Supreme Court New South Wales Medium Neutral Citation: R v Holmes (No 5) [2021] NSWSC 115 Hearing dates: 1, 2, 3, 4, 5, 8 and 9 February 2021 Date of orders: 9 February 2021 Decision date: 09 February 2021 Jurisdiction: Common Law Before: Campbell J Decision: 1. The accused is granted leave to rely on the tendency notice served on 8 February 2021; 2. Evidence of the seven matters contained in the accused's tendency notice is admissible subject to requirements of form; 3. Dispense with the reasonable notice requirement under s 97(1)(a) of the Evidence Act 1995 (NSW), subject to the condition that the Crown have the liberty to call such additional evidence as necessary to meet the tendency evidence, after any necessary adjournment and whether in its case in-chief or in-reply, at the Crown's election. Catchwords: EVIDENCE — Voir dire — Tendency evidence —Tendency notice — Defence failure to serve tendency notice within relevant time — Whether Court should dispense with the notice requirement under s 100(1) of the Evidence Act EVIDENCE — Tendency evidence — Significant probative value — Murder — Evidence of a tendency of the deceased to resort to irrational violence following the consumption of alcohol — Defence application to rely on tendency evidence allowed Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 97, 100, 101 Criminal Procedure Act 1986 (NSW) s 130A Cases Cited: Hughes v The Queen (2017) 263 CLR 338 R v Cakovski [2004] NSWCCA 280 Elias v R [2006] NSWCCA 365 Texts Cited: N/A Category: Procedural rulings Parties: Regina (Crown) Shane Holmes (Accused) Representation: Counsel: Robert Munro (Crown) Angus Webb (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Adrian Kiely Legal (Accused) File Number(s): 2018/20429 oral Judgment - revised 1. The accused is standing trial for the murder of Chad Hadden. The trial concerns events that occurred in January 2018. Mr Hadden did not die until June 2018. 2. When arraigned on an indictment, charging him with the murder of Mr Hadden, and in the alternative with his manslaughter, the accused entered a plea of not guilty to murder but guilty of manslaughter. In the exercise of his discretion, the learned Crown Prosecutor rejected that plea in discharge of the whole indictment. Notwithstanding that circumstance, the accused, Mr Holmes, has adhered to the plea entered throughout. 3. This judgment concerns a very late application by the defence to rely on tendency evidence. Yesterday was the sixth day of the trial, including Monday, 1 February 2021. On that day an opportunity was provided to the parties to make applications of a legal nature or concerning the admissibility of evidence before the jury was empanelled. No mention was then made by the defence of any application to introduce tendency evidence, even though Mr Webb of learned counsel, a barrister of considerable seniority and experience, has explained to me that the issue first occurred to him on Sunday, 31 January 2021, when he was preparing for the commencement of the trial and he had cause to consider the criminal record of the deceased, which was included within the brief having been produced under subpoena as long ago as January 2020. 4. I took time this morning, during oral argument, to make clear that the circumstance that the matter was raised with me only yesterday, 8 February 2021, was very unsatisfactory. I will not take time to go over that ground again which occurred in the context of an exchange between me and Mr Webb about the Crown's argument in relation to prejudice. I will not take the time to document that now because I have decided, as the transcript of this afternoon's proceedings will show, that the interests of justice require me to give an oral judgment even if I would have wished to allow myself more time to consider this issue of some complexity and to provide more comprehensive reasons for my decision in relation to the matter which I have indicated to the parties is that I propose to permit the accused to lead the evidence as tendency evidence, notwithstanding the strong and well-taken objection of the Crown. 5. I am informed that the requirements of the Supreme Court Rules 1970 (NSW) are that a tendency notice is to be given no later than 21 days before the commencement of the trial. As I have said, Mr Webb has candidly conceded that the material which led to his consideration of this issue was within the papers with which he was briefed. 6. The tendency notice expresses the tendency contended for as follows: "It will be alleged that the deceased has a tendency to resort to irrational physical violence, sufficient to cause substantial injury to persons and property. The tendency, when manifest against persons, consistently resulted in bodily injury. The tendency tends to manifest itself against people variously near to the deceased, partners, a parent, and in this matter an old friend. The tendency frequently manifested itself following the consumption, by the deceased, of alcohol or other drugs." The circumstances are set out in the documentation appearing at the end of paragraph 3 of the tendency notice evidencing the commission by the deceased of seven offences involving violence between 28 August 1994 and 12 March 2017. I will annex pp 2 to 5 of the tendency notice as a schedule to the transcript of these reasons. These summaries were provided to the legal representatives of the defence at their request by the officer in charge of the investigation last week after the trial commenced before me, as I understand what Mr Webb has said. 1. I do not propose, notwithstanding the matters urged upon me by the Crown, with respect, to descend into the details of each and every matter for the purpose of this oral judgment. Notwithstanding the nuanced and complex way in which the matter has been formulated in the tendency notice, I think it fair to adopt a working summary by reference to the formulation in shorthand of Mr Munro, Crown Prosecutor, in his careful written submissions about the matter. Learned counsel expressed it this way: "The purported tendency of the deceased includes, in summary, resorting to irrational violence following the consumption of alcohol or drugs." (Original emphasis) 1. As things presently stand, there are two issues of fact in the case so far as the Crown are concerned, with the defence contending for a possible third. I will explain myself. The Crown accurately state the issues as have been opened to the jury so far as follows: 1. the state of mind of the accused at the time he struck the fatal blow, and 2. whether the accused struck the deceased in the head with an open hand or closed fists after the deceased had fallen ground. 1. I need to say something briefly about the basic facts as disclosed by the evidence in the Crown case. The accused and the deceased had been, in their younger years, friends but had become estranged. They remade contact in or about December 2017 through social media after an interlude of nearly 20 years. The evidence suggests that they quickly took up a close personal friendship. 2. On the afternoon of 14 January 2018, they attended the Queens Wharf Hotel here in Newcastle together. They entered the hotel at about 2 pm and were there for four hours before an incident between them occurred. According to his ERISP, the accused said they had consumed alcohol. He said that they had had a stubby of beer on their way to the railway station to come into town and, while at the hotel, they had consumed between them four buckets, each containing four stubbies of Corona beer. On this account, during that afternoon it would be open to the jury to infer that each of them had consumed nine stubbies of full-strength beer. 3. An altercation or scuffle broke out between them. Again, according to the ERISP which has been played to the jury, the accused attributed the scuffle to the deceased accusing him of stealing his cigarette tobacco. There is no issue in the trial that the altercation or scuffle was initiated by the deceased. The jury have seen footage of the CCTV recorded at the hotel (Exhibit C) in part depicting the scuffle, which was short-lived and broken up by other patrons and intervening security. During his ERISP the accused told police that, although the fight had been started by the deceased, the accused was able to gain the upper hand. 4. The Crown relies upon those circumstances as part of the evidence from which it will ask the jury to infer that the only rational inference available on the whole of the evidence is that when he struck the fatal blow the accused intended to inflict really serious bodily injury upon the deceased. 5. Following the altercation and the intervention of security, the accused and the deceased were separately ejected from the hotel. The accused was ejected first and he was sent off in a westerly direction along the harbour foreshore. When security was satisfied he was making his way away from the hotel, the deceased was ejected and sent on his way eastward. I am not criticising the hotel, but the evidence establishes that on that weekend the deceased had been staying with the accused at his place. It is therefore perhaps unsurprising that after heading East, the deceased doubled back in a westward direction and soon met up with the accused. In his account, the accused told police that he became aware of the presence, or the re-appearance, of the deceased when he heard him calling out in an aggressive fashion from across Wharf Road. 6. The accused, I infer, stopped and waited for the deceased to cross Wharf Road and told police that when that occurred, the deceased came up to him. From his description and demonstration on the ERISP, I would infer, the deceased got close into his personal space and, pointing his finger close to the accused's face, more than once, said, "You ever do that, I'll kill you". From the accused's description, which was given more than once in similar terms in answer to the investigator's questions, it is quite clear that the accused's version is that the deceased was very aggressive with him. At least it would be open to the jury to think that is implicit in the account given by the accused, not only from what he said, but how he demonstrated the event, as depicted on the AVL recording made by police. 7. The accused told police, "I thought, 'Oh, what, kill me, you're gonna kill me...I've done nothing and you accuse me of stealing your smokes and you're going to kill me'", so I punched him". He explained that he punched him, "because he angered me, he threatened me, you know, he threatened me". Although in that account, he denied that he was of the belief that the deceased was capable of carrying out the threat and said that he was not concerned that the deceased was actually going to kill him. 8. In answer to further questions he said that he thought, "Are you going to kill me, are you...? Boom". I take the onomatopoeia to be an indication of what ordinary people might call a brain snap, although that will be a matter of the jury. When asked about his intention, he said, "I didn't have an intent. I didn't have an intent, it was like boom, you know what I mean?". 9. It seems reasonably clear - perhaps not crystal clear - on the evidence of the specialist forensic pathologist, Dr Elstub, that most of the fatal injury was received as a result of the deceased falling backwards after he was struck, striking his head heavily, under considerable force, on the concrete pavement. The fact of the infliction of the fatal blow is the second matter relied upon by the Crown on its case on intent. 10. The third matter relied upon to establish intent is that four lay witnesses, who did not see the fatal blow but who saw the immediate aftermath when the deceased was on the ground, have given evidence that the accused struck the deceased hard about the face and head while he was on the ground more than once, while uttering profanities at him in an aggressive voice. From this combination of factors the jury will be asked to infer intent. 11. There is an issue of primary fact about the nature of those subsequent blows. Three out of four witnesses gave evidence that the blows were struck with a closed fist. The fourth was unable to say which of a closed fist or open hand was used. In his ERISP, the accused insists that he did not punch him, but concedes that he slapped him two or three times about the face. He demonstrated with a swinging lateral movement of each of his arms and hands. 12. I interpolate that on the basis of that evidence, when the matter was before me and a jury last year, I ruled that there was no evidence of a viable case in self-defence to be left to the jury. See my decision of 18 February 2020, [2020] NSWSC 103. 13. The third factual matter which I referred to in the opening of these reasons is that, notwithstanding my previous ruling and the provisions of s 130A of the Criminal Procedure Act 1986 (NSW), Mr Webb is hoping to argue that it is in the interests of justice that I review that decision, essentially because he has indicated to me, and to the Crown, that it is intended that the accused will give evidence and that evidence will contain additional facts, which will provide a basis for leaving excessive self-defence to the jury. 14. We have reached the stage in the trial where the Crown, but for this application to introduce tendency evidence, is about to close his case and indeed the only matter which has stayed his hand in that regard is the need for a decision to be made on whether this evidence would be admitted. I have already indicated my decision, adverse to the Crown, before the commencement of these reasons. 15. The additional evidence which Mr Webb expects will be given has been admitted on the voir dire as Exhibit 1. It consists of a memorandum of extracts from a handwritten proof of evidence, or statement of instructions, provided by the accused, I am told, to his previous representatives before the commencement of the trial in February 2020. The extracts, which were read to me during the course of argument, are to the effect that the original friendship I have referred to was broken-up by the accused because he knew, and presumably disapproved, of the deceased assaulting the deceased's partner and destroying property in the house they were renting. 16. He also gave what might be regarded as a slightly different version of that confrontation on the foreshore and I quote: (The deceased) proceeded to say "Now I'm going to kill you", with his hand pointed in my face then push (sic) his hand into my face (left cheek) and nearly poked my eye out with his finger. I then threw a hook style jab. He also sought to explain any difference in the version he gave to the police by saying, "I didn't want to implicate Chad and him get in trouble and go to prison for breaking a bond or parole, because I wasn't that angry with what he had done". 1. Whether on the basis of that evidence if given, I am persuaded by Mr Webb that I should reverse my decision of 18 February 2020, will have to await argument about that at the close of all of the evidence in the trial. 2. The matter had been mentioned before me at the end of last year to discuss its readiness to proceed in Newcastle and to identify the issues. At that time, the Crown indicated that they proposed to argue that the parties were bound by the decision I made on 18 February 2020 about excessive self-defence. However, when the matter was before me on 1 February, before empanelment, it seems that the prospect that there would be additional evidence had been discussed between counsel and the Crown did not seek a ruling either way under s 130A at that time, if that be the right way of putting that matter. 3. The tendency evidence that is sought to be led relates, as I have said, to seven convictions. There is no doubt that for each of the matters summarised in paragraph 3 of the tendency notice, the deceased was convicted in respect of significant acts of violence, albeit largely involving a person who, from time to time, was his domestic partner, but not always. The last offence in 2017 was against his father and on at least one of the occasions relied upon the deceased was violent to police. On another occasion it seems that the victim was another patron in a hotel at Parramatta whom the deceased had unsuccessfully attempted to rob. 4. The starting point for the admissibility of any evidence is of course, as I was reminded by the Crown yesterday, s 55 of the Evidence Act 1995 (NSW) which defines relevance and s 56 which establishes the general rule that relevant evidence is admissible, irrelevant evidence is not. The definition of relevance is in the following terms: "The evidence that is relevant in the proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". 1. Section 97 of the Evidence Act establishes the tendency rule. Section 97(1) is in the following terms: "Evidence of the character, reputation or conduct of a person, or a tendency that the 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 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". There are therefore two conditions to the admissibility of tendency evidence. The first is the provision of reasonable notice and the second is, not mere relevance, but "significant probative value". 1. The purpose of the provision of notice is no doubt the consideration that tendency evidence is the type of evidence which, generally speaking, is likely to catch an opposing party by surprise. Therefore, the interests of justice, that is to say, natural justice, require the provision of notice to give the opposing party a reasonable opportunity of meeting that evidence. 2. Notwithstanding the apparent importance of the s 97(1)(a) condition, the Court is empowered to dispense with the notice requirements. Section 100(1) is in the following terms: "The Court may, on application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97". By s 100(3) the application may be entertained by the Court, whether it is made before or after the expiration of the time when notice would have been required. As I have said, that seems to have been 21 days before the trial. The direction that s 97(1)(a) does not apply may be subject to such conditions as the Court thinks fit. And without limiting the Court's power to fashion conditions, s 100(6) sets out examples of conditions that may be imposed in the circumstances of a given case. 1. Where tendency evidence is adduced by the Crown in a criminal proceeding against the defendant an additional requirement of admissibility is imposed by s 101 of the Evidence Act. But the s 101 requirement does not arise in this case as the accused is the party seeking to adduce the tendency evidence. 2. Tendency evidence has received the attention of the High Court of Australia and intermediate appellate courts in Evidence Act jurisdictions throughout Australia quite frequently in recent years. The learned Crown Prosecutor referred me to a number of those decisions in his written submissions. I will observe that each of those decisions of high authority relate to the admissibility of tendency evidence on the application of the Crown. The context in which some of the statements of authority are expressed needs to be borne in mind. 3. Although the principles are immutable, it needs to be borne firmly in mind that in a criminal prosecution the Crown carries the onus of proving each and every element of the offence beyond reasonable doubt. An accused person, particular circumstances aside, carries no onus. There is no onus on the accused here. As a function of the criminal standard of proof, and the accusatory nature of criminal proceedings, it is sufficient to entitle the accused to an acquittal if the jury is left with the view that an accused's exculpatory version of events, where one is proffered, might be true as a reasonable possibility. And in my judgment one is to bear this important consideration in mind when considering the meaning of "significant probative value" in s 97(1)(b). 4. For instance, in the leading case of Hughes v The Queen (2017) 263 CLR 338 at [41] a plurality of the High Court consisting of Kiefel CJ and Bell, Keane and Edelman JJ said: "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. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved, it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". 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 proof of a fact that makes up the offence charged". It is quite apparent from their Honours' analysis that the explanation they have given for the guidance of other courts is conditioned strongly by the idea that often it is the prosecution that seeks to introduce the tendency evidence. "Beyond reasonable doubt" is the applicable standard of proof and the facts in issue relate to the legal elements of the offence. Matters may be somewhat different in terms of "significant probative value" when one deals with the evidence to be introduced by the accused. 1. For instance in R v Cakovski [2004] NSWCCA 280 at [36]-[41] Hodgson JA referred to this important difference, inter alia, and the circumstance that the accused did not carry the onus of proof. The tendency evidence in that case was said to relate to evidence that the deceased had, 25 years earlier, murdered three people. The majority (Hodgson JA and Hulme J) were of the view that the evidence was not admissible as tendency evidence but considered that it was admissible as relevant evidence simpliciter because it made the account of the accused, who had given evidence, less improbable. That is to say, that their Honours thought that the evidence was admissible on general principles. I should interpolate that Mr Webb relies upon the seven matters in the tendency notice only as tendency evidence and did not seek to have it admitted on any other basis. 2. The third member of the Court, Hidden J, said at [70]: "As to ground 2, concerning evidence that the deceased had murdered three people on an earlier occasion, I have some reservations about [Hodgson JA's] view, and that of Hulme J, that the evidence was admissible other than as tendency evidence. I agree that the evidence had probative force for the reasons identified by their Honours, that is, that it lent some credence to the appellant's account of the deceased's behaviour, which otherwise would have seemed highly improbable. However, in my view, it did so because it demonstrated a propensity on the part of the deceased to retaliate in an extremely violent way against anyone who crossed him. (Whether he was affected by alcohol is not the point.) This, it appears to me, is necessarily tendency evidence. The incident involving [another witness], although of a very different character, might be seen as a demonstration of the same propensity". His Honour went on to observe: "...the evidence about the murders was admissible as tendency evidence because it had significant probative value despite its remoteness in time and lack of circumstantial detail. That probative value was enhanced by evidence that the deceased referred to those murders in his altercation with [the other witness]. As it was evidence tendered by the appellant, it did not require the substantial measure of probative force mandated by s 101 of the Evidence Act 1995 and, as Hodgson JA has pointed out, it was tendered in respect of an issue upon which the Crown, not the appellant, bore the burden of proof". 1. As the Crown submitted, the reasoning of Hodgson JA and Hulme J in Cakovski was the subject of some criticism in the subsequent case of Elias v R [2006] NSWCCA 365. That was a matter involving a case of malicious wounding where the ground of appeal related to the failure of the trial judge to leave tendency evidence to the jury when the accused sought to rely upon self-defence. In that case the tendency evidence related to the alleged propensity of the victim to carry a handgun. 2. It should be pointed out in that case that the Court (Simpson J, McClellan CJ at CL and Rothman J agreeing, in the case of Rothman J with additional reasons) held that given the evidence was that the appellant was unaware of the tendency of the victim to carry a gun that tendency could not inform the jury's decision concerning self-defence because each limb of self-defence is conditioned, as to the first limb, wholly, and as to the second limb, in part, by the accused's subjective state of mind. Simpson J said that the tendency could rationally affect the probability that the applicant believed that shooting the victim was necessary to defend himself "if there was any evidence that, prior to the events in question, the appellant had been made aware of the fact sought to be asserted by the evidence in question. But there was no such assertion." Her Honour said that the evidence could not affect the probability that the applicant held such a belief and, accordingly, it was not relevant and failed the primary test of admissibility. 3. Having expressed those reasons, her Honour's comments about Cakovski may be taken to be obiter dictum. Her Honour observed that Hidden J took the view that the contentious evidence was tendency evidence and her Honour went on to say that she could not regard the evidence in contention, "as other than tendency evidence" (see [31]). 4. Sitting at first instance I am bound, of course, by both decisions. However, in particular I place emphasis upon the consideration that Hidden J would have been prepared to treat the contentious evidence as tendency evidence, and considered that it was admissible for the reasons he explained notwithstanding the consideration that as at the time of the murder of the deceased the accused was not aware of his previous criminal history. 5. I should also observe that in Hughes at [42] the plurality said that s 97 requires "an open-textured inquiry" into whether the probative value of the evidence is "significant". Their Honours observed that it is inevitable in such an exercise that reasonable minds might reach different conclusions. Their Honours cautioned that care needed to be brought to bear in undertaking that open-textured inquiry. 6. It seems to me that if I take into account the evidence that the accused is expected to give, as put to me by Mr Webb, there will be some evidence from which the jury may consider that there is at least a reasonable possibility that the accused had some knowledge of the deceased's criminal record for violence, given the statement about the circumstances of the break-up of their previous friendship and his apparent understanding that the deceased may have been subject to a bond or parole as at 14 February 2018. If the jury accept that evidence, it may be a basis for them to accept that when he confronted the accused at Wharf Road, after their ejection from the hotel, the conduct of the deceased was very aggressive, which circumstance may have informed the response of the accused. That factor, it seems to me, would be relevant to both the primary question of the accused's state of mind at the time he struck the fatal blow and perhaps to excessive self-defence if I am persuaded that the evidence is fit to require that matter to be left to the jury. 7. I am also of the view that, as I have tried to explain already, the requirement of significant probative value in relation to evidence sought to be led by the accused must necessarily be different from its assessment when the same evidence is sought to be led by the prosecution in proof of an accused's persons guilt, and that is a function of the standard and burden of proof. It seems to me that the evidence may well be significant when it comes to determining whether there is a reasonable possibility that the account of the accused is true which in turn may mean the jury is not persuaded beyond reasonable doubt that the prosecution has proved its case. For that reason, I am of the view that the tendency of the deceased to violence to those around him, especially when under the influence of alcohol, is capable of having significant probative value afforded it in the deliberations of the jury. 8. It is well accepted that when determining questions of admissibility, it is not for the Court to assess the likelihood of the evidence proposed being accepted by the jury. It is not only unnecessary, but it is impermissible, for the Court to undertake an assessment of its inherent reliability or even credibility. Those are matters entirely within the province of the jury. That the evidence expected to be given by the accused may depart in material aspects from the account recorded by the police is not a factor which informs the admissibility of the evidence proposed to be tendered, including the tendency evidence. Doubtless that consideration may provide fertile ground for cross-examination, but the question of its acceptance or rejection ultimately is for the jury who are the sole judges of the facts for this trial. 9. I need to return to address the question of whether leave should be granted to adduce the evidence in light of the lateness of the application. As I have said, the rules require notice to be given 21 days before the trial. The provision of notice is a condition of admissibility, although the Court has a discretion to dispense with that condition under s 100. However, all discretions need to be exercised judicially and having regard to the rights of both parties to a fair trial. 10. The Crown has drawn my attention to significant aspects of forensic prejudice arising from the timing of the service of the notice. They relate largely, without any disrespect, I will summarise the position, to the fact, and I have no doubt this is so, that had the tendency notice been given at the appropriate time, the Crown case would have been presented in quite a different fashion, lest I ruled that the tendency evidence was admissible. That factor relates, of course, to the question of whether my s 100 discretion should be exercised favourably to the accused. 11. It is quite true, as the Crown argue, that although the alleged offence was said to have been committed after the accused and the deceased had been in licensed premises for some hours, there has been no attempt to explore in any detail the impression of those who saw them at the point of their ejection of the relative state of intoxication of each of the accused and the deceased. It must be borne in mind that the tendency is predicated upon the deceased being intoxicated or at least having consumed alcohol or other drugs. 12. The Crown submit that if I were to admit the evidence it would require a considerable change of tack on its part. The gravamen of the detailed and careful submissions of the Crown is that the admission of the proposed tendency material will have the effect of poisoning the mind of the jury against the deceased when the evidence I propose to admit is directed towards a very narrow issue, namely the state of mind of the accused at the time he struck the fatal blow. However, that matter depends upon circumstantial evidence involving, as I have tried to indicate in my treatment of the evidence so far, factors occurring before, at the time of, and after the punch, from which the jury will be invited to engage in an inferential reasoning process. 13. For the reasons I have sought to explain, it seems to me that the purported tendency, if the jury are satisfied about it, is capable of being a factor to be weighed in that evaluative process in favour of the accused. 14. The circumstance in which this matter has arisen is, of course, most unsatisfactory, as I have said already. I accept that the obligation to procedural fairness applies equally to the prosecution and the defence. Having said that, there can be no doubt that in a criminal trial the primary focus of the affirmative duty of the trial judge to afford a fair trial is directed to the accused and this is especially so in a murder trial. And while bearing the Crown's position in mind, it seems to me that were I to refuse to admit the evidence on discretionary grounds, having determined that it is legally admissible, there is a real risk that the accused could be deprived of a fair opportunity of an acquittal of the more serious charge of murder. That is to say, there is a real risk that my discretion would miscarry. 15. For these reasons, I make the following orders, in accordance with the ruling I earlier indicated. 1. The accused has leave to rely upon the tendency notice, undated but served on 8 February 2021. 2. I rule that evidence of each of the seven matters in the tendency notice is admissible, subject to requirements of form. 3. Dispense with compliance with s 97(1)(a) of the Evidence Act 1995 (NSW), subject to the condition that the Crown have liberty to call such additional evidence as the learned prosecutor considers necessary to meet the tendency evidence, after any necessary adjournment and whether in its case in-chief or in-reply, at the prosecutor's election. 1. I should simply add to my reasons in respect of that last order. I regard the circumstances in which this application has been made as exceptional, justifying a departure from the rule that the Crown is not permitted to split its case. I regard the circumstances as exceptional, notwithstanding that details of the criminal record of the deceased were doubtless available to the prosecution before the commencement of the trial. There is a difference between being aware of a matter, on the one hand, and being aware that the matter will be raised against you, on the other hand. And that difference is not insignificant, in my view. 2. Should the Crown elect to call evidence in its case in-chief, as I indicated in the course of argument yesterday afternoon, I will, in consultation with counsel, fashion a direction for the jury that the calling of additional evidence should not result in any criticism of the prosecution whatsoever. 3. These are my reasons. ********** SCHEDULE REFERRED TO IN PARAGRAPH 6 OF THE REASONS OF CAMPBELL J Event 1: 28 August 1994 E 353485 Police were called about 1:30am by XXXXXX XXXXXXX because she and the deceased, her then boyfriend, had been arguing "after they had been out". He smashed a number of items, and threw other items, and broke holes in the interior walls of the house. He then grabbed XXXXXXXX by the throat and threw her against the glass pane of a door, causing it to shatter. When she attempted to call police, he removed her phone from her, and after arrest, he continued to threaten to "get the victim". Witnesses: XXXXXXX XXXXXX XXXXXXXX, Inspector XXXXX XXXXXXX Event 2: 22 August 1996 E 3503708 The deceased and XXXXXXXX were now residing in Warners Bay. That day they drank alcohol at his sister's place at Windale during the afternoon. At 7:45pm, the deceased proposed to drive the family home. XXXXXXXX demurred, because she felt that he was too drunk. In the argument that followed, the deceased grabbed his partner's hair and pushed her to the ground before a neighbour intervened, XXXXXXXX went back inside with XXXXX XXXXXX, who locked the door. The deceased then broke through the door, and further assaulted XXXXXXXX by punching her in the face. XXXXX intervened and XXXXXXXX called 000 from another location. Police attended and the deceased struggled violently with arresting police. The conduct was in breach of a current AVO. Witnesses: XXXXXXX XXXXXXXX, XXXXX XXXXXX, Senior Constable XXXXXXX. Event 3: 23 January 1998 H 6361088 On the evening of the above date the deceased was out with his unnamed partner. He drank a large amount of alcohol and commenced to abuse her. She went home to bed, and about ten minutes later the deceased broke in through a balcony door of the first floor unit and commenced breaking furniture. She then went downstairs where the deceased continued to break furniture and struck her to the head, she ran out of the house, and called the police. Hadden was taken to the John Hunter Hospital for treatment of injuries he had caused himself and was then taken and charged. Four large windows were broken, together with two television sets, a wall was holed, and numerous pieces of furniture were broken. An AVO was also breached. Witnesses: Senior Constable XXXXX XXXXXX, unnamed victim. Event 4: 17 July 2004 H 176872991 The deceased approached XXXXXXX XXXXX and her friend who were drinking at the Albion Hotel in Parramatta. A fight developed as he attempted to access the contents of XXXXXXX's handbag, she retrieved the bag from him, collected other belongings and commenced leaving the Hotel disco area. As she did so, the deceased pushed her forcefully from behind, causing her to fall to the floor, injuring her right wrist and right buttock. Security staff attempted to restrain the deceased but his aggressive conduct towards them enabled him to leave prior to the arrival of police. He subsequently entered a motor vehicle and drove north on the F3 freeway, crashing the vehicle at Ourimbah. After driving a short distance further, he left the vehicle and fled the scene. He was, at that point in time, a disqualified driver. Witnesses: XXXXXXX XXXXX, Senior Constable XXXXXX XXXXXXXXX. Event 5: 25 December 2005 H 27829983 On the above date, XXXXX XXXXXXXX was the protected person in a current AVO against the deceased. XXXXXXXX had allowed the deceased to move in with her two weeks before the assault, a relationship having been in place for seven months, she was two months pregnant to the deceased. At thirty minutes past midnight on 25 December 2005, XXXXXXXX and her ten year old daughter were asleep in the house at Mt Hutton. Her bedroom window was smashed and the deceased demanded to be let in. XXXXXXXX let him in whence he called her "a slut dog cunt", ranted and raved for a short period and then left. XXXXXXXX closed the door, and called Hadden's mother to come and collect him because of his drunken uncontrolled behaviour. Hadden repeatedly kicked an external glass door yelling for a lighter. XXXXXXXX called 000 when he broke the kitchen window, and climbed back in. XXXXX XXXXXXXX arrived, and the argument continued. He threw XXXXXXXX to the dining room floor, calling her again "dog slut cunt". She stood up and went to check on her daughter. When she came back, Hadden was insulting his mother, and then took a cigarette from XXXXXXXX's handbag, saying that the cigarettes were his. He then again seized XXXXXXXX and threw her against the wall. XXXXX XXXXXXXX called on him to leave with her, but instead he head-butted XXXXXXXX's forehead, causing immediate swelling. Police arrived at 1:00am hearing yelling and screaming. They formed the view that Hadden, who was bleeding from various injuries was under the influence of alcohol and/or other drugs. As police made observations of the premises Hadden decamped through the rear door, over the back fence, hiding in bushland until he was later apprehended. He was taken for treatment to Belmont Hospital and subsequently charged at Belmont Police Station, where he refused to be photographed or fingerprinted. Witnesses: Senior Constable XXXXXX XXXXXXX, Sgt XXXXXX XXXXXXX, XXXXX XXXXXXXX. Event 6: 30 August 2006 H 27554830 On the above date an AVO protecting XXXXX XXXXXXXX was currently in force. They had been in an eight month on and off de facto relationship, the deceased residing with XXXXXXXX from time to time, and otherwise with his mother. There were a number of arguments commencing on 27 August 2006. There were a number of assaults during the days prior to 30 August that were not reported to police. XXXXX XXXXXXXX had asked the deceased to move out but he had refused. Commencing about 8:20am on 30 August 2006, there was a further argument. She was called a dog and the deceased threatened to anally rape her. As the argument continued he threw juice over her, and then threw the glass at a wall. He then removed a necklace from her neck and went into her bedroom where she saw him collecting clothing of hers. She tried to stop him, so he grabbed her around the neck and with his other hand took her right arm and dragged her along the floor into the ensuite bathroom where he threw her against the gyprock wall, causing it to buckle inwards. Wheatley suffered injuries to her arm and shoulder. Hadden said" look what you made me do, I'm sorry", but then told her" you deserve it". XXXXXXXX tried to leave the bathroom by sliding backwards on her bottom, eventually getting to her feet. They continued to argue, until the deceased left, taking with him her house keys and items of her clothing. Police attended at 11:30am and observed her injuries. Hadden also returned to the house at about this time and was arrested. Witnesses: XXXXX XXXXXXXX, Detective Senior Constable XXXXX XXXXXXXX, Senior Constable XXXXX XXXXXXXX. Event 7: 12 March 2017 H 64153075 The deceased returned to NSW from the NT, and moved back into his parents home at Mt Hutton. At 2pm on the above date, XXXXX XXXXXXXX (82 years old) was in the kitchen at home. An argument developed over meat in the fridge during which the deceased said "I would not eat that shit of yours". Chad continued to abuse XXXXX, who told him he could leave. Chad continued to abuse his father, and the circumstances became very heated. Chad pushed his way into his father's bedroom, yelling and screaming "its mum's house". XXXXX continued to avoid the deceased by staying in his bedroom but the deceased again entered the room, punching and slapping his elderly father around the head causing immediate pain to the head, and face in particular. The violence continued, XXXXX using his left arm as a shield, whilst blows to his arm caused a laceration and bleeding. Although the deceased left the room he then commenced to open and slam closed the bedroom door, continuing the verbal abuse. XXXXX XXXXXXXX subsequently left the home, and sought the assistance of members of the community. 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: 19 February 2021