R v Wilson (No 3)

[2017] NSWSC 1680

Supreme Court

New South Wales

Medium Neutral Citation:	R v Wilson (No 3) [2017] NSWSC 1680
Hearing dates:	27 November 2017, 29 November 2017, 30 November 2017 and 1 December 2017
Date of orders:	04 December 2017
Decision date:	04 December 2017
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Tendency evidence is admissible.
Catchwords:	CRIMINAL LAW – murder – special hearing – judge alone – tendency evidence – victim’s tendency established- accused’s tendency established – tendency evidence admissible
Legislation Cited:	Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Hughes v The Queen (2017) ALR 187; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 R v Wilson [2015] NSWSC 1538 R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55
Category:	Procedural and other rulings
Parties:	Regina Pearl Marie Wilson
Representation:	Counsel: Ms K Ratcliffe (Crown) Mr P McGrath SC (Accused)   Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused)
File Number(s):	2013/88509 and 2013/44091
Publication restriction:	Nil

Judgment

1. Ms Wilson has been charged under s 18(1)(a) of the Crimes Act 1900 (NSW), with having murdered Jason Shepstone on 12 February 2013. They had then had a relationship for some years and often lived together at Ms Wilson’s home, where Mr Shepstone died after Ms Wilson struck him with a metal pole and threw and/or poured recently boiled water over him.

2. There is evidence that Mr Shepstone was a long term alcoholic who suffered from cirrhosis of the liver which was so advanced, that in February 2013 it could at any time have led to his death. On the expert evidence, however, his death resulted from the combined effects of multiple burns, blunt force injuries and the condition of his liver.

3. In R v Wilson [2015] NSWSC 1538, I found that Ms Wilson was unfit to be tried, after a consensus emerged between the experts who had examined her, Dr Furst and Dr Allnutt, about the state of her mental health. Ms Wilson was later released by the Mental Health Review Tribunal.

4. The murder charge is now being heard at a special hearing conducted before me, as a judge sitting alone. Under s 19(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) the purpose of such a special hearing is specified to be:

“… ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged”

5. As discussed by Spigelman CJ in R v Zvonaric(2001) 54 NSWLR 1; [2001] NSWCCA 505 at [3], [34], s 21(1) of the Forensic Provisions Act requires that the special hearing be conducted as “nearly as possible as if it were a trial of criminal proceedings”.

Ms Wilson’s tendency notice

6. Ms Wilson has served a tendency notice in relation to two alleged tendencies. The first, that Mr Shepstone had a tendency to act in an aggressive or violent manner toward someone with whom he was in a relationship, including Ms Wilson in particular. The second, that she had a tendency not to necessarily report, or seek prosecution of Mr Shepstone’s serious assaults upon her.

7. Both are in issue.

Section 97 of the Evidence Act 1995 (NSW)

8. What is in issue depends on the provisions of s 97 of the Evidence Act 1995 (NSW), which relevantly 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 unless:

(a)    ...

(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) ...”

9. The significance of the probative value of the evidence depends on the nature of the facts in issue to which the evidence is relevant and the significance which the evidence may have, in establishing those facts. To be admissible as tendency evidence, the evidence must thus “be influential in the context of fact-finding". In this case, particularly in relation to the case Ms Wilson advances: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46].

10. As discussed in Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [160] - [161], evidence that a person had a particular tendency is adduced to provide the foundation for an inference that the person was more likely to act in a particular way, or have a relevant state of mind, on a particular occasion. Thus the tendency evidence must be understood to be a stepping stone, the inference being that because of the tendency, it is more likely that the person acted, or had the state of mind asserted by the tendering party, on the occasion in question.

11. At this stage, in resolving what lies in issue in relation to the alleged tendencies, it must be assumed that the evidence on which Ms Wilson seeks to rely, will be accepted: IMM at [52].

12. In determining whether the evidence will have significant probative value, it must be considered together with the other evidence to be adduced: Hughes v The Queen (2017) ALR 187; [2017] HCA 20 at [61].

13. Some of that evidence has already been adduced and some is yet to be received.

The parties’ cases

On the murder charge

14. There are factual issues lying between the parties. Ms Wilson has not given evidence but she made a number of statements to police on 13 February 2013, one of which was electronically recorded (the ERISP) and later also gave accounts of what had happened to the experts.

15. The Crown relies on the fact that Ms Wilson’s accounts to police and later to Dr Furst and Dr Allnutt were inconsistent in a number of relevant ways. It contends that this not only called into question the reliability of her accounts, but also affected the experts’ opinions, based as they were on the accounts she had given. Further, that Ms Wilson’s actions, which included cleaning up on the night she caused Mr Shepstone’s death and not calling for an ambulance when he vomited blood, established that she had acted with a consciousness of guilt.

16. In the result, the Crown contends that the evidence will establish beyond reasonable doubt Ms Wilson’s guilt of Mr Shepstone’s murder, she not having acted in self-defence, or as the result of his provocation. That she has available a partial defence of mental impairment, is also in issue.

17. The defence case is that the Crown will not establish beyond reasonable doubt that Ms Wilson did not act in self-defence, or as the result of Mr Shepstone’s provocation, in circumstances where she had repeatedly been the victim of his violence, as she was again on 12 February 2013, when she assaulted him with the metal pole and recently boiled water. In the alternative, that she is not guilty of murder, but guilty of manslaughter on the basis of excessive self-defence and/or provocation, or substantial impairment.

18. The defence contends that:

• On 12 February 2013 Mr Shepstone grabbed Ms Wilson by the throat and hit her on the hand with the metal pole. That night they were watching TV and were arguing, as they often did.

• Ms Wilson hit Mr Shepstone on the leg and bones with a metal pole, to get him to leave her alone, telling him not to put his hands on her. She then went to the kitchen and boiled water for tea. He entered the kitchen and grabbed her arm. He would not let her go and so she threw the boiled water on him.

• Mr Shepstone then laid down on a mattress and vomited. Ms Wilson noticed that the vomit had blood in it and cleaned it up. He moved to lay on a second mattress, which she had prepared for him to lie on and where she then laid down with him. He went to sleep before her. The next morning, when she could not wake him, she called 000.

On tendency

19. On Ms Wilson’s case all of the tendency evidence is relevant to the defences on which she relies and that they made it more likely that in February 2013 when she struck him with the metal pole and threw and/or poured burning water on him, that she had acted in response to his violent actions towards her, as she described in her ERISP, in circumstances where she had been the victim of his similar violence towards her, on past occasions, when she had not pursued his prosecution.

20. While there is no issue that Mr Shepstone had the tendency alleged when heavily affected by alcohol, the Crown contends, however, that:

“… the evidence “is not capable of providing a foundation for a conclusion or inference that on the occasion of the alleged murder, the deceased acted in conformity with that tendency. This is because in the circumstances of the previous incidents, the deceased was heavily intoxicated whereas at the time of the alleged murder, the deceased had no alcohol in his system whatsoever – he “having stopped consuming alcohol some 5 days prior according to the accused”.

21. The Crown also relies on evidence that Ms Wilson had acted aggressively towards Mr Shepstone, as well as her own history of having been heavily intoxicated on occasions, which it contends provides an alternative explanation for the injuries which she has been observed to have suffered at various times.

22. The Crown’s case is that the fact that Mr Shepstone was not affected by alcohol is a dissimilarity such that the evidence sought to be relied on is not properly characterised as tendency evidence. The result is that there is a lack of connection between his prior pattern of conduct and the events which preceded his death,

23. As to Ms Wilson’s alleged tendency, the Crown contends that the evidence establishes that she did report Mr Shepstone’s alleged violence, as various COPS entries and what she said in the ERISP evidence.

The evidence

Documents

24. There are issues about what conclusions can be drawn from the various documents in evidence, but there is no issue about the nature of Mr Shepstone and Ms Wilson’s past relationship; that Mr Shepstone had the alleged tendency, at least when not affected by alcohol; that the details of Ms Wilson’s various accounts of what happened to Mr Shepstone on 12 and 13 February 2013 are inconsistent; and that there is evidence of Ms Wilson’s past violence towards Mr Shepstone.

Mr Shepstone’s injuries

25. There is no issue that Mr Shepstone suffered approximately 65 blunt force injuries over his body, some of them seemingly defensive injuries, as well as burns to some 20% of his body. The burns were all recent, but there is expert evidence that all of his other injuries were not.

26. There is evidence that not only Ms Wilson had assaulted Mr Shepstone in the past. On his evidence her son, Mr Wellington, assaulted Mr Shepstone on one occasion. On the evidence of one of Mr Shepstone’s brothers, people with whom he associated when living and drinking on the streets had also assaulted Mr Shepstone.

27. Given Mr Shepstone’s level of alcohol consumption and the effect of his liver condition, that some of his injuries were not the result of assault by others, also appears to be possible. Even in 2001 he told his then girlfriend, Ms Thorley, that bruising which she observed had occurred when he fell over.

28. There is no issue, however, that it was Ms Wilson who caused Mr Shepstone’s burns. There are issues as to how they were caused and whether they were all caused at the same time.

Ms Wilson’s injuries and mental condition

29. Ms Wilson, who is of Aboriginal heritage, is now aged in her 60s.

30. From histories which Ms Wilson has given to those who have examined her, she has a long history of considerable deprivation and physical and sexual abuse over the course of her life. She has also suffered serious physical and mental ill health and has an IQ of only 63. She has never learned to read or write.

31. Amongst the physical conditions Ms Wilson has been diagnosed to be suffering are vascular dementia, diabetes and a heart condition. She has also been diagnosed to be suffering a mild cognitive impairment, which results in her functioning at the age of an 11 to 12 year old, as well as PTSD.

32. When police attended on 12 February 2013, after Ms Wilson had called for ambulance assistance, they noticed that Ms Wilson had bruises on her neck and an injury to her hand, which she was asked about during the ERISP. She said that they had been caused by Mr Shepstone.

33. It is apparent from that interview that Ms Wilson had problems, at least with her short term memory. She could not, even then, give a clear account of precisely what had happened during the preceding day and night. She also gave an account of Mr Shepstone having injured her then and more seriously, in ways that she described, in the past.

34. Ms Wilson also has a significant alcohol abuse history, but there is evidence that she gave up alcohol after suffering a heart attack. In the ERISP she said that heart attack had resulted from one of Mr Shepstone’s assaults.

35. Photographs were taken later on 13 February of Ms Wilson’s injuries. On 14 February she was examined by Dr Joliffe, who found that Ms Wilson had suffered a number of injuries which could have been caused by blunt force trauma, namely:

• Two haematomas on the back of the head;

• A bruise on the back of the neck;

• Abrasions below her nose, on her lip, in front of her left ear and on the back of her hands;

• Bruises on her right upper arm, which could have been caused by fingers;

• Two large bruises on her breast; and

• Bruises on her hands.

36. Dr Van Vuuren’s opinion was that not all of these injuries were recent, or necessarily caused by another person, but some of them could have been.

Lay witnesses

37. The Crown has already called evidence from members of Mr Shepstone’s family and others, including Ms Thorley, with whom Mr Shepstone had a relationship in 2001.

38. On the tendency argument, the defence relies on the evidence of Ms Goodwin of The Disability Trust and Mr Wellington. They were both required for cross examination, as was Ms Thorley, on whom the Crown relied.

39. The evidence establishes not only that during their relationship Ms Wilson and Mr Shepstone were often heard to engage in verbal arguments. Ms Wilson’s account was that they argued all of the time and that he often assaulted her, sometimes seriously in ways she described. Those accounts were consistent with the documentary evidence. There is, thus, no issue that Mr Shepstone repeatedly assaulted Ms Wilson. Ms Wilson had been seen striking Mr Shepstone, but various witnesses had not observed him being violent to Ms Wilson.

40. Over the course of their relationship, they regularly drank together to excess, including with others in public places around the Wollongong area, such as at bus shelters, alleyways and elsewhere in the streets. Mr Shepstone was described by some witnesses as being able to conceal the level of his intoxication, but his daily consumption of alcohol, to considerable excess, has been described by various witnesses.

41. In the ERISP Ms Wilson spoke of Mr Shepstone drinking from dawn to dusk. She described Mr Shepstone on occasions living on the street, when he was not staying with her. On one occasion he stayed with one of his brothers and once with Mr Murray, for some months after Ms Wilson had asked him to leave on one occasion. Mr Shepstone’s heavy drinking was known to all these witnesses, including Ms Thorley.

42. While on autopsy Mr Shepstone was found to have no alcohol in his system, police found four litre casks of red wine at Ms Wilson’s home, as well as bottles of green ginger wine, which he also drank. In the ERISP she spoke of him drinking casks of 10 or 15 litres of wine. There was also evidence of him drinking beer. Mr Murray described Mr Shepstone drinking a cask of wine every day and of having purchased enough casks of wine at once, to last him for a two week period.

43. Ms Goodwin and Mr Wellington, who I am satisfied both gave credible and reliable evidence, given the documentary evidence and the concessions which they each made in cross-examination, both came to believe that Ms Wilson was the victim of Mr Shepstone’s violence.

44. Given that there is no issue between the parties that at least when intoxicated, Mr Shepstone did have the alleged tendency, their evidence was entirely consistent with what was agreed between the parties. Their evidence also accorded with Ms Thorley’s account of Mr Shepstone’s behaviour when he was affected by alcohol, when she had a relationship with him for a short period in 2001.

45. While Ms Wilson on some occasions told Mr Wellington about what Mr Shepstone had done to her, he believed that she was lying when she told him that bruises, black eyes and injuries to her arms, which were bandaged, which he saw increasingly after he and his partner had moved out of Ms Wilson’s home in 2008, had occurred when she fell over, while drunk.

46. In cross-examination both Ms Goodwin and Mr Wellington accepted that they had not observed Mr Shepstone being violent towards Ms Wilson and did not know the actual cause of the various injuries they had observed from time to time. They accepted that they could have had other causes, including Ms Wilson falling while drunk.

47. Mr Wellington said, however, that Ms Wilson’s drinking had not increased after Mr Shepstone came to live with her, which could account for the increasing injuries which she commenced to suffer afterwards. He became concerned from what he saw and what others told him about Mr Shepstone’s behaviour, that the injuries which he saw Ms Wilson suffering to her face and arms were the result of Mr Shepstone’s violence.

48. Mr Wellington’s concerns caused him to visit Ms Wilson randomly. He spoke to Mr Shepstone about his behaviour and on one occasion, assaulted him.

49. Ms Goodwin’s evidence went to the changes she observed in Ms Wilson’s circumstances, in 2011 and 2012, when Mr Shepstone was living with Ms Wilson. Ms Goodwin described having seen damage to the house and broken furniture repeatedly being put in the backyard, as well as injuries which she observed Ms Wilson having suffered.

50. Ms Goodwin became so concerned, that she spoke both to her supervisor about Ms Wilson’s situation and also to Ms Wilson. She explained to Ms Wilson the help available to her, to deal with domestic violence, but Ms Wilson would not discuss Mr Shepstone with her and did not accept the help Ms Goodwin offered.

51. The evidence of Ms Thorley was that when Mr Shepstone was not intoxicated, he was not violent. She had a three to four month relationship with Mr Shepstone in 2001, over the course of which she saw him often, but not every day. She, too, then heavily abused alcohol, but she and Mr Shepstone did not always drink when they were together. Sometimes he could not then afford alcohol.

52. In her statement Ms Thorley described Ms Shepstone’s conduct to have included not only verbal abuse, but considerable violence. It included knocking her to the ground when he chased her and threw a frozen chicken at her; throwing a saucepan of boiling water at her; and grabbing her around the neck and squeezing. She had to obtain the protection of an AVO order.

53. Ms Thorley also described the difference in Mr Shepstone’s behaviour when drunk and sober. She described him being blind drunk after “only” six or seven glasses of wine and then becoming verbally and physically aggressive. When sober he was a "really good bloke"; but when drinking he changed. The violence which he inflicted on Ms Thorley was so severe that she ended the relationship and obtained the protection of AVO orders. Mr Shepstone served a custodial sentence for breaching the AVO on an occasion when police had to use capsicum spray in order to be able to drag him away.

Mr Shepstone’s alleged tendency is established

54. A number of identified earlier occasions on which Mr Shepstone had grabbed, choked, suffocated or assaulted Ms Wilson and others are relied on to establish his asserted tendency. In summary, they were:

1. On 19 December 2001 an apprehended violence order was imposed on Mr Shepstone, after he was charged on 18 December with maliciously damaging two windows of the house where his then girlfriend, Ms Thorley, lived. He pleaded guilty to that offence on 19 December and was released on bail. He was later arrested at Ms Thorley’s home on 14 January and 21 February for breaches of the order. She then described an incident in which he had grabbed her around the neck and squeezed, before she hit him over the head with a glass, to make him let her go.

2. On 7 March 2008 police attended Ms Wilson’s house in response to a domestic dispute. Ms Wilson told police that she had an argument with Mr Shepstone at the local pub where they were drinking and he had grabbed her by the neck. Ms Wilson had no apparent injuries;

3. On 26 March 2008 there was a provisional ADVO in place on Mr Shepstone in relation to Ms Wilson. Ms Wilson and Mr Shepstone returned home after drinking wine in Dapto. Ms Wilson described sitting or lying on her bed, Mr Shepstone moving on top of her and hitting her in the left breast region, a number of times. He then placed a pillow over her head. On 28 March, Ms Wilson told Dr Watson that Mr Shepstone had choked her with his hands; tried to smother her with the pillow; pushed her face into the lounge; punched her on her left breast; and cut her with glass to the left abdomen. Dr Watson found a large bruise on Ms Wilson’s left breast; marks on either side of her neck; superficial lacerations on her left abdominal wall; and retrieved glass;

4. On 28 September 2008, there was an AVO in place on Mr Shepstone in relation to Ms Wilson. Ms Wilson gave an account that Mr Shepstone was yelling and had kicked in the laundry door. He then pushed her to the ground and punched her in the breast;

5. On 18 December 2008 there was an ADVO in place on Mr Shepstone in relation to Ms Wilson. CCTV footage showed Mr Shepstone and Ms Wilson walking on Crown St and Mr Shepstone punching Ms Wilson with a clenched right fist to the head area, knocking her backwards.;

6. In February 2012, Ms Wilson suffered a heart attack and later underwent triple bypass heart surgery. In the ERISP, she said that she had suffered the heart attack because Mr Shepstone used to put a pillow over her face and suffocate her; put his hands around her throat and strangle her; and put her face into a mattress, so that she could not breathe. In an Aboriginal Health Service medical record entry dated 23 February 2012, Ms Wilson was also recorded as having said that Mr Shepstone tried to choke her and then held a pillow over her face last week;

7. From the beginning of 2011, Ms Goodwin noticed damage to Ms Wilson’s property and from the beginning of 2012, noticed that Ms Wilson had suffered injuries, including bruising up her arms; bad bruising around her mouth; and sometimes black eyes; and

8. Since at least 2008 or 2009, Mr Wellington stated that on multiple occasions he had observed bruising to Ms Wilson’s wrists, arms and face, including a black eye.

55. It was not disputed that the tendency evidence which Ms Wilson seeks to advance in relation to Mr Shepstone, is relevant to what is in issue.

56. The Crown rather relied on Ms Thorley’s evidence that when not intoxicated, Mr Shepstone did not act in accordance with his tendency.

57. The difficulty with this evidence is that at the time that Ms Thorley had a relationship with Mr Shepstone in September 2001 he was obviously not drinking as heavily as he did subsequently.

58. Some 11 years later, shortly before Mr Shepstone’s death in February 2013, he had a long history of daily consumption of such large quantities of alcohol, that he was at risk of imminent death from cirrhosis. That up until the five days before his death, when Ms Wilson said he suddenly stopped drinking, there had for a long time been any days when he was not intoxicated, is not established by the evidence.

59. Mr Shepstone’s sudden cessation of all alcohol consumption, even five days prior to his death, may have been associated with his ill health, given the advanced state of his cirrhosis. That this then resulted in him no longer acting in accordance with the tendency which the evidence clearly establishes that Mr Shepstone had long had, does not necessarily follow.

60. It was Ms Wilson’s account in the ERISP, that Mr Shepstone had not consumed alcohol for a period of five days, on which the Crown relied, as well as the results of the autopsy. No expert evidence has been led as to what effect that would have had on Mr Shepstone. Light as to what effect it did have on his conduct, is shed by evidence that Mr Shepstone and Ms Wilson were still arguing on the night he died.

61. That Mr Shepstone abstaining from alcohol also did not result in him refraining from acting in accordance with his tendency is suggested by other evidence. This included the accounts which Ms Wilson gave in the ERISP and later to experts about his behaviour, and also by the evidence of the injuries which Ms Wilson was found to have suffered, their nature and some of them being possibly caused by Mr Shepstone’s recent assaults.

62. It thus cannot be accepted that the evidence permits the conclusion, from the fact that Mr Shepstone was not affected by alcohol when he died and perhaps for some days preceding his death, that when Ms Wilson struck him with the pole and poured boiling water over him, he had not acted in accordance with the tendency which the evidence establishes he had.

63. In the result, I do not accept that the fact that he was not affected by alcohol, is a proper basis for rejecting the tendency evidence. As discussed by the plurality in Hughes v The Queen at [40]:

“40 …The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford[53]: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.”

64. In this case it is Ms Wilson, of course, who seeks to rely on the tendency evidence. Thus the disputed tendency evidence must make more likely, to a significant extent, the facts that make up the defences.

65. As I have explained, there is other evidence which, when considered with the disputed evidence, do make the defences “significantly more likely”. That includes Ms Wilson’s accounts; the evidence of the injuries which she had on 12 February; the possibility that Mr Shepstone had recently inflicted at least some of them; and the evidence that neighbours had heard she and Mr Shepstone arguing that night, as they had so often done in the past.

66. Whenever it was that Mr Shepstone stopped drinking shortly before his death, given the amount he was drinking daily to that point and the adverse effect that this had on his health, this cessation is likely to also have had an impact upon him. That it was one which resulted in him no longer acting towards Ms Wilson in accordance with his long established tendency, is contrary to the evidence that their arguing continued and that Ms Wilson was found to have various injuries, including some which were recent and which were consistent with her accounts that Mr Shepstone had been violent towards her.

67. In Hughes v The Queen it was further observed at [41] that:

“41   The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”

68. In this case, I am satisfied that the tendency evidence does have a high degree of probative value.

69. In relation to the first matter, when the extent of Mr Shepstone’s long standing violent behaviour towards others, particularly Ms Wilson, is considered together with the other relevant evidence I have discussed, it is apparent that the evidence does strongly support that Mr Shepstone had the alleged tendency, even when not affected by alcohol. As to the second matter, the tendency strongly supports proof that Mr Shepstone did act violently towards Ms Wilson, in the way she described on 13 February and later to the experts.

70. Ms Wilson’s injuries are also relevant to the second matter, the extent to which the tendency makes more likely that Mr Shepstone acted in a similar way on this occasion, to how he had acted on past occasions. Plainly enough, that evidence makes it considerably more likely, that on the night Ms Wilson inflicted the injuries which contributed to his death, Mr Shepstone did act towards her as he had acted in the past, to her and others.

71. It is in that context that I consider that it must be concluded that the tendency evidence does makes more likely the defences Ms Wilson advances, on a comparison between the tendency and the facts in issue: Hughes v The Queen at [64].

72. This is not a case of the kind discussed in Hughes v R at [195], where dissimilar circumstances and acts, leads to the conclusion that the evidence is not properly characterised as tendency evidence, as was the case in Sokolowskyj v R (2014) 239 A Crim R 528; [2014] NSWCCA 55. In that case the difficulties for the Crown in establishing "significant probative value" were identified to be first, the high level of generality of the tendency relied upon; secondly, the very different circumstances in which the incidents had taken place; and thirdly, the marked dissimilarity between the conduct relied upon to establish the tendency and the offence in question: Sokolowskyj at [40] - [41].

73. I do not consider that differences of that kind arise in this case. Mr Shepstone’s tendency is not put at a high level of generality. The circumstances in issue are not significantly different, apart from the absence of alcohol consumption which I have discussed. There is also not a marked dissimilarity between the conduct relied on and that on which the defences are advanced.

74. It follows that the evidence is relevant to what is in issue and is capable of providing a foundation for the conclusion that Mr Shepstone acted in accordance with his tendency, in the events which unfolded prior to his death.

75. In the result I am satisfied that the tendency evidence is admissible.

Ms Wilson’s alleged tendency

76. What is relied on to establish Ms Wilson’s alleged tendency to not necessarily report, or seek prosecution of Mr Shepstone’s serious assaults upon her is, in summary:

1. In relation to the 7 March 2008 incident, Ms Wilson informing police that she did not want Mr Shepstone charged with assault but only wanted him removed from her house; and unwillingness to provide a statement to police;

2. In relation to the 26 March 2008 incident, Ms Wilson not calling police;

3. In relation to the 18 December 2008 incident, Ms Wilson walking away from police when they attempted to speak to her and refusing to supply her details to police;

4. Ms Wilson’s failure to report Mr Shepstone’s February 2012 conduct allegedly causing her heart attack to police; and

5. The injuries observed by Ms Goodwin since 2011 and Mr Wellington since 2008 which Ms Wilson did not report to police.

77. The Crown’s case is that this tendency was not borne out by the evidence and to the contrary, was disproven first, by various COPS entries which reflected that Ms Wilson did report alleged violence perpetrated by Mr Shepstone on a number of occasions; and secondly, by Ms Wilson’s statements in the ERISP, that each time, or the majority of the times, she would report Mr Shepstone’s physical violence to police.

78. These submissions cannot be accepted, particularly when the evidence of Mr Wellington and Ms Goodwin is considered in light of the various documentary evidence and all that Ms Wilson said in the ERISP and in her later accounts. This evidence does not support Ms Wilson’s account at one point in the ERISP, that on the majority of occasions when Mr Shepstone was violent, she reported him to police.

79. Ms Wilson also then said things such as the relationship was violent; that Mr Shepstone had been in gaol for his violence; that she did not tell Mr Wellington what had been done to her, which included Mr Shepstone putting the pillow over her face and suffocating her; putting his hands around her throat and strangling her; putting her face into the mattress so that she could not breathe; and ramming her with a shopping trolley in the street and grabbing and smashing her into a garden; that she had “kept everything to myself” and that “[l]ike other woman who gets bashed by their man, keeping it to themselves”.

80. In its further submissions the Crown analysed the COPS entries, three in 2007, of which only one involved a report by Ms Wilson and then of only a verbal argument. The other two were reports of yelling made by neighbours. On the last occasion Ms Wilson wanted an AVO, but did not seek to have Mr Shepstone dealt with for assault.

81. In 2008 there were four reports, two by Ms Wilson. One involved an account of Mr Shepstone punching her and putting a pillow over her head. The other of an assault and punching. The neighbour’s report involved no violence, but a passer-by had seen Mr Shepstone strike Ms Wilson with a fist.

82. In 2009 there was only one report in which Ms Wilson alleged a fight and breach of an AVO. In 2010 it was a relative who reported one assault. In 2011 Ms Wilson reported an assault and in 2012 it was Mr Shepstone who reported a verbal argument.

83. This evidence does not permit the conclusion for which the Crown contended, namely, that the majority of times a complaint was made about Mr Shepstone, it was made by Ms Wilson and that “contrary to the asserted tendency, that she would report incidents of violence at the hands of the deceased to the police”.

84. Accordingly, it must be concluded not only that the evidence does establish Ms Wilson’s tendency, but that it also is relevant to what is in issue. The evidence is thus also admissible under s 97. It, too, makes her defences “significantly more likely” and it does have a high degree of probative value.

85. When the evidence of Ms Wilson’s limited complaint about Mr Shepstone’s long standing violent behaviour towards her, is considered together with the other relevant evidence I have discussed, it is apparent that the evidence also strongly supports proof that Ms Wilson had the alleged tendency.

86. Further, this tendency strongly supports proof that Ms Wilson and Mr Shepstone did act in the way Ms Wilson described in her ERISP and that it is capable of providing a foundation for the conclusion that Ms Wilson acted in accordance with her tendency, in the events which unfolded prior to his death.

Orders

87. For these reasons I am satisfied that the proposed tendency evidence is admissible.

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Decision last updated: 04 December 2017