The King v Mayatjun - [2023] NTSC 16

CITATION:The King v Mayatjun [2023] NTSC 16
PARTIES:THE KING

v
MAYATJUN, John

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22126152
DELIVERED:  24 February 2023
HEARING DATE:  17 November 2022
JUDGMENT OF:  Burns J
CATCHWORDS:

EVIDENCE – Hearsay – Hearsay rule - Evidence (National Uniform Legislation) Act 2011 (NT), s 59, s 62, s 65, s 69 – unavailability of witnesses – business records – evidence admissible – evidence inadmissible
EVIDENCE – Admissibility – Tendency evidence – Evidence (National Uniform Legislation) Act 2011 (NT), s 97 – Whether tendency evidence of significant probative value – Whether evidence supports proof of the alleged tendency – Whether proof of tendency makes more likely the elements of the offences charged – Whether probative value of the evidence outweighs any potential prejudicial effect on the accused – evidence admissible – evidence inadmissible
Evidence (National Uniform Legislation) Act 2011 (NT) s 59, s 62, s 65, s 69, s 67, s 97, cl 6
Evidence Act 1995 (NSW) s 65
Averkin v Insurance Australia Ltd [2016] NSWCA 122; Conway v The Queen (2000) FCR 204 at [146]; Hughes v The Queen [2017] HCA 20
IMM v The Queen [2016] HCA 14; Lancaster v The Queen (2014) 44 VR 820, [2014] VSCA 333 at [23] to [27]; McPhillamy v The Queen [2018] HCA 52; R v Bauer (a pseudonym) [2018] HCA 40; R v Singh (No 4) [2021] NSWSC 75; R v Tarantino [2019] NSWSC 939; TL v The King [2022] HCA 35; TL v The Queen [2020] NSWCCA 265, referred to.
REPRESENTATION:
Counsel:
Crown:V Engel SC with T Grealy
Accused:J Pappas with E Morton
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: A
Judgment ID Number: Bur2305
Number of pages: 95

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Mayatjun [2023] NTSC 16

No. 22126152
BETWEEN:

THE KING

AND:

JOHN MAYATJUN

CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 24 February 2023)
Introduction

The accused, John Mayatjun, is awaiting trial on one charge alleging that on 27 August 2021 he murdered Gwen Dhamarrandji.
There are 3 applications before the Court concerning evidence which the Crown proposes leading at the accused’s trial. The Crown has filed 2 notices pursuant to s 67 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) stating that it intends to adduce hearsay evidence at the accused’s trial (the Hearsay Notices). The proposed evidence is evidence of statements made by the deceased and by another deceased person. The accused accepts that some of the proposed hearsay evidence is admissible but objects to other parts of the proposed evidence.
In addition, the Crown has served on the accused a notice pursuant to s 97(1) of the ENULA that it intends to lead tendency evidence at his trial (the Tendency Notice). The Crown also proposes leading the same evidence as relationship evidence. The accused objects to the Crown’s proposal to lead tendency evidence. The accused accepts that some, but not all, of the evidence which the Crown proposes leading would be admissible as relationship evidence.
These applications came before me on 17 November 2022. Written submissions were filed by both parties, and extensive oral submissions in support of those written submissions were made regarding the tendency application. Unfortunately, due to shortness of time, no oral submissions were made in support of the hearsay applications, with the parties relying on their written submissions.
The Crown case against the accused
The following is taken from the Crown Case Statement filed 7 November 2022.
It is alleged that on Friday, 27 August 2021, shortly before 8 PM, Gwen Dhamarrandji (the deceased) was found dead in the laundry at the rear of Unit 65, Litchfield Court, Coconut Grove by her niece, Melissa Yibalana. Ms Yibalana had moved into Unit 65 earlier that week. The accused was the long term partner of the deceased, and the two of them had spent time with Ms Yibalana in the lead up to 27 August 2021.
An examination of the body of the deceased revealed that she had sustained multiple injuries, including numerous lacerations, bruises, and abrasions to her head, neck and torso, as well as closed fractures to her left and right distal ulnas, and displaced fractures to metacarpal bones in her right hand. A post-mortem revealed significant internal injuries including multiple large scalp bruises and crush injuries with multiple acute bilateral rib fractures with diffuse surrounding haemorrhage into the surrounding soft tissue and muscles. The cause of death was determined to be multiple blunt force injuries. It was the opinion of the pathologist who conducted the post-mortem that all of these injuries had been recently inflicted and that all had been inflicted at about the same time, being within hours before the death of the deceased.
It is the Crown case that sometime during Thursday, 26 August 2021 or Friday, 27 August 2021, the accused violently assaulted the deceased causing her death. It is the Crown case that at least some of the injuries inflicted upon the deceased were inflicted by the use of a towel rack which had been in place in the laundry prior to 26 August 2021 but which was observed to be missing when the deceased’s body was located. The pathologist who conducted the autopsy on the body of the deceased expressed the opinion that a number of the injuries observed on the body of the deceased were consistent with having been caused by a towel rack, and a number of injuries were consistent with having been caused by a belt.
At the time of her death, the deceased had a full leg cast to her left leg from a prior injury which the Crown alleges was inflicted on the deceased by the accused on 4 August 2021. As a result of that injury, the deceased had reduced mobility, requiring the assistance of a wheelchair to get around. The cast on the deceased’s left leg was observed to have blood spatter and blood staining on it when her body was discovered.
The laundry where the deceased’s body was discovered was observed to have blood staining over the walls and laundry cabinet. Later forensic analysis confirmed that the blood was consistent with belonging to the deceased. Palm prints and fingerprints found in the deceased’s blood on the walls and laundry cabinet were examined and identified as the accused’s fingerprints and palm prints. Blood spatter consistent with belonging to the deceased was also found at various places in the laundry.
One area of particular significance to the Crown case is the back wall of the laundry. Cast-off patterns of blood spatter were identified by an expert on this wall. These are typically seen when liquid blood is “flung” from an object moving through the air with significant momentum and are generally linear or near linear in shape. Cast-off patterns typically result from a liquid bearing object, such as an arm or a weapon, being swung with significant momentum. The cast-off pattern observed in the vicinity of the back wall of the laundry extended from a height of approximately 850 mm to 1600 mm and is said by the Crown’s expert to represent a single pattern, resulting from a single action. The blood found in this cast-off pattern was found to be attributable to the deceased.
It is the Crown case that some of the blood spatter stains that form part of the cast-off pattern overlapped a bloodied handprint, identified as the accused’s handprint in the deceased’s blood. That handprint was located at a height of approximately 1300 mm to 1500 mm. The accused’s height is said to be approximately 1.77 m. The Crown’s forensic expert opined that the accused’s handprint in the deceased’s blood preceded the laying down of the cast-off pattern in the deceased’s blood. The inference which the Crown will ask the jury to draw from these circumstances is that the accused was present in the laundry when the fatal injuries were inflicted on the deceased.
It is the Crown case that the deceased was last seen alive on Thursday, 26 August 2021. She had been part of a group of people drinking at Litchfield Court. The deceased and the accused had been “long-grassing” (living rough) in the lead up to her death and had spent a few days in the vicinity of Litchfield Court, in particular spending time with Ms Yibalana at Unit 65. The last known sighting of the deceased on CCTV footage was at approximately 8:20am on Thursday, 26 August 2021, when she was seen being pushed in her wheelchair by the accused at the Puma Service Station in Nightcliff. The last known sighting of the deceased is said to have been on Thursday afternoon when she was seen in the vicinity of Unit 65.
Ms Yibalana, who was staying at Unit 65 on her own, spent Thursday afternoon at Unit 39 Litchfield Court. When she returned to Unit 65 later that night she did not enter the back laundry of the unit. When she returned to her unit on Thursday night, Ms Yibalana did not see the deceased or accused. Ms Yibalana left her unit on the morning of Friday, 27 August 2021 without looking in the laundry and spent the day with friends in Nightcliff. She returned to her unit later that evening, and discovered the body of the deceased before raising the alarm.
The accused was arrested on Sunday, 29 August 2021. He was found to have tenderness across both hands when he was arrested. DNA testing of his clothing yielded results consistent with the presence of the deceased’s blood. In particular, staining on the accused’s belt, on his shorts and on the back of a shirt worn by him was found to be consistent with the deceased’s blood.
The applications to lead hearsay evidence
It is convenient to address these applications first, as the determination of the admissibility of the hearsay evidence is relevant to the tendency application. With regard to the tendency application, the Crown proposes leading evidence of 22 incidents involving the accused and the deceased extending over the period between October 1999 and August 2022 (the incidents). I will refer to the tendency application in greater detail below, but for present purposes it is important to understand that in most (but not all) cases the only evidence available to the Crown to prove what occurred in those incidents is hearsay evidence. It is for the purpose of proving what occurred in those incidents that the Crown seeks to lead the hearsay material identified in the hearsay notices.
Some of the hearsay evidence the Crown seeks to lead is in the form of evidence from witnesses who will, the Crown says, give evidence of things said to them by the deceased. Some of the evidence is in the form of statements made by Helen Wanalimawu, a witness who is also now deceased. Some of the proposed evidence is in the form of written documents such as police records and medical records which are said to contain things that were said by the deceased to the makers of those records.
The hearsay applications are governed by the provisions of the ENULA, the relevant parts of which are as follows:
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 59
The hearsay rule – exclusion of hearsay evidence
(1)     Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)     Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 62
Restriction to “first-hand” hearsay
(1)     A reference in this Division (other than in subsection (2) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)     A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3)     For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 65
Exception – criminal proceedings if maker not available
(1)     This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)     The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a)[Not applicable].
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)[Not applicable].
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 69
Exception – business records
(1)     This section applies to a document that:
(a)Either:
i.is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
ii.at any time was or formed part of such a record; and
(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2)     The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3)     Subsection (2) does not apply if the representation:
(a)was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b)was made in connection with an investigation relating or leading to a criminal proceeding.
(4)     [Not applicable].
(5)     For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
The following provisions of Part 2 of the Dictionary to the ENULA are also relevant:
1References to businesses
(1) A reference in this Act to a "business" includes a reference to the following:
(a)a profession, calling, occupation, trade or undertaking;
(b)an activity engaged in or carried on by the Crown in any of its capacities;
(c)an activity engaged in or carried on by the government of a foreign country;
(d)an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);
4Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a)the person is dead;
6Representations in documents
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:
(a)the document was written, made or otherwise produced by the person; or
(b)the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.
In summary, the hearsay rule, as found in s 59 of the ENULA, provides that evidence of a previous representation about an asserted fact made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation. The term “previous representation” is defined in the Dictionary to the ENULA as meaning “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”.
There are exceptions to the hearsay rule provided by the ENULA, the most important of which for present purposes are those found in s 65 (unavailability of witnesses) and s 69 (Business records). The provisions of s 65 permit a witness to give oral evidence in criminal proceedings of relevant hearsay statements made by a deceased person so long as the requirements of the section are met. The provisions of s 69 permit relevant hearsay statements found in business records to be received as documentary evidence in criminal proceedings so long as the requirements of that section are met. Unless otherwise indicated, all references to legislation in these reasons are references to provisions of the ENULA.
To the extent that the Crown seeks to lead previous representations made by the deceased and Ms Wanalimawu, there is no doubt that each such person is unavailable to give evidence at the accused’s trial. That requirement of s 65 is satisfied.
The operation of s 65 of the Evidence Act 1995 (NSW), which is in identical terms to s 65 of the ENULA, was considered by Beech-Jones J in R v Tarantino:[1]
22.     In considering s 65, two matters should be borne in mind. The first is the observation in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [60] (“Sio”) that it is “no light thing to admit a hearsay statement inculpating an accused”. This is because where s 65 is successfully invoked, “the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion” (Sio at [60]).
23.     The second matter is that, in applying s 65, it is necessary to identify the precise representation that is sought to be adduced and then to consider the circumstances in which that representation was made in order to determine whether the conditions of admissibility specified in s 65(2) are met or not (Sio at [57]).
24.     There is a threshold question as to whether the representations that are recorded in the statement of 28 July 1998 were made “shortly after” the asserted fact so as to engage s 65(2)(b). The asserted facts concern Ms Third’s observation of the events at around 7.35am on 27 July 1998. The representations recorded in the statement of 28 July 1998 were made, as I said, sometime after 4.35pm on 28 July 1998 and presumably no later than around 11.00pm that night, that is, between 33 and 38 hours after the asserted fact.
25.     In Regina v Mankotia [1998] NSWSC 295 (“Mankotia”), Sperling J observed that the quote “shortly after” requires a “normative judgment ... to be made dependent on the circumstances of the case”. In Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 (“Williams”), the Full Court of the Federal Court observed (at [48]):
“The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway [Conway v R (2000) 172 ALR 185; [2000] FCA 461] the statement in question was made by a murder victim who said, while observed to be looking ‘terrible’, that she had been drugged and had been ‘off her face for about three or four hours’. The comments of the Court in Conway regarding the meaning of ‘shortly after’ should be understood accordingly.”
26.     Consistent with the emphasis upon a statement being made under the proximate pressure of the occurrence of the asserted fact, typically passages of time of seconds or hours have been held to satisfy the test of “shortly after” (see, for example, R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875 at [19] (“Dacey”) and R v Afu; R v Caleo (No 15) [2018] NSWSC 245 at [24]). However, periods of many days and months generally have not (see R v Maglovski [2012] NSWSC 1378 at [13], concerning a period of three months; Williams at [49], concerning a period of five days).
27.     It seems that periods of time longer than a day but shorter than a number of days are the most problematic. In Dacey at [50], Button J held that a 30-hour lapse was not sufficient to make the representation “shortly after” the asserted fact. I made a finding to the same effect in R v Bryce (No 1) [2014] NSWSC 495 at [25] to [32] (“Bryce”). However, in R v Toki (No 3) [2000] NSWSC 999 at [92] (“Toki”), Howie J held that a delay of one day between the asserted fact and the making of a representation nevertheless meant that the representation was made shortly after the asserted fact.
28.     All of these findings are fact specific as contemplated by the statement of Sperling J in Mankotia. Thus, in Toki, the representation was made to the treating doctor for injuries received during the events that gave rise to the asserted fact.

Both s 65(2)(b) and (c) refer to the circumstances in which the representation was made. In R v Singh (No 4),[2] N Adams J gave a synopsis of prior authorities on this issue:
32.     Given that both 65(2)(b) and (c) require a consideration of the relevant “circumstances" in which the representations were made, it is helpful to have regard to what the authorities have held are sufficient circumstances to warrant the admission of hearsay representations under this statutory provision.
33.     In Clarke (a pseudonym) v The Queen [2017] VSCA 115 the trial judge erred in admitting hearsay evidence under s 65(2)(c) after taking into account the fact that the hearsay representations were corroborated by the evidence of another witness. The Court held that this approach was erroneous as, in considering the circumstances in which a representation was made, “a court [is not permitted] to take into account other evidence which tends only to address the asserted fact”: (at [80] per Redlich JA and Beale AJA). That is consistent with the statement of Mason P (Hulme and Simpson JJ agreeing) in R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386 at [34]-[35]: the Court should “exclud[e] [from its consideration of the circumstances] evidence tending only to prove the asserted fact”.
34.     In Prasad v R [2020] NSWCCA 349, the deceased complainant represented in a statement to police that she had not consented to certain sexual acts and had manifested her lack of consent by words or actions (at [91]). In relation to one of the counts, the deceased had separately represented to her carer that she had “had the best night of [her] life” (at [99]). To the extent that any of the representations in the police statement asserted that the complainant had not consented to this count, the representations were inadmissible under s 65(2)(c) to prove this fact as the circumstances could not be considered “highly probably reliable” (at [100] per Macfarlan JA, Wilson J and I in agreement).
35.     In Harris v R [2005] NSWCCA 432 (at [44]-[46]), the representation was made in a formal statement to police acknowledging potential criminal liability for false statements. The representations in Harrisv R were admitted under s 65(2)(b) as they were made in a formal statement to police, were not inherently unlikely, and were capable of verification by other witnesses (at [44]-[46] per Studdert J, Grove and Whealy JJ agreeing).
36.     In Youkhana v R [2013] NSWCCA 85 (at [52]-[54]) the representor gave evidence to the Crime Commission “in the knowledge that the contents of such statement could, and would, be checked by the Commission” (at [52]). The representor’s awareness that the representations would be independently verified was a circumstance of reliability and it was held to be open to the trial judge to admit the representations under s 65(2)(b) (at [52]-[54] per Bellew J, Hoeben CJ at CL and Slattery J agreeing).
37.     In Williams v The Queen [2000] FCA 1868 at [56]- [58] the Federal Court (Whitlam, Madgwick and Weinberg JJ) considered the admissibility of statements made by a representor who was under caution for a serious offence, the police recently having discovered a firearm buried in his garden. Because the representor was a suspected accomplice with “a variety of reasons to tell the police what... they wanted to hear”, the representations were held not to be admissible under subs (b) or (c).
38.     Whether or not the representor had a motive for fabrication was also considered relevant in R v Kuzmanovic [2005] NSWSC 771 at [19].
39.     In Munro v The Queen [2014] ACTCA 11 at [16], the representor was a cleaner recounting his system of work. The court held that it was open to the trial judge to admit the representations under s 65(2)(c) as the system of work was likely to be well-remembered, the representor had no personal interest in the subject matter or outcome of the trial, and any motivation to exaggerate would be outweighed by the inclination to avoid prosecution (as the evidence could to some extent be verified with his former employer) (at [16] per Refshauge ACJ and Penfold J; at [79] per Burns J).
40.     In Chidiac v The Queen (No 2) [2016] NSWCCA 120 the representor recanted evidence that he had previously given under oath. At the time of recanting, the representor “had secured his release”, was overseas, and “may have considered that he was not at risk of any further action by authorities against him if he should falsely recant” (at [152] per Bathurst CJ, Button and Fagan JJ). As the representor was not at any risk of prosecution for making a false statement, the representations were found to be inadmissible under s 65(2)(d).
41.     In Azizi v The Queen [2012] VSCA 205. the representations were made to a social worker from whom the representor was seeking help. The representor repeatedly described the events of the night before, including having unsuccessfully sought assistance from the police. The circumstances were held to be such that the representations were unlikely to be a fabrication (at [78]-[79] per Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).
42.     More recently, representations made to a sibling were considered by Button J in R v Ryan [2020] NSWSC 1394 at [12]- [14]. In Ryan, statements made by the deceased to her sister regarding her relationship with the accused (the deceased’s husband) were not admissible under ss 65(2)(b) or (c). Statements made “in close relationships... about private matters” could be reliable or not reliable, fabricated or not fabricated, and therefore the overall circumstances were “neutral” such that the preconditions to admissibility were not positively satisfied. After referring to the decision in Sio his Honour stated the following:
“The High Court at [60] emphasised the strictness with which the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross examine the maker of the statement if it is inculpatory.
I think respectfully, as a matter of common sense, the rule against hearsay is something that has been part of our jurisprudence for hundreds of years, and I believe it is the objective intention of Parliament that exceptions having been carved out by Parliament be approached with a degree of rigour, and with appreciation of the consequences.”
43.     Summarising the above decisions, circumstances which have been held to have favoured reliability include:
(1)If the representations are made in a statement to police acknowledging potential criminal liability for false statements;
(2)Representations made to an investigating authority (e.g. NSWCC) in the knowledge they will be checked for truthfulness;
(3)When an employee who has no personal interest in the subject matter or outcome gives evidence about a work practice;
(4)When representations are made to a social worker in the course of seeking assistance, the representor having unsuccessfully earlier sought help from police.
44.     On the other hand, circumstances which have not favoured reliability include:
(1)Representations made to siblings about a relationship;
(2)When representations are a recanting of evidence given on oath and the representor is not at risk of prosecution for false statements;
(3)Where the representor has a motive for fabrication, for example because they are being investigated for a serious offence; and
(4)If the evidence is directly contradicted by other statements made by the representor.
45.     Further, corroborating evidence from another witness is not relevant to the circumstances in which the representation was made.
In considering the Crown’s applications, it is in all cases important to identify not only the representation sought to be adduced by the Crown, but also the form in which it proposes adducing evidence of the representation, so as to determine what statutory requirements (and prohibitions) attach to the proposed tender. In particular, where it is proposed to adduce the evidence by tendering a business record, the exception to the hearsay rule found in s 69(2) does not apply if the provisions of s 69(3) apply. Those provisions were considered in Averkin v Insurance Australia Ltd,[3] where Leeming JA, with whom McColl JA agreed, said:
111. Subsection (3) carves out from the exception to the hearsay rule for which s 69(2) provides as follows:
(3) Subsection (2) does not apply if the representation:
(a)was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b)was made in connection with an investigation relating or leading to a criminal proceeding.
112. When paragraphs (a) and (b) are read together, it may be seen that both provisions look forward to future litigation, but they do so in quite different ways. Paragraph (a) will at least ordinarily require an answer to the question why the representation was prepared or obtained. If that was for the purpose of conducting litigation, or for or in contemplation of or in connection with litigation, then it applies. The words “for” (twice), “purpose” and “in contemplation” are all words which are directed to identifying a purpose. When there is such a purpose connecting the preparation or obtaining of the representation to litigation, then the subsection applies.
113. In contrast, paragraph (b) turns on the circumstances in which the representation was made. No question of purpose arises; there must instead simply be a sufficient connection between the making of a representation and an investigation. True it is that the investigation must be one which relates to or leads to a criminal proceeding, and in that way paragraph (b) also looks to the future. It is in this way that there is a link between the representation and litigation.
114. In both paragraphs (a) and (b), the exception to the hearsay rule created by s 69(2) is unavailable because there is a link with litigation. It is well established that the underlying purpose of the carve-out in subsection (3) is a concern that the relaxation of the hearsay rule for business records might lead to the admission of self-serving documents. That rationale was given by Barrett J in Vitali v Stachnik [2001] NSWSC 303 at [12] and has been endorsed in numerous subsequent decisions, including in this Court in Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 at [25] (Campbell JA) and [88] (Gyles AJA, dissenting as to the application of the provision).
115. Paragraph (a) of subs 69(3) proceeds expressly on the basis that the litigation may not presently be in existence (notably, by the words “in contemplation of”). I consider, favourably to Mr Averkin, that the criminal proceedings in paragraph (b) likewise need not be in existence at the time the representation is made, and indeed need never in fact commence. I would readily accept the force of McDougall J’s observation that many investigations do not in fact lead to a criminal proceeding, and that it would unduly confine the language of the carve-out to insist that criminal proceedings must in fact have been commenced: Walsh v Walgett Shire Council at [18] and [20]. A further reason for reaching that conclusion is that it would be a capricious result that the hearsay rule would not apply to a document at one point in time but would apply later (namely, if and when criminal proceedings were ultimately commenced). There are after all many reasons why a prosecution may be delayed.
With these principles in mind, I will consider each of the 22 incidents advanced by the Crown and the hearsay evidence which the Crown seeks to lead regarding each incident. Before doing so, however, I will address 2 general submissions made by the accused regarding the hearsay applications.
Firstly, the accused submitted that none of the medical or other records which the Crown seeks to adduce satisfy the requirements of clause 6 of Part 2 of the Dictionary to the ENULA because there is no evidence either that any such document was (a) written, made or otherwise produced by the deceased, or (b) that the deceased recognised the representations made in the document by signing, initialling or otherwise marking the document.
In advancing this submission, the accused appears to treat the provisions of clause 6 as imposing conditions which must be met in all cases where a party seeks to tender documentary evidence. If that is the accused’s position, then I must respectfully disagree. Clause 6 is a provision which facilitates proof of the identity of the maker of a representation contained in a document. It does not, however, purport to be the exclusive means by which such an identification may be made; a tribunal of fact remains entitled to draw inferences from the document and other evidence if necessary. Clause 6 does not govern the admissibility of documents to which s 69 of the ENULA applies.
The second submission advanced by the accused concerns a matter of procedure. The accused quite correctly observes that the hearsay notices are provided under s 67, which only applies where a party seeks to adduce hearsay evidence utilising subsections 63(2), 64(2) and 65(2), (3) and (8). It follows that the hearsay notice does not directly raise the admissibility pursuant to s 69 of the documents referred to in that notice. I accept this submission, so far as it goes. The submission, however, ignores the manner in which the present applications were conducted in which both parties addressed (in written submissions) the admissibility of documentary evidence pursuant to the provisions of the ENULA. Indeed, it is virtually impossible to divorce the question of the admissibility of the representations relied upon by the Crown from the manner in which the representation is to be adduced. An exercise which was limited to consideration of the Crown’s application to adduce evidence of these representations by reference to s 65 would have little utility. For this reason I have addressed the admissibility of the documentary representations not only with regard to the provisions of s 65, but also with regard to the provisions of s 69.

The first incident

The first incident is said to have occurred on 4 August 2021. It is alleged to have occurred in the area of Little Mindil Beach in Darwin. It is alleged by the Crown that the accused became jealous and assaulted the deceased, breaking her leg. As I understand it, the accused was not charged with any offence arising out of this incident. Indeed, there is evidence that the deceased told medical personnel at the Darwin Hospital that she had been attacked by someone that she did not know.
In proof of this incident, the Crown proposes leading evidence of 3 previous representations said to have been made by Ms Wanalimawu, consisting of:
(a)     Representations made by Ms Wanalimawu in a sworn statutory declaration on 5 October 2021;
(b)     Representations made by Ms Wanalimawu in the course of a 000 call on 5 August 2021; and
(c)     Representations made by Ms Wanalimawu in the course of a witness conference with officers of the Director of Public Prosecutions on 12 October 2022.
As I understand it, the Crown does not propose tendering the Statutory Declaration as a document. The representations made in the Statutory Declaration were clearly made in connection with a criminal investigation. This is evidenced by the fact that in the statutory declaration Ms Wanalimawu states that she is available to give evidence in court if required and that she understands that “the contents of this document may be disclosed for defence purposes”. It is not fatal to the application of s 69(3)(b) to these representations that no criminal proceedings against the accused relating to this incident were commenced.
I therefore approach the question of the admissibility of the representations found in the Statutory Declaration on the basis that the Crown will lead evidence of the relevant representations made by Ms Wanalimawu through the witnesses identified as relevant to each representation in the hearsay notice. Accordingly, the relevant provision of the ENULA is s 65.
The representations made by Ms Wanalimawu in the Statutory Declaration fall into 2 categories. The first category are representations as to events about which Ms Wanalimawu may be supposed to have personal knowledge. These include representations that she was present at Little Mindil Beach on an occasion when the deceased complained of having a broken leg, Ms Wanalimawu’s observations of the deceased’s apparent difficulty in walking, the calling of an ambulance by Ms Wanalimawu and its attendance, that the accused and deceased had been camping at Little Mindil Beach at that time and that the accused and the deceased were with Ms Wanalimawu at her camp the night before the deceased made her complaint.
The second category of representations made by Ms Wanalimawu concern events about which it may not be supposed she had personal knowledge. Significantly, this includes a representation that the deceased said, when asked what had happened to her leg, that “Johnny had been belting her all night over jealousy issues”. The Crown would undoubtedly ask the jury to infer that the reference to “Johnny” was a reference to the accused.
There could be no doubt that were Ms Wanalimawu still alive, any evidence that she could give about what the deceased said to her about the cause of the deceased’s leg injury would have been hearsay, but it would have been first-hand hearsay for the purposes of the ENULA because the representation made by the deceased that the accused had “belted her” was a representation based on something that the deceased had seen. This is to be contrasted with any evidence that could be given by a third-party witness who was the recipient of the representation made by Ms Wanalimawu about the statement made to Ms Wanalimawu by the deceased. This is second-hand hearsay if the intention of adducing the evidence is to prove the truth of the assertion made by the deceased.
The asserted fact (see s 59(2) of the ENULA) which the Crown seeks to prove by adducing evidence of what the deceased said to Ms Wanalimawu is that it was the accused who assaulted the deceased at Little Mindil Beach on this occasion causing the deceased to suffer a fractured leg. This is not a fact about which Ms Wanalimawu may be supposed to have personal knowledge, because Ms Wanalimawu’s “knowledge” of that fact is based on the prior representation made by the deceased.[4]: Consequently, any evidence which could be given by a third party of any previous representation made by Ms Wanalimawu that the deceased nominated the accused as the person who assaulted her is not a previous representation of a type to which s 65 applies. Accordingly, the Crown will not be permitted to adduce evidence through a third-party witness of the representation made by Ms Wanalimawu that the deceased said that her leg injury sustained at Little Mindil Beach was the result of the accused assaulting the deceased.
The remaining representations made by Ms Wanalimawu, which fall into the first category identified at [27] above, were not made “when or shortly after” the asserted facts occurred. The asserted facts relevant to the first category of representations are the observations made of the deceased by Ms Wanalimawu after the deceased suffered a leg injury, the observations of the presence of the accused and deceased at Little Mindil Beach at the time when the deceased suffered a leg injury, and the actions taken by Ms Wanalimawu regarding that leg injury. The representations made by Ms Wanalimawu regarding these matters were not made until about 2 months after the asserted facts occurred. Accordingly, evidence of those previous representations is not admissible under s 65(2)(b).

Turning to s 65(2)(c), the representations given by Ms Wanalimawu which fall into the identified first category were made in circumstances where Ms Wanalimawu was aware that these representations, being incorporated into a Statutory Declaration as they were, had to be truthful and that a wilful false statement could result in prosecution and imposition of a term of imprisonment. In addition, it would have been obvious that aspects of those representations could be, and probably would be, confirmed by police through 000 records, ambulance records and the like. I am satisfied that the circumstances in which these representations were made make it highly probable that the representations are reliable. Those representations are admissible pursuant to s 65(2)(c).
I turn now to the representations made by Ms Wanalimawu in the course of a 000 call on 5 August 2021. These representations were heard by the 000 operator and were also recorded. The recording is a “document” for the purposes of s 69.[5] If the Crown seeks to adduce evidence of the representations by tendering and playing the 000 recording, it must satisfy the requirements of s 69.
No evidence was placed before me regarding the operation of 000 services in the Northern Territory, but I doubt that there would be any dispute that it is a service provided by government to connect individuals to appropriate emergency services in the event of an emergency. This falls within either paragraph (1) (b) or (1) (d) of the definition of the term “business” found in clause 1 of Part 2 of the Dictionary to the ENULA. The recording would undoubtedly be part of the records belonging to or kept by a person in the course of or for the purposes of that business. The recording also contains previous representations made by Ms Wanalimawu recorded in the document in the course of the business. As such, the requirements of s 69(1) are satisfied regarding the 000 recording.
The most significant representation made by Ms Wanalimawu in the course of the 000 call concerns the way in which the deceased suffered her leg injury. The relevant portion of the 000 conversation is:
Operator:             Hello, what’s happened with her?
Ms Wanalimawu: Uh, she can’t, can’t walk properly. She don’t wanna get up. But I need the ambulance be here. (Inaudible) hospital please.
Operator:             Yeah. Why can’t she walk properly?
Ms Wanalimawu: Uh cause when I make her stand up, she can’t walk up.
Operator:             Why not?
Ms Wanalimawu: Because happened been last night. They had fight last night.
(Emphasis added)
I will focus on the final representation made by Ms Wanalimawu in the above extract. The asserted fact which the Crown seeks to prove by adducing this representation is that it was the accused who injured the deceased’s leg at Little Mindil Beach. There are obvious weaknesses in the proposed evidence for that purpose, but that may for the present be passed over.
It is accepted by the Crown that Ms Wanalimawu did not personally observe any interaction between the accused and the deceased on 4 or 5 August 2021 that may have resulted in the deceased suffering a broken leg. As such, the requirements of s 69(2)(a) are not satisfied. It may be inferred that the representation made by Ms Wanalimawu is based upon information supplied to her by the deceased and about which the deceased might reasonably be supposed to have personal knowledge. While this is “second-hand hearsay” it is nevertheless admissible pursuant to s 69(2)(b).[6]
The 000 recording was not prepared or obtained for legal proceedings, nor was it made in connection with an investigation relating or leading to a criminal proceeding. The exception in s 69(3) does not apply. Prima facie, the representation is admissible pursuant to s 69 of the ENULA.
The Crown also proposes adducing evidence of representations made by Ms Wanalimawu to officers of the Director of Public Prosecutions (DPP) in the course of a witness briefing on 12 October 2022. The essence of the representations made by Ms Wanalimawu on that occasion are that she and the deceased were both upset when they had their discussion at Little Mindil Beach on 5 August 2021, that in that discussion the deceased told Ms Wanalimawu that the deceased was in a lot of pain, and that Ms Wanalimawu observed the deceased to be walking with the aid of “a stick”.
The asserted facts which the Crown would seek to prove by adducing this material are:
(a)     That the deceased was in a lot of pain on the morning of 5 August 2021;
(b)     That the deceased appeared to be upset that morning; and
(c)     That the deceased was walking with the aid of a stick that morning.
For the reasons given at [36] above, if Ms Wanalimawu were still alive she could give first-hand hearsay evidence of the representation made to her by the deceased that the deceased was in pain. For the reasons given at [37] above, however, the Crown will not be permitted to lead evidence of the representation made by Ms Wanalimawu through a third-party witness.
The representations made by Ms Wanalimawu about her observations of the deceased on the morning of 5 August 2021 were not made when or shortly after the asserted facts occurred, so that the evidence of those representations is not admissible under s 65(2)(b).
It may readily be inferred that when she spoke to officers of the DPP on 12 October 2022, Ms Wanalimawu was aware that she was telling them what evidence she would be able to give at the accused’s trial. The conversation was therefore a formal occasion on which Ms Wanalimawu would have known that she was expected to tell the truth. The significant circumstance attending the making of Ms Wanalimawu’s Statutory Declaration, that she was aware that the making of a false statement could result in prosecution and a potential prison sentence, is not present with regard to her conversation with the DPP officers. The requirement imposed by s 65(2)(c) that the Court be satisfied that the circumstances in which the representation is made make it “highly probable” that the representation is reliable has been said to be an onerous requirement.[7] On balance, I am not satisfied that the representations made by Ms Wanalimawu in this meeting were made in circumstances that make it highly probable that they are reliable. The representations are not admissible under s 65(2)(c).
In addition, the Crown relies on representations said to have been made to another person, Tracey Ganambarr to the effect that it was the accused who broke the leg of the deceased at Little Mindil Beach. A Statutory Declaration was completed by Ms Ganambarr on 16 September 2021 setting out, inter alia, details of a conversation Ms Ganambarr had with the deceased. Ms Ganambarr does not give a date that the conversation occurred, but as the deceased had her leg in a cast and was using a wheelchair it may be inferred that it was within weeks of the incident at Little Mindil Beach. In that conversation the deceased blamed the accused for the injury to her leg in circumstances where he was jealous of the deceased.
The asserted facts which the Crown seeks to prove by adducing evidence of this representation is that it was the accused who broke the leg of the deceased, and that he did so because he was jealous. These are facts about which the deceased had “personal knowledge” as defined by s 62(2). I understand that the Crown will seek to lead evidence of the representations through Ms Ganamburr, and not by tendering the Statutory Declaration. The relevant provisions of the ENULA are therefore s 65(2)(b) and (c).
The evidence does not support the proposition that the representations made by the deceased to Ms Ganambarr were made when or shortly after the asserted facts occurred. According to the Statutory Declaration made by Ms Ganamburr, the deceased had spent 2 weeks in hospital before she was discharged, so that the conversation with Ms Ganamburr could not have occurred any earlier than 2 weeks after the asserted facts occurred. As such, the representations are not made admissible by s 65(2)(b).
The circumstances in which the representations were made do not make it highly probable that the representations are reliable. The representations were made in an informal conversation between the deceased and Ms Ganamburr. The deceased would have had no reason to believe that any negative consequences would flow to her if she did not tell the truth in that conversation. Nor would the deceased have had any reason to believe that Ms Ganamburr would seek to check the accuracy of the representations. In addition, there are hospital records (to which I will refer shortly) which record that the deceased told hospital staff on her admission to hospital on 5 August 2021 that she had been attacked by an unknown person. The fact that the deceased made earlier inconsistent representations regarding the cause of her leg injury is a circumstance that must be taken into account in determining whether the test in s 65(2)(c) is satisfied.[8]
Finally, the Crown proposes relying on medical records from the St John Ambulance Service (the ambulance records) and the Royal Darwin Hospital (the hospital records). The Crown seeks to tender those records as business records under s 69.
The ambulance records contain a record of observations of the deceased made by the ambulance officers who attended Little Mindil Beach following the 000 call made by Ms Wanalimawu on 5 August 2021. The asserted fact which the Crown seeks to prove by adducing that evidence is that the deceased exhibited the physical signs set out in the report. These representations are admissible pursuant to s 69(2)(a).
The ambulance records also contain representations made by “bystanders” that the deceased had been assaulted the previous evening. Those representations do not satisfy either limb of the test for admissibility in s 69(2). They are not admissible.
The hospital records contain representations made by staff at the hospital concerning observations made of the deceased and treatment given to her. The hospital records are admissible under s 69(2) as far as they contain those representations. The hospital records also contain representations of what was said by the deceased to hospital staff. The hospital records are also admissible under one or other of the limbs of s 69(2).
In summary, with regard to the first incident, I have determined that:
(a)     the Crown will not be permitted to adduce evidence through a third-party witness of the representation made by Ms Wanalimawu that the deceased said that her leg injury sustained at Little Mindil Beach was the result of the accused assaulting the deceased;
(b)     the Crown will be permitted to lead evidence of the 000 call by tendering the document;
(c)     the Crown will not be permitted to lead evidence of the representations made by Ms Wanalimawu during the briefing on 12 October 2022;
(d)     the Crown will be permitted to tender the ambulance records insofar as they contain representations of observations of the deceased by ambulance officers on 5 August 2021, but the Crown will not be permitted to adduce evidence found in those records of representations relating to what bystanders said to the ambulance officers; and
(e)     the Crown will be permitted to tender the hospital records.

The second incident

The second incident occurred on 10 May 2021, and resulted in the accused being convicted of an offence of aggravated assault. The facts regarding that matter are that on 10 May 2021 the accused and the deceased both consumed alcohol at The Narrows, before travelling by bus to Palmerston where the deceased had an appointment. Once he arrived at Palmerston, the accused became angry and tried to convince the deceased not to go to her appointment. When the deceased disagreed, the accused became enraged and struck the deceased 3 times to her face with his clenched fists. The deceased was conveyed to Palmerston Hospital where it was found that she had suffered cuts to her left cheek and swelling to her face. In a Statutory Declaration made by the deceased on 10 May 2021, she stated that the accused had assaulted her and then said: “I don’t want to be with John anymore as he always does this.”
As I understand it, the Crown does not propose tendering the Statutory Declaration made by the deceased on 10 May 2021. The Crown proposes calling evidence of representations made by the deceased to police at the time that she completed the Statutory Declaration. This evidence will be given by a police officer who heard or otherwise perceived those representations when they were made. The relevant provision of the ENULA governing admissibility of this proposed evidence is s 65. The asserted facts which the Crown seeks to prove by adducing this material is that the accused assaulted the deceased and that, as at 10 May 2021, the deceased expressed a desire to cease her relationship with the accused.
This incident occurred on 10 May 2021 and the representations made by the deceased to police were made the same day. The deceased represented to police that the accused had assaulted her earlier that day by hitting her face “maybe 3 times”. I am satisfied that these representations were made shortly after the asserted fact occurred. I note that there are circumstances that make it unlikely that the representations are a fabrication, including similar representations being made to ambulance officers who treated the deceased proximate in time to the incident, and similar representations being made to hospital staff later that day. In addition, the deceased displayed injuries consistent with her account.
There is a further representation said to have been made at this time, and recorded in the Statutory Declaration. It is alleged that the deceased said “I don’t want to be with John anymore as he always does this.” In context, the reference to “John” can only be a reference to the accused. The representation by the deceased that she no longer wants to be with the accused may be relevant to the Crown case as providing a possible motive for the accused to be angry with the deceased.
The remainder of the representation, however, suggests that the accused had a tendency to assault the deceased. The Crown, of course, proposes leading tendency evidence for exactly that purpose, but it proposes doing so by reference to 22 identified incidents, 20 of which are said to have occurred before March 2017. The statement by the deceased that the accused “always does this” is apt to suggest to the jury that the accused was assaulting the deceased regularly in or around 2021 and with greater frequency than is alleged by the Crown in its tendency application. This representation was not the subject of specific attention in the accused’s written submissions, but at the risk of going beyond my appointed function in determining these applications, I suggest that it is highly probable that it should be excluded under s 137 of the ENULA. That is a matter which the parties may consider.
I am satisfied that the representations made by the deceased to police at the time that she completed her Statutory Declaration (with the possible exception of the representation referred to in the previous paragraph) are admissible pursuant to s 65(2)(b).
Curiously, the representations made in the Statutory Declaration would probably not be admissible under the business record exception to the hearsay rule by reason of the application of s 69(3), but the same representations are admissible under s 65, which does not include a provision equivalent to s 69(3). Of course, the fact that representations are made to police in contemplation of proceedings being commenced against an accused person would, in many cases, be a circumstance relevant to determining whether the requirements of s 65(2)(c) have been satisfied. For the reasons I have given above, I do not consider this to be such a case.
The next category of evidence which the Crown seeks to tender are ambulance records. These documents contain a record of a representation made by the deceased that she had been assaulted by the accused. This representation is admissible pursuant to s 69(2)(a). Similarly, the representations made in the document as to the ambulance officers’ observations of the deceased and their treatment of her are also admissible. There is no suggestion that the provisions of s 69(3) apply to this material.
The Crown also relies on representations made by the deceased to hospital staff which are recorded in hospital records. These representations are to the effect that she had been assaulted by the accused and that she had certain injuries as a result of that assault. Those representations are admissible pursuant to s 69(2)(a). The representations were clearly made for the purpose of providing a history to those treating the deceased and there is no suggestion that the representations are inadmissible by virtue of s 69(3).
Finally, the Crown seeks to tender Clinical Progress Notes made by a social worker on 11 May 2021, presumably while the deceased was still in hospital. In those notes the deceased is recorded as representing that the accused assaulted her on 10 May 2021. Subject to the operation of s 69(3), the document is admissible pursuant to s 69(2)(a) so far as it contains that representation.
The potential application of s 69 (3) arises because the notes record that the deceased had spoken to police the day before, 10 May 2021. It may be inferred that the reason police spoke to the deceased was regarding her complaint that the accused had assaulted her, and that the interview culminated in the deceased making the Statutory Declaration that day. The risk arises from the chronology that the deceased may have made self-serving statements in her conversation with the social worker in the knowledge that a complaint had been made to police and that proceedings against the accused may be commenced. The Crown will not be permitted to tender the Clinical Progress Notes.
In summary regarding the second incident:
(a) The Crown will be permitted to lead oral evidence of representations made by the deceased to police on 10 May 2021, with the possible exception of the representation referred to at [64] above;
(b) The Crown will be permitted to tender the ambulance records and the hospital records;
(c) The Crown will not be permitted to tender the Clinical Progress Notes.

The third incident

The third incident allegedly occurred on 3 February 2017. It is alleged that police attended Royal Darwin Hospital (RDH) and spoke to the deceased. She reported that she was sitting on a bench outside the covered area of the hospital trying to rest, having previously consumed some alcohol. She said that the accused was in pain as part of dialysis that he was undertaking. The accused apparently told police that he wanted the deceased to get assistance for him as he was in pain and he could not wake her. The deceased reported that the accused hit her on the back with his palm to wake her up. No action was taken by the police.
The Crown seeks to lead this evidence by tendering a Northern Territory Police PROMIS record (a computer record) of police attendance at the hospital on 3 February 2017. It is clear from that record that someone other than the deceased called police to the hospital alleging that the deceased had been assaulted by “her partner”. Any representation in the record that an unidentified person represented that the accused had assaulted the deceased is clearly inadmissible.
I will not address whether the statement said to have been made by the accused to police and recorded in the PROMIS record is admissible as an admission. The parties did not address this issue and it is unnecessary for me to do so because of the view that I take about the capacity of this evidence to have significance to the tendency application (see below).
It may readily be inferred that one reason for the police obtaining the representation from the deceased was in contemplation of proceedings against the accused. The PROMIS document is therefore inadmissible, so far as it contains the representation by the deceased that the accused had hit her, by virtue of s 69(3).

The fourth incident

The fourth incident is alleged to have occurred on 27 May 2010 at some time between 9 and 10 pm. It is alleged that the deceased and the accused were engaged in an argument over jealousy on the part of the deceased. It is alleged that the accused became angry and hit the deceased on her hand with a tin cup. The deceased sought medical treatment at around 10 am the next day for a fractured hand. The deceased declined to make a statement to police, but did want a Domestic Violence Order. A Domestic Violence Order was made on 28 May 2010 restraining the accused, amongst other things, from causing harm or attempting to cause harm to the deceased. Police spoke to the accused who admitted hitting the deceased’s hand with the metal cup.
The evidence which the Crown proposes adducing to prove this allegation is apparently in 2 forms. Firstly, the Crown proposes leading oral evidence of representations made by the deceased to police on 28 May 2010 that the accused had assaulted her the previous evening by hitting her hand with a metal cup. The representation was made approximately 12 to 13 hours after the event. I am satisfied that this was sufficiently proximate to the event for the purposes of s 65(2)(b). There are circumstances that existed at the time that make it unlikely that the representation was a fabrication. These circumstances include that the accused was cognizant of his having struck the deceased as she alleged, as is demonstrated by his subsequent admissions to police. In other words, it is a relevant circumstance that the representation was truthful and accurate as admitted by the accused. It is not to the point that the admissions were made by the accused after the representation was made by the deceased. The representation is admissible pursuant to s 65(2)(b).
The representation is also admissible pursuant to s 65(2)(c) on the basis that the same circumstance makes it highly probable that the representation is reliable.
The second form of evidence which the Crown may propose adducing regarding this incident are PROMIS notes created by the police. These notes record the attendance by the police on the deceased on the morning of 28 May 2010. It is not clear whether the Crown proposes tendering the PROMIS notes themselves; regardless the notes themselves are inadmissible pursuant to s 69 (3).

The fifth incident

The fifth incident allegedly occurred on 12 April 2007. The Crown alleges that the accused assaulted the deceased, by hitting her with a stick to the back of her head, her back and legs. No charges were laid against the accused.
The Crown proposes tendering St Johns Ambulance records of the attendance of ambulance officers on the deceased on 12 April 2007. In that record, the deceased is recorded as having made a representation to the ambulance officers that she was assaulted by “her partner” that evening with a big stick. The deceased complained of pain to the rear of her head and her right leg. The record states that ambulance officers observed a small puncture wound to the rear of the deceased’s head. This document is admissible pursuant to s 69(2)(a).
The Crown also proposes tendering hospital records. The first such record is an Emergency Department Medical Record which records that the deceased arrived at the RDH at 10:45pm on 12 April 2007. The clinical notes record that the deceased complained that she had been assaulted earlier that evening with a big stick. The clinical progress notes record that the deceased represented that she had been assaulted by her partner. This document is admissible pursuant to s 69(2)(a).
The second medical record which the Crown proposes tendering is a Medical Summary dated 26 April 2007 from the Emergency Department at the RDH. On its face, it appears to be a summary of the deceased’s attendance at the Emergency Department on 12 April 2007. This records a representation made by the deceased that she had been assaulted to the back of her head by her partner using a big stick. This document is admissible pursuant to s 69(2)(a).
The third medical record which the Crown proposes tendering consists of a Radiology Request and a subsequent radiology report relating to x-rays of the deceased’s cervical and thoracic spine undertaken on 13 April 2007. The Radiology Request records the same representation made by the deceased as is recorded in the Medical Summary. This document is also admissible pursuant to s 69(2)(a).
As part of the material provided by the Crown with relation to this incident, I was provided with a copy of PROMIS records which record an attendance by police on the deceased on 12 April 2007, at which time the deceased represented that she had been hit by her husband, the accused. Police observed a laceration to the head of the deceased. The PROMIS record itself is inadmissible as a document pursuant to s 69(3). To the extent that the Crown may be able to call oral evidence from the attending police who heard the representation when it was made by the deceased, their evidence would be admissible pursuant to s 65(2)(b).

The sixth incident

The sixth incident allegedly occurred on 30 March 2007. It is alleged that the deceased called police complaining that the accused had threatened to put her in hospital. Only a verbal altercation was reported. Police attended but the accused could not be located. The deceased was placed into protective custody due to her intoxication. No charges were laid against the accused.
I understand that the Crown intends adducing evidence of this incident by tendering a PROMIS record. This record is inadmissible as a document pursuant to s 69(3).

The seventh incident

The seventh incident allegedly occurred on 13 March 2007. The Crown alleges that the deceased called police from a pay phone in Moulden, reporting that she had been arguing with the accused and that the accused had hit her before leaving her location. Police attended the phone box location but were unable to locate either party. No charges were laid against the accused.
I understand that the Crown intends adducing evidence of this incident by tendering a PROMIS record. This record is inadmissible as a document pursuant to s 69(3).

The eighth incident

The eighth incident allegedly occurred on 8 March 2007 at Coconut Grove. The deceased reported to police that she and the accused had an argument and the accused punched her and threw her to the ground. Police attended and observed the deceased had swelling to her jaw and face, as well as a laceration to her forehead. She nominated the accused as the offender. The deceased did not want police to intervene, and no charges were laid against the accused.
As part of the material provided to me by the Crown regarding this incident, I was provided with PROMIS records of attendance by police on the deceased on 8 March 2007. This document records a representation by the deceased that the accused had punched her and thrown her to the ground. The document itself is inadmissible pursuant to s 69 (3). To the extent that the Crown may be able to call oral evidence of this representation from police who attended and heard the deceased make the representation, their evidence is admissible under s 65(2)(b).
The Crown also proposes adducing an Emergency Department Medical Record from RDH which records that the deceased attended the hospital at 9:07pm on 8 March 2007. The document records a representation made by the deceased that she had been assaulted by her spouse with his fists. This document is admissible under s 69(2)(a).

The ninth incident

The ninth incident allegedly occurred on 20 September 2005 at Katherine. It is alleged that the accused punched the deceased to her mouth causing a fracture to her lower jaw which required surgical repair. The deceased apparently told hospital workers that it was the accused who had caused the injury. The deceased declined to provide police with a statement with regard to the alleged assault, but was willing to provide a statement for the purpose of obtaining a Domestic Violence Order. No charges were laid against the accused.
The Crown proposes leading evidence of representations made by the deceased to attending police on 20 September 2005. These representations are found in PROMIS records. The document records that attending police observed the deceased to have an obvious cut to her mouth and to be bleeding. They conveyed the deceased to hospital, and subsequently picked her up from hospital. After picking up the deceased from hospital, she represented that the accused had hit her, causing her injury. The document itself is not admissible pursuant to s 69(3). In the event that the Crown is able to call oral evidence from the attending police who heard the representations made by the deceased, their evidence is admissible pursuant to s 65(2)(b).
The Crown also proposes leading evidence of representations made by the deceased to staff at the RDH. As I understand it, the Crown proposes to do so by tendering medical records from the hospital. An Emergency Department Medical Record records that on 20 September 2005 at 8:27pm the deceased was seen at the hospital. She gave a history of being assaulted by the accused by being punched to the mouth. This document is admissible pursuant to s 69(2)(a). In addition, there is a further Emergency Department Medical Record which records that on 21 September 2005 at 7:13am the deceased re-attended the hospital for a review of her jaw. No further history seems to have been taken at that time, but the document itself is admissible pursuant to s 69(2)(a).
The next medical record relied upon by the Crown is an Emergency Department Medical Record which records that on 30 September 2005 at 3:15pm the deceased attended the hospital regarding continued problems with her jaw arising out of the earlier assault. Associated medical records attest to treatment given to the deceased through to 11 October 2005. These documents are admissible pursuant to s 69(2)(a). The Crown will, however, need to excise references in the medical records to the deceased having been the subject of multiple assaults as this is inherently prejudicial.

The tenth incident

The 10^th incident allegedly occurred on 13 February 2004 at Katherine. The deceased was brought in to the hospital by St John’s ambulance. She reported having been assaulted by the accused. She alleged that the accused had hit her with his fist, after earlier cutting her hand. The deceased was noted to have a graze to her hand and swelling/grazing to her face. She was also noted to have an abrasion to her lower back. No charges were laid against the accused.
The Crown proposes adducing evidence from medical records. Firstly, the Crown proposes adducing ambulance records relating to an attendance by ambulance officers on the deceased on 13 February 2004. That document records that the ambulance officers observed a small graze to the deceased’s hand, and obvious facial swelling to the left side of her face as well of grazes to her cheek and chin. The document records a representation by the deceased that she had been hit by “a male offender”. The document does not record a representation by the deceased that she had been assaulted by the accused. This document is admissible pursuant to s 69(2)(a).
Secondly, the Crown proposes adducing medical records from the Katherine Hospital which record that the deceased was seen on 13 February 2004 at the hospital and made a representation that she had been assaulted by the accused. This document is admissible pursuant to s 69(2)(a).

The eleventh incident

The 11^th incident occurred on 27 August 2003 at Darwin. The Crown alleges that the accused and deceased were at their residence consuming alcohol when, between 12pm and 6pm, the accused became angry and assaulted the deceased by striking her about her head and face. The accused subsequently fell asleep and the deceased called police. The accused was arrested and on 28 August 2003 he participated in an interview where he made partial admissions to slapping the victim on the ear one time. The deceased was admitted to the RDH on 27 August 2003 and was found to have a wound to the right side of her nose and behind her right ear. She also had pain and tenderness over her right cheek and jaw. The accused was convicted of offences of breaching a Domestic Violence Order and aggravated assault and was sentenced to short terms of imprisonment.
The material provided by the Crown states that the Crown proposes leading evidence of representations made by the deceased in a 000 call. A transcript of that call was not provided to me, and the schedule provided by the Crown suggests that it intends adducing evidence of these representations through entries in PROMIS records. Such a document would be inadmissible pursuant to s 69(3). If a recording of the 000 call is available, that document would be admissible under s 69(2)(a). Similarly, the recipient of the 000 call could give oral evidence of any representations made by the deceased pursuant to s 65(2)(b).
The Crown also proposes leading evidence of representations made by the deceased to Constable Ian Nguyen. Constable Nguyen states that at about 6pm on 27 August 2003 he went to an address in Coconut Grove and spoke to the deceased. The accused was also present, but was asleep on a bed. Constable Nguyen states that he observed the deceased to have a swollen right cheek, a swollen cut to her nose and blood coming from her head. The deceased made a representation to Constable Nguyen that the accused had caused the injuries. The accused was arrested. The Crown also proposes leading similar evidence from another police officer who also attended on that occasion, Constable Anthony Williams. These police officers can give evidence of the representation made by the deceased pursuant to s 65(2)(b).
In addition, the Crown also proposes leading evidence of representations made by the deceased to a medical practitioner, Dr Cassidy, at the RDH on 27 August 2003. Dr Cassidy provided a Statutory Declaration dated 14 October 2003, but I understand that this was provided for the purpose of the police investigation of the incident and subsequent prosecution of the accused. The Statutory Declaration as a document is inadmissible pursuant to s 69(3). Dr Cassidy would be entitled to give oral evidence of the representations made by the deceased that she had been assaulted by the accused pursuant to s 65(2)(b).
The deceased also made representations relating to this incident in a Statutory Declaration dated 10 February 2003. As this document was undoubtedly prepared for the purpose of the investigation and subsequent prosecution of the accused with regard to this incident, the document is inadmissible pursuant to s 69(3).

The twelfth incident

The 12^th incident occurred on 9 February 2003 at Darwin. On the evening of that day, the accused and the deceased had been arguing after spending most of the day drinking. The accused threw a beer bottle at the deceased, striking her head. The deceased lost consciousness and was seen by police to be bleeding from a laceration to the top of her head. The accused was convicted of offences of breaching a Domestic Violence Order and aggravated assault. He was sentenced to terms of imprisonment.
The Crown will seek to rely upon representations made by the deceased to Constable Zoe Dobson who spoke to her on 9 February 2003. Constable Dobson provided a Statutory Declaration dated 10 March 2003 in which she states that at approximately 9:24 PM on 9 February 2003 they received a report of an Aboriginal female having been struck in the head with an object. She and another police officer drove to the area and saw a group of approximately 6 Aboriginal adults sitting on the ground. She noticed that one of the group, the deceased, was bleeding from her head. The deceased was sitting on the ground with her right leg in a plaster cast, holding her head. Constable Dobson examined the deceased’s head and observed a minor laceration to the top of her head. She called an ambulance. The deceased nominated the accused as the person who had injured her. The Statutory Declaration itself is not admissible as a document pursuant to s 69(3). Constable Dobson may, however, give oral evidence of the representation made to her by the deceased pursuant to s 65(2)(b).
The Crown will also rely upon representations made by the deceased to staff at the RDH. These representations are found in the medical records of the RDH. An Emergency Department Medical Record records that on 9 February 2023 the deceased was seen at the RDH at 10:33pm. That document records that the deceased made a representation that a “relative threw full bottle of beer at her”. An Emergency Department Medical Summary dated 9 February 2003 also refers to this representation. These documents are admissible pursuant to s 69(2)(a). Dr Oscar Whitehead, a medical practitioner working at the RDH, completed a Statutory Declaration dated 14 May 2003 which contained a record of a similar representation having been made to Dr Whitehead by the deceased. That document is inadmissible by virtue of s 69(3), but Dr Whitehead could give oral evidence of the representation pursuant to s 65(2)(b).
Finally, the Crown will seek to adduce representations made by the deceased in a Statutory Declaration dated 28 August 2003. The Statutory Declaration as a document is inadmissible by virtue of s 69(3), but I understand that the Crown intends to lead evidence of the representation through a police officer who perceived the representation being made. Such evidence is admissible pursuant to s 65(2)(b).

The thirteenth incident

The 13th incident allegedly occurred on 1 January 2003 at Darwin. The deceased was located by police lying on the floor of the public male toilets at Lake Alexander. She was observed to be bleeding from a cut on her forehead, to have swollen and bleeding lips and a severely bruised lower left leg. The deceased told police that the accused had injured her. Police spoke to the accused who admitted he had assaulted the deceased because he was jealous. The deceased did not want to make a complaint against the accused. As a result of this assault, the deceased suffered a fractured left tibia. The accused was not charged with any offence arising out of this incident.
The Crown proposes leading evidence of representations made by the deceased to attending police. Attending police may give oral evidence of the representations made by the deceased that she had been injured by the accused by virtue of s 65 (2)(b). Depending upon the admissibility of what is said to have been an admission made by the accused to police that he had injured the deceased (which I am not asked to rule upon in the present proceeding), the representation made by the deceased may also be admissible pursuant to s 65(2)(c).
In addition, the Crown proposes adducing medical records from the RDH. An Emergency Department Medical Record records that on 1 January 2003 the deceased was seen at the RDH at 8:59 PM. The deceased made a representation that she had been assaulted by her partner. A similar representation is found in the Emergency Department Nursing Assessment dated 1 January 2003. Other RDH documents record of the treatment given to the deceased in the period from 1 January 2003 to 17 February 2003 regarding this incident. All of these documents are admissible pursuant to s 69(2)(a).

The fourteenth incident

The 14^th incident allegedly occurred on 17 July 2001 at Darwin. The deceased was in hospital due to a recurrence of pain after having been allegedly assaulted by the accused on 23 June 2021 (the 15^th incident – see below). The accused visited the deceased in hospital on numerous occasions. On 17 July 2021 the deceased told hospital staff that the accused had punched her in the faced and requested that he be banned from the ward. The accused was not charged with any offence arising out of this incident.
The Crown proposes adducing evidence of this representation by the deceased through hospital records, we show that at 4 PM on 17 July 2001 the deceased told hospital staff that she had been punched by the accused outside the hospital that day. This document is admissible pursuant to s 69(2)(a).

In reality, very few cases in which the prosecution seeks to adduce tendency evidence to prove the identity of an offender fall within the conceptually uncomplicated category of demonstrating a unique modus operandi. Most cases, like TL and the present, rely on a combination of propensity and other evidence to establish the identity of the offender. This was recognised by the High Court in TL. In that case, no distinctive features linking the tendency evidence to the charged offence were identified that would permit the tendency evidence, viewed in isolation, to have significant probative value in establishing that TL was the offender. It was only after the tendency evidence was viewed together with other evidence that the probative value of the tendency evidence could be properly assessed as significant.
The additional material which gave the tendency evidence in TL significant probative value were the three matters referred to by the High Court at [38] of their judgment, quoted at [171] above. While those matters were important in the factual matrix that existed in TL in giving significant probative value to the tendency evidence, and in particular that there were only three persons who could have committed the offence, the absence of these circumstances in other cases in which the Crown seeks to adduce tendency evidence to prove identity will not necessarily be fatal. This is because each case must be determined on its own facts.
Based on the above, I take the law to be:
(a)     Where proposed tendency evidence is to be led by the prosecution for the purpose of identifying an accused as the perpetrator of a known offence, if the tendency evidence is the only, or indispensable, evidence of identity, in order for the tendency evidence to have significant probative value close similarity between the conduct evidencing the tendency and the charged conduct must be demonstrated; and
(b)     Close similarity between the conduct evidencing the tendency and the charged conduct need not be demonstrated where there is other evidence which, taken with the tendency evidence, gives the tendency evidence significant probative value as evidence of the identity of the accused as the perpetrator; and
(c)     In assessing whether tendency evidence adduced to prove identity has significant probative value, the first step is to determine the extent to which the evidence supports the tendency, and the second step is to determine the extent to which the tendency, together with the other evidence identifying the accused as the perpetrator, makes more likely the fact that the accused was the perpetrator. Where the relevant evidence strongly supports both matters, the tendency evidence is likely to have significant probative value.
The facts in the present case are somewhat different to those in TL. In TL only three known persons had the opportunity to commit the offence, and as such the pool of possible offenders was not “at large”. It was accepted by the Crown in the present case, as I understand it, that it is possible that persons other than the accused or Ms Yibalana may have gained entry to the laundry where the body of the deceased was located. There is no evidence which would narrow down the pool of people in the general population who may have so gained access to any particular number, or otherwise permit identification of such persons. Does this mean that the pool of possible offenders is relevantly “at large”?
There is evidence from which a jury could conclude, as submitted by the Crown, that the deceased was killed in the laundry where her body was found. The plan of Unit 65 together with the photographs of the laundry tendered on the application would enable a jury to conclude that only a small number of persons could have been present in the laundry during the infliction of the fatal injuries on the deceased. Thus, the pool of possible offenders is reduced to a small number, albeit that this sub-set of persons (those present during the offence) cannot be identified from the much larger set comprising that portion of the general public who could have been present.
The forensic evidence foreshadowed by the Crown, taken at its highest, would allow the jury to conclude that the accused was one of what could only have been a small number of persons potentially present in the laundry when the fatal injuries were inflicted on the deceased. Paraphrasing the words of Hoeben CJ at CL in the Court of Criminal Appeal in TL v The Queen, quoted at [168] above, it would be open to the jury to consider whether the alleged propensities of the accused enabled them to determine that he was the offender from the class of those present at the time the offence was committed and not from the general population.
The fact that the identities or personal characteristics of the others who may have been present are unknown does not deprive the evidence of significant probative value. The proposed tendency evidence speaks only as to the propensity of the accused and has nothing to say about those others who were, or may have been, present at the time of the offence. As the High Court observed in TL, in order for proposed tendency evidence to have significant probative value it is not necessary “for the prosecution to neutralise or disprove the existence of the same tendency on the part of the other possible perpetrators”.[18]
The above should not be interpreted as dismissing the importance of ascertaining common features between the conduct used to prove the tendency and the charged conduct. To the contrary, such common features will ordinarily be important in determining the probative value of the evidence. As the High Court said in TL, at [29], however, “The authorities establish that similarity is relevant to, but not determinative of, probative value.”
The Crown’s case is that the predominant linking feature in the material it proposes leading as tendency evidence is the infliction by the accused of violence on the same woman, the deceased. Proof that the accused was one of a small number of people present at the time and place of the offence together with a determination by the jury that the accused had one or more of the alleged tendencies is capable of having significant probative value in determining whether it was the accused who inflicted the fatal injuries.
Most of the “linking features” identified by the Crown are irrelevant to determining the extent to which the proposed tendency evidence is capable of having a significant probative value in proving that the accused was the person who inflicted the fatal injuries on the deceased. This is because the linking features generally describe similarities between the events said to have occurred in the proposed tendency incidents and not between those incidents and the charged events. For example, it cannot be determined whether the events which led to the death of the deceased occurred with people nearby or present, because we do not know the precise circumstances surrounding the death of the deceased.
What gives the proposed tendency evidence significant probative value in the present matter is that, if accepted by the jury, the tendency incidents all demonstrate violence by the one man (the accused) towards the same woman (the deceased) in the context of a domestic relationship. Just as evidence of uncharged sexual acts by an accused towards a particular complainant may reveal a tendency on the part of the accused to be sexually attracted to that particular complainant, evidence of violent conduct on behalf of the present accused towards his domestic partner may reveal a tendency to act violently towards that particular individual.
When considered in this way, the tendencies alleged by the Crown are not so general as to be incapable of having significant probative value in proving that the accused was the person who inflicted the fatal injuries on the deceased. The commonality of the victim to all events, and her relationship to the accused, are the circumstances which link the tendency events to the charged event, and which, in turn, gives probative weight to the alleged tendencies.
A jury could reason that proof that the accused possessed the alleged tendencies significantly increases the probability that it was the accused and not some potential third-party who inflicted the fatal injuries on the deceased. The jury will, of course, need to be given clear directions as to the way in which proof of the alleged tendencies can be used as circumstantial evidence, as well as directions as to how the evidence cannot be used. Whether all of the evidence then persuades the jury that there is no alternative hypothesis reasonably available other than the guilt of the accused is a matter for the jury.
There is some merit in the accused’s submission that any tendency case advanced by the Crown must be kept within manageable limits. To allow the Crown to advance a tendency case based on 22 incidents across the period from 1999 to 2021 would run the risk of deflecting the jury from their primary task and would potentially extend the length of the trial for little benefit. In addition, not every incident which may have involved an assault by the accused on the deceased during their long relationship will be useful in the jury reasoning that it was the accused who brutally beat the deceased to death in August 2021. While it is not necessary that the violence engaged in by the accused in the tendency incidents be demonstrated to be of the same degree as that which caused the death of the deceased in order to give the evidence significant probative value, generally speaking, the lower the degree of violence, the lower the probative value of the evidence to prove the fact in issue.
It is necessary to now consider each of the alleged tendency incidents relied upon by the Crown to determine the extent to which they are capable of supporting an inference that the accused has the tendencies alleged by the Crown and, if so, whether it strongly supports the case advanced by the Crown that it was the accused who killed the deceased. In doing so, I am informed by the results of the hearsay applications, but in some cases, which I will identify, it may be assumed that further material exists which may be admissible to prove the events which are alleged to have occurred.
In assessing the first incident, I assume that the evidence placed before me is the only evidence available to the Crown to prove that the accused assaulted the deceased on 4 August 2021 causing her to suffer a broken leg. On that assumption, and after excising the inadmissible material (see [30] to [59] above), the evidence which the Crown proposes leading does not strongly support the allegation that the accused assaulted the deceased and broke her leg on 4 August 2021. The evidence does not strongly support either the first or second tendencies alleged by the Crown. In making that assessment, I acknowledge that I am obliged to take the Crown’s case at its highest, so I ignore the hospital records which suggest that the deceased told medical personnel that she was attacked by an unknown person. Even accepting that proposition, however, there is simply no admissible evidence that the accused assaulted the deceased on that occasion.
The second incident, if accepted by the jury, has the capacity to strongly support the first alleged tendency. There are no foreseeable difficulties with evidence of this incident being placed before the jury in admissible form. There is a sound evidentiary basis upon which a jury could be satisfied that the accused assaulted the deceased as alleged. This incident occurred approximately 3 months before the deceased was killed.
This incident also strongly supports the second alleged tendency as it is alleged the accused assaulted the deceased when she would not do as he wanted. I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused, which may be adequately addressed by directions to the jury.
The third incident does not provide strong support for either the first or second alleged tendencies. On its face, the evidence is weak, even taken at its highest. The probative value of the evidence does not outweigh any prejudicial effect it may have on the accused.
The fourth alleged incident, if accepted by the jury, is capable of providing weak support for both the first and second alleged tendencies. This incident occurred more than 11 years before the alleged offence. Were it not for the evidence of the second incident, any inference that at the time of the present offence the accused possessed the tendencies alleged by the Crown based on the fourth incident would be weak due to the period of time which had passed between the fourth alleged incident and the events of the present charge.[19] Because of the existence of this later incident, however, this earlier incident is capable of having probative value. It must not be overlooked, however, that the crime with which the accused is presently charged involved the brutal bashing of the deceased causing fatal injuries. The relatively minor nature of the fourth incident deprives it of significant probative value in establishing that it was the accused who inflicted those injuries. The Crown will not be permitted to lead evidence of the fourth incident as tendency evidence.
The fifth incident occurred over 14 years before the events of the present charge. The evidence available to prove this incident consists of a radiology request from the Department of Health and Community Services and clinical notes from the Emergency Department at the RDH. Both documents report that the deceased complained of being assaulted by “her partner” with a big stick to the back of her head. The Crown will undoubtedly lead evidence at the accused’s trial that his relationship with the deceased as partners was longstanding, such that the jury could infer that the reference by the deceased in this representation to “her partner” was intended as a reference to the accused. Where it did not for evidence of the second incident, this incident would also not have significant probative value in proving the tendencies alleged by the Crown for the same reason expressed with regard to the fourth incident. Because of the second incident, however, if the jury were to accept that the accused had engaged in the conduct alleged in this incident, the jury could reason that the evidence relating to this incident, together with evidence accepted by the jury relating to other incidents, particularly the second incident, establish a long standing and entrenched tendency on the part of the accused towards a violent disposition towards the deceased and preparedness to act upon the same.
This incident differs from the fourth incident in that it involved the deliberate use of a weapon to the head and body of the deceased in a sustained attack, causing injury to the head of the deceased. The evidence has significant probative value with regard to both alleged tendencies. The probative value of the evidence exceeds the danger of unfair prejudice to the accused, which may be adequately addressed by directions to the jury.
The sixth incident does not provide strong support for either the first or second alleged tendencies. The Crown will not be permitted to lead evidence of this incident as tendency evidence.
The seventh incident also does not provide strong support for either the first or second alleged tendencies. The Crown will not be permitted to lead evidence of this incident as tendency evidence.
The evidence available to the Crown in relation to the eighth incident consists of Emergency Department records potentially augmented by oral evidence from police who spoke to the deceased. If accepted by the jury, the events described in this incident would be capable of providing strong support for the first tendency alleged by the Crown, and also with regard to the second tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. The level of violence involved, which may be inferred from the injuries sustained by the deceased, was significant. While the events described in this incident occurred in 2007, I repeat what I said above at [195]. Nevertheless, it is necessary to keep the Crown’s tendency case within manageable limits. While I am satisfied that the evidence has probative value, I am not satisfied that it outweighs the danger of unfair prejudice to the accused.
The medical records, possibly augmented by oral evidence from attending police, provides a sound evidentiary basis for the ninth incident. If accepted by the jury, the events described in this incident would be capable of providing strong support for the first tendency alleged by the Crown, and also with regard to the second tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. While the events described in this incident occurred in 2005, I repeat what I said above at [195]. If the evidence is accepted by the jury, they would be entitled to find that this was an incident involving significant violence by the accused to the deceased and resulting in serious injury. I am satisfied that the evidence has significant probative value which outweighs the danger of unfair prejudice to the accused.
The medical records available to the Crown provide a sound evidentiary basis for the 10^th incident. If accepted by the jury, the events described in this incident would be capable of providing support for the first tendency alleged by the Crown, and also with regard to the second tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. I am not satisfied, however, bearing in mind the nature of the injuries sustained by the deceased that the probative value of this evidence outweighs the danger of unfair prejudice to the accused.
The events of the 11^th incident resulted in the accused being convicted of offences of failing to comply with a domestic violence order and aggravated assault. He was sentenced to a term of imprisonment. There should be no difficulty in the Crown adducing evidence of the circumstances of these events. In this incident, the accused assaulted the deceased at an address in Darwin resulting in the deceased suffering a 1 cm wound to the right side of her nose and a 3 cm cut behind her right ear. If accepted by the jury, the events described in this incident would be capable of providing strong support for the first tendency alleged by the Crown and also with regard to the second tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. While the events described in this incident occurred in 2003, I repeat what I said above at [195].
The events of the 12^th incident resulted in the accused being convicted of offences of failing to comply with a domestic violence order and aggravated assault. He was sentenced to terms of imprisonment. There should be no difficulty in the Crown adducing evidence of the circumstances of these events. In this incident, the accused assaulted the deceased by hitting her to the head with a full bottle of beer causing a 4 cm scalp laceration. At that time, the deceased was recovering from a fractured leg and her leg was in a cast. If accepted by the jury, events described in this incident would be capable of providing strong support for the first tendency alleged by the Crown and also with regard to the second tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. While the events described in this incident occurred in 2003, I repeat what I said above at [195]. I am satisfied that this evidence has significant probative value which outweighs the danger of unfair prejudice to the accused.
I am satisfied that there is a sound evidentiary basis available to the Crown regarding the 13^th incident. If the evidence is accepted by the jury, it is capable of providing strong support for both the first alleged tendency and the second alleged tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. While the events occurred in 2003, I repeat what I said above at [195]. I am satisfied that this evidence has significant probative value which outweighs the danger of unfair prejudice to the accused.

With regard to the 14^th incident, the medical records which the Crown proposes using to establish this incident are meagre. The evidence consists of a single entry, not supported by any observations of injuries to the deceased. I am not satisfied that this evidence has a significant probative value, and the Crown will not be entitled to lead evidence of this incident as tendency evidence.
The evidentiary basis for the 15^th incident consists of medical records, which record not only representations made by the deceased but also supporting observations made by medical staff. There is a sound evidentiary basis for this incident. If the evidence is accepted by the jury, it is capable of providing strong support for both the first alleged tendency and the second alleged tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. While the events occurred in 2001, I repeat what I said above at [195]. I am satisfied that this evidence has significant probative value which outweighs the danger of unfair prejudice to the accused.
The Crown has a strong evidentiary basis for the 16^th incident consisting of eyewitnesses and medical records. If the evidence is accepted by the jury, it is capable of providing strong support for both the first alleged tendency and the second alleged tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. If accepted by the jury, the evidence will establish a brutal and sustained attack on the deceased by the accused. I am satisfied that this evidence has significant probative value which outweighs the danger of unfair prejudice to the accused.
The evidence intended to be adduced by the Crown with regard to the 17^th incident is, in reality, directed towards the past history of the relationship between the deceased and the accused as at February 2001. I have concluded above that the evidence which the Crown proposes leading on this topic is inadmissible. In any event, that evidence is simply too vague and too far removed from the subject offence to have significant probative value.
I have concluded above that the evidence which the Crown proposes leading on the 18^th incident is inadmissible.
The evidence which the Crown proposes leading with regard to the 19^th incident is incapable of establishing that the accused was the person who injured the deceased.
Bearing in mind their age, and the nature of the allegation involved in each of the incidents, together with the need to ensure that the Crown tendency case is kept within manageable limits, I am not satisfied that the evidence with regard to the 20^th or 21^st incidents have significant probative value.
The 22^nd incident has significant probative value, despite its age. If accepted by the jury it strongly supports the first alleged tendency and the second alleged tendency to the extent that it alleges a tendency to engage in violent behaviour towards the deceased. I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

Conclusion

The Crown will be entitled to lead evidence of incidents 2, 5, 9, 11, 12, 13, 15, 16 and 22 as tendency evidence.
Relationship evidence
The Crown seeks to lead the same evidence that it leads in its tendency case as relationship evidence. Relationship evidence differs from tendency evidence in that relationship evidence simply provides a context in which the other evidence in the trial may be assessed. In particular, in the present case the evidence would be used to meet any doubt that the jury may entertain that the accused would suddenly attack the deceased in the way the Crown alleges. In other words, without such evidence the jury may consider it unlikely the man who has been in a relationship with a woman for more than 20 years will suddenly attack her as alleged by the Crown.
In addition, evidence that the deceased had expressed a desire to break off her relationship with the accused shortly before she was killed would be evidence of a possible motive on the part of the accused.
The Crown will be permitted to lead evidence of incidents 2, 5, 9, 11, 12, 13, 15, 16 and 22 as relationship evidence.

[217]These reasons are not to be published other than to the parties until the conclusion of the criminal trial.
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[1][2019] NSWSC 939.

[2][2021] NSWSC 75.

[3][2016] NSWCA 122.

[4]ENULA s 62(2).

[5] See definition of “document” in the Dictionary to the ENULA.

[6]Lancaster v The Queen (2014) 44 VR 820; [2014] VSCA 333 at [23] to [27].

[7]Conway v The Queen (2000) FCR 204 at [146] (Conway).

[8] Conway at [145].

[9]See [124].

[10][2017] HCA 20 (Hughes).

[11][2022] HCA 35 (TL).

[12] [2016] HCA 14 (IMM).

[13]IMM at [44]; R v Bauer (a pseudonym) [2018] HCA 40 at [69].

[14]IMM at [52].

[15]IMM at [50].

[16] TL v The Queen [2020] NSWCCA 265.

[17]TL at [37].

[18] TL at [37].

[19] McPhillamy v The Queen [2018] HCA 52.