The King v JN - [2023] NTSC 78

CITATION:The King v JN [2023] NTSC 78
PARTIES:THE KING
v

JN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22222084
DELIVERED:  1 September 2023
HEARING DATE:  25 August 2023
JUDGMENT OF:  Brownhill J

CATCHWORDS:

BC v The Queen [2019] NSWCCA 111; BD v The Queen [2017] NTCCA 2; BP v The Queen [2010] NSWCCA 303; DS v The Queen [2018] NSWCCA 195; El-Haddad v The Queen (2015) 88 NSWLR 93; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hoyle v The Queen (2018) 339 FLR 11; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Saoud v The Queen [2014] NSWCCA 136; The Queen v AB [2001] NSWCCA 496; The Queen v AW [2018] NTSC 29; The Queen v Bauer (2018) 266 CLR 56; The Queen v Lisoff [1999] NSWCCA 364; The Queen v Madrill (2013) 275 FLR 449; The Queen v RCA [2022] NTSC 6; The Queen v SF [2021] NTSC 91, referred to
Criminal Code Act 1993 (NT) ss 188, 192, 336
Evidence (National Uniform Legislation) Act 2011 (NT) ss 3, 97, 97A, 99, 101, 222
Evidence (National Uniform Legislation) Amendment Act 2021 (NT)
Evidence (National Uniform Legislation) Regulations 2012 (NT) r 6(1)
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021)
S Odgers, Uniform Evidence Law (LawBook, 16^th ed, 2021)
REPRESENTATION:
Counsel:
Crown:M Aust
Accused:P Little
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Grays Legal NT
Judgment category classification: C
Judgment ID Number: Bro2316
Number of pages: 24

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v JN [2023] NTSC 78
No. 22222084

BETWEEN:

THE KING

AND:

JN

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 1 September 2023)

The issues in this matter were whether evidence of the charged acts by the accused towards the complainant should be cross-admitted as tendency evidence in relation to the other charges, and whether evidence of various uncharged acts by the accused towards the complainant should be admitted as tendency evidence.
On 25 August 2023, I ruled that the proposed tendency evidence was admissible. I indicated that I would publish my reasons in due course. These are my reasons.
Charges
The accused is charged by an indictment dated 31 July 2023 with nine counts in relation to conduct against the complainant, said to have been committed between 16 June 2016 and 27 January 2020, when the complainant was aged between 12 and 16 years old. The charges are four counts of sexual intercourse without consent, contrary to s 192(3) of the Criminal Code (Counts 1, 3, 5 and 8), two counts of attempted sexual intercourse without consent causing harm to the complainant, contrary to s 192(3), (5) and (7) of the Criminal Code (Counts 6 and 9), and three counts of aggravated assault, contrary to s 188(1) and (2) of the Criminal Code (Counts 2, 4 and 7).
The Counts are alleged to have occurred on six separate instances, as follows:
(a)Count 1, between 16 June 2016 and 6 April 2017;
(b)Counts 2 and 3, between 7 January 2018 and 10 July 2019;
(c)Count 4, on 11 July 2019;
(d)Count 5, between 6 April 2017 and 13 August 2019;
(e)Counts 6 and 7, on 27 January 2020; and
(f)Counts 8 and 9, on 27 January 2020.
Crown case
The Crown case is that the accused is the biological father of the complainant. The complainant’s biological mother died when she was about one year old. The accused is now married to another woman (‘the mother’), who has been present for most of the complainant’s childhood and is accepted by the family as the complainant’s mother. The three of them emigrated to Australia from a refugee camp in around June 2016. They lived at various places in Darwin before living in a house in Malak (‘Malak house’) until about 6 April 2017, when they moved to a unit in Palmerston (‘first unit’). They lived in that unit until about 13 August 2019, when they moved to another unit in the same complex (‘second unit’). The complainant left that residence on 27 January 2020.
The Crown says the accused engaged in acts of violence against the complainant on many occasions, not particularised. Those generally occurred when the mother was out of the home, working night shifts. The complainant and the mother were both subject to physical abuse by the accused.
While living at the Malak house, when the complainant was 12 or 13 years old, she was having a bath. The accused went into the bathroom and began wiping her body with a cloth. He wiped her vagina and then inserted his finger into her vagina. He then left the room. That is the subject of Count 1.
Whilst living at the first unit, when the complainant was 14 or 15 years old, the accused went into her bedroom as she was sleeping, early one morning. He woke her up. He was holding duct tape and a chilli in a jar. He tied her hands behind her back with the duct tape and moved her onto the floor. She tried to escape and yelled at him to leave her alone. He removed her underwear and used his fingers to apply chilli to her vagina, causing her pain. He kicked her to the vagina. He then inserted his chilli covered finger inside her vagina and removed it. He kicked her leg and squeezed her leg with his hand, causing her pain. He then left the room. That is the subject of Counts 2 and 3.
On 11 July 2019, when the complainant was 15 years old, she was at home at the first unit on school holidays. Both the accused and the mother were at work. In the early afternoon, she was having a shower. The accused came home from work unexpectedly. He unlocked the bathroom door and went in. He asked the complainant why she had not cleaned the house. He told her he wanted to check if she was a virgin and bathe her. She refused. He opened the shower door and punched her to her arms and back, then pushed her head hard against the shower wall, causing pain. The accused told her to finish bathing and clean the house. He left. That is the subject of Count 4. The complainant contacted the mother and told her what had happened. The mother decided to take the complainant to the hospital, but told her to give a false story to the hospital staff and say she slipped and fell in the shower. They went to the hospital. The complainant had tenderness to the back of her head. She told the doctor she had shampoo in her eyes and hit her head.
When the complainant was aged 13 to 15 and living at the first unit, the accused and the complainant were at home babysitting a child who was aged six to eight years. The accused grabbed the complainant’s hands and dragged her into the upstairs ensuite bathroom. The child was downstairs. The accused forced the complainant to make a choice between him inserting his penis into her vagina or him inserting the rubber stopper from the back of the door into her vagina. She did not want either option but, fearing being assaulted either way, she told him to use the rubber door stop. He removed the rubber door stop from the back of the door, removed her clothing, made her put her hands on the sink and bend over. He held her back to stop her from moving and inserted the rubber door stop into her vagina, causing her pain. She told him to leave her alone. He removed the door stop from her vagina and let her go. She left the room. That is the subject of Count 5.
At about 5.00am on 27 January 2020, when the complainant was 16 years old, the accused went into the complainant’s bedroom and stood over her bed. He began touching her breasts and tried to kiss her. She moved her face away. He tried to remove her underwear. She resisted but he managed to remove them. He tried to open her legs to enable himself to insert either his penis or finger into her vagina. She physically resisted and pushed him away, telling him to leave her alone. She thwarted his attempt to have sexual intercourse with her. He became angry and punched her to the chest, causing pain. He then left the room. That is the subject of Counts 6 and 7.
At around 9.00am on 27 January 2020, the accused returned to the complainant’s bedroom and said to her that he had to check her virginity. He removed her underwear and repeatedly inserted his finger in and out of her vagina. He exposed his penis and told her to touch it. She refused. He tried to insert his penis into her vagina but was unable to. He got off her and told her to have a bath and wash the bed sheets. He left the room. That is the subject of Counts 8 and 9.
The accused denies any sexual activity with the complainant.
The trial is listed for 9 days commencing on 25 March 2024.
Tendency evidence
The Crown gave notice under s 97(1) of the Evidence National Uniform Legislation Act 2011 (NT) (‘ENULA’) of its intention to adduce tendency evidence. In broad terms, the proposed tendency evidence comprised, firstly, evidence to be led in support of each of the charged acts and, secondly, evidence of other conduct (‘uncharged acts’) in which the accused: (a) touched or inserted his finger into the complainant’s vagina to check if she was a virgin; (b) assaulted her if she refused to let him do that; and (c) tried to force the complainant to have sex with him.
The proposed tendency evidence is contained in statements from the complainant, four complaint witnesses and two investigating Police officers, who spoke to the complaint witnesses and took photos of text messages sent by the complainant to a complaint witness. The mother has refused to give a statement about the matter. Some of the complaint witnesses relay what the mother told them about the matter.
Proposed tendency evidence
The Crown contended that the proposed tendency evidence relates to the central facts in issue in the proceeding, namely whether the accused sexually offended against the complainant as alleged.
The tendency notice stated that the tendencies sought to be proved are the tendency of the accused: (a) to have: (i) a sexual interest in the complainant and a preparedness to act on it; and (ii) a controlling disposition over the complainant’s sexual autonomy and a preparedness to act on it; and (b) to: (i) engage in threatening and violent conduct towards the complainant when she resisted his sexual advances; (ii) physically manipulate the complainant’s body and clothing in order to sexually assault her; (iii) insert his finger or fingers or adapted implements into her vagina to ‘check her virginity’; (iv) attempt to penetrate her vagina with his penis; (v) enter the bathroom or shower when she is alone and naked and sexually assault her; and (vi) enter her bedroom when she is alone and sexually assault her or attempt to do so.
Sections 97 and 97A of the ENULA
Under s 97 of the ENULA, evidence of the conduct of a person 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 the appropriate notice has been given and the Court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value. ‘Probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[1]
The Defence argued that the Crown’s tendency notice, which was served on 21 August 2023, was not reasonable notice in writing of the Crown’s intention to adduce the evidence within s 97(1)(a) of the ENULA. The complaints appeared to be that the tendency notice was served almost 12 months after the Crown disclosed the prosecution brief to the Defence, the Police gathered evidence in relation to the matter over a period of over two years and took a number of statements from the complainant, and the tendency notice did not strictly comply with the notice requirements.
Section 99 of the ENULA provides that tendency notices are to be given in accordance with any regulations or rules of court made for the purposes of the section. Regulation 6(1) of the Evidence (National Uniform Legislation) Regulations 2012 (NT) provides that a tendency notice must state: (a) the substance of the evidence intended to be adduced; and (b) particulars of: (i) the date, time and place at, and circumstances in which, the conduct occurred; and (ii) the name of each person who saw, heard or otherwise perceived the conduct.
The tendency notice contains the substance of the proposed tendency evidence, indicating which of it comprises the charged Counts and which comprises uncharged acts. By referring to the charged Counts, the particulars of the alleged offending, including the date, time, place and circumstances of it, are found in the Crown’s outline of its case. The tendency notice also sets out the names of the witnesses who saw, heard or otherwise perceived the conduct (being the complainant and the complaint witnesses) and refers to the documents containing that evidence, namely the statements of the witnesses and the Police officers. A notice which states, by reference to documents readily identifiable, the nature and substance of the proposed tendency evidence is sufficiently compliant with the notice requirements.[2] Given that there is no rigid formula required to be adopted in doing so, I am satisfied that the tendency notice identifies which charged and uncharged acts are cross-admissible in relation to which charges and for what purpose.[3] It is clear on the face of the notice that each of the charged acts and the uncharged acts is sought to be admitted as evidence going to each other charged act.
As for the timing of the service of the notice, for notice to be ‘reasonable’, what matters is the period of time prior to the trial when the notice is served, not the period of time after the service of the prosecution brief, or the period of time over which the Police investigation proceeded. Here, the notice was served some seven months prior to the trial listing. That was more than reasonable notice.
The Defence submission that the notice requirements of s 97 have not been met is rejected.
Section 97A of the ENULA
With effect from 1 April 2021, s 97A was introduced into the ENULA. By s 222 of the ENULA, s 97A applies in relation to a proceeding in which the hearing commenced after 1 April 2021, when the Evidence (National Uniform Legislation) Amendment Act 2021 (NT) commenced. There is no definition in the ENULA of when the hearing in a proceeding is taken to have commenced. For the purposes of ss 97A and 222, the hearing of a criminal proceeding in this Court may be taken to have commenced when the accused is first arraigned by the Court on the indictment with which he or she is charged.[4] In the present case, the accused had not been arraigned before 1 April 2021. Section 97A therefore applies.
Under s 97A of the ENULA, in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue, evidence that the defendant had a sexual interest in a child or children (including the complainant), or was prepared to act on such sexual interest, is presumed to have significant probative value for the purposes of ss 97(1) and 101(2) (s 97A(1)-(3)).
‘Child sexual offence’ is defined in s 97A(6) to mean (relevantly) any sexual offence against a child and an offence against a law of the Territory involving an unlawful sexual act with or directed towards a child, however described.
Counts 1, 2, 3, 5, 6, 8 and 9 on the indictment are clearly child sexual offences within the meaning of s 97A (s 97A(6)). The aggravated assaults in Counts 4 and 7 did not involve any sexual offence or unlawful sexual act against or with the complainant, so they are not child sexual offences within s 97A. The aggravated assault in Count 2 involved the accused, amongst other things, applying chilli to the complainant’s vagina and kicking her to the vagina, which would clearly comprise an indecent assault within s 188(2)(k) of the Criminal Code. The aggravated assault was therefore a sexual offence or an unlawful sexual act against the complainant, and it is therefore a child sexual offence within s 97A.
Section 97A(2) operates in respect of tendency evidence about: (a) the sexual interest the accused has or had in children; and (b) the accused acting on a sexual interest he has or had in children.
In my view, each of the alleged tendencies falls within s 97A(2). The first alleged tendency clearly falls within s 97A(2)(a). The second alleged tendency also falls within s 97A(2)(a) because it involves the accused having a sexual interest in the complainant by considering himself entitled to exert dominion over the complainant’s sexual autonomy and her right to refuse his sexual demands or interferences. The last five alleged tendencies above clearly fall within s 97A(2)(b) because they involve the accused acting on a sexual interest in the complainant. The third alleged tendency also falls within s 97A(2)(b) because it involves the accused doing an act, namely threatening the complainant with violence or being physically violent to her when she resisted his sexual advances.[5] It, like the last five, involves the accused acting on a sexual interest in the complainant.
Hence, the presumption of significant probative value in s 97A(2) will apply to those seven alleged tendencies and Counts 1, 2, 3, 5, 6, 8 and 9 unless the Court is satisfied that there are sufficient grounds to determine that the tendency evidence does not have significant probative value (s 97A(4)), which is to be determined by not taking into account the matters listed in s 97A(5), unless the Court considers there are exceptional circumstances which warrant taking one or more of those matters into account (s 97A(5)).
The Defence argued that there are exceptional circumstances which warrant taking one or more of the matters in s 97A(5) into account, namely that the Police gathered evidence in relation to the matter over a period of over two years and took a number of statements from the complainant. The submission appeared to be that the Police investigation was somehow sub-standard and consequently affected the reliability of the proposed tendency evidence. That submission is inconsistent with the principle referred to in paragraph [39] below that the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.
I consider that there are not exceptional circumstances which warrant taking one or more of the matters in s 97A(5) into account. The only matters put by the Defence in relation to the probative value of the tendency evidence were matters falling within s 97A(5), namely matters in s 97A(5)(a), (b) and (e).
Consequently, I am not satisfied that there are sufficient grounds to determine that the proposed tendency evidence does not have significant probative value. It follows that the proposed tendency evidence has significant probative value in establishing Counts 1, 2, 3, 5, 6, 8 and 9.
That leaves for consideration the probative value of the proposed tendency evidence in establishing Counts 4 and 7, which is to be assessed without reference to s 97A.
Legal principles
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen, as follows:[6]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.

Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[7]
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.
Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[8] A ‘significant’ probative value is a probative value which is important or of consequence.[9] The term ‘significant’ connotes something more than mere relevance but less than a substantial degree of relevance, and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[10]
The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.[11] This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[12] Nor does it involve assessing the significance of the possibility of collusion or concoction which ‘should be left to an occasion when it is raised in a concrete factual setting’.[13]
Significant probative value – Counts 4 and 7
As regards Counts 4 and 7, they are both allegations of physical assault of the complainant after she refused or resisted the accused’s efforts at sexual conduct. They are each, therefore, clearly capable, to a significant extent, of establishing the alleged tendency to engage in threatening and violent conduct when the complainant resisted his sexual advances, and that alleged tendency is clearly capable, to a significant extent, of making more likely the facts making up the other charged offences. The evidence relating to each of Counts 4 and 7 has significant probative value in establishing the other Counts, and the proposed tendency evidence relating to the other Counts and the uncharged acts has significant probative value in establishing Counts 4 and 7.
Degree of probative value
It is not necessary that the conduct relied on as tendency evidence be strikingly or even closely similar conduct to, or that it have an underlying unity with, the charged conduct.[14] However, the closer the degree of similarity, the more significant and more probative the evidence is likely to be, because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.[15] Similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself, such that, even if the conduct is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of ‘significant probative value’.[16]
Here, all of the proposed tendency evidence relates to the complainant. Three of the charged acts (Counts 1, 3 and 8) and one category of the uncharged acts involve the accused putting his finger/s into her vagina, and another (Count 5) involved the accused inserting an object into her vagina. Two of the charged acts (Counts 6 and 9), and one category of the uncharged acts, involve the accused attempting to have either digital/vaginal or penile/vaginal sexual intercourse with the complainant. Two of the charged acts (Counts 1 and 8), and each of the three categories of the uncharged acts involved the accused telling the complainant he needed to check her virginity. One of the charged acts of aggravated assault (Count 4) also involved the accused telling the complainant he needed to check her virginity, which she refused. Two of the charged acts (Counts 1 and 4), and part of one category of the uncharged acts, involved the accused approaching the complainant whilst she was naked and bathing or showering, and one (Count 5) involved the accused taking the complainant to the bathroom and removing her clothing. The other charged acts (Counts 2, 3, 6, 7, 8 and 9), and part of one category of the uncharged acts, involved the accused approaching the complainant whilst she was in bed in her bedroom. Two of the charged counts of aggravated assault (Counts 4 and 7) and two of the categories of the uncharged acts involved the accused physically assaulting the complainant if she refused or resisted his sexual conduct.
The similarities in the nature and circumstances of the alleged offending, and the uncharged acts, demonstrate that: (a) the proposed tendency evidence is highly probative of proof of the eight alleged tendencies; and (b) the alleged tendencies are highly probative of the facts that the accused committed the alleged offending. In The Queen v Bauer,[17] the High Court observed (at [55]) that a high probative value is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts. In BP v The Queen,[18] Hodgson JA (Price and Fullerton JJ agreeing) observed that it is unusual for a parent or grandparent to commit sexual acts against their children or grandchildren, and such acts would, to a very significant extent, rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest by assaulting them, and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged. In the present case, not only is it unusual for a parent to have a sexual interest in their children, and to commit sexual acts against their children, but the accompanying demand to ‘check the virginity’ of the complainant is also unusual.
Further, there is sufficient proximity in time between the uncharged acts and the alleged sexual offending (which occurred on numerous occasions over a period of about three years), and sufficient similarity between the circumstances of the uncharged conduct of the accused and the circumstances of the conduct of the alleged offending, which all involved the complainant, to provide a linkage between the uncharged acts and the alleged offending, such that the evidence shows more than a mere disposition to commit crimes of the kind in question.[19]
On the basis of their understandings of the behaviour of parents based on common experience (and without resort to stereotyping based on prejudice), the jury could, and is likely to, logically and rationally reason, both from the nature of the offending (sexual offending against his child) and from the similarities in the offending and/or its circumstances already referred to, that a tendency established at the time of the first alleged offence will be exhibited again, across the period of the three years in which the charged and uncharged acts are said to have taken place.[20]
Consequently, all of the proposed tendency evidence has high probative value.[21]
Danger of unfair prejudice to the accused
Section 101(2) of the ENULA restricts the admissibility of tendency evidence unless the probative value of it outweighs the danger of unfair prejudice to the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused. Recent amendments to the ENULA have changed the test under s 101(2): no longer is the requirement for admissibility that the probative value of the evidence substantially outweighs its prejudicial effect; it need only outweigh the danger of unfair prejudice to the defendant.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[22] The notion of prejudice in this general context ‘… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.’[23] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[24]
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[25]
The Defence argued that there is a risk, which cannot be cured by judicial direction, that the proposed tendency evidence will have an ‘extreme’ prejudice, which appeared to be that it may provoke an irrational, emotional or illogical response in the jury, namely that they may be inclined to punish the accused for an abhorrent sexual interest in the complainant, a child under or around the age of 16, rather than confining their attention to the question of whether the prosecution has established the elements of each offence beyond reasonable doubt.
The issue here is the risk of prejudice from the admission of the evidence for tendency purposes. In relation to the charged acts, whether or not the evidence about each is admissible as tendency evidence, the jury will hear that evidence. Any risk of an irrational, emotional or illogical response to the evidence in the jury will largely arise from the evidence of the charged acts itself, regardless of whether it is admissible to establish the alleged tendencies. Permitting the jury to use the evidence to find the existence of the alleged tendencies does not add significantly to any risk of an irrational, emotional or illogical response to the evidence which, if it is accepted, is likely to be seen as abhorrent offending.[26] The same applies in relation to the evidence of the complaint witnesses about the uncharged acts. That evidence will be admitted as complaint evidence (at least) in any event. As for the complainant’s evidence about the uncharged acts, I consider that any danger of prejudice to the accused is well outweighed by its high probative value.
In addition, any risk that the jury will give the proposed tendency evidence more weight than it deserves arises whenever tendency evidence is admissible. There is always the risk the jury will think that someone with the alleged tendencies will act on them whenever the opportunity arises. That is why the jury is commonly directed, when tendency evidence is put before the jury, that: (a) finding the accused did have the tendency the Crown alleges is not enough to prove guilt; (b) while the tendency may assist the Crown to prove the accused committed the offences, it is not enough by itself; (c) the question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges and that is the only way the accused’s tendency may be used; and (d) ultimately, they must decide whether the specific offences with which the accused has been charged have been proved, which decision must be based upon the evidence relevant to each of the charges, including the evidence of the complainant.[27] This risk can be adequately addressed by a direction which includes the elements just referred to, and makes clear that the jury cannot convict the accused of any charged act unless satisfied beyond reasonable doubt of the commission of that act.[28]
Given the high probative value of the proposed tendency evidence, I do not accept that the probative value of the proposed tendency evidence is outweighed by the danger of unfair prejudice to the accused.
Disposition
For the above reasons, my rulings were as follows:
1.The proposed tendency evidence is admissible pursuant to s 97 of the ENULA.
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[1]ENULA, s 3, Dictionary, Part 1.

[2]See The Queen v AB [2001] NSWCCA 496 at [15] per Adams J (Spigelman CJ and Sully J agreeing).

[3]See The Queen v Bauer (2018) 266 CLR 56 at [83]-[84] per the Court.

[4] The trial of an accused is deemed to have begun when they are called upon to plead to the indictment and say whether they are guilty or not guilty of the charges. The deeming is the combined effect of s 336(1) and (2) of the Criminal Code. Under s 336(1), ‘an accused person is to be informed in open court of the offence with which he is charged as set forth in the indictment and may be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge’. Section 336(2) then provides: ‘The trial is deemed to begin and the accused person is deemed to be brought to trial when he is so called upon.’ See The Queen v SF [2021] NTSC 91 at [3] per Barr J, citing The Queen v Madrill (2013) 275 FLR 449 at [10]-[11] per Barr J. See also The Queen v RCA [2022] NTSC 6 at [25] per Brownhill J.

[5]I have construed this tendency as specifically relating to occasions when the complainant resisted the accused’s sexual advances, rather than as relating generally to threats or violence against the complainant.

[6]Hughes v The Queen (2017) 263 CLR 338 (‘Hughes’) at [16] per Kiefel CJ, Bell, Keane and Edelman JJ (citations omitted).

[7]Ibid at [41].

[8] Ibid at [16].

[9] IMM v The Queen (2016) 257 CLR 300 at [46] per French CJ, Kiefel, Bell and Keane JJ (‘IMM’).

[10] BD v The Queen [2017] NTCCA 2 at [84] per Grant CJ, Kelly and Barr JJ.

[11]IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].

[12]IMM at [38]-[39], [41], [58].

[13]Ibid at [59].

[14] Hughes at [38]-[39]; Saoud v The Queen [2014] NSWCCA 136 at [39] per Basten JA (Fullerton and R A Hulme JJ agreeing).

[15] Taylor v The Queen [2020] NSWCCA 355 at [122(vii)] per Bell P and the authorities there referred to.

[16] Ibid at [122(ix)] per Bell P and the authorities there referred to.

[17](2018) 266 CLR 56.

[18][2010] NSWCCA 303 at [112].

[19]S Odgers, Uniform Evidence Law (LawBook, 16^th ed, 2021) at [EA.97A.120], citing BC v The Queen [2019] NSWCCA 111 at [82].

[20]See DS v The Queen [2018] NSWCCA 195 at [9] per Basten JA.

[21]Hughes at [56]-[60]; Hoyle v The Queen (2018) 339 FLR 11 at [120] per Murrell CJ, Burns and North JJ.

[22]The Queen v AW [2018] NTSC 29 at [30] per Grant CJ.

[23] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.

[24] Hughes at [17].

[25]The Queen v Lisoff [1999] NSWCCA 364 at [60] per Spigelman CJ, Newman and Sully JJ.

[26]In El-Haddad v The Queen (2015) 88 NSWLR 93 at [82], Leeming JA observed that s 101 applies with much greater force when the only way in which evidence is said to be relevant is because of tendency or coincidence reasoning. That is not the case here.

[27]See, for example, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [4-227].

[28]See The Queen v Bauer (2018) 266 CLR 56 at [74] per the Court.