Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hammoud v R [2020] NSWCCA 339 Hearing dates: 27 November 2020 Decision date: 17 December 2020 Before: Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Bellew J at [72] Decision: Leave to appeal refused. Catchwords: CRIMINAL LAW – appeal pursuant to s 5F – interlocutory decisions – whether error in refusing an application for separate trials – whether failure to properly construe and apply ss 97, 101 of the Evidence Act 1995 (NSW) in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act. Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) Cases Cited: BM v R [2017] NSWCCA 253 DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 DSJ v R; NS v R [2014] NSWCCA 77 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Dent [2016] NSWSC 99 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Category: Principal judgment Parties: Mustapha Hammoud – Applicant Regina – Respondent Representation: Counsel: G Wendler – Applicant E Balodis – Respondent Solicitors: Criminal Law Group – Applicant Solicitor for Public Prosecutions – Respondent File Number(s): 2017/315486; 2017/360392 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 05 May 2020 Before: Hanley SC DCJ File Number(s): 2017/315486; 2017/360392 JUDGMENT 1. BATHURST CJ: I agree with Hoeben CJ at CL. 2. HOEBEN CJ at CL: Nature of proceedings The applicant stands charged with six counts, four of which were alleged to have been committed against the first complainant on 16 October 2017, the other two against the second complainant on 22 April 1995. Both incidents involved an allegation that the applicant broke into the premises of the complainant and committed sexual offences against that complainant. The Crown justified the joinder by a tendency notice dated 29 October 2018. 1. The applicant sought a separate trial of Counts 5 and 6. His Honour Judge Hanley SC refused the application. The applicant now seeks leave to appeal from that decision, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). Crown case 1. The applicant has been charged with the following offences: Count No. Offence/Act & Section 1 Aggravated break and enter and commit serious indictable offence (s 112 (2) of the Crimes Act 1900). 2 Assault with act of indecency ((former) s 61L of the Crimes Act 1900). 3 Assault with act of indecency ((former) s 61L of the Crimes Act 1900). 4 Act of indecency ((former) s 61N(2) of the Crimes Act 1900). 5 Aggravated break and enter and commit felony ((former) s 112 (2) of the Crimes Act 1900). 6 [Alt. to 5] Sexual intercourse without consent (s 61I of the Crimes Act 1900). Counts 1-4 – Offences against the first complainant – October 2017 1. As at 16 October 2017, the first complainant was 75 years old and the applicant was 52 years old. The first complainant lived alone in a one bedroom unit in Liverpool. 2. At about 2:30am on Monday, 16 October 2017, the first complainant was at home wearing a t-shirt and underwear. She was cutting up an apple in the kitchen when she heard a loud screeching noise from the street. The applicant took the flyscreen out of the window frame in the first complainant's bedroom and entered the premises. She went into her living room to have a look and saw the applicant coming out of her bedroom. 3. The first complainant described the applicant as 165cm tall, 40-50 years old, medium build with short-cropped hair, light skin and a wart or mole on his right check level with his eye. The applicant said something softly in English, but the first complainant could not understand him. The only word she understood was "bed". Count 2 – Assault with act of indecency 1. The applicant moved towards the first complainant, took her by the shoulders and stroked her arms up and down. The applicant bent over and stroked the first complainant's legs. She took several steps backwards. Count 3 – Assault with act of indecency 1. The applicant took the first complainant's hand and put it onto his penis underneath his pants. She again moved away from the applicant. The applicant walked over to a small black table and took the key to the unit off her car keys. Count 4 – Act of indecency 1. The applicant moved towards the first complainant again and grabbed her hand. She repeatedly said in English "I am very old. I am 75 please leave". She pushed the applicant towards the front door of the unit. When they were close to the door, the applicant unzipped his pants and exposed his penis to the first complainant. Count 1 – Aggravated break and enter and commit serious indictable offence 1. The applicant poked the complainant in the stomach with his penis several times. The applicant took her hand and tried to get her to touch his penis. She wrenched her hand away and yelled "go away". 2. The applicant tried to open the front door but it was locked. The first complainant got the spare keys and unlocked the door. The applicant left the premises and she locked the door straight away. Immediate complaint 1. At 10:42am, the first complainant called her daughter and told her that someone had broken in. Her daughter organised for a locksmith to attend the property and change the locks on the doors. Her daughter and her husband went to Bunnings Warehouse to pick up some timber to reinforce the windows and build a frame around it before they drove to the first complainant's house. Police Investigation 1. When her daughter arrived, the first complainant told her what had happened. Her daughter called Liverpool Police Station directly. 2. Police, including crime scene officers, attended the premises at about 3:00pm. 3. On 1 November 2017, the first complainant participated in a photo line-up identification in which she identified photograph number 15 as a person who looked similar to the man who was in her house but he did not have a moustache. Photograph number 15 is not a photograph of the applicant. 4. The applicant's fingerprints were found on two locations inside the first complainant's unit: 1. F3 - External glass of the bedroom window; and 2. F5 - Southern side of the bed head frame. 1. The applicant's DNA was located on the following areas of the shirt worn by the first complainant: 1. R2 - Front, right shoulder; and 2. R3 - Front, left shoulder. 1. On 18 October 2017, the applicant attended Liverpool Police Station where he was arrested and cautioned. The applicant was read his Pt 9 rights in accordance with Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) (LEPRA) with the assistance of an interpreter. The applicant declined to participate in an electronically recorded interview. A forensic procedure was carried out on the applicant. 2. On 3 November 2017, police received a DNA link notification of a match between the applicant's DNA and a DNA sample collected during the investigation into a break and enter offence in 1995. Count 5 – Aggravated break and enter and commit felony against the second complainant Count 6 – Sexual intercourse without consent against the second complainant 1. As at 22 April 1995, the second complainant was 40 years old and the applicant was 29 years old. The second complainant lived in Bathurst Street in Liverpool. Her residence was about 1km from the residence of the first complainant. 2. On Saturday 22 April 1995, the second complainant attended a birthday party at Clinches Pond, where she consumed about eight drinks of Bacardi and Coca-Cola. At about 11:30pm, she decided to leave the party. She tried to call for a taxi but none were available, so she decided to walk home. Two boys volunteered to walk the complainant home for safety. When they arrived at her home, she invited them in for a coffee, which they accepted. The boys played a game of pool and left the premises at about 2:00am. The second complainant closed and locked the front door as she said goodbye. 3. She undressed and got into her bed, wearing only underwear. About ten or fifteen minutes later, she was woken by the sound of her dog barking in the hallway. The applicant grabbed the second complainant around her throat with one hand, restricting her breathing. While still holding her throat, the applicant rolled her from her side onto her back and climbed on top of her. The applicant let go of her throat and removed her underwear. The applicant used his knees to force the second complainant's legs apart. The applicant used his body weight to pin her down and put his hand back around her throat. The applicant inserted his penis into the second complainant's vagina and had sexual intercourse with her for about five minutes before ejaculating inside her vagina. The second complainant was too scared to make a sound or struggle against the applicant. The applicant was not wearing a condom at the time of the assault. 4. The applicant climbed off the second complainant, pulled his pants up and left the house via the front door. The applicant closed the door behind him as he left. 5. The second complainant was too scared to move and remained in her bed for about five minutes. She got out of bed, walked to the bathroom and turned the light off. She had blood running down her leg. The second complainant was menstruating at the time and had a tampon inside her vagina during the assault. It took her several minutes to remove the tampon. The second complainant had a shower and then contacted police. Police investigation 1. Police attended the premises and spoke with the second complainant. There were no visible signs of forced entry. Police seized the second complainant's bedsheet and sent it off for examination. Semen was detected and a seminal stained area was retained for further testing at a later date. 2. The second complainant attended Liverpool Hospital where a Sexual Assault Investigation Kit was administered. During the examination, a number of DNA samples were obtained from her vagina. Dr Ahmed Moussa noted that the second complainant had a sore throat and that her neck was tender corresponding to the pharyngeal area. 3. When the second complainant returned home, she called a friend to tell her what had happened. That friend passed away in 2010. 4. On 28 November 2017, the applicant again attended Liverpool Police Station. He was placed under arrest and cautioned. The applicant was read his rights in accordance with Part 9 of LEPRA with the use of an interpreter. The applicant participated in an electronically recorded interview with police, during which he stated (with the assistance of an interpreter): 1. he did not sexually assault the second complainant; 2. he was at a club on Macquarie Street playing the poker machines at about 11:30pm and he lost all of this money; 3. he wanted to go home but he had no car or money, so he walked; 4. he walked two blocks and stopped to light a cigarette and the second complainant approached him and asked for a cigarette; 5. she was accompanied by a dog; 6. he gave her a cigarette and they spoke for about five minutes; 7. the second complainant asked if he had any money and he said no; 8. she invited him back to her place; 9. she was wearing a nightgown and no undergarments; 10. they went through the front door not the window and she sat him on the edge of the bed; 11. the second complainant put her hand on his thigh and said: "are you sure you don't have any money?" 12. he put his arm around her shoulder and put his other hand on her breast and rubbed it; 13. the second complainant took her clothes off and the applicant pulled down his pants and underpants; 14. she lay down, he went on top of her and they had sex; 15. he did not wear a condom; 16. he ejaculated inside the second complainant; 17. it was not done by force, it was done with her consent; 18. she never complained, pushed him away or screamed, it was done willingly; 19. he found a bit of blood on him and the second complainant told him that she had her period; 20. he was worried that maybe she had AIDS and he would contract a disease; 21. if he knew she had her period he would not have gone near her at all; 22. he wiped himself in the toilet and then went outside and had a cigarette; 23. he gave the second complainant three cigarettes and then left; 24. he does not break into people's homes and he does not rape people or ladies; 25. the applicant said that maybe she was "not meant to be all there"; and 26. the applicant did not know why she would go and complain to the police. He did not know what happened to her brain. He could not say if she was a junkie on drugs or she was crazy. 1. The applicant consented to a forensic procedure during which a buccal swab was obtained. 2. The DNA of the applicant was located on: 1. the bedsheet from the second complainant's bedroom; and 2. the semen sample taken from a high vaginal swab. Tendency Evidence Notice 1. A Tendency Evidence Notice, dated 29 October 2018, was served by the DPP. The content of the notice was as follows: "Notice is hereby given that the Prosecution presently intends to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, i.e. evidence of the character, reputation or conduct of a person, or tendency that a person has or had 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. 1. The person whose "tendency" is the subject of the evidence sought to be adduced is the accused. 2. The tendency sought to be proved is his tendency to act in a particular way, namely, to break and enter into homes of women who live alone in the early hours of the morning and perform sexually motivated acts on the women without their consent. 3. The substance of the "tendency" evidence which the Prosecution intends to adduce is contained within the following document which previously has been served upon you. ..." Applicant's Notice of Motion 1. By notice of motion dated 9 April 2020, the applicant sought an order that counts 5 and 6 be severed from the indictment and that those counts be tried separately from counts 1 to 4 on the indictment. 2. Although not sought as an order in the motion, in submissions in support of the motion the applicant challenged the tendency evidence notice on the basis that there was a lack of a sufficient similarity between the incident giving rise to counts 5 and 6 and that giving rise to counts 1 – 4. The applicant submitted that by reference to the details set out in the Crown Case Statement, the degree of force used in the 1995 conduct was significantly more violent than that used in the 2017 incident. The applicant submitted that the nature of the sexual conduct was also very different, i.e. penile rape involving physical domination compared to non-violent, non-penetrating poking of the stomach. 3. The applicant submitted that there were insufficient features of the offending which linked the 1995 offences with those in 2017. The applicant submitted: "It is conceded that there are bare similarities in that there is a break and enter in the early hours of the morning with respect to both offending periods, however the nature of the offending is entirely different. Without such a [commonality] in feature, it is submitted, evidence that the accused has committed an offence against one complainant is not significantly probative of the accused having committed offences against another complainant." 1. The applicant also relied upon the significant temporal gap of 21-22 years between the tendency giving rise to the charged conduct. The applicant submitted that this temporal gap significantly diluted the tendency sought to be relied upon by the Crown. 2. The applicant relied upon the provisions of s 101(2) of the Evidence Act 1995 (NSW) (the Act). He argued that there was a real danger that when a jury considered the 1995 tendency evidence they would give insufficient weight to the requirement of proof beyond reasonable doubt in relation to the 2017 offences. The applicant submitted that the 1995 tendency evidence was likely to provoke an emotional response causing members of the jury to give more weight to that evidence than it deserved, thereby giving rise to unfair prejudice to the detriment of the applicant. 3. In summary, the applicant put forward the following submissions as to why counts 5 and 6 should be severed from the other counts and as to why the tendency evidence relied upon by the Crown was not significantly probative. Severance of Counts 5 and 6 on the indictment 1. The jurors' minds would be influenced consciously or subconsciously adversely to the applicant by reason of the applicant being charged with offences against two persons rather than one. 2. The jurors' minds would be contaminated by the 1995 counts. 3. Sexual offences were likely to arouse prejudice. 4. Evidence of the 1995 counts was not cross-admissible with respect to the 2017 counts. 5. Section 29(1)(c) of the Criminal Procedure Act 1986 (NSW) (CPA) was not satisfied, given the dissimilar factual matrix between the 1995 and the 2017 incidents. Arguments as to why the tendency evidence is not significantly probative 1. The lack of similarity between the 1995 and 2017 conduct was well short of being significantly probative. 2. The Crown's reliance on a generalised tendency to "perform sexually motivated acts without consent" lacked particularity. 3. There were insufficient features in the offending which linked the 1995 offences with the 2017 offences. 4. The significant temporal gap of 21 years diluted the tendency evidence to such an extent that it could not be said that such evidence is significantly probative. Decision of primary judge 1. His Honour Judge Hanley SC delivered judgment in relation to the notice of motion on 5 May 2020. 2. Relevantly, his Honour found (AB 61.3): "Before considering whether the counts should be severed as sought by the applicant it is appropriate to determine whether the tendency evidence can be admitted at trial in relation to both incidents. In the event the tendency evidence is available to the Crown then that would undermine any application for the counts to be separated in accordance with the two events. Relevance/Probative Value I am satisfied the evidence is relevant in accordance with the definition under the Evidence Act. It is capable of impacting upon the principle fact in issue. However, it is important to determine whether that evidence, although relevant, has significant probative value. The Crown says the alleged tendencies are more likely to have occurred as alleged on more than one occasion and whilst the sexual acts differ between the two incidents the Crown says it is not necessary to prove such a consistency. The Crown asserts for the acts to have significant value they must share some interrelated connection but it does not need to prove it has underlying unity or pattern of conduct. The Crown has referred me to a number of authoritative decisions of the superior Courts in support of its application. It says the disparate nature of the alleged offending does not diminish any probative value in contradiction to the submission by the applicant. The parties have identified, and I accept, that there are some points of difference between the two events. The Crown points to the facts, and relied upon by the defence, that there was more force used by the assailant in the 1995 allegations and the nature of the sexual conduct and duration of offending differed between the two events. The Crown whilst accepting these differences submits that does not undermine their application that the evidence should be adduced as tendency evidence. The Crown submits what should be considered is the circumstances in which the acts occurred and the probative value is significant as identified by the fact the accused broke into and entered the complainant's [sic] premises at the time he did and performed, generally, sexual offences against each complainant. The fact there are different sexual acts alleged in respect of each event, the Crown says, does not deprive the tendency of its significant probative value. Despite any disparity in the alleged acts, the Crown submits, the overall similarity in the circumstances in which the acts occurred when seen in the context of their probative value indicates there is no reduction in its significance. Despite any generalisation of the sexual acts the Crown says that does not detract from its probative value. In particular the Crown points to the almost identical circumstances where it alleges (the accused) a male, broke and entered into premises and performed sexually motivated acts. The Crown says that does not diminish the fact that they were different sexual assaults and does not derogate from its probative value. The Crown asserts there are important underlying factors when assessing the evidence and the manner in which a trial would proceed. The Crown points to the fact the accused has made an interview in which he admits he was present at [the second complainant's] premises as alleged but that he had consensual sexual intercourse with her. That is in contrast to what appears to be his denial of the fact he was in any way present during the events in 2017 at [the first complainant's] premises. The issue the Crown says is that not that the sexual interest relates to a particular state of mind but rather that the accused acts in a particular way in that the sexually motivated acts are strictly linked to the allegations where the accused having gained access to the premises without permission by breaking and entering then committed offences that fall within a broader categorisation of sexual offences. The Crown also points to the circumstantial evidence of his fingerprints being detected in the 2017 premises and his DNA not being excluded as a contributor to that DNA profile located on the complainant's clothing. That has to be contrasted to the 1995 matters where his DNA, or a profile consistent with his, was located in circumstances where he agrees he was present. The Crown says there is an inter-play between the two allegations which are linked in relation to the accused by those circumstantial and objective pieces of evidence that point to him being the perpetrator of both offences. The Crown seeks to rely upon counts 1 - 4 and counts 5 and 6 inter-relatedly to permit a jury to rely upon each count in determining the accused's guilt as a result of the tendency it says he exhibits. The Crown also submits another factor that could be taken into account is an assessment of the improbable explanation it says he gave in his interview in respect of the offences upon [the second complainant]. Despite the differences that exist the Crown says there is an underlying character that is not dissimilar to the facts of events of tendency relied upon. It points also to the decision of Aravena v R [2016] NSWCCA 288, in particular [48] of the Crown's submissions. In that case there was only one prior event, as here, and a lapse in time between the two events. In Aravena that gap was eight years and here 22 years. The Crown says that does not automatically result in the evidence not having probative value and a capacity to be adduced as tendency evidence. The significance of the admission of the evidence as cross-tendency goes to the critical fact in issue being whether the accused was the perpetrator on both occasions. Underlying the significance of the two events being linked is the important evidentiary factors being that DNA profile evidence of the perpetrator exists at each incident and additionally his fingerprints were located in relation to the 2017 event. The Crown submits these factors provide additional evidence of significant probative value particularly where the accused admits to being at the home of [the second complainant] and having consensual sexual intercourse with a stranger. The Crown says this is an improbable version and underlines the importance of the two sets of alleged offences being heard together, particularly in the context where neither complainant knew the accused nor does the accused say he knew either of the victims. In considering the admissibility of the tendency evidence I need to consider the Crown case at its highest and put aside the fact the accused has made a statement in his ERISP he had consensual intercourse with [the second complainant] in 1995. In considering the Crown case at its highest I proceed on the basis [the second complainant's] evidence would be accepted in that she was assaulted by someone and forced to have sexual intercourse without her consent in circumstances where the perpetrator came into her unit without her permission and forced him upon her in a violent manner. There are some underlying characteristics particular to each offence irrespective of the differences and the disparity in time and the fact there is only one prior event. They are: a. the offence occurred in the early hours of the morning; b. the victims were women who lived alone; c. entry was gained to their houses without their consent; d. the perpetrator committed offences of a sexual nature (whilst different) against each victim. I am not satisfied the two events need to have any greater similarity or underlying unity to fall within the categorisation of having significant probative value. The Crown does not seek to establish a tendency to have particular state of mind but a tendency to act in a similar way (AB 65.2). ... The defence argue that gap and the fact there has been such an intervening period of time indicates there is no alleged tendency demonstrated by the accused to act in a particular way and undermines the capacity of the evidence to be adduced as tendency evidence. In that respect the defence rely upon the High Court decision of McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 in that the evidence suggesting the tendency is weak. The Crown points to other features he suggests are unique in the circumstances in which the offences were committed and which I have referred. The Crown submits this lapse of time does not impact upon the significant probative value, although accepts circumstances can exist where a significant temporal gap can result in the evidence having less weight. Here the Crown points to the fundamental unifying qualities of the circumstances that surrounded the commission of these offences that he says are quite unique. I accept a temporal gap or single episode may serve to militate against the admission of the tendency evidence, however where the evidence has significant probative value those factors do not bar its admission. The Crown's submission is that the gap in time between the two alleged set of offences does not derogate from the significant probative value of the tendency evidence that it asserts should be admitted. On the basis that I am satisfied that the evidence does have significant probative value and looking at the Crown case at its highest I am satisfied the evidence crosses the initial threshold as to its admissibility. Section 101(2) Evidence Act Irrespective of that finding the prosecution have a further threshold to cross and that is whether the evidence is unfairly prejudicial and capable of being misused by a jury. I am satisfied the evidence not only has substantial probative value but also if adduced at a trial would be highly prejudicial to the accused. The issue to be determined is whether that evidence would be improperly used by a jury in an unfair way, that is, it is unfairly prejudicial. In that respect I am required to consider s 101(2) of the Evidence Act. The Crown has referred me to the High Court in Hughes v The Queen [2017] HCA 20 in its submissions at [56] which identify the various forms of prejudice that can arise. I am mindful of that potential and accept the evidence will have a prejudicial effect upon the accused in a trial where both sets of allegations are heard together. However, tendency evidence is regularly adduced in trials of accused persons in this State. Directions have been designed and approved by superior Courts as being appropriate to be given by the trial Judge as to the manner in which that evidence is to be used and warnings are given to the jury as to how that evidence must not be used in any respective trial. Those warnings are given as a matter of course in jury trials where tendency evidence has been permitted to be adduced. I am satisfied in the trial of the accused whilst there will be a prejudice that will flow as a result of the tendency evidence being adduced and the matters being heard together that a jury would be directed in accordance with the accepted directions requiring the use of the tendency evidence with emphasis on the limitation of its use and warnings prohibiting its misuse. These directions are given regularly in trials and there are no submissions made before me as to why such directions would not be sufficient. In these circumstances I am not satisfied there would be unfair prejudice that would flow to the applicant if the evidence were adduced. I am satisfied the tendency evidence has substantial probative value on the basis I have identified and that it has underlying characteristics in demonstrating a capacity of the accused to act in a particular way. The circumstances in relation to both events, whilst there is some considerable distance in time temporally between each, have in my view unique characteristics albeit subject to a criticism of being broad in some respects. They relate to the fact it is alleged the perpetrator entered single women's homes in the early hours of the morning and perpetrated sexual offences against them in circumstances where he did not know them or they did not know him. I am satisfied the evidence allows a basis for a jury inferring it was the accused who was likely to act in a particular way on the particular occasions that are the subject of the charges and a jury could treat it as important in supporting an inference of guilt of the accused of the counts on the Indictment. I am satisfied the tendency evidence makes it more likely to a significant extent the elements of the offence are proven to the requisite degree and the evidence has significant probative value in addressing the central issue in the trial. As I have indicated, I am not satisfied there is any particular prejudice identified that cannot be addressed by appropriate directions from the trial judge and the probative value substantially outweighs any unfair prejudice. Accordingly I refuse the application to sever the counts in the indictment and I allow the Crown to adduce the evidence as tendency evidence in relation to a joint trial." (AB 68.5) Application pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) 1. Pursuant to s 5F(3), the applicant seeks leave to appeal against the interlocutory judgment and orders of the primary judge made 5 May 2020. His Honour dismissed the applicant's challenge to the legality of counts 1-6 on the indictment being tried together and ordered that the prosecution be permitted to introduce a body of tendency evidence in relation to the trial of the joint counts. 2. The applicant accepts that he requires leave to appeal from that interlocutory order. The applicant's trial is listed to commence in February 2021. 3. The orders sought by the applicant in this application are: "JUDGMENT OR ORDER SOUGHT Order that the interlocutory application for leave to appeal be granted, the appeal be allowed and the judgment and orders dated 5 May 2020 directing a joint trial of counts 1-6 inclusive be set aside and further order that counts 1-4 be severed from counts 5 & 6 and there be separate trials in respect to those counts. Further order that the body of tendency evidence sought to be relied on by the prosecution is inadmissible in the trial of the Applicant." 1. It was common ground that the tendency relied on by the Crown was the applicant's inclination or tendency to break into the homes of single women in the early hours of the morning and sexually assault them. The applicant submitted that such evidence was not admissible as tendency evidence because in accordance with s 97(1)(b) of the Act the evidence lacked significant probative value in the sense of having the capacity to prove beyond reasonable doubt that he committed the crimes in both 1995 and 2017 in the particular circumstances alleged by the Crown. 2. The applicant submitted that from a forensic perspective, the central controversy in the proceedings was the identity of the applicant as the person who on two separate occasions broke and entered the homes of the two unrelated complainants and sexually assaulted them. 3. The applicant noted that part of the tendency alleged was that the sexual assaults were preceded by a break and enter in the early hours of the morning while the complainants were alone. The applicant submitted that this was a generalised scenario and by itself had no "significant probative value" because the probative value was diluted by the temporal disconnect of 21-22 years between the two sets of offences. The applicant further submitted that not only was there a temporal disconnection but the actual assaults upon the two complainants were quite different. 4. The applicant relied upon the observations of R A Hulme J in R v Dent [2016] NSWSC 99 at [32] where his Honour said that the fact that the applicant in that case "had not behaved or thought in a similar way for such a lengthy period of time dilutes the probative force of the tendency evidence to such a degree that it cannot be said that there is significant probative value". 5. The applicant submitted that put another way, the tendency evidence might be probative but it was not significantly so or compellingly so as mandated by s 97(1)(b) of the Act. 6. Alternatively, the applicant submitted that the probative value of tendency evidence was substantially outweighed by its capacity to generate impermissible prejudice against the applicant and therefore should have been excluded by the court. On that issue, the applicant took into account the observation by the primary judge that the evidence was "prejudicial to the accused" (AB 66.9) yet the primary judge still found that the evidence should be admitted at trial because of its substantial probative value. The applicant also challenged the finding by the primary judge that he was "not satisfied there is any particular prejudice identified that cannot be addressed by appropriate directions from the trial judge and the probative value substantially outweighs any unfair prejudice" (AB 68.4). 7. The applicant submitted that the determination to be made under s 101(2) of the Act was an evaluative one which balanced the probative value of the evidence against its potential for impermissible prejudice to the applicant in that there was a danger the evidence would be misused by the tribunal of fact. 8. The applicant submitted that there was a real danger of such misuse by the jury in this case because of its particular facts. The prosecution case was that the applicant in 1995 broke and entered the home of the second complainant and sexually assaulted her. However, the applicant submitted that the circumstances of the 1995 sexual assault were significantly different to those of the sexual assault in 2017, i.e. the 1995 offences involved actual penile/vaginal penetration whereas the 2017 assaults did not. The applicant submitted that the 1995 offences insinuate a level of violence and domination that the 2017 offences lacked. 9. The applicant submitted that there was a further problem with the admission of the tendency evidence in that the danger of impermissible prejudice arose from the manner of the commission of the offences in 1995. The applicant submitted that those offences were suggestive of a level of sadistic violence that might inflame a jury against the applicant and influence their attitude to the 2017 offences. This was especially so because the 2017 allegations concerned an elderly vulnerable complainant. 10. The applicant submitted that although there was a forensic connection between the two offences in that the applicant's DNA was present at both locations, it was implicit in the Crown case concerning the 1995 offences that the applicant had an explanation for his DNA being identified at that location. The applicant submitted that if the two sets of offences were tried together his explanation, and thus his defence to the 1995 charges, might be given less weight because he had remained silent about how his DNA was found on the clothing of the first complainant in respect of the 2017 offences. 11. The applicant submitted that if the tendency evidence was not admitted, or was found to have been wrongly admitted, there was no basis for having counts 1-6 tried together. This is because within the terms of s 21(2) of the CPA, the applicant would suffer impermissible prejudice because of the differences between the conduct giving rise to counts 1-4 and the conduct giving rise to counts 5-6. Consideration 1. In BM v R [2017] NSWCCA 253 at [9] Bathurst CJ (with whom McCallum and Bellew JJ agreed) set out the principles relevant to a grant of leave to appeal in a case involving a motion for separate trials. In doing so, Bathurst CJ approved the observations of Gleeson JA (with whom Hidden J agreed) in DSJ v R; NS v R [2014] NSWCCA 77 at [4]: "4 The application for leave to appeal is made pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, which requires the applicants to obtain leave in order to appeal against an interlocutory order or judgment. There is no dispute that leave is required. The order dismissing the applications for separate trials is an interlocutory order. This is so regardless of whether the refusal turns on a question of evidentiary admissibility: Saunders v R (1994) 72 A Crim R 347; R v Georgiou [1999] NSWCCA 125 at [19]; DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [2], [76] and [125]. 5 The principles relating to the grant of leave are not in dispute. 6 First, leave should not readily be granted, unless an appropriate case is made out showing an error of principle which is apt to cause an irregularity or an injustice: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25] per Whealy JA (Hall and McCallum JJ agreeing) citing R v Van Phu Ho (NSWCCA, 18 July 1994, Gleeson CJ, Mahoney JA, Dunford J, unreported). 7 Secondly, a significant factor in determining the grant of leave is that rulings on the admissibility of evidence are not interlocutory orders. It is well established that s 5F is not available to review a decision as to the admissibility of evidence: R v Powch (1988) 14 NSWLR 136 at 137D-138B; R v Steffan (1993) 30 NSWLR 633 at 639F; DAO v R at [74]. This is a strong consideration against the grant of leave in respect of an order refusing separate trials, where a ruling on the admissibility of evidence is a central issue: DAO v R at [16] per Spigelman CJ, at [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing). 8 The principal consideration which led this Court in DAO v R to grant leave to appeal against the decision refusing separate trials was the importance of the question concerning the correct approach to an appeal from a ruling on the admissibility of tendency evidence under s 97 of the Evidence Act: at [18] per Spigelman CJ; at [106] per Allsop P and at [209] per Simpson J (Kirby and Schmidt JJ agreeing). Chief Justice Spigelman also considered it significant that the decision involved a pre-trial ruling of potentially critical significance as it fundamentally affected the structure of the proceedings. 9 Thirdly, in considering applications under s 5F, substance, and not mere form, should prevail: DAO v R at [75] per Allsop P. Thus, although a complaint about the ruling on separate trials may be based on a question of evidentiary admissibility, that does not change the form and substance of the trial judge's refusal to make orders for separate trials. Thus, if leave is to be given in this case, it is to be given in relation to orders 2 and 3 made on 3 May 2013, and not Order 1 made on that date in relation to the admissibility of the Crown's Coincidence Evidence (as defined). 10 Fourthly, one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to the requirement to obtain leave is to prevent or minimise the fragmentation of the process of criminal justice: R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 at [23]. 11 Fifthly, an appeal from an interlocutory judgment on an application for separate trials, is subject to the degree of appellate restraint identified in House v R [1936] HCA 40; 55 CLR 499 at 504-505; see DAO v R at [70] per Spigelman CJ, [78] per Allsop P. Such an order remains a matter of procedure and that brings it within the well-known rules of restraint from interference: Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 at 177." 1. It follows therefore that it was not open to the applicant to challenge the primary judge's finding as to the admissibility of the tendency evidence. That cannot be done pursuant to s 5F(3)(a) in that such a challenge involves a ruling on the admissibility of evidence. As set out above, a finding as to the admissibility of evidence does not constitute an interlocutory order and does not come within the ambit of s 5F(3)(a). This Court does not have jurisdiction to review that decision. Accordingly, the application for leave to appeal can only be in respect of the refusal by the primary judge to grant separate trials. 2. It should also be noted from the above statement of principle that there is a "strong consideration against the grant of leave in respect of an order refusing separate trials where a ruling on the admissibility of evidence is a central issue". The analysis leading up to that conclusion is comprehensively set out in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 in the judgment of Allsop P. 3. In any event, there was no error on the part of the primary judge in allowing the Crown to rely upon the tendency evidence. 4. Moreover, the focus of argument on the admissibility of the tendency evidence substantially distracts from another important feature of the factual background to this application. Apart from the tendency evidence, there was a clear connection between the 1995 offending and that in 2017. The connection was the presence of the applicant's DNA at both locations at the time of the offending at each location. Not only was there the connection created by the presence of his DNA, but the applicant's fingerprints were also found at the location of the 2017 offending. It follows therefore that even without the tendency evidence, there was a strong basis for all six counts being heard together. 5. The applicant's primary contention on the appeal is the gap in time of 21-22 years between the acts alleged. On that issue, the applicant's reliance upon the decision in R v Dent is illusory. The factual background in this case is far different and far stronger than that of the Crown in R v Dent. 6. The offending in Dent occurred in March 2014. On that date, the victim was attacked and beaten to death in a park. The tendency alleged by the Crown was that Dent had a tendency to assault males, inflict serious injuries upon those males and to do so in an around a public park in Mayfield. The events said by the Crown to have given rise to the tendency issue were that Dent had assaulted another person in October 1977 and inflicted fatal injuries on him. There was otherwise no connection between Dent and the victim. 7. R A Hulme J rejected the Crown's reliance on that as tendency evidence and said: "23 As to the lengthy period intervening between the two events (37 years), the Crown Prosecutor sought to distinguish R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 where it was held that events that occurred 15 years previously that bore some similarity with the events in question were not admissible as tendency and coincidence evidence. The intervening period in which there had been no similar conduct was regarded as of significance in diminishing the probative value of tendency evidence. The basis of the distinction was said to be that for most of the intervening period in the present case the accused had been in custody serving various sentences of imprisonment. ... 32 The fact that the accused was not shown to have behaved or thought in a similar way for such a lengthy period of time dilutes the probative force of the tendency evidence to such a degree that it cannot be said that there is significant probative value. Moreover, the conclusion can be easily reached that such probative value that the evidence may have does not outweigh the potential prejudicial effect. It would be very difficult to give effective directions to the jury not to give inappropriate weight to evidence that the accused had killed before." 1. The evidentiary basis in this case is quite different. The presence of the DNA and fingerprints establishes a clear connection between the two locations and the two episodes of offending. It then becomes a matter of analysing the evidence to assess the extent to which it makes out the relevant tendency. In that regard, it also needs to be kept in mind that the tendency evidence is in addition to the strong circumstantial evidence which links the two episodes of offending to the applicant. 2. Contrary to the submissions of the applicant, the tendency evidence relied upon is not at a high level of generality. Rather, it involves a level of precision which is rarely found in tendency evidence cases, i.e. to break into homes of women who lived alone, in the early hours of the morning and to perform sexually motivated acts without their consent. 3. The probative value of such evidence is significant in that should the jury be satisfied beyond reasonable doubt that one of those offences involved the applicant, they could conclude that the applicant acted in a particular way in respect of the other complainant. They may then use that fact in determining whether he committed the remaining offence charged. This cross-admissibility exists regardless of the temporal difference between the occurrence of the two episodes of offending. 4. While the tendency evidence may be prejudicial to the applicant, it has not been established by him that it was unfairly so or liable to be misused by the jury, if the jury were given appropriate directions. The fact that his Honour regarded the tendency evidence as prejudicial to the interests of the applicant is a function or product of the fact that tendency evidence was of significant probative value. 5. As was put by the Crown in submissions, the significance of the passage of time between the two incidents said to demonstrate the tendency is very much fact dependent. In this case, breaking into the premises of a female and committing a sexual offence displays a tendency which is far more specific than many tendencies relied upon by the Crown in other cases. Importantly, the tendency is not merely sexual but demonstrated the capability to break into a home when its occupant was present. That consideration arises whether one considers the 1995 offence and looks forward, or starts with the 2017 offending and looks backwards. Any differences in the precise actions of the offender with respect to breaking and entering can be readily explained by the difference in the age of the applicant at the time of the offending. 6. As was open to him, the primary judge considered the gap in time and decided that it did not derogate from the significant probative value of the tendency evidence. This is in circumstances where the tendency and the significant probative value thereof do not require proof beyond reasonable doubt as was once thought to be the case (The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40). Moreover, as was confirmed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 when deciding the admissibility of evidence, the evidence has to be taken at its highest. 7. The degree of violence in the 1995 offences does not, with due respect to counsel for the applicant, rise to the description of "sadism". There is in fact little difference in the actions of the applicant with respect to his sexual activity in each offence. Certainly the applicant was more rough in his actions in 1995 but one could not accurately characterise his actions as involving significant violence. There is in fact a very real similarity in the actions of the applicant in each incident. 8. The fact that each of the incidents was against a woman in her own home and necessarily vulnerable as a result, is an aspect of the tendency and should not be taken into account as a matter of prejudice. Further, the use of the 2017 incident to contradict the applicant's explanation for the presence of his DNA in the 1995 incident as a consensual act of sexual intercourse, is one of the reasons for the admission of the tendency evidence. It necessarily prejudices the applicant's explanation. By reference to s 101 of the Act, it follows that it was well open to his Honour to find that the probative value of the tendency evidence, despite the gap in time between the two incidents, substantially outweighed its prejudicial effect. 9. For the above reasons, the applicant's grounds of appeal have not been made out and leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act should be refused. 10. BELLEW J: I agree with Hoeben CJ at CL. ********** Amendments 18 December 2020 - Restricted due to upcoming trial in the District Court. 26 March 2021 - publication restricted lifted - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2021