Ebborn v The King [2025] NTCCA 2

Ebborn v The King [2025] NTCCA 2 | Case summary | Zoe

[12]

[7] The Crown case at trial was that the applicant was 35 years old. He had a son ('R') who lived with a friend of the applicant ('TO') and TO's girlfriend ('complainant'). TO was 20 years old and the complainant was 21 years old. TO referred to the applicant as 'uncle'. The complainant knew the applicant reasonably well in these circumstances. The applicant had visited the home shared by TO and the complainant a number of times in the six months preceding the offending, including an occasion one or two weeks prior to the alleged offending.
[8] On Saturday, 18 September 2021, the applicant went out in Darwin and was drinking. At one point during the night, he saw the complainant and they had a brief conversation. The complainant later left with a friend.
[9] At around 5.00am on 19 September 2021, the applicant took a taxi to the home shared by TO and the complainant. At 5.09am, the applicant phoned TO, who was with R. TO told the applicant they were not at home, the doors were locked and not to attend the house. Six times between 5.02am and 5.20am, the applicant called the complainant's phone. She did not answer. She was at her home and asleep in bed.
[10] The applicant arrived at the home shared by TO and the complainant. He damaged a fly screen by pushing it through so that he could reach inside and unlock and open the back door. That was the alleged offending the subject of Count 1.
[11] The applicant unlocked the door and went inside with the intention of assaulting the complainant by touching her without her consent. That was the alleged offending the subject of Count 2.
[12] The applicant went into the complainant's bedroom and found her sleeping. He got into the bed and began having penile-vaginal sexual intercourse with her. She initially thought that the applicant was TO and lifted her buttocks to facilitate the intercourse. When she realised that it was the applicant, she tried to push him off and said: 'No'. The applicant persisted with the intercourse and said things like: 'You like that?'. That was the alleged offending the subject of Count 3.
[13] The applicant then forced his penis into the complainant's mouth as she said: 'No' and tried to push him away two or three times. That was the alleged offending the subject of Count 4.
[14] The applicant kept trying to persuade the complainant to have consensual sex with him. He told her TO was cheating on her and 'fucking sluts out there'. He then inserted two fingers into the complainant's vagina while she tried to push his hand away. She said: 'No, no, stop, stop'. The applicant became more aggressive and digitally penetrated her vagina more forcefully. The complainant started crying and the applicant desisted. That was the alleged offending the subject of Count 5.
[15] At some point during the sexual assaults, the applicant went and retrieved a sex toy which he had seen at the home previously and asked the complainant to use it. She declined. At another point, the applicant went and retrieved some lotion and tried to massage the complainant's back. She kept telling him to stop and said that he should not be doing what he was doing. The applicant said: 'Did I get the wrong idea, Bub?'. He told the complainant to delete the call log on her phone which showed that he had called her and said: 'I'll leave you alone now.' He then left the home.
[16] After the applicant left, the complainant contacted TO and told him about the offending. TO later messaged the applicant and said he and the complainant would be reporting the matter to the Police.
[17] The applicant went to the Police Station later that day and provided a statement, admitting that he went to the home in the early hours of the morning but stating that, when no one answered the door, he left. He denied entering the home and having sexual intercourse with the complainant.
[18] Police seized the complainant's underwear and forensic testing revealed the applicant's DNA on the inside crotch area and the outside of the underwear. Sperm attributable to the applicant was also found on the outside crotch area.

[22]

[24] The 2009 conduct took place when the applicant was 23 years old. He had been at a bar, drank a large amount of alcohol and became intoxicated. At around 3.30am, he left the bar and went to his friend's house, arriving at around 4.00am. He knocked on the door. His friend was not at home. His friend's 13 year old sister ('victim') answered the door. The applicant had known the victim for about 10 years as the applicant was friends with the victim's brother. She regarded him as a close family friend. The victim let the applicant in to the house. They both sat on the lounge and had a short conversation. The applicant told the victim he felt sick and needed to lie down. She said he could sleep in her bed and she would sleep in her mother's room. The applicant agreed.
[25] The victim took the applicant to her bedroom. He closed the door and lay down on the bed. He asked the victim to stay and talk to him. When she sat down on the bed, the applicant told her she was beautiful and that he loved her. He reached over and put two fingers on her ankle, then slid his fingers up her leg until reaching her waistline. He then put his fingers on the outside of her nightie and slid them up her stomach to between her breasts. The victim stood up and walked towards the door. The applicant asked her to stay for another five minutes. He asked her if she was a virgin and she said she was. He said: 'I want to be your first.' She said: 'That's disgusting, you're like a brother to me.'
[26] The applicant stood up and approached her. He hugged her with both arms. He put his hands on either side of her face and kissed her on the lips. As she tried to push him away, he leaned forward and tried to kiss her again. She covered her mouth with her hand and turned her head. He said: 'You've got big boobs for a 13 year old'. He put his hand onto her breast and squeezed it once. He put his hand onto her genital area. She squeezed her legs together. He pulled his hand away and told her not to tell anyone about what he had done. She told him to leave. He did.
[27] The Crown's tendency notice indicated that the tendency evidence related to the following facts in issue, namely:

[29]

[40] In accordance with the above general principles, the assessment of the probative value of the tendency evidence turns on the capacity of the evidence to prove the alleged tendency and the extent to which the alleged tendency increases the likelihood of a fact in issue.[17]
[41] Both parties accepted that, in this case, the appeal court should consider the question of probative value at the time that admissibility was determined, rather than at the time the tendency evidence was adduced or retrospectively by reference to what occurred in the defence case in the trial.[18]
[42] There was a question, however, as to what is meant by the phrase 'fact in issue' in the definition of 'probative value' as that term appears in s 97(1)(b) of the ENULA. The parties were at odds about whether the phrase refers to all of the elements of a charged offence or to only those elements that are not disputed by the accused.
[43] The applicant argued that the assessment of the probative value of the tendency evidence was required to be considered in light of the issues that were in dispute, which excluded, in this case, whether the applicant had sexual intercourse with the complainant. It was argued that the applicant had clearly indicated, by the time the prosecution's application for a ruling on the admissibility of the tendency evidence was heard, that sexual intercourse with the complainant was not in dispute.
[44] In Hughes, the High Court held that the facts in issue in a criminal proceeding are those which establish the elements of the offence.[19] The High Court also observed that the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove, and distinguished between a criminal proceeding in which tendency evidence is adduced to prove the identity of the offender for a known offence (which would almost certainly depend upon a close similarity between the conduct evidencing the tendency and the offence), and a criminal proceeding where the fact in issue is the occurrence of the offence.[20]
[45] This appears to be an acceptance that the probative value of tendency evidence can depend on the position taken by the accused in relation to the elements of the charged offence/s. However, that was not a matter expressly referred to, unsurprisingly given that the facts in issue in each of the charged counts were the occurrence of the sexual conduct charged.[21]
[46] The respondent relied on the observations of Grant CJ in The Queen v Hoffman[22] to the effect that the reference to a 'fact in issue' in the definition of 'probative value' is a reference to the facts which constitute the elements of the offences charged, together with such ancillary facts as are relevant to those ultimate facts, and it is not to be equated with a fact in dispute.
[47] In making those observations, Grant CJ relied on the decision of the New South Wales Court of Criminal Appeal in The Queen v Burton.[23] In that case, the respondent was charged with sexual intercourse without consent. Various pre-trial rulings had been made by the trial Judge and they were the subject of the appeal. Justice Simpson (with RA Hulme J and Barr AJ agreeing) held that evidence of phone conversations between the accused and the complainant in which the accused apologised to the complainant following the alleged offending was admissible and wrongly excluded by the trial Judge.
[48] In considering the application of s 137 of the NSW equivalent to the ENULA, Simpson J considered whether the evidence was relevant within s 55, which provided that relevant evidence 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. Justice Simpson held (at [148]) that a necessary first step in the assessment of the probative value of evidence is to identify any 'fact in issue' the assessment of the probability of the existence of which is said to be affected by the evidence. Her Honour held (at [148]) that:

[33]

[50] The applicant took issue with that approach in reliance on the decision of the High Court in Stubley v Western Australia.[24] In that case, the appellant had been convicted of numerous sexual offences (rape and indecent assault), said to have been committed against two complainants who were his patients during consultations when he was a psychiatrist. The trial Judge had admitted evidence from three other witnesses of uncharged acts of a sexual nature between them and the appellant when they were his patients as 'propensity evidence' under the West Australian equivalent of ss 97 and 101 of the ENULA.
[51] When the appellant objected to the receipt of this evidence at the trial, his counsel indicated that the appellant would admit that he had been sexually intimate with the complainants but would argue that the sexual acts were consensual. The High Court held that the evidence of the three other witnesses did not have significant probative value because the trial was conducted on the basis that the complainants' evidence that the appellant had sexual relations with them in the course of consultations was not disputed.
[52] The majority of the High Court noted (at [64]) that the evidence of the three other witnesses was not relied on by the prosecution to prove that the sexual acts against the complainants had occurred. The majority observed (at [65]) that whether the appellant had engaged in the sexual activity alleged by the complainants was not a live issue at the trial. The circumstance that the trial was conducted from the outset on the basis that the complainants' accounts that the appellant had sexual relations with them in the course of consultations was not disputed 'was material to the consideration of admissibility of the evidence' of the three other witnesses for tendency purposes. In particular, the probative value of that evidence to prove that the sexual acts charged occurred, by demonstrating the appellant's tendency to have sex with his patients, ceased to be significant once it was known that the complainants' evidence that the appellant had sex with them during consultations was not challenged.
[53] The decision in Stubley was not drawn to the attention of the courts in either Burton or Hoffman. The language of the Western Australian legislation considered in Stubley is not materially different from the language of ss 97 and 101 of the ENULA. Both refer to 'significant probative value'. The term 'probative value', although used a number of times in the Western Australian legislation, is not defined. Nevertheless, there is no basis for treating the term 'probative value' in that legislation any differently from the same term in the ENULA such that the High Court's observations should not be followed.
[54] The Victorian Court of Appeal has taken the same approach as was taken in Stubley. In Larsen v Director of Public Prosecutions (Cth),[25] the appellant was charged with various offences relating to sending indecent communications via the internet to a 12-year-old child. The defence had indicated, at the time of the ruling, that the only fact in issue in the trial would be the accused's awareness with respect to the age of the child. The conduct itself was admitted. The prosecution had sought to admit tendency evidence about the appellant's prior conduct of sending indecent communications via the internet to a girl he knew to be 15 years old. The Victorian Court of Appeal held (at [7]) that the probative value of the evidence of prior conduct 'must be judged by reference to' the narrowly defined issues which were not admitted by the appellant. The Court held that evidence that the appellant had previously engaged in sexualised communications with a girl he knew to be 15 years of age had very little probative force on the issue of how old he believed the complainant to be. Consequently, the evidence did not have 'significant probative value' within the Victorian equivalent of s 97(1)(b) of the ENULA. The Court expanded on this (at [18]-[22]) as follows:

[39]

[55] In the more recent decision of Geraghty v The King,[26] the Court of Criminal Appeal of New South Wales recognised (at [27]) that tendency evidence must be assessed in the context of the trial and of the other evidence to be called by the prosecution. The Court held that the probative value of tendency evidence in the form of prior convictions for importing drugs would have been of limited probative value if the accused had admitted involvement in the charged offence of attempted importation of drugs but sought to limit or explain his role, but of significantly greater probative value if the accused had denied that he was involved in any attempted importation. That constitutes a departure from the approach previously adopted by the Court in Burton. However, the Court in Geraghty held that, at the time the trial Judge ruled on admissibility of the tendency evidence, the prosecutor was not aware of the precise basis on which the applicant would seek to explain potentially incriminating evidence concerning his activities. Consequently, the Court held that the prosecution was entitled to call all admissible evidence, and have its probative value assessed, on the basis that the defence would challenge all aspects of the prosecution case.
[56] Those authorities adopt an approach by which the assessment of probative value of tendency evidence does not turn merely on the need for the prosecution to prove all the elements of the offence such that the ultimate facts comprising those elements are the 'facts in issue' in any criminal trial. Rather, those authorities provide that the assessment of the probative value of tendency evidence can and should turn on the ultimate facts which the prosecution will be required to prove and the evidence that the prosecution will be required to lead in doing so, subject to any position in relation to the proof of those ultimate facts taken by the accused and clearly disclosed to the Court at or by the time the ruling on the admissibility of the tendency evidence is sought. That approach to the tendency provisions in the uniform evidence legislation has now been adopted by two intermediate appellate courts, is consistent with the decision in Stubley in relation to closely analogous provisions and must be accepted as correct.
[57] In the present case, the ruling on the admissibility of the tendency evidence took place after the complainant had given a recorded statement to Police which would be admitted as, or as part of, her evidence-in-chief at the trial and had been cross-examined at a special sitting to record her evidence, which recording would be played at the trial. The cross-examination led the prosecutor to infer that the applicant's position was that sexual intercourse between him and the complainant had taken place, with the complainant's consent.[27]
[58] The applicant's counsel neither confirmed nor refuted that inference orally during the voir dire.[28] The applicant's counsel did make a written submission to the effect that the issues that characterise the case are, firstly, lack of consent by the complainant to sexual intercourse or, secondly, that the accused was reckless as to the complainant's lack of consent, such that the 2009 conduct:[29]

[41]

[59] That submission was made in a single paragraph about two thirds of the way through 18 pages of written submissions. No oral submission was made to the effect that the probative value of the tendency evidence was limited because the fact of sexual intercourse with the complainant was not in dispute. That submission was also made in the context of the applicant having previously made a statement to Police that he had not entered the complainant's home and had not had sexual intercourse with her, which the Crown was intending to characterise as a lie indicating consciousness of guilt.
[60] In the circumstances of this case, while the prosecutor may have had an inkling from the nature of the cross-examination of the complainant and the single paragraph in the defence's written submissions that the fact that sexual intercourse had taken place would not be disputed, the defence had not clearly put that position to the prosecution or the Court and the applicant had told Police sexual intercourse had not occurred. In those circumstances, as matters stood at the time of the voir dire hearing the prosecution was entitled to call all admissible evidence, and have its probative value assessed, on the basis that the defence would challenge all aspects of the prosecution case, including the fact that sexual intercourse occurred.
[61] In any event, as the defence submission set out above appears to acknowledge, even if the occurrence of sexual intercourse was admitted, the activity of the applicant during that intercourse remained in issue. There were three charged instances of sexual intercourse, and the manner in which they were alleged to have taken place, including the complainant's alleged resistance and protestations and the applicant's alleged words and actions during and afterwards, were all at least ancillary facts in issue relating to the ultimate issues of the complainant's lack of consent and the applicant's knowledge of or recklessness as to it.
[62] For those reasons, the assessment of the probative value of the tendency evidence must include its capacity to affect the likelihood of the fact that sexual intercourse occurred between the complainant and the applicant.

[42]

[63] The applicant argued that it was an error for the trial Judge to permit the prosecution to rely on the evidence relating to the charged acts as tendency evidence. In short, the applicant argued that, if this course was permissible, it would follow that in a criminal trial, the prosecution could rely on evidence of a charged act alone to establish a tendency which could be used to establish guilt on that charged act, which: (a) is circular and nonsensical; and (b) would create an unanswerable position for the defence given the identity between the conduct and circumstances the subject of the tendency evidence and the conduct and circumstances the subject of the charged act.
[64] The respondent relied on the decision of the High Court in Director of Public Prosecutions (Vic) v Roder.[30] In that case, the accused was charged with 27 child sexual offences in relation to two complainants. The Crown relied on the 27 charged acts and six uncharged acts to support the existence of an alleged tendency on the part of the accused to have a particular state of mind and to act in a particular way in relation to the two complainants. The accused accepted that the charged and uncharged acts were cross-admissible as tendency evidence but sought a pre-trial ruling from the trial Judge as to the form of the direction to be given to the jury on the standard of proof to be applied in relation to the charged acts for the purposes of determining whether the tendency was established. The trial Judge had proposed that the jury be instructed to reason 'sequentially' by firstly deciding if the uncharged acts occurred, secondly considering the first charged act by reference to tendency reasoning based on the uncharged acts that they accepted, and then thirdly applying those principles to the second charged act based on the uncharged acts and the first charged act if found proved beyond reasonable doubt, and so on. The Director of Public Prosecution's appeal from that decision was dismissed by the Victorian Court of Appeal.
[65] In upholding the appeal, the High Court rejected the Court of Appeal's conclusion that the trial Judge was correct that the jury should be directed that every charged act relied on as tendency evidence must be proved beyond reasonable doubt before it can be used as such. The High Court held (at [28]) that an alleged tendency is an intermediate fact that is to be proved in its own right, and then deployed in aid of the proof of each charge.
[66] The High Court also addressed an argument that the jury should be directed that, when considering the respondent's guilt for each particular charge, they could not use the direct evidence of the corresponding charged act as part of the body of evidence relied on by the prosecution to support the alleged tendency. The Court rejected that argument (at [33]-[34]) and held (at [35]):

[46]

[70] The applicant sought to distinguish the observations in Roder and the conclusions in Potter on the bases that: (i) Roder was a case about the directions to be given to the jury about tendency reasoning; and (ii) Potter and other authorities referred to by both sides concerned the admissibility of tendency evidence where there were multiple charged acts occurring on different occasions and/or multiple prior acts occurring on different occasions, as distinct from the present case which involved multiple charged acts occurring on a single occasion and a single prior act. We do not accept that there is any material distinction.
[71] First, as the New South Wales Court of Criminal Appeal has observed, although the proposed direction in Roder and the discussion of it by the High Court occurred in the specific statutory context of ss 61 and 62 of the Jury Directions Act 2015 (Vic), the significance of the decision extends beyond that statutory context.[34]
[72] Second, none of the observations and reasoning about tendency evidence and the way it may be used in Roder or Potter rests on the foundation that the case involves multiple occasions giving rise to the charges and/or multiple prior occasions of other conduct. The High Court in Roder rejected (at [27]) the submission that admitting direct evidence of charged acts to establish a tendency and using that tendency to establish the charged acts involved circular or incoherent reasoning.
[73] It must be accepted following the High Court's decision in Roder, that: (a) a jury may use the evidence of a particular charged act to prove a tendency which may be used in proof of that charged act; and (b) the jury's assessment of the weight or strength of tendency evidence involves similar reasoning to that applied by a trial Judge in assessing its probative value. It must follow that tendency evidence sought to be relied on by the prosecution may include evidence about a charged act and, if so, the probative value of the tendency evidence is to be assessed by reference to the evidence about a charged act and any other evidence relied on as tendency evidence.
[74] Furthermore, it must equally follow that tendency evidence sought to be relied on by the prosecution may include evidence about a single charged act and, if so, the probative value of the tendency evidence is to be assessed by reference to the evidence about that charged act and the other evidence relied on as tendency evidence.
[75] That is not to accept that, on its own, evidence of a single charged act could be relied on as tendency evidence to prove a tendency which could be used in proof of that single charged act. Evidence of a single charged act, without more, could not sensibly be characterised as tendency evidence.
[76] Consequently, there was no error by the trial Judge in permitting the prosecution to rely on the evidence relating to the charged acts as tendency evidence.

[48]

[77] At base, both the 2009 conduct and the charged conduct comprised committing an offence or offences of non-consensual sexual misconduct against a female, the females being different people.
[78] In McPhillamy, the High Court held (at [32]) that tendency evidence relating to sexual misconduct with persons other than the complainant was not capable of affecting the assessment of the likelihood that the appellant committed the offences against the complainant to a significant extent.
[79] In Bauer, the High Court held (at [58]) that 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. Before the requirement of significant probative value will be met, there must ordinarily be some feature of or about the offending which links the two together, ie some common feature of or about the offending.
[80] In Hughes, the High Court held (at [34]) that tendency evidence is not limited to evidence exhibiting similarity, an underlying unity, pattern of conduct or modus operandi. The High Court added (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, but the admission of tendency evidence is not conditioned on an assessment of operative features of similarity with the conduct in issue.
[81] As regards the second stage of the assessment of probative value, the High Court held in Hughes (at [64]) that a tendency expressed at a high level of generality might mean that the tendency evidence provides significant support for that tendency, but it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
[82] As set out in paragraph [21] above, the tendencies alleged by the prosecution demonstrate a level of particularity beyond a general propensity to commit offences involving non-consensual sexual misconduct against a female because they contain features of similarity in the circumstances and behaviour of the applicant at the relevant times. It was these similarities which led the trial Judge to the conclusion that both the 2009 conduct and the charged conduct involved 'turning up at the home of a close friend or relative in the early hours of the morning uninvited and, once inside, sexually assaulting a female occupant of the house with what seems to be a pretence or unfounded assumption that sexual activity is or would be consensual, notwithstanding the victims' protests and attempts to stop him, while persistently importuning the victim to engage in activities of a sexual nature', where the applicant 'was prepared to do these things despite the closeness of his relationship to the male householders and the obvious risk to that relationship in each case' and the applicant 'took steps to avoid detection'.[35] This conduct was described by the trial Judge as 'bizarre', 'unusual' and 'strikingly similar'.
[83] The applicant argued that it was erroneous to list and compare factual similarities between the 2009 conduct and the charged conduct where the tendency was described by adding 'general factors' that have by themselves little significance. Reliance was placed on the observations of Howie J (with McColl JA and Grove J agreeing) in O'Keefe v The Queen.[36] In that case, the alleged tendencies were to frequent secluded bushland locations where vulnerable females might be located; to verbally and/or physically threaten such females to get them to comply with his demands; to have a particular interest in their breasts; to sexually assault them against their will; and to do so knowing they were not consenting or willing to participate. In that context, Howie J made the observation (at [62]) that tendency evidence obtains no more probative value simply by adding general factors to describe the tendency that have by themselves little significance. His Honour held that much of the description of the tendency was surplusage and the four attributes were in truth only one, namely a tendency to sexually assault females in secluded locations with a particular interest in their breasts. The facts in issue in that case went to identification - whether the appellant was the man who had committed the 11 charged offences against four different women on different occasions in bushland. The tendency evidence comprised the evidence led to establish the charged acts.
[84] Justice Howie held (at [65]-[66]) that a tendency to sexually assault females in secluded locations did not have significant probative value to establish the issue of identification, and the addition of 'bushland' in the tendency was of no particular significance. Further, the tendency did not gain significant probative value by the additional fact that the appellant had an interest in the victims' breasts, as it was not 'peculiar' that a person with a tendency to sexually assault females had a particular interest in 'what is the most prominent part of the female anatomy'.
[85] The applicant argued that a number of the features of the alleged tendency in the present case are of no particular significance because they are found in many if not most instances of sexual intercourse without consent. It was said that post-offending steps to avoid detection, protestations or attempts by the victim to stop the accused, a persistence with the conduct despite those efforts and the risk of damage to a close relationship by the offending are all common in offences of this nature.
[86] The respondent submitted that simply because a feature of the alleged tendency, as found in the conduct the subject of the tendency evidence, is a common feature of the charged offending does not deprive the tendency evidence of significant probative value. Further, it was submitted that this issue should not form part of the assessment because it relies on the trial Judge's assessment and experience of what is common or usual in such offending. We cannot accept either submission in the circumstances of this case.
[87] If the alleged tendency is described by reference to features that are commonplace in offending the subject of the charges, the alleged tendency can have little probative value beyond establishing that the accused has previously committed a criminal act or acts characterised by commonplace features of the kind with which the accused is charged. In this regard, the Victorian Court of Appeal recently observed that:[37]

[52]

[89] To adapt that example to the present circumstances, the probative value of a general tendency to steal cars is not significantly increased by supplementing it with reference to commonplace features of offending of that type such as the cars being hotwired, the cars being stolen from outside the owners' residences and the conduct being undertaken at night in order to avoid detection.
[90] However, different considerations may arise where the accused has previously committed a criminal act or acts against the same complainant as the offence with which the accused is charged. Evidence of that nature may, in the context of sexual offending, establish a specific sexual interest in the complainant, or may, in the context of violent offending, establish a specific antipathy or animus towards the complainant, and therefore have some significant probative value as proof of the facts in issue. Similarly, evidence that an accused has a sexual interest in children will, because of the particularly transgressive nature of that interest, ordinarily have significant probative value as proof that the accused has committed a child sexual offence, although there is now a statutory presumption of the significant probative value of that type of evidence created by s 97A of the ENULA.
[91] The respondent's submission about the dangers which present in the use of a trial Judge's experience to assess whether a feature of a particular type of offending is commonplace is inconsistent with the respondent's preparedness to embrace this trial Judge's assessment of the applicant's conduct in the circumstances of the 2009 conduct as 'unusual' and 'bizarre'. Determining something to be unusual is the obverse of determining something to be commonplace and involves the application of the same criteria and processes. In assessing the probative value of tendency evidence, a trial Judge is both qualified and entitled to consider and determine whether features of the tendency asserted are commonplace or unusual.
[92] In the conduct of that assessment in the present case, we consider that protestations or attempts by the victim to stop the offender from sexually offending, a persistence by the offender with the conduct despite those protestations or attempts, blandishments by the offender to persuade a consensual encounter (ie 'an unfounded assumption that sexual activity is or would be consensual'), and taking steps in the aftermath to avoid detection, are all relatively common features of offences of this nature. The risk of damage to a close relationship by the offending is also not uncommon in sexual offending generally, where the offender is often known to the victim, and is quite common in sexual offending against children, where the victim is often the child of the offender's partner, relative or friend. The reflection of these commonplace features in the alleged tendencies and asserted similarities reduces the probative value of the tendency evidence in proof of the facts in issue.
[93] The applicant also argued that the alleged tendencies were artificially constructed by reverse engineering from the facts, relying on observations of the Victorian Court of Appeal in Harris v The King.[39] That case involved six charges of sexual offending against three young girls, being the appellant's two daughters and the daughter of his partner. The tendency evidence was the evidence to be led in proof of the charged offences and other uncharged acts. The alleged tendency was a sexual interest in his biological children and the children of his partner in his care aged between 4 and 16 years and a willingness to engage in sexual misconduct of a particular kind against them (touching their genitals, bottom or breasts and watching them naked or partially undressed) in particular circumstances (at home when other adults were not present, when intoxicated and having created opportunities to see them naked or partially undressed).
[94] The Court observed (at [56]-[57]) that when a tendency is described 'with an eye to capture the charged acts' an issue will be whether the formulation of the tendency is too specific, in the sense of being tied to the very facts in issue but which 'cannot meaningfully be said to constitute a single tendency to act or think in a particular way'. That was said to be a problem which often arises 'where the tendency is, in effect, reverse engineered from the facts'. The Court said that tendency reasoning starts with the tendency and its power is that it explains or makes a person's conduct or state of mind more likely, including by explaining what might be thought to be entirely improbable events based on ordinary human experience. It entirely undermines that process if the prosecution starts with the facts of the charge and constructs a tendency to fit them.
[95] That 'problem' of reverse engineering from the facts in issue is present here. The problem is that the alleged tendencies, taken together, cannot meaningfully be said to constitute a single tendency to act or think in a particular way. On the other hand, the alleged tendencies must be taken together to support the assertion of significant probative value because, individually, they are too general and/or too commonplace to be meaningful for the reasons already described.
[96] This problem with the description of the tendencies is exacerbated and facilitated by the fact that the tendency evidence comprises the evidence in proof of the charged offences and a single prior occasion of sexual offending. The tendency has been described to reflect the common circumstances that the two instances of conduct occurred in the home of a close friend or relative, without an invitation to attend that home, against a female occupant, in the context of a close relationship between the applicant and a close friend or relative and the potential damage to that relationship, and was followed by conduct designed to avoid detection.
[97] Where only one prior instance of conduct is relied upon, it is possible to select multiple distinct features in the prior conduct or its circumstances which are in common with the facts in issue, which is less open where multiple instances of prior conduct are relied upon to establish the tendency. The force of apparent similarities between the single prior instance of conduct, the tendency described by reference to them, and the facts in issue is diminished in such circumstances.
[98] Speaking generally, it stands to reason that a single prior instance of acting in a particular way would have a lower probative value in establishing a tendency to act in that way than numerous prior instances of acting in a particular way. It must follow that the significant number of similarities between the conduct or circumstances of a single prior instance and the charged offending should not obscure the important fact that the probative value of the tendency evidence rests on the charged conduct and a single prior instance of conduct.
[99] It is also well-recognised that a single incident some years before the charged offending 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 closer temporal proximity to the event in issue.[40] The probative value of tendency evidence is strengthened by close proximity in time between the instance/s of prior conduct and the conduct in issue,[41] and weakened by the passage of time between the two, at least where the accused's opportunity to act on the tendency in the interim is not limited in any material way.[42]
[100] In the present case, there was a gap of 12 years between the prior conduct and the charged conduct. There was no evidence to suggest the applicant had acted on the alleged tendency in the interim, or that there was any limitation on his opportunity to do so. That gap considerably weakens the force of the inference that the applicant had a tendency in 2009 which was still present in 2021. It is also relevant that the applicant was a young man of 23 years of age at the time of the 2009 conduct and a 35-year-old man at the time of the charged offending. The inference as to the persistence of the alleged tendency is potentially impacted by the effects of aging and maturity.
[101] It is with the above matters in mind that the 'stark differences' asserted by the applicant between the nature of the two episodes of conduct in 2009 and 2021 must be considered. Those differences are, most notably, that the victim of the 2009 conduct was a 13-year-old child whereas the complainant was an adult, and the 2009 conduct involved less serious sexual impropriety in the form of stroking, kissing and touching of the breasts and genitals over clothing, whereas the charged conduct involved serious sexual impropriety in the form of penile-vaginal penetration, fellatio and digital-vaginal penetration.
[102] There are also other differences between the two sets of conduct, which are arguably material. For example: (a) in 2009, the applicant simply arrived at the home, whereas in 2021 he called the male occupant of the premises, was told not to go to the home, and then made a number of attempts to contact the complainant before arriving at the home; (b) in 2009, he was invited into the home by the female victim, whereas in 2021 he entered the home without any such invitation and, on the Crown case, broke in; (c) in 2009, he spoke to the victim for some time before touching her, whereas in 2021 he climbed into bed next to the sleeping complainant and began having sex with her; (d) in 2009, he sought to persuade the victim with a form of flattery, whereas in 2021 he sought to persuade the victim by denigrating her partner's fidelity to her.

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