Director of Public Prosecutions v Robertson
[2024] ACTSC 78
•18 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Robertson |
Citation: | [2024] ACTSC 78 |
Hearing Date: | 18 March 2024 |
Decision Date: | 18 March 2024 |
Reasons Date: | 27 March 2024 |
Before: | Loukas-Karlsson J |
Decision: | The prosecution be allowed to rely on tendency evidence of the incidents set out in the notice of intention to adduce tendency evidence which was filed on 12 February 2024. |
Catchwords: | CRIMINAL LAW – EVIDENCE – pre-trial application – tendency evidence - application to adduce tendency evidence – significant probative value – whether probative value of evidence outweighs danger of unfair prejudice - unfair prejudice may be dealt with by appropriate jury directions |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 30, Evidence Act 2011 (ACT), ss 55, 97, 101, 135, 137 Family Violence Act 2016 (ACT), s 8 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) |
Cases Cited: | Director of Public Prosecutions v Ivanisevic [2023] ACTSC 34 Director of Public Prosecutions v Murphy [2023] ACTSC 4 El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 Harris (a pseudonym) v The King [2024] VSCA 43 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Parkinson v Alexander [2017] ACTSC 201 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193 R v SK [2011] NSWCCA 292 R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 TB v The Queen [2019] NSWCCA 224 Taylor v The Queen [2020] NSWCCA 355 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 |
Parties: | ACT Director of Public Prosecutions (Applicant) Joseph Donald Robertson ( Respondent) |
Representation: | Counsel G Cuthel ( Applicant) J Sabharwal ( Respondent) |
| Solicitors ACT Director of Public Prosecutions J Sabharwal ( Respondent) | |
File Number: | SCC 231 and 232 of 2023 |
LOUKAS-KARLSSON J:
Introduction
The prosecution seeks to establish and rely upon as relevant to the facts in issue, pursuant to ss 97 and 101 of the Evidence Act 2011 (ACT) (Evidence Act), that the accused had a tendency to act in a violent or aggressive manner towards his former partner (the complainant) during an argument or when the complainant tried to leave the relationship.
The accused, Mr Robertson, is charged on indictment with the following offences:
(a)Count 1: threat to kill, s 30 Crimes Act 1900 (ACT).
(b)Count 2: assault occasioning actual bodily harm, s 24 Crimes Act 1900 (ACT).
(c)Count 3: threat to kill, s 30 Crimes Act 1900 (ACT).
(d)Count 4: assault occasioning actual bodily harm, s 24 Crimes Act 1900 (ACT).
(e)Count 5: assault occasioning actual bodily harm, s 24 Crimes Act 1900 (ACT).
The accused is also charged with nine transfer charges of common assault pursuant to s 26 Crimes Act 1900 (ACT). I note that two of these transfer charges are alternative charges to counts 2 and 4.
(a)CC2022/4017: Common assault, s 26 Crimes Act 1900 (ACT).
(b)CC2022/4018: Common assault, s 26 Crimes Act 1900 (ACT).
(c)CC2022/4019: Common assault, s 26 Crimes Act 1900 (ACT).
(d)CC2022/4020: Common assault, s 26 Crimes Act 1900 (ACT), Alternative charge to Count 2.
(e)CC2022/4030: Common assault, s 26 Crimes Act 1900 (ACT); Alternative charge to Count 4.
(f)CC2022/4032: Common assault, s 26 Crimes Act 1900 (ACT).
(g)CC2022/4025: Common assault, s 26 Crimes Act 1900 (ACT).
(h)CC2022/4027: Common assault, s 26 Crimes Act 1900 (ACT).
(i)CC2022/4028: Common assault, s 26 Crimes Act 1900 (ACT).
The charges all relate to the same complainant.
I note that three uncharged acts are also included in the application, which will be outlined later in the judgment at [14].
The prosecution submitted that the complainant and the accused were in an “off and on” relationship between 2004-2017. At the commencement of the relationship the accused was 29 and the complainant was 18. The accused and complainant have a child together, who was born on 7 August 2015. Counts 1-4 on the indictment are alleged to have occurred in 2012. Count 5 is alleged to have occurred in 2014. The transfer charges relate to incidents which allegedly occurred between 2006-2017.
In this tendency application, the prosecution relied on 14 incidents of alleged “violent conduct.” The prosecution submitted that the accused had a tendency to act in a violent or aggressive manner towards the complainant during an argument or when the complainant tried to leave the relationship.
The accused did not oppose the application. Nevertheless, the Court must consider the merits or otherwise of this application.
For the below reasons, the application should be granted.
Tendency Application
On 12 February 2024, the prosecution filed a Notice of Intention to adduce tendency evidence (Tendency Notice) in the proceeding against the accused. The Tendency Notice sets out the substance of the evidence that the prosecution relied on to establish the tendency asserted. The application in the proceeding was filed along with an affidavit of a solicitor (the supporting affidavit).
For clarity and convenience, I will refer to the applicant as the prosecution and the respondent as the accused.
Tendency Notice
In accordance with the Tendency Notice, the prosecution sought to adduce evidence in the matter against the accused to prove that he had a tendency to act in a particular way, specifically:
(a)to act in a violent or aggressive manner toward the complainant, during an argument, or when the complainant tried to leave the relationship.
As particularised in the Tendency Notice, the prosecution relied upon 14 incidents, allegedly occurring between 23 July 2006 and February 2017 in relation to the tendency application. I note that incidents 5, 6, 7 and 10 are the subject of Counts 1-5 on the indictment. Incidents 1, 3, 4, 6, 8, 9, 11 and 12 are the subject of eight out of the nine transfer charges of common assault.
There are three allegations of “uncharged” incidents. I note that, at the hearing, counsel for the prosecution indicated that incident 2 was uncharged “because the conduct has been unable to be specified with any specificity.” Counsel for the prosecution further submitted that incidents 13 and 14 were uncharged as they occurred in the states of Queensland and Victoria, and therefore outside the jurisdiction.
The specific material the prosecution intends to adduce to prove the alleged tendency is as follows:
Incident
Count / Charge no
Particulars
1.
CC2022/4017, common assault
On 23 July 2006, during an argument over finances, the accused grabbed the complainant’s arm and pulled it behind her, causing her such pain that she attended hospital because she thought she broke it.
2.
Uncharged incident
Between July and December 2006, the accused punched the complainant multiple times outside their house to her face and body. This resulted in the complainant sustaining a black eye and resulted in the accused injuring his hand.
3.
CC2022/4018, common assault
On 19 July 2008, near McDonalds located on Mort St, Braddon, following an argument that commenced at the complainant’s work Christmas party, the accused punched the complainant in the face and choked the complainant up against a wall.
4.
CC2022/4019, common assault
On 2 November 2010, during an argument the accused threw the complainant down the stairs in their home at Sapling Crescent in Harrison. He then kicked her whilst she was on the ground.
5.
Count 1 – threat to kill and
Count 2 – Assault Occasioning Actual Bodily Harm
On 17 March 2012, at the home address of the complainant and the accused at Zorzi St, Forde, during an argument about fidelity, the accused punched the complainant to the head and face, he then dragged her down the stairs of their house and into their garage. There the accused opened a red toolbox and produced a firearm and said ‘that’s it, you’re fucking dead.’
6.
Count 4 – Assault Occasioning Actual Bodily Harm, or in the alternative transfer charge CC2022/4030, Common Assault.
On 14 December 2012 at the home address of the complainant and accused being a house at Aida Bell Circuit, Forde, during another argument about fidelity, the accused starting repeatedly punching the complainant in the face and over her body, and she ended up curled up in a ball on the dining room floor.
7.
Count 3 – threat to kill
On 14 December 2012, at the home address of the complainant and accused being a house at Aida Bell Circuit, Forde, following incident 6, the accused then grabbed a knife and put it to her throat and said ‘if you fucking leave, I’m going to kill you.’
8.
CC2022/4032 – common assault
On 11 March 2014, at the home of the accused and complainant at Don Bell St, Bonner ACT, the accused and the complainant got into an argument about the accused being unfaithful to the complainant. During the argument the accused hit the complainant and then left the house.
9.
CC2022/4025 – common assault
On 8 April 2014, in the home of the accused and the complainant at Don Bell St, Bonner ACT, the accused and complainant got into a fight as the complainant told the accused that she wanted to end the relationship. The accused punched the complainant to the face causing her nose to bleed.
10.
Count 5 – Assault occasioning actual bodily harm
On 26 May 2014, at the home of the accused and complainant at Don Bell St, Bonner ACT, the accused and complainant were arguing. The accused grabbed the complainant, threw her over the coffee table and punched her repeatedly in the face and head.
11.
CC2022/4027 – common assault
In January 2017, at the home of the accused and complainant at Forbes St, Turner ACT, the complainant had returned from a walk-up Mount Ainslie. Upon her return she argued with the accused, during the argument the accused punched the complainant in the face in front of their two-year old son Sass.
12.
CC2022/4028 – common assault
In February 2017, the accused assaulted the complainant resulting in the complainant sustaining bruising around her eye
13.
Uncharged act
On 7 March 2013 at the Meriton Hotel on the Gold Coast QLD, the accused and complainant had an argument. During the argument the accused pinned the complainant’s arms to the ground with his legs, he then repeatedly punched her in the face, causing significant bruising, some broken teeth, and a broken eye socket.
14.
Uncharged act
On 31 December 2013 at the Grand Mercure Hotel located in the Docklands, Melbourne VIC, the accused commenced an argument with the complainant. The accused hit the complainant a couple of times. He then produced a knife, and the last thing the complainant remembers is waking up on the ground. She went and looked in the mirror and observed the skin from the middle of her cheek was hanging down, she went and sought medical treatment.
The supporting affidavit exhibits the following material that the prosecution relied on in support of the tendency evidence application:
(a)Exhibited to the application and marked ‘CM2’ is the prosecution Case Statement filed 23 October 2023.
(b)Exhibited and Marked ‘CM3’ is the Indictment filed 23 October 2023.
(c)Exhibited and marked ‘CM4’ is the Supreme Court Pre-Trial Questionnaire, filed 23 October 2023.
(d)Exhibited and marked ‘CM5’ is the Statement of the complainant dated 19 March 2021.
(e)Exhibited and marked ‘CM6’ is Annnexure A – Family Violence Incidents occurring between 2006-2017 – Provided to Police by [the complainant] (Robertson), to the statement of the complainant dated 19 March 2021.
(f)Exhibited and marked ‘CM7’ is a transcript of the Evidence in Chief Interview of [the complainant], dated 16 December 2022.
Legislation and relevant legal principles
The admission of tendency evidence is governed by ss 97 and 101 of the Evidence Act. Section 97 provides:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
(Emphasis added.)
Section 101 of the Evidence Act provides:
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence 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.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
(Emphasis added.)
In my decision in R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193 (QX (No 5)), I set out the process for determining whether the prosecution may be permitted to adduce tendency evidence. The steps are as follows:
(a)Establishing that the evidence is relevant pursuant to s 55 of the Evidence Act;
(b)Determining the preliminary threshold in s 97 of the Evidence Act:
(1) Whether the prosecution has provided sufficient notice: s 97(1)(a);
(2) Whether the evidence has significant probative value: s 97(1)(b).
(c)If the evidence satisfies s 97 of the Evidence Act, then proceeding to determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).
(d)Additionally, a final further step may be consideration of whether the Court should use the discretion to refuse to admit the evidence pursuant to s 135 or whether the Court must refuse to admit the evidence pursuant to s 137.
Significant probative value
In assessing the probative value of the evidence, the court must proceed on the basis that the evidence is accepted: IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM) at [48] – [49]. Importantly, the nature of the fact in issue to which a tendency is sought to prove, will inform whether the evidence has significant probative value and, properly, “the evidence must be influential in the context of fact-finding”: IMM at [46].
In Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at [41], the High Court identified a two-step process in determining whether significant probative value had been established, identifying two interrelated but separate questions:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. 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.
(emphasis added)
Thus, in looking at the two interrelated but separate matters, there is likely to be a high degree of probative value where the evidence both strongly supports first the proof of a tendency and the tendency strongly supports second the proof that makes up the offence charged. Both matters must be considered and analysed carefully.
As stated in Hughes, s 97(1) does not necessitate similarity between the acts or incidents adduced to prove a tendency and the conduct in issue, and “the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove”: see [38] – [39]. Additionally, in Taylor v The Queen [2020] NSWCCA 355 (Taylor), Bell P stated at [122](vii) (although in dissent as to the result in that case):
[W]hilst in order to qualify as tendency evidence, the conduct sought to be adduced does not necessarily need to bear a striking or even close similarity with the offences charged…, the closer the degree of similarity, the more significant and more probative the evidence is likely to be: see BP at [108]; DAO at [180]; AC v R [2016] NSWCCA 21 at [58]; O'Keefe v The Queen [2009] NSWCCA 121 at [60]…
Bell P further outlined at [122](xiv) the factors which may affect the degree of significance of the tendency evidence sought to be adduced:
(a) the number of times the tendency asserted has manifested itself in the evidence sought to be adduced: see, for example, RHB v The Queen [2011] VSCA 295 at [20]. Thus, a ‘single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue’: see Aravena at [89], cf. Ford at [45]…;
(b) the similarity of the circumstances in which the prior conduct occurred: see, for example, Milton at [31]; Fletcher at [57] and [68]; and R v Smith (2008) 190 A Crim R 8; [2008] NSWCCA 247 at [17];
(c) the distance in time between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced: see, for example, McPhillamy at [30]-[32]; R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at [64] (Watkins) (where it was held that pleas of guilty to charges of fraud in relation to conduct 10-15 years prior to trial for similar offences was too great a distance, in circumstances where the Court acknowledged that people do reform and that Watkins' plea to the earlier offences might have thrown doubt on the continuation of the tendency 15 years (after); Semaan v R (2013) 39 VR 503; [2013] VSCA 13 at [41]; Anthony v Morton [2018] NSWSC 1884 at [336]; and Aravena at [89].
(d) however, despite large temporal gaps, other linking factors between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced may nevertheless result in such evidence have significant probative value: see, for example, R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 at [36]; R v SK [2011] NSWCCA 292 at [27] (SK); RH at [115]-[117]…;
(e) conversely, the absence of any evidence as to the manifestation of the tendency in a lengthy intervening period will undermine the likely probative value of the historic tendency evidence: see, for example, Watkins at [36];
(f) the nature of the proceedings and the particular offences charged in a criminal case: see, for example, Hughes at [16];
(g) the identity of the witnesses providing the tendency evidence and any relationship they may have to a complainant: see, for example, SSN at [51];
(h) the issue to which the evidence is relevant: see, for example, Hughes at [42]. For example, a tendency expressed in general or even generic terms of a characteristic with no particularly unusual factors will be of little probative value when it is sought to be used to establish the identity of an offender, in the case of disputed identity: see O'Keefe at [65];
(i) the existence of other evidence relied upon by the Crown to prove the underlying charges, and the relationship of that evidence to the tendency evidence sought to be adduced: see, for example, O'Keefe at [59];
Incidents may support an inference that an accused had a behavioural “tendency” even if the incidents themselves bear dissimilarity: Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski) at [50] per Murrell CJ and Refshauge J.
The specificity of the tendency will also be instructive as to its probative value. In El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 (El-Haddad) at [72], Leeming JA relevantly stated:
[T]he specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of the charge. It is quite another to say a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole a burnt and black Porsche.
(Emphasis added.)
Thus specificity and probative value are related. The general is not as probative as the specific.
Tendency evidence may also be retrospective: TB v The Queen [2019] NSWCCA 224. However, such conduct does not have the same “predictive capacity” as past conduct: R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 at [21] citing Parkinson v Alexander [2017] ACTSC 201 at [55]. I note that incidents 11 and 12 post-date the counts on the indictment (but not the transfer charges).
Unfair prejudice
As I stated in QX (No 5), s 101(2) requires the Court to conduct a balancing exercise and make a judgment as to whether the tribunal of fact, in the event the evidence is adduced, will use the evidence improperly or in some unfair way.
In Vojneski, Murrell CJ and Refshauge J stated at [61]-[63]:
61. Section 101(2) requires the identification of the probative value and the prejudicial effect of the tendency evidence. Then a balancing exercise must be conducted on the facts of each case: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95], Hughes at [190].
62. At the s 101 stage of the inquiry, it is necessary to identify the type or types of prejudicial effect in question: Ford per Campbell JA at [64].
63. The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact-finder will misuse the evidence in an unfair way by giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction: Festa v The Queen [2001] HCA 72; 208 CLR 593 per McHugh J at [51] (Festa), Lam at [31]–[32], R v Costa (No 1) [2015] ACTSC 63 at [44]. As noted above, tendency evidence usually raises disreputable conduct, i.e. contains inherent prejudice. But in many cases this prejudicial effect can be greatly reduced by appropriate jury directions. In particular cases, tendency evidence may have another prejudicial effect.
(Emphasis added.)
In Hughes, the plurality observed the types of prejudice which may arise when tendency evidence is used. The plurality stated 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.
(Emphasis added.)
As I stated in DPP v Murphy [2023] ACTSC 4 (Murphy), following the commencement of the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) in 2020, there is no longer a requirement for the probative value of tendency evidence to “substantially” outweigh the danger of unfair prejudice to the defendant: see Murphy at [10] and [16]-[21].
Prosecution submissions
With respect to whether the alleged tendency is relevant to the facts in issue, the prosecution submitted that, as the accused is charged with multiple acts of violence towards the complainant, the alleged tendency of the accused to act in a violent or aggressive manner towards the complainant, during an argument or when the complainant tried to leave the relationship, is relevant to whether the conduct occurred as alleged by the complainant. As submitted by the prosecution, the fact in issue is whether the accused engaged in the conduct alleged. The prosecution correctly submitted that the assessment of the facts in issue will involve the tribunal of fact considering the likelihood of the accused engaging in the conduct alleged in respect of each count and the plausibility of it occurring in the way described by the complainant.
The prosecution further submitted that the tendency relied upon is significantly probative with respect to whether the accused engaged in the conduct alleged. The prosecution submitted that each of the charges, taken in isolation may risk being taken by the jury as a fabrication by the complainant, or engaged innocently, such as by accident, by the accused.
The prosecution referred to several factors which were identified in Taylor, at [122] discussed earlier in this judgment at [23] to [24]. Referencing various factors identified in Taylor at [122], the prosecution outlined the relevance of these factors to this matter as follows:
(a)Similarity of the circumstances of offending
The prosecution submitted that the behaviours which formed each incident occurred during similar circumstances, including the following:
(i)The alleged incidents occurred when the accused and complainant were in an intimate relationship, or when the relationship had recently broken up (incident 13).
(ii)The alleged incidents involved acts of violence and aggression by the accused towards the complainant, who was his intimate partner. The prosecution submitted that these incidents are therefore, acts of family violence as defined by s 8 of the Family Violence Act (ACT) 2016.
(iii)The alleged incidents occurred when the accused and complainant were arguing and the accused responded with violence (incidents 1, 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14).
(iv)Several of the alleged incidents occurred when the complainant tried to leave the relationship with the accused (incidents 6, 7 and 9).
(v)Several of the alleged incidents arose following arguments about fidelity (incidents 5, 6, 7, 8, 13 and 14).
(b)The number of times the tendency has manifested itself in the evidence adduced: the prosecution submitted that the volume of separate and discrete incidents (five counts on the indictment, nine transfer charges and three uncharged acts) “suggests the probative value of the tendency evidence is very high.” I note in relation to the transfer charges, as stated at the hearing, there are nine transfer charges but only seven incidents as two of the transfer charges are alternative charges: CC2022/4020 is an alternative charge to Count 2 and CC2022/4030 is an alternative charge to Count 4.
(c)The distance in time between the underlying evidence of tendency and the charges in relation to which the tendency evidence is sought to be adduced: the prosecution submitted that, although the incidents occurred over a period of over ten years, the incidents occurred frequently over that period, with the frequency escalating towards the end of that period. The prosecution submitted that the escalation in frequency correlated with fractures in the relationship and attempts by the complainant to leave the relationship.
Consideration
As stated at the outset, the accused did not oppose the application. Nevertheless, I must consider whether or not it is appropriate to make the orders sought by the prosecution.
I note DPP v Ivanisevic [2023] ACTSC 34. This case was a tendency application in a matter concerning multiple counts of domestic violence. In that case, McCallum CJ stated at [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.
In my view, the evidence is clearly relevant and has significant probative value, in this case. In my view, the approach of McCallum CJ has relevance to the facts of this case. In my view allowing the evidence as tendency evidence may allow for a more realistic assessment of the evidence and the acts in question. Regrettably, as stated by McCallum CJ, it must be recognised that some relationships are attended by domestic violence. At the same time, I emphasise that courts must adhere to the presumption of innocence and ensure a fair trial.
I must then consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Judges must ensure that the presumption of innocence is not transmogrified into a presumption of guilt by way of tendency evidence. courts must always be alert to this balance.
In this case, I do not consider that the danger of unfair prejudice outweighs the probative value. In this case, any unfair prejudice may be dealt with by appropriate and careful jury directions by the Trial Judge: see by way of example Harris (a Pseudonym) v The King [2024] VSCA 43.
Nor do I consider this to be a matter where the tendency evidence ought not be admitted under ss 135 and 137 of the Evidence Act. Again, this is a matter where careful jury directions are appropriate and called for.
There is a generic prejudice inherent in tendency evidence, that is, a jury will conclude that a person with a tendency will act on that tendency whenever there is an opportunity: see R v SK [2011] NSWCCA 292. Nevertheless, when considering whether the probative value of tendency evidence outweighs unfair prejudice, the court may take into account that juries are to be properly directed so that a jury is directed not to use the evidence in a way not logically connected with the issues in the trial: see R v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [90].
I note by way of completeness, that the evidence is also sought to be called by the prosecution as relationship evidence in this case.
Orders
I make the following orders:
(1)The prosecution be allowed to rely on tendency evidence of the incidents set out in the notice of intention to adduce tendency evidence which was filed on 12 February 2024.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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