Taylor v R

BELL P: Mr Edward Charles Taylor (the applicant) was charged on indictment with the following offences:

Following a trial before her Honour Bright DCJ (the trial judge) and a jury in the District Court of New South Wales at Gosford between 3 June 2019 and 24 June 2019, the jury found the applicant not guilty on Counts 1-3, but guilty on Counts 4, 6, 8, 9, 11 and 12. Counts 5, 7 and 10 were in the alternative to Counts 4, 6 and 9 respectively.

On 5 November 2019, the applicant was sentenced to an aggregate term of imprisonment of 1 year and 10 months in respect of Counts 4, 9, 11 and 12, to commence on 5 October 2019 and to expire on 4 August 2021, with a non-parole period of 1 year to expire on 4 October 2020. The trial judge nominated indicative sentences of imprisonment of 12 months in respect of Count 4, 12 months in respect of Count 9, 4 months in respect of Count 11 and 4 months in respect of Count 12.

In relation to Count 6, the trial judge imposed a community correction order for a period of 2 years, and in respect of Count 8, her Honour also imposed a community correction order for a period of 2 years, both commencing on 5 November 2019 and expiring on 4 November 2021.

At the time of the hearing of the appeal, the applicant was on parole.

There were a number of notable features about the trial.

First, both Ms Beverly Walters (the complainant), referred to in Counts 1-4, 6, 9 and 10, and Ms Nicole Lawrence (Ms Lawrence), referred to in Count 11, retracted statements they had given to the police shortly after the events of 27, 30 and 31 March 2018. The complainant claimed that she was using ice and was hallucinogenic at the time of giving her police statement.

Secondly, the presentation of the Crown’s case in respect of Count 9 involved, as shall be explained, a proposition that the applicant gained external access to the balcony of the complainant’s fourth floor apartment, notwithstanding the trial judge’s observation in the context of her remarks on sentencing that:

The first ground of appeal involves a challenge to the applicant’s conviction on Count 9.

Thirdly, in support of Counts 1-10, the Crown relied upon tendency evidence, being a statement of agreed facts signed by the applicant in November 2010 which was evidently used for the purpose of sentencing the applicant in 2010 in relation to a charge of recklessly occasioning grievous bodily harm to his former wife on 25 October 2008 (the 2008 conduct).

The statement of agreed facts (which is set out in full later in these reasons):

The admission of the statement of agreed facts over objection forms the second ground of appeal.

The applicant sought an extension of time in which to appeal his conviction and an extension of time to seek leave to appeal his sentence. As it happened, the applicant did not press his application for leave to appeal against sentence.

Other than on the basis that an extension of time would be futile because it was contended the challenges to conviction would not succeed, the application for an extension of time was not opposed. The time to appeal conviction should be extended.

The applicant and the complainant were in an on-again off-again relationship for about two years prior to the alleged offences. The applicant would stay at the complainant’s two bedroom apartment at The Entrance for a few nights each week. The complainant had moved into the apartment in about October 2017.

The charges against the applicant related to four separate incidents of alleged domestic violence against the complainant in the period January to March 2018. He was found by the jury not guilty of a charge of common assault on the complainant between 1 and 5 January 2018, not guilty of assault occasioning actual bodily harm on the complainant on 27 March 2018 and not guilty of intimidating intending to cause fear of physical or mental harm against the complainant on 27 March 2018. The counts on which the applicant was convicted related to conduct on 30 and 31 March 2018.

The complainant’s apartment was on the fourth floor of a five storey apartment block. The means of access to that apartment were central to the first ground of appeal for reasons which will be explained. Two external images of the complainant’s apartment form Annexures A (Annexure A (621548, pdf)) and B (Annexure B (866056, pdf)) to this judgment, being Exhibits 4 and 3 respectively from the trial.

A diagram of the apartment showed that there was a single internal entrance to the apartment from a corridor on the fourth floor of the apartment and that there was internal access to the balcony from doors from the main bedroom, a spare second bedroom and the lounge area. The fourth floor was accessible via a lift and a set of internal fire stairs.

The entrance to the apartment building was by means of an electronic blue “fob”.

The evidence was that there were CCTV cameras on the ground floor entry to the apartment building, on the lift entrances and two cameras on level 4. The evidence of Senior Constable Sayer was that approximately 40 hours of footage was downloaded from which compilations of footage was made for each of 30 March and 31 March 2018 with two video files created. An editing process was involved as must have been the case given the multiplicity of cameras. Precisely how this was done was not explained in evidence.

Counts 4, 6 and 8 related to an incident in the early hours of the morning of 30 March 2018. The complainant was at home in her apartment with her friend, Ms Lawrence.

According to their evidence, the complainant and Ms Lawrence went to bed at about 1am, after placing a refrigerator at the front door of the apartment, as the lock on the front door did not work properly. Shortly after, they heard banging and pushing at the door, and they both sat behind the fridge and braced themselves to hold the door shut. The banging stopped after a short while.

The complainant looked out over her balcony and saw a male she believed to be the applicant carrying a bag over his shoulder. A few minutes later, the banging started on the front door again. The police were called, the banging stopped, and police arrived a few minutes later, and noticed that the front handle on the door was missing. Police identified themselves and the complainant let them in. Police checked the entire complex and searched the surrounding areas but could not locate any persons.

CCTV footage confirmed that the applicant approached the door of the complainant’s unit, and broke the door handle off before leaving.

Counts 9 and 11 related to an incident at the apartment of the complainant in the early hours of the morning on 31 March 2018. The complainant was again at home with Ms Lawrence. As put to the jury, the applicant gained external access to the balcony of the apartment in the early hours of the morning, and on being seen by the applicant and Ms Lawrence, picked up a chair on the balcony and threatened to smash through the glass door and attack Ms Lawrence, whereupon Ms Lawrence and the complainant rapidly left the apartment and went directly to the police station where they gave statements to the police to apparently similar effect.

When the complainant and Ms Lawrence came to give their evidence in chief, however, it did not accord at all with what was contained in their statements about what had occurred in the early morning of 31 March 2018 and the Crown successfully applied to have both declared unfavourable witnesses within the meaning of s 38 of the Evidence Act 1995 (NSW).

In relation to the complainant, her oral examination in chief produced the following evidence in relation to the circumstances relating to what became Count 9:

Later in her evidence in chief, there was the following passage of evidence from the complainant:

Later in her evidence in chief (T: 127–128), the complainant gave the following evidence:

After she had been declared an unfavourable witness, the complainant was cross-examined by the Crown in relation to the events of the early morning of 31 March 2018 as follows:

Ms Lawrence was examined in chief but, contrary to what was alleged in Count 9, she said that, although she saw the applicant on the balcony and did not know how he had gotten there, he did not say anything to her and she did not see him pick up a chair and threaten her with it or threaten to smash the glass. After she had given this evidence in chief, the Crown made a successful application to have her declared an unfavourable witness within the meaning of s 38 of the Evidence Act, and she was cross-examined to the effect that she had made statements to that effect in a statement she had made to the police in the early morning of 31 March 2018. The cross-examination by the Crown was as follows:

The applicant’s account was that he had entered the apartment by the front door. He said he had been given a “fob” to enter the apartment building by the complainant and such a fob was found on his person when he was detained in the early hours of 31 March 2018. He did not deny being on the balcony, but denied that he picked up any chairs on the balcony as he said there were none on it and denied speaking to Ms Lawrence in any threatening or intimidating manner.

In his address to the jury, the Crown Prosecutor made reference to the complainant’s statement to the police that:

The Crown Prosecutor continued:

The reference to the CCTV footage was to evidence given by a number of police officers who had watched CCTV footage obtained from the apartment building and who gave evidence that, whilst that footage showed the applicant leaving the apartment not long after the complainant and Ms Lawrence had run out of the apartment, there was no corresponding footage showing the applicant entering the apartment. The absence of such footage was the basis for the inference that the applicant must have in some way made his way on the balcony externally.

The following table, which was Exhibit C at the trial, summarises the observations made from various footage of the early morning of 31 March 2018 that had been compiled:

It was not in contest that the man referred to in this table was the applicant. What the entry for 2.41am shows is that the applicant was not in the apartment at that time and that he must have found his way on to the balcony at some point between 2.41am and 3.36am. A still image of the 2.41am footage showed the applicant with what appears to be a two-step step-ladder no more than 1 metre high (the applicant described it as “two foot”) entering the fire stairs from the basement car park.

The applicant accepted that he was present at the apartment block on the night of 30 March and the morning of 31 March 2018. In the course of his evidence-in-chief, he said that had been asleep in the spare bedroom and briefly left the apartment during that period, having woken up, to retrieve a “little … only about a 2 foot” stepladder from his ute in order to “put the smoke detectors” back in the spare room in the apartment. He maintained this account of events during cross-examination by the Crown.

Of most significance for present purposes is that aspect of the Crown’s case to the effect that the applicant accessed the balcony externally, that is to say, not by the front door to the apartment. It would appear that the Crown was necessarily drawn to this theory of the applicant’s presence on the balcony by the evidence of Ms Lawrence and the complainant, at least as provided in their police statements, that the front door to the apartment was blocked by a fridge or a table and that they were awake and in the living room when they heard and saw the applicant on the balcony.

Count 12 involved the attendance of Senior Constable Moore, Senior Constable Brien and Senior Constable Jay at the address of the complainant on 31 March 2018. Upon arrival, Senior Constable Jay saw the applicant running and jumping a fence at the front of the unit complex. Senior Constable Moore and Senior Constable Jay exited the police vehicle, when the latter spotted the applicant running down a ramp at the front of the complex. Senior Constable Jay yelled at the applicant to “Stop”. Senior Constable Jay engaged in a short foot pursuit with the applicant, before catching him and tackling him to the ground. The applicant began to struggle with Senior Constable Jay, and continued to pull away as he was directed to stop resisting. The applicant continued to struggle and resist, before two other officers, Constable Ballico and Senior Constable Greentree, ran over to assist, and the applicant was handcuffed.

The applicant appeals against his conviction on the following two grounds:

Appeal ground 1 relates to Count 9 only, and it would appear that appeal ground 2 seeks to challenge the applicant’s conviction on Counts 4, 6 and 9 only, or at the very least principally as the tendency evidence which is the subject of that ground does not relate to the charge of resisting arrest. A third ground of appeal relating to sentence was not pursued.

In relation to Count 9, the relevant offence for which the applicant was found guilty was pursuant to s 111(2) of the Crimes Act 1900 (NSW). Section 111(1)-(2) provides that:

Section 105A of the Crimes Act outlines “circumstances of aggravation”. Sub-section 105A(1)(f) provides that there will be a circumstance of aggravation where “the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed”.

Section 115A of the Crimes Act provides for alternative verdicts, with sub-section (1) outlining that:

The prosecution did not rely on a statutory alternative verdict to the charge, absent the aggravating feature, which was available pursuant to s 115A of the Crimes Act. The trial transcript reveals that the Crown Prosecutor asked the trial judge not to address the jury on the statutory alternative on the basis that the Crown “didn’t open on it”. The applicant thus submitted that the Crown “nailed its colours to the mast”, to stand or fall on the elements as they were charged in Count 9. The Crown on appeal did not shy away from this fact.

It was also accepted by the Crown that its case at trial was that the applicant could only have got on to the balcony externally rather than as a result of having first entered the apartment through the front door. As the CCTV footage suggests, that access must have occurred at some point after 2.41am and before 3.36am, when the complainant and Ms Lawrence left the apartment. The “external access” case was tied to the element of aggravation contained in the charge.

The Crown accepted that, in light of the way the trial was run, it needed to be established beyond reasonable doubt that the applicant did not get on to the balcony as a result of internal entry to the apartment at some earlier time in the day or night when either the complainant and Ms Lawrence were not present or were otherwise not aware of his entry.

The Crown submitted that there was a sufficient basis in the evidence for the jury to have drawn the inference that the applicant entered the balcony area of the unit by some external means and without the permission of the complainant. With respect to the CCTV footage, the Crown pointed to the evidence of Senior Constable Moore, who re-watched all the relevant footage from 31 March 2018 of the door to Ms Walter’s apartment, and did not see the applicant in the footage of the front door (T310). Senior Constable Moore did identify footage which showed the applicant using the lifts in the building at around 11.30pm on 30 March 2018, which became Exhibit L. The Crown thus submitted in written submissions that:

The Crown submitted that:

Whilst it was not in dispute that the applicant was on the balcony at the time he was seen by Ms Lawrence, it was contested that the applicant had got on to the balcony by external entry. The applicant contended that this was physically impossible or so unlikely as not to be credible. The applicant drew specific attention in this regard to the remarks of the trial judge upon sentence to the effect that:

The applicant submitted on appeal that the trial judge “did not find beyond reasonable doubt how the applicant entered the premises. She could not find that the applicant had incredibly scaled the outside five storeys of the building to gain access to the balcony of unit 28. Such is beyond any rational inference.” The decision was, of course, not for the trial judge but for the jury to make, but the applicant’s point was and is clear enough.

The principles applicable to a ground alleging an unreasonable verdict were enunciated by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, and were recently confirmed by the High Court in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [43]-[45], where the Court outlined that:

In my opinion, it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. The jury must have had a doubt about this aspect of the case which was of central significance to the Crown’s case at trial.

No evidence was led by the Crown to suggest how the applicant, a man of 59 years of age and 5 foot 6 inches in height, could have achieved such a feat. Senior Constable Moore, the officer in charge, was asked the following questions in relation to how the applicant might have accessed the balcony:

Exhibit 4, referred to in this extract, is Annexure A to these reasons.

Later in her evidence, Senior Constable Moore accepted that there was nothing hanging off the balcony up which a person might have climbed. She was then asked whether it crossed her mind that the applicant might have come into the apartment earlier through the front door. She answered “No. Actually my first thought was due to the broken hose, was that the hose was somehow used”. She did not elaborate on this evidence nor was she re-examined about this answer. No evidence was led as to any hose or its state.

Looking at Annexure A, the image bears out Senior Constable Moore’s evidence that the drain pipe was too far away from the side of the balcony to have been used to ascend all the way to the fourth floor and then access the complainant’s balcony. Nor is it apparent how the applicant could have worked his way upwards from lower apartments. No evidence of any climbing equipment or rope was found on the balcony which Senior Constable Moore said in her evidence she inspected within about 15 minutes of the complainant and Ms Lawrence having fled to the police station, according to the CCTV compilation chronology (see [36] above).

As to whether the applicant could have descended from either the rooftop or level 5, he would either have had to jump from the rooftop of the apartment on to the balcony of the level 5 apartment and then somehow climb over that balcony and manoeuvre his way down to the next level at obvious and extreme risk of falling. Alternatively, he would have had to break into the apartment on level 5, access its balcony, and then make the same descent.

Looking at Annexure B to these reasons, it is equally apparent that the applicant could not have ascended or descended the sheer façade of the building.

The Crown’s submission that “[t]he only available and rational inference was that the applicant used the step ladder in some way to climb on the exterior of the building” and that “[w]hether this was from the ground up or from a higher level down is not known, but the mode of entry was not essential to proof” is not convincing.

There were a number of other available and rational inferences to explain how the applicant appeared on the balcony.

First, it is entirely possible that the CCTV footage which was described as a compilation was incomplete or not wholly intact. The compilation was assembled from some 40 hours of footage. In this context, it is possible that the police officers who viewed the compilation tape may have missed footage of the applicant entering the apartment by an orthodox means. In this context, the following exchange in the course of the hearing of the appeal was significant:

Secondly, there was no precise or detailed evidence that demonstrated that the CCTV cameras would detect all movements on the corridor of level 4 of the apartment building.

Thirdly, to the extent that the accounts by both the complainant and Ms Lawrence as to their surprise at seeing the applicant on the balcony and the implicit inconsistency between both of them being in the living area on to which the front door to the apartment opened so that he could not have entered that way might have been thought to support the inference said to arise from the CCTV footage, it must be recalled that both witnesses departed from the statements they had originally given to police and continued to do so after they had been declared unfavourable witnesses. The complainant, moreover, volunteered that she was hallucinogenic at the time having injected herself with ice.

As to the Crown’s submission as to the applicant’s use of the step ladder (see [61] above), plainly it could not have been used in any descent from the roof of the building down to level 4. Nor, in my opinion, could it have been used in any ascent. The photographic evidence showed that it was a small step ladder apparently half the height of the applicant who was only 5 foot 6 inches tall. At best, it could only have been used once because once it had been used to make some ascent, it could not have been carried up level by level by the applicant.

The applicant’s counsel submitted that the ladder was a red-herring. I am inclined to agree and it was significant that the Crown could not develop a case as to how it may have been used by the applicant.

Compounding these difficulties with the Crown case was the fact that the external ascent or descent on to the level 4 balcony had to have occurred in the dead of night at some time after 2.41am.

The Crown’s submission that “the mode of entry was not essential to proof” cannot alter the fact that, as Mr Hatfield accepted on appeal, it was an essential part of the Crown’s case that the applicant must have accessed the balcony externally. In light of the way the Crown put its case and in circumstances where, by reference to clear visual images of the apartment building, this does not appear to have been physically possible without either a multi-storey ladder or some form of abseiling equipment as to which there was not a skerrick of evidence, it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally and the jury must have had a doubt about this aspect of the case.

The first ground of appeal must be upheld.

The second ground of appeal relates to the admission of tendency evidence in the course of the trial.

There had been a pre-trial argument on 14 March 2019 before Wilson SC DCJ relating to proposed tendency evidence referred to in a Tendency Notice dated 25 February 2019.

Two categories of tendency evidence were permitted. The second ground of appeal only related to the tendency evidence which supported the tendency described by the trial judge in her summing up to the jury as that the applicant had a “tendency to threaten and be physically violent towards women with whom he has an intimate relationship”.

The relevant tendency evidence comprised the 2010 statement of agreed facts used in the applicant’s sentencing in 2010 in relation to conduct in 2008 and to which reference has already been made at [10] above. The statement of agreed facts was read on to the record at the trial by a police officer in the course of giving her evidence. Given the nature of the second ground of appeal, it is necessary to set out the statement in its entirety:

Wilson DCJ rejected the argument put on behalf of the applicant that the probative value of this evidence was substantially outweighed by its prejudicial effect on the applicant. His Honour did not elaborate on his reasons for this conclusion but that was not the subject of any complaint either at the time of delivery of the judgment confirming the pre-trial evidentiary ruling, at the time the evidence supporting the asserted tendency was adduced at the trial, nor in the notice of appeal.

In argument before Wilson DCJ, the significant probative value of the agreed statement of facts was conceded by counsel then appearing for the applicant. He confined his submission to one to the effect that the probative value of the statement of agreed facts was substantially outweighed by the prejudicial effect its admission into evidence would have on the jury. It was put that there was a:

When challenged by Wilson DCJ that any such prejudice could be ameliorated by a direction to the jury as to how to use the tendency evidence, counsel then appearing for the applicant submitted that may be the case on the basis that it is assumed that juries abide by directions, but that it may be a case where “the jury may disregard the court’s directions, having regard to the nature of the offending to which he pleaded guilty to in that the jury may improperly, despite directions, improperly reason that because he assaulted his wife in the past, he is guilty of the charges in the indictment.”

When the evidence was admitted during the course of the trial, the trial judge gave the jury a direction as to the use to which it could be put. Her Honour repeated this direction in her summing up as follows:

The applicant submitted that the proposed evidence was not admissible as it did not have “significant probative value” within the meaning of s 97 of the Evidence Act and that, if it did, the probative value did not substantially outweigh the prejudicial effect upon the applicant, within the meaning of s 101(2) of the Evidence Act (in the form it was in at the time of the trial – it has subsequently been amended – see [88]-[89] below).

The applicant submitted that the evidence constituting the 2008 conduct was different in material respects from the conduct underpinning the charges against him in the current proceedings. The differences included that the 2008 conduct occurred in excess of 9 years prior to the allegations the subject of the trial; that the 2008 conduct occurred in the context of the end of a 30 year marriage whereas the applicant had only cohabited with the complainant for a much shorter period; that there was an element of jealousy involved in the 2008 conduct which was not replicated in the evidence concerning the 2017 conduct; and that there has been a history of severe domestic violence in 2008, whereas there was no physical violence against any person in 2017.

In response, the Crown submitted that the lapse of time from the prior offending (9 years) did not of itself diminish the significant probative value of the evidence in this case; the fact that the applicant’s relationship with the complainant was far shorter than that of his ex-wife did not detract from the applicant’s tendency to react in an uncontrolled and intimidating manner in response to conflict; and that, although the level of violence employed in the present case was lesser than that inflicted on the applicant’s ex-wife, it was relevant to show that the applicant had a tendency to use actual as well as threatened violence.

In relation to “prejudicial effect”, the applicant submitted that the tendency evidence was “powerful and dangerous and unquestionably was taken into account in assessing the intention of the applicant in relations to Counts 4, 6 and 9”. The applicant submitted that the prejudicial effect on the applicant, for the purposes of s 101(2) of the Evidence Act, included the following:

With respect to prejudicial effect, the Crown submitted that there was no danger that the jury would be overwhelmed by the nature of the tendency evidence, either due to the volume of that evidence or the subject matter of it. The Crown submitted that, in particular:

The Crown further submitted that, while the severity of violence in 2008 was slightly greater than in the present matter, it was difficult to see how that of itself would have had any prejudicial effect, as the jury found the applicant not guilty of Counts 1 and 2, which involved actual violence. The Crown thus submitted that the “acquittals tend strongly against the argument that this aspect of the tendency evidence was unfairly prejudicial (or misused by the jury in any way)”.

Section 97(1) of the Evidence Act deals with the tendency rule. It provides as follows:

At the time of the pre-trial ruling of Wilson DCJ as to the tendency evidence, and at the time of the trial, s 101(2) of the Evidence Act provided that:

Section 101(2) thus imposed an additional hurdle on the prosecution in a criminal trial seeking to introduce tendency evidence. Such evidence was required to:

Section 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the 2020 amendments) as follows:

In introducing these changes, Attorney General Speakman said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 at 1916):

The reference in the last paragraph of the passage cited above to a decision of the High Court was to the statement in R v Bauer (2018) 266 CLR 56 at 93; [2018] HCA 40 at [73] (Bauer) that:

For completeness although of no relevance to the present proceedings, the impetus for the 2020 amendments was a suite of recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. In addition to the amendment to s 101(2), whilst the definition of s 97(1) was not amended, a new s 97A was added to the Evidence Act which is specifically directed to the admissibility of tendency evidence in proceedings involving child sexual offences.

In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J (as her Honour then was) explained tendency evidence as follows:

In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 300 FLR 323; [2014] NSWCCA 303 at [359]-[360] (Elomar), the Court (comprised of Bathurst CJ, Hoeben CJ at CL and Simpson J, as her Honour then was) outlined that:

In Hughes v R (2017) 263 CLR 338; [2017] HCA 20 at [70] (Hughes), Gageler J (in dissent as to the result, although the majority judgment did not address this issue) observed as to the problem to which the tendency rule is directed, that:

There have been four significant decisions of the High Court concerning tendency evidence in the last four years, the focus of which has principally been on the meaning of “significant probative value” in s 97(1) of the Evidence Act, namely, IMM v R (2016) 257 CLR 300; [2016] HCA 14 (IMM); Hughes; Bauer; and McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52 (McPhillamy). In addition, there has been a plethora of decisions in relation to tendency evidence in this Court and other intermediate appellate courts in the last decade.

IMM saw the quashing of convictions by five of the seven justices of the High Court on the basis that the tendency evidence admitted at the trial was not of significant probative value in respect of one charge of sexual intercourse with a child under 16 years of age and three counts of indecent dealing with the same child, the accused’s step grand-daughter. The tendency evidence that was led was to the effect that the accused had previously run his hand up his step grand-daughter’s leg whilst she was giving him a back massage. The tendency that this evidence was said to have demonstrated was that the accused had a sexual interest in his step grand-daughter and was prepared to act upon it.

French CJ, Kiefel, Bell and Keane JJ (the plurality) together with Gageler J held that the tendency evidence should not have been admitted on the basis that it did not have significant probative value. Key to this conclusion was that the tendency evidence was that of the complainant herself in a case where its probative effect would have been to boost the credibility of her own account of the facts constituting the alleged offences. In this context, the plurality observed at [62] that in cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.

IMM also resolved a clash between intermediate appellate decisions of the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. At [39], the plurality held that this was to be determined by the trial judge on the assumption that the jury will accept the evidence. Their Honours also held in the same paragraph that “[t]his assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible” or reliable. At [44], their Honours said:

In the same vein, at [52], their Honours said, preferring the approach that had been taken in earlier cases by the New South Wales Court of Criminal Appeal rather than that taken by the Victorian Court of Appeal:

As to the meaning of “significant probative value”, their Honours said at [46]:

At [103], Gageler J made the point, consistent with the plurality, that to warrant the description of having “significant probative value”, the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable.

Hughes, like IMM, involved the resolution of a clash in authorities at intermediate appellate level in Victoria (Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121 (Velkoski)) and New South Wales (R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 (Ford) and R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 (PWD)). In declining to follow Velkoski, the majority in Hughes rejected the view that there must be an “underlying unity” or “pattern of conduct” in the evidence sought to be adduced as tendency evidence before it can be held to have significant probative value.

In Ford, Campbell JA had held that all that was necessary for evidence to qualify as tendency evidence was that it should make more likely, to a significant extent, the facts that make up the elements of the offence charged: at [125]. His Honour rejected the need for tendency evidence to prove a tendency to commit acts closely similar to the acts constituting the offence charged. A similar approach was followed in PWD which rejected the importation of language of “striking similarities, or even closely similar behaviour” which was associated with decisions under the common law.

The Hughes majority held at [39] that:

The majority (at [40]) also endorsed the statement in Ford that “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”, qualifying this statement only by observing that it was not necessary that the disputed evidence have this effect by itself, it being “sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged”.

The majority concluded at [41] that:

Before leaving a consideration of Hughes, it is valuable to note that at [17], the majority made the following observations in relation to the types of prejudice that can be created by the use of tendency evidence. These included that:

The significance of the third of the recent quantity of High Court decisions in this area, Bauer, principally lies in a specific factual context, namely the admissibility of tendency evidence in single complainant sexual offences cases. The Court put aside individual differences in an endeavour to simplify and clarify the approach to be taken in that context consistent with the need to ensure that an accused receives a fair trial: see at [47]. At [50], the Court held that:

At [55], in explaining the plurality’s decision in IMM, the Bauer Court also emphasised that the uncharged act in IMM which was held not to have significant probative value was “relevantly remote in time and of a significantly different order of gravity from the charged offending”: at [55]. At [58], their Honours said, in the context of a multiple complainant sexual offence case:

In Bauer at [61], the Court also held that:

Whilst the inquiry under s 97 of the Evidence Act is only as to whether the evidence in question has “significant probative value”, that determination must include, looking forward to s 101(2) of the Evidence Act, a determination as to not only the fact but also the extent or degree of significance of the evidence’s probative value, since the weighing exercise required by s 101(2) cannot sensibly be undertaken unless and until that matter has been assessed.

Given what the High Court said in Bauer as to the need for an intermediate (and ultimate) appellate court itself to determine whether evidence adduced in support of an asserted tendency “is of significant probative value”, the question arises as to the nature of appellate review of the s 101 weighing exercise.

It seems to me that, given what was said in [61] of Bauer as to the nature of the review of the significance of the probative value of the tendency evidence, at least if the appellate court departs from the trial judge’s assessment of that evidence, including as to the degree of significance of the evidence, the s 101(2) weighing process must also be considered afresh by reference to the correctness standard, notwithstanding the discretionary nature of the s 101(2) exercise cf. Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [60] (Saoud); R v Knight [2015] NSWCCA 34 at [31]-[32] (Knight). That this is so is supported by the Bauer Court’s language at [82] that the “trial judge was correct not to exclude TB's tendency evidence pursuant to s 101”; see also Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [39] (RDT), where Basten JA said “[t]his Court must decide for itself whether, in the terms of the section, ‘the probative value of the evidence substantially outweighs any prejudicial effect’”.

The High Court’s most recent decision on tendency evidence is McPhillamy. This case involved tendency evidence which was led in the context of a charge of six counts of sexual offences against “A” said to have been committed on two occasions between 1 November 1995 and 31 March 1996 in the public toilets of the cathedral of St Michael and St John at Bathurst. At the time of the alleged offences, “A” was an 11-year-old altar boy under the supervision of the appellant.

The tendency evidence that was admitted in this case was evidence given by “B” and “C” to the effect that the appellant sexually assaulted both of them separately in 1985 when they were 13 years old and at a catholic boarding school in Bathurst. Their evidence was unchallenged at the trial and the jury was given directions both at the time that each of “B” and “C” gave their evidence and in the course of the summing up to the jury as to the use that might be made of “B” and “C”’s evidence.

The plurality noted that the directions to the jury were not the subject of complaint nor was there any challenge to the sufficiency of the trial judge’s warning not to reason that, because the appellant may have committed a crime and had been guilty of some misconduct, he was generally of bad character and for that reason was a person likely to have committed the offences with which he was charged.

In the Court of Criminal Appeal, Harrison and R A Hulme JJ dismissed the appeal against the use of the tendency evidence of “B” and “C”. Meagher JA, on the other hand, would have upheld the appeal on the basis that the evidence said to support the tendency was too general so as to be of significant probative value within the meaning of section 97(1) of the Evidence Act.

The High Court unanimously upheld an appeal from the decision of the Court of Criminal Appeal and supported the analysis of Meagher JA. In particular, at [30], the plurality drew a distinction between evidence which was relevant to proof that the appellant committed the offences against “A”, on the one hand, and a conclusion that the evidence was “capable of significantly bearing on proof of that fact”. The plurality concluded at [32] that:

In separate reasons, Edelman J agreed with the plurality and expanded upon the inadequacy of the link between the conduct which was the subject of the evidence of “B” and “C” and the alleged offending against the complainant “A”. At [35], his Honour emphasised the generality of the asserted tendency, the fact that the evidence was given only by two witnesses relating to two incidents and that those incidents occurred a decade before the date of the alleged offences against “A”.

McPhillamy, read in conjunction with IMM, highlighted the fact that, whilst striking or even close similarity is not required for tendency evidence to have significant probative value, the less similar the tendency evidence is, the less likely it is to qualify as being of “significant probative value”. A similar observation had been made in a number of decisions of the New South Wales Court of Criminal Appeal in decisions predating the quartet of recent High Court decisions: see, for example, Saoud at [39]; BP v R; R v BP [2010] NSWCCA 303 at [108] (BP); and DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [180] (DAO). So also, even if evidence is held to be of significant probative value, how significant it is (a matter that is relevant to the s 101(2) weighing exercise) may also be affected by the degree of similarity to the facts underpinning the offences alleged.

None of the quartet of recent High Court decisions on the subject of tendency evidence has focussed closely on the requirement in s 101(2) of the Evidence Act. In addition to these decisions, however, there has been a plethora of decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts that have considered the tendency evidence provisions in the Evidence Act and their application. It is a valuable discipline from time to time as the case law develops to attempt to isolate and extract from that corpus of authority the relevant principles and salient judicial observations that have been made in relation to this important area.

Apart from the principles from the four recent High Court decisions already noted, a review of the authorities, coupled with my own observations in respect of the interrelationship between ss 97 and 101(2) of the Evidence Act, supports the following propositions:

Obviously enough, the applicant’s challenge to the admission of the tendency evidence in the current case falls to be considered by reference to the Evidence Act as it was prior to the 2020 amendments. Of particular significance in this context was the requirement that any significant probative value of the evidence sought to be tendered substantially outweigh any prejudicial effect.

Bauer requires this Court to reach its own view as to the significance of the probative value of the tendency evidence: see at [110] above.

In my opinion, and taking account of the principles summarised above, the tendency evidence relied upon in the present case, whilst not irrelevant, was not of “significant probative value” for the following reasons:

In R v Joiner (2002) 133 A Crim R 90; [2002] NSWCCA 354 (Joiner), evidence was adduced from three previous relationships which the appellant had been in spanning from 1985-1992, 1995-1996 and 1996-1997, to display “a tendency, in respect of women with whom he had a relationship, to react violently towards them over the most minor situation… a tendency on the part of the accused to explode in situations where there is either no provocation or little provocation. The explosion is directed towards a wife or domestic partner.” The appellant had been found guilty of one count of murder in 2000, the deceased being his wife. Hodgson JA (with whom Simpson J and Smart AJ agreed) reasoned that the evidence did have significant probative value, as “evidence of inability to control anger, and a tendency to respond to minor irritations with violence against women with whom the appellant was having a relationship, was powerful evidence to refute the version of events given by the appellant, and to support an inference that the injuries suffered by the deceased were caused by a violent assault”: at [36].

At least three factors of Joiner differentiate it from the current case. First, the evidence related to three different relationships. Secondly, in respect of two of those relationships, they were far more proximate in time to the conduct the subject of the offence charged than in the present case. Thirdly, the tendency contended for was expressed with more specificity than in the current matter.

Had I not been of the opinion that the probative value of the evidence did not warrant the epithet “significant”, I would have reached the view that its probative value did not substantially outweigh its prejudicial effect, even allowing for the ameliorative effect of the trial judge’s directions to the jury which I have set out at [78] above.

Particular danger of prejudice lay in the likely emotional (and understandable) response by the jury to the degree of violence inflicted by the applicant on his former wife, his callous indifference to her pain and the cruelty (including emotional cruelty to his former wife) entailed in the threat to break the neck of his wife’s dog.

I would not attribute any significance to the matters referred to in (a) and (e) of the applicant’s submissions referred to at [82] above. As to (a), the tendency evidence derived from a statement of facts to which the applicant had agreed. The manner in which the evidence was adduced in these circumstances could not be a material cause of prejudice in view of the fact that the applicant had assented to the description of the facts in the agreed statement. As to (e), whilst it is true that the applicant could not have anticipated the statement of agreed facts being used 9 years later in a wholly different context, that does not detract from the fact that he assented to the description of facts against his interest in 2008.

It follows from the above that the appeal from the applicant’s conviction in respect of Counts 4, 6, 8 and 9 should be allowed and those convictions set aside. The appeal did not extend to the applicant’s convictions in respect of Counts 11 and 12, in respect of which indicative sentences were given of four months each.

It would, in these circumstances, be necessary to resentence the applicant taking into account that he has already served the non-parole period of his sentence and has already served 2 months of a 12 month parole period, and where the period served exceeds the indicative periods of sentence in respect of both Counts 11 and 12, not allowing for any cumulation.

As, however, both Walton and Beech-Jones JJ disagree with my conclusion in relation to the ground of appeal relating to the admission and use of tendency evidence, I agree that, in those circumstances and on the basis that a majority of the Court would dismiss the appeal on that ground, it is appropriate that the orders proposed by Beech-Jones J be made.

WALTON J: It is unnecessary to traverse the facts and circumstances of this matter as they are set out in the judgment of Bell P.

In respect to ground 1, I agree with Bell P. After my own careful consideration of the evidence, I am also not satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect to count 9. Ground 1 should be upheld.

In respect to ground 2, I respectfully agree with Beech-Jones J in relation to the admissibility of the tendency evidence. For the reasons enunciated by his Honour, I am satisfied that the tendency evidence admitted had significant probative value. The evidence supports not only that the applicant possessed the tendency as at the date of the subject charges, that is, March 2018, but also that he acted upon it (see McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [27]). Furthermore, given the specific terms of the direction given by the trial judge, I also do not accept that the admission of the tendency evidence was likely to lead to the jury having some form of adverse emotional response that would distract them from considering the evidence in the manner in which they were directed.

Although leave to raise this ground should be granted, ground 2 should be otherwise dismissed.

Insofar as the further disposition of the appeal is concerned, I agree with the orders proposed by Beech-Jones J.

BEECH-JONES J: The facts and circumstances of the appeal are set out in the judgment of Bell P. I agree with his Honour’s reasons for upholding ground 1 of the appeal which concerns count 9 of the indictment and that is so regardless of whether or not the tendency evidence described below is admitted in relation to that count. In my view, count 9 failed because the “enter” element of the charge was not proved. The tendency evidence that was adduced was probative of whether the applicant had the “intention of causing fear” etc.

Ground 2 of the appeal concerns the admission of tendency evidence. The jury was directed that it could use that evidence in relation to counts 1 to 10 on the indictment but not counts 11 and 12. The jury acquitted the applicant on counts 1 to 3 but convicted him on counts 4, 6, 8, 9, 11 and 12. (Counts 5 and 10 were alternative counts which either did not arise or were not pursued). The applicant’s submissions on this ground do not expressly state that it only concerns the applicant’s conviction on counts 4, 6, 8 and 9. However, I will treat the submissions as so confined although my conclusion would apply equally to any attack on the conviction on counts 11 and 12. In that regard, I respectfully disagree with Bell P’s conclusion in relation to the admissibility of the tendency evidence. My reasons for this are as follows.

In a case such as this, an assessment of whether the evidence sought to be led as tendency evidence has significant probative value involves a “consideration of two interrelated but separate matters”, namely, the “extent to which the evidence supports the [alleged] tendency” and the “extent to which the tendency makes more likely the facts making up the charged offence” (Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41]; “Hughes”). A conclusion that such evidence has a high degree of probative value is likely “where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged” ([id]).

In this case, the tendency identified in the trial judge’s summing up was that the applicant had a tendency “to be physically violent towards women with whom he is in an intimate relationship”, although the trial judge also referred to a tendency “to be threatening and physically violent towards women with whom he had an intimate relationship” (see [78]). Insofar as one formulation refers to threatening behaviour and the other does not, no complaint was made by the applicant. Otherwise, nothing turns on the difference between whether the tendency related to someone with whom the applicant was “in” a relationship or someone with whom he “had” a relationship, given that the charges the subject of the appeal relate to what was, on any view, a breakdown of his relationship with Ms Walters, even if temporary.

The facts that are said to support the alleged tendency are the agreed statement of facts set out in the judgment of Bell P (at [74]). Those facts concern acts of violence and threats by the applicant towards his spouse of 30 years committed in 2008. The agreed facts relate to the breakdown in the relationship. During that confrontation his wife attempted to leave him (“started packing some clothes”) and then later left him when it was safe to do so (“[a]bout a week later”). The conduct of the applicant included threats of violence against his wife and their pet (“I am going to break your jaw”) and serious actual violence in the form of punches to her head and rib cage, the latter of which fractured three ribs. The conduct occurred over a sustained period.

The first matter that Hughes requires to be considered is the extent to which the evidence adduced supports the alleged tendency. In a case such as this, it encompasses inquiring as to whether the evidence supports the applicant possessing the tendency as at the date of the subject charges, in this case March 2018 (see McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [26]; “McPhillamy”).

This evidence and, to the extent necessary, other evidence adduced at the trial, strongly supports proof that the applicant possessed the alleged tendency as at March 2018. In his written and oral submissions, counsel for the applicant emphasised the period of over nine years that elapsed between the applicant’s attack on his ex‑wife and the events the subject of the charges against him. However, that period must be considered in the context of the precise tendency that was alleged and the other evidence at the trial. As noted, the alleged tendency was to be violent or threatening towards women with whom he had an intimate relationship. It was not a tendency to be violent to women generally. Of its nature, that form of tendency will only manifest if, and when, the applicant forms a relationship that breaks down. The evidence adduced at the trial was to the effect that the applicant and Ms Walters commenced their relationship in February or March 2016. They started living together in October 2017 after he finished working interstate. Although the applicant denied it, the evidence adduced by the Crown suggests that their relationship had broken down as at March 2018. There was no evidence that the applicant formed any other relationship between the breakdown of his marriage and the commencement of his relationship with Ms Walters.

It is trite to observe that a consideration of the admissibility of tendency evidence is fact specific. Nevertheless, it is useful to compare and contrast this case with the facts of McPhillamy because, in that case, a gap of a decade between the prior acts said to demonstrate the alleged tendency and the charged events was of particular significance to the conclusion that the evidence of those prior acts did not have significant probative value. The appellant in McPhillamy was an acolyte of a Church. He was alleged to have engaged in mutual masturbation and oral sex with an eleven-year altar boy (“A”) who was under his supervision (at [3] to [4]). The Crown sought to adduce evidence that a decade earlier when the appellant was a housemaster at a religious school, he had fondled the genitals of two boys (“B” and “C”) and performed oral sex on one of them. Both of those boys were under his supervision at the boarding house (at [6] to [7]). The Crown asserted that this evidence demonstrated a tendency on the part of the appellant to act on a sexual interest in young teenage boys under his supervision (at [22]).

In relation to the first step identified in Hughes, it was held that the evidence of the events at the school a decade prior was only weak evidence that the appellant possessed the tendency at the time of the events that gave rise to the subject offences. Hence, Kiefel CJ, Bell, Keane and Nettle JJ observed (at [30]):

The emphasised portion of this passage confirms that the significance of the gap between the alleged offending against “B” and “C” on the one hand, and A” on the other, fell to be assessed against the undisputed evidence that, in the intervening period, the appellant had supervised (many) other boys of similar ages. This stands in strong contrast to the evidence and type of tendency alleged by the Crown in this case which concerned threats and violence directed to a woman at the point of a breakdown of a relationship when there was no evidence that the applicant had been in a relationship between the two relevant sets of events.

As noted, the second and related inquiry required by Hughes is to consider the extent to which the tendency makes more likely the facts of the charged offence, that is, does the tendency strongly support the proof of a fact that makes up the offence charged? In the passage from the summing up set out in the judgment from Bell P at [78], the trial judge directed the jury to consider the tendency evidence in relation to counts 1 to 10 only, as those counts all concerned Ms Walters. In particular, with those counts it was either an element of the charge or a fact highly relevant to the Crown case that the applicant either assaulted Ms Walters, threatened her or intended to do so after he broke into her premises. As noted, it is self‑evident from the nature of the Crown case that, on its case, the relationship was on the verge of breaking down, or had broken down, even though it may have resumed in the future.

A contention that a particular tendency strongly supports the proof of a fact that makes up the offence charged, can often fail because the tendency that may have been proven can only be expressed at such a high level of generality that in substance it does not sufficiently bolster proof of the relevant fact (and otherwise can be prejudicial). Hence, in McPhillamy, Kiefel CJ, Bell, Keane and Nettle JJ observed as follows (at [31]):

This passage reveals that, in McPhillamy, the formulation of the alleged tendency by reference to the appellant acting on a sexual interest in young teenage boys he “supervised” was too general, in that the forms of supervision exercised over “B” and “C” on the one hand, and “A” on the other, differed dramatically. Edelman J made the same point (at [36]).

Although it is not a condition of admission of tendency evidence that it has similarities with the conduct in issue (Hughes at [39]), similarities between such events can still have significance provided that they are addressed in the manner Hughes dictates. In his written submissions, counsel for the applicant pointed to the following matters as demonstrating a relevant difference between the events of 2008 and the events surrounding the charges the subject of this appeal:

It follows from the above that, consistent with Hughes and McPhillamy, these suggested differences are to be assessed in the context of considering the extent to which the evidence supports the alleged tendency and the extent to which the tendency makes more likely the facts of the charged offence, including whether it indicates that the tendency is too general to do so.

The first, second, third and fourth of the above matters has already been addressed. For my part, I do not see any relevant difference in this context between the violent breakdown of a 30‑year relationship and the violent breakdown of a 2‑year relationship. The significant matter is the tendency of the applicant to become threatening and violent as the relationship came under stress. As for the fifth matter, nothing in the evidence concerning either set of events suggests that anything turned on the location the relevant couple resided at, or for how long. As for the sixth matter, on the Crown case the relationship between the applicant and Ms Walters had become hostile as at the end of March 2018. The seventh matter suggests that both sets of events were very similar. As for the eighth and ninth matters, the material concerning the 2008 events do not suggest that Mr Vogt played any part in the applicant’s threatening and violent conduct. The applicant did not threaten or assault him. As for the tenth, eleventh and thirteenth matters, it is the case that the 2008 events involved actual acts of violence. However, as noted with counts 1 to 10, it was an element of the charge or a fact highly relevant to the Crown case that the applicant either assaulted Ms Walters, threatened her or intended to do so after he broke into her premises. In particular, with counts 4, 6 and 8 the Crown case was that, if the applicant had been able to successfully break in, then he would have carried out an act of violence. The twelfth matter supports the existence of the tendency, although in the absence of further details it cannot be taken too far. Properly analysed, the fourteenth matter is an instance of a threat. The Crown case against the applicant included the making of threats.

Accordingly, I am satisfied that the tendency evidence had significant probative value (Evidence Act, s 97(1)(b)).

The applicant also contended that the tendency evidence adduced by the Crown was inadmissible under s 101(2) of the Evidence Act because it was not established that its probative value substantially outweighed its prejudicial effect. I agree with the reasons given by Bell P at [130] for rejecting the prejudice asserted by the applicant in his submissions. Otherwise, I do not accept that the admission of this evidence was likely to lead to the jury having some form of adverse emotional response that would somehow distract them from treating this evidence in a manner consistent with the basis for its admission. The trial judge’s direction specifically warned them in that regard (see [78]). Juries can generally be trusted to act in accordance with the directions that are given. If empirical evidence is required for that contention then it is found within this case where the jury acquitted the applicant on some of the charges that the tendency evidence was admitted to prove, namely counts 1, 2 and 3.

I would grant the applicant leave to raise this ground but dismiss the ground.

It follows from my agreement with Bell P in relation to ground 1 that I consider that an acquittal should be entered on count 9 of the indictment. However, I consider that the applicant’s challenge to his conviction on counts 4, 6 and 8 (and the remaining counts) should be dismissed.

The applicant originally sought leave to appeal from his aggregate sentence of imprisonment on counts 4, 9, 11 and 12 but the application was not pressed. In light of his acquittal on count 9, the issue arises as to what should be done with that sentence.

The total of the aggregate sentence imposed for counts 4, 9, 11 and 12 was 22 months imprisonment commencing 5 October 2019 and expiring 4 August 2020, with a non‑parole period of 12 months. Thus, although the applicant’s non-parole period has expired, he is still subject to parole conditions. The indicative sentences for each of counts 4, 9, 11 and 12 was 12 months, 12 months, 4 months and 4 months imprisonment respectively. The indicative sentence for count 9 was clearly a large contributor to the overall aggregate sentence that was imposed. On any view the aggregate sentence cannot stand in light of the applicant’s acquittal on count 9. That said, having reviewed the sentence judge’s remarks on sentence I agree with the indicative sentences for counts 4, 11 and 12.

Overall, I consider it appropriate to impose a fresh aggregate sentence of 14 months which expired on 5 December 2020. The effect of such a sentence is that the applicant would no longer subject to any parole conditions.

Accordingly, the orders that I propose are: