R v Hanson

1. [1]

   Rohen James Hanson stands charged with the murder of his partner Dee Annear on 18 September 2021 at the Bulga Forrest. His trial was listed to commence on Monday 15 May 2023 in Newcastle. Several pre-trial issues were scheduled to be determined in advance of the empanelment of a jury. In the week before the trial was due to commence it became clear that an additional pre-trial issue had arisen. My decision on that additional issue, which I foreshadowed at the outset of the pre-trial hearing, meant that the trial date would have to be vacated. I have since received the evidence and submissions on the remaining issues and reserved my decision. This judgment is an attempt to resolve all issues in advance of the trial which will now be listed next year from 18 March to 12 April 2024 in Coffs Harbour.

2. [2]

   The issues for determination, several which are related and/or partially dependant on the admissibility of other evidence, were as follows:

   1. (1)

      Whether Mr Hanson should have leave to rely on evidence supporting a possible partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW).

   2. (2)

      If leave was granted, should the trial date be vacated on the application of the Prosecutor.

   3. (3)

      The admissibility of evidence of a forensic pathologist expressing an opinion as to the possible cause of an injury to Ms Annear’s neck.

   4. (4)

      The admissibility of evidence of things Ms Annear said to other people (that is hearsay evidence) before she died, which are said to be relevant to that relationship and to Mr Hanson’s alleged tendencies.

   5. (5)

      The admissibility of several pieces of evidence upon which the Prosecutor sought to establish three tendencies alleged and particularised in a tendency notice.

   6. (6)

      The admissibility of evidence, sought to be adduced by Mr Hanson, to establish that Ms Annear had a tendency to be violent.

   7. (7)

      The admissibility of evidence, sought to be led by the Prosecutor, to establish the nature of the relationship between Mr Hanson and Ms Annear.

3. [3]

   The foregoing summary of these evidentiary issues masks the complexity lying within them. For example, the prosecution’s tendency evidence comes from diverse sources and involves acts of violence perpetrated on three different domestic partners. Further, the three tendencies alleged by the prosecution raise different issues for determination. The assessment of the probative value of the evidence, and its potential for unfair prejudice, involves different considerations depending on the nature of the evidence, its source and use. The third of the tendencies alleged by the prosecution is tethered to the question of the admissibility of the evidence of the pathologist’s opinion evidence. A lot of the evidence adduced on the voir dire is potentially relevant both the tendencies alleged (by both parties) and the nature of the relationship between Mr Hanson and Ms Annear. At the same time, the potential for misuse of the evidence (the danger of unfair prejudice), varies depending on the use to which the evidence is to be put, and it is necessary to consider and predict the kinds of jury directions that will be both comprehensible by non-lawyers and likely to be followed. Beyond that, relevant parts of the witness statements (or video recordings) that the parties fastidiously identified include portions that are clearly inadmissible and other parts that are admissible. There is also a co-dependency, for want of a better expression, in terms of admissibility; so that hearsay representations are relied on to prove either one or more of the relevant tendencies, or the nature of the relationship, or both. The Prosecution tendered a bundle of 22 documents (Ex VD-A) including 14 witness statements while Mr Hanson tendered separate bundles on the expert evidence issue (Ex VD-1) and tendency issue (Ex VD-2). I also received substantial and very helpful written submissions on each issue (MFI 1, 3, 5 and 6 and part of Ex VD-3). It is a lot.

The substantial impairment report

1. [4]

   The issue of whether Mr Hanson should have leave to rely on the report of Dr Gerald Chew dated 1 May 2023, and the consequences for the trial in granting such leave, was disposed of pre-emptively and my reasons can be stated briefly. The accused served a notice under s 151 of the Criminal Procedure Act 1986 (NSW) and relied on an affidavit of his solicitor Ms White dated 12 May 2023 and report of Dr Chew dated 1 May 2023.

2. [5]

   Dr Chew provided a report, having been retained by letter of instruction dated 28 April 2023 and consulted with Mr Hanson that same day. He provided an opinion that Mr Hanson’s history and presentation was consistent with a diagnosis of “Cluster B Personality Disorder Borderline Type with Antisocial Traits” and a “Substance Use Disorder”. These things “could” constitute a “mental health impairment” under the relevant legislation and mean that he is more impulsive and is less likely to be able to control his anger and capacity to reason about the consequences of his actions. It is unnecessary to set out the cause and aetiology of these conditions, but they appear to arise from a history of trauma.

3. [6]

   It may be that a further expert opinion is sought by Mr Hanson but the information, even as it stands, may give rise to the partial defence provided in s 23A of the Crimes Act. However, because the report was served on 8 May 2023, leave is required before he can rely on that defence: Criminal Procedure Act 1986 (NSW), s 151 and Criminal Procedure Regulation 2017 (NSW), reg 23. The regulation requires notice be provided “at least 35 days before” the trial date.

4. [7]

   The affidavit of the applicant’s solicitor and the submissions of the Public Defender explained to a degree the delay in obtaining the report and providing the notice. Mr Bouveng acknowledged that there was a significant gap in the chronology. However, with appropriate circumspection, he said there were matters that explained the delay but the articulation of those things may do some violence to the privilege attaching to communications between an accused and his lawyers. I accepted Mr Bouveng’s word on this.

5. [8]

   In fairness, and with a degree of fatalism, the Prosecutor did not oppose the grant of leave. However, it moved on a motion to vacate the trial date. An affidavit from Ms Epstein, the DPP solicitor, dated 10 May 2023 was read, which established that it was not possible, on such short notice, to secure the services of an appropriately qualified expert to consider the issues raised in Dr Chew’s report. Mr Bouveng agreed that he could not resist the application to vacate the trial date.

6. [9]

   Accordingly, the following orders were foreshadowed and will now be made:

   1. (1)

      Leave granted under s 151(1) of the Criminal Procedure Act 1986 (NSW) to allow the accused to rely on evidence of Dr Gerald Chew tending to prove a contention of substantial impairment.

   2. (2)

      The trial date is vacated and the trial is listed with a 3-4 weeks estimate to commence on 18 March 2024 in Coffs Harbour.

The facts and issues at trial

1. [10]

   To place each of the remaining issues in context, I will commence with a skeletal summary of the prosecution case which is derived from the revised prosecution case statement (dated 15 September 2022) and the oral and written submissions of counsel.

2. [11]

   Mr Hanson and Ms Annear were in a relationship from about 2017 and lived together since December of that year. On any view, the relationship was a tempestuous one and the prosecution would allege marred by violence. Both partners used alcohol and drugs and behaved badly when intoxicated. Mr Hanson was convicted of an assault occasioning actual bodily harm against Ms Annear in August 2019 and there was an apprehended domestic violence order in place against him. Several witnesses, relatives and neighbours, are in a position to give evidence of their observations and things they were told about the relationship and the behaviour of both partners.

3. [12]

   The prosecution would allege that the violence within the relationship escalated in August and September 2021 and in the time leading up to Ms Annear’s death.

4. [13]

   On 14 September, the couple went on a camping trip to the Bulga Forest and stayed at a loggers’ cabin they called the “Witches Hut”. There were various sightings of the couple in the area over the following days. A witness saw Mr Hanson driving shortly before 6.00pm on 17 September 2021 but did not notice a passenger. However, other evidence that the couple were together at a nearby store shortly beforehand suggests that Ms Annear was also in the car at that time. At some time that evening, or earlier in the morning, the accused crashed the car on the Blue Knob Forest Road, not far from Knodingbul Road. This is about 3km from the Witches Hut. At some point he wrote a message in the dust behind the car “help walked to the loggers hut but need rescue please.”

5. [14]

   At 7.23 am on 18 September, Mr Hanson sent a text message to his mother, Janet Hanson, saying “Um you’ll have to have the kids we crashed the car its fine needs pulling out of ditch.” He tried to contact triple-zero at 10.57 am and again after the call dropped out due to poor reception. He told the operator that Ms Annear hit her head in the car accident, that he had gone to get help and when he returned to the hut, she was dead.

6. [15]

   Rural Fire Service officers attended the hut at about midday. Ms Annear’s dead body was outside under a blanket next to a campfire. The officers noticed injuries to Mr Hanson’s knuckles which they described as swelling and grazes or cuts.

7. [16]

   Mr Hanson was interviewed by police at Taree Police Station at about 12.20am on 19 September 2021. He provided a false account of his partner’s death. He said they had no physical fights on the camping trip and that Ms Annear died from injuries sustained in the car crash. The prosecution will rely on the lies told in this interview as evidence that Mr Hanson betrayed a consciousness of guilt as to Ms Annear’s death. There is other “post-offence conduct” upon which the prosecution will place similar reliance. This includes the hiding of a mattress in the bushland and cleaning up blood from the hut and Ms Annear’s face.

8. [17]

   Mr Hanson was released after the interview and spoke to his mother. He told her that the deceased had hit him in the head with a beer bottle, they argued, and he pushed her. She fell backwards, hit her head and died. He asked his mother to take photographs of his injuries and said, “I need to prove she did this to me … she attacked me”.

9. [18]

   On 21 September Mr Hanson was interviewed by police for a second time. On this occasion he provided a much fuller account (summarised at [118] of the prosecution case statement). The account was to the effect that Ms Annear started the physical altercation and there was a physical fight with kicking, hitting, biting, hair pulling and wrestling on the ground. Towards the end of the altercation Mr Hanson tackled the deceased to the ground and that “finished it". Ms Annear was dazed but conscious and responsive. Mr Hanson went for help, but she was dead on his return.

10. [19]

    Dr Cala performed a post-mortem examination. He determined that the cause of death was blunt force trauma. The prosecution case statement sets out the most serious injuries described in the autopsy report as follows (at [95]):

    1. (1)

       Large left-side subdural haematoma (up to 18mm depth, with significant mass effect and raised intracranial pressure). Dr Cala noted that the injuries to the brain could have caused death by themselves;

    2. (2)

       Fractured back of skull and extensive bruising to the scalp and muscle tissue on either side of and at the back of the head;

    3. (3)

       Nose fractures;

    4. (4)

       Jaw fracture;

    5. (5)

       Multiple left-side rib fractures and extensive haemorrhage in the surrounding tissues;

    6. (6)

       Lacerated lung and blood in the chest cavity;

    7. (7)

       Extensive facial and periorbital bruising;

    8. (8)

       Extensive recent trauma (bruising, abrasions, scratches and lacerations) to head, scalp, hands, limbs, torso and back;

    9. (9)

       A distinctive patterned injury from the back of the neck extending to the left side of the neck.

11. [20]

    On arraignment before the list Judge on 7 October 2022, Mr Hanson pleaded not guilty to the murder charge. However, when he was arraigned on the single count of murder at the commencement of the pre-trial hearing on 15 May 2023 he responded, “not guilty, but guilty of manslaughter.” It was unspoken, but the Prosecutor did not accept that plea in full discharge of the indictment.

12. [21]

    Based on the submissions of both counsel, my understanding is that the issues and concessions behind Mr Hanson’s plea are as follows:

    1. (1)

       Mr Hanson admits that he caused the death of Ms Annear and that he did so by assaulting her.

    2. (2)

       Mr Hanson does not admit that he acted with an intention to kill or to inflict grievous bodily harm. If the jury were not satisfied of one or other of those specific intentions, a verdict of manslaughter by unlawful and dangerous act may arise.

    3. (3)

       Mr Hanson says he acted in self-defence and believed his conduct was necessary, but accepts that, objectively, his actions were not a reasonable or proportionate response and that he is guilty of manslaughter by excessive self-defence: Crimes Act, s 421.

    4. (4)

       Mr Hanson was acting under extreme provocation: Crimes Act, s 23.

    5. (5)

       Mr Hanson committed the act or acts causing death while his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by a mental health or cognitive impairment: Crimes Act, s 23A.

The admissibility of the pathologist’s evidence.

1. [22]

   The first objection argued by the parties concerned Dr Cala’s opinion as to what caused an injury to Ms Annear’s throat and neck which is referred to in the post-mortem report as “ligature abrasion to the neck” and depicted in photographs tendered as Ex VD-E.

2. [23]

   There were four expert reports before the Court on the voir dire:

   1. (1)

      Dr Cala’s autopsy report dated 8 February 2022.

   2. (2)

      A second report by Dr Cala dated 20 January 2023.

   3. (3)

      A third report by Dr Cala dated 27 April 2023.

   4. (4)

      A report by Dr Johan Duflou dated 25 April 2023.

3. [24]

   Mr Hanson submitted that Dr Cala’s opinions were couched in such tentative terms as to amount to little more than speculation. The Court was invited to exclude the evidence under s 137 of the Evidence Act 1995 (NSW), on the basis that the probative value was outweighed by the danger of unfair prejudice. In the alternative, it was submitted that the evidence should be excluded pursuant to the general discretion in s 135 because the probative value of the evidence is substantially outweighed by the danger that the evidence may be misleading or confusing.

4. [25]

   Mr Bouveng submitted that the probative value of the evidence was low. There were various aspects to this submission. He referred to the terms in which Dr Cala’s opinions were expressed. For example, in the first report Dr Cala said the injury was “possibly caused by a rope, cord or similar which focally compressed the neck” and the “distinctive linear injury … is highly suspicious for an attempt at ligature strangulation”. In the summary that followed, Dr Cala said “there is a possibility an attempt was made to strangle the deceased.” The italics in each of those quotations are mine but they highlight the point of the submission that opinions cast in such terms, lack probative force and are likely to lead the jury to engage in impermissible speculation. Further, there is no suggestion that Ms Annear died from strangulation or that the effects of strangulation played any part in her death; she died from blunt force injuries. Both Dr Cala and Dr Professor Duflou noted the absence of underlying or internal injuries to the neck and Dr Duflou referred to the “absence of petechiae on the face, eyelids, conjunctivae, and within the mouth and upper airway”. Dr Duflou noted that this raised the possibility that the ligature marked was caused by a means other than neck compression or ligature strangulation.

5. [26]

   It was also submitted that the prosecution has not identified any ligature that was consistent with the injury pattern. In fact, two cords (or similar items) located at the scene were ruled out by Dr Cala. What could not be ruled out was that the injury was caused by the cord of a hooded jumper around her neck. This possibility was addressed by Dr Cala in his third report, and it had been posited by Professor Duflou in the final paragraph of his report:

6. [27]

   Mr Bouveng said he took no objection to the jury being provided with photographs of the injury but submitted that the opinion evidence lacked any real capacity to impact on an assessment of any fact likely to be in issue in the trial.

7. [28]

   The Prosecutor submitted that the evidence had a capacity rationally to affect the assessment of a fact in issue, namely the intention with which Mr Hanson acted. He drew attention to Dr Cala’s opinion, expressed in his third report, that the injury could not have been caused after death. In passing, I note this was at odds with Dr Duflou’s opinion that the injury “could have been sustained in the immediate antemortem period, in the immediate perimortem period or shortly after death.”

8. [29]

   The Prosecutor also relied on Dr Cala’s later reports which expressed the opinion in more certain terms and ruled in and out various possible mechanisms for the injury. For example, in the report dated 20 January 2023, Dr Cala said the injury would not have been occasioned by manual strangulation but was a “a ‘textbook’ ligature strangulation attempt injury.” It was further submitted that the jury was much more likely to engage in impermissible speculation if shown the photographs without the benefit of any expert opinion. It was also submitted that the explanation for the injury resulting from dragging the deceased with the hoodie was pure speculation on the part of the defence expert and the electronically recorded interview did not provide an account consistent with this theory.

9. [30]

   Subject to one matter and accepting there is some force in many of Mr Bouveng’s contentions, I generally accept the submissions made by the Prosecutor. I am unable to accept that the evidence will be misused by the jury or that it will be confusing or result in unfair prejudice.

10. [31]

    The only person able to provide a direct account of the events giving rise to Ms Annear’s injuries and death is Mr Hanson. Given his initial attempt to provide a misleading account, the jury may be somewhat sceptical of his version of events in the second interview, even allowing for the fact that he is not required to prove anything (subject to the provisions of s 23A which is not relevant here). The injury depicted in the photograph is a striking one. Its existence is relevant both to jury’s conclusion as to what happened on 17 and 18 September 2021 between Mr Hanson and Ms Annear, and to inform its decision as to whether the prosecution establishes beyond reasonable doubt that the accused formed the relevant intention at the time.

11. [32]

    The “extent to which [Dr Cala’s opinion] could impact on a rational assessment of the probability of a fact in issue” [1] is not insubstantial. The evidence is not likely to be misused by the jury, if it is properly directed. Such directions will emphasise the onus and standard of proof and forbid the jury from engaging in speculation based on suspicion. The directions would also emphasise that strangulation did not cause Ms Annear’s death and that the evidence is admitted to provide the jury with a complete picture of the injuries sustained and inflicted and, if the jury is satisfied there was some form of ligature strangulation, to provide some circumstantial evidence of intent.

12. [33]

    Clear directions as to the use of circumstantial evidence to establishing intention will be necessary. Contrary to what I indicated in argument, it may also be that the jury would be directed to the following effect:

13. [34]

    I should acknowledge at this point that it was only after I reserved judgment on the many issues ventilated that I appreciated the possible process of reasoning that was behind some of Mr Bouveng’s submissions in respect of this objection. In retrospect, I was precipitately dismissive of that part of the argument. As a result, the Prosecutor did not address the issue.

14. [35]

    Clearly, the precise content of any directions as to circumstantial evidence will be formulated at the trial, with counsel’s assistance and based on the evidence adduced. I am satisfied that appropriate directions will eliminate any risk of impermissible reasoning or unfair prejudice arising from the introduction of this evidence and Dr Cala’s opinion.

15. [36]

    I agree with the Prosecutor’s submission that improper speculation is much more likely if the jury is shown the photographs of the injury without the benefit of the expert evidence of the pathologist.

16. [37]

    The conflicts in the evidence of the two experts is a matter to be resolved by the tribunal of fact at the trial, assuming both are called, and is not a basis upon which to exclude the evidence. Mr Bouveng did not suggest otherwise.

17. [38]

    Accordingly, the evidence of Dr Cala’s opinion is admissible.

18. [39]

    Before moving on, I should emphasise that this ruling is predicated on the admissibility of the theory posited by Professor Duflou concerning the possibility that the injury might have been caused by dragging the complainant by pulling the “on the cord or relevant part of the hoodie”. This was the caveat I mentioned at [31] as to my acceptance of the Prosecutor’s submissions. To be clear, while (as I understand it) Mr Hanson did not say he did this in either interview, I do not accept that the theory is purely speculative. There will be evidence that the accused dragged Ms Annear outside to attempt to resuscitate Ms Annear.

19. [40]

    This proviso does not reduce the probative value of the evidence. However, the availability of that theory of the mechanism of this injury overcomes any risk of unfair prejudice arising from the admission of the evidence. Again, it will allow the tribunal of fact to have all relevant evidence going to the significance, or otherwise, of this injury to the issues between the parties.

The hearsay evidence

1. [41]

   As I have observed, some of the evidence of tendency and relationship is also subject to the hearsay provisions of the Evidence Act. Based on the diagram at the beginning of Ch 3 of the Evidence Act, I propose to deal first with the hearsay issue.

2. [42]

   The prosecution filed and served a hearsay notice on 1 May 2023. No issue has been taken in relation to the notice provided and, as I perceive it, all of the evidence identified in the notice had been served on Mr Hanson at a much earlier time. The hearsay notice identified seven witnesses through whom the prosecution seeks to elicit evidence of representations said to have been made by Ms Annear at various times prior to her death.

3. [43]

   Pursuant to s 59 of the Evidence Act, hearsay evidence – that is, “evidence of a previous representation made by a person [tendered] to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation” – is not admissible. However, Ch 3 Div 2 provides for exceptions to the hearsay rule in the case of first-hand hearsay. The evidence here is first-hand hearsay: Evidence Act, s 62. The prosecution relies on the exceptions in s 65 and s 66A, each of which fall within Div 2.

4. [44]

   Section 65 relevantly provides:

5. [45]

   Section 66A provides for an exception in relation to “a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind”.

6. [46]

   In R v Singh (No 4) [2021] NSWSC 75 (“Singh (No 4)”), N Adams J at [26]-[49] provided a helpful and characteristically comprehensive survey of relevant case law concerning these provisions in not dissimilar circumstances. [3] I will not attempt to reproduce or emulate that analysis. At [43]-[44] her Honour summarised matters relevant to the provision in s 65(2)(b) and (c):

7. [47]

   In Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2) [2015] VSC 459 (“Boral Resources”), Bell J made the following observation as to s 66A (at [7]):

8. [48]

   That was an obiter comment made by a single Judge of a Supreme Court of another state, but it has some resonance in the circumstances of the present case, particularly in light of submissions that there will be no opportunity to cross-examine the maker of the representations (that is, the deceased in the murder trial). N Adams J referred to Bell J’s dicta with approval in Singh (No 4).

9. [49]

   I now turn to the evidence particularised in the hearsay notice and to the objections. In many cases, the objection and submissions traversed issues of relevance and discretionary exclusion. The evidence is all, one way or another related to the question of the extent to which the prosecution (and the defence) will be permitted to lead tendency evidence and evidence of the relationship between the parties. Accordingly, in making the rulings that follow, I have taken into account other rulings I will make on those subjects. In that regard, I foreshadow now that I will be permitting tendency and relationship evidence (on both sides) but will be limiting to some degree the amount evidence to be led by the prosecution pursuant to s 101 of the Evidence Act. This is to avoid the danger of unfair prejudice arising from the jury being distracted by an overwhelming amount of evidence.

10. [50]

    Ms Butt is the Ms Annear’s mother. It is proposed that she give (hearsay) evidence in accordance with paragraph [7] of her statement dated 22 October 2021. Ms Butt said she saw Mr Hanson punching her daughter, and later noticed some injuries. That evidence is relied on (subject to an objection) in relation to both tendency and relationship. The paragraph continues:

11. [51]

    The prosecutor submits this is relevant because “it will answer any speculation by the jury consistent with ‘if the relationship involved the accused assaulting her in the way described, why didn’t she just call the police.’” Mr Hanson submits it is not known when the representation was made or even if it was one representation or a “montage” of several representations. There is a threshold question of relevance and there is incurable prejudice in the reference to probation and parole.

12. [52]

    The most likely inference, and the one that I draw for the purpose of determining the admissibility of the evidence, is that the statement was made in the immediate aftermath of the incident described by Ms Butt. It is a contemporaneous statement of Ms Annear’s feelings, intentions and state of mind; that is, she did not want to call the police and did not want Mr Hanson to be sent to gaol. It is relevant for the reason identified by the Prosecutor. The potential for prejudice can be cured by omitting reference to probation and parole, a matter conceded by the Prosecutor.

13. [53]

    Accordingly, and the evidence is admissible if led in a limited form.

14. [54]

    Janelle Reynolds was a neighbour of Mr Hanson and Ms Annear. Her statement is dated 12 September 2021 (which is incorrect because it pre-dates Ms Annear’s death) but signed 20 September 2021. The prosecution seeks to adduce hearsay evidence from paragraph [23]:

15. [55]

    As submitted by Mr Bouveng, parts of this statement “are not admissible on any basis, as they are examples of speculation and inadmissible opinion” and they are “representations of the accused’s state of mind”. The evidence also has a potential to cause significant prejudice to the trial.

16. [56]

    The Prosecutor seeks to lead the evidence to establish that (1) the accused hit the deceased that night because she fell asleep and (2) she was concerned that he didn’t love her anymore. It is said also to demonstrate a deterioration of the relationship and an escalation of the violence in the time leading up to the killing. It was submitted the statement was made “shortly after the asserted fact occurred” and in circumstances that make it unlikely the representation was a fabrication.

17. [57]

    While I accept the temporal nexus relied on by the Prosecutor satisfies the requirements of s 65(1), the circumstances make it unlikely the representation was a fabrication. Even if they did, and the evidence passes through the hearsay provisions, the difficulty of separating parts of the statement that are clearly prejudicial and inadmissible lead me to conclude that this evidence should be excluded pursuant to s 137.

18. [58]

    Accordingly, the evidence in paragraph [23] of Ms Reynolds statement is inadmissible.

19. [59]

    Evidence from statements of Daniel Gibson dated 24 September 2021, (paragraphs [6]-[7]) and Rebecca McEwen dated 25 November 2021 (paragraphs [16]-[17]) was included in the hearsay notice but not pressed by the Prosecutor: Tcpt, 15 May 2023, p 11; Tcpt, 17 May 2023, p 31).

20. [60]

    Kristyn Abrahams was a friend of Ms Annear and made a statement on 22 September 2021. Paragraph [18] refers to a message she received form the deceased on 6 August 2021 in which she said, “oi broke my elbow”. On 9 August Ms Annear sent her a photo of the bruise on her elbow. Ms Annear messaged Ms Abrahams on 9 September saying, “she got her cast off”. The pair then had a video chat, during which Ms Annear said, “my big mouth gets me thrown down the stairs” and “that’s how she broke her arm.” Mr Abrahams said Ms Annear “laughed about it like it was normal”.

21. [61]

    This evidence is relied on by the Prosecutor as tendency evidence. The accused identified six different versions provided by Ms Annear as to how she came by this injury and the Prosecutor conceded that this means I “would not be able to find it is ‘highly probable that the representation is reliable’” (s 65(2)(c)). It was initially submitted (in writing and oral submissions) that the representation was made “when or shortly after the asserted act occurred”. However, in reply the Prosecutor indicated he was mistaken as to the date of the relevant representation was made and said, “I withdraw the submission that it was shortly after the asserted fact”. [4] No reliance was placed on s 66C.

22. [62]

    The concessions made by the Prosecutor (which were all proper and fair), putting aside any controversy about what other evidence can be taken into account in determining issues of whether the “circumstances” give rise to potential fabrication or likely reliability, [5] lead to the conclusion that the evidence does not fall within any of the exceptions to the hearsay rule.

23. [63]

    The evidence is inadmissible.

24. [64]

    On 20 August 2019, police attended the premises of where Mr Hanson and Ms Annear were living. In the aftermath of their attendance, Mr Hanson was charged with assault occasioning actual bodily harm. He pleaded guilty and a facts sheet, a statement by Acting Sergeant Doust and video footage taken from a body worn camera were included in evidence on the voir dire (Ex VD-A, tabs 12, 13 and 14). The evidence contains hearsay representations of what Ms Annear told police and the facts sheet and body worn footage is included in the material sought to be tendered on the tendency notice.

25. [65]

    Mr Bouveng acknowledged that the body worn video was perhaps the high-water mark of the material contained in the hearsay notice. However, he made the accurate point that it was difficult to hear a lot of what was said.

26. [66]

    Ms Annear made a number of representations including that Mr Hanson had hit her with his “fist” and that they “got into an altercation” as “his girls ain’t my girls”. She also told police “I’m fine” and “my whole face hurts”. When police told her that they would call an ambulance, she responded by saying, “I’m alright”. Ms Annear asked police if she can “go home” and that she did not want to provide a statement because she “can’t remember much”. A draft transcript of the body worn video became was MFI 4 during the course of the hearing.

27. [67]

    The representations were made shortly after the event and in circumstances that make it unlikely, they were a fabrication. They are admissible as an exception to the hearsay rule under s 65(2)(b). Some of the representations are also admissible under s 66A.

28. [68]

    The body worn video also depicts an injury to Ms Annear’s face in the form of an egg-shaped lump on her forehead. The evidence of this incident and what Ms Annear said about it has significant probative value to the prosecution’s tendency case and there is no danger that it will be misused or create unfair prejudice.

29. [69]

    I would not allow various things said by the police and editing the video would, in my viewing of it, be very difficult. The parties indicated they could reach agreement as to the way the evidence of this incident may be presented, perhaps by an agreed statement of facts and a still image derived from the body worn video.

30. [70]

    I will leave it to the parties to agree on the form the evidence takes, but rule that the facts of the incident admitted by Mr Hanson, the representations made by Ms Annear and an image of her injury is admissible.

31. [71]

    Kerry Herbert is a friend of Ms Annear’s mother and said she had known the deceased for about 7 or 8 years at the time of her statement dated 21 September 2021. The prosecution relies on paragraphs [15]-[18], [21]-[22] and [24] as relevant to the relationship between the parties. Paragraphs [21]-[22] included hearsay representations.

32. [72]

    At about 5.00pm on 11 September 2021, Ms Herbert received a ‘phone call from Ms Annear who said “[c]an you please come and get me, he’s started again. Please now. Please.” She went on to say, “I’ve left the house, I’m turning left and I’m walking towards the shops.” Ms Herbert picked Ms Annear up and thought “she had been drinking but she was not drunk”. Ms Annear told her “I’ve had enough”. Ms Herbert believed that Ms Annear was going to leave Mr Hanson and noticed she had a mark under her left eye. They returned to Ms Herbert’s house and Ms Annear told Ms Herbert’s granddaughter, “[w]hen you get in a relationship, if they hit you. Get out of it. Don’t give them any second chances. Don’t be an idiot like I am. But everything is going to change soon.”

33. [73]

    The prosecution says that these are contemporaneous representations of Ms Annear’s state of mind and admissible under s 66A of the Evidence Act. Mr Bouveng submitted in writing “the representations are neither relevant, made shortly after the asserted fact or in circumstances that make them highly probable that they are reliable.”

34. [74]

    The representations concerning Ms Annear’s state of mind and intentions – that she had “had enough” and had left the house – are contemporaneous statements of her state of mind and are admissible under s 66A. Those statements have a high degree of probative value given the temporal proximity with the homicide, which occurred a week later. They fall within the kinds of statements referred to in Boral Resources and Singh (No 4). Those statements are admissible. To place those representations in context, I would also allow the statements that Ms Annear had left the house and the request that Ms Herbert pick her up.

35. [75]

    However, assuming they constituted an exception under s 65 (which is not entirely clear) I would not allow the evidence of Ms Annear saying “he’s started again” or the advice proffered to the grandchild. Those statements may be misused by a jury and, in view of the other evidence of violence within the relationship, are of little probative value.

Tendency and relationship evidence: applicable legal principles

1. [76]

   Before turning to the detail of the evidence relied on by each party as either tendency or relationship evidence, I should set out the legal principles that have guided me in determining the admissibility of each piece of evidence.

2. [77]

   The admissibility of tendency evidence is determined by ss 97 and 101 of the Evidence Act. In the present case there is no issue as to compliance with the relevant notice requirements in s 97(1)(a).

3. [78]

   Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency that a person has or had which is tendered to prove that a person has or had a tendency (whether because of the person's character or otherwise), to act in a particular way, or to have a particular state of mind: Evidence Act, s 97(1).

4. [79]

   Section 97(1)(b) provides that tendency evidence is not admissible unless the court thinks it will, either by itself or having regard to other evidence to be adduced, have significant probative value.

5. [80]

   Section 101(2) provides a further restriction on the use of tendency evidence when it is “about a defendant” in criminal proceedings. In such cases, the evidence “cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”.

6. [81]

   The way tendency evidence works to prove a fact in issue was explained by Simpson J in Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303:

7. [82]

   See also IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [104] (Gageler J).

8. [83]

   As to the assessment of the probative value of such evidence, in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (“Hughes”) (Kiefel CJ, Bell, Keane and Edelman JJ) said at [41]:

9. [84]

   Their Honours also said:

10. [85]

    As to the capacity for such evidence to occasion prejudice to a defendant in criminal proceedings, their Honours said at [17]:

11. [86]

    Gageler J in Hughes explained the issue of “cognitive bias” as a further issue in considering the prejudicial impact of tendency evidence:

12. [87]

    See also Bell P (as the Chief Justice then was) in Taylor v R [2020] NSWCCA 355 citing that passage and R v SK [2011] NSWCCA 292 at [34], RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [169]. While his Honour was in dissent as to the outcome, the statements of principle concerning the potential prejudice of this kind of evidence was not controversial.

13. [88]

    A consideration in the present case is the concern that the volume of the tendency evidence sought to be adduced by the prosecution may distract the jury from a consideration of the evidence otherwise led to establish guilt: consider, in very different circumstances, Makarov v R (No. 3) [2008] NSWCCA 293 at [13], [75], [77]-[78], [80]-[85]. In that regard, the issue of “cognitive bias” is significant.

14. [89]

    The distinction between tendency evidence and evidence tendered to establish the “relationship” between the parties is significant. In this case, there is an overlap between both the sources of the evidence and its content. As discussed in the course of argument, this may create real difficulties in formulating jury directions. The admissibility of the tendency evidence is governed by provisions ss 97-101 of the Evidence Act, while the admissibility of the relationship evidence turns on its relevance (ss 55 and 56) and an evaluation of the probative value, potential for confusion, unfair prejudice etc., of the evidence (ss 135-137). The distinction between the evidence depends on the use to which the evidence is to be put, as explained by Simpson J in RWC v R [2010] NSWCCA 332:

The prosecution tendency notice

1. [90]

   The prosecution’s tendency notice dated 3 February 2023, [6] identified three different alleged tendencies of Mr Hanson and set out the sources of the evidence by which it sought to establish those tendencies. Paragraph 2 set out the three tendencies:

2. [91]

   Three tables identified the witnesses (or other sources) said to establish each of those tendencies:

3. [92]

   The tendency notice asserted that tendencies identified bore upon the following facts in issue:

4. [93]

   The Prosecutor’s submissions explained the evidence relied on to establish the nature of the relationship between Mr Hanson and Ms Annear. In some instances the source of the evidence was the same and some of the so called relationship evidence might also be used by a jury in support of the tendency case. A table included in prosecution bundle (Ex VD-A, tab 3) set out the sources of evidence and which parts would be used to prove one or more of the tendencies and which was relevant to the relationship. The table, which I should say was very helpful, was updated and provided after oral submissions concluded and was marked (in chambers) as MFI 7.

5. [94]

   I will now summarise the evidence (identified in MFI 7) in tabular form, including the paragraph number of the statements and identifying the proposed use of the evidence.

6. [95]

   Liane Craig was in a relationship with Mr Hanson between 2004 and 2008. They lived together for most of that time. She was 14 years old when the relationship commenced and under the age of consent when she says a sexual relationship occurred. Mr Hanson was aged 22 when the relationship commenced.

7. [96]

   Senior Constable Karen Fuller is a police officers who attended the scene after the “chainsaw incident”. She arrested Mr Hanson on 9 November 2009. The evidence from her statement dated 12 November 2009 includes:

8. [97]

   Briony Shearman was in a relationship with Mr Hanson from 2015 to 2016. In summary, her evidence includes:

9. [98]

   Ms Butt was Ms Annear’s mother who lived Mr Hanson and her daughter from 2017. The evidence the prosecution seeks to adduce is summarised in the following table:

10. [99]

    Janelle Reynolds was a friend of Ms Annear and knew her for around 3 years. She met Mr Hanson when he moved in with Ms Annear. Her evidence the prosecution seeks to adduce includes both tendency and relationship evidence:

11. [100]

    Ms McEwen has known Mr Hanson since 1996 met him in high school. She became friends with Ms Annear in 2011, when Ms Annear was dating a mutual friend. When that couple split up, Ms McEwen and Ms Annear stopped “hanging out” but continued to “message” each other. Her evidence sought to be adduced includes:

12. [101]

    Ms Kristyn Abrahams was close friends with Ms Annear since 2011 and they communicated regularly. The parts of her evidence the Prosecutor seeks to lead are as follows:

13. [102]

    Mr Hanson was charged with assault occasioning actual bodily harm on 19 August 2019. The police facts sheet, which I was told at the pre-trial hearing were agreed on a plea of guilty, were identified as part of the tendency case:

14. [103]

    The body worn footage of Senior Constable Doust for offence H72263364 was played to the Court (Ex VD-B) and a transcript of the footage was marked as an aide memoire (MFI-4).

15. [104]

    I have already foreshadowed (at [70]) that evidence of this incident is admissible but that I would leave it to the parties to agree on the form in which it is placed before the jury. I would not allow various opinions stated by the police officers, including that the complainant “was cowering in fear” (facts sheet) or that the injury was “pretty bad” or “a really big egg” and that she had received “a fairly good hit to the head” (in the body worn video). I will explain my reasons and the basis of the admissibility of this evidence presently.

16. [105]

    Nathan Krasa was a close friend of Ms Annear. His evidence that is sought to be adduced is:

17. [106]

    Mr Stewart and Mr Hanson met and became friends in 2010. He moved into the downstairs section of Mr Hanson’s and Ms Annear’s house in February 2020. His evidence, if admitted, is as follows:

18. [107]

    Ms Herbert was friends with Ms Annear’s mother. Her evidence sought to be adduced includes:

19. [108]

    Carolyn Reynolds is the sister of Janelle Reynolds and was a neighbour of Ms Annear and Mr Hanson for around 4 years. The evidence of the relationship that it is proposed she gives is as follows:

20. [109]

    Phyllis Morison was another neighbour and knew Ms Annear and Mr Hanson for around 2 years. The evidence is as follows:

Evidence of Mr Hanson’s alleged tendency to physically assault his female partner(s)

1. [110]

   The evidence is capable of establishing that Mr Hanson had a tendency to assault his female partners. Proof of this tendency has a substantial capacity to impact on the jury’s consideration of the facts in issue in the trial. Issues to which the tendency is relevant include:

   1. (1)

      The jury’s consideration of what actually happened between Mr Hanson and Ms Annear that led to Ms Annear’s death by blunt force injuries. While Mr Hanson has provided a version of events, the jury is not required to accept that version and the Prosecutor is not limited to adduce evidence of his version of the assault. While the admissions may impact on an assessment of the probative value, it does not render irrelevant other evidence, including indirect or circumstantial evidence, that goes to that issue.

   2. (2)

      Put differently, the evidence is relevant to whether the jury accepts (or rejects beyond reasonable doubt) Mr Hanson’s version provided in the second record of interview.

   3. (3)

      The evidence is relevant to self-defence and whether the prosecution can eliminate the possibility that Mr Hanson believed his conduct was necessary to defend himself.

   4. (4)

      The evidence is also relevant to the foreshadowed partial defence of extreme provocation.

   5. (5)

      The evidence may also be relevant to whether the accused can establish the defence of substantial impairment.

2. [111]

   If the jury is satisfied that Mr Hanson had a tendency to assault his female partners, that may strongly support proof of a fact that makes up the offence or strongly rebut a fact relevant to one of the partial defences to be raised by Mr Hanson. Mr Hanson’s admission that he assaulted Ms Annear has some impact on an assessment of the probative value of the evidence, but that capacity is relatively limited given that the jury is not required to accept his version of events and there are no other witnesses.

3. [112]

   Whether the individual items of evidence strongly support the existence of the tendency is more difficult. Further, the risk of unfair prejudice is real, partially because of the volume of material and number of witnesses, some of whom are closely associated with Ms Annear. In deciding whether the probative value of the evidence is significant it is necessary to consider the evidence “either by itself or having regard to the other evidence adduced or to be adduced by the [Prosecutor]”. [8] Considered globally, this body of evidence has “significant probative value”. However, as I have said, some of the evidence should be excluded pursuant to s 101 because the probative value does not outweigh the danger of unfair prejudice. I turn to make rulings on the evidence identified in the tendency notice.

4. [113]

   I would exclude the evidence of Liane Craig.

5. [114]

   The evidence she would give relates to events that allegedly occurred many years ago (around 16-19 years). Some of the evidence (such as paragraph [12]) is in non-specific terms and lacks probative force. Some involve assertions of injuries (based on what Ms Craig said that others thought, believed or expressed concerns about) that are not otherwise established by medical evidence. The evidence, considered with the more recent events established by the other tendency or relationship witnesses, could be used by the jury to reason that the tendency asserted by the Prosecutor is long standing and represents a continuum of conduct on Mr Hanson’s part. I have also taken into account some of the similarities in the assaults described by Ms Craig and things other witnesses will say happened between Mr Hanson and Ms Annear. I have considered the seriousness of those assaults. Even so, given the effluxion of time and other matters, I am not satisfied Ms Craig’s evidence has significant probative value to the tendency that is said to have existed 15 to 20 years later.

6. [115]

   In any event, the probative value does not outweigh the danger of unfair prejudice. The relevant prejudice arises from the difficulty in testing or controverting the evidence after such a long time. While the parties would no doubt do all they could to shield the fact from the jury, Ms Craig was only 14 years old when the relationship commenced and there is a risk that the jury would deduce that the relationship was an illicit one.

7. [116]

   The evidence of Liane Craig is inadmissible.

8. [117]

   It follows that the evidence of Senior Constable Fuller is also inadmissible. Her evidence only went to substantiate the complaint regarding the “chainsaw” incident and to provide Mr Hanson’s response to the allegations.

9. [118]

   The evidence of Ms Shearman relates to events much closer in time to the killing of Ms Annear. There is still some temporal distance between the events, but there was not a substantial gap between the end of the relationship between Ms Shearman and Mr Hanson (around 2016) and the beginning of the relationship between Mr Hanson and Ms Annear (2017).

10. [119]

    Without going into the detail of the allegations made by Ms Shearman in paragraphs [6], [7], [9], [15] and [17], they involve serious, repeated and largely unprovoked violence on the part of Mr Hanson. They relate to specific incidents and Ms Shearman details injuries she received. The evidence of Ms Shearman has significant probative value.

11. [120]

    There is a risk of unfair prejudice, particularly because the admission of this evidence brings into the trial allegations of violence in an entirely different relationship. However, with one exception, the danger of unfair prejudice can be cured by the kinds of careful directions usually given when tendency evidence is admitted. The exception is that the material in paragraph [9] should either not be led or led without reference to the named child’s reaction and her crying over her (allegedly unconscious) mother. That detail adds nothing to the probative value of the evidence and is likely to arouse an emotional response in the jury.

12. [121]

    Subject to that caveat and to the comment in the next paragraph, the evidence in paragraphs [6], [7], [9], [15] and [17] is admissible in support of “tendency A”.

13. [122]

    At the hearing, the Prosecutor made the following observation during discussions about the second and third tendencies alleged:

14. [123]

    As will become clear, I do not propose to admit the evidence in relation to tendencies B and C. While I am satisfied that the probative value of Ms Shearman’s evidence outweighs the danger of unfair prejudice, it may be that the Prosecutor elects not to call Ms Shearman’s evidence to alleviate the risk of causing the trial to miscarry.

15. [124]

    The complainant’s mother, Ms Carolyn Butt, is expected to give evidence of three specific incidents of violence perpetrated by Mr Hanson on Ms Annear. These are detailed above. Both individually, and together, they are capable of strongly supporting the case that Mr Hanson had the tendency alleged. The danger of unfair prejudice can be cured by directions.

16. [125]

    Subject to a few exceptions referred to in the next paragraph, and the expectation that the evidence will be adduced carefully to avoid undue prejudice, the evidence in paragraphs [17], [18] and [19] is admissible.

17. [126]

    I would exclude Ms Butt’s comments such as:

18. [127]

    Janelle Reynolds’ statement (at [16]-[22]) sets out the details of an alleged incident that continued over a number of hours and involved Mr Hanson assaulting Ms Annear several times in different ways and for different reasons. As I noted earlier, the incident appears to have occurred a few months before the killing.

19. [128]

    The evidence, taken with the other evidence, strongly supports the existence in Mr Hanson of a tendency to assault his female partner, specifically Ms Annear herself. Any danger of unfair prejudice can be cured by direction. The probative value outweighs any such danger.

20. [129]

    I would not admit evidence of Ms Reynolds drawing conclusions, such as where she says (at [17] and [20]) that the sounds she heard were “like Rowen was throwing Dee against the wall or the floor”. She can describe what she heard but will not be permitted to provide an opinion as to the cause of those sounds. I would also exclude the hearsay evidence in paragraph [22], noting that it was not subject to the hearsay notice or the ruling excluding the hearsay which follows.

21. [130]

    Subject to the matters referred to in the last paragraph, and again on the understanding the evidence will be led with discretion and subject to careful directions, the evidence in paragraphs [16]-[22] of Ms Reynold’s statement is admissible.

22. [131]

    Rebecca McEwen’s evidence is largely relied on as “relationship” evidence but an incident described in paragraph [13] of her statement is pressed to support tendency A. That involved the accused slapping the deceased “with full force” after Ms Annear slapped him. Like the other evidence of violence to be given by Ms Butt and Ms (Janelle) Reynolds, this evidence has significant probative value (s 97) and that probative value outweighs the danger of unfair prejudice (s 101). The observation that “Rohen’s daughter was sitting right next to Dee when this happened” has some probative value in that it may demonstrate that Mr Hanson’s violence was unrestrained. However, there is significant potential for that part of the narrative to create unfair prejudice and the additional probative value derived from the presence of the child does not outweigh the danger of unfair prejudice.

23. [132]

    Accordingly, subject to the evidence concerning the presence of the child being excluded, the evidence in paragraph [13] of Ms McEwen’s statement is admissible as tendency evidence.

24. [133]

    I have set out the details of the incident on 19-20 August 2019 that led to a charge of assault occasioning actual bodily harm at [64]-[70] when dealing with the hearsay evidence and at [102]-[104] when setting out the tendency evidence. I indicated at [70] that the evidence was admissible as tendency evidence.

25. [134]

    The incident happened almost two years before the homicide but remains sufficiently proximate in time to the events in question. The passage of time does little to diminish the probative value of the evidence. The effluxion of time is to be considered in conjunction with other evidence to be adduced by the Prosecutor which is capable of establishing, if accepted, that the relationship was marred by violence resulting from, at least in part, the alleged tendency in Mr Hanson to assault his partner. That evidence, which resulted in a plea of guilty to the charged offence, has significant probative value and any danger of unfair prejudice can be cured by direction.

26. [135]

    As I said, it will be left to the parties to agree on the appropriate form of the evidence, but I confirm that it is admissible as tendency evidence.

Evidence of Mr Hanson’s asserted tendency to have a particular state of mind, namely to physically assault his female partner with an intention to cause serious bodily harm

1. [136]

   The admissibility of evidence said to support tendency B, as identified in the tendency notice, is the most difficult issue to resolve. I have concluded that this tendency ought not to be left to the jury, although much of the evidence will be before the jury in support of tendency A. Tendency B was framed as “a tendency in Mr Hanson to have a particular state of mind, namely to assault his female partner with an intention to cause serious bodily harm.”

2. [137]

   The evidence said to support this tendency comes from Liane Craig, Briony Shearman (paragraphs [6], [9] and [15]), Carolyn Butt (paragraphs [17], [19]), Janelle Reynolds (paragraphs [16]-[22]) and Kristyn Abrahams (paragraph [18]).

3. [138]

   I have excluded the evidence of Ms Craig and will say no more about her evidence. In making that ruling, I was conscious of the fact that the Prosecutor asserted that some of her evidence was also said to support this second tendency. Its capacity to impact on that issue was not so significant that it changed my mind as to the extent to which the evidence could impact on a rational assessment of the facts in issue or the potential for unfair prejudice arising from the passage of time and inability (or difficulties) in testing and challenging the evidence.

4. [139]

   The other evidence relied on to support this tendency falls into three general categories which, taken together, are said to support the state of mind:

   1. (1)

      The severity of the assaults including, on Ms Reynolds’ account, stomping on Ms Annear’s head three times.

   2. (2)

      The nature of some of the injuries, which include:

   3. (3)

      Comments made by Mr Hanson at around the time of the acts giving rise to the injuries or, more often, when he and Ms Annear were fighting. He allegedly told Ms Shearman when he caused the scratch “I’m going to scar you for life”. There are a number of occasions where, according to witnesses, Mr Hanson said things to the effect that he would “kill” Ms Annear but these comments were not included in the hearsay notice.

5. [140]

   I accept the Prosecutor’s submission that a tendency to inflict grievous bodily harm, if accepted, would be powerful evidence in support of the mental element of murder. However, there are real issues as to whether the evidence relied on, even in combination, strongly supports the existence of the tendency.

6. [141]

   As I put to the Prosecutor in argument, the fact is that none of the injuries actually occasioned by the serious series of assaults, would generally be regarded as grievous bodily harm. That of course is not dispositive of the issue; for example, if a person fired a gun at somebody’s head, or attempted to strike them in the head with a base-ball bat, and missed, there would be little doubt about that person’s intention even though no injury was sustained. Even so, the fact that neither Ms Shearman nor Ms Annear suffered grievous bodily harm is a factor that informs the question. Unlike the hypothetical posited above, this is not a case where the accused “missed”. His blows generally connected but did not result in grievous bodily harm. Even the most egregious allegation – the allegation of stomping on Ms Annear’s head that was witnessed by Ms Reynolds – did not occasion really serious bodily injury as that phrase is deployed in the mental element (specific intention) for murder. It is true that the scratch to Ms Reynold’s may still be visible and the infliction of that injury was accompanied by words “I will scar you for life”, but it is not an injury that would generally regarded as grievous bodily harm. Further, although it is looked like permanent disfigurement, it is nothing like the injuries that caused Ms Annear’s death.

7. [142]

   I am not persuaded that the evidence has significant probative value to the issues in the trial but, if that conclusion is wrong, I am positively persuaded the probative value does not outweigh the danger of unfair prejudice to the accused. There is a real risk of the evidence being misused, or given too much weight, if the jury is directed that the evidence might support a tendency that Mr Hanson had a state of mind involving the infliction of grievous bodily harm on his female partners.

8. [143]

   All (or most) of the evidence will be before the jury on the issue of the tendency to assault Mr Hanson’s partners. If it is admitted for the additional purpose of establishing tendency B, the jury will have to engage in one or more inference drawing processes of a similar kind to the critical process it will be engaging in to determine one of the ultimate issues in the trial, namely whether the injuries occasioned on 18 September 2021 and that led to Ms Annear’s death support an inference that Mr Hanson intended to inflict grievous bodily harm. If the jury has already engaged in a similar process to determine whether the tendency existed, there is a real risk that the reasoning process would become circular or that the jury will give the tendency case too much weight.

9. [144]

   The directions on circumstantial reasoning will become unduly complex and I doubt that directions could cure the dangers of unfair prejudice.

10. [145]

    For those reasons, the second tendency will not be put to the jury and the evidence supporting it, while admissible for other purposes, is inadmissible to establishing that Mr Hanson had a tendency to have the state of mind asserted in the tendency notice.

Evidence of the accused’s asserted tendency to restrict the breathing of his female partner during an assault

1. [146]

   Ms Annear died from blunt force injuries. She did not die of strangulation and there is no evidence that the “ligature abrasion to the neck” [9] , however it was caused, significantly contributed to her death. That circumstance does not make the injury irrelevant; it’s existence and cause is capable (“could”) rationally affect the existence of a fact in issue, namely the accused’s intention. [10] Accordingly, because relevance may be direct or indirect, [11] a tendency the accused had to strangle his female partner – or restrict her breathing – is (or may be) “relevant” evidence. However, the disconnect between the cause of death (blunt force trauma) and that injury (possible evidence of an attempt at strangulation) means the “extent to which” it might do so (probative value) is reduced. Further, the tendency as articulated is not “to strangle” his victim(s) with a ligature but to restrict their breathing. The tendency is framed in that way because there is no evidence of Mr Hanson ever having strangled his female partners with a rope, cord or other ligature.

2. [147]

   The evidence upon which the prosecution relies to establish the tendency asserted does not “strongly support” the existence of that tendency. That evidence is identified in the tendency notice as: Ms Craig, paragraphs [12] and [21], and Ms Sherman at paragraph [15].

3. [148]

   The only evidence of “strangling” comes from Ms Craig (in paragraph [12]) and that is in a paragraph of her statement which provides a catalogue of the kinds of things the accused “would do” to her. It is not specific in any detail. She said, “He would knee me, kick me, pull my hair and strangle me”. There is no suggestion a ligature was used, and it appears to be an allegation of manual strangulation, a mechanism Dr Cala said could not explain the injury to Ms Annear.

4. [149]

   Ms Craig described (in paragraph [21]) an occasion when Mr Hanson put a pillow over her head and punched her. She did not say that her breathing was restricted; she described feeling the accused punching her through the pillow.

5. [150]

   Ms Shearman described an occasion when the accused squeezed her ribs so hard that she found it hard to breath. She thought her ribs were going to cave in. While the action resulted in a restriction in breathing, it is not clear this was Mr Hanson’s intention.

6. [151]

   I am not satisfied for the purpose of s 97 of the Evidence Act, and the third tendency asserted in the notice, that the evidence has significant probative value.

7. [152]

   Accordingly, the evidence is not admissible to establish that Mr Hanson had a tendency to restrict the breath of his female partners while assaulting them.

Mr Hanson’s tendency case

1. [153]

   Mr Hanson served a tendency notice on 28 April 2023 relating to Ms Annear’s alleged “tendency to act in a violent and aggressive manner”. The notice particularised ten pieces of evidence that Mr Hanson sought to adduce to establish the alleged tendency. The statements and documents so particularised formed part of Ex VD-2. Some of the evidence was the same evidence, or came from the same witness statements, that the prosecution relies on to show the violent and tempestuous relationship between Ms Annear and Mr Hanson.

2. [154]

   The prosecution did not contend that the notice was not reasonable because it was well known before April 2023 that Mr Hanson would raise this issue in the trial. However, the prosecution objected to the evidence being used as tendency evidence, contending that some of it may be admitted as relationship evidence to demonstrate that violence and aggression between Ms Annear and Mr Hanson went both ways. [12]

3. [155]

   Paragraphs [3] of the tendency notice identified the following evidence proposed to be adduced by Mr Hanson:

4. [156]

   Paragraph [6] of the notice asserted that the evidence bears upon the following fact in issue:

5. [157]

   As with the Prosecutor’s notice, I will also take into account the issues as I understand them to be. In assessing the probative value of the evidence, I proceed on the basis that specific intention, self-defence, extreme provocation and substantial impairment are likely to be issues in the trial.

6. [158]

   I accept that if it is established that Ms Annear had a tendency to be aggressive and violent that fact has the capacity to strongly support Mr Hanson’s side of facts in issue at the trial. It may have such a capacity especially on the issue of self-defence and Mr Hanson’s asserted and subjective belief (upon which the prosecution will bear the onus of proof) that his conduct was necessary in the circumstances.

7. [159]

   The question remains whether the evidence upon which reliance is placed strongly supports the tendency alleged. I have considered the whole body of evidence in making rulings on the individual items of evidence. I have considered the submissions of both parties which I will summarise succinctly, with an apology to counsel whose submissions were thorough and of great assistance.

8. [160]

   Mr Bouveng submits that the alleged tendency is relevant the first limb of self-defence and the defence of extreme provocation. Counsel submitted that the evidence sought to be adduced is of significant probative value as it demonstrates that Ms Annear is not only capable of violence, but also capable of instigating violence. Furthermore, the evidence supports Mr Hanson’s account (in his second interview) that Ms Annear started the fight on the day of the offence, that he was provoked and that he acted in self-defence. Mr Bouveng argued that if the jury was unaware of this evidence, it would be difficult for it to assess realistically Mr Hanson’s account; the jury may be left with false impressions that Ms Annear was someone incapable of violence and aggression, which her history shows is untrue.

9. [161]

   The prosecution submitted that, at its highest, the evidence provided “slight support for the deceased being a violent person or somebody with a tendency to act in a violent manner” and that “the tendency, even at the current level of generality makes it more likely the deceased acted in the way alleged by the accused”. The prosecution argued that the evidence of Ms Annear’s offences is not of significant probative value because of the large time gaps between her offences, the low level of seriousness of those offences, and the absence of evidence of violence since 2019. In the course of argument, the Prosecutor accepted that the probative force of the evidence may be greater if it (the prosecution) is permitted to bring a tendency case against Mr Hanson (which it will be).

10. [162]

    I have decided that most, but not all, the evidence sought to be introduced by the accused is admissible as tendency evidence. I will deal with the individual items of evidence in the order adopted in the tendency notice. In assessing the probative value of the evidence, I am satisfied the evidence of actual violence, as opposed to aggression or verbal abuse, is capable of providing strong support for the tendency asserted in the notice.

11. [163]

    On 16 May 2010 Ms Annear was arrested for an offence of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. On 8 June 2010 Ms Annear pleaded guilty to this charge in the Taree Local Court.

12. [164]

    The offence occurred when Ms Annear attended the home of Ms Maree Minns. Ms Annear was friends with Ms Minns’ ex-partner and had been with her ex-partner earlier in the day. Around 7.30pm Ms Annear knocked on Ms Minns’ front door. When Ms Minns answered, Ms Annear said, “I’m warning you to stop the shit with Steve, stop the lies, stop messaging, he’s my best friend”. Ms Annear left, and a short time later came back to the house. When Ms Minns opened the door, Ms Annear said sarcastically, “Oh Maree I’m really sorry I believe Steve’s bashed you”. Ms Minns responded “Yeh twice” and Ms Annear said, “Well you had a go at me (verbally) for touching his leg”. Ms Annear then said, “stay away from him [you’re] nothing but a slut”, punched Ms Minns in the mouth and walked away. Ms Minns suffered a laceration, swelling and bleeding to her mouth. Police later arrested Ms Annear around 9.00pm and thought she was intoxicated. Ms Annear stated, “I just fucken went to the slut’s house and abused her, I didn’t fucken punch her”.

13. [165]

    The passage of time (11 years) may reduce the probative value of this evidence. However, against that, the pattern of violence disclosed in all of the items of evidence suggests if such a tendency as asserted by Mr Hanson existed in Ms Annear, it existed over a period of time. I have taken into account the fact that this evidence does not relate to an assault on Mr Hanson, as submitted by the Prosecutor, but that factor alone does not greatly detract from the force of the evidence.

14. [166]

    I am satisfied the evidence has significant probative value. It is admissible as tendency evidence.

15. [167]

    On 11 April 2014 Ms Annear was arrested for three offences of re-entering a licensed premises after being refused entry, resisting an officer while in the execution of their duty and common assault. On 6 May 2014 Ms Annear pleaded guilty in the Taree Local Court to the offences of common assault and resist police. As with all of the facts sheets tendered by each party, the Prosecutor had checked the Court file and confirmed the facts as produced (in this Court) reflected the facts accepted in the Local Court.

16. [168]

    The offences occurred around 11.35pm, after Ms Annear and her friend Mr Wainright had been drinking and smoking at the Exchange Hotel in Taree. A staff member asked them to leave due to their behaviour and escorted them from the bar. Ms Annear and Mr Wainwright tried to run back inside but were blocked by the staff member. The staff member told them they were not allowed inside. Ms Annear became aggressive when the staff member blocked her entry. She started to scratch his right arm, causing red marks and pain in his arm. Ms Annear and the staff member both called police. Ms Annear told police if she was not allowed back inside, she would go “Apeshit” and threw her phone on the ground. Ms Annear and Mr Wainwright then walked away. When police arrived, they observed Ms Annear and Mr Wainwright trying to re-enter the hotel. Police approached them and directed them to leave. Ms Annear and Mr Wainwright started to argue with police. Mr Wainwright walked away but \Ms Annear refused to leave, saying she was “not going anywhere”. Police arrested Ms Annear. Ms Annear wrestled with the police “kicking out with her legs and thrashing”. She pushed her legs against the door frame of the police vehicle, resisting police attempts to arrest her.

17. [169]

    This evidence is strongly supportive of the tendency alleged by the accused. In the context of ongoing acts of erratic and drunken violence over the coming years, the passage of time does not diminish its value. The evidence has significant probative value as tendency evidence and is admissible.

18. [170]

    On 22 September 2019 Ms Annear was arrested for assault occasioning actual bodily harm against her mother, Ms Butt, contrary to s 59(1) of the Crimes Act. On 29 November 2019 at the Forster Local Court, Ms Annear pleaded guilty to this offence and was sentenced to 13 months imprisonment with a non-parole period of 2 months. An Apprehended Domestic Violence Order was also placed against Ms Annear for 2 years. (I mention the penalty only to emphasis the assault must have been seen by the Court to be a serious offence. I do not suggest that the penalty is relevant to the tendency case or should be admitted).

19. [171]

    Around 10am on 22 September 2019, Ms Annear and Ms Butt were drinking together and got into a verbal altercation. The police were called to the scene. Police spoke to Ms Butt who said that Ms Annear had kicked her. Ms Annear was sleeping, and police believed that she was intoxicated. Ms Butt refused to provide a statement and the police left.

20. [172]

    Later that day, around 4.30pm, Ms Annear woke up and waked down the stairs to her mother’s room. She yelled at Ms Butt, “Get out of the house”. Ms Annear and Ms Butt yelled at each other for several minutes. Ms Butt walked out onto the front lawn and Ms Annear locked her out of the house. Ms Annear then walked outside, grabbed Ms Butt’s hair and dragged her around the front lawn. She punched Ms Butt several times. This fight was witnessed by neighbours who called the police. Ms Annear walked inside and went upstairs. Ms Butt followed Ms Annear in an attempt to talk to her and Ms Annear tried to push her down the stairs. Ms Butt sat on the stairs and Ms Annear kicked her in the back. Ms Butt suffered lacerations and bleeding to her right cheek and foot and had multiple small bruises on both of her arms. Police arrested Ms Annear a short time later. When Ms Annear was arrested, she said, “I’m going to stab her”.

21. [173]

    If accepted, this was a serious assault committed against a loved one with very little provocation. Like the other offences, alcohol was involved. The evidence strongly supports the existence of the tendency alleged. Accordingly, the evidence has significant probative value and is admissible as tendency evidence.

22. [174]

    Mr Hanson seeks to adduce the following tendency evidence from paragraphs [11], [12], [22] and [27] of Ms Butt’s statement:

23. [175]

    The prosecution does not object to [27] of Ms Butt’s statement being led as relationship evidence and it is certainly admissible to provide some balance to the evidence the prosecution will adduce on that issue.

24. [176]

    However, the contents of the statement also strongly support the tendency asserted in the accused’s tendency notice and is admissible as such.

25. [177]

    Ms Janet Hanson is Mr Hanson’s mother. Ms Hanson gave a statement on 20 September 2021. Mr Hanson seeks to adduce the following tendency evidence from paragraph [10] of her statement:

26. [178]

    The prosecution does not object to [10] of Ms Hanson’s statement being led as relationship evidence. However, again, it is capable of providing strong support for the tendency asserted in the notice. And, as I have said, that tendency may strongly support the accused’s case on issues to be litigated at the trial.

27. [179]

    The evidence has significant probative value and is admissible as tendency evidence.

28. [180]

    Mr Hanson seeks to adduce the following tendency evidence from paragraphs [8], [9] and [10] of Mr Stewart’s statement:

29. [181]

    The prosecution does not object to the above paragraphs being led as relationship evidence.

30. [182]

    With one caveat, I will also allow the evidence to form part of the accused tendency case. That caveat, which is consistent with rulings I made in the prosecution case on tendency, is that Mr Stewart will not be permitted to provide his opinion on what he heard. He will be permitted to give evidence of what he saw and heard, but not the conclusions he drew as to what was happening. The jury will be permitted to draw inferences from the direct evidence.

31. [183]

    Kimly Worth and his wife (Kerrie) were neighbours of Mr Hanson and Ms Annear since 2017. Mr Worth provided a statement on 12 October 2021. The tendency notice identified paragraph [6] but the written submissions traversed both paragraphs [6] and [8]:

32. [184]

    The prosecution does not object to [8] of Mr Worth’s statement as relationship evidence.

33. [185]

    The evidence in paragraph [6] is admissible as tendency evidence. It appears to be the same incident referred to by Ms Butt and possibly the incident that resulted in charges. Care should be taken in adducing this evidence because paragraph [6] commences with an observation that Mr Hanson (and Ms Annear) were “in gaol at the same time”.

34. [186]

    The evidence in paragraph [6] has significant probative value and is admissible as tendency evidence.

35. [187]

    I do not accept, if it is suggested, that the evidence in paragraph [8] strongly supports the tendency asserted by the accused. It is not admissible as tendency evidence.

36. [188]

    However, it may be admitted to establish the nature of the relationship if the parties so decide.

37. [189]

    Kerrie Worth gave a statement 22 September 2021. Mr Hanson seeks to adduce the following tendency evidence from paragraphs [6] and [9] of Mrs Worth’s statement:

38. [190]

    This evidence is not strongly supportive of the tendency to be violent asserted by Mr Hanson. It does not have significant probative value as tendency evidence and will not be admitted as tendency evidence.

39. [191]

    The prosecution does not object to both paragraphs being led as relationship evidence and it may be admitted for that purpose.

40. [192]

    Mr Hanson seeks to adduce the following evidence from paragraph [12] of Ms Morison’s statement:

41. [193]

    Like all the other evidence establishing evidence of violence on the part of Ms Annear, and in view of the issues at the trial and other evidence to be presented to the jury, this evidence has significant probative value as tendency evidence. It is admissible as such.

42. [194]

    Mr Hanson seeks to adduce the following evidence from paragraphs [6] and [8] of Ms Reynold’s statement:

43. [195]

    The prosecution does not object to both paragraphs being led as relationship evidence. In the absence of any specific allegation of violence on the part of Ms Annear, I am not satisfied that this evidence strongly supports the existence of the tendency “to act in a violent and aggressive manner”. It lacks significant probative value.

44. [196]

    The evidence is not admissible as tendency evidence but may be elicited in proof of the nature of the relationship between the parties.

The relationship evidence

1. [197]

   The only outstanding issue is the question of what evidence, in addition to that referred to in this judgment, will be admissible at the trial to establish the nature of the relationship between Mr Hanson and Ms Annear. I will allow the parties the opportunity to attempt to reach agreement on the issue and, if an agreement cannot be reached, the pre-trial will be listed in to a future date in Newcastle in October or November 2023 to present further arguments. The parties will be aware of the substantial amount of evidence that will be before the jury as tendency evidence on both sides will, of itself, provide the jury with a significant insight into the nature of the relationship between Mr Hanson and Ms Annear. In addition to the tendency evidence admitted as such, there will also be the evidence I have not allowed as tendency evidence but indicated will be admissible to establish the nature of the relationship.

2. [198]

   The parties will also understand, from the rulings and content of this judgment, the evidence that will be allowed and that which is inadmissible. For example, I would not allow evidence of a witness’s subjective description of the nature of the relationship or the conclusions they drew from what they saw and heard. Nor would I allow evidence of injury that is not attributable to the act of one or other of the parties to the relationship.

3. [199]

   There is significantly more evidence, identified by the prosecution in its submissions, which may be, or is, admissible but I would expect that both parties will recognise that the jury ought not to be distracted by an unnecessary amount of evidence of matters beyond the central areas of dispute.

Orders and rulings

1. [200]

   I make the following rulings and orders:

   1. (1)

      Leave is granted under s 151(1) of the Criminal Procedure Act 1986 (NSW) to allow the accused to rely on evidence of Dr Gerald Chew, tending to prove a contention of substantial impairment.

   2. (2)

      The trial date is vacated and the trial is listed with a 3-4 weeks estimate to commence on 18 March 2024 in Coffs Harbour.

   3. (3)

      The evidence of Dr Allan Cala’s opinion is admissible, including:

   4. (4)

      The evidence in paragraph [7] of Carolyn Butt’s statement dated 22 October 2021 is admissible as an exception to the hearsay rule if led in a limited form.

   5. (5)

      The evidence in paragraph [23] of Janelle Reynolds’ statement dated 20 September 2021 is inadmissible.

   6. (6)

      The evidence in paragraph [18] of Kristyn Abrahams’ statement dated 22 September 2021 is inadmissible.

   7. (7)

      Evidence of the incident admitted by Mr Hanson, the representations made by Ms Annear in the body worn video produced by Senior Constable Stephen Doust dated 20 August 2019 and an image of her injury are admissible as an exception to the hearsay rule.

   8. (8)

      The statements by the police in the body worn video are inadmissible.

   9. (9)

      The representations in Kerry Herbert’s statement dated 21 September 2021 that Ms Annear “had enough” and left the house at paragraph [22] are admissible as an exception to the hearsay rule. The statements that Ms Annear had left the house and requested Ms Herbert to pick her up are admissible to place the representations in context.

   10. (10)

       The representations in Ms Herbert’s statement that Ms Annear said, “he’s started again” at paragraph [21] and the advice Ms Annear offered to the grandchild at paragraph [22] are inadmissible.

   11. (11)

       The evidence of Liane Craig is inadmissible.

   12. (12)

       The evidence of Senior Constable Fuller is inadmissible.

   13. (13)

       The evidence in paragraphs [6], [7], [9], [15] and [17] of Briony Shearman’s statement dated 13 October 2021 are admissible as tendency evidence in relation to tendency A, but not for tendencies B and C.

   14. (14)

       The evidence in paragraphs [17], [18] and [19] of Carolyn Butt’s statement dated 22 October 2021 are admissible as tendency evidence, however the following statements are excluded:

   15. (15)

       The evidence in paragraphs [16]-[22] of Janelle Reynolds’ statement signed 20 September 2021 is admissible as tendency evidence. However, the following evidence is excluded:

   16. (16)

       The evidence in paragraph [13] of Rebecca McEwen’s statement dated 25 November 2021 is admissible as tendency evidence, subject to the evidence concerning the presence of the child being excluded.

   17. (17)

       The evidence of the incident on 19-20 August 2019 is admissible as tendency evidence.

   18. (18)

       The evidence in Briony Shearman, Carolyn Butt, Janelle Reynolds and Kristyn Abraham’s statements, while admissible for other purposes, is inadmissible to establish tendency B.

   19. (19)

       The evidence in paragraphs [12] and [21] of Liane Craig’s statement and paragraph [15] in Ms Shearman’s statement is inadmissible to establish that Mr Hanson has a tendency to restrict the breath of his female partners while assaulting them.

   20. (20)

       The evidence in police facts sheet H41445167 is admissible as tendency evidence.

   21. (21)

       The evidence in police facts sheet H54254022 is admissible as tendency evidence.

   22. (22)

       The evidence in police facts sheet H433460592 is admissible as tendency evidence.

   23. (23)

       The evidence in paragraphs [11], [12], [22] and [27] of Ms Butt’s statement is admissible as tendency evidence.

   24. (24)

       The evidence in paragraph [10] of Janet Hanson’s statement dated 20 September 2021 is admissible as tendency evidence.

   25. (25)

       The evidence in paragraphs [8], [9] and [10] of Adam Stewart’s statement dated 23 September 2021 is admissible as tendency evidence, subject to the caveat that Mr Stewart cannot provide his opinion on what he heard.

   26. (26)

       The evidence in paragraph [6] of Kimly Worth’s statement dated 12 October 2021 is admissible as tendency evidence. The evidence in paragraph [8] is inadmissible as tendency evidence. It may be admitted as relationship evidence.

   27. (27)

       The evidence in paragraphs [6] and [9] of Kerrie Worth’s statement dated 22 September 2021 is inadmissible as tendency evidence but may be admitted as relationship evidence.

   28. (28)

       The evidence in paragraph [12] of Phyllis Morison’s statement dated 22 September 2021 is admissible as tendency evidence.

   29. (29)

       The evidence in paragraphs [6] and [8] of Carolyn Reynolds’ statement dated 21 September 2021 is inadmissible as tendency evidence but may be admitted as relationship evidence.

   30. (30)

       The parties are directed to attempt to reach agreement as to any further “relationship” evidence to be elicited before the jury and to liaise with my Associate to list the matter for further mention and/or pre-trial hearing in Newcastle in October or November 2023.