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History of the matter

4. OD (the complainant) met Damien Drummond (the accused) around 2012. Shortly after, they commenced an intimate relationship and started living together. They were married in March 2015. The couple had a troubled relationship and separated in March 2023. In January 2024, the complainant participated in an evidence-in-chief interview with police in which she made allegations against the accused.

5. The accused was originally indicted on two counts arising from those allegations, being: (a) Count 1: that on or between 1 January 2012 and 1 January 2017, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting; and (b) Count 2: that on 29 January 2019 he engaged in sexual intercourse with the complainant without consent, being reckless as to whether she was consenting.

6. The accused stood trial (“the first trial”) before a jury on both counts in June 2025. He was acquitted of the first count on the indictment, and the jury failed to agree on the second count.

7. The prosecutor seeks to retry the accused on the second count, which is now the only count on the amended indictment.

8. For the present purposes, it is relevant to refer to two pieces of evidence that were led at the first trial. First, the prosecution was allowed to lead tendency evidence in accordance with a ruling made by Taylor J in DPP v Drummond (a pseudonym) [2025] ACTSC 185. Secondly, the prosecution called evidence at the trial from Dr Silke Meyer, a professor at Griffith University who had expertise in the area of domestic, family and sexual violence. Dr Meyer’s expertise in sexual violence research is specific to the context of intimate relationships, that is intimate partner sexual violence.

The application for extension of expert timetable

9. The application to extend the expert timetable arose in the following way. In the course of Dr Meyer giving evidence in the first trial, the jury asked a question to the effect of: ‘Complainants often struggle with questions of consent.’ Does research show this includes complainant’s not realising they are in a domestic violence relationship?

10. Dr Meyer was asked this question by the presiding judge at the trial, McCallum CJ, on a voir dire. However, McCallum CJ did not permit that question to be put to Dr Meyer in the presence of the jury stating: The difficulty with that question is that in advance of the trial the Crown has disclosed the evidence they’re going to rely on. This invites additional opinions that were not in the report that was served on the accused and for that reason I am not going to put that question to the witness.

11. With the matter now headed for retrial, the prosecution sought an addition to Dr Meyer’s expert report, asking her to address the question: Does research show whether victim-survivors always realise they are in domestic violence relationships? What factors, if any, can influence this realisation?

12. Dr Meyer provided a lengthy response to this question by way of an appendix to her original report, dated 18 June 2026. I will not set out the response in full, but Dr Meyer did observe that “in the absence of physical violence, it can be particularly difficult for victim-survivors to identify their experiences as a form of DFV [domestic and family violence].”

13. The prosecution now seeks an order to extend the expert timetable in this matter so as to enable them to comply with their disclosure obligations in relation to the appendix.

14. Pre-trial disclosure of expert evidence is governed by div 8.3 of the Court Procedures Act 2004. Section 78 sets out the requirements for the mandatory pre-trial disclosure of expert evidence. Section 78(2) provides that pre-trial disclosure must happen before the date set for the trial. Section 78(3) provides: The court may vary the timetable determined under subsection (2) if it considers that it would be in the interests of justice to do so.

15. In DPP v Cross [2024] ACTSC 277 at [70], Taylor J, citing Coleman DCJ in R v Hansen [2022] NSWDC 746 at [11], set out the factors relevant to an assessment of whether pre-trial disclosure obligations are to be waived in the interest of justice, as follows: 1. An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance; 2. The explanation for the late disclosure; 3. Any prejudice that would be caused if the new material was able to be relied upon; 4. Any appropriate remedies, including an adjournment of the trial; and 5. Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.

16. As to an explanation for the late disclosure in this case, the prosecution rather breezily submitted that the late disclosure could be attributed to prosecutorial oversight, where there had been several changes of instructing prosecutors. That was a poor excuse. As the accused’s counsel pointed out, counsel in the matter had been the same since before the start of the first trial.

17. On the other hand, counsel for the accused conceded that she could not point to any particular prejudice due to the late service of the material, although she did point out that her cross-examination of the complainant during the first trial which is to be played as pre-recorded evidence in the jury trial before me in accordance with s 69(5) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) had been conducted on the basis of the material that had been served at that time.

18. The real issue, it seems to me, is the manner in which the material is to be used and its relevance. It seems to be of very marginal relevance. The Crown case appears to be that the complainant unambiguously told the accused to stop his activity, and, indeed, dug her nails into him, but he did not stop. The defence position, as I apprehend it, is that the incident did not happen. In those circumstances, it is difficult to understand how the jury would be particularly assisted in resolving the issue before them by an answer to the question of whether victim survivors always realise they are in a domestic violence relationship. As I will outline below, the Crown proposes to lead (and the defence does not foreshadow any objection to this) context evidence about the particular relationship between the complainant and the accused. To the extent that there is any issue, for example, about delay in complaint by the complainant, that issue will be illuminated by the context evidence.

19. In those circumstances, I do not consider there to be a risk that the exclusion of this evidence would mean that the jury would be presented with a misleading picture. They will have access to context evidence which will enable them to put the relationship between the complainant and the accused in its proper light.

20. For these reasons, I refused the prosecution’s application for leave to file an amended expert evidence notice.

Tendency application

21. The prosecution has filed a notice of intention to adduce tendency evidence, seeking to lead evidence of two incidents to prove a particular tendency.

22. In the first trial, the prosecution had been permitted by Taylor J to lead tendency evidence of one uncharged act and two incidents which were the incidents contained within counts one and two on the indictment as it then was: see DPP v Drummond (a pseudonym). However, a further uncharged act was not permitted to be led as tendency evidence.

23. Of course, now the landscape is somewhat changed. The accused was found not guilty of the first count on the indictment at the first trial. Accordingly, the Crown has given a further amended notice of intention to adduce tendency evidence of two incidents said to evidence the tendency, being the uncharged act admitted for the first trial by Taylor J, and the incident comprising what is now the only count on the indictment, previously count 2 in the first trial.

24. The evidence sought to be led was particularised as follows:

Particulars of date Incident and place

Incident 1 On occasion during the relationship between the Between 1 January complainant and the accused, the accused would return 2012 and 25 March (uncharged home from soccer and would “fool around” with the 2023 act) complainant. The accused would use “too many fingers” to Canberra, ACT digitally penetrate the complainant. The complainant would tell the accused that it “really hurts”. The accused would respond, “Oh you’re fine. It’s wet. You’re wet. You like it, it’s ok”. The accused would then hold the complainant down so that she could not pull his hands away.

Incident 2 When the accused commenced poking and touching the 29 January 2019 complainant’s nipples, she tried to “swat” him away. He then (Count 1) In the bedroom of the commenced rubbing the complainant’s leg. He then removed complainant and the the complainant’s underwear and climbed on top of her. The accused in Canberra, complainant told him to stop and continued to tell him to stop ACT while also hitting him. The accused then ‘came’ inside of the complainant.

25. The tendency sought to be proved by the tendency evidence is that the accused had a tendency to act in a particular way, namely, to engage in sexual intercourse with the complainant when she did not consent or had withdrawn her consent to sexual intercourse.

26. It is also of relevance to record that in the first trial, the prosecution was permitted to lead evidence of the two uncharged acts (that is one that was excluded as not admissible as tendency evidence and one that was admitted as tendency evidence) as context evidence.

27. I understand that the prosecution proposes to rely on those two uncharged acts as context evidence in the present trial, and that the accused does not object to that course. As I understand it, the prosecution will lead evidence of all four incidents as context evidence, and indeed, the context evidence will be more extensive than just those incidents, going to other aspects of the relationship. The defence sees some forensic advantage in having the incident involving the first count on the indictment in the first trial before the jury, no doubt wanting to point out the result of that count to the jury.

28. As noted above, the real issue in the trial seems to be whether the incident that is the subject of the now single count on the indictment actually occurred. The complainant gives evidence that, despite her saying no and digging her fingernails into the accused, he persisted. The defence position seems to be that the incident did not take place.

29. Of course, as Simpson J pointed out in Gardiner v The Queen [2006] NSWCCA 190 at [124], the whole point of tendency evidence 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.” As the plurality of the High Court said in IMM v the Queen [2016] HCA 14; 257 CLR 300 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.

30. There are constraints on the admissibility of tendency evidence imposed by the operation of the provisions of the Evidence Act 2011 (ACT). Firstly, the evidence said to demonstrate the tendency has to have significant probative value, see s 97. Further the probative value of the evidence said to demonstrate the tendency must outweigh the danger of unfair prejudice to the defendant, see s 101.

31. I am not convinced in the present case that the evidence relied upon by the prosecution in their application has significant probative value. The uncharged acts in Incident 1 which are relied upon by the prosecution are potentially remote in time from the incident that is the subject of the count on the present indictment. In that regard, the acts are said to have occurred sometime between 1 January 2012 and 25 March 2023.

32. Further, those uncharged acts do not unequivocally illustrate the tendency which is relied upon, namely to engage in sexual intercourse with the complainant when she did not consent or had withdrawn her consent. Given, as pointed out above, that the central fact in issue is whether the incident the subject of the count on the indictment took place at all, this reflects adversely upon the significance of the probative value of the tendency evidence sought to be led.

33. For those reasons I find that the evidence lacks significant probative value and I exclude it on that basis. I appreciate that Taylor J reached a different conclusion in her ruling in DPP v Drummond (a pseudonym), however the landscape in this case has somewhat changed given that at the first trial the accused was found not guilty of the first count.

34. The consequence of my ruling is that the prosecution cannot lead Incident 1 as tendency evidence, which leaves only the evidence concerning the count itself. The tendency application accordingly falls away.

35. I note that the prosecution will be able to rely upon the various incidents (including Incident 1 in the new tendency application) as context evidence. This context evidence will go to establishing the broader context of the relationship between the accused and complainant which would operate to explain, amongst other things, the complainant’s apparent delay in reporting these matters to police. Issues of the credibility of the complainant will no doubt loom large. The context evidence will be significant in enabling the jury to assess the complainant’s credibility.

Orders

36. The orders of the Court have the effect that: (1) the application to extend the expert timetable pursuant to s 78(3) of the Court Procedures Act 2004 is refused; (2) the application to adduce tendency evidence set out in the further amended notice of intention to adduce tendency evidence is refused.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice White. Associate: Date: