R v Darcy

The proposed tendency evidence

1. The Prosecution served its Tendency Evidence Notice on 20 December 2019. It seeks to prove tendencies on the part of the accused to act in a particular way and/or to have a particular state of mind in respect of her domestic partners, including sedation with prescription drugs and inflicting serious harm upon them with a view to obtaining a financial benefit or advantage.
2. The substance of the asserted tendency evidence is contained in various statements of the accused's former domestic partner, Colin Crossman, witnesses to events involving her previous domestic partner and statements of agreed facts relating to criminal charges in respect of the accused's conduct in 2009 towards Mr Crossman.
3. The Prosecution asserts that the tendency evidence bears upon various key facts in issue in the proceedings. These facts include that the accused intended to kill and did kill Mr Dunbar, that he was sedated by her on the night of the offence without his knowledge and that she set things up to look like suicide. The accused knew that she was the sole beneficiary of his will. She undertook multiple relevant and incriminating internet searches on her mobile phone and home computer prior to the murder, and performed internet searches on the deceased's mobile phone, the latter to support the suicide ruse that she had created.
4. The accused says that the tendency evidence should not be permitted to be led as the evidence does not support the tendencies contended for by the Prosecution, it does not meet the test of relevance, and is not of significant probative value. Even if it did meet the test for relevance and supported the tendencies suggested, and was found to be of significant probative value, it comprises a highly prejudicial and irrelevant narrative and its significant prejudicial effect is not outweighed by the evidence's probative value.

Relevant Law

1. Tendency evidence is defined in the Dictionary to the Evidence Act as "evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection."
2. Tendency evidence is a species of circumstantial evidence. It invites the tribunal of fact to engage in a process of inferential reasoning from proof of a person's tendency, to conclude that the person acted consistently with the tendency on an occasion the subject of a charge: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 ("Hughes") at [20].
3. The tendency rule is contained in s 97 of the Evidence Act: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
4. Evidence sought to be adduced by the Prosecution for a tendency purpose about an accused is inadmissible unless the tests in both ss 97 and 101 of the Evidence Act are met. Section 101 relevantly provides: (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
5. Evidence is relevant if it has the capability, if it is accepted, rationally to affect directly or indirectly the assessment of the probability of the existence of a fact in issue: s 55(1) of the Evidence Act; IMM v R (2016) 257 CLR 300; [2016] HCA 14 ("IMM") at [38]-[39].
6. "Probative value" is defined as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
7. No question of the credibility or the reliability of the evidence can arise when determining relevance and probative value. The trial judge must proceed on the assumption that the jury will accept the evidence, and not enquire into the weight that it may ultimately be given. Credibility and reliability are properly matters left for the tribunal of fact: IMM at [52].
8. "Significant probative value" means capacity rationally to affect the assessment of the probability of the existence of a fact in issue to a significant extent: Hughes at [16] and [40]; IMM at [46]. The evidence must be influential in the context of fact-finding: IMM at [46]. In a criminal trial, "... the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged": R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 ("Ford"), cited by the High Court in Hughes at [40].
9. In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J said at [124]: "Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion."
10. In Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 the Court (comprising Bathurst CJ, Hoeben CJ at CL and Simpson JA) held at [359]-[360]: "[359] … Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. [360] ...Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."
11. It is not necessary that tendency evidence bear a "striking similarity" or "underlying unity" with facts in issue in order to have significant probative value. The requisite degree of similarity between the tendency and charged conduct will depend upon the circumstances of the case: Hughes at [39]-[40].
12. The majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes observed at [41]: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is to the extent to which the tendency makes more likely the facts making up the charged offence...there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
13. In relation to the test in s 101(2) of the Evidence Act, the Court noted, obiter, in Hughes at [17] that: "The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
14. "Prejudicial effect" of evidence "... is concerned with the risk that the evidence will be misused by the jury in an unfair manner, such as by provoking some irrational, emotional or illogical response": McPhillamy v R [2017] NSWCCA 130 per Meagher JA (in dissent but not relevantly).

The Tendency Notice and substance of the tendency evidence

1. The Notice served on 20 December 2019 specified the following tendencies of the accused to act in a particular way and/or to have a particular state of mind: 1. (2a) To act with the intention of inflicting serious harm upon her domestic partner; and/or 2. (2b) To sedate her partner with prescription or other drugs or poisons; and/or 3. (2c) To do so with the intention of obtaining a financial or other advantage for herself; and/or 4. (2d) To research the means of effecting such conduct by searching on the internet.
2. The substance of the tendency evidence which the Prosecution intends to adduce is contained in various documents that were specified in the Notice. The tendency evidence is focused on various acts of the accused in 2009 that led to criminal proceedings and ultimately negotiated pleas of guilty in respect of some but not all of the conduct in question. The conduct was the subject of police investigation and the tendency evidence comprises statements by the accused's former partner, Colin Crossman, his colleagues, police who investigated the conduct and other documents verifying aspects of the investigation.
3. The tendency evidence - if accepted - comprises the following: 1. In December 2006 the accused and her then partner Mr Colin Crossman, an ambulance officer, purchased a house in Walcha for $310,000 with a mortgage of the same sum. 2. As at January 2008, the house and contents were insured to a value of $318,000 for the building and $143,000 for the contents. 3. They purchased a $53,000 Pajero with an extension of that mortgage. 4. On 24 March 2007 they married. The cost of the wedding was the subject of a $12,000 personal loan in the name of Mr Crossman. 5. A combination of credit card debts totalling $32,000 was consolidated into another personal loan. 6. On 15 December 2008, on discussion with Mr Crossman, the accused made application for life insurance of $1,000,000 with $700,000 of that sum being payable to her upon the death of Mr Crossman and $300,000 being payable to him upon the death of the accused. 7. The accused indicated to Mr Crossman that she understood from Austeron, the insurance company, that the application was "all right". 8. The accused contacted Austeron "almost weekly" to inquire about the progress of the insurance application. 9. She did not know that on about 16 January 2009, Mr Crossman was telephoned by Austeron and told that he needed to provide a GP report regarding his sleep apnoea before insurance could be completed. 10. The accused told various people in November/December that she was separating from Mr Crossman. 11. In around December 2008 the accused discussed with "Clemmo" buying a property with a house on it at Bendemeer from him for $157,000. 12. The accused emailed a removalist company on 30 December 2008 about moving various specified items from the home in Walcha to Bendemeer. Mr Crossman knew nothing of this. 13. During December 2008 the accused conducted various searches on a computer at "Clemmo's" regarding "poisons", "find deadly poisons list", and the sedatives diazepam and triazolam. 14. During December 2008, the accused made contact with Cadburys staging a kind of threat scam involving the "poisoning" of chocolate almonds. 15. On 16 January 2009 Mr Crossman had a discussion with the accused in which he confirmed that she was the nominated beneficiary on Mr Crossman's Ambulance Officer's Provident Fund in a sum of $26,000. 16. On 16 January 2009, the accused served oysters kilpatrick to Mr Crossman for dinner. He ate one, which was acrid, and spat it out. 17. On the evening of 16 January 2009 the accused had a conversation with Mr Crossman in which she inquired as to what sort of force would be needed to do any damage if hit to the temple in the context of discussing helmets while riding horses. She asked him "is the temple area the most fragile part of the human skull?" 18. On the night of 16 January 2009, ambulance no. 891 was parked at the home of Mr Crossman and the accused, and the key hung on a hook inside the home. It was subsequently found (on 27 January) that two vials of midazolam were missing from the drug bag of that ambulance. 19. At about 4am on the morning of 17 January 2009, Mr Crossman was hit in the temple with a hammer by the accused. Mr Crossman's hammer was missing from its usual location. 20. On 18 January 2009, the accused told Mr Crossman that she found the hammer in a cupboard inside the house but Mr Crossman said it had not been there a few days before. 21. On the afternoon of 19 January 2009, the accused picked up a prescription for a drug - kalma - which is alprazolam, stating that she had been suffering from anxiety. 22. On the night of 19 January 2009, Mr Crossman said that the accused proposed that they "get drunk" together, an unusual proposition which he rejected. 23. The accused gave Mr Crossman two tablets that he thought and/or was told were "valerian" (a herbal sedative) and/or called "kalma" tablets. 24. The accused gave Mr Crossman tacos for dinner. He says that the next thing he remembers is waking up in hospital the next day and being told his house had been set on fire. 25. At 4am on 20 January 2009, the accused poured petrol on the bedroom floor of their home and set the room alight. 26. When the house was well alight, the accused went to a neighbour's house with her child Louis, leaving Mr Crossman in the burning house. 27. The neighbour and the accused returned to the house and removed Mr Crossman. 28. Mr Crossman was extremely disoriented and groggy, and vomited copiously. 29. An ambulance officer attended who was a friend of Mr Crossman. He was concerned about how groggy Mr Crossman was. He transported Mr Crossman to hospital and insisted that the attending nurse ensure blood was taken from Mr Crossman as "something was not right." 30. Documents indicate blood was taken at about 6.15am on 20 January which subsequently showed the presence of alprazolam, temazepam and venlafaxine. Urine taken and tested showed oxazepam, temazepam, alprazolam, venlafaxine and a trace of midazolam. 31. On 27 January 2009 a vial of midazolam was found in a cat food box at the home of the accused and Mr Crossman. 32. On 30 January 2009, the accused staged and lied about an attack upon her in which she administered horse tranquiliser into her shoulder by syringe. 33. In March 2012, the accused was convicted of intentionally or recklessly damaging her home by fire and was sentenced based on a statement of agreed facts for that offence and offences on a Form 1 of convey false information, assault (the hammer attack on Mr Crossman), public mischief (the false allegations about the 30 January attack on her) and two counts of fraud.
4. The key similar features asserted in the Prosecution case are as follows: 1. The accused met Mr Dunbar in 2014 through a dating website and was aware that he owned a large property worth over $3,000,000, that he had no dependents, no living blood relatives and had been adopted. 2. From May 2015 the accused knew that Mr Dunbar had made a will and that she was the sole beneficiary. 3. In October 2016 the accused moved into Mr Dunbar's property with her three children. 4. Between January 2017 and March 2017, the accused performed various internet searches on her phone and a computer at home about "toxic wild plants that look like food", "mushroom poisoning", "spinal tap", "inject air into spine" and "arteries in the body". 5. The accused obtained seroquel, cannabis and paliperidone from Ms McKnight in around April 2017. 6. The accused told Ms McKnight that Mr Dunbar was her gay business partner and that he was ill and had only six months to live. 7. In April 2017 a man with whom Mr Dunbar had been having a relationship committed suicide and Mr Dunbar became depressed. 8. In April 2017 the accused made searches on the Mac computer at home including "how to commit suicide". 9. In June 2017 there were searches on the home Mac computer "pills for suicide". 10. On 13 June 2017 the accused and Mr Dunbar had an argument about him lending money to a female friend. Mr Dunbar called his friend Lance Partridge and told him he had left and would kill himself. Mr Partridge says when he contacted the accused she seemed unconcerned and did not call police. 11. Police were called and took Mr Dunbar's gun away. He was admitted to the Banksia Psychiatric Unit between 13 and 15 June 2017. 12. Whilst Mr Dunbar was in Banksia, searches were completed on the Mac home computer for amongst other things, "sertraline overdose", "seroquel" and "seroquel suicide". 13. On 19 and 20 June 2017 the accused pursued obtaining ram sedative. 14. On 20 June 2017 Mr Dunbar attended Kings Pharmacy in Walcha and obtained sertraline 50mg tablets and clonidine for Louis Crossman. 15. On 21 June 2017 police were called to the house for a welfare check on Mr Dunbar. The accused answered the door and police asked to speak to Mr Dunbar. They observed him to be unsteady on his feet and slurring his words, and the accused said he had been unwell. 16. On 22 June 2017 Mr Dunbar visited his GP with a sore throat. 17. On 23 June 2017 the community mental health team telephoned Mr Dunbar and he said that he was not suicidal. 18. On 24 June 2017 the accused messaged Mr Crossman stating that she thought Mr Dunbar took a whole month of anti-depressants and that is why he was sick. 19. On 25 June 2017 the accused messaged a friend saying she could not get Mr Dunbar out of bed. 20. On 26 June 2017 the accused tried to obtain acepromazine - a horse tranquiliser - from North Hill vet alleging that the local vet was "not doing horse work". The request was refused. 21. On 27 June 2017 Mr Dunbar attended Walcha pharmacy stating that he had lost his supply of sertraline and requested another box. 22. On 27 June 2017 the accused carried out an internet search on the home Mac computer "acepromazine suicide". 23. On 27 June 2017 the accused contacted Creeklands Vet Clinic by phone requesting acepromazine. 24. On 28 June 2017 the accused purchased acepromazine from Creeklands vet using a false name, number and email address. 25. On 1 July 2017, the accused searched "ACP injection suicide". 26. On 3 July 2017 the accused searched on her mobile phone "leg muscles" and "leg muscle injection sites". 27. On 6 July 2017 Mr Dunbar told his GP that he had no suicidal ideation and on the 7th that he had no thoughts of self-harm. 28. On 7 July 2017 Mr Dunbar's mobile phone was used to search "can you inject valium", "suicide poem", "muscles for injection" and "calf muscle". 29. On 8 July 2017 the accused's mobile phone was used to search "no urine for 24 hours", "what happens if you don't urinate" and "acepromazine overdose" amongst other topics. 30. The accused injected Mr Dunbar with acepromazine in his calf leading to loss of consciousness and she lied to him to make him believe he passed out on a walk. 31. On 10 July 2017 Mr Dunbar went to his GP stating that he felt confused since Saturday and woke on Saturday with a swollen leg. 32. He was admitted to Walcha Hospital and was pale, anxious, had slurred speech and didn't remember anything with the accused stating "he doesn't remember anything" and her asserting that he "had a really high temperature". 33. Mr Dunbar told hospital staff confidentially that the accused kept spending money and he was concerned, and that she wouldn't stop and that he would not leave her because he did not want to "lose the kids". 34. Mr Dunbar was transferred to Tamworth Hospital for right calf cellulitis and back to Walcha on 15 July 2017 where he remained until 18 July 2017. On 15 July 2017 whilst he was still in hospital the accused's phone was used to search amongst other things, "oxycontin suicide". 35. Similar searches were made on 17 July 2017: "oxycontin murder", "oxycontin murder - suspect plead guilty", "phenergan overdose", "promethazine lethal dose" and clicked on numerous results including "woman charged for helping healthy man commit suicide". 36. On 20 July 2017 the accused told a friend that she felt that if there were drugs in the house Mr Dunbar would have overdoses. 37. On 20 July 2017 the accused carried out other searches regarding sedazine and acepromazine. 38. On 21 July 2017 the accused used her phone to search "arsenic". 39. On 23 July 2017 the accused sent a message to her friend that Mr Dunbar had a leg infection and was much better, and searched "oxycontin murder - suspect pleads guilty", "intubating", "feeding tube", "ritalin suicide overdose", "concerta suicide" and "wat [sic] is the best drug/combination to commit suicide" amongst other things. 40. On 24 July 2017 there were searches made on the accused's phone regarding amongst other things, "getting a vein", "murder by inducing heart attack" and "99 undetectable poisons". 41. On 25 July 2017 the accused sought and obtained 300mg seroquel tablets and paliperidone. 42. On the same day the accused attended Creeklands Vet Clinic and obtained needles and syringes, and provided a false name and phone number. 43. Later that day the accused's phone was used to search "paliperidone suicide" amongst other things. 44. On 26 and 27 July 2017 there were further searches on the accused's phone for "feeding tube", "mouth feeding tube", "how does potassium chloride stop the heart", "lethal dose of potassium", "where to get potassium chloride" and "suicide by hydrogen" amongst other things. 45. On 28 July 2017 there were other searches on the mobile phone of the accused that include "suicide bag" and "a collection of odd: exit strategy". 46. On 29 July 2017 the accused searched "suicide helium". 47. On 30 July 2017 the accused used her mobile to read an online article "asphyxia suicide by propane inhalation" and search, amongst other things, "plastic bag suffocation", "suicide propane or helium", "tubing", "tubing pipe", "helium gas bottle, helium tank hire", "suicide bag" and "suicide using plastic bag and gas". 48. On 31 July 2017 the accused called Supagas in Tamworth and rented a helium bottle stating that it needed to be "high purity". She was told they did not have that but she ordered a 3.5m3 cylinder and said she would collect it the next day. 49. On the same day the accused's phone was used to search "can police see past web history" and "how long do internet providers keep history" amongst other things. 50. Mr Dunbar told a friend his leg was improving. 51. On 1 August 2017 the deceased saw Dr Liebman who concluded his symptoms of pain, swelling and inability to weight bear had resolved and he had residual contracture of the left ankle which could be improved with physiotherapy. 52. Mr Dunbar collected the helium saying it was for a party and that his leg was not good. 53. The accused searched on her phone "DIY exit bag instructions" and "suicide kits you tube". The accused using her phone for these searches was recorded on CCTV footage at a time when Mr Dunbar had gone inside a café to order some food. 54. The accused's mother says that Mr Dunbar told her that afternoon that he was upset because the specialist said all his calf muscle was dead and they may be able to operate, and he will be on a walking stick for life. 55. That afternoon Mr Dunbar told someone else that the appointment went really well and that all he needed to do was some physio to help build up the muscle in his leg. 56. Sometime between 7pm and 1am the accused prepared a drink for Mr Dunbar in the magic bullet machine to which she added clonidine, quetiapine, temazepam and acepromazine to sedate him and once sedated placed a plastic bag over his head secured with elastic. She then fitted a length of tubing taken from the shower hose in the laundry and attached it to the helium cylinder, placed the end under the plastic bag, turned on the helium and returned to the lounge room. 57. At 1.14am the accused sent a fake message to Colin Crossman pretending to be Mr Dunbar stating "Tell police to come to the house. I don't want Tash or kids to find me." 58. At 2am the accused used the deceased's phone to call 000 and gave a version of what she says she found. 59. Pathology of Mr Dunbar's blood showed the following drugs in his system: nordiazepam, oxazepam, paracetomol, quetiapine, sertraline, temazepam, clonidine and promazine. 60. The accused was interviewed by police on 1 August, 4 August, 16 August and 18 November 2017. Objection was taken to the ERISP material being placed before me on this application so I have not taken into account anything included in the Crown Case Statement as having been said by the accused in those interviews.

Submissions

1. In respect of category (2a), senior counsel for the accused argued that the acrid oysters kilpatrick given to Mr Crossman could in no way be seen to be an act done with the intention of inflicting serious harm. I agree and will not permit that evidence to be led.
2. The striking to the head of Mr Crossman with a hammer is argued to bear no resemblance to the act of sedating and asphyxiating Mr Dunbar with helium gas. Senior counsel for the accused submitted that there is no feature of or about the offending which links the two matters together and so, on the application of what the High Court said in The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 ("Bauer") at [58], there is not significant probative value, particularly given this is a different victim.
3. A parallel was sought to be drawn to cases of sexual assault where there are multiple complainants as distinct from a single complainant. There needs to be a particular or unusual feature or sufficient temporal connection.
4. In my view there are particular and unusual features in the circumstances of the tendency evidence relied upon in the tendencies specified in (2a), (b) and (c) of the Notice, having regard to the Prosecution case. To the extent that what the High Court said in Bauer is directly applicable in a murder case, the considerations articulated in Bauer are in my view well-satisfied.
5. It was also argued by senior counsel for the accused that the somewhat bizarre circumstances of the tendency evidence would likely divert the jury from a proper consideration of the evidence or may be used to infer some kind of generalised homicidal intent against domestic partners which is highly prejudicial to the accused and cannot be cured by direction.
6. I do not accept this submission. Whilst the material is clearly prejudicial, it is of significant probative value. It does not matter that the precise methodology of the infliction of harm is different. The tendency identified is directed to the carrying out of an act performed by the accused on Mr Crossman and alleged regarding Mr Dunbar with the intention to cause serious harm. The circumstances of the acts make the intention to cause serious harm self-evident. It is up to the jury to decide what evidence they accept or reject. The proper use of the evidence can be dictated by direction. The probative value of that evidence significantly outweighs any prejudicial effect it may have.
7. With respect to the sedating of Mr Crossman and setting fire to the house, it is asserted by senior counsel for the accused that "sedation" is too vague and there is no evidence of intention to harm Mr Crossman and so there is no significant probative value and s 101 should apply. The levels of the drugs found in Mr Crossman are argued to be minor and that there may be confusion or unwillingness on the part of Mr Crossman to acknowledge what he had taken as opposed to, as the Prosecution asserts, surreptitiously administered by the accused. He was clearly affected by carbon monoxide poisoning as expected and as found in the pathology testing. The inference that drugs other than the alprazolam were administered by the accused is unavailable.
8. I disagree. Mr Crossman was an ambulance officer who would be well familiar with the requirement to be specific and clear regarding what he understood he had ingested. Carbon monoxide poisoning and its effects in no way explains the presence in his blood and urine of the other substances.
9. The submission is made by senior counsel for the accused in relation to tendency (2c) that financial or other advantage is not sufficiently defined. I reject that submission. On the contrary, benefits under insurance policies or employee benefits schemes, or property or gifts under a will are clearly the "other advantage(s)" referred to and are clearly and specifically nominated in the evidence sought to be tendered. Its probative value is significant in my view and substantially outweighs any prejudicial effect on the accused. There is stark similarity in that the benefits identified to flow are dependent on the death of the victims - Mr Crossman in 2009 and Mr Dunbar in 2017.
10. The submissions made on behalf of the accused in respect of tendency (2d) in the Notice I accept. The searches specified as having been made prior to the January 2009 events involving Mr Crossman are interesting but do not satisfy the description of "research(ing) the means of effecting such conduct by searching the internet." The conduct upon which the Prosecution relies as relevant to Mr Crossman did not involve poisoning. It involved assault and setting the bedroom on fire after sedating him.
11. The Prosecution argued in its written submissions in reply dated 12 May 2020 that there is a requirement to view the four identified tendencies in combination: Hughes at [40]-[41] and that the Prosecution is entitled to rely on all the identified evidence in its context to establish the relevant tendencies.
12. This is of course a reasonable submission as far as it goes, but it does not get over the problem that the research on the internet leading up to January 2009 does not correlate to the acts that are said by the Prosecution to have been done with the intention to inflict serious harm upon Mr Crossman. That part of the tendency notice must therefore fail on that basis.

Probative value of the evidence - consideration and conclusion

1. There is no issue about the notice given by the Prosecution of its intention to adduce the evidence, so the first issue I must determine (after relevance - s 55) is whether or not the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Prosecution, have significant probative value: s 97(1).
2. If I decide that it does, I must then consider the further restrictions upon the admission of the evidence which are imposed by s 101 of the Evidence Act. This entails a requirement to assess both the probative value of the evidence and the possibility of its prejudicial effect having regard to the issues in the case: R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 ("PWD") at [63].
3. There is no requirement that there be a striking pattern of similarity between the conduct established by the evidence said to constitute the tendency and the conduct which is alleged against the accused: Ford at [38] and [125], and PWD at [64]-[65]. However the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.
4. The prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue as required by s 55, and, for example, have an emotional, irrational or illogical response to it, or by giving it more weight than it deserves. This is an obvious risk in this case given the somewhat bizarre nature of the acts asserted (and in some respects effectively admitted) to have been carried out by the accused in 2009, and the elaborate and macabre plan asserted by the Prosecution to be the way the accused brought about the death of Mr Dunbar in 2017.
5. I must decide whether the probative value of the evidence in issue substantially outweighs any prejudicial effect that it may have: (R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319). In doing so, I need to consider (and articulate) the prejudicial effect the evidence may have and consider whether it can be ameliorated by directions which I must assume the jury will follow. If the evidence satisfies the test in s 101, there is no need to consider exclusion under s 137: Ford at [59].
6. There is in my view a high degree of similarity between the tendency evidence sought to be led set out in (2a), (b) and (c) of the Notice and the Prosecution case sought to be made. The knowledge and/or apprehension on the part of the accused of the availability to her of significant sums of money if her partner dies, the mix of sedatives found in both Mr Crossman and Mr Dunbar, the steps taken by her to deliberately inflict serious harm on her partner are specific and peculiar matters.
7. In respect of category (2a) of the proposed tendency evidence, I have concluded that the evidence regarding the accused serving and internet searching "oysters kilpatrick" cannot be led. "Acrid" oysters does not fit within tendency (2b) "to sedate her partner with prescription or other drugs or poisons", or (2a) "to act with the intention of inflicting serious harm on her partner." "Acrid" means unpleasantly bitter or pungent. There is no evidence that the "acrid" nature of the oyster tasted but spat out by Mr Crossman was caused by a poison or drug, or that the accused knew there was anything wrong with the oyster(s). To that extent, I accept the submissions of senior counsel for the accused that that conduct does not support tendency (2a) or (2b).
8. The lapse of time between the asserted tendency conduct can be relevant to an assessment of the probative value of the evidence: R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at [36]. The time lapse between the December 2008/January 2009 events involving Mr Crossman and Mr Dunbar's circumstances in 2017 was submitted by senior counsel for the accused to be an important disqualifying feature.
9. I am not satisfied that is right. It is the combination of the prospect of significant financial gain, a co-habiting and vulnerable victim and the controlling role in respect of domestic circumstances as a means by which to administer sedatives and the deliberate actions seriously harming her partners that combine to demonstrate a high level of specific similarity. I am required to take the Prosecution case at its highest and not assess the way the jury will accept, reject or weigh the evidence. The fact that it is some five years from 2009 before the accused got to know Mr Dunbar (and two years after she splits from Mr Crossman), followed by a further two and a half to three years before the events the subject of the prosecution occur, does not make the tendency evidence too remote.
10. This is particularly so given the unusual nature of the similarities in the combination of features of the proposed tendency evidence and the combination of features of the Prosecution case involving Mr Dunbar.
11. I am persuaded that the other evidence proposed to be led, (excluding the evidence about oysters kilpatrick and the tendency specified in (2d) of the Notice) is relevant: (s 55), and of significant probative value having regard to other evidence to be adduced in the Prosecution case: s 97(1).
12. Whilst the prejudicial effect is clear, I accept the Prosecution's submission that the other evidence specified in the Notice is highly specific and shows a strong similarity to the conduct in issue in the trial. In my view its probative value outweighs any prejudicial effect it may have on the accused (s 101).
13. Conventional directions will be given to emphasise that the evidence cannot be used to reason that the accused is a person of bad character and must not be used to punish the previous conduct or to substitute it for the charged conduct. Such directions will manage any potential unfair prejudice.

Orders

1. I make the following order: The Prosecution may adduce the tendency evidence set out in its Notice of 20 December 2019 with the exception of: 1. The evidence specified in (4a) of the Notice in relation to the serving of oysters kilpatrick to Colin Crossman, and 2. The tendency specified in (2d) of the Notice.

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