The Queen v Majak - [2022] NTSC 57

CITATION:The Queen v Majak [2022] NTSC 57
PARTIES:THE QUEEN
v

MAJAK, Kuir Deng

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22016636
DELIVERED:  25 July 2022
HEARING DATES:  1 June, 12 July 2022
JUDGMENT OF:  Brownhill J

EVIDENCE – Tendency – Defence application to adduce other complaints made by the complainant as tendency evidence – Proposed tendency evidence is credibility evidence, not tendency evidence – If proposed tendency evidence was tendency evidence, it does not have significant probative value – Proposed tendency evidence not admissible.
EVIDENCE – Tendency – Defence application to adduce hearsay evidence that complainant said she is ‘setting up’ accused as tendency evidence – Evidence has significant probative value as evidence of fact – Evidence has no additional probative value as tendency evidence – Proposed tendency evidence not admissible.
EVIDENCE –Discretion to refuse to admit evidence where probative value is substantially outweighed by danger the evidence might cause or result in undue waste of time – Avoiding a ‘trial within a trial’ and diverting jury from its task – Even if proposed tendency evidence had significant probative value and admissible under s 97, its probative value is substantially outweighed by the danger of undue waste of time and would be refused under s 135.
EVIDENCE – Defence application to re-call complainant for cross-examination regarding hearsay evidence that complainant said she is ‘setting up’ the accused – Complainant had been overseas but now present in the jurisdiction – Significant probative value of evidence supports re-call – Failure to cross-examine complainant on this point on previous occasion was no fault of defence – If witness gives evidence at trial, complainant should be re-called for cross-examination regarding the hearsay representation.

BD v The Queen [2017] NTCCA 2; DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597; Director of Public Prosecutions v Campbell (No 1) [2013] VSC 665; Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743; DPP v Wilson [2021] VSC 766; Dupas v The Queen (2012) 40 VR 182; El-Haddad v The Queen (2015) 88 NSWLR 93; Elomar v The Queen [2014] NSWCCA 303; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90; McPhillamy v The Queen (2018) 92 ALJR 1045; Palmer v The Queen (1998) 193 CLR 1; RH v The Queen (2014) 241 A Crim R 1; Saffron v Commissioner of Taxation (1991) 30 FCR 578; Saoud v The Queen [2014] NSWCCA 136; Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; Taylor v The Queen [2020] NSWCCA 355; The Queen v Cakovski [2004] NSWCCA 280; The Queen v Esposito (1998) 105 A Crim R 27; The Queen v Holmes (No 5) [2021] NSWSC 115; The Queen v Lockyer (1996) 89 A Crim R 457; The Queen v Rolfe (No 7) [2022] NTSC 1; The Queen v Smiler (No 2) [2017] NTSC 31; The Queen v Taylor [2003] NSWCCA 194; TL v The Queen [2020] NSWCCA 265, referred to.
Criminal Code Act 1983 (NT) s 192(3).
Evidence Act 1939 (NT) s 21AB(c), 21B(2)(a).

Evidence (National Uniform Legislation) Act 2011
(NT) s 66(2), 97, 98, 100(1), 101A, 102, 135.

REPRESENTATION:
Counsel:
Crown:I Rowbottam
Accused:J Tippett QC

Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Maleys Barristers & Solicitors

Judgment category classification:    C
Judgment ID Number:  Bro2206
Number of pages:  42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Majak [2022] NTSC 57

No. 22016636
BETWEEN:

THE QUEEN

AND:

KUIR DENG MAJAK

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 25 July 2022)
Introduction

By an indictment dated 23 November 2020, the accused was charged with one count of sexual intercourse with the complainant without her consent, contrary to s 192(3) of the Criminal Code. On 26 May 2022, the defence filed a notice seeking to adduce certain evidence as tendency evidence pursuant to s 97 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). Essentially, the proposed tendency evidence related to complaints made to police by the complainant against two other men, alleging that they had committed acts of violence against her. On 27 May 2022, the defence filed a notice seeking to adduce essentially the same evidence as coincidence evidence pursuant to s 98 of the ENULA. At the hearing of the voir dire on 1 June 2022, the defence abandoned the tendency evidence application and pressed the coincidence evidence application. At that hearing, I granted the defence’s application for an adjournment to obtain and place before the Court further evidence on the coincidence evidence application. At a mention on 21 June 2022, the defence abandoned the coincidence evidence application and filed a tendency notice seeking to adduce the evidence relating to only one of the complaints made by the complainant. Later on 21 June 2022, the defence filed a slightly different tendency notice seeking to adduce essentially the same evidence related to that single complaint. At the further hearing of the voir dire on 12 July 2022, the defence sought to orally amend the tendency notice to add reference to the other of the two complaints made by the complainant.
The trial is listed for 2 August 2022 for seven days. The complainant is a ‘vulnerable witness’ within s 21AB(c) of the Evidence Act 1939 (NT). At trial, her evidence will comprise recorded statements given to police on 14 and 23 March 2021 admitted pursuant to s 21B(2)(a) of the Evidence Act and the audio-visual recording of her examination at a special sitting on 30 July 2021 pursuant to s 21B(2)(b). The defence made an application for the complainant to be recalled to be cross-examined about the two complaints made by her against the other men (i.e. to adduce some of the proposed tendency evidence) and about a statement she is said to have made to one of those other men to the effect that she is ‘setting up’ the accused because he was not nice to her, which statement is pressed both as tendency evidence and as evidence of the fact.
The Crown opposed both the tendency (and ultimately abandoned coincidence) evidence application and the application for the complainant to be recalled.
The Crown case against the accused
The Crown case against the accused is as follows.
The accused and the complainant were ‘loose acquaintances’ who had met on two occasions before the alleged offending on 14 March 2020. They were both members of the Palmerston Sudanese community.
On the evening of 13 March 2020, the complainant went to the accused’s home for a social gathering. A number of people were present, including the accused’s housemate (‘JK’). Both the accused and the complainant consumed alcohol during the evening. During the evening, the accused tried to position himself as close as possible to the complainant on the couch, and the complainant resisted those attempts, pushing him away and telling him to give her space.
The complainant became heavily intoxicated. She fell asleep on the couch in the living room. The accused picked her up and carried her to his bedroom. She was not in an alert state and was not supporting her own weight as she was carried into the bedroom.
At around 9.00am on 14 March 2020, the complainant woke up alone in JK’s bedroom. She was no longer wearing her underwear. She left the home and sought assistance from neighbours to call the police.
Police searched the home and found the complainant’s underwear and her shoes in the accused’s bedroom. A used condom was found in the kitchen rubbish bin. After forensic analysis, the complainant’s DNA was found on the outside of the condom and the accused’s DNA was found on the inside.
When police spoke to the accused outside the home, he denied having sexual intercourse with the complainant, but said he had kissed her. In a formal record of interview on 18 May 2020, the accused denied engaging in sexual intercourse with the complainant, but then said he had tried to have sexual intercourse with her but was unable to do so.
The Crown alleges that the accused engaged in penile/vaginal sexual intercourse with the complainant while the complainant was incapable of consenting by reason of her level of intoxication, and her incapacity to give consent was apparent to the accused and would have been apparent to any reasonable person. The defence case is that consensual sexual intercourse took place.
The tendency notice
The tendency notice identifies 10 tendencies of the complainant:
(a)to act in a particular way, namely:
(i)to make allegations against men of assault involving circumstances where alcohol has been consumed by the complainant;
(ii)to make allegations against men that are untrue;
(iii)to make allegations against men with whom she has developed a casual intimate relationship;
(iv)to drink alcohol in the company of men and later make allegations of violence against men with whom she had developed a casual intimate relationship;
(v)to make criminal allegations against men;
(vi)to initiate violence towards men;
(vii)to falsely claim that violence in which she took part was initiated by the man in circumstances where the complainant herself initiated the violence; and
(viii)to drink in the company of men and make false allegations to Police of men engaging in criminal behaviour against her; and
(b)to have a particular state of mind, namely:
(i)an intent to make untrue allegations against men in circumstances where the complainant has been violent towards men;
(ii)an intent to make untrue allegations towards men in circumstances where the complainant has consumed quantities of alcohol or is under the influence of alcohol; and
(iii)an intent to make untrue allegations against men.
The tendency notice says the proposed tendency evidence relates to the following facts in issue at the accused’s trial:
(a)The accused engaged in conduct alleged in all counts on the indictment.[1]
(b)The accused engaged in sexual intercourse without the consent of the complainant.
(c)The accused knew or was reckless as to whether there was a lack of consent by the complainant.
The evidence which the defence proposed adducing as tendency evidence was described in the tendency notice as follows:
The conduct of which evidence will be adduced and particulars of the date, time and place and the circumstances in which the conduct occurred and the name of each person who saw, heard or otherwise perceived that conduct are set out in the materials attached to the submissions and directly relate to the criminal proceedings:
a) Police v SJ Transcript – File No. 22124706
b) Statement of SJ
c) Cross-examination of [the complainant].
Attached to the tendency notice is the transcript of proceedings (67 pages) conducted in the Local Court on 17 January 2022 in proceedings No. 22124706,[2] and an unsigned statement of SJ, the critical and only admissible part of which states:
During the course of my relationship with [the complainant] I was informed by her sometime in around March 2021, words to the effect that ‘she is setting up [the accused] because he was not nice to her’.
It was not disputed by the defence that the remainder of the statement is inadmissible for various reasons. I was told that SJ was spoken to by the accused’s legal representatives, and he said words to this effect. What he said was put in the form of this statement, but he has not been able to be contacted again to have him sign the statement or attend court during the voir dire to give the evidence orally. I will refer to this critical paragraph as ‘the SJ statement’.
The other complaints made by the complainant
SJ complaint
The complaint identified in the tendency notice is a complaint against SJ (‘SJ complaint’). The complainant provided a statement to police on 13 August 2021 (Exhibit D6) alleging that, on 12 August 2021, she was assaulted by SJ, a man she had been in a relationship with for about two months. She alleged that, after they had been drinking alcohol, he had attacked her and wrestled with her after she had forced her way into a locked bedroom in which he, her phone and the remaining alcohol were located. She said he had hit her on the face with a beer bottle, thrown her to the floor and repeatedly punched her to the face. She said he then choked her and slammed her face to the floor. She was observed by police to have injuries to her face and upper arm (photographs were received: Exhibit P3) and was taken to hospital for treatment. A video recording made on a mobile phone was received (Exhibit P2) which was taken from the hallway outside the bedroom where the incident was said to have taken place and through the closed bedroom door. A male and a female voice can be heard yelling, the female voice also sobs or makes sounds of distress and calls out that she cannot breathe a number of times. Both voices yell for police to be called. The male voice yells words to the effect that ‘you are not going anywhere until the police arrive’. SJ was charged on complaint (Exhibit D4) with aggravated unlawful assault causing harm, threatening the victim with a beer bottle, choking a person in a domestic relationship and deprivation of liberty. The Crown facts (Exhibit D5) replicated the complainant’s statement. SJ denied the charges. He gave a recorded statement to police on 13 August 2021 (a transcript of which was provided by the defence on 28 June 2022) in which he said that, after she broke the door to gain access to the bedroom, she attacked him, beating him and hitting him including with a glass bottle. He said she was ‘crazy’ and he tried to restrain her but she ‘went off’. He said he was on the ground and she was throwing bottles at him, hitting him and biting him. He said he bit her back to get her off him. He said she was still hitting him and throwing bottles. He said she cut herself with a bottle. He said he was telling the other person present (Dan Makar, whose home and bedroom it was) to call police and was holding her down to stop her doing more damage. The charges were dismissed by the Local Court on 16 February 2022. The Local Court was not satisfied, beyond reasonable doubt, that the prosecution had discharged the self-defence argument or that what occurred was not a ‘consensual fight’, and found SJ not guilty of all charges.
MA complaint
Although not referred to in the tendency notice, the defence sought to include as proposed tendency evidence, materials relating to a complaint against MA (‘MA complaint’). The complainant provided a statement to police on 21 April 2021 (Exhibit D3) alleging that, on that day, she was assaulted by MA, a former boyfriend with whom she reconnected after the relationship had ended seven years before. She alleged that he had driven her to a laundromat, become angry with her when she got back in the car, and when they were driving back to her house, he grabbed her hair and pulled her head into his lap. She said that he punched her to the head a number of times while she was in his lap, with her body hitting the car horn each time he did so. The sound caused a bystander to come to the car and open MA’s door, causing him to release the complainant and she got out of the car and he drove off. The bystander provided a statement to police (Exhibit P1) in which she said she heard the sound of a car horn, went to investigate, saw the car, heard a woman’s screams and calls for help, saw the person in the driver’s seat swinging punches and heard the sound of punches hitting someone. She saw the female move from the driver’s side to the passenger side, saw her ask for the police to be called, and saw her fall out of the car as it began to drive away. MA was charged on complaint (Exhibit D1) with aggravated unlawful assault causing harm. The Crown facts (Exhibit D2) replicated the complainant’s statement. MA denies the charges. The charges will be heard in the Local Court on 3 August 2022.
The proposed tendency evidence
Essentially, what the defence seeks to do is elicit as tendency evidence at the accused’s trial evidence about the SJ complaint and the MA complaint from the witnesses involved in those complaints, including the complainant, SJ, MA, and the other witnesses who saw or could give relevant evidence about the events the subject of those complaints. The Crown made clear that, if the defence were permitted to adduce this evidence as tendency evidence, it would tender all relevant evidence in relation to both complaints (including a number of video clips like the one referred to in paragraph [17] above, medical records and evidence from investigating police). The proceedings in the Local Court for the SJ complaint took some two days to complete. As I understand it, not all Crown witnesses were called.
Abuse of process or contempt of court?
As regards the MA complaint, defence counsel conceded that adducing evidence in the accused’s trial from witnesses who are yet to give evidence in a criminal proceeding about the same incident would have the potential to interfere with the administration of justice by either permitting pre-judgment of the proceedings or interfering with the evidence of witnesses, thereby comprising an abuse of process or permitting a contempt of court. Given that the accused’s trial and the MA complaint trial are both listed to commence in the same week, this clearly presents a problem for this aspect of the defence’s tendency application. The defence did not proffer any solution to this problem.
As regards the SJ complaint, the same concerns do not operate because the Local Court proceedings are concluded. Despite some initial concerns, I am satisfied that the proposed course would not constitute an abuse of process or a contempt of court because the purpose of the proposed tendency evidence is not to take issue with the outcome in the Local Court proceedings or assert that the proceeding was unfair.[3]
The alleged tendencies – the complainant is an unreliable witness
The 10 alleged tendencies set out in the tendency notice can be grouped, as follows:
(a)to initiate violence against men, with or without a false claim that the violence was initiated by the man (see (a)(vi), (vii));
(b)to make allegations against men, reliability unspecified, content unspecified (see (a)(iii));
(c)to make allegations against men, reliability unspecified, of assault, violence or crime (see (a)(i), (iv), (v));
(d)to make or intend to make false allegations against men, content unspecified (see (a)(ii), (b)(i), (ii), (iii));
(e)to make false allegations against men of criminal behaviour (see (a)(viii)).
In oral submissions explaining why a tendency to initiate violence towards men would be probative in this case, defence counsel conceded that such a tendency, without the additional aspect of making a false complaint about who initiated the violence, would have no probative value in this case. Consequently, the alleged tendencies in paragraphs (a)(vi) and (vii) can be put to one side.
In oral submissions explaining why a tendency to make allegations whether true or false would be probative in this case, defence counsel drew a distinction between a tendency to make a false allegation (that is, a tendency to deliberately tell an untruth, to lie) and a tendency to make an unreliable allegation (that is, one that could not safely be acted on by a jury because it was either false or inaccurate).
Despite that, the alleged tendencies in the tendency notice are either described as being ‘false allegations’ or the reliability of the allegations is not mentioned. Defence counsel explained that, essentially, what the defence seeks to establish[4] by the proposed tendency evidence is that the complainant is an unreliable witness who has a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not, so her evidence cannot safely be acted upon by the jury. That tendency was pressed to raise the relevant reasonable possibility consistent with innocence[5] that the complainant’s account that she was too intoxicated to consent to sexual intercourse with the accused is false or unreliable. By contrast, a tendency to make allegations against men which are or may be true would not raise a reasonable possibility consistent with innocence. Such a tendency would have no probative value in the defence case.

By s 100(1) of the ENULA, the Court has a discretion to dispense with the requirement to give notice under s 97 and allow tendency evidence to be admitted despite the failure to give that notice. The defence argued that, to the extent necessary, the Court could ‘re-draft’ the tendency notice to capture the essence of the alleged tendency actually put by the defence.[6] I note that in DPP v Wilson,[7] Taylor J held that the proposed tendency evidence did not support the tendency alleged, but some of the evidence supported some of the tendency alleged, and that if the tendency were phrased differently, some of the tendency evidence would be supportive of it and significantly probative of the reasonable possibility that the account of the accused was true. Her Honour allowed the application in relation to those parts of the tendency evidence that supported the re-phrased alleged tendency.
Given what was pressed by the defence at the hearing, and that the Crown was not prejudiced and was able to respond to the defence submissions, I will deal with the application to adduce the proposed tendency evidence on the basis that the alleged tendency of the complainant is a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not, and her evidence cannot safely be acted upon by the jury. In the reasons which follow, I will refer to this tendency as ‘the alleged tendency’.
The proposed tendency evidence is credibility evidence
In light of these matters, the Crown argued that the proposed tendency evidence is actually credibility evidence within the credibility rule in s 102 of the ENULA. Section 102 sets out the credibility rule, providing that credibility evidence about a witness is not admissible. There are various exceptions to the credibility rule.[8]
‘Credibility evidence’ is defined by s 101A as evidence relevant to the credibility of a witness that is relevant: (a) only because it affects the assessment of the witness’s credibility; or (b) because it affects the assessment of the witness’s credibility and for some other purpose for which it is not admissible or cannot be used. ‘Credibility of a witness’ is defined to mean the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. Credibility imports notions of both truthfulness and reliability.[9]
Ultimately, the proposed tendency evidence is relevant because it affects the assessment of the credibility of the complainant and for no other reason. The proposed tendency evidence is sought to be led for the purpose of establishing the alleged tendency which is said to be probative of the issues in the case. On that basis, it might be thought that the evidence falls within s 101A(b) of the definition of ‘credibility evidence’ because it is relevant ‘for some other purpose’, namely to establish a tendency. However, the defence seeks to adduce the proposed tendency evidence in order to prove the falsity or unreliability of the SJ complaint and the MA complaint in order to establish that the complainant has the alleged tendency, the essence of which is that she is an unreliable witness, in order to have the jury reject her evidence about the accused. That is, in substance, the reasoning applicable to credibility evidence, i.e. the complainant has told false or unreliable stories before, in circumstances where she was required to tell the truth, making her an unreliable witness whose evidence about the sexual intercourse with the accused should be rejected. Consequently, it cannot be said that the evidence is relevant because it affects the assessment of the credibility of the complainant and for some other purpose. The sole purpose of the proposed tendency evidence is its relevance as affecting the assessment of the complainant’s credibility. The proposed tendency evidence is therefore credibility evidence within the credibility rule.
The question then arises as to what flows from that conclusion, particularly as to whether credibility evidence can be admitted as tendency evidence. In my view, it cannot. No authority has been located which deals with this question. It is a question of statutory construction which turns on the terms of the relevant provisions, their context, and the mischief to which they are directed.
The rationale for the common law genesis of the credibility rule was described by McHugh J in Palmer v The Queen,[10] as follows:
The rationale behind the credit and facts-in-issue distinction does not depend on logic. It ‘is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness’. It is rooted in the need for ‘case management rules’. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that ‘they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue’. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner [1965] AC 595 at 607 that ‘[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them’.
That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen ‘as a well-established guide to the exercise of judicial regulation of the litigation process’.
This rationale is reflected in the constraints on admissibility of credibility evidence in Part 3.7 of the ENULA.
The clear intention of s 101A is that the provisions of Part 3.7 relating to credibility evidence operate in respect of evidence which is relevant because it affects the assessment of a witness’s credibility unless the evidence is also relevant and admissible for some other purpose, in which case the provisions relating to the admissibility of the evidence for that other purpose will operate, and the evidence may be used to affect the assessment of the credibility of that witness even if it would not satisfy the provisions of Part 3.7 if they had applied.[11] Under that scheme, there is no scope for evidence to be both credibility evidence and tendency evidence. That is confirmed by s 94(1), which provides that Part 3.6 (dealing with tendency and coincidence) does not apply to evidence that relates only to the credibility of a witness.
Usually, tendency evidence relates to a tendency on the part of the accused or another person (such as the complainant) to engage in behaviour or have a state of mind which is directly operative in relation to the alleged offending, such as a tendency to aggression or violence or sexual misconduct or the like. The defence was not able to identify any case in which evidence going to a witness’s reliability was admitted as tendency evidence. The reason for that would appear to be because such evidence is not pressed as tendency evidence within Part 3.6 of the ENULA; it is dealt with as credibility evidence within Part 3.7.
On this basis, the defence application to elicit evidence about the SJ complaint and the MA complaint as tendency evidence must be refused.
In case I am wrong in the conclusion that Part 3.6 has no application to the proposed tendency evidence, I will consider the remaining issues about the admissibility of what I will continue to refer to, despite the conclusion that it is not tendency evidence but credibility evidence, as ‘the proposed tendency evidence’.
Tendency reasoning
Tendency evidence is a type of circumstantial evidence which provides the foundation for an inference to reach a conclusion of fact, the inference being that, because the person had the relevant tendency, it is more likely that they acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party, on an occasion the subject of the proceedings.[12] Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.[13]
The justification for adducing tendency evidence is that the evidence tells the jury something important about the person whose tendency is sought to be proved (i.e., the accused, the complainant, someone else), in particular the way in which the person can be expected to think or act in particular circumstances, and what is revealed about the person must be of importance in determining a fact in issue, which need not be the ultimate fact in issue, but may be a subsidiary or collateral fact which is nevertheless important in reasoning that an ultimate fact in issue exists.[14] ‘Tendency’, in its ordinary meaning, refers to an inclination towards a particular behaviour or way of thinking. Proposed tendency evidence need not, therefore, establish that a person has a fixed pattern of behaviour or thought; rather the proposed tendency evidence will allow the jury to draw an inference that, when presented with particular circumstances, the person will tend to act or think in a particular way, which will allow the jury to draw a second inference, namely that when confronted with the same or similar circumstances, the person will act or think in the same way as he or she has acted or thought in the past when confronted with those circumstances.[15]
Requirements for admission of tendency evidence
The tendency rule is set out in s 97 of the ENULA. Generally speaking, evidence of a person’s character, reputation or conduct, or a tendency they have or had, is not admissible to prove they have or had a tendency to act in a particular way or to have a particular state of mind (s 97(1)). Such evidence is admissible if the party seeking to adduce the evidence gave reasonable notice in writing to the other party(ies) of their intention to adduce the evidence; and the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value (s 97(1)).
‘Probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[16]
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.[17] A ‘significant’ probative value is a probative value which is important or of consequence.[18] The term ‘significant’ connotes something more than mere relevance but less than a substantial degree of relevance and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[19]
In the context of an application by the prosecution to adduce tendency evidence, it is well accepted that the evaluation of the probative value of the proposed tendency evidence involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency; and second, the extent to which the tendency makes more likely facts making up the charged offence.[20] Where the application to adduce tendency evidence is made by the defence, this is not done to prove a tendency which makes more likely facts making up the charged offence. In such contexts, it has been accepted that the analysis still requires consideration of the two interrelated matters, but the test must of necessity be different because the accused does not bear any legal onus of proof.[21] In such circumstances, the evidence is pressed in order to establish, as a reasonable possibility, a state of facts consistent with the innocence of the accused; rather than, where tendency evidence is pressed by the prosecution, in order to establish beyond reasonable doubt facts that make up the charged offence. It follows that evidence which could be classified as having ‘significant’ probative value in a defence application may not be so classified if it were a prosecution application, and the test for the admission of tendency evidence is easier to satisfy where the evidence is sought to be adduced by the defence than where tendency evidence is sought to be adduced by the prosecution.[22]
The proposed tendency evidence in the context of the other evidence
Section 97 of the ENULA provides that the probative value of the proposed tendency evidence is to be considered, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence. It has been held, in a case dealing with a defence tendency application, that it would be incongruous if, in considering the probative value of proposed tendency evidence, the court did not also take into account other evidence which was to be adduced by the prosecution.[23] I agree.
In this case, the act of sexual intercourse between the accused and the complainant is not in dispute. What is in dispute is whether the complainant consented to the sexual intercourse and whether the accused knew or was reckless that she did not. The Crown case is that the complainant was too intoxicated to consent. Reliance is placed on observations by witnesses of the complainant’s consumption of alcohol and intoxication, interactions between the accused and the complainant on the night in question, including the accused invading the complainant’s personal space, and carrying her asleep or unconscious to his room, and his initial denials to police of sexual intercourse with her. Reliance is also placed by the Crown on the complainant’s evidence that she passed out, remembers nothing until she woke up without her underwear in JK’s bedroom, and did not know what happened but felt that something was wrong. The complainant’s evidence (and consequently her credibility) will be important in the Crown’s case, but the probative value of the other evidence has the capacity to lessen somewhat the probative value of the proposed tendency evidence, which is only directed to undermining the complainant’s evidence.
Probative value of the proposed tendency evidence – SJ complaint and MA complaint
I will deal firstly with the proposed tendency evidence about the SJ complaint and the MA complaint.
Capacity of the proposed tendency evidence to support the alleged tendency
The first question is the extent to which the proposed tendency evidence supports the alleged tendency, i.e. a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not.
There is a problem with the proposed tendency evidence in this regard. In assessing the probative value of proposed tendency evidence, the evidence must be taken at its highest (i.e. it must be assumed that it will be accepted and regarded as both reliable and credible) and no question as to the credibility or reliability of the evidence should, for that purpose, be entertained.[24] The proposed tendency evidence about the SJ complaint comprises what the complainant said in her complaint (that SJ assaulted her), what the complainant might say about that if further cross-examined, what SJ said (that he did not assault her, but rather she attacked him and he then acted in self-defence and/or in protection of the property from damage by her), what SJ might say about that in cross-examination, what the other witnesses said (the witness who recorded the video was not present in the bedroom where the incident occurred and the other witness’s presence was disputed – he said he did not enter the bedroom until the violence was essentially over, while the complainant said he saw the whole thing), the video footage containing the sounds coming from the bedroom during the incident and the photographs of the complainant’s injuries. If it be assumed that the jury will accept all of that evidence as reliable and credible, it is not possible to determine the extent to which the proposed tendency evidence supports the alleged tendency because the evidence pulls in opposite directions. On that basis, the jury will not be able to determine, with any rational degree of satisfaction, whether the SJ complaint was true or whether the complainant was lying or was an unreliable witness whose testimony could not be safely acted on.
As regards the MA complaint, the problem is, at best, the same, but potentially worse. The only proposed tendency evidence before me about the MA complaint is the complainant’s statement to police and the statement of the eye witness who said she saw and heard the incident in the car. There is nothing before me as to what MA has said about the complaint, if anything. Assuming that the complainant would confirm her version of events if cross-examined at the accused’s trial, the proposed tendency evidence does not have the capacity to support the alleged tendency to make false or unreliable complaints. If MA were to give evidence at the accused’s trial about the incident, and to deny it, then the same observations as made in paragraph [48] above in relation to the SJ complaint apply.
Defence counsel argued that the way to deal with this difficulty was to take the same approach as Kelly J took in The Queen v Smiler (No 2).[25] In that case, the proposed tendency evidence related to the commission of three previous assaults by the complainant on two previous occasions to establish a tendency to serious violence in certain circumstances. The proposed tendency evidence comprised the agreed facts on the guilty plea in relation to one previous occasion, evidence from a witness of the alleged assault on the other previous occasion, and the proposed cross-examination of the complainant about both incidents. Because there was sufficient evidence for the issue of self-defence to be put to the jury, her Honour held (at [15]-[18]) that the proposed tendency evidence met the threshold of ‘significant probative value’ for defence tendency applications. The Crown argued that the proposed tendency evidence relating to the alleged assault was likely to result in an undue waste of time within s 135 of the ENULA because the evidence of the eye witness was disputed, which would result in extensive cross-examination on a side issue, evidence in rebuttal and a ‘trial within a trial’. The complainant had refused to provide a statement about the incident so it was unknown what he would say. Her Honour held that she was unable to say whether there would be a dispute about the incident and, if so, what issues and evidence might be opened up. She concluded that the best course would be to allow cross-examination of the complainant about both incidents and reserve judgment on the question of what other evidence (if any) would be allowed in.
That proposed course does not address the difficulty in relation to the SJ complaint. It is clear that there is quite an extensive array of conflicting and disputed evidence. As regards the MA complaint, either the complainant’s version of events would be confirmed, meaning the proposed tendency evidence would not support the alleged tendency, or MA would dispute the complainant’s version of events and all of the evidence relating to the complaint would be led, including that of the eye witness, investigating police and medical records, with the jury left to determine, if possible, whether the complainant’s version of events was false or unreliable or not. If the truth or reliability of the SJ complaint or the MA complaint are indeterminable, the probative value of the proposed tendency evidence is negligible.
A single incident?

If the contempt/abuse of process difficulty identified in paragraph [20] above is not overcome, and that difficulty prevents the defence calling evidence at the accused’s trial about the MA complaint, the proposed tendency evidence will comprise a single incident. Even in a prosecution application, a single instance of prior conduct can have significant probative value and be admissible as tendency evidence. For example, in TL v The Queen,[26] it was alleged that the defendant had murdered a young child. The tendency evidence sought to be led by the prosecution was of a single assault on the same victim by the defendant. The evidence was held to have significant probative value because, amongst other things, the number of potential offenders who could have committed the murder was small, the assault occurred 10 days prior to the alleged murder and the assault involved the deliberate infliction of significant injuries to the child. It was observed (at [208]) that the acts involved in the assault were different from the acts involved in the murder, but they involved the same victim in the same house in the same family, they were close in time, and they involved a deliberate act of cruelty which was not spontaneous.
None of the authorities dealing with defence applications to adduce tendency evidence to which defence counsel referred involved a single instance of conduct as proposed tendency evidence. Even with the lower threshold for defence tendency evidence, it is difficult to see any significant capacity to establish the alleged tendency in the complainant having made a complaint to police about being physically assaulted by another man almost a year and a half after making a complaint to police about someone having sexual intercourse with her whilst she was intoxicated and unconscious.
Similarities or differences?
It is not necessary that the conduct relied on as tendency evidence be strikingly or even closely similar conduct to, or that it have an underlying unity with, the charged conduct.[27] However, the closer the degree of similarity, the more significant and more probative the evidence is likely to be, because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.[28] Similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself, such that, even if the conduct is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of ‘significant probative value’.[29] The case of TL v The Queen referred to in paragraph [52] above is an example of this proposition. The level of generality of the alleged tendencies may affect its probative value.[30] As the High Court observed in Hughes, a tendency expressed at a high level of generality might mean that the tendency evidence provides significant support for the tendency, but that the tendency cannot establish anything more than relevance, whereas a tendency expressed at a level of particularity will be more likely to be significant.[31]
The SJ complaint and the MA complaint involve the complainant alleging that two different men committed physical acts of violence against her, causing physical injuries. In the accused’s case, he has said the sexual intercourse was consensual, whereas the complainant says she was too intoxicated to consent. There is no allegation of physical violence against the accused, and no suggestion he caused the complainant any physical injury. Neither the SJ complaint nor the MA complaint involve allegations of a sexual nature. The complainant was in a relationship with SJ for about two months before the SJ complaint incident, and had known MA for around 12 or 13 years, had dated him some seven years before, and had recommenced a friendship with him two months before the MA complaint incident. She had only met the accused twice, as acquaintances, before the night of the alleged offending. The complainant had drunk alcohol on the night of the alleged offending, and on the night of the SJ complaint, but was not intoxicated at the time of the MA complaint.
Defence counsel admitted that the references in the alleged tendencies set out in the tendency notice to circumstances such as the complainant consuming alcohol; being or drinking ‘in the company of men’; and being in a ‘casual intimate relationship’ with the man complained about were simply attempts to give greater particularity to the alleged tendencies in order to enhance their probative value. The difficulty is that those circumstances were not present in relation to each of the two incidents the subject of the proposed tendency evidence and the alleged offending. For example, the alleged tendency to falsely claim that violence in which she took part was initiated by the man when she herself initiated it only potentially applied to the SJ complaint. It had no relation to the MA complaint or the alleged offending. The proposed tendency evidence does not support, to any significant degree, the tendencies described with those matters of particularity.
Furthermore, to argue that the proposed tendency evidence supports multiple (here, 10) particular tendencies all expressed differently is substantively the same thing as arguing that the proposed tendency evidence supports a single tendency expressed with generality. The application is not strengthened by this approach.
As set out in paragraph [27] above, I have reformulated the alleged tendencies in the tendency notice to the alleged tendency to make false or unreliable complaints against men that they assaulted or committed crimes against her when they did not. The similarities and differences in the conduct and surrounding circumstances of the three complaints identified above remain relevant.
Time gaps
The alleged offending occurred on 14 March 2020 and the complainant complained about it to police on 15 March 2020. She made the MA complaint on 21 April 2021 (over 13 months later) and the SJ complaint on 13 August 2021 (almost 17 months later).
Before the alleged offending, the complainant had lived in Darwin for three or four years. She has made no other complaints in relation to offending against her.
The fact that the proposed tendency evidence relates to events occurring after the conduct in issue does not necessarily mean that the probative value of the evidence is reduced, but it can be problematic to use recent conduct to explain past behaviour.[32] The tendency reasoning would be that the complainant had the alleged tendency in April and August 2021, and so also had it in March 2020.
The gaps in time are not that great, but what matters is whether there were opportunities, and how many, during the intervening period, for the alleged tendency to manifest.[33] Given the well-recognised prevalence of domestic violence in the community, for a woman to make a complaint about being assaulted by a man on two occasions across a period of four to five years (being the time she had lived in Darwin) is not significantly supportive of the existence of a tendency to make such complaints.
Capacity of the alleged tendency to support the reasonable possibility
The relevant reasonable possibility consistent with innocence is that the complainant is lying or unreliable in her assertion that she was too intoxicated to consent to the sexual intercourse with the accused. If the jury were to accept that the complainant had the alleged tendency at the time of the offending, it could raise the relevant reasonable possibility consistent with innocence.
A tendency to make false or unreliable allegations would, on the standard applicable to defence applications, have significant probative value in supporting the relevant reasonable possibility consistent with innocence.
Probative value of the proposed tendency evidence
While the alleged tendency would have significant probative value, for the reasons set out in paragraphs [52] to [64] above, the proposed tendency evidence comprising the SJ complaint and the MA complaint does not, on the standard applicable to defence applications, have significant probative value in supporting the alleged tendency. Consequently, the proposed tendency evidence about those complaints does not satisfy the requirements of s 97 of the ENULA and is not admissible at the accused’s trial.
Probative value of the proposed tendency evidence – SJ statement
I will next deal with the proposed tendency evidence comprising the statement by SJ that the complainant told him she was ‘setting up’ the accused because he was not nice to her.
Assuming that SJ was prepared to give that evidence at the accused’s trial (a matter currently unknown as the SJ statement is unsigned and SJ could not be contacted before the voir dire), the SJ statement would appear to be admissible first-hand hearsay under s 66(2) of the ENULA. The SJ statement would have significant probative value as evidence of the fact (that the complainant is ‘setting up’ the accused because he was not nice to her) to support the reasonable possibility consistent with innocence (that the complainant is lying or unreliable about being too intoxicated to consent to the sexual intercourse with the accused).
The SJ statement does not have any additional probative value as tendency evidence to its value as evidence of the fact. Receiving it as tendency evidence cannot expand its probative value when the fact it can prove directly and the inference to be drawn from the alleged tendency are essentially the same, namely that the complainant is lying or unreliable about being too intoxicated to consent. Consequently, the proposed tendency evidence comprising the SJ statement does not satisfy the requirements of s 97 of the ENULA and is not admissible at the accused’s trial as tendency evidence.
The defence referred to difficulties it had experienced in trying to make contact with SJ in order to have the statement signed and argued that, consistent with the prosecution’s duties, the Crown should have been assisting to obtain the evidence from SJ.[34] The Crown resisted this submission, pointing to the numerous shifts in the defence’s position, the lack of clarity about how the evidence was sought to be used and the fact that the defence had not actually requested any assistance from the Crown in this regard.
Given the significant probative value of the SJ statement as evidence of the fact, and the clarity about the defence position now, it may be expected that the Crown and the defence will co-operate in relation to obtaining this potentially significant evidence.
Undue waste of time?
In case I am wrong in my conclusions that the proposed tendency evidence does not have significant probative value, I will consider the operation of s 135(c) of the ENULA.
Section 135(c) provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
In The Queen v Taylor,[35] it was observed that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few. This was not a case about tendency evidence and the Court held that the trial judge’s exclusion, in the exercise of the discretion under s 135, of the evidence tendered by the accused was open. In The Queen v Cakovski,[36] which concerned a defence tendency application, it was observed that ‘a trial judge would need to think long and hard before exercising [the s 135] discretion against an accused in a criminal trial’. In rejecting a Crown submission that the tendency evidence sought to be led by the defence would result in a ‘trial within a trial’ and an undue waste of time, Kaye JA held in DPP v Dixon (at [137]) that the proposed tendency evidence in the trial for attempted murder and causing serious injury (that the victim had shot and killed a man 25 years before the incident the subject of the trial) would be susceptible of rather simple proof, which the prosecution could adduce, with the consequence that the evidence would be quite confined. The circumstances of that killing were not in dispute (see [132]). Those observations are a far cry from the proposed tendency evidence in this case, which comprises contested evidence from multiple witnesses, as well as video and documentary evidence, in relation to two separate incidents which may be expected to take a number of days to hear. There is a real possibility that the proposed tendency evidence could take longer to hear than the evidence relating to the alleged offending.
The admission of the proposed tendency evidence would add considerable complexity to the trial, potentially without assisting resolution of the facts in issue,[37] given the risk that the jury may not be able to determine whether the complaints were false or unreliable or not. Furthermore, an evaluation of that evidence would deflect the jury from their main task (determining the guilt of the accused)[38] and even from the relevant issue, namely the complainant’s credibility.[39] The jury would be asked to decide, if they could, whether the facts occurred as the complainant described them in her complaints, which would require them to assess all of that evidence, including the credibility of all the witnesses called to give evidence about those complaints. The proposed tendency evidence would call for not one, but two, trials within the trial before the jury.
Even if the proposed tendency evidence had significant probative value, I consider that its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time within s 135(c) of the ENULA. If it were admissible under s 97, I would refuse to admit it pursuant to s 135(c).
Application to recall the complainant
The defence seeks to have the complainant re-called to cross-examine her about the proposed tendency evidence, that is, about the SJ complaint, the MA complaint and the SJ statement. Given the conclusions I have reached about the proposed tendency evidence, the application to cross-examine her about the SJ complaint and the MA complaint must be refused. That evidence is simply not relevant.
As regards the SJ statement, I have concluded it is significantly probative evidence to support the fact that the complainant is setting up the accused. That is a matter that points in favour of the complainant being re-called.
The SJ statement says the complainant told SJ she was setting up the accused in around March 2021. The special sitting for the complainant’s evidence was on 30 July 2021. The reason the SJ statement was not put to the complainant at the special sitting when she gave her evidence was that the SJ statement was made by SJ whilst instructing his lawyers in relation to the Local Court proceeding against him, which arose from the SJ complaint made on 13 August 2021, after the special sitting for the complainant’s evidence on 30 July 2021. The inference is that the SJ statement was made after the special sitting for the complainant’s evidence. That is the explanation for why the SJ statement was not put to the complainant in cross-examination. The failure was not through any fault of the defence. That is also a matter that points in favour of the complainant being re-called.
The complainant’s availability to be re-called to give further evidence at the trial is uncertain. The Crown has attempted to remain in contact with her, and has done so by email. She was apparently in Egypt in February 2022, then in Sudan in April 2022. In June 2022, she was asked if she would come back to Australia for this trial and the MA matter and responded that she is still overseas and needed help to get back to Australia. There was a further email to her on 27 June 2022, but no response was received. The Crown’s understanding at the hearing of the second day of the voir dire was that she had not returned to Australia. The Crown advised via email on 21 July 2022 that the complainant had returned to Australia and had left messages for the Crown witness assistance officer, however they were yet to speak to each other. The expectation is, therefore, that the complainant will be in the jurisdiction and compellable to give further evidence at the trial.
The complainant’s status as a vulnerable witness is a relevant matter. Since 30 July 2021 when she gave evidence at the special sitting, she has most likely considered her involvement in the accused’s trial to be over. To have to subject her to further cross-examination requires a balancing of the likely stress, anxiety and mental anguish she would suffer against the importance of the evidence in the defence case.
The Crown argued that she should not be re-called without evidence from SJ that the complainant said those words to him. The defence put the argument about the prosecutor’s obligations as set out in paragraph [69] above. Given the significant probative value of the SJ statement, there is some force to the defence argument effectively that, if the Crown wants to be satisfied that SJ will say that the complainant said those words to him, the Crown should contact him and find out.
The defence argued that an inability to cross-examine the complainant about the SJ statement would have the consequences for the trial that: (a) SJ would nevertheless give oral evidence about the SJ statement; (b) the defence would nevertheless argue that the jury could act on the SJ statement and find a reasonable possibility that the complainant was lying or unreliable about being too intoxicated to consent to sexual intercourse with the accused; (c) the jury would be told that: (i) they would need to bear in mind in considering these questions that the complainant was not cross-examined about them so did not have the opportunity to respond; and (ii) the jury would not be told that they could draw an adverse inference against the accused from the failure to cross-examine the complainant. defence counsel added, effectively, that there was no guarantee that such a course would ensure the accused received a fair trial.
I do not accept that a failure to permit the defence to cross-examine the complainant about the SJ statement would result in an unfair trial. However, on balance, I consider that, if SJ gives evidence at the trial consistent with the SJ statement, the complainant should be re-called to be cross-examined about it. The cross-examination would be short and of narrow compass, confined to what she said to SJ, if anything, and what she meant by it. It would not descend into the matters the subject of the SJ complaint. If the complainant is in the jurisdiction and thereby compellable to give evidence, she should be recalled for that purpose.
Disposition
For the above reasons, I make the following orders:
1. The proposed tendency evidence about the SJ complaint and the MA complaint is credibility evidence and not tendency evidence within s 97 of the ENULA.
2.If it were tendency evidence, the proposed tendency evidence about the SJ complaint and the MA complaint does not have significant probative value. It would not be admissible under s 97 of the ENULA.
3.The SJ statement that the complainant told him that she is ‘setting up’ the accused because he was not nice to her is admissible of the fact and could be adduced at the trial in proof of that fact. As tendency evidence, it does not have any probative value additional to its value as evidence of the fact. It would not be admissible under s 97 of the ENULA.
4.If the proposed tendency evidence were admissible under s 97 of the ENULA, its probative value would be substantially outweighed by the danger that it might cause or result in undue waste of time within s 135(c) and I would, in my discretion, refuse to admit it.
5.The defence application for the complainant to be re-called for cross-examination about the proposed tendency evidence is allowed only to the extent that there is leave to cross-examine her about the SJ statement, and only if SJ gives evidence about the statement at the trial. The application is otherwise refused.

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[1] There is only a single count in the indictment and sexual intercourse with the complainant is not disputed. Given the facts in issue in paragraphs (b) and (c), this ‘fact’ is of no moment.

[2] The proceedings were continued and determined on 16 February 2022. Transcript of the remainder of the hearing on 16 February 2022 was provided to the Court by the defence on 18 July 2022.

[3] See, for example, Saffron v Commissioner of Taxation (1991) 30 FCR 578 at 583 per Davies J, 592 per Lockhart J, 600-601 per Beaumont J; Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at [101]-[102] per Meagher JA (Whealy JA agreeing).

[4] The effect of the burden of proof, and what the accused must ‘establish’ or ‘prove’, are considered in detail below. Those terms are used here, acknowledging that they are somewhat inapt in light of the matters of proof considered below.

[5] This is the consequence of the burden of proof, and is dealt with below.

[6] The defence also argued that the inadequate descriptions of the proposed tendency evidence in the tendency notice could be overlooked because it was, after argument on the voir dire, apparent what the proposed tendency evidence was.

[7] DPP v Wilson [2021] VSC 766 at [60]-[61] per Taylor J.

[8] For example, s 103 permits evidence to be adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the witness’s credibility. Section 106(1) provides that the credibility rule does not apply to evidence that is relevant to a witness’s credibility (say, the complainant’s) and that is adduced otherwise than from the witness (say, the participants in the SJ complaint or the MA complaint) if: (a) in cross-examination of the witness (i.e. the complainant) the substance of the evidence was put to the witness and the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence. Leave is not required in certain circumstances (s 106(2)). Section 108 provides that the credibility rule does not apply to evidence adduced to re-establish credibility, including evidence in re-examination.

[9] See Dupas v The Queen (2012) 40 VR 182 at [265] per Warren CJ, Maxwell P, Nettle JA, Redlich JA and Bongiorno JA.

[10] Palmer v The Queen (1998) 193 CLR 1 at 22-23. McHugh J was in dissent in the result, but this extract does not appear to conflict with the views of the majority.

[11] See Odgers, Uniform Evidence Law, [EA.101A.60].

[12] Elomar v The Queen [2014] NSWCCA 303 at [359] per Bathurst CJ, Hoeben CJ at CL and Simpson J (‘Elomar’). See also Hughes v The Queen (2017) 263 CLR 338 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ (‘Hughes’).

[13] Elomar at [360].

[14] The Queen v Rolfe (No 7) [2022] NTSC 1 per Burns J.

[15] Ibid at [96].

[16] ENULA, Dictionary.

[17] Hughes at [16].

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

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

[20] Hughes at [41], [64].

[21] Director of Public Prosecutions v Campbell (No 1) [2013] VSC 665 at [41] per Kaye J (‘DPP v Campbell’); Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743 at [106]-[107] per Kaye JA (‘DPP v Dixon’); The Queen v Holmes (No 5) [2021] NSWSC 115 at [34], [35], [44] per Campbell J.

[22] Ibid. See also DPP v Campbell at [55] per Kaye J; The Queen v Lockyer (1996) 89 A Crim R 457 at 460 per Hunt CJ at CL.

[23] Ibid. See also DPP v Campbell at [58] per Kaye J.

[24] IMM at [39], [52].

[25] [2017] NTSC 31.

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

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

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

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

[30] Ibid at [122(x)] per Bell P and the authorities there referred to, esp. El-Haddad v The Queen (2015) 88 NSWLR 93 at [72] per Leeming JA (McCallum and R A Hulme JJ agreeing).

[31] Hughes at [64].

[32] See, for example, RH v The Queen (2014) 241 A Crim R 1 at [88]-[130] per Ward JA (Harrison and R A Hulme JJ agreeing).

[33] Taylor v The Queen [2020] NSWCCA 355 at [146]-[148] per Beech-Jones J (Walton J agreeing), distinguishing McPhillamy v The Queen (2018) 92 ALJR 1045.

[34] Relying on observations about the Crown’s duty as ‘minister of justice’ to co-operate with defence in adducing proofs of tendency evidence (prior instances of violence) pressed by the defence in DPP v Dixon at [137] per Kaye JA.

[35] The Queen v Taylor [2003] NSWCCA 194 at [130] per Bell J (Spigelman CJ and Miles AJ agreeing).

[36] [2004] NSWCCA 280 at [72] per Hidden J.

[37] See Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at [21] per Burchett J (Hill and Branson JJ agreeing), citing DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 at 607 per Gummow J. See also The Queen v Taylor [2003] NSWCCA 194 at [128]-[130] per Bell J (Spigelman CJ and Miles AJ agreeing).

[38] See The Queen v Rolfe (No 7) [2022] NTSC 1 at [113] per Burns J.

[39] See The Queen v Esposito (1998) 105 A Crim R 27 at 71 per Adams J.