Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Taylor v R [2020] NSWCCA 355 Hearing dates: 11 November 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Before: Bell P at [1]; Walton J at [134]; Beech-Jones J at [139] Decision: (1) The applicant be granted leave to appeal against his conviction on count 9 of the indictment presented against him on 4 June 2019, being an offence under s 111(2) of the Crimes Act 1900, that the appeal be allowed, the conviction set aside and an acquittal be entered. (2) The applicant be otherwise granted leave to appeal against his convictions but the appeal be dismissed. (3) That the aggregate sentence of imprisonment imposed on the applicant on 5 November 2019 be set aside, and in lieu thereof the applicant be sentenced to aggregate term of imprisonment for 14 months commencing 5 October 2019 and expiring on 4 December 2020, with a non-parole period of 10 months. (4) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence that make up the aggregate sentence are: (i) Count 4 – 12 months imprisonment; (ii) Count 11 – 4 months imprisonment; (iii) Count 12 – 4 months imprisonment. Catchwords: CRIMINAL LAW – Challenge to conviction – where Crown case in relation to one count required the applicant to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building – where no apparent means of applicant having accessed the balcony externally – whether conviction on this count unreasonable. CRIMINAL LAW – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence. CRIMINAL LAW – where applicant on parole at time of hearing of appeal – where challenge to convictions in respect of multiple counts succeeds – whether new trial should be ordered. EVIDENCE – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 53A(2)(c) Crimes Act 1900 (NSW) ss 105A, 111(2), 115A Evidence Act 1995 (NSW) ss 38, 97, 97A, 101(2) Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) Cases Cited: AC v R [2016] NSWCCA 21 Anthony v Morton [2018] NSWSC 1884 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 Armstrong v R [2017] NSWCCA 323 BP v R; R v BP [2010] NSWCCA 303 DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 300 FLR 323; [2014] NSWCCA 303 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 Hughes v R (2017) 263 CLR 338; [2017] HCA 20 Ibrahim v Pham [2007] NSWCA 215 IMM v R (2016) 257 CLR 300; [2016] HCA 14 KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52 O'Keefe v The Queen [2009] NSWCCA 121 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 R v Allen [2020] NSWCCA 173 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v BD (1997) 94 A Crim R 131 R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 R v Cook [2004] NSWCCA 52 R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 R v Joiner (2002) 133 A Crim R 90; [2002] NSWCCA 354 R v Knight [2015] NSWCCA 34 R v Lockyer (1996) 89 A Crim R 457 R v Milton [2004] NSWCCA 195 R v MM [2014] NSWCCA 144 R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 R v SK [2011] NSWCCA 292 R v Smith (2008) 190 A Crim R 8; [2008] NSWCCA 247 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 RHB v The Queen [2011] VSCA 295 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Semaan v R (2013) 39 VR 503; [2013] VSCA 13 Sokolowskyj v R [2014] NSWCCA 55 SSN v R [2012] NSWCCA 163 Townsend v Townsend [2001] NSWCA 136 Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171; (1995) 140 ALR 701 Texts Cited: R Weinstein, J Anderson, J Marychurch, J Roy, Uniform Evidence Law in Australia (3rd ed, 2020) Category: Principal judgment Parties: Edward Charles Taylor (Applicant) Crown (Respondent) Representation: Counsel: P Segal (Applicant) B Hatfield (Respondent) Solicitors: Brock Partners Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/100527 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 05 November 2019 Before: Bright DCJ File Number(s): 2018/100527 HEADNOTE [This headnote is not to be read as part of the judgment] Mr Edward Charles Taylor (the applicant) was charged on indictment with a number of domestic violence offences against the complainant with whom he had previously been in an on-again off-again relationship. Following a trial in the District Court of New South Wales, a jury found the applicant not guilty on three of the counts, but guilty on six of the counts relating to conduct in March 2018. For the purpose of the appeal proceedings, the relevant counts on which the applicant was found guilty included one count of breaking and entering the dwelling house of the complainant and committing a serious indictable offence therein, namely, intimidating the complainant with the intention of causing her to fear physical or mental harm, knowing that persons were inside (Count 4), intimidating the complainant with the intention of causing her to fear physical or mental harm (Count 6), one count of having in his possession an implement of housebreaking without lawful excuse (Count 8) and one count of entering the dwelling house of the complainant with the intent to commit a serious indictable offence therein, namely, intimidating the complainant with the intention of causing her to fear physical or mental harm, knowing that persons were inside (Count 9). The Crown case in respect of Count 9 involved a proposition that the applicant gained external access to the balcony of the complainant's apartment, which was on the fourth floor of a five storey apartment block. This was despite the trial judge's observation that it remained "inexplicable" how the applicant would have been able to gain external access to the fourth floor balcony. Further, in support of Counts 1-10, the Crown relied upon tendency evidence, being a statement of agreed facts signed by the applicant in 2010, which was used for the purpose of sentencing the applicant in relation to a charge of recklessly occasioning grievous bodily harm to his ex-wife in 2008. The statement of agreed facts included a statement that there had been a history of domestic violence throughout the marriage, detailed circumstances where the applicant was verbally aggressive and intimidating towards his ex-wife, detailed a violent assault where the applicant struck his ex-wife and fractured three of her ribs, and described a detain for advantage count against his ex-wife. The applicant was sentenced to an aggregate term of imprisonment of 1 year and 10 months in respect of four of the counts (including Counts 4 and 9), with a non-parole period of 1 year. With respect to two of the counts (including Count 6), a community correction order was imposed for a period of 2 years. The principal issues raised on appeal were: 1. in relation to Count 9, whether the verdict was unreasonable on the basis that there was no direct evidence, or no proper inference from direct evidence, that persons were in the premises at the time of the applicant's entry, and as such that element of the offence was not capable of proof; and 2. whether evidence in relation to the 2008 conduct ought not to have been admitted as tendency evidence. The Court allowed the appeal in part but (by majority) (Beech-Jones J, Walton J agreeing) otherwise dismissed the appeal, holding: As to ground 1: 1. The Court unanimously held that it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. No evidence was led by the Crown to suggest how the applicant could have achieved such a feat. The Crown's submission that the only available and rational inference was that the applicant used a step ladder to climb the exterior of the building was not convincing, as there were a number of other available and rational inferences to explain how the applicant accessed the balcony: [53]-[70] (Bell P); [135] (Walton J); [139] (Beech-Jones J). M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, considered. As to ground 2: Per Walton and Beech-Jones JJ: 2. The tendency evidence relied upon had "significant probative value". Although there was a period of over nine years that had elapsed between the applicant's attack on his ex-wife and the events the subject of the charges against him, that period of time must be considered in the context of the alleged tendency, which was that he was violent or threatening towards women with whom he had an intimate relationship. There was no evidence that the applicant formed any other relationship between the breakdown of his marriage and the commencement of his relationship with the complainant: [136] (Walton J); [140]-[155] (Beech-Jones J). Hughes v R (2017) 263 CLR 338; [2017] HCA 20, applied; McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52, distinguished. 3. The probative value of the tendency evidence substantially outweighed its prejudicial effect. The admission of the evidence was not likely to lead to the jury having some form of adverse emotional response, and the trial judge's direction specifically warned them in that regard: [136] (Walton J); [156]-[157] (Beech-Jones J). Per Bell P (dissenting): 4. The tendency evidence relied upon in the present case was not of "significant probative value". This was because, inter alia, the conduct that the tendency evidence established occurred in very different circumstances to the conduct the subject of the charges, there was a significant passage of time between the events the subject of the tendency evidence and the matters charged, and the relative generality with which the tendency was formulated did not "strongly support" the proof of a fact that made up the offence charged: [123]-[127]. DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63; Hughes v R (2017) 263 CLR 338; [2017] HCA 20; IMM v R (2016) 257 CLR 300; [2016] HCA 14; McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52; R v Bauer (2018) 266 CLR 56; [2018] HCA 40; R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306; R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, considered and applied. R v Joiner (2002) 133 A Crim R 90; [2002] NSWCCA 354, distinguished. 5. Even if the tendency evidence could be described as "probative", its probative value did not substantially outweigh its prejudicial effect, as required under s 101(2) of the Evidence Act 1995 (NSW). There was a particular danger of prejudice in the likely emotional response by the jury to the degree of violence inflicted by the applicant on his former wife, even allowing for the ameliorative effect of the trial judge's directions to the jury: [128]-[130]. 6. Consideration and summary by Bell P of the relevant principles with respect to tendency evidence: [122]. Judgment 1. BELL P: Mr Edward Charles Taylor (the applicant) was charged on indictment with the following offences: "1 between the 1st day of January 2018 and the 5th day of January 2018, at The Entrance in the State of New South Wales, did assault Beverly WALTERS. S 61 Crimes Act 1900 Law part code 64782 2 on or about the 27th day of March 2018, at The Entrance in the State of New South Wales, did assault Beverly WALTERS thereby occasioning actual bodily harm to her. S 59(1) Crimes Act 1900 Law part code 64780 3 on or about the 27th day of March 2018, at The Entrance in the State of New South Wales, did intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 4 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did attempt to break and enter the dwelling house of Beverly WALTERS at [XX], The Entrance, and commit a serious indictable offence therein, namely, intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm, knowing persons were inside. S 112(2) Crimes Act 1900 Law part code 39106 S 344A(1) Crimes Act 1900 Law part code 1101 5 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did intentionally damage property, namely a door handle the property of New South Wales Land and Housing Corporation. S 195(1)(a) Crimes Act 1900 Law part code 821 6 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70755 7 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did damage property, namely a door, the property of New South Wales Land and Housing Corporation. S 195(1)(a) Crimes Act 1900 Law part code 817 8 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did without lawful excuse have in his possession an implement of housebreaking. S 114(1)(b) Crimes Act 1900 Law part code 610 9 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did enter the dwelling house of Beverly WALTERS situate[d] at [XX], The Entrance with intent to commit a serious indictable offence therein, namely intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm, knowing there were persons inside. S 111(2) Crimes Act 1900 Law part code 560 10 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did intimate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 11 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did intimidate Nicole LAWRENCE with the intention of causing Nicole LAWRENCE to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70755 12 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did resist Luke JAY, a Police officer in the execution of his duty. S 58 Crimes Act 1900 Law part code 239". The applicant pleaded not guilty to each of these charges. 1. 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. 2. 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. 3. 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. 4. At the time of the hearing of the appeal, the applicant was on parole. 5. There were a number of notable features about the trial. 6. 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. 7. 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: "…in my view it remains inexplicable how he may have been able to gain access to the fourth floor veranda". 1. The first ground of appeal involves a challenge to the applicant's conviction on Count 9. 2. 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). 3. The statement of agreed facts (which is set out in full later in these reasons): 1. included a statement that there had been a history of domestic violence throughout the marriage; 2. detailed circumstances where the applicant was verbally aggressive and intimidating toward his ex-wife; 3. reflected a charge of recklessly inflicting grievous bodily harm arising from a violent assault where the applicant struck his ex-wife with at least 3 blows, fracturing three of her ribs; 4. described a detain for advantage count where the applicant stopped a vehicle in which his ex-wife was travelling, threatened to break her dog's neck if she did not give him a sum of money that she had obtained from the sale of another dog/s, forcibly took her back to their home and did so driving in an aggressive manner causing her pain and detained her there for some time. 1. The admission of the statement of agreed facts over objection forms the second ground of appeal. The appeal 1. 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. 2. 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 Crown case at trial 1. 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. 2. 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. 3. 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. 4. 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. 5. The entrance to the apartment building was by means of an electronic blue "fob". 6. 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 1. 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. 2. 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. 3. 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. 4. 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 1. 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. 2. 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). 3. 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: "Q. Do you know what time it was that you got in for the night, if I can use that expression? A. No. I'd been high for nearly a week. I don't ‑ things like that, you lose sense of time completely. Q. Do you know why it was that Nicole was there that night? A. I'd asked her to look after me because I thought I was going to have a psychotic episode. Q. You asked her to come to your place? A. That's right. I've had a breakdown and been hospitalised before from psychosis. Q. At some point prior to the Friday night, did you see Mr Taylor during the day, or not? A. No, I'd spoken to him and said that I'd left the fob and the key ‑ the things in the letterbox for him. Q. You spoke to him between the two nights, during the day, at some point; is that right? A. The day. Q. And you said to him that you left the fob in your letterbox, do you mean? A. Yeah, there was no longer a key because I had to have the door handle changed. Q. When did you have to have the door handle changed? A. When? Q. Yes? A. It was a long weekend. I'm not sure whether they came that weekend or not. Q. By the time you went to bed on ‑ or retired for the night on the Friday night, was there a new‑‑ A. I didn't go to bed and retire. I'd ‑ like I said, I was on ice. You don't sleep. Q. Let's say 10 o'clock on Friday night, as a marker in time, was there a front door handle on your unit at that point in time? A. I ‑ I would imagine so, yes. Q. And was it a different lock on the front door from the night before, or was it the same lock? A. It would have been the same lock, but I had the fridge pushed up, because my ‑ people had my ID, my keys, and they knew exactly what apartment I lived in as my car had been stolen with all my items, so I put the fridge up for security. People have actually just walked into your apartment ‑ other tenants that live in the units. Q. When you spoke to Teddy during the day, was there any arrangement to meet up with him, or not? A. Yes. Q. When were you going to meet up? A. I just said, 'Come home.' Q. You said, 'come home'? A. I just said, 'Come home. I'll leave the fob in the letterbox for you.' Q. And what about a front door key? A. There was no front door key, because they had ‑ I needed a replacement door handle." 1. Later in her evidence in chief, there was the following passage of evidence from the complainant: "WITNESS: Well, when you're on ice, you're not in control. You ‑ you hallucinate, you imagine things, and you're really not ‑ especially when you've done it for five days without sleep and without my much needed medication. CROWN PROSECUTOR Q. Why did you leave the apartment? A. Nicky wanted ‑ we just ran out, because why would I do anything that night? I have no idea why I did, or behaved, or did ‑ said, did, anything that night. I was not in control of my faculties. Q. Why did you run? A. I don't know if I did run. I ‑ that was a expression, a term. I could have walked. Q. Where did you go? A. To Nicky's car. Q. Where did you go after that? A. I think we went to the police station. Q. Why did you do that? A. I had no idea. By that stage, I was non‑coherent." 1. Later in her evidence in chief (T: 127–128), the complainant gave the following evidence: "Q. I'm going to take you forward now to 31 March, so the next night, does that make sense, going to ask you some questions about that? A. Yes. Q. You indicated yesterday that there was a point during the night when you saw Mr Taylor on the balcony, is that right? A. That's right. Q. When you saw him on the balcony, did he say any words directed towards you that you can remember? A. Well, I didn't see him at first because I was on the lounge room floor looking at my computer, it was Nicole that saw him; then I probably did say, hey, and then I realised he's going to know that I'm high and I tried everything I could to hide that fact from him. Q. I'm just getting you to focus on whether he said anything to you? A. That's all I remember. Q. Can you remember whether or not Mr Taylor said any words directed towards Ms Lawrence? A. Absolutely not. Q. At the time that you saw Mr Taylor on the balcony, did he ever have anything in his hands? A. No. I think he had a cigarette." 1. 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: "Q. I'm going to take you forward in time now, thank you, this is on the second time, the second night, to when you said you saw Mr Taylor on the veranda, does that make sense? A. Yes. Q. Can I ask you to turn over to paragraph 7 for me, it's on page 2? You told the police these words, 'I put my hand on the lock of the glass to door to the hold it shut'. Right so far? A. Yes. Q. He said, 'I am going to get arrested, you have pressed charges'. I said, 'I have no other option, it's taken out of my hands now anyway'. He said, 'How do you know it was me'. I said, 'the place has got cameras, Teddy, you know that'. Teddy said, 'I've had 56 messages, you have made a statement against me'. I said, 'Teddy, [XX] is here, please come down'. At this point in time I was petrified and I was gobsmacked because I could not work out how he got onto my veranda.' A. Well, that's a lie straight away, because [XX] was not there. Q. Would you agree they're the words that you used when you described to the police what had happened? A. Yes, so the whole ‑ paragraph is a lie. Q. Are you sure you didn't say those words to the police because that's what actually happened? A. I'm sure and [XX] was not there. Q. Did you try and hold the door shut so he couldn't get in? A. He's a man and I'm a girl, so, no. He was already in the apartment. Q. Paragraph 8, you're describing there what you said to the police happened when Mr Taylor was on the balcony. You say in the second sentence there of paragraph 8: 'Teddy said to Nicky, "Get away from that door". Nicky said, "Are you threatening me too, Teddy". Nicky was nearly crying.' A. You'd have to ask Nicky those questions, I'm not able to answer for her. Q. Are they the words that you used in your statement to the police? A. They're the words that are written down but, as I said, I don't know how Nicky was feeling and I can't answer for Nicole. Q. You have a memory though of Mr Taylor saying get away from that door, don't you? A. No, he did not speak to Nicole is what my memory is. Q. You then told the police these words at paragraph 9, 'Teddy picked up one of the metal chairs from the balcony and held it up. He said, "I will smash through and be on you in a second"'? A. I don't even have any furniture on my veranda. Q. Were those words spoken? A. Well, obviously they were but there's a lie and the police would've been able to see there's no furniture on the veranda. Q. You then said to the police, to paragraph 10 the second sentence: 'I ran to get my handbag which was in my bedroom and grabbed my handbag. Nicky said, "Get the keys". We both ran out the front door and took the lift. It seemed to take ages for the lift to come. We were both so scared.' A. That's what's written down. Q. The reason that's written there is because you said those words to the police, isn't it? A. That's what's written down. Q. That's what actually happened, isn't it, Ms Walters? A. I'd have to read it again. I didn't call anybody because I didn't have a phone." 1. 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: "Q I asked you yesterday whether or not you understood Teddy to say any words that were directed towards you. Do you remember those questions? A. Yes. Q. And you indicated that you didn't? A. Yes. Q. I also asked you whether or not Teddy ever had anything in his hands when he's on the balcony, and you indicated that no, he did not? A. Yes. Q. Can I just take you to paragraph 19 of your statement, Ms Lawrence? A. Yep. Q. I'm going to read it from the fifth line down. Just make sure that I'm reading it correctly. 'I did hear [it says, "heart" but I suspect it should be "hear"] Teddy say, "If you go near that door again". Not sure what he said after that, but it was a threat.' You're shaking your head, but those are the words that are in your police statement; is that right? A. Yes. Q. You then say, 'I saw Teddy pick up a chair and he threatened to throw it through the glass.' Those words are in your statement, aren't they? A. Yes. Q. And they're there because that's the truth, isn't it? A. No. Because I was moving the things away from the door at that time, and I was facing towards the front door, away from the balcony. So, I couldn't have heard, because he was outside, with the glass door closed; and I was leaving at this point. Q. Ms Lawrence, I want to suggest to you that the reason the sentence 'If you go near that door again' is in inverted commas is because you had a memory of saying those words and that's what you told the police? A. I don't remember that. Q. And you have a specific memory of Teddy picking up the chair and threatening to throw it through the glass, which is why you told the police that? A. I don't remember telling the police that. I don't remember Teddy with a chair, because I wasn't looking at him. I was just determined to leave the apartment. Q. And you were determined to leave the apartment very quickly, weren't you? A. I just wanted to leave; I'd had enough. Q. You and Beverly wanted to get out of there as quick as you could because you were scared; is that right? A. I wasn't scared. Q. You then say to the police, 'Teddy then asked me which room my daughter was in'? A. Teddy didn't talk to me that night. Q. You agree that's what you said to the police? A. No. Q. You didn't say those words to the police? A. No. Q. But you agree those words appear in your police statement which you've signed? A. They do appear in the statement that I have signed. Q. Might I suggest, the reason you appear there is because you said them? A. (No verbal reply) HER HONOUR Q. What do you say to that? A. I have nothing to say to that. What can I say to that? I didn't say that." 1. 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. 2. In his address to the jury, the Crown Prosecutor made reference to the complainant's statement to the police that: "Teddy said to Nikki, 'Get away from that door' Nikki said, 'Are you threatening me too, Teddy?' Nikki was nearly crying. Teddy picked up one of the metal chairs from the balcony and held it up, he said I'll smash through and be on you in a second", whilst properly acknowledging that: "Now of course you need to bear in mind that the complainant now says that didn't happen. Nicole Lawrence also told the police this, 'I saw Teddy pick up the chair and he threatened to throw it through the glass', that's at transcript 60. Nicole Lawrence also said in her evidence that the statement was not true. But you remember that Senior Constable Brian who took both of their statements took them independently and separately in the early hours of the morning of 31 March 2018. But you might think, in a broad respect, they're both saying the same thing, the accused picked up the chair and threatened to throw it through the balcony door." 1. The Crown Prosecutor continued: "The Crown says you'd draw on the CCTV and draw some relevant conclusions from the complainants' behaviour at the time or shortly after the incident. This is when they're going down in the lift, this is them what might appear to be frazzled, this is them cuddling in the lift after the incident which is what the Crown would say is consistent with how you would be if you had been threatened in the manner that they told the police about. Again, count 9 is an allegation of entering a dwelling house, this is the balcony, with the intention of intimidating the complainant, Beverley Walters. But the intention needs to be at the time that the accused enters the balcony. Now remember Nicole Lawrence's first reaction was, when she saw the accused on the balcony, was to lock the door. That's a matter that you might think has some significance. So again in terms of what conclusions you can draw the Crown says look at the time of morning, look at the fact the accused didn't use the front door, look at what he says and does when he sees the complainant and Nicole Lawrence and you draw upon his past behaviour, if you think that he has that past behaviour, to conclude that he was there to intimidate the complainant. Again, the Crown needs to prove that the accused knew there were persons inside. The accused, of course, says to you that at the time that he entered the unit he didn't at any time know that Nicole Lawrence or Beverly Walters were there." (emphasis added). 1. 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. 2. 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: Approximate Start Time Footage Time Description 2:02am 12:02:57 View of basement car park entry Cam 18 MAN, wearing blue t-shirt with jeans and brown boots. Face uncovered. Enters car park on foot 2:03am 12:03:32 View of basement car park fire stairs Cam17 MAN, enters fire stairs from basement car park 2:23am 12:23:19 View of ground floor entry door Cam1 MAN arrives at ground floor of unit. Enters main access door. Appears to use fob to enter. 2:23am 12:23:45 View of ground floor lift Cam 2 MAN arrives at ground floor. Enters lift and travels to basement level. 2:41am 12:41:03 View of basement car park fire stairs Cam 17 MAN enters fire stairs from basement carrying a stepladder 3:36am 13:36:47 View of level 4 hallway including of door of unit 28 Cam 12 & 11 Complainant and Lawrence run out of unit 28 door to level 4 lift 3:37am 13:37:47 View of ground floor lift Cam 2 Complainant and Lawrence travel from level 4 to ground level and then to basement in lift 3:39am 13:39:43 View of level 4 hallway including of door of unit 28 Cam 12 & 11 MAN exits unit 28 carrying cloth or garment, walks to lift back towards and past unit 28 3:39am 13:39:47 View of level 4 hallway past life in direction of unit 28 Cam 12 & 11 MAN walks to lift and then to internal fire stairs. 3:44am 13:44:08 View of basement car park entry Cam 18 MAN jumps down into driveway and then walks out of driveway to street 3:44am 13:44:38 View of ground floor entry door Cam 01 MAN running outside complex, lights of vehicle, Police take chase 3:50am 13:50:27 View of ground floor lift Cam 2 Police arrive at ground floor lift. Enter lift and travel to level 4 3:53am 13:53:09 View of ground floor lift Complainant and Lawrence exit lift at ground floor from level 4 and via basement 3:54am 13:54:18 View of ground floor entry door Cam 1 Complainant and Lawrence in foyer area, complainant exits building. Complainant returns into building with two men. 3:55am 13:55:14 View of ground floor lift Cam 02 Police arrive at ground floor lift Complainant and Lawrence walk past lift and then speak with Police with complainant demonstrating events Complainant and Lawrence then travel to level 4 by lift 1. 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. 2. 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. 3. 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 1. 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. Grounds of appeal 1. The applicant appeals against his conviction on the following two grounds: "GROUND ONE In relation to Count 9, the verdict is unreasonable because there is no direct evidence, or proper inference from direct evidence, that persons were in the premises at the time of entry, hence that element of the offence is not capable of proof. GROUND TWO Evidence in relation to conduct of the applicant in 2008 ought not to have been admitted as tendency evidence." 1. 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. Appeal ground one 1. 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: "Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years." 1. 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". 2. Section 115A of the Crimes Act provides for alternative verdicts, with sub-section (1) outlining that: "(1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly." 1. 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. 2. 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. 3. 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. 4. 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: "Accordingly, it could be inferred from the CCTV footage that the applicant was external to the unit, and did not enter it via the door, between 11:30pm on 30 March 2018 and 2:41am on 31 March 2018. Further, given that the applicant exited the unit via that door at 3:39am, it could be inferred that he entered by some other method between 2:41am and 03:39am on 31 March 2018". 1. The Crown submitted that: "30. It was clearly open to the jury [to] reject the applicant's version that he had entered the apartment through the door at a time when no one was present. 31. It was clear from the evidence of Ms Lawrence and Ms Walters that they left the apartment only for a short time to go to McDonald's around 8 or 9pm. Even if this estimate was out by an hour or more they could not have returned to the unit after the applicant was last seen on the CCTV footage outside the unit (2:41am) because otherwise the women would have also been seen on that footage entering the apartment at some time between 2:41am and 3:37am (when they exited the door of the unit and fled to the police station.) 32. According to the women, they were in the lounge throughout the evening and noticed the applicant on the balcony when they heard a noise. There was also evidence from each of them that furniture had been placed against the door. The applicant could not have woken up and exited the unit through the front door and returned with the step ladder to fix the fire alarms without either of the women noticing. The applicant's version was entirely implausible and inconsistent with the evidence taken as a whole. 33. The only available and rational inference was that the applicant used the step ladder in some way to climb on the exterior of the building. Whether 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. 34. In the circumstances it would have been abundantly clear to the applicant that the premises were occupied at the time he entered". 1. 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: "Neither the victim nor Ms Lawrence could understand how the offender got onto the fourth floor veranda. Whilst CCTV footage tendered in the trial showed the accused at a time proximate in possession of a ladder; in my view it remains inexplicable how he may have been able to gain access to the fourth floor veranda." (emphasis added). 1. 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. Consideration – appeal ground one 1. 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: "[43] At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt. (Footnote omitted; emphasis in original.) [45] As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M". (emphasis in original, footnotes omitted). 1. 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. 2. 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: "Q. It was, was it said to you in so many words by either Ms Walters or Ms Lawrence that they were startled by the appearance of the accused on the balcony? A. Yes. Q. Did you have any discussion with any of your colleagues about how the accused might have got onto level 4? A. Many. Q. You can see there, exhibit 4, there's what looks like a drain pipe? A. Yes. Q. It's nowhere near the balcony in the reach of a normal human being? A. No. No. Q. You agree with that? A. Yes, I agree, sorry, yes. Q. Similarly, given that the configuration is the same at the front as the back as to those units, there's nothing on the outside of the units like a ladder or external fire escape that would get one up to level 4? A. No. The fire escape, those on exhibit 4 where those small rectangular windows are, that's actually the fire escape." 1. Exhibit 4, referred to in this extract, is Annexure A to these reasons. 2. 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. 3. 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). 4. 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. 5. 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. 6. 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. 7. There were a number of other available and rational inferences to explain how the applicant appeared on the balcony. 8. 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: "HATFIELD: ... It's a hallway footage. It clearly shows the door from sufficient perspective that no one could access the door without being seen in that footage, but that's exhibit D. Your Honours may need to ‑ I think it's only ‑ it's a compilation so it's down to ten minutes or so, but I might need to provide that to your Honours to actually see that footage. BEECH‑JONES J: And it picks up the period between 2.41 and 3.36? HATFIELD: No. The compilation shows the relevant incidents, so it shows those incidents described in the schedule. It doesn't show the whole period of time. BEECH‑JONES J: All right. But is there evidence of a police officer saying, 'I watched it and nothing else happened.' HATFIELD: Not that categorical. I'll take your Honours to it. The evidence perhaps ‑ there was evidence that it was re‑watched for that purpose. It could have been clearer about precisely what was watched and what observations were or were not made, but there was evidence that it was re‑watched for that purpose essentially of ‑ I've got the reference to that somewhere here." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. The first ground of appeal must be upheld. Appeal ground two 1. The second ground of appeal relates to the admission of tendency evidence in the course of the trial. 2. 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. 3. 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". 4. 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: "The complainant in this matter is Yvonne Taylor. At the time of the offences she was 46 years old and had been married to the offender for the past 30 years. They have two adult children, Renee and Glenn. Mrs Taylor and the offender had resided at [XX], Bandi Bandi for the past 11 years prior to the commission of these offences. There had been a history of domestic violence throughout the marriage. At about 8 am on Saturday 25 October 2008, Mrs Taylor and the offender drove to Port Macquarie for a dog show. Both the offender and Mrs Taylor breed dogs. Once they had finished showing their dogs the offender and Mrs Taylor were sitting and having a drink and talking about the dogs. Mrs Taylor disagreed with the offender and he became really angry so Mrs Taylor kept quiet. After about ten minutes she asked the offender if she had said anything wrong. The offender told her 'Just get your gear and shut your mouth'. They both got in the car. Mrs Taylor to rang Steve Vogt, a family friend and employee whom they had both known, to come and pick her up from Slippery Rock. Mr Vogt agreed to do that. He had been staying at their house while Mrs Taylor and the offender attended the dog show. The offender dropped Mrs Taylor off at Telegraph Point and he said to her 'Get out and fuck off'. The offender drove off towards Stoney Park. Mrs Taylor started walking west along Pembroke Road and had walked for about 4 or 5 kilometres when Mr Vogt picked her up. Mrs Taylor got into the car and told Mr Vogt what had happened. Mr Vogt drove Mrs Taylor home and they arrived about 5pm. Mrs Taylor started packing some clothes and Mr Vogt waited outside. About half an hour later the offender arrived. Mrs Taylor heard the car screaming up the driveway through the gate, coming to a sliding halt. The offender screamed to Mr Vogt 'Fuck off and stay out of me and my wife's business'. He looked very angry. Mrs Taylor sat down on the lounge putting her hands to the side of her head. Mrs Taylor knew what was coming and she was really scared. She tried to get herself in a foetal position to make herself small. Seq 5 – Reckless grievous bodily harm: A few seconds later she heard the offender rush through the open wooden door. The offender started punching Mrs Taylor to the back of her head. Mrs Taylor remembers about 3 good blows with the last one knocking her off the lounge to the floor. The back of Mrs Taylor's head was in immediate pain and it felt like it was going to explode with pain and dizziness. When Mrs Taylor fell to the floor, she fell onto her right side into a foetal position. The offender stood over her and then with a closed fist pulled his arm right back before punching Mrs Taylor as hard as he could to her left rib cage. Mrs Taylor felt and heard her ribs break – it was like a sharp cracking sound. Mrs Taylor felt excruciating pain and she could hardly breathe. Mrs Taylor started yelling out 'I need help, I need to go the hospital'. The assault lasted about two minutes. Mr Vogt then picked up Mrs Taylor and took her out to his car. Seq 8 – Detain for advantage (to obtain money) Mrs Taylor and Mr Vogt only managed to get about 1 kilometre from the house when the offender came roaring up behind them in the Land Cruiser. He flew up the embankment beside them and came to a halt in front of them, so that Mr Vogt had to stop the car. The offender came up to Mrs Taylor's window and started screaming at her to get out of the car. He started screaming 'Where is it ? Where is it ?'. Mrs Taylor knew that he was referring to the $2,000.00 that she had got from selling her dogs. She said to the offender 'I haven't got it'. The offender told Mrs Taylor to give him the money or he would break her dogs neck. The dog was sitting in the car. Mrs Taylor was worried that the offender was going to hurt her dog so she showed the offender that her handbag had nothing in it and said 'It's in the wardrobe'. The offender kept saying 'Get out of the car now or I am going to break your jaw'. The offender opened her door and Mrs Taylor went with the accused because she knew if she did not she would get hurt. She was really afraid. Mrs Taylor tried to get out or the car slowly, and she got down on her hands and knees because she was in so much pain. The offender kept screaming at her 'Get up and get in the car !'. Mrs Taylor slowly walked to the Landcruiser and got in the front passenger seat. The offender yelled something to Mr Vogt. The offender drove the car and at times he would accelerate. As he was jerking the car, Mrs Taylor felt immediate pain to her ribs. The offender said to her 'I could put you through hell right now if I wanted to'. Mrs Taylor felt really scared about what the offender would do next. When they both got back to the house, the offender went straight to the wardrobe in the bedroom. Mrs Taylor got out of the car and walked to the lounge room. The offender found the money and said 'OK, you wanna get to the hospital, get back in the car and I'll take you back to Steve and he can take you in'. Mrs Taylor got back in the car and the offender drove her to where Mr Vogt was. The offender said 'If he's gone, tough luck coz I'm not taking you in'. Mr Vogt was not there so the offender drove back to the house. NB : the period of time for the kidnapping incorporates the time from the offender driving back to the house and getting the money and ending when the complainant gets back in the car to be taken to Mr Vogt. Mrs Taylor went inside the house and sat in the loungeroom for the rest of the night. She was in so much pain that she could not lie down. The offender did not speak to her that night. The offender went to bed after a short while. About a week later, without the knowledge of the offender, Mrs Taylor packed some clothes and spare money into a bag and hid the bag in a drawer in the lounge room. After the offender went to sleep, Mrs Taylor rang Mr Vogt and asked him to pick her up on the track. Mr Vogt drove Mrs Taylor to Port Macquarie, dropping her off at a motel. Mrs Taylor called her daughter, Renee, the next morning and told her what had happened. Mrs Taylor's daughter then came and picked her up arriving at the motel about 5pm on Tuesday 4th November 2008. Mrs Taylor and her daughter then travelled north. On Tuesday 11 November 2008, Mrs Taylor was examined by Dr Lakemond. On examination Mrs Taylor was tender over the left rib. There were no bruises visible. X rays of the chest reported three acute fractures of the 7th, 8th and 9th ribs, with possible fractures of the 5th and 6th ribs. On 9 November 2008 Police in Bundaberg Queensland arrested the offender. The offender was extradited from Maryborough in Queensland on 24 November 2009. The accused declined to participate in an ERISP in relation to these matters. He was then charged." 1. 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. 2. 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: "danger that the jury may use the evidence in respect to Mrs Taylor in an unfair way, the unfair way being that, having been armed with the knowledge of his previous guilty pleas, the jury may disregard effectively the evidence that's before them in relation to [the complainant] on the basis [that] he pleaded guilty to similar conduct in the past, albeit some seven or eight, or nine years previously, and just convict him anyway…" 1. 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." 2. 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: "I now want to address the evidence in relation to the 2008 events. That is, the facts concerning the accused's former partner, Ms Taylor. And you will recall those events happened on 25 October 2008. And you will recall I gave you this direction when that evidence was called in the trial, to explain to you what the limited relevance of that evidence about what it is alleged the accused did in relation to his former partner. I remind you that the accused is charged only with the offences in the indictment and you have before you the evidence the Crown relies upon directly in relation to those 12 counts on the indictment. You have now heard in the trial the facts concerning a former partner of the accused, that is Ms Taylor, in relation to the events of what happened on 25 October 2008. This direction is to explain to you the relevance of that evidence during your deliberations. The Crown says that the evidence relating to the events of 2008 and the accused's former partner reveals that the accused has a tendency to threaten and be physically violent towards women with whom he was in an intimate relationship. What the Crown says is that if you find that he has that tendency to be physically violent towards women with whom he is in an intimate relationship, it makes it more likely that he committed the offences in this trial, specifically, counts 1 to 10 on the indictment that relate to Beverly Walters. So just so you understand, the evidence in relation to what happened in 2008 is obviously not relevant to count 12, which is the offence of resist arrest, and the Crown has not sought to rely upon it in relation to count 11, which relates to Nicole Lawrence, because clearly she has never been in an intimate relationship with the accused. So it is only those counts that relate to Beverly Walters. So the Crown says, that evidence, that tendency to threaten and be physically violent towards women with whom he has an intimate relationship again, makes it more likely he committed those offences, counts 1 to 10. Before you can use the evidence in the way the Crown asks you to use it, you have to make two findings. First, you have to be satisfied that those 2008 events happened as they were described to you in Court. If you are not satisfied those 2008 events happened, then you simply put that evidence to one side during your deliberations. If you do find that those events occurred, then you go on to consider whether from the 2008 conduct, you can conclude that the accused has the tendency asserted by the Crown. That is, does that evidence from 2008 establish that the accused has a tendency to threaten and be physically violent towards women with whom he is in an intimate relationship? If you find both of those things, that is firstly that that conduct occurred and from that conduct, you can conclude he has the relevant tendency, then you can use that tendency evidence in considering whether he has committed the offences charged in this trial in relation to Beverly Walters. You should bear in mind that this evidence that the Crown relies upon to establish tendency is just one part of the evidence the Crown relies upon in the trial. And you should give it what weight you think it deserves in the trial. The evidence of the other conduct in 2008 must not be used in any other way. It would be completely wrong to reason that because the accused has committed another crime or other acts of misconduct, he is therefore generally a person of bad character, and for that reason, he must have committed the offences in this trial. You cannot punish the accused for the other conduct attributed to him by finding him guilty of the charges in this trial. So you cannot reason in that way. That is not the purpose of the evidence being placed before you by the Crown. You cannot use the evidence of the 2008 events in any way against the accused unless you accept the Crown's argument that it discloses a tendency to be threatening and physically violent towards women with whom he had an intimate relationship, and for that reason it makes it more likely he committed the offences against Beverly Walters. The evidence relied upon by the Crown in relation to the alleged events of 2008, is it a type of evidence that might provoke people to have an emotional response to it, because it might be regarded as distasteful for a person to have acted in the way that you heard read out in Court. You must be careful to avoid allowing any emotional response to distract you from a calm and objective assessment of the issues in the trial. So what that means, ladies and gentlemen, that evidence that I will call the tendency evidence, is but one aspect of the Crown case. So that evidence of itself could never establish these offences. So it is that evidence in combination with the other evidence that the Crown leads, that the Crown relies upon." 1. 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). 2. 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. 3. 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. 4. 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: "(a) The manner that was chosen to adduce the evidence necessarily precluded the applicant from cross examining Mrs Taylor and Mr Vogt. The applicant was denied the opportunity to portray the context of these events through cross examination of the witnesses as to what happened in October 2008 and the lead up to it. (b) The sustained nature of the conduct portrayed in the agreed facts tendency evidence was highly emotive, notwithstanding directions for care in this regard. There is reference to injuring a dog. There is repeated reference to the pain of Mrs Taylor[.] There is repeated reference to the pain she was experiencing. This perforce had a cumulative impact. (c) The severity of the violence in 2008 must have fed into the jury's assessment of the intent of the applicant when he was in the corridor in Counts 4 and 6 and on the balcony in Counts 10 and 11. Yet the level of violence in 2018 was either nil or minor (the raised chair at a distance). (d) The fear repeatedly referred to on the part of Mrs Taylor was based on a history of domestic violence in the marriage and thus well founded based on the history of the couple. This was then at risk of influencing consideration of fears expressed in 2018 by reason of noises at a door, which did not lock properly, and a man suddenly appearing five storeys up on an apparently inaccessible balcony, although the basis of fear was actually different. (e) When the applicant made the admissions in November 2010 in advance of sentence proceedings there was no feasible way of his knowing than in 2019 these admissions would be used against him in unrelated proceedings." 1. 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: "a) the tendency evidence was briefly set out and was unlikely to have distracted a jury from the proper determination of the count on the indictment; b) the tendency evidence was not significantly more serious than the conduct relied on in relation to the counts on the indictment, such that the jury's consideration of those counts was unlikely to have been clouded by an emotional response to the tendency evidence". 1. 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)". Relevant statutory provisions 1. Section 97(1) of the Evidence Act deals with the tendency rule. It provides as follows: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible 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 unless— (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value". 1. 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: "(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." (emphasis added). 1. 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: (i) be relevant to a fact in issue in the sense of being rationally capable of affecting the assessment of the existence of a fact in issue; (ii) be of "significant probative value", that is to say something more than merely relevant; and (iii) not only outweigh the danger of prejudice to the accused but to do so substantially. 1. Section 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the 2020 amendments) as follows: "Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant." The word "substantially" was omitted from the subsection and the expression "the danger of unfair prejudice" was introduced to replace the phrase "prejudicial effect". 1. In introducing these changes, Attorney General Speakman said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 at 1916): "Item 1 [4] to the bill amends section 101 in relation to both tendency and coincidence evidence in all criminal prosecutions to provide that tendency or coincidence evidence will not be admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. Changing the test from substantially outweighs to simply outweighs seeks to address the asymmetry in the assessment of whether evidence with significant probative value should be admissible under the current test, which is disproportionately weighted towards the exclusion of such evidence. It would strike an even and appropriate balance between the competing interests of ensuring that relevant tendency and coincidence evidence with significant probative value is admissible, and in preventing unfair prejudice to defendants in criminal proceedings. Item 1 [4] to the bill replaces the term 'any prejudicial effect it may have on the defendant' with 'the danger of unfair prejudice to the defendant'. Although the existing form of words is understood to refer to unfair prejudice, the proposed provision would mirror the formulation of section 137 of the Evidence Act, which sets out the test for when prejudicial evidence must be excluded in criminal proceedings. That provision is: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The High Court recently held that the expressions 'prejudicial effect' in section 101 and 'unfair prejudice' in section 137 convey essentially the same idea of harm to the interests of the accused by reason of a risk that a jury will use the evidence improperly in some unfair way. The reform would align the language of the provisions with the consistent interpretation. This approach was favoured and largely supported by legal stakeholders. Taken together, the proposed reforms to the first and second limbs of the test for admissibility of tendency and coincidence evidence are intended to facilitate greater admissibility of this evidence while retaining important protections to protect an accused person's right to a fair trial." 1. 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: "Despite textual differences between the expressions 'prejudicial effect' in s 101, 'unfairly prejudicial' in s 135 and 'unfair prejudice' in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. Here there was not a real risk of the jury using the tendency evidence in such an unfair way." (footnote omitted). 1. 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. The nature of tendency evidence 1. 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: "Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion." 1. 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: "Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. … Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion." 1. 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: "Tendency evidence – be it of character or reputation or of conduct other than an occasion in issue in a proceeding – is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to 'postdict' the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue." (footnote omitted). Four High Court decisions 1. 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. 2. 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. 3. 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. 4. 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: "The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest." 1. 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: "Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated." 1. As to the meaning of "significant probative value", their Honours said at [46]: "The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding." 1. 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. 2. 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. 3. 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. 4. The Hughes majority held at [39] that: "Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence." 1. 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". 2. The majority concluded at [41] that: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. … In summary, there is likely to be a high degree of probative value 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". 1. 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 jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years." 1. 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: "Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together." (emphasis added, footnote omitted). 1. 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: "…the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant." (footnote omitted). 1. In Bauer at [61], the Court also held that: "The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was." (footnote omitted). 1. 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. 2. 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. 3. 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'". 4. 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. 5. 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. 6. 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. 7. 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. 8. 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: "'B''s and 'C''s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against 'A' to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' ten years before, in different circumstances, and without any evidence other than 'A''s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act." (footnote omitted). 1. 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". 2. 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. 3. 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. Summary of principles 1. 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: (i) the starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice: see, for example, Elomar at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139]; (ii) if the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That definition mirrors the definition of "relevant evidence" in s 55 of the Evidence Act; (iii) if the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as "significant" within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM, that the evidence must have a probative value extending beyond the mere fact that it is relevant; (iv) the assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest: see IMM (see at [98]-[99] above); (v) evidence will be of "significant probative value" if it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: (see Hughes at [16]; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-176; (1995) 140 ALR 701; R v Lockyer (1996) 89 A Crim R 457 at 459 (Lockyer)) or if it has more than mere relevance but something less than a "substantial" degree of relevance: see Lockyer at 459; DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [58] and [60]; (vi) it is not necessary in order for the evidence to have significant probative value that it be strikingly similar or even closely similar conduct: see, for example, Hughes at [38]-[39]; Ford at [38]; PWD at [79]; or that it have an underlying unity with the charges: see Saoud at [39]; (vii) whilst in order to qualify as tendency evidence, the conduct sought to be adduced does not necessarily need to bear a striking or even close similarity with the offences charged (see proposition (vi) above), the closer the degree of similarity, the more significant and more probative the evidence is likely to be: see BP at [108]; DAO at [180]; AC v R [2016] NSWCCA 21 at [58]; O'Keefe v The Queen [2009] NSWCCA 121 at [60] (O'Keefe). This is because the specificity of the tendency directly informs the strength of the inferential mode of reasoning: see El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [72] (El-Haddad); Hughes at [93]-[94]; (viii) nevertheless, any degree of similarity need not reach the level required for coincidence evidence: see KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 at [51]–[54]; (ix) similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself such that, even if the conduct itself is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of "significant probative value": see RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [141]-[143] (RH); (x) conversely, the level of generality of the evidence may affect the significance of its probative value: see Townsend v Townsend [2001] NSWCA 136 at [78]; Ibrahim v Pham [2007] NSWCA 215 at [264]; El-Haddad at [70]; Ford at [53]; DAO at [179]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [85] (Aravena); O'Keefe at [60]; Sokolowskyj v R [2014] NSWCCA 55 at [40] (Sokolowskyj); SSN v R [2012] NSWCCA 163 at [38] (SSN). It has been held, for example, that evidence that the accused had sexual contact with two boys in their early teens was not, by itself, sufficient to be of "significant probative value" in a case where the accused was charged with 6 counts of homosexual intercourse with a male aged between 10 and 18 years of age: see R v Milton [2004] NSWCCA 195 at [31] (Milton); see also R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 at [50] (Fletcher); (xi) tendency evidence obtains no more probative value than it otherwise bears simply by adding general factors to describe the tendency that have by themselves little significance: see O'Keefe at [62]; (xii) whether or not the evidence sought to be tendered in support of the asserted tendency is "significant" does not in itself involve an assessment of the degree or extent to which the evidence is "significant", so long as it bears that characterisation, however the degree of significance is relevant for the s 101(2) weighing exercise; (xiii) a concession that evidence sought to be adduced in support of the asserted tendency is of significant probative value therefore does not relieve the Court of the need to consider the degree of significance which that evidence has; (xiv) the degree of significance of the evidence sought to be adduced as tendency evidence may be affected by: (a) the number of times the tendency asserted has manifested itself in the evidence sought to be adduced: see, for example, RHB v The Queen [2011] VSCA 295 at [20]. Thus, a "single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue": see Aravena at [89], cf. Ford at [45], where Campbell JA outlined that "it is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions"; see also Knight at [11]; (b) the similarity of the circumstances in which the prior conduct occurred: see, for example, Milton at [31]; Fletcher at [57] and [68]; and R v Smith (2008) 190 A Crim R 8; [2008] NSWCCA 247 at [17]; (c) the distance in time between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced: see, for example, McPhillamy at [30]-[32]; R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at [64] (Watkins) (where it was held that pleas of guilty to charges of fraud in relation to conduct 10-15 years prior to trial for similar offences was too great a distance, in circumstances where the Court acknowledged that people do reform and that Watkins' plea to the earlier offences might have thrown doubt on the continuation of the tendency 15 years (after); Semaan v R (2013) 39 VR 503; [2013] VSCA 13 at [41]; Anthony v Morton [2018] NSWSC 1884 at [336]; and Aravena at [89]. (d) however, despite large temporal gaps, other linking factors between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced may nevertheless result in such evidence have significant probative value: see, for example, R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 at [36]; R v SK [2011] NSWCCA 292 at [27] (SK); RH at [115]-[117]. One example of this is where an accused admits that the tendency disclosed by earlier conduct continued over time, thereby rendering a temporal gap largely immaterial: see RDT at [36] and [41]; (e) conversely, the absence of any evidence as to the manifestation of the tendency in a lengthy intervening period will undermine the likely probative value of the historic tendency evidence: see, for example, Watkins at [36]; (f) the nature of the proceedings and the particular offences charged in a criminal case: see, for example, Hughes at [16]; (g) the identity of the witnesses providing the tendency evidence and any relationship they may have to a complainant: see, for example, SSN at [51]; (h) the issue to which the evidence is relevant: see, for example, Hughes at [42]. For example, a tendency expressed in general or even generic terms of a characteristic with no particularly unusual factors will be of little probative value when it is sought to be used to establish the identity of an offender, in the case of disputed identity: see O'Keefe at [65]; (i) the existence of other evidence relied upon by the Crown to prove the underlying charges, and the relationship of that evidence to the tendency evidence sought to be adduced: see, for example, O'Keefe at [59]; (xv) there is likely to be a high degree of probative value 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: see, for example, Hughes at [41]; (xvi) tendency evidence need not directly establish all elements of an offence charged: see Armstrong v R [2017] NSWCCA 323 at [20] (Armstrong); (xvii) prior to the 2020 amendments to s 101(2), the significant probative value of the evidence had to substantially outweigh the danger of prejudice. "Substantially" is a stronger concept than "significant" as used in the expression "significant probative value" in s 97(1) of the Evidence Act. It is emphatic and places a high hurdle in the way of the admission of evidence that is not only relevant but significantly so; (xviii) following the 2020 amendments to s 101(2) of the Evidence Act, tendency evidence cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. The amendments to s 101(2) of the Evidence Act have been regarded as reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence: see R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at 528-531; (xix) the assessment required under s 101(2) involves the trial judge making an evaluative judgment; it is not a discretionary exercise: see, for example, R v Cook [2004] NSWCCA 52 at [38]; and Ford at [63]. (xx) the nature of tendency evidence is inherently prejudicial (see SK at [34]; and RH at [169]), and may have a powerful subconscious effect on a jury: see Hughes at [71]-[74]; (xxi) there is an inevitability that prior illegal acts, especially perhaps where the illegal acts relate to alleged sexual acts or acts of domestic violence, will be prejudicial in terms of their impact: see, for example, Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 at [80]; (xxii) "unfair prejudice" in s 101(2) as amended refers to harm to the interests of the accused that is unfair, because there is a real risk that the evidence will be misused by the jury in some unfair way, for example, by providing some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: see Ford at [56]; R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at 325; [1999] HCA 37 at [91]; R v Suteski (2002) 56 NSWLR 182 at 199; [2002] NSWCCA 509 at [116]; SSN at [37]; and R v MM [2014] NSWCCA 144 at [43]; (xxiii) unfair prejudice might arise from: (a) the nature or quality of the conduct the subject of the tendency evidence; (b) whether or not it has been established or the subject of admissions; (c) where it involves a plethora of factors that might give rise to a confusion or distraction; (d) whether it is corroborated; (e) an underestimation by the jury of the number of persons who share the tendency: see Hughes at [17]; (f) where there has been no past conviction or admission as to the past conduct, the need for an accused to answer uncharged conduct potentially stretching back over many years: see Hughes at [17]; and (g) a jury's emotional or irrational response to particular tendency evidence; or (h) any combination of the above (non-exhaustive) factors; (xxiv) when considering whether the probative value of tendency evidence outweighs its prejudicial effect, the Court is entitled to take into account that juries are to be properly directed as to the use to which such evidence is to be put: see PWD at [90]; RH at [176]; and Armstrong at [24]; (xxv) acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits, and judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice: see, for example, R v Allen [2020] NSWCCA 173 at [111], [115] and [152]-[160] (Allen); (xxvi) there will be cases (of which McPhillamy is an illustration) where directions to a jury, even coupled with an assumption that they will be conscientiously followed, will be incapable of overcoming or ameliorating prejudice: see, for example, Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [113], [128] and [129]; R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 at [83]; and Sokolowskyj at [48]; (xxvii) "[a]n assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s 101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence": see Sokolowskyj at [56]; see also Allen at [154]. This may, for example, be because of the nature or extent of the prejudice which the evidence carries or the subconscious effect on the jury, notwithstanding directions; (xxviii) the corollary of the proposition confirmed in IMM, namely that the probative value of the tendency evidence is to be assessed on the basis that the jury will accept it at its highest, is that, to the extent that that evidence carried prejudice to an accused, that prejudice is to be assessed on the same basis, namely that the jury will accept the evidence at its highest. In other words, the impact of any prejudice is not to be reduced by reason of the fact that the jury might not accept the evidence as credible or reliable. Consideration 1. 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. 2. 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. 3. 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: (i) the conduct it established occurred in very different circumstances to the conduct the subject of the charges: it was conduct that was directed to the applicant's wife of 30 years; involved elements of alcohol (drinking after the dog show), the presence of another man, Mr Vogt, who appeared to be close to the applicant's former wife, a dispute over money (the $2,000 cash from the sale of dogs) and physical violence involving the breaking of at least 3 ribs and repeated blows to the head: see [74] above. (Interpolating here, the degree of violence in the 2008 conduct involved, and the charge of reckless grievous bodily harm to which the applicant pleaded guilty, would inevitably have been highly prejudicial in the eyes of the jury); (ii) no physical violence to anybody's person was involved in counts 4, 6, 8 or 9; (iii) the passage of time between the events the subject of the tendency evidence and the matters charged – a period of about 10 years – coupled with the lack of any evidence of violence towards women in the intervening years or an admission by the applicant of a continuing tendency to threaten and exhibit violence towards women with whom he was in a relationship; and (iv) as such, it was only evidence of violence towards one other woman. To make this observation is not, of course, to condone violence towards women in any way: such conduct is at all times abhorrent. It is, however, to focus on the purpose of the tendency rule and the requirement that tendency evidence have an elevated level of probative value before one even reaches the weighing exercise required in a criminal trial by s 101(2), at which stage the probative value must outweigh (and substantially outweigh, prior to the 2020 amendments) the prejudicial effect; (v) the relative generality with which the tendency was formulated. I do not consider that it could be described as "strongly support[ing]" the proof of a fact that makes up the offence charge, cf. Hughes at [41]. 1. 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]. 2. 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. 3. 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. 4. 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. 5. 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. Orders 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. Although leave to raise this ground should be granted, ground 2 should be otherwise dismissed. 8. Insofar as the further disposition of the appeal is concerned, I agree with the orders proposed by Beech-Jones J. 9. 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: Tendency Evidence 1. 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. 2. 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]). 3. 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. 4. 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. 5. 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"). 6. 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. 7. 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]). 8. 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]): "It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with 'B' and 'C' is relevant to proof that he committed the offences alleged by 'A', but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak." (emphasis added) 1. 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. 2. 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. 3. 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]): "Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together [citing Hughes and R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]). The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A''s account that the appellant followed him into a public toilet and molested him." 1. 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]). 2. 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: "[i] The 2008 conduct occurred in excess of 9 years prior to the trial allegations. [ii] The 2008 conduct was in the context of the end of a thirty (30) year marriage, which had born two children, presumably raised to adulthood by the married couple. [iii] The 2008 conduct was manifestly at the end of that long relationship. [iv] The relationship with the complainant Ms Walters may have been seen as at the end of their relationship, but i[t] had been short. They cohabitated for not more than five or six months. [v] The applicant and his wife had cohabited at the one address at [xxxx] for 11 years. [vi] At the time of the 2008 [conduct] it could not be said that the pair were in an "intimate relationship". It was nakedly hostile. [vii] Mrs Taylor was packing her bags to leave in 2008. In 2018 it was the applicant's bags that were being packed by Ms Walters. [viii] The circumstances in 2008 plainly raised suspicions of too close a friendship between Yvonne Taylor and Steve Vogt. There is manifestly an element of jealousy involved. [ix] Mr Vogt, being a male, was present and a participant in the dynamic of the exchange. [x] The degree of violence in the 2008 conduct was sustained and brutal. Three ribs were fractured and possibly two more. There were repeated blows to the head. [xi] In 2008 a vehicle was used, driven in a jerky manner causing pain to the broken ribs. [xii] There had been a history of domestic violence throughout the marriage. [xiii] There is severe and varied corporal violence involved in 2008. There is no physical violence against any person in 2018. [xiv] There is in 2008 threated violence against a dog ("man's best friend" and very emotive)." 1. 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. 2. 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. 3. Accordingly, I am satisfied that the tendency evidence had significant probative value (Evidence Act, s 97(1)(b)). 4. 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. 5. I would grant the applicant leave to raise this ground but dismiss the ground. Relief 1. 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. 2. 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. 3. 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. 4. 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. 5. Accordingly, the orders that I propose are: 1. The applicant be granted leave to appeal against his conviction on count 9 of the indictment presented against him on 4 June 2019, being an offence under s 111(2) of the Crimes Act 1900, that the appeal be allowed, the conviction set aside and an acquittal be entered; 2. The applicant be otherwise granted leave to appeal against his convictions but the appeal be dismissed; 3. That the aggregate sentence of imprisonment imposed on the applicant on 5 November 2019 be set aside, and in lieu thereof the applicant be sentenced to aggregate term of imprisonment for 14 months commencing 5 October 2019 and expiring on 4 December 2020, with a non-parole period of 10 months; 4. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence that make up the aggregate sentence are: 1. Count 4 – 12 months imprisonment; 2. Count 11 – 4 months imprisonment; 3. Count 12 – 4 months imprisonment. ********** Amendments 23 December 2020 - At [88], the last sentence has been reformatted. At [122](xvii), in second sentence, "... concept that ..." has been changed to "... concept than ..." 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: 23 December 2020