes Act;
Particulars
On 11 January 2017, the accused performed cunnilingus on the complainant whilst she was asleep.
(c)Count 3: Act of indecency without consent, contrary to s 60 of the Crimes Act;
Particulars
Between 1 January 2019 and 31 December 2020, the accused ejaculated on the complainant’s bottom and between her legs whilst she was asleep.
(d)Count 4: Act of indecency without consent, contrary to s 60 of the Crimes Act;
Particulars
Between 1 January 2019 and 31 December 2020, the accused ejaculated on the complainant’s bottom and between her legs whilst she was asleep.
(e)Count 5: Act of indecency without consent, contrary to s 60 of the Crimes Act; and
Particulars
Between 1 January 2019 and 31 December 2020, the accused ejaculated on the complainant’s bottom and between her legs whilst she was asleep.
(f)Count 6: Sexual intercourse without consent, contrary to s 54 of the Crimes Act.
Particulars
Between 1 January 2020 and 31 March 2020, the accused engaged in sexual intercourse with the complainant whilst she was asleep.
3․The accused is further charged with a number of transfer charges, namely:
(a)One offence of common assault, contrary to s 26 of the Crimes Act; and
Particulars
Charge CC2022/10141: On 4 April 2013, the accused threw rocks at the complainant’s car. When the complainant went outside the house and approached the accused, he assaulted her by flipping her over his back into the dirt.
(b)Three offences of damage property less than $5000, contrary to s 116(3) of the Crimes Act.
Particulars
(i)For two charges CC2022/10137 and CC2022/10138, between 1 January 2016 and 31 January 2020, the accused caused damage to the walls of a house in which he and the complainant resided.
(ii)For charge CC2022/10142, between 1 January 2013 and 31 December 2016, the accused caused damage to the walls and doors of a house belonging to himself and the complainant.
4․The accused has pleaded not guilty to the above offences.
The prosecution case
5․The evidence for each of the charges is set out in detail in the Prosecution’s case statement and these reasons proceed on the assumption that the evidence will be consistent with what was there set out.
6․Of importance to the reasons that follow is that for the three counts of an act of indecency without consent, the complainant was asleep at the time the charged conduct occurred. For the first count, when the complainant awoke to semen in-between her legs, the accused said, “Sorry I must have had a wet dream”. For the second count, when the complainant awoke and confronted the accused, he laughed it off and said, “It’s just another wet dream”. For the third count, the allegation is that the complainant woke up and was immediately angry. The accused’s semen was all over her. She rolled over and confronted the accused. He said words to the effect of “it’s a wet dream” and he “couldn’t help it”.
7․For Count 6 (sexual intercourse without consent), the case statement alleges that when the complainant woke up, she found that the accused had his penis inside her vagina and was having sex with her. The complainant rolled away so that the accused’s penis was removed from her vagina and turned around and said, “what the fuck are you doing?” The accused told her that he was asleep and didn’t know he was doing it. The case statement later alleges the complainant had previously told the accused that he was not to have sex with her when she was asleep and she was not okay with it.
The tendency application
8․The application before the Court, filed 24 November 2023 was made pursuant to s 97 of the Evidence Act2011 (ACT) (Evidence Act) (tendency application). The Director of Public Prosecutions (Prosecution) sought permission to adduce tendency evidence set out in a notice of intention to adduce tendency evidence dated 21 November 2023 (Tendency Notice).
9․The application is for an advance ruling pursuant to s 192A of the Evidence Act. The matters are listed for trial by jury in late May 2024.
10․The substance of the evidence for which permission was sought is set out in the Tendency Notice. The Prosecution sought to adduce evidence of:
(a)the allegations that are indicted (charged acts); and
(b)evidence of 14 separate incidents (uncharged acts and transfer charges) for the purposes of tendency reasoning.
11․Orders were made by consent during the hearing in relation to the cross-admissibility of Counts 2-6 against each other to permit the evidence to be used to establish a sexual tendency (Tendency 1) in the application. The parties did not expressly include Incident 6 (being uncharged conduct where the accused would pull the complainant’s pants down and lick her anus while she was asleep), as being part of the consent position, although from what was indicated by counsel for the accused, that was implied. The orders made on 2 February 2024 may need to be varied to specifically make reference to Incident 6 if that was also the subject of an agreed position between the parties.
12․Tendency 2 related to the exertion of control over the complainant and was not pressed.
13․The remaining disputed tendency use sought to be established is that Incidents 7-20 listed in the Tendency Notice are evidence that the accused had the following tendency:
…to act in particular ways, namely to become aggressive or violent in response to minor disagreements when the complainant challenged or displeased him (Tendency 3).
14․The Tendency 3 use was the remaining subject of dispute. Due to the taking of pre-trial evidence the week following the hearing, orders were made in relation to the Tendency 3 use on 2 February 2024, with reasons to follow. These are the reasons.
Evidence sought to be used as tendency evidence
15․Incidents 7- 20 are as follows:
Incident Evidence Particulars date/place/ witness 7 (Count 1) The accused pushed the complainant in the back during an argument causing her to fall over the dishwasher and cut her right shin. 4 January 2017, kitchen, complainant’s house in Rob Riley Circuit Bonner, complainant. 8 During an argument with the complainant, the accused punched the front door causing a crack in the door. 2013, complainant’s house in Secretary St Bonner, complainant. 9 (transfer charge CC2022/10141) The accused threw rocks at the complainant’s car and then threw her onto the ground. 4 April 2013, outside complainant’s house in Secretary st Bonner, complainant, friend, Senior Const. Natalie Brown. 10 The accused would slam doors or punch walls causing damage whenever he was angry. Complainant’s house in Secretary st Bonner, complainant, complainant’s daughter. 11 The accused would slam doors or punch or kick walls causing damage whenever he was angry. Complainant’s house in Rob Riley Circuit (where she lived between 16 January 2016 and 31 December 2020), complainant, complainant’s daughter, friend 12 (transfer charge CC2022/10138) The accused punched a hole in the wall after his kite broke. Complainant’s house in Rob Riley Circuit (between 1 January 2016 and 31 January 2020), complainant 13 (transfer charge CC2022/10142) During an argument the accused punched a hole in the wall just above the complainant’s head. She thought he was going to hit her. Between 1 January 2013 and 31 December 2016, complainant’s house, complainant 14 During an argument the accused hit the complainant across her face with the back of his hand, causing a black eye. Between 16 January 2016 and 23 January 2017, complainant’s house, complainant. 15 During an argument the accused threw his phone at the complainant causing it to smash against the wall and then threatened to stomp on her foot. Between 16 January 2016 and 31 December 2020,
Complainant’s house, complainant, complainant’s daughter.
16 During an argument the accused hit the complainant in the side of the head with a cordial bottle. Between 16 January 2016 and 31 December 2020,
Complainant’s house, complainant, friend.
17 The complainant knocked some plates and glasses off the table so the accused chased her out of the house and choked her outside. Between 16 January 2016 and 31 December 2020,
Complainant’s house, complainant
18 The complainant refused to let the accused have his phone and keys so he choked her. Between 16 January 2016 and 31 December 2020,
Complainant’s house, complainant
19 (transfer charge CC2022/10137) During an argument the accused picked up a garden saw out of a wheelbarrow in the garage and threw it at the complainant but she moved and it hit the wall behind her. They continued to argue then the accused choked the complainant against the door to the garage. Between 1 January 2016 and 31 January 2020, complainant’s house, complainant. 20 (plea of guilty – CC2020/12193-4) During an argument the accused followed the complainant out of her bedroom and threw a glass bottle of hair oil at her, striking her in the thigh. 13 October 2020, complainant’s house, complainant.
Issues
16․The overarching issue is whether Incidents 7-20 should be admitted for the tendency purpose identified.
17․The words of the provisions in the Evidence Act shape the issues for determination on the application.
18․The starting point is the relevance threshold under ss 55 and 56(1) of the Evidence Act, and whether the evidence, if accepted, “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” The focus of that section is on the word “could”, and thus the capability of the evidence in question.
19․Section 97 of the Evidence Act then provides (emphasis added):
(1)Evidence of the character, reputation or conduct of a person or a tendency that a person has or had, is not admissible to prove that the person has or had a tendency… to act in a particular way, or to have a particular state of mind, unless –
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party…; and
(b)the court thinks the evidence will, either by itself or having regard to other evidence presented… by the party seeking to present the evidence, have significant probative value.
…
20․Exceptions to the application of the section are listed in s 97(2) of the Evidence Act. They are immaterial here.
21․Section 101(2) of the Evidence Act must also be considered. It relevantly provides:
(2)Tendency evidence about a defendant, … that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
22․The disputed issues arising for determination here are:
(a)Is the evidence relevant (s 55)?
(b)Will the evidence, either by itself or having regard to other evidence presented, have significant probative value (s 97(1)(b))?
(c)Is the probative value of the evidence outweighed by the danger of unfair prejudice to the defendant (ss 101(2) and 137)?
Is the evidence relevant?
23․It is frequently said that the threshold for relevance is low: see for example, R v Amato [2021] ACTSC 155; 17 ACTLR 1 at [46], DPP v Austin (No 3) [2023] ACTSC 204 at [17].
24․In determining whether the evidence is relevant under s 55 of the Evidence Act, “it is necessary to identify the purpose or purposes for which the evidence is tendered”: IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM) at [37]. Although significant probative value and relevance may be conveniently addressed together, in this case I have dealt with relevance separately in order to highlight that there are two purposes for which the evidence is sought to be tendered – for a contextual purpose and for a tendency purpose.
The context purpose
25․Incidents 7-20 are relevant and admissible for a contextual or relationship purpose.
26․Section 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) provides that evidence of family violence is “relevant evidence” in the proceeding if it provides context for a fact in issue in the proceeding. Section 74A is in the following terms (emphasis added):
74A Evidence of family violence may be relevant evidence
(1)In a sexual offence proceeding, evidence of family violence may be relevant evidence in the proceeding if it provides context for a fact in issue in the proceeding.
…
(2)In considering whether evidence of family violence is relevant evidence, the court must take into account that—
(a)a single act may amount to family violence; and
(b)a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial.
(3)In this section:
evidence of family violence includes evidence of—
(a)in relation to a person—any of the following:
(i) the history of the relationship between the person and a family member, including family violence by—
(A)the family member towards the person; or
(B)the person towards the family member; or
(C)the family member or the person in relation to any other family member;
(ii) the cumulative effect, including the psychological effect, of the family violence on the person or a family member;
(iii) any social, cultural or economic factors that impact on the person or a family member who has been affected by the family violence; and
(b)in relation to family violence generally—any of the following:
(i) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(ii) the cumulative effect, including the psychological effect of family violence on people who are, or have been, in a relationship affected by family violence;
(iii) the social, cultural or economic factors that impact on people who are, or have been, in a relationship affected by family violence.
family member—see the Family Violence Act 2016, section 9.
family violence—see the Family Violence Act 2016, section 8.
27․The definition of “family violence” in s 8 of the Family Violence Act 2016 (ACT) is expansive. Relevant to the uncharged acts alleged here, it is as follows (emphasis added):
8Meaning of family violence
(1)In this Act:
family violence means—
(a)any of the following behaviour by a person in relation to a family member of the person:
(i) physical violence or abuse;
(ii) sexual violence or abuse;
(iii) emotional or psychological abuse;
(iv) economic abuse;
(v) threatening behaviour;
(vi) coercion or any other behaviour that—
(A)controls or dominates the family member; and
(B)causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
(b)behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.
Examples—par (b)
1overhearing threats being made in another room of the house
2 seeing an assault or seeing injuries on a family member who has been assaulted
3 seeing people comfort a family member who has been abused
(2)Without limiting subsection (1), family violence by a person in relation to a family member of the person includes the following:
(a)sexually coercive behaviour;
(b)damaging property;
(c)harming an animal;
(d)stalking;
(e)deprivation of liberty;
(f)harmful use of, or interference with, technology.
…
28․Section 74A was introduced on 24 May 2023 by the Sexual Assault Reform Legislation Amendment Act 2023 (ACT). It legislates the common law position by confirming that evidence of prior family violence between parties may be “relevant and admissible in sexual assault cases, provided the evidence is not unfairly prejudicial to the defendant”: see Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022, 10. The Statement goes on to clarify that this is not to say such evidence will always be relevant, but rather that it “may be” relevant, to use the words of the section.
29․Here, it can be seen that if accepted, the accused punching walls, damaging doors and throwing a phone at a wall and using direct violence against the complainant are within what can be considered to be family violence, which may be relevant for a context purpose to the sexual offences.
30․It is significant in explaining, for example, why the complainant did not immediately report the incidents the subject of the charges or did not complain more strongly to the accused immediately following the conduct alleged.
31․The result is that Incidents 7-20 will be admissible at trial (subject to the s 137 exclusion considered below) for a purpose other than the tendency purpose the subject of the application, in that the jury will be able to use Incidents 7-20 as context evidence for all counts.
Is s 74A of the EMP Act applicable to the charges here?
32․It will be apparent that most of the conduct the subject of the charges, and the other evidence sought to be adduced on a tendency basis, occurred before the commencement of s 74A of the EMP Act. In such circumstances, I briefly canvassed with the parties and obtained confirmation that the statutory provisions applied to the conduct and charges in question.
33․The parties accepted that each amendment nevertheless applied to the evidence given in the present proceeding. The process of reasoning leading to the view that each amendment applies is as follows. First, there were no transitional provisions in the Amendment Act. As a consequence, the general savings provision contained in s 84(1) of the Legislation Act 2001 (ACT) applies. Itprovides:
84Saving of operation of repealed and amended laws
(1)The repeal or amendment of a law does not –
(a)revive anything not in force or existing when the repeal or amendment takes effect; or
(b)affect the previous operation of the law or anything done, begun or suffered under the law; or
(c)affect any existing right, privilege or liability acquired, accrued or incurred under the law.
…
34․Second, whether there is an “existing right” is to be construed by reference to the provision of the repealed statute (or the statute prior to amendment) which is in question: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 at [96]; see also Chang v Laidley Shire Council [2007] HCA 37; 234 CLR 1 (Chang)at [117].
35․Third, common law rules of statutory construction aid the working out of whether there is an existing right that is preserved. Such rules distinguish between retrospective and prospective effect, and between procedural provisions and provisions affecting substantive rights or liabilities: Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 at [6] (Gleeson CJ). If asubstantive right was created, the presumption against retrospective operation applies. Such a presumption does not apply where the provision in question deals with procedural rights: see Rodway v The Queen (1990) 169 CLR 515 (Rodway) at 518. At 521 of Rodway, the High Court stated:
…ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.
36․Applying Rodway here, each statute in question (the Evidence Act and the EMP Act) is a statute directed to procedure, and specifically, the admissibility of evidence in a proceeding. Support for that conclusion may be seen in the consistent view reached by Burns J in R v Djenadija [2015] ACTSC 29 at [21]-[22]. Neither section under consideration creates substantive rights. Accordingly, s 74A of the EMP Act applies to the evidence to be led in the proceeding, notwithstanding that the evidence and charges relate to a time period before each amendment was introduced.
The tendency purpose
37․With regard to the tendency purpose, the High Court in IMM discussed the relationship between relevance and probative value, at [39]-[43] as follows (emphasis added, footnotes omitted):
39. The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
40. Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is "probative". Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, "probative". But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.
41.Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. The exceptions provided with respect to the exclusionary rules of the Evidence Act have the effect that if relevant evidence liable to be excluded comes within an exception, it may nevertheless retain its character as admissible. The condition to be met for the exception in s 97(1)(b) to apply is that the court must think that the evidence will "have significant probative value".
42. Both s 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the "probative value" of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which "could rationally affect [...] the assessment of the probability of the existence of a fact in issue".
43. The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence.
38․In a case decided shortly after IMM, Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski), Murrell CJ and Refshauge J stated at [48] that to determine whether tendency evidence is relevant pursuant to s 55, the Court must ask:
(a)Has the tendering party identified a s 97 tendency?
(b)Are the incidents (individually or in combination/s) capable of establishing the asserted tendency?
(c)What is the relevant “fact in issue” in the proceedings?
(d)If the fact finder accepts that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
The particularisation of Tendency 3
39․The Prosecution identified the s 97 tendency in dispute as being the aggressive or violent tendency of the accused “in response to minor disagreements or when the complainant challenged him.”
40․That particularisation was not problematic for Count 1 and the transfer charges.
41․However, the conduct that is the subject of Counts 2-6 is alleged to have occurred when the complainant was asleep. It is plain that the complainant was unlikely to be challenging the accused or having a minor disagreement with him in her sleep.
42․In respect of Counts 2-6, the parties argued the application in respect of a more general tendency use, being the accused having a tendency to be violent towards the complainant. That is, putting to one side the particulars “in response to minor disagreements when the complainant challenged or displeased him”. Although this was not expressly clarified at the hearing, the argument (and the written submissions) proceeded on the basis that those words were mere surplusage. I have dealt with the tendency use for Counts 2-6 in that way.
43․In doing so, I acknowledge the difficulty in taking that course. The assessment of the probative value of a tendency must concern the tendency particularised by the prosecution in its tendency notice. In TL v The Queen [2022] HCA 35; 275 CLR 83 (TL) at [33], the High Court emphasised that the reformulation of a tendency absent formal amendment of the tendency notice “should not be condoned”. The case of Parkinson v Alexander [2017] ACTSC 201 at [45]-[47] is to similar effect, making the point that, in addition to the procedural fairness issue of ensuring the parties have an opportunity to make submissions on the reformulation, the criminal trial is accusatorial and adversarial. It is not the judge’s function to reformulate the case. See also Sharman (a pseudonym) v R [2023] VSCA 56 at [57].
44․In DPP v McGary (No 5) [2023] ACTSC 242, Mossop J referred to the formulation of the tendency in the advance ruling application that was before his Honour, stating at [40]:
In TL at [33], the High Court commented adversely upon any reformulation by a judge of the asserted tendency in the absence of a separate tendency notice. Accepting those comments, it is not appropriate for the court to reformulate the notice in a manner that might be more advantageous to the prosecution submissions or more understandable by a jury.
45․However, the present application and evidentiary ruling is not in the same territory. As cases such as Rowan (pseudonym) v R [2022] VSCA 236 (at [209]) make clear, there is a distinction between impermissibly reformulating a tendency notice to incorporate additional elements and ignoring surplus particulars. The application was made months before trial. The tendency particularised was appropriate for Count 1 and the transfer charges. The tendency particularised was the same in substance as the more general tendency that was the gist of the entire dispute for the Tendency 3 use in respect of Counts 2-6. Counsel for the accused properly accepted that it could be put to a jury that the relationship between the parties was a violent relationship. The challenge on the tendency use was directed to the nature of the conduct set out in Incidents 7-20 being of such a different kind to the sexual conduct alleged in Counts 2-6, and the submission that the number and nature of the incidents was unfairly prejudicial. The arguments did not turn on the more specific particulars.
46․Given that pre-trial evidence was to be taken from the complainant’s and accused’s daughter the following week, that Incidents 7-20 were admissible separately for a contextual purpose, and that the Tendency 3 use as particularised was clearly able to be used for Count 1 and the transfer charges, the pragmatic approach was to deal with the proposed tendency use for Counts 2-6 in the manner it was argued and to address the form of the notice following the delivery of these reasons, rather than delay the taking of pre-trial evidence from a vulnerable witness and the additional stress to that witness involved. The pre-trial evidence can also be edited before trial if necessary. If no formal amendment to the tendency notice is made to reflect the difficulty acknowledged above, the tendency ruling may be revisited at the hearing.
Relevance / Probative Value established
47․Turning then to Incidents 7-20 identified in the Tendency Notice (individually or in combination):
(a)Each involved an interaction specifically between the complainant and the accused; and
(b)Each involved violence or aggression in the context of an argument or in response to conduct of the complainant that displeased the accused.
48․Each incident is of aggressive or violent conduct and is capable of establishing the asserted tendency. The accused singled out Incident 12 as being potentially in a different category from the others, in that the violence or aggression was in response to conduct of the daughter (of the accused and the complainant) breaking a kite. It remains violent conduct in the home witnessed by the complainant. It is therefore capable of establishing the tendency asserted, even though in isolation, that incident may not be as probative as the others.
49․A fact in issue will be whether the conduct founding each charge occurred as alleged by the complainant. Separately, that will involve whether the complainant’s version of events is accepted and will therefore involve the credit of the complainant. For Counts 3-6 (3 acts of indecency and 1 act of sexual intercourse without consent), on the complainant’s evidence, as set out above, the accused stated immediately following the alleged conduct that it occurred when he was asleep – that is, the conduct alleged was accidental. In those circumstances, the anticipated facts in issue will be:
(a)Whether the physical conduct occurred as alleged; and
(b)Whether the conduct was intentional (in relation to Counts 3-6).
50․Regardless of what the accused is alleged to have stated, the elements of each of Counts 2-6 include that the complainant did not consent to the conduct, and further, that the accused was reckless about whether the complainant consented to the conduct.
51․Given that they are elements of the charges, they are essential facts to be established. In the reasons that follow, I have assumed that they will also be facts in issue, since they are matters that the Prosecution must prove beyond reasonable doubt.
52․Following Vojneski, the next matter to consider is whether, if it is accepted that Incidents 7-20 occurred, and that they showed the tendency asserted, such tendency could “inform” the facts in issue for each charge.
53․For Count 1, the conduct alleged involved an assault on the complainant, which occasioned actual bodily harm. The violent tendency is directly relevant to the assessment of whether the conduct occurred as alleged, in that evidence that the accused had a tendency to be physically violent and aggressive in response to minor disagreements informs the accused’s state of mind at the time the conduct the subject of Count 1 occurred. In addition, it informs the plausibility of the incident occurring in the way described by the complainant. It is thus capable of informing the issue.
54․The same reasoning applies to each of the transfer charges.
55․In respect of Counts 2-6, counsel for the accused submitted that there was just no connection between the tendency purpose and the conduct alleged.
56․However, the conduct the subject of Counts 2-6 is a form of family violence (discussed below). To the extent that the consent of the complainant in respect of Counts 2-6 is put in issue, the violent tendency towards her indicates a willingness to engage in physical violence either directly or in the presence of the complainant. Such a tendency is capable of informing whether the accused engaged in physical violence against the complainant that was of a sexual nature.Sexual assault is “in its essence a crime of violence”: Kiss v R [2021] NSWCCA 158 at [93].
57․In this case, as a separate reason in respect of Counts 3-6, the violent tendency is also capable of informing the fact in issue of recklessness, or the accused’s state of mind. The allegation is that the accused blamed the conduct on a wet dream and in respect of the sexual intercourse without consent, that he was asleep himself and did not know what he was doing. Establishing that the accused had a violent tendency provides a rational explanation for why the accused may have waited until the complainant was asleep to engage in the conduct the subject of those counts (it is less likely that a complainant subject to violent acts would consent to the sexual acts that were performed on her) and in turn whether he did in fact have a state of mind suggesting the conduct on each occasion was unintentional.
58․If established, the fact that the accused had a violent tendency in respect of this particular complainant is capable of rationally affecting whether other violent conduct was committed against the complainant, being Counts 2-6, in the manner alleged. The relevance threshold has thus been met in respect of the tendency use of the incidents.
Will the evidence, by itself or having regard to other evidence presented, have significant probative value?
59․Whether the probative value is “significant” depends upon the nature of the facts in issue and the significance or importance which that evidence may have in establishing those facts. The evidence must be influential in the context of fact finding: IMM at [46]. The evidence must be “important” or “of consequence” to the assessment, before it will be found to have “significant” probative value: TL at [28].
60․In DPP v McGary (No 5) [2023] ACTSC 242, Mossop J stated the following at [35]:
Methodology
The assessment of the probative value of the evidence takes place in accordance with the following principles (which were summarised by the High Court in TL v The King [2022] HCA 35; 405 ALR 578 at [28]-[29]):
(a) The possible use to which the evidence might be put must be taken at its highest.
(b) This requires that the court assume that the evidence is reliable and credible except in circumstances where the evidence could not be accepted by a rational jury.
(c) The assessment of the probative value must involve an assessment of the evidence by itself and having regard to other evidence to be adduced in the case.
(d) To have significant probative value the evidence should make more likely, to a significant extent, the facts that make up the elements of the charged offence.
(e) The evidence must be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue.
(f) There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence, although the similarity will be relevant to the determination of probative value.
(g) Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of significant probative value. Although a greater range of evidence may support the existence of such a generally expressed tendency, the specificity of the tendency will have a direct impact on the strength of the inferential mode of reasoning arising from the evidence.
61․Following Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at [41], and TL at [31], in assessing whether the tendency evidence has significant probative value, the Court considers two “interrelated but separate matters”, namely:
(a)the extent to which the evidence supports the tendency; and
(b)the extent to which the tendency makes more likely the facts making up the charged offence.
62․Recently in DPP v Mastalerz [2024] ACTSC [2024] ACTSC 30 (Mastalerz) at [36], Baker J also provided a helpful (but non-exhaustive) list of matters which may be relevant to the assessment of the probative value of the evidence. Included in that list, and relevantly here, the greater the number of incidents, the more probative the tendency evidence will be: Taylor v R [2020] NSWCCA 355 (Taylor) at [122].
Count 1 and the transfer charges
63․In relation to Count 1 and the transfer charges, the direct bearing of the violent tendency is obvious. It is significantly probative in making it more likely that the facts making up the charged offence occurred.
64․In the present case, Incidents 7-20 constitute 14 violent incidents alleged to have occurred across a seven-year period. The number of instances of violence involving interactions with the complainant, taken in combination, are indicative of sustained and ongoing conduct. They strongly support the tendency for which the Prosecution contends.
65․As submitted by the Prosecution, there are cases where the passage of time between incidents may affect how probative the evidence is of the fact in issue. An example was given of McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [27] and [30]. However, the evidence here is not of that kind. The number of acts here is demonstrative of consistent violent behaviour over a lengthy time-period and that time period is proximate to the period in which the charged conduct is alleged to have occurred.
66․The question then remains whether the tendency itself strongly supports proof of a fact that makes up the offence charged. In DPP v Ivanisevic [2023] ACTSC 34, the Prosecution was permitted to adduce evidence that the accused had a tendency to act in an aggressive and violent manner in the context of a domestic relationship. The charge was nine counts of threatened or actual violence (although not sexual violence) and the court was concerned with the cross-admissibility of charged acts.
67․McCallum CJ observed at [26]-[27] (emphasis added):
26. In my assessment, the existence of an allegation that a man has within a period of about three months committed at least nine offences of violence against his domestic partner is capable of being significantly probative on the question whether any individual assault occurred. That proposition can be tested by considering the converse argument, which is not uncommonly heard in the criminal courts, that a man is unlikely to have assaulted his domestic partner on a particular occasion because he has never done so on any other occasion.
27. It is a matter of human experience that some domestic relationships are attended by violence. In my view, to preclude the prosecution from relying on the evidence as tendency evidence would be to permit an unrealistic assessment of the nature of the acts. I am persuaded that the evidence has significant probative value. …
68․It is not a condition of admission that tendency evidence have similarities with the conduct in issue (Hughes at [34]). However, similarities can still have significance. In that respect, the extent of the conduct and the proximity of the time to the charged acts make Incidents 7-20 significantly probative for Count 1 and the transfer charges.
69․The tendency to be physically violent towards one’s domestic partner concerns acts directed to a single person (see, for example, TL at [37]). The nature of the violent tendency is a lack of control, and an overbearing of the complainant’s will, including the complainant’s control over what happens to her body.
70․Having regard to the similarity of the conduct, the number of incidents taken together, and the proximity of the timing of the incidents, the evidence strongly supports the tendency and the tendency strongly supports the proof of the physically violent acts charged. Significant probative value is established in respect of Count 1 and the transfer charges.
Counts 2-6
71․The Prosecution relied on the tendency reasoning as supporting the assessment of the credibility and coherence of the complainant’s evidence. In this regard, it is helpful to recall what was said by the 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.
72․The probative value in the case of the present accused and complainant is similar in that it rebuts a chain of reasoning of the kind referred to Hughes above.
73․The accused’s submissions in opposition were really directed to Counts 2-6 and the extent to which the tendency evidence made it more likely that the facts making up those counts occurred. The difference highlighted was between the type of violence, in punching walls and damaging doors, when compared with the sexual offending charged under Counts 2-6.
74․The accused submitted that not only were the acts entirely different in nature, but the purported states of mind of the accused while performing the different acts were different. One group comprised sexual acts, where the inference is that the accused’s state of mind may be sexual arousal, whereas the other state of mind is anger or aggression the result of frustration. The accused further submitted that even if the relevance threshold was overcome, the tendency use proposed did not strongly support the proof of a fact in relation to Counts 2-6.
75․The accused relied on the High Court’s observation in Hughes at [41]:
… In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
76․However, in Hughes at [37], the majority also stated:
…Depending upon the issues in the trial… a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.
77․The majority went on to state at [39] that while a person’s conduct adduced to prove a tendency to act in a particular way will commonly bear similarity to the conduct in issue, “Section 97(1) does not… condition the admission of the tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue.”
78․As to the first limb of Hughes, I find that the evidence strongly supports the tendency, for the reasons given in relation to Count 1.
79․In relation to the second limb of the Hughes test, the position is a little more complex, but ultimately, I have arrived at the same conclusion.
80․The accused argued that the behaviour underlying each count of a violent nature does not in any way support the alleged tendency to initiate sexual acts with the complainant while she is asleep and vice versa. However, I consider that the behaviour and the tendency sought to be relied upon is more nuanced.
81․As with Count 1, the tendency to be physically violent towards one’s domestic partner concerns acts directed to a single person. This is very significant to the strength of the tendency in proving the sexual violence counts. The violent conduct that is the subject of Incidents 7-20 would not have the same strength if the complainant on Counts 2-6 was a different person from the person who was involved in those incidents.
82․The nature of the violent tendency is a lack of control, and an overbearing of the complainant’s will, including the complainant’s control over what happens to her body. Counts 2-6 are indicative of the same coercive behaviour in that the complainant’s will was overborne – she had no control over what occurred, because she was asleep.
83․The second value of the tendency reasoning relates to the accused’s state of mind, particularly in relation to Counts 3-6 where the exculpatory words set out above were said by the accused afterwards, effectively that his conduct was accidental, and due to “wet dreams” and that he inserted his penis in the complainant’s vagina while he was asleep. If it is accepted that the physical acts upon the complainant occurred, then the accused’s tendency to be violent towards the complainant will be a powerful tool in proving that such conduct was not by accident.
84․While I accept that the precise form of violence is different from that alleged in each count, I do not accept that it detracts from the strength of the evidence in proving the facts in issue as discussed above in the consideration directed to relevance and probative value. the violent tendency, taken together with the complainant’s evidence of what occurred, makes it significantly more likely that the facts making up the elements of the offence charged occurred.
Section 101(2): Is the probative value outweighed by the danger of unfair prejudice to the defendant?
85․I will deal first with the legislation and applicable principles, before considering their application to the evidence that was in dispute here.
86․Previously, s 101(2) required that the probative value of the evidence “substantially” outweigh the danger of unfair prejudice to the defendant. That word has been deleted following the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) (Amendment Act) which took effect on 1 September 2020.
87․The amendment to s 101 was to align it with the wording in s 137 of the Evidence Act, (discussed below in relation to the context use) which provides:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The task here is an evaluative one.
88․In Taylor, Bell P (as his Honour then was) set out a number of principles in respect of the relationship between ss 97 and 101(2) of equivalent sections in the Evidence Act 1995 (NSW) at [122]:
…
(xviii) …The amendments to s 101(2) of the Evidence Act have been regarded as reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence: see R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at 528-531;
89․Although Bell P was in dissent on the particular question of whether the evidence in the case before the NSW Court of Criminal Appeal had significant probative value, what has been extracted above as to s 101(2) is uncontroversial.
90․The evaluative task includes having regard to whether any warnings or discretions given can remove or reduce the danger of unfair prejudice (if it arises): R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [72].
“Unfair prejudice”
91․What constitutes unfair prejudice in ss 101(2) has been the subject of judicial consideration. The following applies equally to s 137 where the evidence is otherwise admitted as context evidence. In the recent decision of Mastalerz, Baker J explained at [43]:
… the prejudice must be “unfair”. “Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted”, nor is there unfair prejudice in “the inculpatory consequence of its proper use”: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91] and Festa v The Queen [2001] HCA 72; 208 CLR 593 at 603 [22].
92․In Taylor, Bell P discussed what constitutes “unfair prejudice” in the NSW analogue to s 101(2) (as amended) at [122]:
(xxii) …harm to the interests of the accused that is unfair, because there is a real risk that the evidence will be misused by the jury in some unfair way, for example, by providing some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves…
93․That appears to reflect what has been the consistent interpretation of the language of the provision: see R v Bauer [2018] HCA 40; 266 CLR 56 at [73].
94․In Hughes, the danger of unfair prejudice was explained in this way at [17]:
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
95․The legislative difference with the removal of the word “substantially” does not alter the discussion of how prejudice may be occasioned.
96․Subsequently in this jurisdiction, the Court of Appeal has commented that what constitutes ‘unfair prejudice’ extends further in DPP v DL [2018] ACTCA 61; 14 ACTLR 62 (DL), saying this of s 101(2) at [34]:
We do not agree with the Director’s submission that “unfair prejudice [is restricted to] the real risk that the jury will misuse evidence in some unfair way in the trial”. True it is that the relevant prejudicial effect must arise out of the evidence sought to be adduced in the proceedings and that that evidence is necessarily tendency evidence, it is nevertheless the prejudicial effect it may have on the defendant which is critical. That is a wider criterion. … It may include procedural disadvantage flowing from the admission of that evidence in a given case.
97․The above interpretation of s 101(2) was prior to the most recent amendments to s 101(2). The language previously referred to “prejudicial effect” rather than “unfair prejudice”. However, as stated previously, the purpose of amending the wording was not intended to result in any change in the operation of the provision, with the object of amendment expressed as being to align the language of s 101(2) with that of s 137, and remove doubts about interpretation as between those sections: see Stephen Odgers, Uniform Evidence Law (Thomson Reuters,18th ed, 2023) at 858-9 [EA.101.183].
98․More recently, without needing to consider any wider interpretation discussed in DL, the Court of Appeal explained the concept of unfair prejudice in the context of s 137 in Marshall v The King [2023] ACTCA 11 (Marshall) at [53]:
…It is important to recall the nature of s 137, it is premised on there being an unfair prejudice. The prejudicial effect referred to in s 137 is the danger that a jury might make improper use of the evidence. That is, it would be misused by the jury in some way; be given more weight than it deserved; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297at [98]; Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [140]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [51]; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]; Baker v The Queen [2020] ACTCA 55 at [43].
99․When considering the application of ss 101(2) (and 137 below) in the present case, the question has been approached in the sense described in Marshall above, considering whether there is a real risk the jury will construe Incidents 7-20, so as to use an illegitimate form of reasoning or give them unfair weight, or to reach an unfair conclusion in relation to one charge based on an emotional response to the evidence relating to another. On the arguments of the parties here, it is unnecessary to traverse the broader interpretation of procedural disadvantage to the accused under s 101(2), as applied in DL in this jurisdiction.
Consideration of whether there is unfair prejudice outweighing the probative value here
100․One question that arises is whether there is any unfair prejudice at all. The incidents are evidence of wrongful conduct and will be prejudicial to the accused. That is not enough to establish that the prejudice is “unfair”.
101․In the circumstances of the present case, there is such a close correlation between the contextual purpose and the tendency purpose that I cannot see any unfair prejudice, in the sense that the jury may use the evidence for an impermissible purpose. As submitted by the Prosecution, the violent tendency informs the plausibility of the conduct occurring in the manner alleged and the credibility of the complainant.
102․The accused made three key submissions as to the danger of unfair prejudice. First, that given the number of acts, both charged and uncharged, and the duration of the alleged offending behaviour, the jury would be tasked with adjudicating the general character of the accused and the nature of the relationship he had with the complainant over and above evaluating the evidence for the counts on the indictment.
103․Second, it was submitted that the jury would be diverted from their task of considering whether the sexual counts on the indictment occurred by being asked to consider years of irrelevant behaviour, and the non-sexual counts.
104․Third, it was submitted that the jury will almost certainly entertain the logical fallacy that the number of allegations means there must be some truth to at least some of the allegations.
105․I have taken into account the following:
(a)The conduct the subject of Incidents 7-20 is not so emotive as to risk an unfair response by the jury.
(b)The accused’s behaviour is relevant for the reasons explained above. Moreover, although the conduct spans years, it spans the same time period as the charged acts.
(c)Further, although there are 14 incidents and the number of acts contributes to the strength of the tendency, such a number is not so great as to be distracting or unduly diversionary for a jury hearing the evidence. The evidence itself is unlikely to be so extensive that it becomes at risk of being given greater weight than the direct evidence of the charged conduct itself.
(d)Excluding the incidents would mean that the jury’s assessment of the evidence occurred in a vacuum and produce a distortion of the context in which the charged acts occurred. Section 74A(2)(b) of the EMP Act calls attention to the fact that evidence may be relevant as a pattern of behaviour. Incidents 7-20 are of a kind that are likely to have significant probative value taken together, in a way that is important for the jury to consider when assessing the charged acts.
(e)Directions may be crafted cautioning the jury against using the evidence to form a view about the general character of the accused, or against inferring from their number that there must be some truth to at least some of the allegations. The Court’s assessment proceeds on the assumption that juries attempt to follow directions, although I accept that the court cannot assume that such directions will necessarily be effective in removing the danger: Daniels v The Queen [2016] VSCA 291 at [34]-[35].
106․Taking those matters into account, any “unfairness” is capable of direction and does not outweigh what I consider to be very significantly probative evidence, both from a tendency perspective and a context perspective. Indeed, it is difficult to see how the credibility of the complainant and the accused’s alleged state of mind could be fairly assessed without having regard to what the complainant alleges occurred on a regular basis in her home.
Section 137 of the Evidence Act – the same considerations apply
Onus
107․For completeness, there may be a competing onus in applying ss 101(2) and 137. For 101(2), as the Prosecution is seeking to adduce the evidence about the defendant, the onus is on the Prosecution to show that the probative value of the evidence outweighs the prejudicial effect: Derwish v the Queen [2016] VSCA 72 at [97]. However, where s 137 is sought to be invoked, the onus is on the accused to demonstrate that the danger of unfair prejudice outweighs its probative value: Gilmour v Environment Protection Authority; Tableland Topdressing v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593 at [46]. In the present case, the arguments were made without recourse to whether an onus had been discharged and from a practical perspective and the nature of the evidence in question here, nothing turns on which party carried the onus.
108․The reasons given above apply equally to the admissibility of the contextual purpose identified in respect of Incidents 7-20. Section 137 does not operate to exclude the evidence adduced on that basis.
109․In light of the conclusions reached in relation to the use of the tendency evidence, it is also unnecessary to deal with the accused’s submission that Counts 2-6 should be heard separately from Count 1 and the transfer charges.
Orders
110․For the above reasons, I concluded that the evidence was admissible for the tendency purpose sought, although as indicated in respect of Counts 2-6, it may be that the tendency use is refined and limited at trial so as not to further particularise the violence as a response to trivial conduct. The Orders of the Court made on 2 February 2024 were as follows:
(1)The Prosecution is permitted to adduce tendency evidence in respect of the third use notified in the Notice of Intention to Adduce Tendency Evidence dated 21 November 2023, namely that the accused had a tendency to become aggressive or violent in response to minor disagreements when the complainant challenged or displeased him.
(2)The evidence referred to in Order 1 above is cross-admissible in respect of the charges the subject of the indictment dated 24 August 2023 and the transfer charges CC2022/10137, CC2022/10138, CC2022/10141 and CC2022/10142.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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