Harlen (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0133

HAROLD HARLEN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	McLEISH, NIALL and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2023
DATE OF JUDGMENT:	9 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 269
JUDGMENT APPEALED FROM:	DPP v [Harlen] (Ruling No 2) (County Court of Victoria, Judge Doyle, 27 March 2023)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Indictment containing 14 charges including two charges of rape – Evidence of charged acts and uncharged act relating to complainant, and evidence of charged acts relating to former intimate partner – Tendency to have willingness to engage, or to actually engage, in verbal violence and physical violence as a means of control towards former intimate partners – Whether evidence of significant probative value – Whether probative value of evidence substantially outweighs prejudicial effect – Leave to appeal refused.

Evidence Act 2008, ss 91, 97, 101.

Hughes v The Queen (2017) 263 CLR 338, Taylor v The Queen [2020] NSWCCA 355, Townsend (a pseudonym) v The King [2022] VSCA 201, Morey (a pseudonym) v The King [2023] VSCA 153, considered - Henderson (a pseudonym) v The Queen [2017] VSCA 237, distinguished.

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Counsel
Applicant:		Mr C Mylonas
Respondent:		Mr CB Boyce KC with Ms CJ Duckett
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
NIALL JA
KENNEDY JA:

Introduction

The applicant, Harold Harlen, is currently facing trial before a jury in the County Court. The trial is due to commence on 29 November 2023. He has been charged with 14 charges, which include two charges of rape.[2] The charges arise out of the breakdown of a relationship between the applicant and the complainant, Ms Stephanie Abbott, who is the applicant’s previous partner.
[2]Indictment 2A contains the following charges: two charges of false imprisonment contrary to common law; one charge of stalking contrary to s 21A of the Crimes Act 1958; two charges of causing injury recklessly contrary to Crimes Act 1958, s 18; two charges of common assault contrary to the common law; one charge of contravention of order intending to cause harm or fear for safety contrary to Family Violence Protection Act 2008, s 123A(2); two charges of causing injury intentionally contrary to Crimes Act 1958, s 18; one charge of making a threat to kill contrary to Crimes Act 1958, s 20; two charges of rape contrary to Crimes Act 1958, s 38(1), as amended by Crimes Amendment (Sexual Offences) Act 2016; and one charge of persistent contravention of a family violence intervention order contrary to Family Violence Protection Act 2008, s 125A.
By a tendency notice dated 28 September 2022 (amended on 24 March 2023), the respondent gave notice (the ‘Notice’)[3] that it intended to use certain evidence to prove a tendency of the applicant. That tendency was said to be to have a willingness to engage, or to actually engage, in ‘verbal violence’ and ‘physical violence’ towards both Ms Abbott and Ms Julie Higgins (another ‘previous intimate partner’) as a ‘means of control’ over them.[4]
[3]Under s 97(1)(a) of the Evidence Act2008.
[4]The full terms of the Notice are referred to, below, at [12].
The respondent seeks to rely on the evidence of Ms Abbott in relation to each charge, and in respect of one uncharged act (which occurred in September 2020). It also seeks to rely on certain evidence concerning Ms Higgins.
On 27 March 2023, the judge ruled two categories of evidence specified in the Notice in relation to Ms Higgins to be inadmissible.[5] However, he ruled the remaining evidence admissible as tendency evidence (the ‘Tendency Ruling’).[6] The Notice was consequently redrawn to reflect this ruling.[7]
[5]DPP v [Harlen] (Ruling No 1) (County Court of Victoria, Judge Doyle, 27 March 2023) (‘Ruling No 1’).
[6]DPP v [Harlen] (Ruling No 2) (County Court of Victoria, Judge Doyle, 27 March 2023) (the ‘Tendency Ruling’).
[7]The (further) amended tendency notice is dated 29 September 2023.
Also on 27 March 2023, a jury was empanelled and Ms Abbott commenced giving her evidence. The jury was discharged on 4 April 2023.
On 24 July 2023, newly appointed trial counsel for the applicant sought to challenge the Tendency Ruling in light of the decision of this Court in Morey (a pseudonym) v The King (‘Morey’).[8] On the same day the judge made a further ruling (the ‘Further Ruling’) that he did not propose to change the Tendency Ruling by reason of Morey.[9] He also granted certification in relation to his decision to admit the evidence as tendency evidence.[10]
[8][2023] VSCA 153.
[9]DPP v [Harlen] (County Court of Victoria, Judge Doyle, 25 July 2023) (the ‘Further Ruling’).
[10]DPP v [Harlen] (County Court of Victoria, Judge Doyle, 25 July 2023) (‘Ruling No 5’).
Ms Abbott was then cross‑examined further on 31 July 2023, and it appears that she is to be recalled for some further cross-examination.
The applicant now seeks leave to appeal the judge’s interlocutory decision to admit the tendency evidence. However, for the reasons that follow, leave to appeal will be refused.

Background

As indicated already, the charges brought against the applicant[11] arise from the breakdown of his relationship with Ms Abbott. That relationship commenced in late May 2020 and broke down in about September 2020 when Ms Abbott asked the applicant to leave her apartment.[12]
[11]Indictment 1A was applicable at the time of the Tendency Ruling. It contained the following charges: two charges of false imprisonment contrary to common law; one charge of stalking contrary to Crimes Act 1958, s 21A; two charges of causing injury recklessly contrary to Crimes Act 1958, s 18; three charges of common assault contrary to common law; one charge of contravention of order intending to cause harm or fear for safety contrary to Family Violence Protection Act 2008, s 123A(2); two charges of making a threat to kill contrary to Crimes Act 1958, s 20; two charges of causing injury intentionally contrary to Crimes Act 1958, s 18; two charges of rape contrary to Crimes Act 1958, s 38(1), as amended by Crimes Amendment (Sexual Offences) Act 2016; and one charge of persistent contravention of a family violence intervention order contrary to Family Violence Protection Act 2008, s 125A. It therefore appears that two charges have been excluded in the current Indictment 2A, being charge 8 (common assault) and charge 9 (making a threat to kill).
[12]Tendency Ruling, [2].
Both parties agreed that the judge provided an accurate summary of the respondent’s case in relation to these charges, as well as the relevant uncharged act as follows:
(a)Firstly, the September 2020 incident [being the uncharged act] involves the [applicant] questioning [Ms Abbott] about her sexual relations with another man and punching her, spitting on her, and pushing her head into a glass door.
(b)[Ms Abbott] says in her police statement she told the [applicant] it was over after this incident.
(c)Next, on 6 October 2020, the [applicant] attended [Ms Abbott’s] home. She did not allow him in but spoke to him in her car. He became aggressive and she tried to leave. He locked the car doors to prevent her leaving. When she did open the door, he pushed her, and she fell to the ground.
(d)On 8 October at 5.00am the [applicant] attended at [Ms Abbott’s] apartment and threw rocks at her window and then at 4.00pm he approached [Ms Abbott] who was in her car in the car park. She called the police and then, as she drove to the police station, the [applicant] swerved his car towards hers forcing her to take evasive action.
(e)On 10 October after the [applicant] attended at [Ms Abbott’s] apartment and was refused entry, he followed [Ms Abbott] as she walked to a supermarket, attempting to snatch her keys. He took her phone and keys and cut her hand in the process.
(f)On 14 October the [applicant] attended [Ms Abbott’s] apartment, and she agreed to talk to him in the car. He became physically aggressive and punched her, slapped her, and spat on her. The [applicant] refused to let [Ms Abbott] out of the car and made her drive around for hours.
(g)On 17 October he again attended [Ms Abbott’s] apartment. She let him inside, and he became aggressive, spat on her, and threw things at her. He agreed to leave, but made [Ms Abbott] drive him back to his car. He threatened to kill her, and he assaulted her.
(h)On 18 October the [applicant] asked [Ms Abbott] to come over to his mother’s house for a pizza. She did this. They drove together to get a pizza, and the [applicant] assaulted [Ms Abbott], causing injuries. The [applicant] then persuaded [Ms Abbott] to drive him to his car, and as they were driving, he questioned her about her relationships with other men. He then drove back to his mother’s address and after calling [Ms Abbott] a slut and a whore, he said he was going to treat her like one. He told [Ms Abbott] to "suck my dick, you slut". He held a gas jet lighter up and threatened to burn [Ms Abbott] if she did not comply. He then dragged [Ms Abbott] from the car to a downstairs bathroom at his mother’s place. He took possession of a knife and made her perform oral sex on him. He made a video of this incident on his phone camera. He then drove around with [Ms Abbott] in the car for over several hours assaulting her and causing injury.[13]
[13]Ibid [16].
The offences are denied by the applicant.[14] The applicant also says that any sexual relations were at all times ‘wholly consensual.’
[14]Ibid [8].

Tendency notice

By way of the Notice, the respondent sought to rely upon the tendency of the applicant to:
2.1. Have a particular state of mind, namely:
2.1.1.a willingness to engage in verbally violent behaviour, in both written and verbal form, towards his previous intimate partner, [Julie Higgins], and
2.1.2.a willingness to engage in verbally violent behaviour in written form and being verbally aggressive, towards his current intimate partner, the complainant, [Stephanie Abbott], and
2.1.3.a willingness to engage in physically violent behaviour towards his previous intimate partner, [Julie Higgins], and
2.1.4.a willingness to engage in physically violent behaviour towards his current intimate partner, the complainant, [Stephanie Abbott].
2.2. Act in a particular way, namely:
2.2.1.to persistently exercise verbal violence upon his previous intimate partner via text messages and being verbally demanding, [Julie Higgins], as a means of control over her; and
2.2.2.to persistently exercise verbal violence upon his current intimate partner, the complainant, [Stephanie Abbott], as a means of control over her; [and]
2.2.3.to persistently exercise physical violence upon his previous intimate partner, [Julie Higgins], and
2.2.4.to persistently exercise physical violence upon his intimate partner, the complainant, [Stephanie Abbott], as a means of control over her.
That tendency was said to relate to ‘whether the conduct the subject of the Charges occurred’. The tendency was relied upon in support of all charges ‘as making more likely the facts founding all the charges’ on the relevant indictment.
The evidence relied on to establish the alleged tendency is set out in a table forming part of the Notice.
Insofar as the Notice relates to different incidents concerning Ms Abbott, it includes the one uncharged act of assault in September 2020,[15] as well as the facts alleged to constitute the charges.
[15]Summarised at [10] above.
Insofar as the table concerns Ms Higgins, the relationship between her and the applicant was a five-year relationship, which ended in mid-2018.[16] The respondent’s case is that the applicant struggled to accept the separation.
[16]Tendency Ruling, [12].
In relation to Ms Higgins, the relevant two categories of evidence[17] relate to matters to which the applicant pleaded guilty (through his solicitor) at the Moorabbin Magistrates’ Court on 20 August 2019. The applicant completed the prison sentence he received for these offences in December 2019, some four to five months before the relationship with Ms Abbott commenced.[18] The respondent does not intend to call Ms Higgins at the trial, but instead proposes to lead evidence by relying on an outline of evidence from the informant based on the applicant’s guilty plea.[19]
[17]There are only two categories of evidence remaining consequent on Ruling No 1, cited above at [4].
[18]Tendency Ruling, [10].
[19]Ibid [11].
The first category of evidence concerning Ms Higgins relates to a charge of stalking from November 2018. The stalking is constituted by the sending of multiple highly abusive, threatening text messages to Ms Higgins, for example:
‘Send me a photo before I kill u.’
‘You don’t understand how this is going to end for u ..and what amazes me is u know what I will do to you ..but u still act like the smart slut you are.’
‘I will shoot you with a gun before you even manage to call the Police’
‘I am your master, that’s who. I own your pussy and you know it, you know I have control over you because you allowed urself to get videos and pictures taken of you spreading your legs and getting fucked by me and because of the lack of respect ur showing me, I might have to show u who’
‘Keep ignoring me u bitch nd we will see, I can say whatever the fuck I want to u and u have to accept it because I own u you fuckable face’
‘The amount of things I have on u, I hold all the power, Yeh that’s why I am ur master’
‘Do you want another bashing?? U get smart and act like I won’t do it u goose, I’m just going to turn on u do u understand u moron?’
‘and what happens to a dog that challenges its masters authority? It gets beaten..especially when the dog is owned’
‘Listen u fucken smart cunt, This is exactly what I mean…U don’t call the fucking shots do u understand? I do, I’m the cunt that owns u’
‘Listen, I’m sorry but we both know that I am your master and I own you with all that I have and know about you… I have a lot of power over you which you know I do and can destroy your world if I choose to, It’s a fact, Don’t call my bluff because u know what happens.’
The second category of evidence covers an incident just before Ms Higgins went to the police, in January 2019. The applicant waited for Ms Higgins at her car, and demanded she talk to him. She tried to leave, and he kicked her car, damaging it. She drove away and he followed. She went to her mother’s place. The applicant waited outside in the car. Ms Higgins waited six hours before driving to the police station, with the applicant following. She ran into the police station, with the applicant yelling at her that if she went to the police station, he was going to kill her and her mother.[20]
[20]Ibid [14].

Preliminary issue

By way of a supplementary written case, the applicant sought leave to add a ‘further particular’ as follows:
The learned judge erred in failing to find that the evidence in the document ‘Outline of Tendency Evidence Intended To Be Led Before The Jury Through The Informant’ relating to [Ms Higgins] is inadmissible.
The applicant submitted that leading the evidence relating to Ms Higgins through the informant would disclose prior convictions, and was contrary to s 91 of the Evidence Act 2008 (the ‘Act’) (which it seemed to be said made evidence of what happened on the plea inadmissible).[21] He also submitted that his plea was only an admission as to the essential elements of the offence, and that leading the evidence in the way proposed would provide the utterances in the text messages to the jury without the relevant context.
[21]As we understand it, the respondent is not seeking to adduce evidence of a ‘decision, or of a finding of fact, in [a] … proceeding’ based on s 91. Rather, the respondent is seeking to adduce evidence of an admission. Although by the bare plea, the applicant is taken to have admitted guilt of the charge, and nothing more, any dispute as to facts beyond the essential ingredients admitted by the plea is resolved by the application of ordinary principles that apply in criminal cases: Giri v The Queen [2022] VSCA 64, [21] (Priest and Beach JJA).
The judge did make a ruling[22] in relation to the scope of the applicant’s earlier plea. In that ruling, he upheld a submission that the guilty plea to an amended stalking charge (covering the period from November 2018) did not encompass a plea to an assault charge which had occurred outside this time frame (in June 2018).[23] Although newly appointed counsel appears to have subsequently raised s 91 with the judge, he is now seeking to widen the scope of submissions he previously made.
[22]Ruling No 1.
[23]This conduct was the subject of a category of evidence pertaining to Ms Higgins in the Notice which is no longer in issue.
Leave to amend will not be granted in these circumstances. First, although the proposed amendment seeks to add a further ‘particular’ of challenge to the (certified) Tendency Ruling, in fact it raises an entirely different issue of admissibility on which the judge was not asked to rule. As such, there is no foundation for an interlocutory appeal on the point. Secondly, there is as a result no certification of any ruling (nor any refusal to certify) concerning the scope of the guilty plea. In the absence of such certification or refusal, the applicant is simply not entitled to seek leave to appeal.[24]
[24]Criminal Procedure Act 2009, s 295(3).
Tendency Ruling
After citing the submissions of the parties, the judge carefully set out the relevant provisions, as well as extracting case law including Hughes v The Queen (‘Hughes’),[25] Dempsey v The Queen[26] and Henderson (a pseudonym) v The Queen (‘Henderson’).[27] In particular, the judge observed that the tendency alleged in this case was broad, and of a similar nature to the tendency evidence relied on in Henderson — which was held to be inadmissible. However, in this case there was the additional feature that the physical and verbal violence was said to be used as a means of control.[28] The judge noted that a similar category of tendency evidence was found to be admissible in the decision of the New South Wales Court of Criminal Appeal in Taylor v The Queen (‘Taylor’).[29]
[25](2017) 263 CLR 338; [2017] HCA 20.
[26][2019] VSCA 224.
[27][2017] VSCA 237; Tendency Ruling, [23]–[30].
[28]Tendency Ruling, [31].
[29][2020] NSWCCA 355; Ibid [32].
In turning to the facts of this case, the judge considered that, first, the tendency evidence is relevant to a fact in issue, namely, whether the alleged offences took place. Secondly, he considered that the evidence strongly supported the proof of the asserted tendency, notwithstanding that the tendency is somewhat broad.[30] In the judge’s view, the alleged incidents cited in the Notice strongly support the applicant’s tendency to be verbally violent towards intimate partners, including by text message, at the end of relationships and that the applicant was, by this conduct, attempting to exercise control over his intimate partners. The judge considered that the tendency ‘emerges clearly’ from the text messages sent to Ms Higgins, coupled with the incident on 31 January 2019 when the applicant followed Ms Higgins to a police station and issued threats against her.[31]
[30]Tendency Ruling, [33]–[34].
[31]Ibid [35].

The judge considered that the alleged offending against Ms Abbott, also occurring at the end of a relationship, exhibited similar features, including verbal violence in an effort to control Ms Abbott when she wanted to end the relationship. The judge considered that the temporal proximity of the relationships strengthened the respondent’s submissions that the applicant had the asserted tendency at the time of the charged acts and that the tendency was a continuing one. There were common features and factual similarities across the tendency evidence relied on that underpinned the significant probative value of the evidence.[32]
[32]Ibid [36].
In the judge’s view, any differences in the two relationships did not detract in a significant way from the asserted tendency. He noted that the allegations in respect of the false imprisonment (charge 1) featured verbal and physical violence in the context of the end of a relationship, with the applicant allegedly telling Ms Abbott that he was suicidal.[33]
[33]Ibid [37].
The judge found that the existence of the tendency to use physical and verbal violence as a means of control was ‘significantly probative’ of whether the alleged acts occurred.[34]
[34]Ibid [38].
He observed that the charge of stalking (charge 2) included an allegation that the applicant cut Ms Abbott off as she drove to the police station, which was not dissimilar to the conduct alleged by Ms Higgins whereby the applicant followed her to the police station and threatened her. The judge considered that the conduct was indicative of an effort to control the end of the relationship, and the asserted tendency was significantly probative of whether the facts alleged took place.[35]
[35]Ibid [39].
The judge noted that the charges of causing injury recklessly and assault (charges 3 and 4) involved allegations that the applicant followed Ms Abbott and tried to take her keys and phones from her, indicative of controlling behaviour. The judge considered that the charges of assault and false imprisonment (charges 6 and 7) involved allegations that are a continuation of the ‘same pattern of behaviour where … the asserted tendency provides strong support and has significant probative value in respect of the disputed fact’ (ie whether the alleged events took place).[36]
[36]Ibid [40].
The judge further considered that Charges 8–11[37] indicated a continuation of violent and threatening behaviour. The alleged events giving rise to the remaining charges[38] also involved violence and threats, in an attempt to establish dominance over Ms Abbott.[39]
[37]Charges 8–11 were one charge of common assault contrary to the common law; one charge of making a threat to kill; one charge of causing injury intentionally and one charge of causing injury recklessly.
[38]The judge cites charges 12–18, but appears to have intended to refer to charges 12–16. Charges 12–16 were two charges of rape, one charge of making a threat to kill, one charge of causing injury intentionally and one charge of persistent contravention of a family violence intervention order.
[39]Tendency Ruling, [41].
The judge gave particular consideration to the rape charges, which he considered could be viewed as ‘qualitatively different’ to the other charges. However, the proof that Ms Abbott was not consenting was based on a threat with a weapon in each instance, and other acts in line with the asserted tendency. He was again satisfied that the tendency relied on was significantly probative of the facts in issue (ie whether the events took place).[40]
[40]Ibid [42].
In relation to the issue of prejudice, the judge did not view the absence of Ms Higgins as a forensic prejudice to the applicant. Were Ms Higgins to be called, cross‑examination designed to contextualise the relationship would be unlikely to improve the applicant’s position in respect of those incidents and ‘may well be highly detrimental’. While the judge accepted that the jury was likely to have an emotional reaction to the text messages, and perhaps to the January 2019 incident involving Ms Higgins, those offences were ‘not as grave or shocking’ as the evidence that would be led in respect of Ms Abbott’s allegations.[41]
[41]Ibid [42]–[43].
The judge considered that a strong direction about the use of tendency evidence and a warning about impermissible reasoning and emotional reactions would mitigate any risk of prejudice.[42]
[42]Ibid [44].
Thus, the judge was satisfied that the significant probative value of the evidence substantially outweighed its prejudicial effect, with one qualification. This was that he considered that not all of the text messages should be led in the trial, as some of them carried a risk that they might be given disproportionate weight by the jury, particularly in relation to the charges of rape. He therefore proposed to hear submissions as to which of the text messages ought to be led at trial.[43]
[43]Ibid [45].

Further Ruling

As mentioned earlier, the judge reconsidered his earlier ruling in light of the decision of this Court in Morey.
Morey also concerned an intimate relationship between an accused and a complainant. That applicant was charged with a number of offences, including causing injury intentionally, rape, common assault and making a threat to kill. The prosecution sought to adduce evidence of a tendency of the applicant to assault and/or threaten to assault or kill the complainant or members of her family in order to compel her to comply with his demands. The judge granted the prosecution’s application to admit and use the items in the tendency notice as tendency evidence (except for one item).[44]
[44]Morey [2023] VSCA 153, [32], [45] (Beach, T Forrest and Kaye JJA).
In allowing the appeal, this Court concluded that the purported tendency had no probative value and that any probative value was substantially outweighed by the prejudicial effect. The items of evidence which the prosecution were permitted to rely upon ‘barely established’ the tendency. Further, none of the relevant charges involved any threat by the applicant that the complainant comply with his requirements. In particular, the complainant’s evidence in respect of the rape charges was that the applicant had physically overcome her. There was no suggestion that he had induced her consent by threat, or that she complied with demands ‘out of [a] well-founded fear of the [applicant]’. It followed that the purported tendency evidence had no probative value at all.[45]
[45]Ibid [47]–[50].
In the present case, the judge distinguished Morey. He identified that the tendency relied on in this case is (unlike in Morey) to actually use verbal and physical violence against intimate partners as a means of control. He held that this tendency was significantly probative of whether the disputed threats alleged were made. The judge made specific reference to the rape charges where a fact in dispute is ‘whether there were any threats as alleged, whether a jetty lighter was produced as alleged and whether a knife was produced …’ He therefore did not change the Tendency Ruling in light of Morey.[46]
[46]Further Ruling.

Proposed grounds of appeal

The notice of application for leave to appeal advances one proposed ground of appeal:
The judge erred in ruling the tendency evidence as disclosed in the Notice was admissible.
The following particulars are also provided:
Particulars
The judge erred in finding that the evidence identified in the Notice supported the asserted tendency or a relevant tendency.
The judge erred in failing to find that the tendency was a general one of bad character.
The judge erred in finding that the tendency evidence was significantly probative of offending on the indictment.
The judge erred in finding that the tendency evidence was significantly probative of the rape offences on the indictment.
The judge erred in finding that the tendency evidence showed that the applicant had a particular state of mind that was significantly probative of the commission of the offences on the indictment.
The judge erred in finding that the tendency evidence showed that the applicant had a particular state of mind that was significantly probative of the commission of the rapes on the indictment.
The judge erred in finding the evidence identified in the Notice as not unfairly prejudicial.
The judge erred in finding the evidence identified in the Notice as not unfairly prejudicial to the rapes in particular.
The judge erred in assessing the magnitude of the unfair prejudice.
The judge erred in finding the unfair prejudice could be cured by direction.
The judge erred in finding the probative value of the evidence substantially outweighed its prejudicial effect.

Submissions in this Court

Applicant’s submissions

The applicant objected to the use of tendency reasoning per se, and was not seeking to exclude otherwise relevant admissible evidence.
In relation to the evidence concerning Ms Higgins, the applicant made two preliminary points:
(a)that a tendency to engage in conduct towards Ms Higgins was irrelevant to any fact in issue as Ms Higgins was not a complainant in the present case. Although any evidence relevant to Ms Higgins could be the basis of some other more general tendency, that was not how the Notice had been drafted; and
(b)that, given the way evidence will be led in respect of Ms Higgins, the only way to provide context for the jury will be for the applicant to give evidence. In particular, he claimed that, at the time of the applicant’s relationship with Ms Higgins, she was married with children and fearing disclosure, which put the text messages asserting ownership and control of Ms Higgins ‘in a different light’.
The applicant also submitted that the evidence did not support the alleged tendency. He highlighted that a critical element of the tendency alleged in the Notice was that the applicant’s conduct as alleged was engaged in ‘as a means of control’ of the complainant. He contended that without this element, the alleged tendency suffered from the defect identified by this Court in Henderson by being ‘no more or less than what might be described as the tendency of abusers in [domestic] relationships to engage in … abusive behaviour towards their partners’. In particular, the applicant submitted that the evidence regarding the uncharged act did not involve any attempt at control, or even a threat to control. It was also difficult to characterise the purpose of the text messages as an attempt to control Ms Higgins in a way other than perhaps to persuade her to respond.
The applicant further contended that the judge did not identify with any relevant particularity what the ‘control’ entailed and conflated all the evidence, making ‘conclusionary statements’.
It was also submitted that the tendency evidence was not significantly probative. The applicant conceded that the evidence of threats was logically relevant to facts in issue on a very broad indictment which includes threat charges, but submitted that it did not have significant probative value. In particular he highlighted that the tendency was broad and submitted that it was to exactly the same effect as that in Morey.
The applicant made particular reference to the different context of the rape charges, highlighting that there was no other physical threat prior to the rapes. The Higgins evidence was also largely of threats simpliciter made over a carriage service. Mere threats with no associated physical violence could not be of significant probative value on the charges of rape in this case. Rather, the conduct alleged appeared to be constituted by ‘random acts of violence’. Not all involved threats and not all threats led to any identified result. The applicant suggested that none of the non-rape charges involved any evidence of ‘control’.
The applicant also submitted that the tendency evidence had no, or minimal, probative value as Ms Abbott will give direct evidence of the charged acts anyway. If permitted, the tendency evidence could only be used as circumstantial evidence as to her credit, and will ultimately have little work to do.
Finally, the applicant submitted that any probative value of the evidence did not substantially outweigh its prejudicial effect. The applicant contended that the prejudice is ‘significant’ for the following reasons:
(a)it casts the applicant unfairly as someone who ‘hates women and takes particular delight in verbally and physically abusing them’;
(b)some of the conduct is extreme and ‘borders on the irrational’ inviting speculation by the jury;
(c)the response of the jury is likely to be ‘emotional and subconscious’ and therefore unlikely to be cured by direction;
(d)the single uncharged act occurs in a ‘sea of uncharged act[s]’ which will ‘inevitably invite speculation by the jury and require complex directions which are unlikely to be adhered to’;
(e)the judge recognises that the text messages required editing; and
(f)it is accepted by the respondent that removing the tendency would substantially weaken the respondent’s case. If the applicant’s assessment of low probative value is correct, the weakening of the respondent’s case can only be because of a loss of the substantial prejudice.
In oral submissions, counsel focused on the evidence concerning Ms Higgins. He reiterated his issue with the formulation of the Notice in relation to Ms Higgins and also submitted that the text messages were not relevant to the charged acts, particularly the rape charges, because the messages did not involve physical violence.
The applicant further emphasised that, although the respondent had sought to distinguish the Notice from that in Henderson on the basis of control, the control concept was too vague. In particular, insofar as the evidence regarding Ms Higgins was concerned, there was no control demonstrated in a way relevant to the rape charges.

Respondent’s submissions

The respondent submitted that it was reasonably open for the judge to rule the tendency evidence to be admissible.
The uncharged act of September 2020 was said to mark the ‘end of the relationship’ between the applicant and Ms Abbott. It also had the capacity to explain why Ms Abbott yielded to the acts of rape later committed against her.
The form of the Notice was also said to be different to that in Henderson as it was more specific. The uncharged act also occurred within a short timeline, as opposed to the five year ‘on and off again’ time period applicable in Henderson.
The respondent submitted that in cases such as the present, where the fact in issue is whether the offence occurred (and not identity), it is not necessary for the conduct to have unusual or closely similar features for it to possess significant probative value. However, there was strong support for the applicant having the tendency specified in the Notice given that:
(a)[Ms Higgins] and [Ms Abbott] are both females who were in an intimate relationship with the applicant at the relevant time;
(b)The applicant used aggressive behaviour made up of physical violence, criminal damage and threats;
(c) The threats were to each woman and their respective families;
(d)The attacks on each woman take place in an effort by the applicant to control those women at the end of the respective relationships;
(e)The attacks involve verbally and physically attacking each woman in situ and each woman in their vehicles;
(f)The attacks were a means of controlling each woman and to force them to submit to the applicant’s demands; [and]
(g)The conduct occurs between November 2018 to January 2019 (Ms [Higgins]) and May 2020 to October 2020 (Ms [Abbott]) which is within a short period of time ([having regard also to the applicant’s incarceration]).
The respondent submitted that each assault took place after the applicant became enraged with his intimate partner’s lack of compliance with his demands at the end of the relationship. They were ‘opportunistic/spontaneous’ in nature.
Finally, while the respondent conceded that the tendency evidence was inherently prejudicial, its probative value substantially outweighed any unfair prejudicial effect that it may have on the applicant. Any unfair prejudice could be cured by directions to the jury and it should be assumed that the jury would comply with any directions given.
In oral submissions senior counsel emphasised that decisions on tendency, including Henderson, turned on their own facts.
He also highlighted the fluid nature of the proceedings, which were still to unfold. For example, he submitted that the respondent may want to rely on evidence admitted as tendency evidence to rebut a suggestion that Ms Abbott was exaggerating the extent of other uncharged acts. Such acts had been admitted into evidence as context evidence and had been the subject of extensive cross-examination.
Senior counsel reiterated that not all the applicant’s text messages to Ms Higgins would be admitted into evidence, as this matter remained to be ruled upon by the judge. In particular the respondent would not seek to rely on the message: ‘I have u get raped, Hope.’

Legal framework

Section 97(1) of the Act reads as follows:
97 The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
…
In a criminal proceeding, it is not sufficient that the tendency evidence is of significant probative value. Pursuant to s 101 of the Act, the probative value of the evidence must also substantially outweigh any prejudicial effect that it may have on the accused:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)Tendency evidence about an accused, … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
…
In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ enunciated the two-step test to be applied in determining whether evidence is of ‘significant probative value’:
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 … 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.[47]
[47](2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20, cited in Klein (a pseudonym) v The King [2022] VSCA 249, [85] (Priest AP, Beach and T Forrest JJA). See also McPhillamy v The Queen (2018) 361 ALR 13, 19 [26] (Kiefel CJ, Bell, Keane and Nettle JJ), 20–1 [33] (Edelman J); [2018] HCA 52; TL v The King (2022) 275 CLR 83, 95–6 [28]–[29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.

In Townsend (a pseudonym) v The King, this Court (Kyrou, Kennedy and Kaye JJA) said of the admissibility of tendency evidence:
In order to determine whether the evidence, on each of the charges in this case, is admissible as tendency evidence in respect of the other charges, it is necessary to address four fundamental questions, namely:
(1)Whether the evidence, in respect of a particular charge, supports the particular tendency that is sought to be relied on;
(2)Whether that tendency has a probative value in respect of the offence that is the subject of one of the other charges; that is, whether the proposed tendency evidence is capable of rationally affecting the assessment, by the jury, of the probability of a particular fact in issue on one or more of the other charges;
(3)Whether, as such, the tendency evidence sought to be relied on has significant probative value in respect of that fact in issue; [and]
(4)Whether the probative value of that tendency evidence would substantially outweigh any prejudicial effect it may have on the accused person.[48]
[48][2022] VSCA 201, [21] (citations omitted).
Interlocutory appeals about the admissibility of evidence, including the admissibility of tendency evidence, are governed by the principles in House v The King.[49] The applicant was therefore required to demonstrate that the judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration. Alternatively, even if it may not appear how the judge has reached the result, if it can be demonstrated that the decision is ‘unreasonable or plainly unjust’, an appellate court may infer that there has been a failure properly to exercise the discretion.[50]
[49]KJM v The Queen (No 2) (2011) 33 VR 11, 12–13 [9]–[14] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268; Tuite v The Queen (2015) 49 VR 196, 199 [8] (Maxwell ACJ, Redlich and Weinberg JJA); [2015] VSCA 148. See also Ebrahimi (a pseudonym) v The Queen [2022] VSCA 65, [21]–[23] (Maxwell P, Sifris and Macaulay JJA); Matthews (a pseudonym) v The King [2023] VSCA 229, [56]. While the applicant initially disputed whether the appeal is ‘governed solely’ by the House v The King principles, he ultimately conceded that he is ‘happy to proceed on the basis that the application of the facts and circumstances to the correctly identified legal test in this case is discretionary and to be assessed according to the principles in House v The King’. See generally, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, [15]–[16] (Kiefel CJ, Gageler and Jagot JJ).
[50]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
However, for reasons that follow, we are satisfied that in this case the judge’s decision was not only reasonably open, but also correct.

Consideration

A number of matters may be dealt with at the outset.
First, insofar as the applicant criticised the form of the Notice, there may be merit in the submission that a tendency confined to Ms Higgins would not be probative of the charges in respect of Ms Abbott. However, the table attached to the Notice makes it clear that the features of the evidence relied upon concern violence towards ‘intimate partners’. The Notice should be read as relying on a tendency towards intimate partners (including former intimate partners).
There is also limited utility in extensive reference to other cases, because a consideration of the admissibility of tendency evidence is ‘fact specific’.[51] Insofar as Henderson is concerned, this Court briefly cited,[52] inter alia, the decision of the High Court in Hughes, as well as the decision of this Court in Bauer v The Queen (No 2)[53] (which was subsequently set aside by the High Court).[54] The Court then rejected the tendency evidence given the wide terms of the alleged tendency relied upon in that particular case.[55] In so doing, it left open the possibility of a revised notice.[56]
[51]Taylor [2020] NSWCCA 355, [146] (Beech-Jones J).
[52][2017] VSCA 237, [55].
[53][2017] VSCA 176.
[54]R v Bauer (2018) 266 CLR 56; [2018] HCA 40.
[55]Henderson [2017] VSCA 237, [56]–[59]. The tendency notice cited general mistreatment and abuse of the complainant: see [9].
[56]Ibid [60]–[62].
We therefore do not read the Henderson decision as identifying some new or different principle governing tendency evidence in the context of a (failed) domestic relationship. This is consistent with the New South Wales case of Taylor where tendency evidence was admitted in such a context.[57] Rather, the decision of Henderson turns on its own facts and is immediately distinguishable from the present case in at least three ways. First, as highlighted by the judge, the Notice in this case (unlike that in Henderson) expressly includes reference to the use of violence ‘as a means of control.’ Secondly, the respondent relies on acts taking place in the particular context of a breakdown of the applicant’s relationship with each former partner. Finally, the conduct relied upon is discrete and proximate in time to the charged offending.[58] This may be compared with Henderson, where the prosecution relied on a 22 page statement of extensive allegations, some of which predated the alleged offending by five years.
[57]Taylor [2020] NSWCCA 355. Beech-Jones J, Walton J agreeing at [136], identified the alleged tendency in Taylor as being ‘to be violent and threatening towards women with whom he had an intimate relationship’: [145]. He also considered that that form of tendency was manifest when the relationship breaks down or came under stress: [145], [154].
[58]November 2018–January 2019 (Ms Higgins) and September–October 2020 (Ms Abbott).
Turning then to the application of the principles to this case, it is convenient to deal with the tendency evidence in categories, namely: that relating to the charged acts; the uncharged act; and as pertaining to Ms Higgins.
First, then, although the applicant did not abandon his application insofar as it concerned the admission of the charged acts as tendency evidence, it was not strongly pressed. This was an appropriate stance to take where the findings of the judge were not only well open, but correct.
Thus, the evidence of each charge clearly supported the tendency alleged. The conduct the subject of each charge involves verbal or physical violence undertaken in an effort to control Ms Abbott at the end of her relationship with the applicant during October 2020. We do not consider that the concept of ‘control’ lacks substance in this context where the conduct evinced a tendency to become threatening or violent so as to regain control during a relationship breakdown. The evidence was not just relevant (which was not challenged),[59] but had a significant value in making more likely the facts making up the other charged offences.
[59]Tendency Ruling, [33].
Although, as the judge observed, the rapes were in a different category, a key issue was whether the relevant acts were consensual, or whether, as Ms Abbott says, threats were made using a kitchen knife and gas jet lighter. The applicant’s tendency to engage in verbal and physical violence so as to exercise control (in the non-rape charges) was clearly relevant to whether he might have also sought to manifest physical control, as alleged by the rape charges. His willingness to engage in such verbal and physical violence in the past was also highly relevant to whether he reasonably believed there was consent on the part of Ms Abbott. Finally, the judge’s finding that the probative value substantially outweighed the prejudicial effect was correct for the reasons he gave. Given that the evidence of the charged acts is to be admitted in any event, the possibility that the jury would engage in mere propensity reasoning can adequately be addressed by the directions foreshadowed by the judge.
There is a further reason to refuse leave in respect of the tendency evidence as to the charged acts. In this particular case the judge’s Tendency Ruling has been overtaken by a number of matters, including the retention of a new barrister, a substituted indictment and, importantly, the taking of further evidence from Ms Abbott about the charged acts. We do not consider that it is in the ‘interests of justice’[60] to give leave to appeal in these circumstances. The judge’s ruling regarding the charged acts, which is about the availability of tendency reasoning and not any issue of admissibility, may need to be revisited before the end of the case in light of all the evidence, including that of Ms Abbott. The view of this Court about the judge’s Tendency Ruling will also not render the trial unnecessary;[61] substantially reduce the time for trial;[62] or resolve an issue necessary for the actual conduct of the trial.[63]
[60]Criminal Procedure Act 2009, s 297(1).
[61]Ibid s 297(1)(b)(i).
[62]Ibid s 297(1)(b)(ii).
[63]Ibid s 297(1)(b)(iii).
The other considerations we have identified dictate that there should also be no leave to appeal in respect of the evidence as to the single uncharged act alleged in respect of Ms Abbott. In circumstances where the alleged acts of violence occurred in a context where the relationship was breaking down and the applicant was (jealously) questioning Ms Abbott about her sexual relations with another man, the judge was also correct to make the findings that he did. The evidence clearly supported the tendency (to engage in physical violence as a means of control) and supported the proof of the other charges.
This leaves the two categories of evidence concerning Ms Higgins.
In terms of the text messages, it is not appropriate for this Court to interfere in circumstances where the judge has indicated that he is yet to make a final decision about which text messages will be adduced. For this reason alone, it is not appropriate to grant leave to appeal in relation to the text messages.
In any event, we consider that the judge’s decision in this respect was also both open and correct. Although it is not a condition of admission that the tendency evidence have similarities with the conduct in issue,[64] similarities can still have significance provided they are addressed in the manner Hughes requires.[65] In this case, those similarities include that: both women were in an intimate relationship with the applicant which was breaking down; the applicant used aggressive behaviour in an effort to control each woman; and threats were made to each woman and/or her family.
[64]Hughes (2017) 263 CLR 338, 335–6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[65]Taylor [2020] NSWCCA 355, [152].
There is merit in the submission that the text messages do not, of themselves, support a tendency to ‘persistently exercise physical violence’ (as per 2.2.3 of the Notice). Consistent with this, the judge recorded that counsel had ‘retreated from’ that part of the Notice which asserted a tendency to engage in physical violence towards Ms Higgins and seemed to ‘resile’ from such a suggestion.[66] The judge will therefore need to consider whether the text messages will be relevant to the tendency identified in 2.2.3, in light of all the evidence, at the time of his charge.
[66]Tendency Ruling, [19].
However, even leaving aside the tendency specified in 2.2.3, there are a number of text messages, as cited above, which support a willingness to engage in verbal and physical violence, as well as an actual engagement in verbal violence as a means of control. This includes the text messages: ‘I hold all the power, Yeh that’s why I am ur master’; ‘U don’t call the fucking shots do u understand? I do, I’m the cunt that owns u’; ‘I am your master, that’s who. I own your pussy and you know it, you know I have control over you’; and the question: ‘Do you want another bashing??’ As the judge said, the text messages support a tendency to be ‘verbally violent towards intimate partners including by text at the end of the relationships and that he was, by this conduct attempting to exercise control over his intimate partners.’[67] We reject the applicant’s submission that the applicant was simply ‘wanting a response’ or merely desired ‘to have a conversation.’
[67]Ibid [35].
This tendency to be verbally violent at the end of relationships is also significantly probative of whether the applicant was likely to act in a controlling way with Ms Abbott in the context of a relationship breakdown. This extends to the rape charges where a key issue is whether the sexual penetration was consensual. The verbal violence in the text messages (which showed an attempt to exercise control) had significant probative value in relation to the critical issue of whether the applicant actually made the threats alleged in connection with the rapes so as to exert control. In addition, the use of such verbal violence to gain control, and the willingness of the applicant to do so, was highly probative of whether the applicant had a reasonable belief in Ms Abbott’s consent to sexual penetration.
We accept that the issue of prejudice was properly raised (as the judge correctly acknowledged), and that directions will need to be given to manage any unfairly prejudicial response to these messages. However, given that the judge has not yet ruled as to the precise scope of the text messages to be adduced, no error can be established in that regard.
Insofar as the Higgins evidence related to the January 2019 incident, the evidence clearly supports a tendency to exercise verbal violence (given the threats to kill) as well as a willingness to engage in physically violent behaviour (given the damage to the car), as a means of control. For reasons already explained, we consider that such evidence was highly probative of whether the conduct constituting the charges took place, including the rapes (which involve verbal as well as physical violence). The judge carefully considered the question of prejudice and found that cross-examination to contextualise the relationship would be unlikely to improve the applicant’s position. He also considered that appropriate directions could be given. His approach in this respect was unimpeachable.

Conclusion

For the reasons given above, the following orders will be made:
(a)Leave is refused to amend the notice of application for leave to appeal.
(b)The application for leave to appeal is refused.
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[2023] VSCA 269

9 November 2023