The Queen v Dumoo - [2021] NTSC 59

CITATION:The Queen v Dumoo [2021] NTSC 59
PARTIES:THE QUEEN

v
DUMOO, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22016979
DELIVERED:  26 July 2021
HEARING DATE:  15 and 16 July 2021
JUDGMENT OF:  Kelly J

CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97 - Tendency evidence – evidence of prior conduct of the accused towards the complainant the subject of prior convictions - Whether tendency evidence has significant probative value – Evidence not admitted as tendency evidence
EVIDENCE – Admissibility – Whether evidence should be admitted as relationship evidence – Evidence makes the complainant’s account more credible in the context of the relationship – evidence admitted as relationship evidence
Evidence (National Uniform Legislation) Act 2011 (NT) s 97
Domestic and Family Violence Act 2007 (NT)

Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; NTSC 29, R v Grant [2016] NTSC 54 applied
REPRESENTATION:
Counsel:
Crown:T Grealy
Accused:J Razi
Solicitors:
Crown:Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Kel2111
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Dumoo [2021] NTSC 59

No. 22016979

BETWEEN:

THE QUEEN

AND:

MICHAEL DUMOO

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 26 July 2021)

The accused is charged with causing serious harm to Jody Wodidj.[1]
The accused and Jody Wodidj were in a domestic relationship at the time of the alleged offence. The Crown alleges that Ms Wodidj asked the accused whether he was being unfaithful to her. She was seated and holding their infant child at the time. The Crown alleges that the accused became angry, threw a dumbbell at Ms Wodidj’s legs and then forcefully hit her on the back of the head with a 33 cm spanner – twice.
The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) of its intention to adduce tendency evidence.
The notice advises that the tendencies sought to be proved are the tendency of the accused:
(a)to act in a particular way, namely:
(i)to become angry and engage in violence towards Jody Wodidj, including in breach of orders under the Domestic and Family Violence Act 2007 (NT) designed to protect her.
(b)to have a particular state of mind, namely, angry, jealous and/or controlling state of mind towards his partner, Jody Wodidj.
The conduct about which evidence is sought to be adduced is the conduct the subject of the current charge as well as conduct which was the subject of two prior convictions in which the accused was the offender and Ms Wodidj was the victim.
(a)On 24 March 2019, in the evening, Jody Wodidj attended a disco and then went for a walk. When she returned home the accused became angry asking why she went to the disco and walking after. He then assaulted her, by striking her, three times to the face with his fist then, holding her to the ground, he assaulted her causing her a swollen and bruised left eye. He pleaded guilty to a charge of aggravated assault.
(b)On 13 November 2019, at about midnight, in breach of a domestic violence order, Jody Wodidj and the accused began to argue over jealousy issues. She saw messages on his phone from other women and confronted him about them. The accused became angry and chased Jody Wodidj around the house. He pushed her in an attempt to take his mobile phone back. A witness intervened. He pleaded guilty to breaching a Domestic Violence Order.
The tendency evidence is said to be relevant to:
(1)whether the accused punched Jody Wodidj to the back on 13 November 2019;
(2)whether the accused threw a dumbbell at Jody Wodidj on 25 May 2019; and
(3)whether the accused struck Jody Wodidj to the head with a spanner on 25 May 2019.
I do not understand why the first issue was listed in the tendency notice as it does not seem to form part of the Crown case in this proceeding.
The Crown also seeks to rely on the same evidence as relationship evidence. The defence objects to the evidence being adduced on either basis.
Shortly after the hearing of the voir dire, I handed down a decision on these applications with brief oral reasons refusing to admit the evidence as tendency evidence but admitting the evidence as relationship evidence and indicated that I would deliver written reasons at a later date. These are those reasons.
Under UEA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.
There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence has significant probative value in relation to the issues set out above. Significant means something in between mere relevance, and a substantial degree of relevance.
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[2]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)
Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[3]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[4] That is not contended by the defence to be the case here. The accused pleaded guilty and was convicted of offences arising out of both incidents relied on by the Crown.
Defence counsel has submitted that the evidence relied on by the Crown does not support the existence of the tendency sought to be proved. In particular, defence counsel contended that the second incident relied on is not capable of supporting proof of the alleged tendency to engage in violent conduct towards Jody Wodidj and is not capable of supporting the alleged tendency to have a jealous and/or controlling state of mind towards her. He pointed out that there was no allegation of physical violence in the second incident, and far from supporting proof of a tendency in the accused to have a jealous state of mind towards Ms Wodidj, the second incident was an example of Ms Wodidj having a jealous state of mind towards the accused.
Both of those contentions are borne out by the agreed facts on the accused’s plea in relation to the second incident. That conviction was for breach of a DVO which restrained the accused from harming or threatening to harm Ms Wodidj and from intimidating, harassing or verbally abusing her. In summary, it was agreed that while the accused was sleeping, the victim found out that he had been texting other women. She woke him up and confronted him. That made the accused angry. He chased her through the house. Another person in the house restrained him by wrapping her arms around him. He reached out to take his mobile phone from Ms Wodidj and in doing so pushed her in the back with his hand. She locked herself in another room and he swore at her through the door and then walked away. Ms Wodidj was pregnant at the time. The accused was not charged with assault, and the gravamen of the breach of DVO offence appears to have been that he intimidated or threatened her.
The prosecutor submitted that this amounted to violence – albeit not physical violence. The accused’s conduct was not limited to chasing the complainant around the house, though that was an important part of it. She submitted that the broader context was critical – this was an argument in which the accused became angry; stood up to chase the complainant; had to be stopped by witnesses who intervened; and then continued to swear at the complainant who was locked in a separate room.
In my view, the second incident relied on in the tendency notice is not capable of supporting proof of the tendencies set out in the tendency notice for the reasons advanced by defence counsel – most particularly because it does not support the existence of a jealous or controlling state of mind on the part of the accused towards Ms Wodidj.
The first incident relied on, although it is only one incident, is capable of supporting the existence of the tendencies set out in the tendency notice; both the tendency to become angry and engage in violent conduct towards Ms Wodidj and the tendency to have a jealous and controlling state of mind towards her.
The next step is to determine whether the tendency, if established, strongly supports the proof of a fact that makes up the offence charged. In my view, it does not. Certainly, a tendency (if it were to be established) to become angry and engage in violence towards Ms Wodidj would be probative of the facts in issue (ie whether he became angry and engaged in the violence alleged in the current offending). However, there being only one relevant example, the support for the existence of the tendency is not strong and it does not seem to me that it would be highly probative of those facts.
Further, proof that the accused had a tendency to have a jealous and controlling state of mind towards Ms Wodidj would not be probative of the facts in issue in this case. It is not alleged that the accused committed the instant offence upon Ms Wodidj as a result of a jealous and controlling state of mind towards her. Rather, the Crown facts allege that he became angry with her and committed the offence because she was acting in a jealous manner towards him.
For these reasons, I am not satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence does not have significant probative value for the purposes set out in the tendency notice. The evidence will not be admitted as tendency evidence. It is therefore not necessary to consider the matters in UEA s 101.
Different considerations arise when considering whether the same evidence should be admitted as relationship evidence. Its relevance for that purpose does not depend upon the capacity of the evidence to establish any particular tendency or state of mind in the accused. As Grant CJ held in R v Grant[5] at [77]:
In order for “relationship” evidence to be relevant it must be shown that the evidence would make the complainant’s version of the particular incident subject to the charge more capable of belief when seen in the context of the relationship.
In this case, the evidence of the two previous incidents suggests that the relationship between the accused and Ms Wodidj was characterised by mutual jealousy, arguments, and angry outbursts and some violence on the part of the accused.
The Crown submits that the previous incidents make the offending intelligible. A jury would be expected to reason that two young people in an intimate relationship would ordinarily act in a loving manner toward one another. It would be difficult to fathom how a young man could resort to such extreme violence against his partner when angry. It would be even harder to accept that the accused hit the complainant to the head with a spanner while the complainant was holding their five month old son, in a house with a number of witnesses around. It is extreme and brazen conduct.
However, if those allegations are seen in the context of what has come before, the jury will be able to see an escalating pattern of violence during the course of the short relationship that makes the current alleged offending more readily understandable. Placed in context, the offending is not so out of the blue or hard to believe. The accused has previously:
(a)used violence when angry with the complainant;
(b)intimidated and threatened the complainant while she was pregnant; and
(c)chased and sworn at her in the presence of other witnesses.
Defence counsel submitted that it is not necessary to show the nature of the relationship for evidence of the accused’s prior convictions to be admitted into evidence. Ms Wodidj could give evidence of the nature of that relationship. The Crown submits that the evidence makes the complainant’s account more credible, particularly as it is conduct which has been admitted by the accused. It is evidence independent of the complainant that the relationship had been marred by violence against her from an early stage.
I agree with these submissions by the Crown. I also agree that the relationship evidence would potentially have probative value in negativing any potential defence based on accident (though that is unlikely given the nature of the allegations) or any potential defence case based on self-defence.
Defence counsel submitted that, even if the relationship evidence is found to be relevant, and therefore admissible, it should nevertheless be excluded under UEA s 137 because its probative value is outweighed by the danger of unfair prejudice to the accused. The unfair prejudice identified is that the evidence may give rise to a danger of a disproportionately emotive reaction on the part of the jury, illicit propensity reasoning by the jury, or may lead the jury to assess the case against the accused based on a perception of his character from the prior incidents.
I do not consider the evidence should be excluded under s 137. I consider its explanatory capacity, and hence its probative value for the purposes already explained, to be high.
I do not consider that there is any real risk that the jury will have a disproportionately emotional reaction to the evidence as both previous incidents are less serious and so less emotionally confronting than the present allegations.
So far as the risk of illicit propensity reasoning is concerned, and the prospect of the jury judging the accused by his character as illuminated by his past conduct (which amounts to much the same thing), in my view, such a risk can adequately be dealt with by appropriate directions.
The evidence will be admitted as relationship evidence.
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[1]After this decision was handed down but before the delivery of reasons, the accused pleaded guilty to the lesser charge of recklessly endangering serious harm.

[2][2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[3]ibid at [41]

[4] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41]

[5] [2016] NTSC 54