R v Da Silva

[2016] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation:	R v Da Silva [2016] NSWSC 563
Hearing dates:	2 May 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Before:	Harrison J
Decision:	Tendency evidence allowed
Catchwords:	EVIDENCE – tendency evidence – murder – death of domestic partner of accused – circumstantial case – evidence of accused’s alleged tendency to treat former domestic partners in a violent, obsessive and controlling manner – whether significant probative value – whether probative value of evidence substantially outweighs possible prejudicial effect upon accused
Legislation Cited:	Evidence Act 1995
Cases Cited:	Aravena v R [2015] NSWCCA 288
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ricardo Francis Herman Da Silva (Accused)
Representation:	Counsel: L Carr (Crown) A Moen (Accused)   Solicitors: Director of Public Prosecutions (Crown) Fay Rose Legal (Accused)
File Number(s):	2013/361049
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Ricardo Da Silva is charged with the murder of his former partner Amanda Carter. Ms Carter was discovered in her bed on the morning of 16 May 2010 with fatal head and facial injuries caused by a series of blunt force blows with an unspecified object. It appears that she was killed where she lay.

2. Mr Da Silva and Ms Carter had been in a relationship since late in 2006, although there had been some periods of separation. They met through an online dating website. Their relationship was terminated for the last time on 14 February 2010. It is the Crown case that between then and the date of Ms Carter’s death, Mr Da Silva became increasingly agitated about the end of the relationship and that he killed Ms Carter in circumstances that were generated or influenced by his reaction to what had occurred.

3. In accordance with s 97(1) of the Evidence Act 1995, the Crown served a notice that it intended to adduce evidence of the character, reputation or conduct of Mr Da Silva, or of a tendency that he has or had, in order to prove his tendency to act in a particular way or to have a particular state of mind. The tendency sought to be proved was particularised as follows:

To be emotionally manipulative and violent towards women with whom he had a domestic relationship and to have a particular state of mind, namely a possessive and obsessive state of mind towards women with whom he was in a domestic relationship.

4. The substance of the tendency evidence which the Crown intended to adduce was contained in a series of statements attached to the notice. It was in summary evidence from Mr Da Silva’s former domestic partners who complained that they had been violently treated or emotionally manipulated by him during the course of their relationships, or from direct witnesses to that conduct exhibited by Mr Da Silva to these women in those circumstances. A brief summary of that evidence follows.

Linda Martin

5. Mr Da Silva was in a domestic relationship with Ms Martin for about 12 years. She met him in 1973 when she was 20 years old and they married in November 1974. The relationship lasted for 12 years. They had two children together. Ms Martin described the violence towards her as “pretty horrendous”. She left Mr Da Silva a number of times because of it. She said that Mr Da Silva struck her in the face shortly after she had had a baby. On another occasion he choked her in a van that they used to conduct their milk run. He also kicked her in the legs and kicked her cat to death. Ms Martin said that one minute Mr Da Silva would be fine but would suddenly change and get really angry over the slightest thing, screaming and throwing things around.

6. Ms Martin finally left Mr Da Silva. He was by that time having an affair with a woman called Beverley Davies, who Ms Martin understood was one of their milk run customers.

7. The following selected passages are extracted from Ms Martin’s statement attached to the tendency notice:

“Well, he’d always been very difficult. After, he was fine for years, then when I had Amanda he kind of went really strange and just, I remember when I brought her home from hospital he, he, when she was crying I went to go to her and he said, like, you know, Don’t, don’t bother with her, pay attention to me, or something weird like that, and from then on it was just really strange. Like, his, his, he just, moods. One minute he’d be fine and happy and planning all this stuff that we’re going to do and, you know, we’re going to do all these things and the next thing, he’d just be really angry over the slightest little thing and start, you know, screaming and throwing things around and got to the stage where he, one, the first time he, he hit me in the face and I was holding Amanda and that’s when I left him. I went to my friend’s but he came and found me. He’d always find me no matter where I went. And then it escalated. Like, he’d fly off the handle and start kicking me. And then the, like, that, I never fought back because I knew, the look on his face, it was just like he, it was somebody different. Like, he just changed. He just, a rage came over him and he would just change and so I would sort of always back into a corner or just, you know, never, never hit back or never say anything. I’d be sort of saying things to calm him down which sometimes it worked and then afterwards he’d say, Why did you, like, if I had bruises, Why, why did you make me do that, why did you, why did you make me do that to you, no, you know I love you and I don’t want to do that. And then it came to the, we had a milk run as well that we owned and it came to the crunch. Like, the slightest thing would set him off there. And at one stage in the milk run, in, in the van, he had me around the throat and he, and I can’t even remember what we were arguing about. It must’ve been something I said but I can’t remember, and he had me around the throat and he was just squeezing my throat and then I, I almost blacked out. I can remember thinking, I’ve got to get out of here ‘cause if I don’t, this is getting worse by the day, if I don’t I’ll die. That’s when I finally decided to, and then I thought for ages he would find me but I was really lucky that time. I just, but I think I know why he didn’t really pursue me and it was because he was having this relationship with this lady called Beverley and she was one of the milk run customers, and I can’t remember her surname but I do know that when I left he took Amanda and Tania to live there as well. And then it’s after when I got back with Amanda and Tania that Amanda said that they’d had, the woman said she was pregnant and they’d had this big fight and he hit her and, and then he said, Come, to the kids, Come on, we’re moving out. And I think that’s the only reason he left me alone was because he, he was with her. Then he’s moved on to the next person after that. I don’t know why but he didn’t find me this time and I got away.

Q    So are you able to expand on the incident that happened with the milk run?

A    I can’t remember what he was so riled up about that time but I know he just flew into a rage and he, he just, I think I might’ve fought back that time. Like, I think I may have thought, just pushed him or did, done something. I may have screamed at him. I can’t remember. I was so, I was tired because we’d been doing the milk run and I, I think I just probably might’ve screamed back at him and that’s when he did that, yeah, just grabbed me by the throat. All I can remember is sort of feeling, I wish he’d let go, I wish he’d let go, and then he did let go and I just remember feeling really sick in the stomach and really, but even then I didn’t report that.

Q    So you said before that you were the victim of numerous assaults over a period of time. What sort of assaults, or how would he physically assault you?

A    Kicking, punching. I can remember one, one thing, one where he kicked me. Once he, once he I was ironing and he pushed me up against the iron and I had a big burn on my hand, because I remember this Irish couple that he actually stayed with before he, I think while he’s waiting for his parents to come he stayed with this couple, Cathy and Patrick, I think their surname was Redikin, something like that, and he stayed there and I can remember I showed, Cathy said, What happened to your arm, and then I said, I think I might’ve said, I can’t remember if I said he’d done it or whether I just said, I think I might’ve told Cathy about the cat. I just remembered that. I think I might’ve told her about that.”

Jane Galuzzo

8. Ms Galuzzo is a long-time friend of Ms Martin. She observed Mr Da Silva’s treatment of Ms Martin during a period when Ms Galuzzo lived with them. Ms Martin confided in her about Mr Da Silva’s violent and abusive treatment. She observed bruises on her arms and legs. She observed that on one occasion Ms Martin had a black eye. Ms Galuzzo assisted Ms Martin to leave Mr Da Silva.

Tanya Davies

9. Ms Davies is the daughter of Beverley Davies, who died in November 2009. She recalled that her mother met Mr Da Silva approximately towards the end of 1986. She observed Mr Da Silva shoving her mother around, leaving bruising. He was very possessive. On one occasion one of Beverley Davies’ former partners came to the house. Mr Da Silva became agitated and punched the door frame. She also had a cockatoo. Mr Da Silva said, “You love that cockatoo more than me.” The bird went missing after that.

10. Mr Da Silva threw Beverley Davies against a refrigerator, punched her knocking out three of her front teeth and kept kicking her while she lay on the floor. She became pregnant and had an abortion. Mr Da Silva became angry saying, “You’ve murdered my child.” He kicked her in the stomach.

11. The following selected passages are extracted from Ms Davies’ statement:

“Q    Is there any other incident specifically you are able to recall?

A    Um, many, many um, one particular day I had a rash all over my body. I went to, I said to mum, ‘I’m going up to the doctor, I’ll be back’ and this particular day she was very uneasy, she just said, ‘Oh, yeah’ sort of, ‘Whatever, go’ and he was also very strange. I went up to the doctor and the next thing the receptionist said, ‘Tanya, there’s a telephone call’ and I thought, ‘For me, no one knows I’m at the doctor.’ I picked the phone up and all I could hear her doing was screaming, ‘Help’. I dropped the phone, the receptionist at the medical centre said, ‘Are you all right?’ And I said, ‘I’ve got to go.’ And when I got back there he had bashed the hell out of her. He um, had thrown her head against the refrigerator, knocked her front tooth out, just bruised her, every part of her body, she was on the floor screaming and he was still kicking her and I have never, see, I’d never witnessed anything like that before and I was, I didn’t know what to do, and I started to punch him in the stomach, not that I could do anything. I said, ‘You get out of this house’ I said, there was blood everywhere, I said, ‘Get out and don’t come back’. And the two girls Amanda and Tanya, they were screaming the place down. And my brother, I can’t remember where he was, whether he was there or not. Anyway, he started getting his things together, really huffy and puffy and he said, ‘You get out of my way’ and I said, ‘No, you get out of this house’ and she’s curled up in a ball and I said, ‘If you don’t get out I’ll ring the police’. And eventually he got the computer um, his clothes and he just threw it, he threw the girls in the back of the car and he drove a Commodore by memory at that time, it was a cream colour. And then after that he eventually did go. I got mum up off the floor where she was the whole time and cleaned her up and I said, ‘Now, we’ve got to tell the police’. ‘Oh, no, we can’t.’ I said, ‘You have to press charges, you cannot let him get away with this’. And she didn’t do it. We called the police but she wouldn’t press charges against him. Anyway, eventually she had to have um, the front tooth replaced, it was totally gone, it cost her a fortune. And then after that was pretty much when he started harassing her over the, she actually, I take that back, before all of that she, he started with phone calls or dropping in by memory. And then she got, what do they call them, the restraining orders, put out against him.

…

And it got to the point where, where we, our actual townhouse was, it was sort of down the bottom and up the top where you drive in he’d parked with his Commodore and he had a trailer as well, and he’d park across it that we couldn’t get out and one particular time, I think I was going out or I was going somewhere, he chased me and actually scared the living daylights out of me and lucky I knew the area and I went all the back streets to get away and I came home and I said, ‘Mum, he’s following me, I can’t go anywhere’ I said, ‘We’ve got to do something’ and that was when she came back to court about the restraining order. But nothing seemed to stop him, he just kept coming back for more. And one particular morning I woke up and I said to mum, ‘What’s that?’ She said, ‘I don’t know.’ She picked it up and it was a pair of his underpants, he left at the front door and he’d masturbated in them, and I said to mum, I said ‘You have to do something’ I said, ‘This is pathetic.’ And the phone calls kept coming and he just, he threatened her over the phone and say stupid things, like you know, ‘You’re not going to get away from me that easy’ and ‘I love you, I’m sorry for what I did and have me back’ and all those fancy words. But it was past that by that stage. And then eventually it would have been, ’78, ’89, it just stopped, I don’t know what happened um, he just stopped harassing her, it just came to a sudden halt. We didn’t know if the police had done something or no phone calls, no more letters, he used to write little love notes, ‘I’m sorry’ and you know, ‘Please forgive me’. If I’d kept the cards for you it would have helped. And then, yeah, it just stopped, and mum and I, pardon me, were in Kogarah and we saw him, I went, ‘Oh, no, there he is’ I said, ‘Don’t look, don’t look’ and he was actually with another woman. She had browny coloured hair and they were walking across, just up the road here where the TAFE is, just across the road, but he didn’t recognise us, so.”

Susan Noack

12. Ms Noack met Mr Da Silva on the RSVP website in about 2002. She purchased a house with him. He did not contribute to the repayment of the housing loan. She transferred her motor vehicle into Mr Da Silva’s name. The house was repossessed in 2005 and she became bankrupt.

13. Mr Da Silva was very controlling. He would hide her purse and keys if he did not want her to go out. On one occasion he pushed her to the floor and broke her shoulder. They were arguing because she wanted to open a window or a curtain. He pushed her head against a table and threw a stool at her. Ms Noack described herself as “just a slave” who did what he said. Ms Noack wrote a letter to Mr Da Silva’s workplace saying that if she was found dead, inquiries should be directed to him. After the relationship ended Ms Noack became depressed and alcoholic. She attempted suicide several times.

14. The following selected passages are extracted from Ms Noack’s statement:

“11.    Another time the police came, we were arguing over me wanting a window or a curtain open, something trivial. He pushed my head down and my head hit the corner of the breakfast table, he then threw a stool on top of me, it was because we were arguing and I was going to call the police, I was reaching for the phone. It was another time that he wouldn’t give me the car keys. The police came. I had a bruise on my arm. The police took photos of it. Richard was charged with common assault. Richard was taken to Toronto court and they took out an AVO. I wasn’t willing at the time but the police did it for me. The AVO said that Richard couldn’t come near me. All of this would be on record in court. They warned Richard not to come within William Street. He had the hide to ring me on his mobile from a taxi on the way back from lock up. He said, ‘I’m on my way back, no one is going to stop me coming back to my own home.’ I said, ‘Richard there is an AVO in place to stop you coming back.’ He said something like, ‘I’m coming back anyway.’ I rang the police, they told me they couldn’t come until he arrived. They said to hop into my car and wait in the street and once I saw the taxi to give them a ring. I saw the taxi pull up. He got out of the car and from what I now know he saw my little white Honda parked up the street. He got straight into his RAV 4. I was talking to the police on mobile phone. He reversed out of the driveway and pulled up beside me. I didn’t know what frame of mind he was in so I took off. He drove behind me flashing his lights. The policeman told me to keep driving slowly. Within ten minutes the police from Toronto arrived in the opposite direction. He was tailgating me at the time, flashing his lights. The police did a U-turn and Richard took off. But within a matter of minutes the police intercepted him. They said he wouldn’t turn off the engine and nearly ran one of them over. They pulled him out of the moving car and the car kept going and ran into a tree. That should be on the records. I can’t believe it affected me so much that I remember it almost word for word I was that scared.

12.    The second time the police came I said that I needed Richard at the house because the house was being repossessed. I needed the money from him so I asked him back. I had another fight with him and he kicked me in the shin really hard. The police said they were going to put him in gaol. Stupid me I protected him, I got into the court witness box and said that I’d provoked him. I said that I was drunk and might have tripped. The police took me to court and said I made a false report and I was taken to court for being a police nuisance. He really did kick me. I was brainwashed and under his control. I needed his money too, I just took the good behaviour bond for making false report. I lied in court about him not kicking me.

13.    There was one time that I believe I was knocked out for a period of time. He used to push me (indicating a motion with right and left arm raised, predominately using right hand, elbows close to body). He had a motion of pushing me into objects. He was a bad man. When he broke my shoulder it was a push. Being pushed off the chair, that was the common assault, I was pushed into a coffee table, but I didn’t mention that one to the police. I think the police came and he told them he was protecting himself.

14.    He had to control the bank account, he had to control everything.

15.    There was one other instance that really scarred (sic) the living daylights out of me. In the hallway of the house we were standing close he held his right fist up to me like this, and I’ll never forget it. He held his fist up like this (indicating right fist clenched with fingers towards Richards body/face near his chin, elbow in close to body, fist up near face). He said, ‘If you don’t shut up I will hit you so hard that you will never get up’. I thought he was going to punch me but he didn’t and I walked away. He had a look in his eyes and I know that he meant it.”

15. The Crown gave notice of other evidence that it proposed to adduce in support of the alleged tendency. It is not presently necessary to refer to that material.

Consideration

16. Section 97 of the Act provides 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.

(2)    Subsection (1) (a) does not apply if:

(a)    the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)    the evidence is adduced to explain or contradict tendency evidence adduced by another party.”

17. Ms Moen of counsel for Mr Da Silva conceded, uncontroversially in my view, that the evidence proposed to be adduced was probative of Mr Da Silva’s tendency to be violent. She maintained, however, that in the particular circumstances of this case the evidence did not have significant probative value and that in addition its probative value was substantially outweighed by the prejudicial effect it may have upon Mr Da Silva. That latter contention was a reference to the terms of s 101 of the Act that provides relevantly as follows:

“101 Further 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 a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3)    …”

“Significant probative value”

18. The inquiry is directed to whether the evidence sought to be adduced has the capacity rationally to affect the assessment of the probability of the existence of a fact in issue and to a significant degree. The assessment of probative value is in every case a matter of fact and degree and is influenced by the nature of the fact in issue sought to be proved or disproved. The focus is upon the fact in issue to which the evidence is said logically to relate. In assessing the probative value of the evidence, factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur.

19. The learned author of Uniform Evidence Law (11th Ed) at 477-479 has identified a series of factors referred to in the authorities that may assist in the assessment of the strength of the tendency inference:

• the number of occasions of particular conduct relied upon;

• the time gaps between them;

• the degree of specificity or generality of the conduct or tendency alleged;

• the degree of similarity between the conduct on the various occasions, including the conduct sought to be proved;

• the degree of similarity of the circumstances in which the conduct took place, particularly if it is possible to establish a pattern of behaviour;

• whether the tendency evidence is disputed;

• the issue to which the evidence is relevant.

20. In Aravena v R [2015] NSWCCA 288 at [85]- [89], the Court said this:

“[85] Tendency evidence has previously been referred to by this Court as a ‘building block’ or ‘stepping stone’ which provides a foundation for an inference to be drawn that an accused person has acted in a particular way or had a particular state of mind on another relevant occasion: DAO v R [2011] NSWCCA 63 at [179] per Simpson J (as her Honour then was). Her Honour continued,

‘The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of ‘significance’. The level of generality of the evidence may affect the significance of its probative value: Townsendv Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; Ford [2009] NSWCCA 306; 273 ALR 286 at [53].’

[86] It is not necessary, for evidence to be admissible as tendency evidence, that the conduct occur on a number of occasions so as to evince a particular pattern of behaviour or a modus operandi. As Campbell JA explained in R vFord [2009] NSWCCA 306; 201 A Crim R 451 at [45]:

‘… It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions. The forensic purpose of its tender is to prove that the Respondent has a tendency to act in a particular way, namely that identified in the tendency notice ... Thus, the evidence falls within the chapeau of section 97(1) and will be inadmissible unless the requirements of paras (a) and (b) of section 97(1) are met, and the requirements of section 101(2) are also met.’

[87] In Ford, Campbell JA further stated:

‘125 … there is no need for there to be a “striking pattern of similarity between the incidents”. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.

126 The respondent submits that “the phenomenon of young women, who are drunkenly sleeping after a social event, being the subject of sexual interference is unfortunately not so compellingly rare or exceptional as to give the evidence significant probative value”. I do not accept that tendency evidence has to be of a tendency to do an act that is “compellingly rare or exceptional” before it can have significant probative value.’

[88] His Honour’s remarks have been endorsed in later decisions of this Court: see FB v The Queen [2011] NSWCCA 217 at [26]; Saoud v TheQueen [2014] NSWCCA 136; 87 NSWLR 481 at [40].

[89] Although neither case expressly refers to tendency evidence relating to a single incident, as is the case here, it is apparent from their Honours’ respective remarks that a single incident is not for that reason precluded. 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. However, such considerations did not deprive the evidence in this case of significance in the sense contemplated by s 97 and considered in R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356.”

21. In the present case the conduct is neither restricted to a single incident nor is it isolated in time. The tendency contended for consists in both physical and emotional conduct or behaviour in the context or setting of domestic relationships. It is important to recall that s 97(1)(b) draws attention to consideration of “other evidence adduced or to be adduced.” In the present case, I am led to believe that the evidence will include examples of Mr Da Silva entering the home of Ms Carter unannounced and uninvited following the breakdown of their relationship, falsely alleging to her employer that she was in a sexual relationship with a student at the school where she taught, writing letters to local newspapers making similar allegations, stalking Ms Carter in the days shortly before her death by attending football games that she was refereeing, all in the context of a refusal to accept that the relationship with Ms Carter had come to an end.

22. The evidence that the Crown proposes to rely upon as evidence of a tendency to be or to become violent, possessive and obsessive with domestic partners, arises in exclusively domestic circumstances. That evidence is restricted to conduct that has occurred in the context of several domestic relationships with Mr Da Silva’s former partners, in circumstances where he has been apparently frustrated or annoyed with them and has resorted to violent or controlling behaviour.

23. Part of the anticipated evidence in the Crown case is that following their final separation, Mr Da Silva moved from what Ms Carter reportedly described as “not accepting” to “angry”. The tendency evidence that the Crown seeks to adduce includes several detailed and graphic examples of Mr Da Silva becoming angry with his former domestic partners and consequently or at least subsequently resorting to physical violence and abuse.

24. Mr Da Silva has not proceeded as far as causing the death of a former domestic partner. The Crown concedes this relevant and significant fact. By the same token, the Crown maintains that Mr Da Silva’s demonstrated tendency to resort to violence falling short of causing death is a matter of degree only, and does not derogate from the relevance of the evidence sought to be adduced. To that extent, the degree of similarity between the conduct sought to be relied upon as demonstrating a tendency to act in a particular way or to have a particular state of mind is to be found in the manner in which Mr Da Silva reacts towards his domestic partners with violent and controlling behaviour, not because he has ever resorted to violence causing death. Put another way, the general tendency contended for is the perpetration of any violence or the evincing of any controlling behaviour towards female domestic partners, regardless of its particular extent or degree. I bear in mind that, unlike coincidence evidence under s 98, s 97 is not “based upon similarities”. It is not essential that the evidence reveal striking similarities or unusual features. It is also important to observe that even if the conduct on the various occasions is not identical or even particularly similar, the similarity of the surrounding circumstances may lead to the conclusion that the evidence has significant probative value.

25. I have earlier recorded that counsel for Mr Da Silva accepts that the evidence has probative value but contests the proposition that it is significant. In my opinion that contention erroneously discounts both the importance or magnitude of any violence by a man against a woman in the first place and the reoccurring setting of its occurrence, in this case against a current domestic partner, in the second place.

26. In my opinion the evidence has significant probative value. I accept that it has not yet been tested in any pre-trial assessment and that Mr Da Silva will, or is likely to, contest the evidence to some extent or another. I am aware as well that at least Ms Noack’s credibility will be put in issue in particular and specific respects going beyond mere frailty of recollection. The evidence in combination, however, is arguably compelling, even allowing for the prospect that the jury may be disinclined to accept all of it to the requisite standard. In so saying, I note that it is not my role to “second guess” the jury but to make my own independent assessment of probative value for the purposes of s 97.

“Prejudicial effect”

27. This inquiry is directed to consideration of the actual prejudice in the present case that the probative value of the evidence must substantially outweigh.

28. This is not a case where the evidence of tendency that the Crown proposes to adduce is evidence from a party directly concerned with the outcome of the proceedings, such as evidence from a complainant in a sexual assault trial. The prospect of unreliability or concoction or contamination does not therefore afflict the evidence proposed to be adduced, even if the witnesses who are called to give the evidence will be subjected to cross-examination, so that the prospect that the full force of the anticipated evidence may be diluted. The authorities indicate that the probative value of evidence will vary depending upon whether it is in dispute. That concern would not in my view be likely to translate to a conclusion in the particular circumstances of this case that any prejudice to Mr Da Silva arising from contested but acceptable evidence from his former partners would not be substantially outweighed by the probative value of that evidence. Put another way, even though the ultimate way in which the jury may treat this evidence cannot, and will never, be known, the evidence in question is not on its face of such a kind, nor does it emanate from such a source, that it is of its very nature likely to create a prejudice to Mr Da Silva that transcends the simple proposition that he would prefer that his conduct with former domestic partners simply not be revealed.

29. Prejudice is literally prejudgment, or the formation of an opinion without the benefit of all relevant facts. The prejudicial effect in question here is that which might potentially arise from a jury’s reception of evidence that may be incomplete or which fails fairly to provide a balanced or accurate picture. In my opinion, no such prejudice is imminent here. That is for the reason that there can be no reasonable or acceptable explanation or excuse for domestic violence. The prejudice that arises from the evidence in question is a function of the content of the evidence, not its likely unreliability, inaccuracy or insufficiency. I accept immediately that the section refers to “prejudicial effect” and does not concern “unfair” prejudice or an “unfairly prejudicial effect”. However, it is highly unlikely that evidence of tendency of the type contemplated by s 97 would ever be favourable to an accused person, so that the putative prejudice arising merely from the fact of the giving of the evidence must necessarily be discounted if not entirely disregarded in this setting.

30. The balancing exercise called forth by this section must be conducted having regard to the facts of each case. I have indicated that in my view the probative value of the proposed evidence is, or is likely to be, high. In contrast, I am satisfied that the prejudicial effect of the evidence is, or is likely to be, relevantly low or non-existent. It follows that I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on Mr Da Silva.

Conclusions

31. In the circumstances I allow the Crown to adduce the evidence, the substance of which is identified in its tendency notice dated 2 July 2015.

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Decision last updated: 09 June 2016