Sharman (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0195

LUKE SHARMAN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF JUDGMENT:	15 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 5 First revision (15 February 2024): Annexure A
JUDGMENT APPEALED FROM:	DPP v [Sharman] (County Court of Victoria, Judge Gaynor, 23 October 2023)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Police officer charged with assault offences by using OC spray against seven complainants – Judge ruled evidence cross-admissible – Whether evidence significantly probative of police officer acting unreasonably and without lawful excuse – Whether probative value substantially outweighs prejudicial effect – Applicant must show House v The King (1936) 55 CLR 499 error – Leave to appeal refused.

Evidence Act 2008 ss 97, 101; Criminal Procedure Act 2009 s 295; Crimes Act 1958 ss 458, 459, 462A.

House v The King (1936) 55 CLR 499; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; KJM v The Queen [No 2] (2011) 33 VR 11; PNJ v DPP (2010) 27 VR 146; R v Bauer (2018) 266 CLR 56; Todd (a pseudonym) v The Queen [2016] VSCA 29.

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Counsel
Applicant:		Ms SE Lacy KC with Ms M McDonald
Respondent:		Mr N Hutton with Mr PP Kounnas
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WHELAN JA:

The applicant has been charged on an indictment with the following offences:
(1)On 2 March 2018, without lawful excuse he intentionally caused injury to Jayden Snowden (charge 1); alternatively, without lawful excuse he recklessly caused that injury (charge 2); alternatively, he assaulted Snowden (charge 3).
(2)On 31 March 2018, he assaulted Marlin Seffelaar (charge 4), Lachlan Cunningham (charge 5), Jake Spreadborough (charge 6), and Timothy Sturgeon (charge 7).
(3)On 27 May 2018, he assaulted Danny Hughes (charge 8) and Hayden Jackson (charge 9); and, on an occasion shortly after that referred to in charge 9, without lawful excuse he recklessly caused injury to Jackson (charge 10), or alternatively, he assaulted Jackson (charge 11).
At the time of the alleged offences, the applicant was a sergeant of police in Sale.
Certain relevant facts are admitted. The applicant was present on each occasion, together with other police. The applicant interacted with each of the complainants. During those interactions, he deployed oleoresin capsicum spray (‘OC spray’) at each of the complainants and, at times, used other physical force.
The prosecution case is that at the time of each relevant interaction, the complainants were not threatening the police or otherwise conducting themselves in such a way as to justify the use of the OC spray and other physical force. The applicant disputes those matters.
The prosecution has served three notices under s 97(1)(a) of the Evidence Act 2008 (the ‘Act’) notifying the applicant of its intention to adduce evidence to establish a tendency.
The first two notices, and a reformulated version of the asserted tendency, were ruled upon by Judge Carlin in the County Court on 16 August 2022. Judge Carlin ruled that evidence was admissible to establish the reformulated version of the asserted tendency. The reformulated version was not to be found in either of the notices.
In March 2023, this Court granted leave to appeal from Judge Carlin’s ruling, allowed the appeal, and ordered that the tendency argument be remitted to the County Court to be heard by a different judge.[2] The ground upon which the appeal succeeded was that the judge had decided the application on the basis of the reformulated version of the tendency in circumstances that created unfairness to the applicant. The court did not deal with other grounds directed to the substantive issues concerning the admissibility of the tendency evidence.
[2]Sharman (a pseudonym) v The King [2023] VSCA 56.
The prosecution then gave a fresh notice under s 97(1)(a) of the Act dated 12 April 2023. This notice asserted a tendency close to, but not identical to, the reformulated tendency ruled upon by Judge Carlin. The relevant tendency in that notice is as follows:
Over a three month period (between March and May 2018), whilst in the company of other police members, to use OC cannisters to spray or strike, young men, who are standing on the street and are responding in either a defiant or challenging manner to those members, but not behaving otherwise in a physically aggressive manner or resisting arrest.
The notice sets out the evidence relied upon to establish the asserted tendency in an annexed table. The table refers to each of the three incidents, and sets out some of the uncontroversial facts. Relevantly for present purposes, in relation to each offence the table specifies the ‘Substance of Evidence Relied Upon to Support Tendency’, and in relation to each complainant under the heading ‘Features of Evidence Establishing the Tendency’ states that that complainant was ‘compliant and not resisting’ or ‘compliant and non-threatening’.
The notice specifies the issue as to which the asserted tendency is said to be probative as being:
Whether the accused acted unreasonably and without lawful excuse.
On 23 October 2023, Judge Gaynor in the County Court ruled that evidence of the asserted tendency had significant probative value, as required by s 97(1)(b) of the Act, and that the additional requirement concerning the probative value outweighing any prejudicial effect provided for in s 101(2) of the Act was also met. Judge Gaynor rejected a related defence application for severance.
On 27 October 2023, Judge Gaynor certified under s 295(3)(b) of the Criminal Procedure Act 2009 that her interlocutory decision was of sufficient importance to the trial to justify an application for leave to appeal.[3]
[3]Before us the parties accepted that this was the correct provision, relying upon PNJ v DPP (2010) 27 VR 146, 153 [33] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 88.
The applicant now seeks leave to appeal Judge Gaynor’s interlocutory decision concerning tendency and severance. The proposed grounds of appeal are:
Ground 1:     The learned trial judge erred in finding that the proposed tendency evidence of each of the charged acts has significant probative value in relation to all other charged acts, in particular:
(a)in finding that the proposed tendency evidence goes directly to the issue of whether the accused’s actions were unreasonable and without lawful excuse; and
(b)in finding that the evidence relied upon strongly supports the alleged tendency.
Ground 2:     The learned trial judge erred in finding that the probative value of the evidence sought to be led substantially outweighed the prejudicial effect of the evidence.
Ground 3:     The learned trial judge erred by failing to sever the charges on the indictment as follows:
(a)the charges regarding Jayden Snowden be severed from other complainants;
(b)the charges regarding Marlin Seffelaar, Lachlan Cunningham, Jake Spreadborough and Timothy Sturgeon be severed from the other complainants;
(c)the charges regarding Danny Hughes and Hayden Jackson be severed from the other complainants.

Relevant provisions of the Act and principles applicable

Pursuant to s 56 of the Act, only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence that, if it were accepted, could rationally affect the assessment of the probability of a fact in issue.
Section 97 of the Act provides for what is described as the ‘tendency rule’. Relevantly, it provides:
(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 … to act in a particular way, or to have a particular state of mind unless—
…
(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.
A further restriction on the admissibility of tendency evidence is provided for in s 101(2), which relevantly provides:
Tendency evidence about an accused … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The dictionary to the Act defines ‘tendency evidence’ by reference to s 97. The dictionary defines the term ‘probative value’ as being ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
In assessing ‘probative value’ in this context, no question as to credibility or reliability can arise; the Court assesses the evidence on the assumption the jury will accept it.[4] It is not for the trial judge to assess what probative value the evidence should be given, but rather, only what probative value a jury acting rationally and properly directed could give to the evidence.[5]
[4]IMM v The Queen (2016) 257 CLR 300, 315 [52] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
[5]R v Bauer (a pseudonym) (2018) 266 CLR 56, 103 [95] (the Court); [2018] HCA 40.
In Hughes v The Queen (‘Hughes’),[6] the High Court majority (Kiefel CJ, Bell, Keane and Edelman JJ) rejected the existence of a requirement to show a level of similarity or underlying unity in the circumstances said to evidence the tendency.[7] The majority also held that significant probative value involved the consideration of two issues: the extent to which the evidence supports the tendency; and the extent to which the tendency makes more likely the facts making up the charged offence.[8]
[6](2017) 263 CLR 338; [2017] HCA 20.
[7]Ibid 354 [34], 355–6 [39].
[8]Ibid 356–7 [41].
The majority in Hughes identified a number of risks associated with tendency evidence. Relevantly for these purposes, those risks include that the jury will fail to consider the possibility that despite the tendency the accused did not act on the tendency on the particular occasion and that the jury’s approach to the prosecution’s onus of proof may be clouded by an emotional response to the tendency.[9] Gageler J (in dissent) emphasised the problem of ‘cognitive bias’, being an inclination to overvalue dispositional and personality-based explanations for another person’s conduct and to undervalue situational explanations for that conduct, resulting in overestimation of the probability of a person acting consistently with a tendency.[10]
[9]Ibid 349 [17].
[10]Ibid 365–6 [72].

Judge Gaynor’s Ruling

The relevant parts of Judge Gaynor’s revised ruling, which appears in the transcript, have been retyped, paragraph numbers have been added, and some typographical errors have been corrected. That document (‘Reasons’) is annexed to this judgment.[11]
[11]In this respect, the Court is following the procedure suggested and approved in KJM v The Queen [No 2] (2011) 33 VR 11, 12 [7] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268 (‘KJM’).
Judge Gaynor set out the charges, which arose out of three separate incidents over the period March to May 2018, and described each of the incidents in some detail. Each of the incidents arose in the context of the police attending a public place late at night, and interacting with young men affected by alcohol. In each case, some form of disturbance had prompted the police attendance. In two of the incidents (2 March 2018 and 31 March 2018), the police were subjected to verbal abuse. In the third incident, their activities were subject to interference.[12]
[12]Reasons, [1]–[15].
The judge set out the requirements of s 97(1)(b) and s 101(2) of the Act.[13]
[13]Ibid [16].
The judge referred to the two issues to be considered in relation to significant probative value which the majority in Hughes had set out.[14] She summarised the submissions made to her in relation to s 97(1)(b) and s 101(2) of the Act.[15]
[14]Ibid [17].
[15]Ibid [18]–[25].
Judge Gaynor was satisfied that the evidence did have significant probative value.[16]
[16]Ibid [27].
The judge said that the alleged incidents contained ‘singular features’, being: ‘young men taunting or verbally challenging police on the street, but clearly not otherwise demonstrating physical violence towards them’.[17] She said that in each case the OC spray was allegedly used suddenly and without warning (bar the case of Sturgeon who apparently told the applicant he ‘might as well’ spray him too).[18]
[17]Ibid [28].
[18]Ibid [29].
The judge said that the ‘hotly contested’ issue in the trial would be whether the applicant’s actions were ‘unreasonable and without lawful excuse’. The judge said that she was satisfied the tendency evidence ‘goes directly to that issue’, and ‘strongly supports’ the alleged tendency. She said that the evidence was that on each occasion the accused ‘resorted to use of the OC spray in unwarranted circumstances’.[19] She said that, as such, it went directly to a ‘factual issue under dispute’, and she said that she accepted the prosecution submission ‘that it would assist the jury in evaluating the accused’s actions and state of mind’.[20]
[19]Ibid [30]–[31].
[20]Ibid [32].
Having earlier summarised the relevant evidence, Judge Gaynor concluded:
I regard that evidence as containing singular, specific features of alleged behaviour by the accused in specified circumstances, taking it beyond impermissible reasoning that the accused was the sort of person to act in the way alleged.
…
I am satisfied that the tendency evidence strongly supports both the alleged tendency and makes significantly more probable the prosecution contention that he acted unreasonably and without lawful excuse.[21]
[21]Ibid [33]–[34].
Turning to s 101(2) of the Act, Judge Gaynor said:
I am also satisfied that the probative value of the evidence significantly outweighs any prejudicial effect it may have on the accused.[22]
[22]Ibid [35].
It is to be noted that Judge Gaynor used the term ‘significantly’, rather than ‘substantially’. When setting out the requirement in s 101(2) earlier in her ruling she had used the correct word, ‘substantially’.[23]
[23]Ibid [16].
The judge referred to the possible risks associated with the use of the evidence, in terms similar to those addressed in Hughes, stating that, in her view, directions would sufficiently ‘temper’ those risks.[24]
[24]Ibid [36]–[37].
Judge Gaynor accordingly ruled that the tendency evidence should be admitted. She rejected the related application for severance.

Nature of this application

The application is for leave to bring an interlocutory appeal under s 295 of the Criminal Procedure Act 2009 against the interlocutory decision of Judge Gaynor in which she admitted tendency evidence under s 97 of the Act, refused to exclude it under s 101 of the Act, and refused to sever the charges.
As the authorities currently stand, interlocutory appeals from a decision under ss 97 and 101 of the Act are governed by the principles in House v The King.[25] Before us, both parties accepted that that is the current position. Accordingly, in order to succeed on appeal, it is necessary to demonstrate that the judge has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, has failed to take into account some material consideration, or has reached a conclusion that is unreasonable or plainly unjust.[26]
[25]KJM (2011) 33 VR 11, 13 [12] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268.
[26]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
Prior to the hearing, each of the parties filed a summary of their contentions. Neither document addressed the relevant issues by reference to the principles in House v The King.

Applicant’s submissions

The applicant’s summary of contentions submitted in relation to the question of significant probative value under s 97 that neither the prosecution nor the trial judge had articulated how the asserted tendency made it more likely that the applicant had acted unreasonably and without lawful excuse on each of the three independent occasions. It was submitted that the conclusion had simply been asserted.
It was submitted that the proper assessment of the reasonableness and lawfulness of the applicant’s actions on each occasion turns on the particular dynamic circumstances of that occasion.
The applicant’s contentions drew an analogy between the situation here and the situation in Phillips v The Queen (‘Phillips’)[27] and Jacobs (a pseudonym) v The Queen (‘Jacobs’).[28]
[27](2006) 225 CLR 303; [2006] HCA 4.
[28][2017] VSCA 309.
In relation to the issue of whether the probative value substantially outweighed the prejudicial effect, the applicant’s contentions referred to the trial judge’s use of the word ‘significantly’ instead of ‘substantially’. It was submitted that this indicated that her Honour had her mind on a reduced degree to which the probative value was required to outweigh the prejudicial effect.
It was further submitted that the prejudicial effect in this case was considerable, and that there was a real risk that the jury would be ‘swamped’ by the number of allegations, would be diverted from their primary task, and would give the tendency evidence more weight than it deserved. It was submitted that directions were not capable of sufficiently tempering this prejudicial effect.
In oral submissions, counsel for the applicant accepted that the principles in House v The King applied, and submitted that what had occurred here was that the judge had reached a conclusion in relation to both s 97 and s 101 that was unreasonable and plainly unjust.
In relation to the matters that will be in issue in the trial, counsel referred to the powers of arrest in ss 458 and 459 of the Crimes Act 1958 and to the defence provided for in s 462A of that Act.
Counsel accepted that the prosecution will have to prove an absence of honest and reasonable belief that the conduct was necessary for a lawful reason.
The Court had previously referred the parties to the charge at [8.14.1] of the Criminal Charge Book.[29] Counsel for the applicant accepted that that charge was appropriate to these circumstances, save that it was not accepted that arrest would only be lawful if the force used was proportionate.
[29]Judicial College of Victoria, Criminal Charge Book (2023).
In relation to significant probative value, reference was made to the two considerations to be addressed as referred to in Hughes.
On the issue of the extent to which the evidence supports the tendency, counsel submitted that the evidence did give ‘some’ support to the tendency, but that it was not strong. It was submitted that there was no ‘unusual pattern’ here. It was submitted that the asserted tendency was quite general, and that the evidence was not uniform in relation to the absence of resistance by the complainants. In that respect, reference was made in particular to the complainant Jackson, who, it was said had run away after being told he was under arrest. Reference was also made to the fact that there was evidence from one of the police officers that the complainant Seffelaar had threatened to assault the police.
In relation to the consideration of the extent to which the tendency made the facts making up the charged offence more likely, it was submitted that there was simply ‘no path of reasoning’ by which the evidence was significantly probative. It was submitted that the critical issue was the reasonableness of the accused’s conduct, and reasonableness in one situation does not assist in assessing reasonableness in a different situation.

In relation to the issue under s 101(2) as to whether the probative value substantially outweighs the prejudicial effect, it was submitted that although the trial judge’s use of the word ‘significantly’ was not contended to be a specific error, it did indicate that she had reached a clearly unjust conclusion, perhaps because she had in mind a lower threshold. It was submitted that her Honour reached a clearly erroneous conclusion as to whether the evidence substantially outweighed the prejudicial effect because of her incorrect analysis of the evidence’s probative value.

Respondent’s submissions

The summary of contentions filed on behalf of the respondent submitted that the applicant’s tendency to strike young men, standing on the street, responding in a defiant or challenging manner but not otherwise behaving in a physically aggressive manner or resisting arrest, is of ‘core importance’ to the fact in issue in the trial. It was submitted that if the applicant had the tendency asserted, being to deploy the OC spray in specified circumstances, that can be used to support a conclusion that he is more likely to have engaged in the same way when the circumstances were similar.
It was submitted that the decision in Phillips had little application here.
In relation to s 101(2), it was submitted that the trial judge’s use of the term ‘significant’ rather than ‘substantial’ did not give rise to any ‘difference of substance’, and, if there was a difference, it was submitted that no different assessment would be reached applying the proper formulation. It was submitted that the judge’s conclusion that directions could adequately temper risks associated with the use of the tendency evidence was correct.
In oral submissions, counsel for the respondent accepted that the principles in House v The King applied.
Counsel submitted that the charge at [8.14.1] of the Criminal Charge Book was the appropriate one. It was submitted that the jury will have to assess if the prosecution has disproved the defence in s 462A of the Crimes Act.
It was submitted that on each relevant occasion, the accused, faced with defiance falling short of violence, had used OC spray or struck complainants with the OC canister. The suggestion that the circumstances concerning Jackson were inconsistent with this analysis was submitted to be incorrect, and reference was made to Jackson’s statement in the depositions where he had stated that he was sprayed with OC spray by the applicant before he ran away.
It was submitted that no error of the requisite kind had been made by the judge, and that the single use of the word ‘significantly’, rather than ‘substantially’, was simply a slip.

‘State of mind’

In the course of reply, an issue was raised as to whether the prosecution were ‘resiling’ from a concession made in the hearing before Judge Gaynor that the tendency was not being relied upon in relation to ‘state of mind’.
It has to be said that counsel for the prosecution did not seem to be clear on this issue before the judge.[30]
[30]At pages 36–7 and 42–3 of the transcript, counsel for the prosecution suggested relevance on the basis of the accused’s belief as to reasonableness but then when challenged by counsel for the applicant as to whether the tendency concerned ‘state of mind’, counsel asserted that it was ‘not a tendency to have a state of mind’, but a tendency to act in a particular way: at page 46 of the transcript. The judge in the Reasons recorded the prosecutor as having submitted that the evidence was relevant to the question of whether the accused acted as alleged, ‘as well as addressing whether the accused held a belief that he had a lawful justification or excuse in doing so’: Reasons, [22].
The judge specifically found that the tendency would assist the jury in evaluating both the accused’s actions and ‘state of mind’.[31]
[31]Reasons, [32].
Whatever may have been the position previously, it was clear in the hearing before us that the tendency was said to be probative of the issue of whether the accused acted unreasonably and without lawful excuse. Before us both counsel accepted that one of the matters the prosecution must prove in relation to that issue is the absence of an honest and reasonable belief that the conduct was necessary for a lawful reason.
The issue of honest and reasonable belief was more clearly articulated before us than it had been before the judge below. Honest and reasonable belief is acknowledged to be a matter the jury will have to determine when addressing the issue specified in the notice, namely whether the accused acted unreasonably and without lawful excuse. We do not consider any relevant issue of the prosecution ‘resiling’ arises.

The relevant tendency notice

The relevant tendency asserted in the notice, and the issue to which it is said to be probative, have been set out earlier.
Reference has already been made to Judge Gaynor’s description of the three incidents and of the similarities which she identified in relation to those incidents.
Addressing that same issue by reference to the relevant s 97(1)(a) notice, the following emerges:
•The ‘substance’ of the evidence as set out in the annexure to the notice is very similar in each case, being the spraying of OC spray in the face of the complainant. In the case of the first and third incident, the relevant ‘substance’ of the evidence also includes striking a complainant’s head with the canister.
•The ‘features’ of the evidence set out in the table are, in each case, very similar. In each case, it is asserted that the applicant was purporting to exercise a power of arrest or supporting other police exercising a power of arrest. In each case, it is said that the applicant’s conduct was in the presence of other police and witnessed by them. In each case, it is said that the relevant complainant was either ‘compliant and not resisting’ (Snowden, Seffelaar, Hughes, and Jackson), or ‘compliant and non-threatening’ (Cunningham, Spreadborough, and Sturgeon).

Should leave to appeal be granted?

In Todd (a pseudonym) v The Queen (‘Todd’),[32] this Court said (albeit in a different context):
[32][2016] VSCA 29.
[A]lthough one must be cautious not to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted; and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected.[33]
[33]Ibid [38] (Priest JA, Weinberg JA agreeing at [40], Whelan JA agreeing at [41]).
In order to succeed on an appeal, as the authorities currently stand, it would be necessary for the applicant to establish an error of the kind described in House v The King. In this particular case, it is the residual type of error which is relied upon, being that relevant conclusions are unreasonable and unjust.
We are not persuaded that an error of this kind is discernible in her Honour’s ruling. In our opinion, the relevant conclusions her Honour reached were clearly open to her.
Taking the prosecution evidence at its highest, in our opinion, it was open for her Honour to conclude, as she did, that there were ‘singular, specific features’ of the accused’s behaviour, which strongly supported the alleged tendency, and that tendency, if established, made significantly more probable the prosecution contention that the accused had acted unreasonably and without lawful excuse. The prosecution evidence at its highest does, it seems to us, reveal that in relation to seven complainants, the accused sprayed them in the face with OC spray in circumstances that did not warrant that action, and that on two occasions, he struck complainants with the canister. This tendency, if established, is relevant to the question of whether a sergeant of police in fact acted in that way in the specified circumstances (a conclusion which might otherwise be thought by some to be improbable), and also to the question of whether he held an honest and reasonable belief that his actions were lawfully justified.
The judge’s conclusion that the evidence should not be excluded under s 101(2) was also a conclusion open to her. She specifically addressed the kinds of risks of prejudice to which the High Court had referred in Hughes, and expressed the view that they could be adequately tempered in this case by directions. We are unable to discern any error of the requisite kind in her Honour’s approach to this issue.
Whilst it is true that her Honour used the word ‘significantly’ instead of ‘substantially’, it seems to us that that was clearly a slip, rather than the application of an incorrect test. Her Honour was referred repeatedly to the correct formulation in s 101(2) both in writing[34] and orally.[35] When referred to it orally, the judge expressly accepted it.[36] Further, on the first occasion when she referred to the requirement of s 101(2), she used the correct term, ‘substantially’.[37]
[34]Defence Response to Summary of Prosecution Opening [16]; Outline of Submissions on behalf of the Accused Regarding Tendency Evidence [5], [9], [43], [48].
[35]Transcript of Proceedings, DPP v Sharman (a pseudonym) (County Court of Victoria, CR 21–02595, Judge Gaynor, 20 October 2023) 49.
[36]Ibid.
[37]Reasons, [16].
Counsel for the applicant made it clear to us that whilst reliance was placed on the use of the word ‘significantly’ in the context of the submission that the conclusion was unreasonable and unjust, it was not suggested that her Honour had made a specific error by applying the wrong test.
For the above reasons, leave to appeal will be refused.
There are also two additional considerations to which we would refer.
First, it seems to us to be likely that the evidence as it emerges at the trial may not be as it now appears in the depositions. There is a significant likelihood that the issue of tendency will need to be readdressed and great care will be needed to ensure that the directions given to the jury are suitably tied to the evidence and the particular issues on which the tendency is sought to be relied on.[38] We have already adverted to the lack of attention given to the relationship between the asserted tendency and the question of whether the accused acted unreasonably and without lawful excuse. From the applicant’s point of view, of course, the concern at the moment is the issue of severance. From the Court’s point of view, however, there ought to be a disinclination to reach conclusions which might be seen as final or definitive on the basis of material which may well significantly alter.
Secondly, this is the second occasion upon which an interlocutory appeal has been brought in relation to this indictment. Fragmentation of criminal trials is undesirable. It is for this reason that it is necessary for this Court to be mindful of the observations made in Todd as quoted earlier.

ANNEXURE A – JUDGE GAYNOR RULING

[38]See Jury Directions Act 2015 s 27.

The accused man, [Luke Sharman], faces one charge of intentionally causing injury, two charges of recklessly causing injury and eight charges of unlawful assault. One charge of recklessly causing injury and one charge of unlawful assault are laid in the alternative to the charge of intentionally causing injury. The charges relate to three separate incidents in Sale between March and 27 May 2018 when the accused, then a sergeant of police in the company of other police, answered triple O calls to attend public disturbances. It is alleged on each occasion Mr [Sharman] responded to the situation with physical force which the prosecution described in its opening, dated 7 March 2022, as ‘unprovoked, unlawful and unreasonable’. The trial is listed to commence in the Latrobe Valley County Court on 9 November 2023.
I am asked to make pre-trial rulings in two matters: (1), the prosecution has given notice it intends to adduce evidence it contends proves the accused had a tendency to act in a particular way. This is resisted by the defence, which instead seeks that the indictment be severed so that each alleged incident is the subject of a separate trial; (2), it is agreed by both parties that Timothy Sturgeon, the alleged victim of Charge 7 on the indictment, a charge of unlawful assault, is unavailable to give evidence at trial due to a continuing mental illness.
Pursuant to s 65(2)(b) and (c) of the Evidence Act, the prosecution seeks to read his statement to police into evidence at trial. The defence oppose this, claiming the bases for the exception to the hearsay rule contained in those sections are not made out. It also relies on s 137 of the Evidence Act whereby a court must refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. It is appropriate I summarise the scenarios which allegedly underlie the charges.
Incident 1 occurred on 2 March 2018 and underlies Charges 1 to 3 on the indictment, being charges of intentionally cause injury and alternative charges of recklessly cause injury and unlawful assault. Police were called to the aftermath of an 18th birthday party held at a hall diagonally opposite the Sale train station after a number of fights broke out amongst partygoers in the car park, which lay between the hall and the station. The alleged victim, Jayden Snowden, was one of about 90 guests who attended the party, which began at 6 pm.
He arrived at about 7 pm and told police that during the night, he drank a pack of bourbon and Coke and took a small amount of methylamphetamine. At about 11.22 pm, guests left the hall but stayed around in the car park where a number of fights broke out, eventually prompting a triple O call seeking police assistance at about 11.45 pm. In the meantime, according to the evidence of other partygoers, Mr Snowden assisted in breaking up those fights.
Police arrived just after 11.48 pm, Mr [Sharman] arriving with another officer in the first car followed by a second car containing three more police officers. As Mr [Sharman] and another officer walked to the hall entrance, Mr Snowden said, ‘Fuck the cops’. He then walked to a Toyota HiLux truck parked opposite the hall and again said, ‘Fuck the cops’. Mr [Sharman] and the other officer then approached Mr Snowden, who was standing with his back to the bonnet of the HiLux truck, and the accused told him to move on. Mr Snowden heard someone ask, ‘What did you say?’ He said, ‘I said, “Fuck the police”’, at which point the accused allegedly threw him face down on the truck bonnet, turned him over and sprayed him in the face with oleoresin capsicum OC spray. He then allegedly struck Mr Snowden to the left side of his head with the OC spray canister he held in his right hand.
During all this, Mr Snowden was spread-eagled on his back on the bonnet in a gesture of surrender. The accused then allegedly pulled Mr Snowden to the ground and handcuffed him. Soon after, he was pulled to his feet and walked to the rear of the police divisional van, and, whilst standing there, the accused allegedly again hit him on the head with the OC canister. Mr Snowden was then placed in the van and the doors closed. He shouted out, calling abuse and for help, but became unconscious, was taken out of the van and placed in a coma position and an ambulance called. Mr Snowden was taken by ambulance to hospital where a doctor examined his injuries. On 5 March, he laid a misconduct complaint at a local police station where his injuries were also photographed.
Incident 2 underlies Charges 4 to 7 on the indictment. It occurred in the early hours of 31 March 2018 and involved four complainants: Lachlan Cunningham, Marlin Seffelaar, Jake Spreadborough and Timothy Sturgeon. They had begun drinking in Maffra at about 4.30 in the afternoon, first at Mr Cunningham’s home, then at a sports club, then at the home of a friend in Sale who collected them by car from Maffra at about 11.30 pm. They then walked to the McDonald’s café some time after midnight where they sat on a brick retaining wall at the front after discovering they had no money for food.
At 2.43 am, a police divisional van was called to attend McDonald’s on a report of ‘youths causing trouble’. Policewoman Constable Goode and Senior Constable Avion attended, got out, and Constable Goode obtained the details of each man, beginning with Seffelaar, who apparently knew he had missed a court appearance and who behaved arrogantly and interferingly throughout the process. However, Constable Goode did obtain all details of all four young men, which were then checked by Senior Constable Avion on the police database and all confirmed. The check, however, did reveal there was an outstanding Bench warrant in relation to Mr Seffelaar, and because of his previous behaviour, the officers decided to call for assistance in arresting him and taking him to the Sale police station for processing.
The accused attended alone in another car, which he exited, carrying a canister of OC spray with him as he did. Constable Goode advised him of the situation with Mr Seffelaar. Both Mr Seffelaar and Mr Cunningham then began questioning the accused’s presence, referring to him as a ‘bald-headed cunt’. Mr Seffelaar was advised of the warrant and walked to the rear of the divisional van, saying words to the offender: ‘Come on, cunts. Let’s get this sorted’. He expressed disgust when told police would conduct a pat-down search, then Mr Spreadborough and Mr Cunningham approached, asking why Mr Seffelaar was being arrested.
The divisional vans doors were open, and Constable Goode and Senior Constable Avion were holding Seffelaar’s right and left arms respectively, Avion beginning to handcuff him, Mr Seffelaar, when the accused allegedly said, ‘Get back’. Mr Spreadborough began to move away, but Mr Cunningham stayed where he was. The accused allegedly repeated, ‘Get back’, then sprayed both Mr Cunningham and Mr Spreadborough in the face. Mr Seffelaar, now fully handcuffed, turned his head towards the accused and called him a ‘bald-headed cunt’, at which time the accused allegedly sprayed him in the face with the OC spray.
Mr Sturgeon then walked towards the accused, saying, ‘You might as well spray me, too’, and the accused allegedly sprayed him in the face with the OC spray. Mr Seffelaar was given after-spray care in the van before being driven to the Sale police station where he was processed and then driven by police back to the house in Sale where the four complainants had been drinking before going to McDonald’s.
Incident 3 underlies Charges 8 to 11 on the indictment and occurred on 27 May 2018. On 26 May, four young men – Danny Hughes, Matthew Grundy, Agassi Hua and Hayden Jackson – began drinking at Mr Jackson’s house in Sale and then went to the Criterion Hotel where Mr Jackson, Mr Hughes and Mr Grundy continued to drink until closing. They then walked to the Jack Ryan Hotel by which time Mr Jackson was drunk. Half an hour later, Mr Hughes became aware of a commotion out the front of the hotel, and he and Mr Hua went out where they saw a man who had been sprayed with OC spray lying on the street screaming.
A crowd controller told Mr Hughes and his friends to leave, which they did, protesting they had done nothing wrong. They were then approached by four police officers, one of them the accused, who told them to ‘move on’. Another man, Mitchell Hepworth, came up, telling police he was going to get a taxi from the rank, which was situated behind police, and walked between police members to get there. The accused grabbed him, told him he was under arrest and handed him to another police officer to take his details. Mr Hughes then stepped forward and was told by police to stop or get back and he stopped moving.
Suddenly, the accused allegedly sprayed Mr Hughes in the face with the OC spray. He then allegedly told Mr Jackson he was under arrest and tried to take his arm, but Mr Jackson pushed him away and fled. The accused and another officer pursued him, caught up with him briefly before he ran off again and then pursued him again and then went down on him on his back. The accused allegedly struck Mr Jackson on the head with the OC spray canister, causing a laceration to Mr Jackson’s scalp and damaging the canister so that all three men were hit with the OC spray. Mr Jackson was handcuffed and taken to the police station where he was given after-spray care and his injuries photographed. He returned the next day to lodge a misconduct complaint.
… [Judge addresses Sturgeon issue] …
Tendency:

The tendency of the accused alleged by the prosecution is ‘over a three-month period (between March and May 2018), whilst in the company of other police members, to use OC cannisters to spray or strike young men who are standing in the street and responding in either a defiant of challenging manner to those members but not behaving otherwise in a physically aggressive manner or threatening arrest’. Ss97(1) and 101(2) of the Evidence Act set out the conditions of the admissibility of tendency evidence, which is otherwise inadmissible. Pursuant to s 97(1)(b), it will be admitted if the court thinks the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party who is seeking to adduce the evidence, has significant probative value. S101(2) additionally requires that the tendency evidence about the accused adduced by the prosecution substantially outweighs any prejudicial effect it may have on the accused.
S97(1)(b):
Once the facts in issue in relation to the charge are determined, assessment must be made as to whether such evidence has significant probative value in relation to any charge. The High Court in Hughes v R (2017) 263 CLR 338, at paragraph 41, said this required consideration of two matters: (1), the extent to which the evidence supported the tendency and (2), the extent to which the tendency made the facts making up the charged offence more likely. The court said that strong support for both considerations would mean there was likely to be the high degree of probative value required.
In relation to the first proposition, Ms Lacy SC for the defence in a thorough and comprehensive submission said it was not accepted by the defence that the complainants were not acting aggressively or resisting arrest, pointing to the behaviour of Mr Jackson in fleeing the scene and Mr Seffelaar’s arrest. She submitted that given the nature of the accused’s work and the number of incidents he had attended during his career with the police force, the three incidents complained of were not sufficient to establish a tendency in a real sense, that is, as establishing a pattern of behaviour. As to the second proposition, Ms Lacy submitted the evidence supporting the tendency was weak and that the evidence in relation to every charge did not provide support for that tendency.
She submitted the tendency also failed to make it more likely that when the accused applied force to each complainant, he was acting unreasonably and without lawful excuse. Ms Lacy submitted that as the accused was not denying either his presence or use of force by OC spray, neither identification nor the acts alleged were in issue. This was, therefore, a very different case to ones considered in superior jurisdictions, laying out the general principles where tendency – sorry – where evidence of tendency is being pursued by the prosecution. Ms Lacy submitted that the evidence sought to be relied on by the prosecution as demonstrating a tendency was, in fact, nothing more than mere propensity. In summary, she submitted that in each case the accused was faced with a dynamic situation involving a number of variables requiring particular evaluation each time he encountered one of the complainants and reacted to them.
She submitted those dynamic situations, such as the reason for attendance, the risk to public at the time, the volatility of those present, including the complainants, the danger to police, the degree of back-up and the reason for arrest, were inherently different in each incident. She submitted that the reasonableness of the accused’s conduct in the circumstances of one dynamic incident had absolutely no bearing on the reasonableness of his actions in a different set of dynamic circumstances at the second and third incidents and vice versa. Ms Lacy submitted the alleged tendency was not influential in fact-finding, nor could it help the jury decide if her client acted without lawful excuse. She submitted relying on one incident to support another in this case would result in impermissible reasoning that because the accused had acted outside his lawful duty on one occasion, he was, therefore, the type of person who would so act in another situation.
While conceding some similarities of circumstances, Ms Lacy submitted they were not similarities that could rationally affect the assessment of the probability of a fact in issue. Ultimately, she submitted that the proposed tendency failed to make it more likely that the accused was acting unlawfully and without legal justification because he faced different variables on each occasion. Ms Lacy also submitted the features of the alleged tendency, both collectively and individually, lacked the necessary specificity or distinction, that is, they expressed no more than the conduct required to make out each charge, that is, it did not demonstrate a tendency to act in a particular way beyond the accused’s duties as a police officer. In support, she cited the circumstances of McPhillamy v The Queen where the High Court rejected the alleged tendency of that accused to ‘by his conduct demonstrate a sexual interest in male children in their early teenage years who are under his supervision’ as too general.
Mr Kounnas for the prosecution submitted the tendency covered a constrained period of time during which it was alleged the accused behaved in a particular way. He said the accused admitted deploying OC spray at each complainant and sometimes using other physical force, the hotly contested issue, therefore, being whether it was justified and proportionate. He submitted the evidence would assist the jury in that evaluation and, he further submitted, made it significantly more probable that it was not. He said the evidence was relevant to a fact in issue, that is, whether the accused sprayed or struck the complainants in the manner alleged, as well as addressing whether the accused held a belief that he had a lawful justification or excuse in doing so, which the prosecution asserts he did not. He submitted the factual difference in the behaviour of the accused during the three incidents was immaterial, and submitted the evidence powerfully demonstrated the alleged tendency.
S101(2):
Ms Lacy referred to paragraph 72 of Hughes where the court described the prejudicial effect referred to in that section where a jury may fail to allow that a person with a particular tendency to a state of mind or behaviour may not have either on a particular occasion the subject of a charge, or underestimate the number of persons sharing such a tendency.
The court also pointed to the possibility of a jury’s emotional response to an alleged tendency clouding its duty to determine whether the prosecution has established guilt beyond reasonable doubt. Ms Lacy submitted the proposed tendency evidence was unfairly prejudicial because of a real risk it would divert the jury from their primary task of carefully considering the direct evidence involving the dynamic variables in each case when dealing with a young man and their task of assessing the accused’s response to each set of dynamic variables to determine the question of lawful excuse in each circumstance.
Ms Lacy submitted the evidence would be given more weight than it deserved in the absence of evidence of occasions where the accused had demonstrably lawfully deployed OC spray and had what she termed a ‘powerful subconscious effect’ by overestimating the likelihood of the accused acting in accordance with the alleged tendency. Finally, she submitted the evidence would reduce the likelihood of an impartial rational evaluation of the evidence. Mr Kounnas did not specifically address s 101(2) in his submissions.
Conclusions:
I am satisfied the evidence does satisfy both legislative requirements.
S97(1): I am satisfied the evidence does have significant probative value. Despite the differing circumstances surrounding the three incidents, and the reason for police attendance, the evidence of each scenario underlying each charge clearly involved initial verbal confrontation between the accused and the complainants, and alleged immediate or almost immediate use of an OC spray canister by the accused either to spray or strike a complainant at a time when they had not otherwise physically threatened him.
There is no evidence of any physical threat, verbal or direct from the complainant which preceded use of the OC spray canister by the accused. It is my view that the alleged incidents contain singular features: young men taunting or verbally challenging police on the street, but clearly not otherwise demonstrating physical violence towards them.
At its highest, the prosecution case is the accused sprayed seven complainants. In each case, the OC spray was allegedly used suddenly and without warning by the accused (barring Timothy Sturgeon, who apparently told the accused he might as well spray him too). Many of the complainants immediately queried what they had done to warrant that reaction, and misconduct complaints were laid after occasions incidents 1 and 3.
OC spray is a powerful disabling agent causing immediate painful, physically disabling effects on the recipient, and use of it is necessarily confined to occasions where, according to the relevant Victoria Police manual, there are reasonable grounds to believe it is necessary and proportionate in situations of violence or where serious physical confrontation is imminent. Despite the accused’s concession that he deployed the spray and on occasion used physical force, the hotly contested issue for the jury will be whether his actions were unreasonable and without lawful excuse.
I am satisfied the tendency evidence goes directly to that issue, and, further, that the evidence strongly supports the alleged tendency, ‘to use OC canisters to spray or strike young men who are standing on the street and are responding in either a defiant or challenging manner to those members, but not otherwise behaving otherwise in a physically aggressive manner or resisting arrest’. The evidence of the alleged conduct is that, on each occasion, the accused resorted to use of the OC spray in unwarranted circumstances.
As such, it goes directly to a factual issue under dispute as well as the issue of innocent explanation, and I accept the prosecution submission that it would assist the jury in evaluating the accused’s actions and state of mind. Given that the alleged conduct is said to have occurred during a relatively short period of time, the defence argument that the lack of evidence of the accused’s appropriate use of OC spray canisters throughout his much longer career as a police officer means these three occasions relating to seven complainants cannot amount to a tendency also does not stand. It is alleged only that during this 12-week period the accused had such a tendency, and given the time limit imposed, I am satisfied the evidence does display such a tendency.
At trial, the defence can certainly present this argument to the jury. That jury will be instructed that they may infer the alleged tendency, not that they must, and the defence is not prevented either from raising their argument or presenting evidence to support it, nor for the same reasons do I accept the defence argument that the features relied upon by the prosecution as demonstrating tendency are so non-specific as to reduce the tendency to mere propensity. As I have said, I regard that evidence as containing singular, specific features of alleged behaviour by the accused in specific circumstances, taking it beyond impermissible reasoning that the accused was the sort of person to act in the way alleged. The defence submission that the tendency evidence also goes directly to the issue to be tried by the jury is also not accepted.
Tendency evidence often goes directly to the issue under consideration, such as an accused’s alleged tendency to have a sexual interest in young female grandchildren and to act upon that interest by sexually assaulting them in various ways when that accused is facing charges of sexually assaulting his granddaughters. I am satisfied that the tendency evidence strongly supports both the alleged tendency and makes significantly more probable the prosecution contention that he acted unreasonably and without lawful excuse.
S101(2): I am also satisfied that the probative value of the evidence significantly outweighs any prejudicial effect it may have on the accused. The defence objection was essentially founded on the risk it would divert the jury away from their task of determining whether the prosecution had proved the guilt of the accused man based on the direct evidence led in support of each charge. As I have said, notwithstanding the differing surrounding circumstances of each occasion giving rise to the charges, the evidence of each occasion is that the accused used an OC spray canister against complainants who were not physically threatening him or taking physical action upon him. Again, as I have said, I regard this as having significant probative value.
The jury will be directed that they must not be swayed by sympathy or bias but examine the evidence logically and without bias. A direction can also be framed specifically warning the jury against any emotional response to the evidence and referring to the dynamic variables of each situation faced by the accused. The jury will be instructed that they must consider each charge separately and in the light of the evidence led by the prosecution in support of that charge. They will be directed that they must each ask themselves in relation to each charge whether the evidence led by the prosecution has persuaded them of the guilt of the accused man beyond reasonable doubt and that only then may they bring back a verdict of guilty against him in relation to that charge.
They will also be instructed that if they are satisfied of the alleged tendency, they must not use that tendency alone to found a verdict of guilt beyond reasonable doubt against the accused but return always to their central task of examining the direct evidence led by the prosecution in support of each charge to determine whether or not the accused’s guilt has been established beyond reasonable doubt. I am satisfied that the directions will sufficiently temper any prejudicial effect of the tendency evidence such that it does not outweigh its probative effect. I therefore rule that the tendency evidence should be admitted at trial. Having ruled the evidence of tendency admissible, the application for severance is rejected.

[2024] VSCA 5

15 February 2024