Latu v R

Judgment

1. BELL CJ: I agree with the reasons of Davies J and the orders he proposes.
2. DAVIES J: Rhonda Baker was killed on or about 7 August 2016. The applicant was charged with her murder. He pleaded not guilty, and stood trial before Lonergan J and a jury.
3. The trial commenced on 5 November 2018, and the jury returned a verdict of guilty on 3 December 2018. On 26 July 2019 the applicant was sentenced to imprisonment for 28 years with a non-parole period of 21 years. He was also sentenced for an offence on a s 166 certificate of contravening a prohibition or restriction in an apprehended domestic violence order (ADVO). The sentence was imprisonment for two years, and the sentence was made wholly concurrent with the sentence for murder.
4. The applicant now seeks leave to appeal on a single ground of appeal as follows: A miscarriage of justice resulted from the absence of directions to the jury with respect to relationship evidence.
5. The applicant also seeks leave to bring the appeal out of time. A Notice of Intention to Appeal was filed on 7 August 2019. That Notice expired on 30 July 2020. The Notice of Appeal was filed on 8 February 2022.

Factual background

1. The factual background may be summarised as follows, by reference to the sentence judgment of R v Latu (No 3) [2019] NSWSC 951.
2. The deceased, Rhonda Baker, met the applicant when she was about 17 years old. There was evidence that the relationship was an "on again/off again" type of relationship.
3. At the time of the murder, the applicant and Ms Baker were living together in an intimate domestic relationship at an apartment in Liverpool. Ms Baker was paying the rent for the apartment as well as her living expenses and those of the applicant.
4. During the relationship, the applicant both threatened violence to Ms Baker, and acted violently towards her.
5. There was an escalation in the applicant's violence and controlling behaviour towards Ms Baker in the months leading up to the offence. This was demonstrated by the evidence of what the deceased told a number of her friends and colleagues, and the injuries observed by witnesses who saw her during that period.
6. An ADVO was issued at the end of April 2016 as a result of a person witnessing the applicant assaulting Ms Baker in their car. The ADVO required the applicant not to assault or intimidate Ms Baker. Despite the ADVO, the applicant continued to be violent towards her.
7. The applicant threatened the deceased that if she left him, he would go after her family and burn down her grandfather's house. He made other threats that he would hurt her family if she told anyone what was going on in the relationship or broke up with him.
8. On 27 July 2016, ten days before her death, Ms Baker was severely assaulted by the applicant. She arrived at work with significant facial injuries. She told a work colleague that she had been punched in the face that morning "because she answered him back". She told the colleague that the applicant was becoming increasingly controlling and violent and that she was trying to leave the relationship and move in with her mother or father.
9. Ms Baker also had discussions with other friends and colleagues about getting away from the applicant, including moving to Melbourne to live. She expressed concern that wherever she went he would find her.
10. On Friday, 5 August 2016, the applicant and Ms Baker had an argument. That led to Ms Baker packing all of the applicant's clothes into a bag in the lounge room.
11. On the night of 6 August 2016, the applicant had been waiting in the city to be picked up by Ms Baker and a friend of the applicant's, Kang Warman. He was waiting there for a period in excess of 15 minutes. Mr Warman said that while Ms Baker was on her way to pick the applicant up, he could hear the applicant yelling at Ms Baker through the phone although he could not hear precisely what the applicant was saying.
12. After Ms Baker collected the applicant, Mr Warman was dropped off at a pub in Surry Hills close to 9:30pm. At that time Ms Baker did not appear to Mr Warman to be injured and he did not observe any blood in the car.
13. Ms Baker then drove the applicant to their apartment in Liverpool.
14. At about 3.45am on 7 August 2016, a neighbour in an apartment on the floor below heard arguing between a man and a woman. It lasted about five minutes and then went quiet. The neighbour then heard the same voices at about 4:00am. The neighbour had heard the same voices some weeks before.
15. The Crown case was that sometime in the late hours of 6 August 2016 and/or the very early hours of 7 August 2016, the applicant viciously attacked Ms Baker, inflicting multiple blunt force blows to her head. The mechanisms described by Dr Szentmariay, the forensic pathologist who conducted the autopsy, included by the applicant's use of his fists on Ms Baker's face, head and body, or by moving her head against a surface like a wall or flooring, and/or by kicking and or stomping on her head, back, ribs and leg.
16. The injuries consisted of multiple facial fractures including a blow-out type fracture of the right orbit around Ms Baker's eye; fractures in three places on her zygomatic arch, including one fracture described as "the point of the bone actually caved in, inside the eye bone"; a fracture to the base of the nasal bone; multiple rib fractures; bleeding around the left kidney; three one centimetre full thickness lacerations under her lips (meaning that the lacerations were so deep that they reached the underlying bone and exposed it); a large left shoulder bruise; and bruises on the right flank, left lower back and left scapula, as well as on the forehead and eyelids with a contusion over the right nostril and a contusion under the chin.
17. The mechanism of death was a subdural haematoma on the left side. That created pressure on the brain, resulting in the brain being pushed to the side and down into the spinal column, with fatal consequences.

Tendency and relationship evidence

1. A voir dire hearing was held on 29 October 2018 regarding the admissibility of certain tendency and relationship evidence.
2. In the Crown's amended tendency notice dated 19 October 2018 the following relevantly appeared: 2. …The Crown relies upon two general areas for the purpose of adducing tendency evidence; (i) The accused was violent towards Rhonda Baker (the deceased) whilst in an intimate domestic relationship with her; and (ii) The accused was violent towards Hayley Bingley whilst in an intimate domestic relationship with her. 3. The Crown relies upon these two areas to demonstrate that the accused had a tendency to act in a particular way or particular ways, namely, In relation to the deceased • Whilst in an intimate domestic relationship with the deceased and when angry with her, to be violent towards her by the use of physical force to the head region. In relation to Hayley Bingley • Whilst in an intimate domestic relationship with Hayley Bingley and when angry at her, to be violent towards her by the use of physical force to the head region. In relation to women with whom he was in an intimate domestic relationship • When angry, to engage in violence towards such women by the use of physical force to the head region.
3. The eight incidents relied upon as tendency evidence were the following: 1. The applicant attacked the deceased in a car in 2010 or 2011 on the M5 motorway. 2. The applicant attacked the head of Hayley Bingley, pulling her hair when he was angry for little or no reason on 12 June 2013 at Eagle Vale. 3. The applicant punched the face of Hayley Bingley in the eye area on 18 July 2013 at Ruse. 4. The applicant attacked the head of the deceased, pulling hair out when he was angry for little or no reason in 2014 at Liverpool. 5. The applicant attacked the head of the deceased in a car around 6 March 2015. 6. The applicant punched the face of the deceased on 30 October 2015. 7. The applicant attacked the head of the deceased in a car on 28 April 2016 in Cabramatta. 8. The applicant punched the head of the deceased when he was angry for little or no reason in July 2016 at Liverpool.
4. The relationship evidence which the trial judge permitted to be led was identified in Schedule A of the Crown's written submissions on the voir dire. The following is the identification of the evidence without the supporting material: 1. Evidence of controlling behaviour by the accused: 1. The accused controlled the finances; 2. The accused gambled the deceased's money; 3. The accused called the deceased derogatory names; 4. The accused needed to know the deceased's whereabouts at all times; 5. The deceased was not allowed to go out by herself; 6. The accused picked the deceased up from work; 7. The deceased was unable to speak freely on the telephone; 8. The accused isolated the deceased from her friends and family; 9. The accused took control of the deceased's mobile phone; 10. The accused took over possession of the deceased's car and used it as his own; 11. The accused made the deceased drive him places; 12. The accused told the deceased to terminate her pregnancy. 1. Evidence of jealousy: 1. Jealous behaviour in general; 2. The accused disliked the deceased working with other men; 3. The accused's relationship with other women. 1. Evidence of violent behaviour: 1. Deceased was regularly seen with bruising or other injuries; 2. The accused physically assaulted the deceased; 3. The accused damaged property; 4. The accused threatened to harm the deceased's family. Reference was made under (3)(b) to Schedule B of the submissions which constituted the tendency evidence except for incidents (2) and (3) in the tendency evidence.
5. Objection was taken by the accused to five of the categories of relationship evidence being paras (1)(a), (k), (l), (2)(c) and (3)(d) above.
6. In a brief ex tempore judgment on 29 October 2018, and by a more detailed revised judgment dated 1 November 2018, the trial judge held that both the tendency and relationship evidence was admissible, subject to its being adduced in admissible form: R v Latu [2018] NSWSC 1659.
7. Part of the relationship evidence sought to be tendered by the Crown was a series of emails, called the "Dial-a-Dump" emails (the place the deceased worked at the time of them). In written submissions about this, Mr Woods QC, for the accused before Lonergan J, said: The "Dial-a-Dump" emails mentioned above are mainly emails between the accused and the deceased. They derive from a place where the deceased worked in 2016. They are proximate in time to the date of the homicide, involve for the most part direct communication between the accused and the deceased and it is conceded they are admissible as relationship evidence. When these emails were tendered through Anthea Gilmore, the senior in-house counsel for Dial-a-Dump, there was no objection taken to them.
8. One of these emails was of particular focus during the trial. It was dated 11 June 2016 at 3.07pm from the deceased to the applicant, responding to an email from the applicant to the deceased at 1:41pm on that day. The applicant's email read in part: Why you always making out that I'm the fucking bad cunt when you fuck everything up and expect me to be patient??...Typical weak slut and selfish way to think and say about the man that is actually trying to be with a Skank that betrayed and fucked him over and so frustrated that the skank herself can't even treat him like a real man. You low life scum!!!
9. The deceased's response said in part: I'm not making you out to be the bad cunt, you just don't need to make threats like that! Of course, if your going to say things like "you better shut the fcuk up or im going to cave you head in" wouldn't you be in fear too? (original spelling)
10. The substance of the complaint now made by the applicant is that the absence of directions about the relationship evidence (an anti-tendency direction) resulted in a miscarriage of justice because the jury may have used the relationship evidence as tendency evidence. Particular emphasis was laid on this email in relation to potential misuse of the relationship evidence by the jury for tendency purposes.

The course of the trial

1. The Crown opened to the jury, saying that they would hear evidence about the relationship between the applicant and the deceased, to enable the jury to "get some insight into the context in which the Crown alleges this incident occurred". The Crown said that some of the relationship evidence was also relied upon to prove a tendency on the accused's part, whilst in an intimate domestic relationship with women, when angry with them, to be violent towards them by the use of physical force to the head region. The Crown specified that there were eight particular acts that it relied upon for tendency evidence.
2. The principal, but not the only, witness in relation to the relationship evidence was the best friend of the deceased, Sharnee Marfutenko. By agreement with counsel for the parties, the trial judge, at the conclusion of Ms Marfutenko's evidence, gave what may be regarded as the standard tendency direction where her Honour specified the eight incidents the Crown relied upon to establish the tendency. In the course of that direction, her Honour said: The evidence of other acts must not be used in any other way. It would be completely wrong for example to reason that because the accused has committed one crime or more acts of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offence charged.

(a) Crown's closing address

1. In the course of the Crown's closing address, the Crown prosecutor said this: Now, I told you at the outset that you would hear evidence, about the relationship between Rhonda Baker and the accused and there are a number of ways that you can use that evidence, and I will come back to those ways, but, one of the ways, for example, that you can use that evidence, is to assess the likelihood or otherwise of the possibility that Ms Baker decided to go out on foot into the street, into the Liverpool area in the early hours of the morning and was somehow jumped down the street. [T 940] …
2. That reference was made because one of the possibilities put forward by the defence for the deceased's injuries was that she had left the home unit and, when walking in the street in the early hours of the morning, had been assaulted.
3. The Crown also said of the relationship evidence: [You] can also, in terms of the relationship evidence look at the possibility of, if you put aside meeting up with people, the possibility that the accused somehow left the premises in the car and went for a drive and came back. [T 940]
4. In other remarks relevant to the relationship evidence during the closing address, the Crown prosecutor said: Now, I am also going to deal in this closing address with evidence of the relationship but in particular, leading up to the incident. And, I expect ladies and gentlemen that some of the topic I will be dealing with is evidence of threats to Rhonda Baker, and of course you have the evidence that on the 11th of July you have got this email exchange, so we are only some weeks before the incident, there is reference by the deceased that she was living in fear. She makes reference to a previous threat by the accused to cave her head in. You remember the language that she talks about, and, when the forensic pathologist Dr Szentmariay was giving evidence he was describing one of the injuries suffered by Ms Baker, the deceased, in particular the fractures to the zygomatic arch, which is that area you will recall I think was the right eye, and he said that the bone had been caved in. [T 941] CROWN PROSECUTOR: Ladies and gentlemen I am now going to turn to the reference to some of the evidence that relates to the relationship between the accused and the deceased Ms Baker. Some of it is also relevant the Crown says in relation to issues of the accused and your assessment of intent and motive. You will recall that in some of the material there is evidence of great anger and animosity emanating from the accused towards Ms Baker and jealousy and I will take you through some of the specific evidence but in general terms, ladies and gentlemen, the relationship evidence gives you some context within which the Crown case can be considered by you and the Crown says it is relevant as part of a circumstantial case in terms of your assessment of whether or not the accused killed the deceased and did so with the appropriate intent. I have already given you examples of the way in which you can use the relationship to assess what happened on the night, the account given by the accused, the likelihood of Ms Baker going out then coming back and the accused not being overly concerned. You can also use the evidence of the emails that I will come to fairly soon in terms of the fact that the accused just prior to the incident in the week leading up to the incident was expressing animosity towards Ms Baker and making threats. [T 953] [After referring to portions of the email sent by the applicant to the deceased on 11 July 2016 (set out at [30] above), the Crown prosecutor said:] Then we have her response, and I have referred to this already but you see at 3.07pm, she says: "I am not making you out to be the bad...or I am going to cave your head in." Well you can see the way it is written but you might think clearly she is spelling, wanting to spell the word 'fuck but deliberately mis-spells it in the way that some people don't like to, even on work emails spell it, but the effect of that she is referring to the fact that the accused has said to her 'you better shut the fuck up or I am going to cave your head in'. The Crown says that is a highly significant piece of evidence in the context of this trial. [T 958] … Well, again ladies and gentlemen, it is just a snapshot but you might think that gives you a very good insight into firstly, the relationship, but also it is direct evidence of threats to cause really serious harm in the weeks leading up to an incident, and really, that, the dramatic nature of that threat, it is a matter for you as to how you assess it. [T 959] Now ladies and gentlemen that is some of what the Crown submits is significant relationship evidence that you can now consider. [T 964] Ladies and gentlemen, I am now going to move on to tendency, what the Crown says is tendency. I should point out that insofar as it relates to Rhonda Baker, the Crown says that it is also relationship evidence. The tendency evidence is also relied upon, insofar as it concerns Ms Baker, as relationship evidence. But as far as it concerns Hayley Bingley, it is relied upon for a single purpose; that is as tendency evidence. … What the Crown says is that there are eight particular incidents that are relied upon for tendency purposes. [T 967] Now, that concludes the summary in relation to the tendency evidence. I am now going to move onto another area. [T 993] Now, when her Honour gives you directions of law you will be given directions about the elements of murder and I went through those yesterday, that is the accused voluntarily did an act, and I reminded you or indicated to you that the word 'an act' might include a series of acts. In this case the Crown alleges blunt force injury. That caused the death of the deceased and at the time of the act he intended to kill or intended to cause really serious bodily harm. Now as I have indicated to you on a number of occasions, based on the fact that you have evidence of a threat to 'cave your head in', a threat of Ms Baker telling people that she didn't want them to ring the police because she would be killed, and things like that. The Crown submits that given those kinds of factors, and the fact that you have evidence as to the force used, you could be satisfied beyond reasonable doubt that the accused intended to kill Ms Baker. Having said that, the Crown doesn't have to prove that in order to make out the charge of murder. The Crown has to prove at least that he intended to cause really serious physical injury, and the Crown submits you would have absolutely no difficulty at all in concluding beyond reasonable doubt, based on the facts that I have been through, that he intended to cause really serious physical injury. [T 1018] [Finally, in dealing with the matters going to make up the circumstantial case, the Crown Prosecutor said:] By way of summary, I will point out some of the main circumstances that the Crown relies upon: 1. The accused was violent and abusive towards the deceased in their relationship. There is evidence to establish controlling behaviour, jealousy and violent behaviour in the ways that I have referred to during the course of this closing address. The relationship evidence is relevant also to, among other things, intention and motive. 2. The accused had a tendency whilst in an intimate domestic relationship, with women, namely Rhonda Baker and Hayley Bingley, when angry with each of them to be violent towards them by the use of physical force to the head region. The Crown relies on that tendency, generally, if you find it to be the case, and, specifically, in relation to Rhonda Baker; in other words, he had a tendency to be violent towards Rhonda Baker by the use of physical force to the head region which is what the Crown alleges occurred in this particular case. 3. The accused was becoming increasingly violent and controlling in the lead up to the incident. This was evidenced by what she told a number of people, and injuries observed in relation to various incidents. And I draw your attention, for example, to that incident at the end of July at Dial-A-Dump. It is also consistent with the email that the deceased sent to herself on 8 April 2016. 4. An AVO was issued at the end of April 2016 as a result of the assault in the car witnessed by Ms El-Hage; that is tendency item number 7. The AVO stipulated that the accused was not to assault or intimidate the deceased, among other things. Despite the AVO, the accused continued to be violent towards the deceased. Jahleen Gray, in subsequent conversations with the deceased, told her that she wanted to contact police in relation to the accused's conduct after the AVO had been taken out, but Rhonda Baker begged her not to saying, the accused would kill her if Jahleen were to do so. 5. The accused threatened the deceased that if she left him, he would go after her family, burn her grandfather's house down. She also made similar threats that, sorry, he also made similar threats that he would go after her family if she told anyone what was going on in the relationship. 6. On 11 July 2016 the accused sent the deceased a number of abusive and threatening emails. In the email exchange the deceased said she was living in fear and referred to a threat made by the accused towards the deceased to "cave her head in". The forensic pathologist, Dr Szentamariay, in describing one of the injuries suffered by the deceased, namely the fractures to the zygomatic arch, said that the bone had been "caved in". [19 further matters, not relevant to the present issue were then identified] [T 1022] (The transcript references are included to provide an appreciation of the separation of the issues contained in the Crown's address.)

(b) Defence closing address

1. At the outset of defence counsel's address, Mr Woods QC said this: The defence submits that you would find the accused not guilty of the charge in this case but let me begin by conceding that the relationship between the accused and the deceased woman, Rhonda Baker, had been stormy, discreditable on his part, and that he had in the past on a number of occasions assaulted his partner. That does not necessarily mean that on this occasion he murdered her. You will recall that when a number of witnesses came forward to give evidence about how Edwin or Tuini, as he is sometimes called, had treated Rhonda in the past and indeed mistreated her. I did not cross-examine them to suggest that they were telling lies. There were indeed quite a number of instances detailed by my learned friend, quite properly, this afternoon and about which you have heard over the last several weeks. There were indeed bruises and black eyes and mistreatment. My client concedes and recognises that his behaviour towards her had in the past indeed been very unsatisfactory. But it is an important legal principle governing these proceedings here in this court complex in the last couple of weeks that you are sitting in judgment about a specific episode on the 6th or 7th August 2016, not about any previous episode from months or years before. You must not say and are not permitted to say he struck her in the past so therefore he must be guilty of this charge. That would be a very wrong approach. You are entitled to look at those previous incidents as background to this case, as tendency evidence, in the limited way in which her Honour will no doubt explain to you as governing the way you should approach your task from a legal viewpoint. What I tell you about the relevant legal principles or what the Crown Prosecutor told you a little while ago is subject to the guiding hand of the trial judge who is the final arbiter of what is the law in in this court room. However, I will venture this much; one thing you must not do is substitute evidence of past mis-behaviour, indeed admission of past mis-behaviour, for example the photograph of Haley Bingley's black eye from 2013 as substitute proof for full and proper proof of this charge of murder alleged to have occurred at or about Liverpool on the second weekend in August 2016.
2. The focus of defence counsel's address was on what was said to be the truthfulness of much of what the applicant said to the police and on the issue of intention. However, defence counsel returned to the issue of the relationship evidence, saying that it was not disputed that the applicant had mistreated the deceased on several prior occasions. Defence counsel then raised as an alternative to a finding of murder, the possibility that the jury might find him guilty of manslaughter. He said: He might be in the alternative be found not guilty of murder but guilty of manslaughter. … On the Crown evidence, and given the history of the relationship, can you exclude the reasonable possibility that if he did hit her, Latu may have intended to give a black eye or a bleeding nose but no more, as he had regrettably on previous occasions done. Does that not seem more likely to be what was in his mind, surely anyone with the intention to give someone a black eye or bleeding nose is seriously illegal. He is negotiate he will leg (sic). Of course--- But that intention cannot be the basis for, itself, for the crime of murder. However, because such an action is a form of illegal personal violence the law calls a resulting death manslaughter, a lesser form of homicide than murder but nonetheless a very serious deserving punishment (sic). I should make it clear that a verdict of manslaughter is not what my client is seeking from you. He says he is not guilty of anything, and that is the verdict we seek, not guilty, full stop. Now, I feel duty bound to make submissions to you based on the possibility that the evidence in the trial allows at least an alternative verdict of manslaughter, so, a verdict of not guilty of murder but guilty of manslaughter would be consistent with the evidence which the Crown presents in this case. … WOODS: It is consistent with the known fact, not disputed, that theirs was a stormy, on and off, relationship; and he struck her in the past on a number of occasions and had given her bruises and a black eye and other injuries which embarrassed her, caused her no doubt pain and suffering, and provoked concern on the part of her dear friends and her employers. I put it to you that you may well think that his past violence towards Rhonda tended to involve a kind of bruising and black eyes which, while grossly unacceptable, and indeed seriously illegal, did not involve any proven intention beyond reasonable doubt on his part to kill her or to cause really serious bodily injury. Now I ask you to consider this interpretation of the events of this case based on the evidence that you have seen and heard. Again, hypothetically, what if there was some kind of argument in the car, the accused struck Rhonda and gave her a bleeding nose and she left the car and went upstairs to clean herself up; or they just had an argument in the unit and he struck her causing her nose to bleed. You have seen in the evidence in this trial a number of bloodstained towels, tissues that were placed in various places around the unit.
3. Defence counsel concluded his address on 29 November 2018. On the morning of 30 November 2018 there was a discussion between the trial judge and counsel about directions her Honour said she would be giving. Her Honour then added: If there are any additional ones, Mr Woods, now is your time to request them. Because the first part of my summing up will take about 45 minutes and then I will break for ten minutes and then give another 45 minutes and take morning tea.
4. Mr Woods replied: At the moment the only thing that strikes me is the necessity to give some emphasise (sic) to the subjective intention.

(c) Summing up

1. During her Honour's summing up, her Honour summarised what the Crown had said were its 26 key points making up the circumstantial case against the applicant. Point 6 was said by her Honour to be this: … the abusive emails (sic) in July which indicated Ms Baker was living in fear, including a particular one in which he threatened to "cave her head in" and that when considered in light of the medical evidence, that was in effect what the injuries were that were inflicted upon Ms Baker on the 6th or 7th August a month later, and so that email has particular significance.
2. At the conclusion of summarising the 26 points, her Honour gave directions about lies and consciousness of guilt.
3. Her Honour then reiterated the direction she had given during the course of the trial regarding tendency evidence as follows: [121] All right. So the next matter I am going to go to is the tendency evidence which has been part of the Crown case. You will recall that just after Ms Marfutenko gave evidence back on day two, I gave you a legal direction about what is called tendency evidence. I am going to repeat that direction. It is a very important one and it circumscribes, or puts a fence around the use to which you are allowed to put this tendency evidence. [122] The direction applies to each of the eight incidents that are relied upon by the Crown. I gave the direction early on so that you could all bear that direction in mind when any evidence was given in relation to the other seven incidents that you have heard about from other witnesses that are relied upon by the Crown as tendency evidence. [123] So these are the things that I need to emphasise and repeat. The accused is charged only with the offence stated in the indictment, that is murder. You have before you evidence that the Crown relies upon as establishing that he committed that offence; that is the offence on 6th or 7th of August. However, you also have evidence that the accused engaged in eight violent incidents, six involving Rhonda Baker and two involving his former domestic partner, Hayley Bingley. [124] Number one was an attack to the head of the deceased Ms Baker in the car on the M5 Motonway in 2010/2011. Number two was an attack on Ms Bingley, pulling her hair and becoming angry for little or no reason at Eaglevale on 12 June 2013. Number three was another attack on Ms Bingley, punched the face of Hayley Bingley in the eye area at Ruse on 18 July 2013. Number four was an attack to the head of the deceased, hair pulled out and angry for little or no reason in 2014 in Liverpool. Number five was an attack to the head of the deceased in the car around 6 March 2015, but the location is unknown. Number six is punched the face of the deceased in October 2015. Number seven was an attack to the head of the deceased in the car on 28th April 2016 at Cabramatta. Number eight was punching the face of the deceased and becoming angry for little or no reason in July 2016 at Liverpool. [125] The Crown says that evidence reveals that the accused has a tendency to act in a particular way, namely, whilst in an intimate domestic relationship with women, particularly Rhonda Baker and Hayley Bingley, when angry with them, to be violent towards them by the use of physical force to the head region, making it more likely he committed the offence charged in the indictment. [126] The evidence suggesting that the accused had that tendency can only be used by you in the way the Crown asks you to use it, if you make two findings: The first finding is that one or more of those acts occurred. In making that finding you do not consider each of the acts in isolation, but you consider all of the acts and ask yourself whether you find that particular act or acts relied upon actually took place. If you find that none of the acts occurred, then you must put aside any suggestion that the accused had the tendency advanced by the Crown. [127] If you do find that one or more of those acts occurred, then you go on to consider whether from the act or acts that you have found occurred, you can conclude that the accused had the tendency to, while in an intimate domestic relationship with women, namely, Hayley Bingley and Rhonda Baker, when angry with them, to be violent towards them by the use of physical force to the head region. If you cannot draw that conclusion then, again, you must put aside any suggestion that the accused had the tendency alleged. [128] So if having found one or more of the acts attributed to the accused occurred, plus you also consider that the accused had the tendency to act in the particular way, you may use the fact of that tendency in considering whether the accused committed the offence charged. [129] You should bear in mind that this is just one part of the evidence relied upon by the Crown and you should give it what weight you think it deserves in the context of all the evidence before you. [130] The evidence of other acts must not be used in any other way. It would be completely wrong to reason that because the accused had committed one crime or more acts of misconduct, that he is, therefore, generally a person of bad character and, for that reason, he must have committed the offence he's been charged with. You must not, and you cannot punish the accused for other conduct attributed to him by finding the accused guilty of this charge on the indictment. That is not the purpose of the evidence being placed before you, and you must not reason in that way. You cannot use it in any way against the accused unless you accept the Crown's argument that it discloses a tendency and, therefore, makes it more likely that the accused committed the offence charged against him. [131] Even if you accept that the accused has a tendency to act in a particular way, namely whilst in an intimate domestic relationship with women, namely Rhonda Baker and Hayley Bingley, when angry with them to be violent towards them by the use of physical force to the head region, you need to consider whether or not he acted in that particular way on the occasion when the Crown alleged he murdered Rhonda Baker by blows to her head. [132] The evidence the Crown relies upon to establish the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have acted. You must be careful to avoid allowing any emotional response to distract you from a calm and objective assessment of this issue. The evidence led by the Crown to prove that the accused had a tendency to act in a particular way is separate from the specific allegation in the indictment. You must not substitute the evidence led by the Crown to prove that the accused had that tendency, for the specific allegations in the indictment. You are concerned with the particular and precise occasion alleged in the charge. [133] If you find that the accused had the tendency alleged by the Crown, it may indicate that the particular allegations are true, but please remember you are required to find that the specific charge is proved beyond reasonable doubt before you can find him guilty. (emphasis added)
4. At the conclusion of that direction, the jury was sent out and her Honour asked Mr Woods if he had anything to raise. He said, "No, your Honour".
5. When the jury returned, her Honour commenced to summarise the addresses of counsel. Her Honour said that the Crown commenced, highlighting the background of violence and jealousy underpinning the relationship "and in particular the emails that are exhibit L" [the Dial-a-Dump emails]. Her Honour then said that the Crown went on to discuss the tendency evidence, the three explanations of the accused for the deceased's death, and the question of intention to kill or cause really serious bodily harm. Her Honour then said: [145] Then the Crown took you through what he called relationship evidence, so the jealousy, the fights, the evidence from others accounted to them by Ms Baker that the accused had forced her to have a termination of pregnancy. That he had articulated threats to her family. That there was violent behaviour in their relationship resulting in injuries to Ms Baker that were relied upon as tendency evidence as well as background relationship evidence that you can rely on to inform what the relationship between the accused and Ms Baker had been like.
6. At the conclusion of her Honour's summing up, she asked counsel if they had anything to raise. Mr Woods said: Nothing, apart from the fact that we mentioned the circumstantial material well before. I don't need to deal with that again. No matters of fact. No matters of law.

Legal principles

1. KRM v R (2000) 206 CLR 221; [2001] HCA 11 and Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 were cases involving multiple sexual offences against children. The issue in both cases was whether an anti-tendency direction (as it has come to be called) must be given in such circumstances.
2. In his judgment in KRM, McHugh J said: [35] It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim. … [37] Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.
3. In their joint judgment, Gummow and Callinan JJ said at [72] that no universal rule should or might be laid down for the giving of an anti-tendency warning in a case of multiple sexual offences.
4. Although Kirby J dissented on the need for a such a warning in that case, his Honour said at [114] that the Court should not lay down a universal rule that such a warning was required.
5. In Hamilton, the majority judgment of Kiefel CJ, Keane and Steward JJ said: [42] Insofar as the appellant's argument depends upon the proposition that an anti‑tendency direction must be given in every case where multiple counts of sexual offences against several complainants involving similar fact evidence are tried together, that submission must be rejected. It is noteworthy that the authorities, including KRM v The Queen, simply do not support the absolute proposition that a failure to give an anti‑tendency direction in such circumstances always constitutes a miscarriage of justice. [43] It may be accepted, of course, that courts must be astute to protect the accused person against the risk of impermissible tendency reasoning, a risk that is "peculiarly" strong in cases where sexual offences are alleged. As Macfarlan JA observed, in a sexual assault case, as a matter of "ordinary human experience", it may be natural for the jury to use conclusions about one or more charged offences to assist them in deciding whether another charged offence was committed. But there is no absolute rule that in such cases the risk of impermissible tendency reasoning is such as always to necessitate the giving of an anti‑tendency direction. The risk of tendency reasoning is not present in every case to the same extent; rather, the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge.
6. A miscarriage of justice will occur if there is a real chance that a jury may have convicted the accused by a chain of "forbidden reasoning": BRS v The Queen (1997) 191 CLR 275 at 306 (per McHugh J); or where there is a significant risk that the jury might have embarked on impermissible tendency reasoning: Vaoalii Toalepai v R [2009] NSWCCA 270 at [49].
7. The decision of defence counsel will be of importance in deciding whether there was a miscarriage of justice. The majority in Hamilton said: [54] Within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue". While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen: "[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice", their Honours went on to say: "The absence of an application for a direction may ... tend against finding that that risk was present." (citations omitted)
8. An accused will generally be bound by counsel's forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice: Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 at [23].
9. However, where there is a real risk that tendency reasoning might be employed, it will not be a sufficient answer to say that it was a forensic decision made by counsel not to seek such a direction: Medich v R [2021] NSWCCA 36 at [133].

Submissions

1. The applicant noted that of the first six "main circumstances" identified by the Crown prosecutor in his closing address, five of them related to the relationship evidence. The prosecutor invited the jury to use the evidence of the relationship as relevant to the applicant's intention. The applicant submitted that, because this evidence was not adduced for the purpose of showing that the applicant had a particular tendency, the jury needed careful directions about the relationship evidence. That was because there was a danger of unfair prejudice, in that the jury might use the evidence wrongly to reason that because the applicant had by his conduct shown a tendency to be violent to the deceased in the past, it was likely that he acted in conformity with that tendency on the relevant night.
2. The applicant identified the problematic evidence as the threats to kill the deceased and the threat, referred to in the email of 11 July 2016 to "cave you head in" in circumstances where the evidence given by the forensic pathologist stated that a bone in the deceased's face had been "caved in".
3. The applicant submitted that, in circumstances where the trial judge did not distinguish between the tendency evidence and the relationship evidence but focused on the tendency evidence, the jury would not have understood that they were only able to engage in tendency reasoning in relation to the eight items of evidence, specifically discussed by the trial judge as evidence that could be used to support tendency reasoning. The applicant submitted that the problem was highlighted by the fact that the relationship evidence was relied upon partly to go to the question of intention.
4. The applicant submitted that the reference in the email of 11 July 2016 to caving the deceased's head in was second hand hearsay and was not available to be used to show the applicant's state of mind at the time of the alleged threat, notwithstanding his concession that the point was not taken at the trial, and that this evidence was not objected to on that basis.
5. The applicant submitted that, because the jury was invited to use the relationship evidence to show intention, the way they were likely to do that was to reason that the applicant had a tendency to have a particular state of mind, not just to make a threat or engage in conduct. That state of mind was a willingness to cause grievous bodily harm.
6. The applicant submitted that it was difficult to understand why his senior counsel at the trial did not seek a direction concerning the relationship evidence, but he submitted that it is not possible to identify a forensic reason why counsel would not have done so. It must be assumed, therefore, that the matter was simply overlooked. In the circumstances the applicant submitted that a miscarriage of justice resulted, and r 4.15 should not prevent the matter being raised on the appeal.

Consideration

1. It is clear that an anti-tendency direction or warning is not required in every case where relationship evidence is led. A warning may be necessary if there is a real chance or a significant risk that the jury might reason impermissibly. The fact that experienced defence counsel does not seek such a direction will be a significant factor in determining whether such a direction was necessary.
2. In my opinion, an examination of the whole of the trial shows that there was no real chance or no significant risk that the jury might use the relationship evidence in an impermissible way to reason that the applicant had a tendency to have a particular state of mind and, therefore, the requisite intention for murder, to inflict really serious injury on the deceased.
3. First, the Crown prosecutor clearly distinguished between the matters relied on for tendency purposes and the remainder of the relationship evidence. He did not invite the jury to engage in tendency reasoning in respect of the relationship evidence not forming part of the eight identified incidents
4. Secondly, the trial judge gave a tendency direction at the conclusion of Ms Marfutenko's evidence in chief in relation to the eight incidents the Crown relied upon to establish tendency. The incidents were clearly identified and the jury were told how they could use that evidence to conclude that the applicant had the tendency alleged. During the course of that direction, the trial judge said: You should bear in mind that this is just one part of the evidence relied upon by the Crown. You should give it what weight you think it deserves in the context of all the evidence before you. The evidence of other acts must not be used in any other way.
5. The trial judge repeated that tendency direction in her summing up before summarising the Crown case generally and the Crown's use of the tendency evidence in particular. The direction at both times it was given was expressly confined to the eight incidents identified by the Crown.
6. Mr Odgers SC for the applicant drew attention to what was said in Toalepai v R [2009] NSWCCA 270 at [44] by Howie J, that where the issue of tendency is raised for a jury's consideration, a failure to give a warning in relation to evidence not being used for tendency purposes "could amount" to a serious defect in the summing up. However, in the present case, both the Crown prosecutor and the judge in her summing-up clearly delineated the two different types of evidence, and made clear that it was only the eight identified instances that could be used for tendency purposes. The present case is a good example of why the High Court has not prescribed an invariable rule or practice concerning the giving of an anti-tendency direction: see also FB v R [2020] NSWCCA 137 at [56] - [57].
7. Thirdly, it is difficult to see how the relationship evidence could be employed for impermissible tendency purposes. An examination of the relationship evidence at [26] above demonstrates that any tendency inferred from those matters would not result in a reasoning to guilt by reason of the tendencies inferred. That was no doubt why the focus of Mr Odgers SC's address was on the threats that were disclosed in the evidence. He accepted that, in the absence of the threats, the appeal could probably not be maintained. These threats consisted of the email of 11 July 2016, the threat to kill the deceased if she called the police in April 2016 and on 4 August 2016, and what was said in the email of 8 April 2016 as follows: You're still looking for ways to fuck me completely to the point maybe you can do the worst & one day I will be dead or suicidal like I haven't had those thoughts before. … I say something you don't like, looks like I'm going to get bashed now.
8. However, as the Court suggested to Mr Odgers, any use of these threats by engaging in tendency reasoning would only demonstrate a tendency to threaten at various times that the deceased displeased the applicant. Mr Odgers submitted, in response, that it could be used to infer a tendency to have a particular state of mind. That state of mind he said was a willingness to cause grievous bodily harm.
9. This Court said in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303: [366] A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a "tendency" to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning. [367] Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not. (emphasis in original)
10. Fourthly, at the time of the pre-trial determination concerning relationship evidence, there was no objection to it on the basis that there was a danger of the jury misusing it by engaging in impermissible tendency reasoning. Nor was it suggested that a direction would be needed in relation to it.
11. Fifthly, when the emails were tendered, there was neither objection on the ground that what was contained in it amounted to second-hand hearsay, as Mr Odgers contended, nor any suggestion that an anti-tendency direction would be needed because of their content, particularly the email of 11 July 2016.
12. Sixthly, no complaint was made about the terms of the Crown prosecutor's closing address. Nor was it suggested by defence counsel that, as a result of the way the email of 11 July 2016 was dealt with in that address, such a direction would be necessary.
13. Seventhly, before her Honour commenced summing up she sought from counsel the directions that should be given, and no anti-tendency direction was sought. At the conclusion of her Honour's summing up, her Honour checked with counsel about whether anything further needed to be said, and no such direction was sought. The applicant was represented by one of the most experienced criminal barristers in this State.
14. All of that is a strong indication, in the context of the trial, that defence counsel did not consider there was a real chance or a significant risk that the jury would wrongly engage in tendency reasoning in relation to the relationship evidence.
15. Further, defence counsel himself relied on the relationship evidence to suggest to the jury that if they were satisfied that it was the accused who was responsible for the deceased's death, he should only be found guilty of manslaughter. That part of the address is set out at [40] above.
16. There are reasonable explanations for defence counsel not having sought an anti-tendency direction. There was other evidence in the case of much greater concern to the applicant than this relationship evidence, and nothing in the case would have been improved for the applicant by drawing attention to that evidence and seeking such a direction. Further, there was a danger that highlighting the misuse of the relationship evidence on a tendency basis may have led to that very result by seeking such a direction: The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [46].
17. In that way, it cannot be said that no rational forensic justification can be discerned for the failure to seek such a direction in order to conclude that it must have been an oversight on defence counsel's part
18. No miscarriage of justice is demonstrated in the circumstances of this trial. Rule 4.15 applies. I would grant an extension of time to appeal but refuse leave under r 4.15.

Conclusion

1. I propose the following orders:
2. Extend time for filing the Notice of Appeal to 8 February 2022.
3. Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
4. FAGAN J: I agree with Davies J.

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