R v Ngatikaura

[2006] NSWCCA 161

Reported Decision: 161 A Crim R 329

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Ngatikaura [2006] NSWCCA 161
HEARING DATE(S):	6 February 2006
JUDGMENT DATE:	22 May 2006
JUDGMENT OF:	Beazley JA at 1; Simpson J at 53; Rothman J at 74
DECISION:	By majority (Beazley JA dissenting); (i) appeal allowed; (ii) the decision to reject the evidence is vacated; the matter is remitted to be determined by the District Court in accordance with these reasons.
CATCHWORDS:	CRIMINAL LAW – evidence – prior criminal conduct – whether tendency – evidence of prior drug supply - EVIDENCE – tendency evidence – no operation of general exclusionary provisions where tendency provisions apply - JURISDICTION – s.5F(3A) Criminal Appeals Act (NSW) 1912 – whether decision of trial judge to exclude evidence substantially weakens prosecution’s case – appeal may be made against an interlocutory decision regardless of whether or not a jury has been empanelled
LEGISLATION CITED:	Criminal Appeal Act (NSW) 1912, s.5F Drug Misuse and Trafficking Act (NSW) 1985, s.25(1) Evidence Act (NSW) 1995, ss. 55, 56, 97, 98, 100, 101, 135, 137, Dictionary
CASES CITED:	Harriman v The Queen (1989) 167 CLR 590 Noor Mohamed v The King [1949] AC 182 Papakosmas v The Queen (1999) 196 CLR 297 Pfennig v The Queen (1995) 182 CLR 461 R v BD (1997) 94 A Crim R 131 R v Blick (2000) 111 A Crim R 326 R v Cook [2004] NSWCCA 52 R v Cornwell [2003] NSWSC 657 R v Filipetti (1978) 13 A Crim R 335 R v Fletcher [2005] NSWCCA 338 R v GK (2001) 53 NSWLR 317 R v Harker [2004] NSWCCA 427 R v Milakovic [2004] NSWCCA 199 R v Quach (2002) 137 A Crim R 345 R v Sultana (1992) 74 A Crim R 27 R v Suteski (2002) 56 NSWLR 182 R v WRC (2002) 130 A Crim R 89 Steffan v R (1993) 30 NSWLR 633
PARTIES:	Crown (Appellant) Josephine Ngatikaura (Respondent)
FILE NUMBER(S):	CCA 2005/2414
COUNSEL:	G Rowling (Crown) C Smith (Respondent)
SOLICITORS:	S Kavanagh (Crown) Legal Aid Commission (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3123
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ
LOWER COURT DATE OF DECISION:	29/11/2005

- 1 -

2005/2414 CCAP

Beazley JA
Simpson J
Rothman J

22 May 2006

REGINA v Josephine NGATIKAURA

Headnote

FACTS
The respondent was charged with one count of “ supply heroin ” contrary to s.25(1) of the Drug Misuse and Trafficking Act (NSW) 1985. The offence charged involved a deemed supply. A police search of the respondent’s home uncovered a quantity (5.74 grams) of heroin along with other drug paraphernalia. The respondent pleaded not guilty. The respondent’s husband, who is being tried separately with the same offence, also occupied the house. The anticipated defence of the respondent is that the drugs were in her husband’s exclusive possession and that their presence within the home was not within her knowledge.

The Crown sought to adduce evidence of two prior offences of “ supply heroin ”, to which she had pleaded guilty. These offences were committed at a different address, the packaging of the drugs was different, and each involved an actual supply to an undercover agent as opposed to deemed supply.

The Crown sought to adduce evidence of the two prior offences in order to: (i) demonstrate that the accused was a drug dealer by occupation; and (ii) rebut the respondent’s likely defence of her innocent association with the drugs.

The trial judge held that the evidence was admissible but nonetheless rejected it on the basis that its prejudicial effect outweighed its probative value. In making the ruling his Honour referred to the “ balancing exercise ” spoken of in Harriman v The Queen (1989) 167 CLR 590.

The Crown appealed against the ruling on the grounds that: (i) the trial judge made no finding that there was or would be any prejudicial effect if the evidence was admitted or that there was a risk that the evidence would be used by the jury in some unfair way; and (ii) the trial judge gave no consideration to the possibility that a direction could be given to the jury to guard against misuse of the evidence.

During the hearing of the appeal a further matter arose as to whether the evidence of the prior offences ought to be properly characterised as tendency evidence pursuant to the Evidence Act (NSW) 1995 (the Evidence Act ): ss.97(1) and 101(2). Neither the appellant nor the respondent had submitted to the trial judge that the evidence was tendency evidence. Both had accepted that the evidence was admissible subject only to its exclusion under s.135 or s.137.

HELD:
Per Beazley JA (Simpson and Rothman JJ agreeing)
(i) This court has jurisdiction to hear the appeal because the decision of the trial judge to exclude the evidence “substantially weaken[ed] the prosecution’s case” as required by s.5F(3A) of the Criminal Appeals Act 1912 (NSW). Evidence of the prior offences would diminish the plausibility of an innocent association with the drugs: R v Filipetti (1978) 13 A Crim R 335 (followed); Steffan v R (1993) 30 NSWLR 633 (not applied).

(ii) Section 5F(3A) permits an appeal by the Crown against an interlocutory ruling, regardless of whether or not a jury has been empanelled: R v Milakovic [2004] NSWCCA 199 (distinguished).

Per Simpson J (Rothman J agreeing; Beazley JA dissenting)
(iv) The evidence of the prior offences was tendency evidence and its admissibility was thus governed by ss.97(1) and 101(2) of the Evidence Act (the tendency provisions): R v Fletcher [2005] NSWCCA 338 (discussed).

(v) There is no room beyond the operation of the tendency provisions for the application of either s.135 or s.137 of the Evidence Act to tendency evidence.

(vi) As the trial judge did not consider whether the evidence should be admitted under s.97, nor whether s.101(2) should operate to exclude the evidence, the matter should be remitted to the District Court for reconsideration.

Observations of Rothman J
(vii) Common law principles from pre- Evidence Act judgments may be used, with care, as a guide in evaluating admissibility of evidence under the Evidence Act . The provisions of s.97 largely reflect statements made by the High Court in Pfennig , namely that for admissibility the evidence must show more than a disposition to commit the crime: Pfennig v The Queen (1995) 182 CLR 461 (discussed).

(viii) The exception in s.97 where evidence has significant probative value is the equivalent of the common law principle allowing evidence that goes to the probability of the very offence before the Court.

(ix) The trial judge was correct to reject the evidence on the basis proffered by the Crown, as the Crown had not relied on the evidence as tendency evidence. It would be open to the Crown to seek to tender the material again on a different basis. In these circumstances the appeal ought ordinarily be dismissed, but given the reasons of Simpson J the orders proposed by her should be made.

Per Beazley JA (dissenting)
(x) The evidence was not tendency evidence. The use to which evidence of the prior offences was to be put was to prove the respondent was a drug dealer and that her association with the drugs was not innocent. This is a purpose other than a tendency purpose, and as such the evidence is not governed by the tendency provisions: R v Quach (2002) 137 A Crim R 345; Harriman v The Queen (1989) 167 CLR 590 (followed).

(xi) The trial judge made a bare finding that the evidence was to be excluded because the probative force of the proposed evidence was outweighed by its prejudicial effect. This is not a finding in the terms of either s.135 or s.137, and it is not possible to determine whether the trial judge applied a correct test. His Honour did not specify what the unfair prejudice was and why it outweighed the probative value of the evidence. His reasons were thus inadequate. For either of these reasons the trial judge erred in law: R v Harker [2004] NSWCCA 427; R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61; R v Cook [2004] NSWCCA 52 (applied).

(xii) The trial judge failed to consider, in assessing whether the probative value of the evidence was outweighed by any unfair prejudice, whether an appropriate direction could have been given to the jury to guard against misuse. His Honour’s assessment thereby miscarried: R v Cook (applied).

(xiii) Pursuant to s.5F(5) of the Criminal Appeal Act (NSW) 1912 it is open for this Court, with all the materials before it and absent a question of credit, to assess for itself whether or not the evidence should be rejected under either s.135 or s.137.

(xiv) Evidence of the respondent’s active involvement in selling heroin has significant probative value as it could rationally affect the assessment of whether she was aware of the presence of drugs in her home. The prejudice to the defendant is not unfair and does not outweigh the probative value of the evidence. The evidence accordingly should not be rejected under s.135 or s.137: Papakosmas v The Queen (1999) 196 CLR 297; R v Suteski (2002) 56 NSWLR 182 (applied).

(xv) It is unlikely that a jury will misuse the evidence: R v Suteski (applied).

**********

2005/2414 CCAP

Beazley JA
Simpson J
Rothman J

22 May 2006

REGINA v Josephine NGATIKAURA

Judgment

1 BEAZLEY JA: The respondent is presently charged with one count of “supply of … a prohibited drug”, namely heroin, contrary to s.25(1) of the Drug Misuse and Trafficking Act (NSW) 1985. This appeal is from a ruling by Maguire DCJ made on 29 November 2005 that evidence of the respondent’s commission of two other offences of “supply heroin” contrary to s.25(1) of the Drug Misuse and Trafficking Act, to which she has pleaded guilty, should not be admitted in evidence in her trial.

2 The heroin, amounting to 5.74 grams, the subject of the present charge, was found following a police search on 3 November 2004 of the home the respondent shares with her husband and children. The drugs were contained within 41 multi-coloured water balloons along with a sum of cash in the amount of $335.00 and were found in a pink child’s bag hidden underneath couch cushions in the lounge room. The respondent maintained that she had no knowledge of either the existence or contents of the pink child’s bag, although she told police that she believed her husband was dealing in drugs.

3 The police search also uncovered in the children’s bedroom two rolls of cash in the sum of $5,150.00 and seven bags of multi-coloured balloons of the kind used to package prohibited drugs. A black bag containing foil, balloons, a plastic box and scales was found in the kitchen cupboard. The respondent initially denied knowledge of the black bag, but later admitted to police that she had put it in the kitchen cupboard because she was scared the police would arrest her husband.

4 The respondent has pleaded not guilty to the charge. The respondent’s husband is being tried separately for the same offence.

5 The Crown is seeking to adduce evidence of the two earlier offences and the pleas of guilty to them. The first offence involved a supply of heroin on 28 September 2004, when the respondent sold an undercover police operative two small foil packages each containing 0.29 grams of compressed heroin. The second involved a supply on 20 October 2004 of one small gold foil package containing 0.15 grams of compressed heroin to another undercover police operative. Both offences took place at the same address, which is not the respondent’s home.

6 The Crown seeks to adduce evidence of the earlier offences (i) to demonstrate that the accused was a drug dealer by occupation; and (ii) to rebut the respondent’s likely defence, as revealed in her record of interview, of her innocent association with the drugs found at her home.

7 The trial judge held that the evidence was admissible but nonetheless rejected it on the basis that its prejudicial effect outweighed its probative value. In making the ruling his Honour referred to the “balancing exercise” spoken of in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50.

The appeal

8 The Crown appeals against the ruling on two bases. First, the Crown claims that the trial judge made no finding that there was or would be any prejudicial effect if the evidence was admitted or that there was a risk that the evidence would be used by the jury in some unfair way: see Papakosmas v The Queen (1999) 196 CLR 297 at [91]; [1997] HCA 37. Secondly, the Crown claims that the trial judge gave no consideration to the possibility that a direction could be given to the jury to guard against misuse of the evidence.

9 The Crown appeal has been brought pursuant to the provisions of s.5F of the Criminal Appeal Act (NSW) 1912 (the Criminal Appeal Act). That section provides, relevantly:

“(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
…
(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case .” (emphasis added)

10 It appears that before the trial judge both the Crown and counsel for the defence accepted that the evidence was admissible and that the question for the Court’s consideration was whether, as a matter of discretion, the evidence should be excluded.

11 A court may exclude evidence pursuant to ss.135 and 137 of the Evidence Act (NSW) 1995 (the Evidence Act). Those sections provide:

“135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, …

137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

12 In rejecting the evidence his Honour said:

“ It seems to me that the evidence proposed to be advanced by the Crown is admissible. It comes down to a question of the sort of balancing exercise that Brennan J speaks of in Harriman.
Doing the best I can, I think that the probative force of the proposed evidence is outweighed by the prejudicial effect that it would have , and I reject the evidence.” (emphasis added)

13 This finding more closely resembles the wording of s.137 than s.135. However, it is not a finding in the terms of either section. I will return to this later.

14 Before I deal with the Crown’s contentions, it is necessary to refer to a matter that arose during the hearing of the appeal, namely, whether the evidence of the prior offences is tendency evidence. If it is tendency evidence, its admissibility is governed by Pt.3.6 of the Evidence Act. This is important for the following reasons. First, if the evidence is tendency evidence, notice in writing of the intention to adduce the evidence must be given: s.97(1)(a). In this case, no notice has been given although the Court may dispense with the notice requirement: s.100. Secondly, and more significantly, tendency evidence is not admissible unless it has significant probative value: s.97(1)(b). Further, in a criminal proceeding tendency evidence adduced by the prosecution cannot be used against the defendant unless the probative value “substantially outweighs any prejudicial effect it may have on the defendant”: s.101(2). If the evidence is not tendency evidence and is otherwise admissible, the evidence is subject to being excluded under ss.135-137.

Is the evidence of the prior offences tendency evidence?

15 "Tendency evidence” is defined in the Dictionary to the Evidence Act to mean:

“… evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection.”

16 Section 97(1) provides, relevantly:

“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, if:
(b) the court thinks that the evidence would not, 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 .” (emphases added)

17 In the case of criminal proceedings, the provisions of s.101 impose a further restriction on the use of tendency evidence as mentioned above. That section provides:

“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”. (emphases added)

18 If the evidence is properly characterised as tendency evidence, then it must be dealt with pursuant to ss.97(1) and 101(2). However, evidence which on its face may be tendency evidence, may still be admissible and/or used without regard to those sections if it is used for some other purpose. This was discussed in R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519. In that case, the Court was concerned with the admissibility of intercepted telephone conversations between the accused and a third person. The essential issue in the Crown case was whether there had been a supply of heroin at the accused’s residence on a particular date. The Crown case was circumstantial. The intercepted telephone conversations established that the accused and another person involved in the supply had had extensive telephone contact over the weeks preceding the particular occasion of supply with which the accused was charged. The content of the telephone conversations also established that the telephone contact between the accused and the other person related to drugs.

19 Spigelman CJ at [14] observed that the frequency and nature of the telephone contacts were of direct relevance, notwithstanding that they contained admissions as to participation in other drug dealings which were prejudicial. His Honour considered that the admissibility of the telephone conversations was justified on two bases. The first was on a narrow basis that a telephone conversation a few days prior to the occasion of supply with which the accused was charged referred to a drug supply about to occur and that earlier conversations established the nature and content of that later conversation. The second basis was a broader one based upon the principles established in Harriman. It is this broader basis with which I am presently concerned.

20 Harriman was a pre-Evidence Act decision. It had been argued in Quach that the evidence admitted in Harriman had been admitted on a tendency basis such that, if it was being considered under the Evidence Act it would be governed by the provisions of ss.97 and 101. The Court rejected that submission. Spigelman CJ, at [24], considered that the reasoning in Harriman was “consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning”.

21 In Harriman, Brennan J dealt, at 593, with the question whether evidence that an accused had committed other offences of the same or similar character was admissible. His Honour noted (at 593-594) that such evidence was inadmissible unless its probative force "clearly transcends the merely prejudicial effect of showing that the accused has committed other offences”. His Honour (at 594) distinguished between a tendency purpose (which, under the Evidence Act would require the court to apply the provisions of ss.97(1) and 101(2)) and other uses.

“… where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible.”

22 Brennan J continued, at 595 (with particular reference to the offence involved in that case):

“Evidence of prior involvement by Harriman and [a third person] in the sale of heroin in association, evidence … of prior sales of heroin by Harriman and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was thereby revealed.”

23 His Honour concluded that in that case something more was revealed. He said (at 596):

“Evidence of Harriman's participation in the heroin trade not only strengthened the Crown allegation of motive; it tended to make it more likely that Harriman's relevant contacts with [the third person] …. were for a guilty rather than an innocent purpose: see Plomp v The Queen (1963) 110 CLR 234. That evidence was highly probative of the offences charged. It was admissible, whether or not Harriman had raised in cross-examination the "defence" that [the third person] was acting alone. There was no ground for excluding it in the exercise of a discretion.”

24 In Quach, Spigelman CJ, after referring to these passages, specifically addressed the question whether the use to which Brennan J had held that the prior drug dealings could be put was within the formulation of the "tendency rule" in s.97. His Honour (at [32]) pointed out that the focus in s.97 "is on the purpose of the tender. Section 97 is irrelevant where evidence is admitted for a purpose other than to show tendency” (emphasis added). The Chief Justice continued (at [33]):

“Brennan J's reasoning uses the language of the common law in distinguishing "predisposition" from evidence "otherwise probative" of the offence. The same kind of distinction exists under the Evidence Act between evidence ‘to prove… a tendency’ and evidence ‘to prove’, relevantly, whether [the other person involved in the transaction] entered the respondent's house and/or the character of the transaction that occurred on that occasion.”

25 In this case, the Crown seeks to adduce the evidence of the prior offences so as to prove the respondent was a drug dealer and that her association with the drugs in her home was not innocent. In my opinion, given the purpose for which the evidence is proposed to be used, it is not tendency evidence within s.97. Given that conclusion it is not necessary in this appeal to consider whether, if evidence is tendency evidence and thereby subject relevantly to ss.97 and 101, ss.135-137 have any or any additional operation: see R v WRC (2002) 130 A Crim R 89; [2002] NSWCCA 210. It is convenient to now turn to the specific grounds of appeal raised by the Crown.

Ground 1: no finding as to prejudicial effect

26 It appears that his Honour rejected the evidence under the provisions of s.137, although, as I have indicated it is not clear whether that was so. But in any event, his Honour made no more than a bare finding that the probative force of the proposed evidence was outweighed by its prejudicial effect. The Crown complained that in making a finding in these bare terms his Honour failed to find that there would be such prejudicial effect, and he further failed to find that there was a risk that the evidence would be used by the jury in some unfair way.

27 In R v Harker [2004] NSWCCA 427 Howie J at [47], (in an obiter remark), after observing that the trial judge in that case had simply concluded that evidence would be rejected under s.137 without explaining why it was unfairly prejudicial and without giving an appropriate direction to the jury as to the use of the evidence, said:

“… adequate reasons for the rejection of evidence will hardly be found in a simple statement that s.137 applies or in a bare finding that the probative value of the evidence is outweighed by the unfairly prejudicial effect of the evidence. The reasons for judgment must make clear what the unfair prejudice is and why it is of such a kind that the evidence must be rejected despite its probative value."

28 In R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61, Sheller JA (at [19]-[20]) commented upon the task that a judge was required to undertake when considering whether evidence must be excluded pursuant to s.137. His Honour said:

"When an application is made by a defendant pursuant to s.137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion... Even so... there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."

29 In R v Cook [2004] NSWCCA 52, Simpson J (Ipp JA and Adams J agreeing) observed (at [38]) that the balancing exercise involved the exercise of "judgment" rather than the exercise of a “discretion".

30 In this case, the only assistance one gets from his Honour's remarks as to the considerations he took into account is his reference to Harriman, and more specifically his reference to "the balancing exercise" referred to by Brennan J in that case. However, his Honour did not specify what the unfair prejudice was and why it was of such a kind that the evidence must be rejected despite its probative value: see R v Harker at [47]; see also R v Cook at [37]. In these circumstances, it is not possible to know whether his Honour considered the evidence had little probative value or whether, even if its probative value was high, the unfair prejudice to the defendant outweighed its probative value.

31 Further and perhaps more importantly are the terms in which the trial judge made his finding. I have referred to that at [13]. His Honour’s finding is not made in terms of either s.135 or s.137. The failure to make a finding in the precise terms of the section cannot, in my view, be treated as accidental or unimportant, or due to a lack of precision that sometimes understandably is found in the language of extempore judgments. The tests in s.135 and s.137 are different from each other (although that will not always be important: see [44] below). The more fundamental problem with his Honour’s ruling is that neither section involves a balancing exercise between “probative value” and “prejudicial effect”. It follows, in my opinion, that the trial judge either applied the wrong test, or because of the inadequacy of his reasons it is uncertain what test he did apply. In either event, his Honour erred in law.

Ground 2: failure to give consideration to a jury direction

32 A court is required, as part of the assessment of the question whether the probative value of the evidence is outweighed by any unfair prejudice, to consider whether an appropriate direction can be given to the jury to ensure that the evidence is not misused in any way: see R v Cook at [37]. His Honour did not give any express consideration to that question. The possibility that a direction may be given to the jury is integral to the assessment a trial judge must otherwise make in determining whether the probative value of the evidence is outweighed by the unfair prejudice. Failure to give consideration to that question means that his Honour’s consideration whether s.137 should (assuming that was his Honour’s ruling) be applied so as to exclude the evidence of the prior offences, miscarried.

Consequence of establishing error

33 As the Crown has established error it is open to this Court to assess for itself whether or not the evidence must be rejected under s.137: see s.5F(5) of the Criminal Appeal Act. There is no reason why this Court should not do so. All the material facts are before the Court and there are no questions of credit involved.

Should the evidence be rejected?

34 Section 135 provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.

35 Section 137 provides that the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

36 “Probative value” is defined in the Dictionary to the Evidence Act as follows:

" Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

37 In Papakosmas v The Queen, McHugh J, said at [91]: “[e]vidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted". His Honour also endorsed the remark of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139 that:

"The prejudice to which each of the sections [ss. 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means the prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way."

38 The application of s.137 was further considered in R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509, where Wood CJ at CL said at [116]:

“As is now well established, the prejudice to the defendant of which each of s.135 and s.137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves."

39 His Honour further pointed out, at [117], that there must be more than a hypothetical risk of it being unfairly prejudicial in this way. The risk must be a real one: see also R v GK (2001) 53 NSWLR 317 at 324; [2001] NSWCCA 413.

40 In this case, the Crown seeks to rely upon the evidence of the prior offences to establish that the respondent is a drug dealer such that she could not have, realistically, an innocent explanation for the presence of the drugs, money and equipment in her home. It is apparent from the respondent’s denial of any knowledge of the presence of these items that the central issue at trial will be whether the respondent knew of the existence of the drugs in her home. If she was actively involved in selling heroin, the presence of substantial quantities of drugs, money and equipment associated with the supply of drugs in her home was likely to be known to her. Accordingly, the evidence of her involvement in selling heroin, as proved by evidence of the prior two offences, could rationally affect the assessment of whether she was aware of the presence of the drugs in her home, this being a case of deemed supply.

41 The respondent does not contest this. Rather, she submitted that the probative value of the evidence was not high. She relies upon the fact that there was a separation in time between the earlier supplies (which occurred on the 28 September and 20 October 2004 respectively) and the offence with which she was charged, which occurred on 3 November 2004. She further relies upon the fact that the earlier supplies occurred at a different address, that the packaging of the earlier supplies was different from the way the heroin found in her home was packaged (namely in balloons rather than wrapped in foil), and that as there was no analysis of the purity of the drugs involved in the earlier supply, a comparison could not be made with the purity of the drugs found at her home. A further distinction was that the evidence sought to be tendered was of actual supply whereas this case involved a “deemed supply”.

42 It was submitted that when these matters were taken into account, it was apparent that they did not constitute evidence of substantial participation in the heroin trade so as to support an inference of continued participation and there was no real proximate connection with the offence with which she is presently charged. On the other hand, it was likely that the prejudicial effect of the prior offences would be high.

43 In my opinion, the time gap between the previous two offences and this offence is significant. It reveals gaps of approximately three weeks between each of the two offences and the present charge. The evidence of the first two offences thus demonstrates that at a time proximate to the offence with which the respondent is presently charged, she engaged in drug dealing. The difference in the “wrapping” of the drug does tend to diminish the probative value of the prior two offences. However, the fact that the drug on each of the three occasions was heroin is more significant in assessing the probative value of the evidence than is the different wrapping. I do not consider that the fact that there was no testing of the purity of the drug on the prior occasions is of much relevance in assessing the probative value of this evidence. It is not part of the Crown case, as I understand it, that the drug came from the same source. Nor do I consider it important that the present charge involves a “deemed” rather than an actual supply. Drugs have to be obtained and stored somewhere before they are on-sold.

44 It follows from the foregoing that the evidence of the two prior charges does have significant probative value. The question for this Court then is whether the probative value is substantially outweighed by the danger of being unfairly prejudicial (s.135) or is outweighed by the danger of unfair prejudice (s.137) to the respondent. In this case, if the test in s.137 is satisfied, it would follow that s.135 would also be satisfied, because the Court would already have determined that the unfair prejudice to the respondent outweighed the probative value of the evidence. It would not then be necessary to determine whether the evidence also substantially outweighed the probative value. Accordingly, this being a criminal trial and s.137 requiring the exclusion of evidence if satisfied, it is sufficient, in my opinion to determine the matter under that section.

45 There is no doubt that the evidence of the prior offences would be prejudicial. The question is whether it would be unfairly so. On the assumption that the evidence is not excluded, it will still be open to the respondent to rely upon the matters she raised in this Court as being reasons why, notwithstanding the prior two offences, she had no knowledge of or connection with the drugs the subject of the present charge. Those will be matters for the jury to assess in determining whether the Crown has proved its case beyond reasonable doubt. It cannot be said, in my opinion, that it is likely that the jury will use that information irrationally or illogically or emotionally as discussed by Wood CJ at CL in R v Suteski. It will still be necessary for the jury to assess whether the respondent in fact knew of the presence of the drugs in her home. The differences adverted to at [41] may be relevant to this assessment. But in any event, it will still be open to a jury to find that the respondent did not know of the presence of the drugs on her premises despite the evidence that she was involved in selling heroin in different circumstances.

46 It follows, in my opinion, that the prejudice to the defendant is not unfair and does not outweigh the probative value of the evidence. It will be open to a trial judge to give an appropriate direction as to the use to which the evidence may be put, depending upon the manner in which the respondent decides to conduct her defence.

47 For these reasons I would allow the appeal. Before concluding that that is the order that should be made, it is necessary to refer to two arguments advanced on behalf of the respondent as to why the appeal should not be allowed.

48 The first was said to be a jurisdictional question. It was submitted that the ruling complained of was a ruling on the admissibility of evidence and therefore not an "interlocutory judgment or order" for the purposes of s.5F(2) of the Criminal Appeal Act: Steffan v R (1993) 30 NSWLR 633. In that case, the Court (Hunt CJ at CL, Grove and Sharpe JJ) said, at 639, that a ruling on the evidence made in advance of or in the course of the trial was not an interlocutory judgment within the meaning of s.5F of the Criminal Appeal Act. The submission must be immediately rejected. Sub-section 5F(3A) expressly provides that an appeal may be brought on the admissibility of evidence "but only if the decision or ruling … substantially weakens the prosecution's case". This provision came into effect on 14 February 2004, after the decision in Steffan. Accordingly, provided the second part of s.5F(3A) is satisfied, the appeal has been properly brought.

49 The appellant contended that the Crown had failed to demonstrate that the ruling substantially weakens its case. In my opinion, an assessment of that matter is very much bound up with the question whether an order should have been made under s.137. If the probative value of the evidence was not outweighed by any unfair prejudice, as I have found, then the exclusion of the evidence would, in my opinion, substantially weaken the Crown case. Were it otherwise, the respondent could, and on present indications will, conduct a defence that she was ignorant of the drugs in her home but was suspicious that her husband was involved in drug dealing and that she hid the black bag so as to protect him. There were other explanations raised in her ERISP relating to her ignorance of the contents of the bag and the items found in the children’s bedroom. These explanations may be plausible. However, the plausibility of such innocent explanations is diminished when regard is had to the respondent’s own drug dealing. Accordingly, in my opinion, the ruling substantially weakens the Crown case.

50 The respondent further submitted that it was undesirable for this Court to make any ruling in relation to the evidence in circumstances where no jury had been empanelled at the time that the trial judge rejected the evidence: see R v Milakovic [2004] NSWCCA 199 at [10]. However, Milakovic involved a different question altogether. In that case the Court was concerned with the rejection of an application to cross-examine a witness as an unfavourable witness pursuant to s.38 of the Evidence Act. The Court held that a ruling under s.38 was not a ruling as to the admissibility of evidence within the meaning of s.5F(3A). Section 5F(3A) expressly governs this case and permits an appeal by the Crown against an interlocutory ruling, regardless of whether or not a jury has been empanelled. But in any event, the ruling was made in circumstances where, although a jury had not been empanelled, the issue as to whether the evidence should be excluded was agitated at the request of the respondent as part of a pre-trial procedure. Once the ruling was made, the Crown indicated to the trial judge that the DPP wanted time to consider whether an appeal should be brought from his Honour’s ruling. That time was allowed so that the empanelment of the jury did not proceed.

51 It follows in my opinion that the appeal should be allowed. I would propose that the application made by the respondent that the evidence be rejected, be refused.

52 I propose the following Orders:

1. Appeal is allowed.

2. Set aside the ruling on evidence by Maguire DCJ on 29 November 2005 as to the exclusion of evidence of two offences of “ supply heroin ” contrary to s.25(1) of the Drug Misuse and Trafficking Act (NSW) 1985 on 28 September 2004 and 20 October 2004.

3. Order that the respondent’s application to have the evidence excluded be dismissed.

53 SIMPSON J: I have read in draft the judgment of Beazley JA. I take a different approach. I will recapitulate briefly the relevant background.

54 The respondent is charged, under s25 of the Drug Misuse and Trafficking Act 1985 (“the Act”), with a single count of supplying a prohibited drug, heroin. The offence is alleged to have been committed on 3 November 2004 in the home the respondent shared with her husband and four children in Macquarie Fields. The Crown case is that, on the execution of a search warrant on that day, police located in the house a quantity (5.74 grams) of heroin, together with a sum of more than $5,000 in cash, and other items associated with the supply of heroin. They claim to have observed the respondent attempt to conceal a small black bag which was later shown to contain some drug-related items.

55 The Crown alleges that the drug was in the possession of the respondent; by reason of s29 of the Act, and the quantity of the drug, her possession, if proved, is deemed to have been for the purpose of supply (unless she were able to prove that it was in her possession for some other purpose); by s3 of the Act, possession for the purposes of supply amounts to supply and founds such a charge.

56 The respondent was arraigned and entered a plea of not guilty to the charge. No jury was empanelled. The Crown proposes to tender in evidence, as well as the evidence produced by the execution of the search warrant and the items located, and the other evidence apparently implicating the respondent, evidence of two earlier offences of supply of heroin committed by the respondent to which she entered pleas of guilty. The first of these was committed on 28 September 2005; the second on 20 October 2005. On each occasion the respondent directly supplied a quantity of heroin to an undercover police operative.

57 Following the respondent’s plea of not guilty, on her behalf a challenge was made to the admission of the evidence of the prior offences and her pleas of guilty in relation to them. In a judgment dated 29 November 2005 Maguire DCJ rejected the evidence. He gave as his reason:

“Doing the best I can I think that the probative force of the proposed evidence is outweighed by the prejudicial effect that it would have ...”

The trial was then adjourned, without a jury having been empanelled.

58 The Crown appeals against the decision to reject the evidence. It is able to pursue an appeal against the rejection of evidence only if the appeal comes within s5F(3A) of the Criminal Appeal Act 1912. Since the decision in question involves a decision or ruling on the admissibility of evidence, the Crown may pursue the appeal only if the decision or ruling eliminates or substantially weakens the prosecution case.

jurisdiction

59 A threshold question therefore arises. On behalf of the respondent it was argued that the Crown has failed to demonstrate, for the purpose of the sub-section, that the ruling eliminates or substantially weakens its case. It was further argued that it is undesirable for this Court to make rulings on the admission of evidence in advance of the trial.

60 In some respects, the Crown case, absent this evidence, appears to be reasonably strong. It includes evidence of the execution of the search warrant, of the money and various drug-related items in the house, and the respondent’s conduct in appearing to conceal the black bag which was later found to contain drug-related items. On the other hand, the respondent was not the sole (or the sole adult) occupant of the house; her husband, who was also charged, but who was to be tried separately, lived in the house. The Crown may well run into difficulties of the kind exposed in R v Filipetti (1978) 13 A Crim R 335, in establishing that the drugs were in the possession of the respondent, and not in the exclusive possession of her husband. Indeed, it is understood that that is the basis on which the respondent proposes to defend the charge.

61 Evidence of two previous instances of actual supply of the drug, one two weeks earlier, the other five weeks earlier, is capable of substantially strengthening the Crown case. The corollary is that the exclusion of the evidence is capable of substantially weakening the Crown case. In my opinion the prospect that the respondent might successfully defend the charge on the basis to be found in Filipetti is such that this Court should conclude that exclusion of the evidence would substantially weaken the Crown case. The case therefore comes with s5F(3A) and the appeal should be permitted to proceed.

the appeal

62 The basis on which the evidence was tendered by the Crown was outlined by the Crown Prosecutor in the District Court as follows:

“Your Honour it is on the basis that this evidence that shows that the Accused was in the business of dealing heroin, it’s what’s referred to as the indicia of supply, in the sense it’s not tendency or propensity evidence you Honour, it is simply evidence that shows that at that relevant time, that around the time of the deemed supply, that she was engaged in the business of supplying heroin ...”

63 The Crown Prosecutor made reference to the decisions of this Court in R v Sultana (1992) 74 A Crim R 27 and of the High Court in R v Harriman [1989] HCA 50; 167 CLR 590. After lengthy debate, counsel for the respondent said:

“... these are extremely prejudicial matters your Honour. That’s the essence of what I’ll come to in due course. In terms of this accused getting a fair trial, in relation to a deemed supply, to have previous charges of actual supply used in that context, different time, different place, it smacks of the dangers of the jury using that evidence of the earlier matters in an impermissible way, a purely prejudicial way.”

A little later he said:

“The other thing that occurs to me your Honour on this point, is that the Crown did or perhaps does have available to it, other avenues such as tendency and coincidence provisions and the like, and they have not been available.”

64 It appears that the argument before Maguire DCJ was based purely upon either or both of ss135 and 137 of the Evidence Act 1995. The terms of the judgment do not suggest that either of those sections was applied in precise terms. Reliance on the tendency evidence provisions contained in s97 of the Evidence Act was expressly disclaimed. It continued to be expressly disclaimed in this Court. When confronted with the purpose for which the Crown sought to tender the evidence the Crown Prosecutor in this Court said:

“... it is tendered to show that there was a connection between her and the drugs that were found in the house which she and her husband jointly inhabited.”

Later the Crown Prosecutor said:

“... [the respondent] had said in effect: I have got nothing to do with these drugs. The Crown had to overcome that. It had to show that she did because it had to overcome the problem. One of the ways in which the Crown elected to try to do that was to tender the evidence that she was carrying on a business.”

65 “Tendency evidence” is defined in the Dictionary to the Evidence Act as:

“... evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.”

S97(1) provides:


“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, if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(b) the court thinks that the evidence would not, 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.”

66 Because the Crown disclaimed any reliance upon s97, no notice of the kind referred in subs(1)(a) was given. That may, for the moment, be put to one side. S97 does not necessarily preclude the admission of any evidence that shows that an accused person has committed another crime, or has a tendency or disposition or propensity to commit a crime whether of a specific or general nature: see Harriman; Sultana; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82; R v Quach [2002] NSWCCA 519. S97 precludes the admission of the evidence (unless it overcomes the test imposed by subs(1)(b)) where it is tendered for that purpose; where it is tendered for another purpose, such as those mentioned in the authorities I have cited, even where it also incidentally proves criminal disposition or tendency, it is not necessarily rendered inadmissible, although it would then be necessary to give consideration to s95 of the Evidence Act, and to give the jury appropriate directions.

67 It is, of course, necessary precisely to analyse the manner in which the Crown would seek to use the evidence. That was disclosed clearly in the argument, both in the District Court and on appeal – it was expressed as tendered to prove that the respondent was a drug dealer.

68 I am (with respect to Beazley JA who takes a different view) quite unable to see that this evidence was tendered for any reason other than to prove that the respondent had a tendency to deal in drugs. Even if it were to be said that the evidence was tendered to rebut the respondent’s anticipated defence, that the drugs and other items were the property of her husband, and that their presence within the home was not within her knowledge, nevertheless that rebuttal was to be achieved by showing that she had a tendency to supply and deal in drugs. This, in my opinion, emerges quite clearly from the responses given by the Crown Prosecutor on the appeal. Evidence of the respondent’s previous drug dealings was tendered to show that she was in possession of the drugs the subject of the present charge; the evidence of her previous drug dealings would help to establish her guilt of the present charge because it would show that she had a tendency so to behave.

69 That, to my mind, does not necessarily render the evidence inadmissible. It simply means that the appropriate procedures had to be followed and the necessary tests applied. I outlined these in R v Fletcher [2005] NSWCCA 338 at [33] and [45].

70 The first task is to assess the extent to which the evidence in question has probative value (that is, the capacity rationally to affect the probability of the existence of a fact in issue); secondly (where the answer to that question is in the affirmative), to assess and predict the probative value that the jury might ascribe to the evidence. Where the result of that assessment is that the evidence would not, either alone or in conjunction with other evidence already adduced or to be adduced, have significant probative value, the evidence is not to be admitted. Where, however, the assessment is that the evidence would have significant probative value, the court must then apply s101 which relevantly provides:

“101 Further restrictions on tendency evidence ... adduced by prosecution

(1) ...

(2) Tendency 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.”

71 Because of the view I take of the nature of the evidence in question, ss135 and 137 are immaterial. S97 and s101(2) provide the tests for the admission of tendency evidence; in my opinion, they leave no room for the application also of either s135 or s137.

72 Because of the approach taken by the Crown, and the defence, in the District Court, Maguire DCJ did not turn his mind to whether the evidence should be admitted under s97, nor whether s101(2) should operate to exclude the evidence. The appropriate findings of fact and assessments have not been made.

73 In my opinion the orders this Court should make are as follows:

(i) appeal allowed;

(ii) decision to reject the evidence vacated; the matter remitted to be determined by the District Court in accordance with these reasons.

74 ROTHMAN J: I have read in draft the judgment of Beazley JA. I have also had the advantage of having read in draft the reasons for judgment of Simpson J. I agree with the reasons for judgment of Simpson J. I also join in the orders proposed by Simpson J with some misgivings. I wish to add the following comments. I do not repeat the factual background or the provisions of the statutes.

75 Fundamentally the issue in this appeal is the admissibility of evidence in proceedings on the current charges of prior offences for the supply of heroin. The Crown sought to have the material tendered and admitted on the basis that it was relevant evidence and the Crown eschewed a reliance on tendency evidence. As summarised by Beazley JA, “the Crown seeks to adduce the evidence of the prior offences so as to prove the respondent was a drug dealer and that her association with the drugs in her home was not innocent.” (see [25], infra)

Tendency Evidence

76 In R v Fletcher, supra, the Court considered the question of tendency evidence in a quite different way than the issue arises in these proceedings. There was little, if any, difference on the principles to be applied in relation to tendency evidence between the majority (Simpson and Johnson JJ) and my dissenting judgment; the difference ultimately was the application of those principles to the facts in that case. In R v Fletcher, the Crown sought to tender material on the basis of s.97 of the Evidence Act and the question before the Court was whether the Judge in admitting some of the evidence was correct, i.e. whether the evidence sought to be tendered met the requirements of s.97 of the Act.

77 In this case, the Crown seeks to tender evidence which it says is not being adduced to prove tendency. In other words, the Court is not faced with the issue of whether the evidence satisfies s.97 of the Act, but rather whether s.97 of the Act applies to exclude the evidence; i.e. is it tendency evidence?

78 Unless excluded by a specific provision of the Evidence Act, all relevant evidence is admissible: s.56 of the Act. It is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue in the proceeding”: s.55 of the Act. Probative value is the extent to which evidence is relevant.

79 Thus the first question that must be asked by any person seeking to adduce evidence is “could the evidence rationally affect (directly or indirectly) the probability of the existence of a fact in issue?” If the answer to that is in the affirmative, then, subject to exclusionary provisions, it is admissible. But s.97 is an exclusionary provision. It excludes tendency evidence unless the requirements of s.97 are satisfied.

80 Evidence of a tendency that a person has or had, to act in a particular way, or have a particular state of mind, in order to prove that the person did, at the point in time relevant to the issues before the Court, act in a particular way, or have a particular state of mind, is tendency evidence. It will be prohibited, notwithstanding that it is relevant, unless it satisfies s.97 (and in the case of a criminal proceeding, s.101) of the Act.

81 The question that must be asked in relation to such evidence, or indeed any evidence, when evaluating relevance, is precisely how it seeks to make more probable the existence of the fact in issue. If it affects, rationally, the assessment of the probability of the existence of the fact in issue by applying a reasoning process described in s.97 (“tendency reasoning”), it is inadmissible unless it has a significant probative value. Section 97 of the Evidence Act is engaged by the purpose and reasoning process, not its rational effect;

“What is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is adduced as a matter of law, the evidence is not admissible.” (per Lord Hailsham in DPP v Boardman [1975] AC 421 at 453)

82 One must be careful in applying pre-Evidence Act judgments to the admissibility of tendency evidence under the Evidence Act. However, the common law principles on such issues may be used as a guide in the evaluation of the admissibility of evidence, even under the Evidence Act.

83 The High Court in Pfennig v The Queen (1995) 182 CLR 461 summarised the principles applicable, prior to the Evidence Act, in the following way:

“Propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged. …It was also accepted that in order to be admissible, propensity evidence must possess ‘a strong degree of probative force’ or the probative force … must clearly transcend the prejudicial effect of mere criminality or propensity.” (at pp 480-481) (The emphasis is my own)

84 To a large degree the provisions of s.97 reflect the above passage from the joint judgment of their Honours Mason CJ, Deane and Dawson JJ. Once the “propensity” or “tendency” reasoning process is involved, the prima facie position is that the evidence is inadmissible, unless it has a significant probative value. In other words, the reasoning process adopted must show something more than that the accused has a disposition to commit the crime or is the sort of person to commit the crime.

85 In Quach, supra, the evidence sought to be admitted was intercepted telephone conversations which went to the totality of the conduct giving rise to the supply of drugs on the particular occasion with which the accused was charged. In other words the evidence was admissible because it formed the totality of the conduct leading up to the charge in question and its probative value did not depend on tendency reasoning.

86 The material that was sought to be tendered in these proceedings was material relating to two past offences for the purpose of proving that the accused was a drug dealer. The relevance of that material was to show that the accused had a tendency or state of mind inconsistent with an innocent explanation for the existence of the drugs on premises which the accused occupied. Its probative value is that, because the accused has previously been convicted (not that long ago) of conduct amounting to dealing in drugs, it is more likely that the accused is still dealing in drugs and that, therefore, the existence of the drugs on her premises is not innocent. That is classic propensity reasoning.

87 It is evidence of a tendency (to deal in drugs), to act in a particular way (to deal in drugs), to have a particular state of mind (the intention to use drugs impermissibly or knowledge of the existence of the drugs), adduced in order to prove that the respondent did, at the time that drugs were found on premises she occupied (the date of offence), act in a particular way (have possession of the drugs), or have a particular state of mind (the intention to use the drugs found). It fits precisely the description in s.97 of the Act of the reasoning process which renders evidence propensity evidence.

88 Even prior to the Evidence Act a number of the cases involving the admissibility of propensity evidence turned on the use of the evidence to disprove innocent explanation or coincidence. It relies on an inference drawn from human experience which would render the innocent explanation improbable. See, for example, Noor Mohamed v The King [1949] AC 182.

89 Harriman, supra, is not inconsistent with the analysis in Pfennig (and in any event, pre-dates it). In Harriman, the distinction is made by Brennan J (as he then was) between “the mere commission of another offence or predisposition to commit an offence” and the situation where “as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence.” (emphasis is mine)

90 The difficulty in analysing the pre-Evidence Act cases in light of the Evidence Act is that, pre-Evidence Act, propensity was used in two quite distinct ways. It was predominantly used to refer to the process of reasoning which relies upon the commission (or evidence) of one offence, and the tendency to criminality, to prove another offence before the courts. It is there used to refer to a chain of reasoning which, when it does not go beyond that referred to in the immediately preceding sentence, is impermissible. But under the common law, such evidence is permissible and admissible when it goes, on the basis of human experience, to the probability of the commission of the very offence with which the accused has been charged.

91 Section 97 seeks to implement a distinction which, in general, the pre-Evidence Act cases proposed. Section 97 deals with all evidence, whether or not admissible, that is probative because of “tendency reasoning”. It renders it inadmissible unless its probative value is significant. That exception is the Evidence Act equivalent of the common law allowing evidence that goes to the probability of the very offence before the Court and was, under the common law, admissible.

92 Because the evidence sought to be adduced before the sentencing judge was tendency evidence: it relies on tendency reasoning: it is inadmissible unless and until the requirements of s.97 of the Act are satisfied.

93 In the instant proceedings, as already stated, the Crown did not rely, before his Honour, on the provisions of s.97 and did not seek to show that the evidence in question satisfied s.97 (and ultimately s.101(2)). In those circumstances, his Honour was correct to reject the evidence on the basis proffered by the Crown. Such a rejection would not prohibit the Crown from seeking to tender the material again on a different basis. For that reason, ordinarily, I would be inclined to dismiss the appeal and leave it to the Crown to determine whether, and in what circumstances, it would seek again to tender the material.

94 However, given both my agreement with the reasons of Simpson J and the manner in which the matter has been argued, I join in the orders proposed by her Honour, namely: that the appeal be allowed, the decision to reject the evidence be vacated; and the matter be remitted to be determined by the District Court. Such a determination must depend upon notice being given which should particularise the tendency sought to be proven and its probative value. Of course, his Honour may waive notice pursuant to the terms of s.100 of the Evidence Act, but that is a matter within his Honour’s discretion upon which I do not comment.

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