Zhang v Hu (Ruling)
[2023] VCC 248
•24 February 2023
K
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-04017
| Xiaohua Zhang | Plaintiff |
| v | |
| Conghan Hu | Defendant |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Submissions dated 27 January 2023, 3 and 6 February 2023 | |
DATE OF RULING: | 24 February 2023 | |
CASE MAY BE CITED AS: | Zhang v Hu (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 248 | |
RULING
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Subject:TENDENCY EVIDENCE
Catchwords: tendency – threats – Notice of Intention to Adduce Evidence – significant probative value – extent to which the evidence supports the asserted tendency – extent to which the tendency makes more likely the fact or facts sought to be proved by the evidence
Legislation Cited: Evidence Act 2008 (Vic) s97(1)
Cases Cited:Hughes v The Queen (2017) 263 CLR 338; RHB v The Queen [2011] VSCA 295; McPhillamy v The Queen (2018) 361 ALR 13; R v Watkins [2005] NSWCCA 164; R v Fletcher [1935] HCA 1; R v Milton [2004] NSWCCA 195; AE v R [2008] NSWCCA 52; Ibrahim v Pham [2004] NSWSC 650; El-Haddad v The Queen (2015) 88 NSWLR 93; Page v The Queen [2015] VSCA 357; DPP v Alexander [2016] VSCA 92; TL v The King [2022] HCA 35; R v Ford [2009] NSWCCA 306; R v PWD [2010] NSWCCA 209; Saoud v R (2014) 87 NSWLR 481; Velkoski v R (2014) 45 VR 680
Texts Cited:Odgers, Uniform Evidence Law (13th ed, Thomson Reuters, 2018)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Gration | James Partners Lawyers |
| For the Defendant | Mr S Clement | Oakfair Lawyers |
HER HONOUR:
Introduction
1By Notice of Intention to Adduce Evidence dated 16 January 2023 (“the Notice”), the defendant made an application that the Court permit evidence of the plaintiff’s conduct in June 2021 in the fact-finding process pursuant to s97(1) of the Evidence Act 2008 (Vic) (“Evidence Act”) and for the purpose of proving that the plaintiff had a tendency to: (1) make threats to the defendant, and (2) make repeated and unwelcome visits the defendant’s office (“the Purpose”).
Background
2In July 2017, the plaintiff entered a loan facility with Garden Street Development Pty Ltd (“Garden Street Development”), by which the plaintiff electronically advanced to that entity a loan of $5.1m, repayable in six months. Garden Street Development owned real properties in Queensland, in which the plaintiff obtained a security interest. The defendant’s company, Zank & Company Pty Ltd (“Zank & Co”), brokered that loan.
3Garden Street Development defaulted on that loan. Some repayments were made by the borrower and, later, by the second mortgagee, YQC Southport Pty Ltd.
4In around June 2019, the defendant and Jian Hua Jiang (aka “David”) of YQC Southport Pty Ltd agreed with the plaintiff that they would form a new company (being, Garden Street Holding Pty Ltd) to purchase the Queensland properties for an inflated price, so that the plaintiff would recover his principal loan advance of $5.1m.
5The effect of those matters was that by around June 2019, the plaintiff would recover his $5.1m principal loan but would not recover any interest from the borrower. The defendant gave evidence that the ¥9.5m/AUD$1.9m figure recorded in the loan documents was derived from a calculation of the plaintiff’s unrecoverable interest, which the plaintiff said that Zank & Co and, specifically, the defendant ought to be personally responsible for. The plaintiff relies on the loan agreement and supplementary loan agreement and seeks to recover the sum of ¥9.5m/AUD$1.9m that he claims he advanced to the defendant, less two part payments totalling $50,000.00. The plaintiff claims that the balance of $1,850,000.00 plus interest remains due and payable by the defendant.
Issues
6The issues that the Court must determine in this proceeding are as follows.
(a) Did the plaintiff advance ¥9.5 million to the defendant in September 2019?
(b) Did the defendant sign the original Loan Agreement and Receipt under duress?
(c) Did the defendant make payments of $30,000.00 and $20,000.00 to the plaintiff in respect of the loan in November and December 2020?
(d) Did the defendant sign the Loan Repayment Agreement in March 2021 under duress?
(e) Is the defendant indebted to the plaintiff for $1,850,000.00 plus interest?
7The tendency evidence may be relevant to issues (b) and (d) above.
Legal framework
8Tendency evidence is evidence of a tendency that a person has or had, which the Court can use to infer a fact in issue.[1] Tendency evidence is tendered to prove (by inference) that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in that particular way (or had that particular state of mind).
[1] Evidence Act 2008 (Vic) s97(1).
9Such evidence is not admissible unless two preconditions are satisfied: (a) the giving of notice; and (b) the evidence has “significant probative value”.
10It was common ground that the first precondition had been satisfied by reason of the Notice dated 16 January 2023.
11The processes by which the tender of tendency evidence is to be determined have been described as follows:
(a) tendency evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced or anticipated, have significant probative value;
(b) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;
(c) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact;
(d) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; and
(e) the task of the tribunal of fact in determining whether to admit evidence tendered as tendency evidence is, therefore, essentially an evaluative and predictive one.
12The Court is required, first, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue. Second, (if that determination is affirmative), to evaluate, in the light of any evidence already adduced and evidence that is anticipated, the likelihood that the tribunal of fact would assign the evidence significant probative value. If the evaluation results in a conclusion that the tribunal of fact would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s97 of the Evidence Act mandates that the evidence is not to be admitted.
13The assessment of the strength of the tendency inference will normally turn on such factors as:[2]
(a) the nature of the proceedings, i.e. civil or criminal;[3]
(b) the issue to which the evidence is relevant;[4]
(c) the number of occasions of particular conduct relied on;[5]
(d) the time gap or gaps between them;[6]
(e) the degree of similarity between the conduct on the various occasions;[7]
(f) the degree of similarity of the circumstances in which the conduct took place, particularly if it is possible to establish a pattern of behaviour, or even a modus operandi, in those circumstances;[8]
(g) whether the tendency evidence is disputed;[9] and
(h) whether the evidence is adduced to explain or contradict tendency evidence adduced by another party, because the probative value of such evidence may be greater where it is used for that purpose than when it is considered in isolation.
[2] Odgers, Uniform Evidence Law (13th ed, Thomson Reuters, 2018) [EA.97.120].
[3] Hughes v The Queen (2017) 263 CLR 338 at [16].
[4] Ibid at [42].
[5] RHB v The Queen [2011] VSCA 295 at [20].
[6] McPhillamy v The Queen (2018) 361 ALR 13 at [30]–[32]; R v Watkins [2005] NSWCCA 164 at [36].
[7] R v Fletcher [1935] HCA 1 at [58].
[8] R v Milton [2004] NSWCCA 195 at [31]; R v Fletcher [1935] HCA 1 at [57], [67]–[68].
[9] AE v R [2008] NSWCCA 52 at [44]; Ibrahim v Pham [2004] NSWSC 650 at [31] (it is suggested that this factor played little part in that decision).
The Notice
14The Notice dated 16 January 2023 relevantly provided:
“2. The defendant intends to adduce evidence that:
(a) between around August and September 2019, the plaintiff engaged in a course of persistent harassment and threats to the defendant by:
(i) attending the defendant’s business offices daily and engaging in disrupting behaviour and refusing to leave those premises;
(ii) threatening the defendant that if the defendant did not sign a loan agreement, then the plaintiff would (1) continue to attend the defendant’s business offices daily and also the defendant’s home, and (2) use his influence in China to cause harm to the defendant’s family members who are located in China; and
(iii) messaging the defendant’s father to request payment of a sum of money;
(b) between around January and March 2021, the plaintiff engaged in a course of persistent harassment and threats to the defendant in the similar conduct set out in subparagraphs (a)(i) and (ii) above;
(c) in around June 2021, plaintiff engaged in a course of persistent harassment and threats to the defendant by:
(i) attending the defendant’s business offices and vandalising the defendant’s office and damaging equipment;
(ii) visiting and/or purporting to have visited the defendant’s home or former home without notice;
(iii) sending menacing and threatening text messages to the defendant (which messages are contained at pages 59-63 and 278-279 of the Court Book); and
(iv) sending text messages to the defendant’s friends, family, employees and/or business associates (which messages are contained at pages 282-287 of the Court Book)
(collectively, the Threatening Conduct).
3. The defendant saw, heard or otherwise perceived the conduct constituting the Threatening Conduct.
4. Evidence of the Threatening Conduct:
(a) proves that the plaintiff has a tendency to engage in threatening, intimidatory and harassing behaviour to try to induce the defendant to make payment to him and/or cause the defendant to sign documents; and
(b) increases the probability that the plaintiff engaged in the same or similar conduct in respect of the preparation and signing of the loan agreement dated 10 September 2019; and
(c) increases the probability that the plaintiff engaged in the same or similar conduct in respect of the preparation and signing of the supplementary loan agreement dated 31 March 2021.”
15The relevant allegations in the amended defence in respect of causing the defendant to sign the loan documents are contained in paragraphs 3(b) and (e) and 10(b) which provide:
Paragraph 3
b. he affixed his signature to the document only under duress and threats by the Plaintiff, and denies that;
i. the document was in fact a loan agreement; and
ii. any funds were loaned by the Plaintiff to the Defendant nor were borrowed by the Defendant from the Plaintiff pursuant to any loan agreement or at all; ….
e. He denies that the document was legally binding as he was forced by the Plaintiff to sign the document under duress.
Particulars
For a period of approximately 2 weeks prior to the Plaintiff attending the Defendant’s office on 10 September 2019, the Plaintiff engaged in a course of persistent harassment of the Defendant by:
A. Attending the Defendant’s office premises daily, engaging in disruptive and intimidatory behaviour, and refusing to leave despite multiple requests made by the Defendant. The Plaintiff’s attendances at the Defendant’s office on those occasions were also witnessed by the Defendant’s employees and by clients who were present at the office.
B. The Plaintiff further threatened that if the Defendant did not sign the document proffered by the Plaintiff, the Plaintiff would continue to attend the Defendant’s office every day and also the Defendant’s home. The Plaintiff said to the Defendant that he had a firearm.
C. The Plaintiff also said to the Defendant that if the Defendant did not sign the document, the Plaintiff would use his influence in China to cause harm to the Defendant’s family members who are located in China.
D. The Plaintiff’s requests for the Defendant to sign the document related to unrecoverable interest for a $5.1m loan made by the plaintiff to Garden Street Development Pty Ltd in July 2017, which interest the Plaintiff requested that the Defendant compensate him for. That loan is recorded in a Facility Agreement (CB91), General Security Deed (CB117) and Deed of Guarantee (CB75).
Paragraph 10
b. Says further that the Plaintiff procured the Defendant’s signature upon a document on or about 31 March 2021 by means of duress, and the Defendant denies that the document has any legal effect.
Particulars
In a period leading up to 31 March 2021, the Plaintiff continued to harass the Defendant in a similar manner to that referred to at paragraph 3(e) above.
As the Defendant feared for his own safety and the safety of his family members, he agreed to meet the Plaintiff at Mount View Hotel in Glen Waverley and signed the document in order to prevent further threats to his safety.
The Plaintiff’s harassment did not stop after the Defendant signed the document. On or about 15 June 2021, the Plaintiff trespassed at the Defendant’s office premises and damaged office equipment and property as well as vandalised the office walls with spray paint. When this incident happened, it was witnessed by employees and clients present at the office premises.
The Defendant filed a police report and was granted a Personal Safety Intervention Order against the Plaintiff on 11 August 2021.
16The relevant allegations in the amended defence in respect of inducing the defendant to make payments to the plaintiff are contained in paragraphs 7 and 8 which relate back to the matters pleaded in paragraph 3.
Use of Tendency Evidence
17The Court has heard evidence at the trial of this proceeding that the plaintiff has demonstrated a tendency, or in other words, a pattern of behaviour, to (1) make threats to the defendant, and (2) to make repeated and unwelcome visits to the defendant at his office.
18The defendant argues that the tendency evidence is capable of rationally affecting the assessment of the probability of facts in issue, being whether the plaintiff did those things in mid-2019 and early 2021, as alleged in his defence. That evidence is of significant probative value because it could rationally affect the assessment of the probability of that fact to a significant extent. That is, it is influential to the trial judge that the plaintiff has acted in this near-identical manner on another occasion, and sent a series of messages recording his action (and threatened actions) to many persons.
19In response, the plaintiff says the evidence referred to in paragraphs 2(a) and 2(b), other than paragraph 2(a)(iii), of the Notice is directly relevant to the defendant’s pleaded case and admissible on that basis. The plaintiff does not oppose the Court making a determination under s97(1)(b) of the Evidence Act, if the Court considers it necessary to do so, to allow the Court to draw inferences that if the conduct alleged in September 2019 occurred (which the plaintiff denies), it may be more likely that the conduct alleged in March 2021 occurred (which the plaintiff also denies), and vice versa.
20However, the plaintiff contends that the evidence referred to in paragraph 2(c) of the Notice does not have significant probative value to support the proof of any tendency which supports proof of a fact in issue. It does not make significantly more likely the existence of any fact in issue. It does not have the significant probative value required by s97(1)(b) of the Evidence Act. As such, the plaintiff argues that the defendant should not be permitted to adduce the evidence as tendency evidence.
21For the reasons set out below, I find that I must take the evidence set out in paragraphs 23, 25 and 27(b) below as evidence that the plaintiff has a tendency to engage in the Threatening Conduct and to take the tendency evidence into account when deciding whether the defendant has proved, on a balance of probabilities, that the defendant signed the loan document and the supplementary loan document in September 2019 and March 2021, respectively, under duress and made payments as a result of duress on 11 November and 11 December 2020.
Defendant’s submissions
22The defendant claims that from around July 2019, the plaintiff communicated that he was not happy with recovering only the $5.1m principal from his loan to Garden Street Development, and that the plaintiff began a course of aggressive threats and intimidation towards the defendant to demand that the defendant agree to pay to the plaintiff the interest that the plaintiff would have received on the Garden Street Development loan and, ultimately, to sign a document giving practical effect to that demand. There was no legal basis for the defendant to be personally liable for any interest. The defendant submits that he signed the loan document dated 31 March 2021 under duress.
23The defendant says that from July to September 2019, the plaintiff:
(a) came into the Zank & Co office very frequently and would watch the defendant work, smoke in the office, and generally obstruct the defendant’s business, that he would not leave when asked, and that those attendances were not invited (or welcomed) by the defendant (especially closer to the signing of the loan document);
(b) said to the defendant words to the effect that he would continue to come to the Zank & Co office every day until the defendant agreed to pay the lost interest from the Garden Street Development loan;
(c) said to the defendant words to the effect that he would use his contacts in the Chinese National Security (said to be similar to the CIA or KGB) to send people from China to harm the defendant and defendant’s family in China and in Australia, unless the defendant agreed to pay the lost interest from the Garden Street Development loan;
(d) said to the defendant words to the effect that he already sent people to find Xiaohu Liu (aka “Tiger”, the former director of Zank & Co), and that “sooner or later you will see Tiger's leg is broken”;
(e) said to the defendant words to the effect that he would organise media and a journalist come to Zank & Co and tell them the story about how the plaintiff (or his company, Zank & Co) had lost his investment return unless the defendant agreed to be liable for the lost interest from the Garden Street Development loan.
24The defendant submits that the evidence is that the plaintiff’s conduct and statements were made on telephone calls and also in person when the plaintiff visited the defendant’s offices in late August and early September 2019. The defendant gave evidence that these threats were made repeatedly and caused him to fear for his safety and for the safety of his family, and that he felt like he had no choice but to agree to the plaintiff’s demands. The plaintiff denied making those statements and denied engaging in that conduct. There is, therefore, a fact in issue between the parties as to whether those events occurred.
25The defendant contends that from September 2020 to March 2021:
(a) the plaintiff began to again be more aggressive and to harass him about paying money that he did not receive from the Garden Street Development loan;
(b) the plaintiff again made threats to him and his family, including that he would use his connections in China to harm the defendant and the defendant’s family unless the defendant paid money to the plaintiff. These threats were allegedly made orally on telephone calls between around January and March 2021;
(c) the defendant signed the 31 March 2021 document under duress resulting from the plaintiff’s conduct, including that it was “extremely mentally torturing”, and he feared that the plaintiff would carry out the threats.
26The plaintiff denied making those statements and denied engaging in that conduct. In March 2021, the plaintiff prepared a second written agreement, being the supplementary loan agreement. The defendant made no payments to the plaintiff after signing the 31 March 2021 loan document.
27The defendant submits that:
(a) on 15 June 2021, the plaintiff visited the defendant’s office at Zank & Co. On that day, someone caused yellow paint to be applied to the defendant’s desk, keyboard and computer monitor. The plaintiff denied that he caused that paint to be applied, but admits that he attended the offices on that day;
(b) on 15 and 16 June 2021, the plaintiff sent various threatening text messages to the defendant saying:
“Director Hu, I came by your office today with a couple of shareholders from whom you also borrowed money. We didn't find you, so we left a "gift" for you. We are just trying to be nice to you, please take it. From this moment on, we will push the case forward by going to the media and lawyers. You see, we have left you some leeway today. But it will won't be the case anymore from now on.
I have been extremely tolerant to you. As for you, let's say that you want to welch on the debt, it's your call. For me, I believe that I can play you till your death. Our game has just begun!
There is a professional team trying to scam me. I believe it, because of your credibility. I also have a professional team to deal with this. So, you just relax.
One more thing, I have also dropped by your house. You have moved your house, right? What is your current home address? How about let's have a chat tonight, just two of us, if you want? Of course, I believe that sooner or later I will find you.
When the defendant responds that he is not in the office on that day, the plaintiff states: “When will you be in office tomorrow? I will drop by.” The defendant rejects that suggestion of any physical visit by the plaintiff and says to put any statements in text or voice message. The plaintiff then says: I will drop by your office tomorrow and I hope you will be there . And, I have prepared a big "gift" for you. [The defendant then replies: “No need”]
By the way, I will come by your office every day until I see you. The Sydney office will also send someone to give you a "gift". After all, as the saying goes "gratitude shall be repaid; revenge shall be taken", since you have played me for a few years now.
The plaintiff then states after the defendant asks questions about the proposed new purchasers of the Queensland properties, inter alia:
… I demand you to repay me the remaining loan balance in the timeframe I give you. I have given you some leeway when I came to your office today! My friends were initially thinking to hang the "gift" on your front door.
Relax, I won’t do anything illegal”.
The image on the bottom left of the messages thread shows a photo of the defendant’s desk taken that day. The defendant then responds to the plaintiff to say that he had gone to the police and requests all communication be via his lawyer and expressly states his concern about the plaintiff hiring someone to kill him. The plaintiff continues to message as follows:
“It seems like that you are now loved by someone. You (have the audacity) to call the police, knowing that you owe me money. I have given you my mercy but you don't even appreciate it. I wouldn't do anything like this. I give you one week to repay me the AUD 1.9 million. If not, you have to deal with the consequence.
Wait for me. I am coming right over. I will come by your office every day, to help you keep an eye on who would do illegal things to you”.
The plaintiff admitted to sending those messages which said that he would attend the defendant’s offices every day (in response to the defendant going to the police and asking for all contact to be via lawyers) but denied actually making such visits;
(c) on 16 June 2021, the plaintiff sent threatening messages to the defendant’s father. The plaintiff admitted that he had messaged the defendant’s father previously, but claimed to be unable to remember those messages that he sent to the defendant’s father which are in the Court Book;
(d) on 16 June 2021, the plaintiff sent messages to the defendant’s wife, first pretending to be another person and asking for the defendant’s home address, before later revealing his identity and demanding money. The plaintiff denied that he sent these messages to the defendant’s wife, but did appear to accept that he had messaged her at some stage as he was unable to contact the defendant;
(e) in June 2021, the plaintiff sent messages to three of the defendant’s employees requesting the defendant’s home address. The plaintiff admits to sending these messages.
(Collectively, “the Tendency Evidence”).
28The defendant claims that the plaintiff had a tendency to make threats to the defendant and to make repeated and unwelcome visits the defendant’s office. That tendency increases the likelihood that the plaintiff did also act in the particular way alleged at the relevant times between July 2019 and March 2021. The defendant submits that the plaintiff engaged in that conduct to try to cause the defendant to agree to pay money, or make payment, to the plaintiff.
29The defendant argues that the evidence supports the particular tendency that is sought to be relied upon; that is, that the plaintiff had a tendency to (1) make threats to the defendant, and (2) to make repeated and unwelcome visits to the defendant’s office.
30In turn, the defendant claims the particular tendency is supported by (1) the plaintiff’s conduct in attending the Zank & Co offices on 15 June 2021 and vandalising that office (the plaintiff denies causing that damage); and (2) the plaintiff sending text messages to the defendant, defendant’s father, defendant’s wife and three of the defendant’s colleagues on 15 and 16 June 2021.
31The defendant contends that the conduct referred to above is more than one event and is conduct consistent with the defendant’s evidence at trial about events in July to September 2019 and late 2020 to March 2021. Further, he notes that the defendant’s evidence at trial was that the language used in the text messages was similar to that used at the relevant time in 2019.
32The defendant contends that the tendency is capable of rationally affecting the assessment of the probability of facts in issue. The central fact in issue in this case is whether the plaintiff advanced to the defendant ¥9.5m in cash on 10 September 2019 pursuant to a signed loan agreement. The plaintiff’s conduct prior to the signing of the loan documents (i.e. the alleged threats and disruptive conduct) provide relevant context to those documents, including whether the defendant’s signatures were procured by duress. Whether those documents were signed under duress is a further fact in issue between the parties. The threats are alleged to have been made orally, in person and on the telephone.
33The defendant concludes that the tendency evidence has significant probative value in respect of those facts in issue as set out in paragraphs 3(b) and (e) and 10(b) of the defence.
Plaintiff’s submissions
34The plaintiff submits that the tendency identified by the defendant at paragraph 4(a) of the Notice conflates two separate classes of conduct: behaviour said to be intended to induce the defendant to make a payment; and behaviour said to be intended to induce the defendant to sign documents.
35The plaintiff contends that none of the conduct which the plaintiff seeks to adduce evidence of under paragraph 2(c) of the notice is conduct directed towards inducing the defendant to sign documents. It is directed toward the plaintiff seeking payment of moneys he says are owed by the defendant. The conduct that a person might engage in to seek recovery of amounts owing under a signed loan agreement says very little about the likelihood of the person engaging in that or similar conduct to coerce a person to sign a loan agreement and receipt which are said to falsely record the advance of a loan. Evidence of debt recovery conduct has no significant probative value with respect to the plaintiff’s supposed tendencies in coercing the defendant to sign documents.
36The plaintiff contended that alleging that he has a general tendency to engage in “threatening, intimidatory and harassing behaviour” has very little probative value in proving the plaintiff engaged in the specific conduct alleged in paragraphs 3(b), 3(e) and 10(b) of the defence. The alleged tendencies of the plaintiff lie at or beyond the level of generality of a tendency, for example, to steal cars, rather than the level of specificity of a tendency to steal black European sports cars and set them on fire.[10]
[10] El-Haddad v The Queen (2015) 88 NSWLR 93 at 113 [72] per Leeming JA.
37In relation to paragraphs 2(a) and (b) of the notice, the plaintiff conceded that the evidence that the defendant seeks to adduce is directly relevant to his pleaded case and admissible on that basis, with one exception.
38The plaintiff contended that the exception is the evidence referred to in paragraph 2(a)(iii) of the Notice concerning the plaintiff in August or September 2019 allegedly “messaging the defendant’s father to request payment of a sum of money”. There is no allegation in paragraphs 3(b), 3(e) or 10(b) of the defence that this occurred. No evidence to this effect was led at trial. No allegation to this effect was put to the plaintiff and the defendant should not be permitted to adduce tendency evidence in this regard.
39The plaintiff submits that, if accepted by the Court, evidence that the defendant signed the original Loan Agreement under duress in September 2019 (which the plaintiff denies) might have probative value in assessing the defendant’s allegations that he signed the Loan Repayment Agreement under similar duress in March 2021 (which the plaintiff again denies), and vice versa.
40The plaintiff argues that paragraph 2(c)(i) of the notice conflates two different types of conduct: (1) attending the defendant’s business offices; and (2) vandalising the defendant’s office and damaging equipment. There is no allegation that the plaintiff vandalised the defendant’s office or damaged equipment in September 2019 or March 2021. No evidence was led to this effect and no allegation to this effect was put to the plaintiff. The plaintiff contends that evidence with respect to the plaintiff’s alleged conduct in this regard in June 2021, which he denies, has no probative value in respect of any fact in issue. In turn, evidence that the plaintiff sought to meet with the defendant at his office in June 2021 has no significant probative value in respect of any fact in issue.
41In relation to paragraph 2(c)(ii) of the notice, the plaintiff submits that the defendant did not give evidence that the plaintiff threatened to or did attend the defendant’s home address in September 2019 or March 2021. The plaintiff denied that he did. The plaintiff argues that he engaged in the alleged conduct in June 2021 when seeking payment has no significant probative value in respect of allegations that the plaintiff did this in September 2019 or March 2021 to induce the defendant to sign the Loan Agreement and the Loan Repayment Agreement.
42In relation to paragraph 2(c)(iii) of the notice, the plaintiff contends there is no allegation in the defence that the plaintiff sent “menacing and threatening text messages” to the defendant in September 2019 or March 2021. No such text messages are in evidence. The defendant did not give evidence that such messages were sent. It was not put to the plaintiff that he sent such messages. The messages sent in June 2021 have no significant probative value in respect of the allegations in paragraphs 3(b), 3(e) and 10(b) of the defence.
43The plaintiff submits that the defendant was cross-examined on the messages which appear at pages 59-63 of the Court Book. The plaintiff accepts that they can be tendered into evidence on that basis. However, the messages cannot be used as tendency evidence because the Court cannot be satisfied that the messages have significant probative value as required by s97(1)(b) of the Evidence Act.
44In relation to paragraph 2(c)(iv) of the notice, the plaintiff argues that there is no allegation in the defence that the plaintiff sent “messages to the defendant’s friends, family, employees and/or business associates” in September 2019 or March 2021. The defendant did not give evidence that the plaintiff did so. It was not put to the plaintiff that he did so. The plaintiff therefore contends that the messages at pages 282-287 of the Court Book have no significant probative value as to the plaintiff’s tendency to engage in the conduct alleged against him in the defence in September 2019 and March 2021. The messages are not otherwise relevant to any fact in issue and should not be admitted in evidence.
45The plaintiff submits that for the reasons set out above, none of the individual categories of tendency evidence in paragraph 2(c) of the Notice have significant probative value in respect of any fact in issue.
Defendant’s submissions in reply
46The defendant submitted in reply that the Notice serves only to alert the plaintiff of an intention to adduce the evidence. It does not limit the probative value or use of this evidence. The defendant argued that the plaintiff’s submissions that paragraphs 4(b) and (c) of the Notice is said to be probative of paragraphs 3(b), 3(e) and 10(b) of the defence purports to discount the defendant’s detailed submissions or otherwise incorrectly seeks to impose an artificial limit on that evidence.
47The defendant contends that the plaintiff’s distinction between his conduct in relation to: (1) the signing of the loan documents, and (2) the attempted enforcement of those documents, is false. The defendant says there is no meaningful difference between the plaintiff’s conduct in forcing the defendant to sign documents under duress and in trying to force the defendant to make those payments to him. The conduct relates to the same underlying transaction and the plaintiff’s desire to get the defendant to make payment that he was not liable to pay.
48Further, the defendant claims that he does not advance a case based on a “general tendency” to engage in threatening, intimidatory and harassing behaviour. Rather, the defendant sets out, in detail, the specific tendency propounded by him in this case; being that the plaintiff had a tendency to make threats to the defendant, and to make repeated and unwelcome visits to the defendant’s office.
49The defendant submits that the plaintiff’s distinction between written and oral threats does not diminish the probative value of that evidence.[11] Further, he contends that it is not to the point that the plaintiff did not vandalise the defendant’s office earlier. That the plaintiff did visit the defendant’s office and cause that damage in June 2021 tends to support that he has a tendency to engage in aggressive, intimidatory conduct similar to the actual threats alleged to have occurred in July to September 2019 and early 2021.
[11] Page v The Queen [2015] VSCA 357 at [59]; DPP v Alexander [2016] VSCA 92 at [30] per Coghlan JA.
50Finally, the defendant contends that the plaintiff’s messages to the defendant about attending the defendant’s offices and family home in June 2021 are mischaracterised by the plaintiff as “unremarkable”. These messages were sent with other hostile messages and sent after the defendant had rebuffed a visit and had gone to the police. Then, after the defendant cut communication, the plaintiff messaged the defendant’s wife and staff seeking the defendant’s home address.
Analysis
51There is no dispute that the defendant gave notice pursuant to s97(1)(a) of the Evidence Act that he intended to adduce evidence that the plaintiff had, or has, a tendency to act in a particular way.
52I must now be satisfied of the second precondition of admission of tendency evidence under s97 of the Evidence Act: whether the evidence has significant probative value based on an assessment of the evidence both by itself and “having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”.[12]
[12] TL v The King [2022] HCA 35 at [28].
53In assessing whether evidence has significant probative value in relation to each count, two interrelated but separate matters must be considered: the extent to which the evidence supports the asserted tendency, and the extent to which the tendency makes more likely the fact or facts sought to be proved by the evidence.[13]
[13] Hughes v The Queen (2017) 263 CLR 338 at [41]; TL v the King [2022] HCA 35.
54The majority of the High Court in TL v The King stated that:[14]
“For evidence to have ‘significant probative value’, it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged’; in other words, the evidence must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged”.
[14] TL v The King at [28] citing Hughes at [81], [86] and [215].
55For evidence to be admissible as tendency it is not necessary that it exhibit an “underlying unity”, “a modus operandi” or a “pattern of conduct”.[15] There is no general rule requiring close similarity between the tendency evidence and the offence.[16] Depending upon the issues in the trial, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.[17]
[15] Hughes v The Queen at [34] approving the approach in R v Ford [2009] NSWCCA 306, R v PWD [2010] NSWCCA 209, Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682.
[16] TL v The King [2022] HCA 35 at [29].
[17] Hughes v The Queen at [37].
56There is likely to be a high degree of probative value where: (i) the evidence, alone 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.
Evidence of the plaintiff’s conduct between around August and September 2019
57Under paragraphs 2(a) and 2(b) of the Notice, the defendant seeks to adduce evidence that:
(a) between around August and September 2019, the plaintiff engaged in a course of persistent harassment and threats to the defendant by:
(i)attending the defendant’s business offices daily and engaging in disrupting behaviour and refusing to leave those premises;
(ii)threatening the defendant that if the defendant did not sign a loan agreement, then the plaintiff would (1) continue to attend the defendant’s business offices daily and also the defendant’s home, and (2) use his influence in China to cause harm to the defendant’s family members who are located in China; and
(iii)messaging the defendant’s father to request payment of a sum of money;
(b) between around January and March 2021, the plaintiff engaged in a course of persistent harassment and threats to the defendant in the similar conduct set out in subparagraphs (a)(i) and (ii) above.
58The plaintiff accepts that with one exception, the evidence that the defendant seeks to adduce under paragraphs 2(a) and 2(b) of the Notice is directly relevant to his pleaded case and admissible on that basis.
59The exception is the evidence referred to in paragraph 2(a)(iii) of the Notice concerning the plaintiff in August or September 2019 allegedly “messaging the defendant’s father to request payment of a sum of money”.
60The evidence given at trial is set out in paragraphs 23 and 25 above. The Court cannot use the evidence for the Purpose unless I think the evidence will have significant probative value.
61I agree with the plaintiff’s submission that there is no allegation in paragraphs 3(b), 3(e) or 10(b) of the defence that this occurred, no evidence to this effect was led at trial and no allegation to this effect was put to the plaintiff. In those circumstances, I find that the defendant cannot be permitted to adduce this evidence as tendency evidence in regard to paragraph 2(a)(iii), as no such evidence was given at trial.
62In my view, evidence that the defendant signed the original Loan Agreement under duress in September 2019 does have significant probative value in assessing the defendant’s allegations that he signed the Loan Repayment Agreement under similar duress in March 2021, and vice versa.
63I accept the plaintiff’s submissions that paragraph 2(a) of the Notice concerns essentially allegations of persistent harassment and threats which comprise the defendant’s pleaded case at paragraphs 3(b), 3(e) and 10(b) of the defence. As such, the defendant does not require leave to adduce tendency evidence to introduce evidence in respect of that aspect of his case. Likewise, paragraph 2(b) is again the defendant’s pleaded case that in around January and March 2021, the plaintiff engaged in a course of persistent harassment and threats to the defendant in similar conduct to paragraph 2(a) of the Notice.
64It was conceded by the plaintiff that, if in effect, paragraphs 2(a) and 2(b) of the Notice are made good, there is no need for the tendency evidence that is sought to be adduced in paragraph 2(c). If paragraphs 2(a) and 2(b) are proven by the defendant, it would be difficult to see how paragraph 2(c) could assist in establishing those allegations in the defence.
65Aside from the evidence referred to in paragraph 2(a)(iii) of the Notice, to the extent that it is necessary to do so, and given that the plaintiff does not oppose the Court making a determination under s97(1)(b) of the Evidence Act, I permit the defendant to adduce evidence referred to in paragraphs 2(a) and 2(b) of the Notice and as given at trial (as set out in paragraphs 23 and 25 above) as tendency evidence, as I am satisfied that the evidence has significant probative value for the Purpose.
Evidence of the plaintiff’s conduct in around June 2021
66As was observed by the plaintiff at the hearing, the real nub of the Notice is in relation to paragraph 2(c) where it is alleged that certain “threatening conduct” was engaged in around June 2021 and that evidence is in some way probative of what might have occurred in either July to September 2019 or January to March 2021. The plaintiff submitted that the conduct of the plaintiff in June 2021 in respect of trying to recover the loan that was made to the defendant does not have any significant probative value in respect of the conduct that might have been engaged in in respect of the initial entry into the loan.
67On the other hand, the defendant argues that the June 2021 threats and conduct are the sorts of threats and conduct which are exactly what the defendant says occurred in August and September of 2019 and in January and March 2021, The defendant says that the fact that it is plain in writing in June 2021 through the WeChat messages suggests that the plaintiff has a tendency to act in that way and that it is likely that he did so earlier.
68The defendant claims that, by the plaintiff's own words and conduct, he demonstrates what he is capable of in writing in June of 2021. In turn, the defendant submits that this is tendency evidence of how he also acted earlier and makes it more likely that he also acted the same way in August and September of 2019 and January and March 2021 in light of his failed investment in Garden Street Development.
69In my view, the evidence that the defendant seeks to rely on or adduce for tendency evidence set out under paragraph 2(c) of the Notice and as given at trial in paragraph 27 above does have significant probative value to support the tendency of the plaintiff to engage in threatening, intimidatory and harassing behaviour for the Purpose, given the plaintiff acted in the manner alleged in June 2021 which makes it more likely that he also acted the same way on prior occasions, with some exceptions set out below.
70In addition, I accept the defendant’s submission that the plaintiff’s attempt to draw a distinction between the plaintiff’s conduct in relation to causing the defendant to sign the loan agreement and the attempt to induce the defendant to make payment to him is a false one. The evidence sought to be admitted is to support the tendency of the plaintiff engaging in a course of persistent harassment and threats to the defendant and to make repeated and unwelcome visits to his offices. Those threats have specificity in the threats to continue to visit the defendant’s offices daily, the use of the plaintiff’s contacts in the Chinese National Security to harm the defendant and his family and the use of the media to publish material about the defendant and his business.
Evidence of the plaintiff attending the defendant’s business offices and vandalising the defendant’s office and damaging equipment in June 2021
71I agree with the plaintiff that there is no allegation that the plaintiff vandalised the defendant’s office or damaged equipment in September 2019 or March 2021. No evidence was led to this effect and no allegation to this effect was put to the plaintiff. The plaintiff denied that he caused the yellow paint to be applied to the defendant’s desk, keyboard and computer monitor. The plaintiff did, however, admit that he attended the offices that day.
72I do not accept the defendant’s submissions that it is not the point that the plaintiff did not vandalise the defendant’s office earlier. In my view, evidence with respect to the plaintiff’s alleged conduct in this regard in June 2021 as set out in sub-paragraph 27(a) above has no significant probative value in respect of any fact in issue. I do not agree that the plaintiff allegedly vandalising the defendant’s office and damaging equipment in June 2021 tends to support that the plaintiff has a tendency to engage in aggressive and intimidatory conduct in the period leading up to 31 March 2021 and in a similar manner to that referred to in paragraph 3(e) of the defence in the period prior to 10 September 2019.
73However, in my view, evidence that the plaintiff attended the defendant’s business offices around June 2021 has significant probative value to support the tendency of the plaintiff engaging in a course of persistent harassment and threats as alleged by the defendant in paragraphs 3(e) and 10(b) of the defence. It is precisely the type of conduct that is alleged to have occurred earlier. I accept the defendant’s submission that the fact that the conduct is in writing increases the probative value of that evidence. The fact that the plaintiff attended the defendant’s offices in June 2021 tends to support that the plaintiff had a tendency to visit the defendant’s offices in 2019 and in early 2021.
Evidence of the plaintiff visiting the defendant’s home or former home without notice in June 2021
74Paragraph 2(c)(ii) of the Notice refers to the plaintiff’s conduct in June 2021 in seeking to attend the defendant’s family home or former family home without notice. The defendant in paragraphs 3(e) and 10(b) of the defence alleges that the plaintiff threatened that he would continue to attend the defendant’s family home.
75The plaintiff denied that he attended the defendant’s home in September 2019 or March 2021. He submitted that it was unremarkable that he would seek to meet with the defendant at his home to discuss payments of the amounts that the defendant had agreed to pay and where the plaintiff was unable to meet with the defendant at his offices in June 2021.
76It is not to the point that this alleged conduct in June 2021 does not tend to prove that the plaintiff did this in September 2019 or March 2021 to induce the defendant to sign the loan agreement and the supplementary loan agreement. The evidence tends to support that he has a tendency to make threats to visit and/or purport to visit the defendant’s home as part of the aggressive and intimidatory conduct alleged by the defendant in his defence.
77For the foregoing reasons, the evidence set out in sub-paragraph 27(b) above is permissible as tendency evidence for the Purpose and proving the fact in issue that the defendant was induced to sign the loan document and supplementary loan document under duress.
Evidence of the plaintiff sending menacing and threatening text messages to the defendant (pages 59-63 and 278-279 of the Court Book) in June 2021
78The plaintiff accepts that the evidence of messages which appear at pages 59-63 of the Court Book, being messages from the plaintiff demanding payment of moneys from the defendant, was subject to cross-examination and can be tendered on that basis. However, I reject the plaintiff’s submission that the messages cannot be used as tendency evidence because the Court cannot be satisfied that the messages have significant probative value as required by s97(1)(b) of the Evidence Act.
79The plaintiff claims there is no allegation in the defence that the plaintiff sent “menacing and threatening text messages” to the defendant in September 2019 or March 2021. No such text messages are in evidence. The defendant did not give evidence that such messages were sent. It was not put to the plaintiff that he sent such messages.
80In my view, the messages sent in June 2021 and set out in sub-paragraph 27(b) above do have significant probative value in respect of the allegations in paragraphs 3(b), 3(e) and 10(b) of the defence in light of the Court of Appeal decision in Page v The Queen[18] and DPP v Alexander,[19] which stands for the proposition that the distinction between written and oral threats do not diminish the probative value of the evidence. It is noteworthy that the defendant’s evidence at trial was that the language used in the text messages was similar to that used at the relevant time in 2019.
[18] [2015] VSCA 357 at [59].
[19] [2016] VSCA 92 at [30].
81In my view, evidence that the plaintiff sent menacing and threatening text messages to the defendant has significant probative value to support the tendency of the plaintiff engaging in a course of persistent harassment and threats in September 2019 and March 2021, which were alleged to have occurred orally, in person and by telephone. The tendency evidence is therefore relevant to a central issue for determination.
Evidence of the plaintiff sending text messages to the defendant’s friends, family, employees and/or business associates (pages 282-287 of the Court Book) in June 2021
82The plaintiff submits that there is no allegation in the defence that the plaintiff sent messages to the defendant’s friends, family, employees and/or business associates in September 2019 or March 2021. The defendant did not give evidence that the plaintiff did so. It was not put to the plaintiff that he did so.
83In my view, evidence that the plaintiff sent messages to the defendant’s friends, family, employees and/or business associates set out in sub-paragraphs 27(c), (d) and (e) above does not have any significant probative value to support the tendency of the plaintiff engaging in a course of persistent harassment and threats to the defendant in circumstances where:
(a) the text messages to the defendant’s father and wife are disputed by the plaintiff;
(b) it is not alleged in the defence that the plaintiff sent messages to his father, wife or employees;
(c) the message to the employees (although admitted by the plaintiff) are requests for the defendant’s home address and are not threats made to the defendant.
Conclusion
84The evidence that the defendant seeks to adduce under paragraphs 2(a) and 2(b) of the Notice, save for paragraph 2(a)(iii), is directly relevant to his pleaded case and admissible on that basis. To the extent that it is necessary, such evidence is admissible under s97(1)(b) of the Evidence Act.
85Of the evidence that the defendant seeks to adduce under each subcategory of paragraph 2(c) of the Notice, sub-paragraphs (i), save for evidence of the alleged vandalising of the defendant’s office and damaging equipment, (ii) and (iii) have significant probative value to support the tendency of the plaintiff to engage in threatening, intimidatory and harassing behaviour towards the defendant as required under s97(1)(b) of the Evidence Act.
86For the foregoing reasons, I am satisfied that the evidence set out in paragraphs 23, 25 and 27(b) above can be used for the Purpose as it has significant probative value.
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Certificate
I certify that these 26 pages are a true copy of the ruling of her Honour Judge Burchell delivered on 24 February 2023.
Dated: 24 February 2023
Andrea Ko
Associate to Her Honour Judge Burchell
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