CRIMINAL LAW - EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - Admissibility of tendency evidence relied on by prosecution - operation ss 97 & 98 Evidence Act 2011 (ACT) - assessment of whether or not tendencies as pleaded are defective

Evidence Act 2011 (ACT) ss 65; 97(1)(a); 98 (1)(a); 101(2); 135; 137

Evidence Act 1995 (Cth) Pt 3.6

Dao v R [2011] NSWCCA 63; 81 NSWLR 568

DSJ v R [2012] NSWCCA 9; 84 NSWLR 758

Eastman v DPP (No 2) [2014] ACTSCFC 2; 9 ACTLR 178

Elomar v R [2014] NSWCCA 303; 316 ALR 206

Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233

Hughes v The Queen [2017] HCA 20

Ibrahim v Pham [2007] NSWCA 215

IMM v The Queen [2016] HCA 14; 257 CLR 300

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494

R v Amirah Droudis (No 13) [2016] NSWSC 1350

R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492

R v Droudis (No 13) [2016] NSWSC 1350

R v Eastman (No 9) [2016] ACTSC 69

R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466

R v PWD [2010] NSWCCA 209; 205 A Crim R 75

R v Taufahema [2007] HCA 11; 228 CLR 232

R v WR [2014] ACTSC 339

RH v R [2014] NSWCCA 71; 241 A Crim R 1

Vojneski v The Queen [2016] ACTCA 57

Mr M Thangaraj SC with Ms M Campbell and Mr K Lee (Crown)

Mr G Georgiou with Ms L Line and Mr M Stanton (Accused)

1. On 21 August 2015, and pursuant to s 97(1)(a) of the Evidence Act 2011 (ACT) (the Act), the prosecution filed and served an amended notice of its intention to adduce evidence of the conduct of the accused to prove that he had a tendency to act in particular ways and to have particular states of mind.
2. The notice sets out the particulars sought to be proved by the evidence it seeks to adduce as follows:
   • (a) That the accused had a tendency to have particular states of mind, namely:
     • (i) To hold ill-will towards persons whom he perceives [sic] to be refusing to accede to his will or demands. (Tendency 1)
     • (ii) To have a desire to obtain possession of a firearm. (Tendency 2)
   • (b) That the accused had a tendency to act in particular ways, namely:
     • (iii) To make threats of, or use, unlawful violence against persons whom he perceives [sic] to refuse to accede to his will or demands. (Tendency 3).
     • (iv) To threaten to shoot or kill people whom he perceives [sic] to refuse to accede to his will or demands. (Tendency 4)
     • (v) To take steps to obtain possession of a firearm. (Tendency 5)
3. In relation to Tendency 1, the assertion that the accused had a state of mind, such that he held ill-will towards persons whom he perceived to be refusing to accede to his will or demands, the prosecution relies upon 28 separate incidents. Of those incidents, 12 were the subject of evidence in the first trial. At that time they were introduced as proof of motive. Many of the incidents were referred to in a document known as MFI 258, which the trial judge did not permit to be introduced into evidence. The material in that exhibit was directed to rebuttal of evidence given by the accused that he was not a violent man. Furthermore, nine of the incidents relied upon either partly or wholly post-dated the date of the murder and none of those incidents was introduced into evidence at the first trial.
4. In relation to Tendency 2, the assertion that the accused had a state of mind such that he had a desire to obtain possession of a firearm, the prosecution relies upon 19 separate incidents. Of those incidents, 16 were the subject of evidence at trial.
5. In relation to Tendency 3, the assertion that the accused had a tendency to act in such a way as to make threats of, or use, unlawful violence against persons whom he perceived to refuse to accede to his will or demands, the prosecution relies upon 28 separate incidents. The incidents relied upon as establishing Tendency 3 are the same as those relied upon in relation to Tendency 1.
6. In relation to Tendency 4, the assertion that the accused had a tendency to act in such a way as to threaten to shoot or kill people whom he perceived to refuse to accede to his will or demands, the prosecution relies upon 16 separate incidents. Those incidents are also relied upon in relation to Tendency 1 and Tendency 3.
7. In relation to Tendency 5, the assertion that the accused had a tendency to act in such a way as to take steps to obtain possession of a firearm, the prosecution relies upon 19 separate incidents each of which is also relied upon in relation to Tendency 2.
8. On 25 September 2015 and in addition to the tendency notice referred to above, the prosecution filed an amended notice of intention to adduce coincidence evidence. That notice sets out the particulars of the evidence it seeks to adduce as follows:

Evidence of events referred to above will be led to prove that the accused did particular acts on the basis that, having regard to similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally.

The particular acts are as follows:

1. It was the accused who Mr Webb saw walking into Mr Klarenbeek's residence on 31 December 1988.
2. It was the accused who purchased the Ruger 10/22 rifle (the murder weapon) from Mr Klarenbeek on 1 January 1989.
3. Some of the 19 incidents referred to in the tendency notice and referable to Tendency 2 are also relied upon in the above coincidence notice, which relies additionally upon other alleged attempts by the accused to acquire a firearm in the period 1986 to 1989.
4. In response to the tendency notice and in written submissions filed on 8 May 2017, the defence summarised its objections to the admission of tendency and coincidence evidence as follows:
   • (a) The five tendencies pleaded at page 31 of the Crown's amended notice of intention to adduce tendency evidence are defective;
   • (b) The incidents relied upon in support of the tendencies do not have the capacity to rationally affect the probability that Mr Eastman killed Mr Winchester;
   • (c) The incidents relied upon in support of the tendencies do not have the requisite significant probative value (s 97(1) Evidence Act 2011(ACT));
   • (d) The Crown should not now be permitted to rely upon evidence of tendency and co incidence when it could have done so at Mr Eastman's first trial but chose not to do so;
   • (e) That the alleged tendency incidents concerning witnesses who are deceased or unavailable, who have never been cross-examined on their evidence regarding the incidents, and who have not given evidence at the previous trial, should in any event be excluded;
   • (f) The alleged tendency and coincidence incidents should not be admitted under s 101 (2), 135, or 137 Evidence Act 2011 (ACT).
5. It is appropriate at this point to observe that in the course of his oral submissions Senior Counsel for the prosecution suggested that I should resolve two of the issues raised by the defence before I resolve the other issues. He suggested that the resolution of paragraphs (a) and (d) above would save time, and would assist in the resolution of other issues. Counsel for the defence informed me that the defence agrees that the suggestion proposed by the learned prosecutor in this matter is a sensible one. I also agree and am grateful to counsel for their adoption of such a pragmatic approach.
6. Accordingly, in the course of this exercise it is agreed that (at this stage) I should not deal with any arguments which might arise as to the probative value of the individual items of evidence sought to be relied upon in support of each tendency; or as to the application or otherwise of ss 101 or 135 of the Act, or by reference to common law principles of unfairness.
7. It is proposed that submissions be made in relation to those matters, depending upon my determination of the questions of whether or not one or other of the five tendencies in question is, as submitted by the defence, defective, and whether or not the prosecution should now be entitled to rely upon evidence of tendency and coincidence when it did not do so at the first trial of the accused.
8. In such circumstances it is perhaps sensible to deal first with the submission that the prosecution should not be entitled to rely upon evidence of tendency and coincidence in circumstances where it could have done so at the first trial, but did not. Obviously if I were to uphold this submission, there would be no further need to consider the tendency and coincidence issues.

Should the prosecution be permitted to rely upon evidence of tendency and coincidence when it could have done so at the first trial of the accused but chose not to do so?

1. The defence submits that the prosecution ought not to be permitted to rely upon tendency and coincidence evidence when it had the opportunity to do so at the first trial and chose not to do so. It is clear that Part 3.6 of the Evidence Act 1995 (Cth) applied at the time of the first trial and had the prosecution so wished, there is no reason why an application could not have been made to introduce evidence for tendency and coincidence purposes at that time. It is submitted that much of the evidence that the prosecution now relies upon was not led at the first trial. Indeed, it is argued that the tendency notices refer to 24 people who were not witnesses at the first trial, but who are now listed as persons who saw, heard or perceived the conduct of the accused. It is submitted that all of that evidence was available at the time of the first trial and that as a matter of fairness, the prosecution should be precluded from relying on old incidents and events for new purposes. .
2. Although no authority was advanced in support of this proposition, the defence submission is that the evidence should not be admitted as a matter of fairness to the accused in the exercise of the Court's general discretion, to exclude admissible evidence, in order to ensure that the accused receives a fair trial. It is submitted that the prosecution should not be permitted to refine the matters on which it puts its case, particularly in circumstances where a retrial has become necessary because there has been a fundamental miscarriage of justice leading to the quashing of the original conviction.
3. The response of the prosecution is that although it is correct to say that much of the evidence now relied upon was not led at the first trial, the vast majority of relevant tendency incidents were 'raised at trial' even if not adduced. As I understand this submission, the prosecution relies upon the fact that what many of the additional witnesses would say is contained in the document referred to as MFI 258 and thus the proposed evidence was known to the accused at the time of the first trial. (That document was prepared by the prosecution as a chronology of violent threats made by the accused but was never introduced into evidence, although some information in it was permitted to be used in cross-examination of the accused in rebuttal of his assertions of good character.) It is contended that 'the few incidents that are relied upon now but which were not relied upon at the first trial, do not amount to the Crown impermissibly refining its case'. It is submitted that the accused is not being called upon to meet a 'quite different case to that presented against him at trial' as was the circumstance in Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494.
4. In the course of giving consideration to the application made by the accused to stay the trial, Ashley AJ in R v Eastman (No 9) [2016] ACTSC 69 at 235-243 dealt with the tendency and coincidence notices which are currently the subject of my consideration. He did not determine the question of the admissibility of the evidence described as evidence of tendency or coincidence[1], but he did give consideration to the notices in the context of whether or not the admission of the evidence referred to in the notices would amount to a 'new' prosecution case. Ashley AJ having considered the authorities concluded, at 242, that at least in the case of all the witnesses who did give evidence at the 1995 trial, the prosecution 'is not raising a new case, but rather, inviting a new and additional form of reasoning'.
5. However, in her oral submissions junior counsel for the accused, Ms Line, submits that the admission of the tendency evidence would 'amount to a patch up job in which the Crown is bolstering its case after the forensic evidence of Robert Barnes has been excluded from it'. She submits that reference to MFI 258 and the assertion of the prosecution that the evidence contained therein was 'raised at trial' is not to the point, and it is what was actually put before the jury which is relevant. She submits that there are 25 incidents relied upon by the prosecution in relation to Tendency 1 which were not the subject of evidence put before the jury at the first trial and that such evidence is 'fresh evidence'. Of those incidents it is submitted that 24 witnesses did not give evidence at trial and a 25th person gave evidence at trial about matters other than the tendency incident.
6. Ms Line relies upon the fact that before the Full Court, in Eastman v DPP (No 2) [2014] ACTSCFC 2; 9 ACTLR 178, there was some discussion in the course of the hearing as to whether or not evidence of past threats and violence on the part of the accused might show a tendency to commit violence which might be said rationally to affect the probability that the accused committed the murder, but that the prosecution had not put it that way at the first trial. Ms Line relies upon the joint judgment at [283] where the Court said:

This does not appear to be a case where a retrial would be unfair because it would impermissibly give the Director an opportunity to supplement or "patch up" a defective case: King v The Queen [1986] HCA 59; 161 CLR 423 at 433 per Dawson J with whom Gibbs CJ, Wilson and Brennan JJ agreed; see too Fowler 154 CLR at 630, Anderson 53 A Crim R at 453: or present a case different to that presented to the jury in the previous trial. There is no indication that the Director will, or will be able to, rely on any new factual allegations or any new evidence of significance: Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 262-263 [67]- [68].

1. Ms Line submits that 'if these five tendencies go in with their 47 separate incidents, that would amount to new evidence; it would amount to new factual allegations' as is clear, she submits, by the fact that 24 such witnesses did not give evidence at the original trial.
2. In King v The Queen [1986] HCA 59; (1986) 161 CLR 423, in the context of whether or not a new trial should be ordered after the quashing of a conviction, Dawson J said at 433:

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518.

1. Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 was a culpable driving case whereby at trial the prosecution had put its case based upon circumstances after the accused had fallen asleep at the wheel. On appeal to the High Court the conviction was set aside and the question arose as to whether a new trial should be granted in circumstances where the prosecution could base its case upon circumstances which had occurred before the accused fell asleep at the wheel. McHugh J said at 590-1:

First, as a general rule, a new trial should not be ordered to enable the Crown to make a new case at trial....In the present case, a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial....The general rule that a new trial will not be ordered so that the Crown can put a different case must prevail.

1. In Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 the High Court dealt with the issue of a retrial. Dawson, Toohey and McHugh JJ said at 519 that:

... it is apparent that on a retrial the appellant would be called upon to meet a quite different case to that presented against him at trial. That would be unfair, particularly having regard to the sentence already served. In our view these circumstances justify this Court entering verdicts of acquittal, not by reference to what might be called discretionary considerations but by reason of the unfairness of the criminal process that would otherwise follow.

In that case the likelihood was that the indictment would require substantial amendment.

1. Each of the above cases was considered by the majority judgment in The Queen v Taufahema [2007] HCA 11; 228 CLR 232 (Taufahema). The majority, Gummow, Hayne, Heydon and Crennan JJ, having considered those authorities said at [67][68]:

These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.

In the present case, what the prosecution proposes to do at the second trial of the accused is not to advance any factual allegation .... inconsistent with the case advanced at the first trial. It proposes to tender the circumstantial evidence tendered at the first trial - of the telephone calls made by the four men on the day in question, of the surveillance of the two men as they travelled by railway, of their movements around Sydney, and of the incriminating materials they possessed .....That evidence illuminates the nature of the enterprise on which the men were engaged. The enterprise can be characterised in different ways. That is, what the prosecution proposes to do is rely on the same evidence as was called at the first trial, but to seek to characterise the facts which that evidence may establish in a different way, but not a radically different way.... All the prosecution proposes to do at the second trial is to rely on an inference which could have been drawn in the first trial.... It has not been shown that the evidence to be called by the prosecution at the second trial will be different in any other respect. Counsel for the accused conceded that if the characterisation which the prosecution wishes to make of the evidence at the second trial had been put at the first, there would have been no difference in the evidence called....

1. The case before me does raise some issues that make it different from the case considered by the High Court in Taufahema. The first such issue is that unlike that case the prosecution does seek to lead evidence that is different from that which was put before the jury in the first trial. The prosecution argues that the evidence in question was known substantially to the accused by reason of MFI 258. However, as submitted by Ms Line, the relevant issue must surely be what it is that was actually put before the jury. In that sense it is proposed by the prosecution that there will be evidence adduced from 24 fresh witnesses at trial. A second difference is that unlike Taufahema it is not the case that the prosecution merely proposes to rely upon an inference that could have been drawn at the first trial. The prosecution now seeks to draw inferences from alleged tendencies which inferences would not have been able to be drawn at the first trial without an application being made to the trial judge to do so.
2. However, notwithstanding those differences, and as troubled as I am by the fact that the prosecution now seeks to rely upon a considerable body of evidence which it chose not to rely upon at the first trial, I do not consider that it can really be said that the prosecution is relying on a new case, such that it should be disentitled to seek to rely upon the tendency notices it has filed and served in this case. In the end it appears to me that what the prosecution is seeking to do is, as Ashley AJ said in Eastman [No 9] at 242, 'inviting a new and additional form of reasoning'. In the light of the authorities it appears to me that to do so is permissible.

Is the Crown's amended tendency notice as to the 5 tendencies defective?

1. Accordingly I now turn to consider the arguments advanced before me as to whether the five tendencies set out in the notice are defective.
2. Taking into account the general submissions of the defence to the effect that the five tendencies relied upon by the prosecution in the amended notice are defective, it is appropriate to refer to observations made in Hughes v The Queen [2017] HCA 20 by Gageler J. These are helpful in relation to what is required of a tendency notice. His Honour's observations on this aspect of the appeal are not diminished in authority by reason of his dissent from the majority as to the ultimate disposition of the appeal. At [105] he said:

Making the evaluative judgment required of a court in the implementation of the tendency rule is facilitated by the procedural requirement that a party must ordinarily give notice of an intention to seek to adduce tendency evidence. The utility of the tendency notice goes beyond providing procedural fairness to other parties. The tendency notice provides the court, at the critical time of assessing the admissibility of tendency evidence, with a statement of the particular tendency which the party seeking to adduce the tendency evidence seeks to prove by it. The importance of explicitly identifying in the notice the particular tendency that is asserted, as Howie AJ put in Bryant v R [2011] NSWCCA 26; 205 A Crim 531 at [50] "should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence". By identifying the particular tendency that the evidence is asserted to prove, the notice allows the court to evaluate the strength of the connection between the evidence and the tendency and the strength of the connection between the tendency and the fact in issue.

In Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 (Gardiner) Simpson J stated at [128]:

A properly drafted tendency evidence notice should, in my opinion, explicitly identify a fact or facts in issue upon which the tendering party asserts the evidence bears. It should also explicitly identify the tendency sought to be proved.

In Elomar v R [2014] NSWCCA 303; 316 ALR 206 at [348] Bathurst CJ, Hoeben CJ at CL and Simpson J, said:

In determining whether tendered evidence is properly to be regarded as tendency evidence, it is necessary to identify, with some precision, what the tendering party proposes to establish by the evidence.

1. In this regard it is appropriate to consider the amended notice of intention to adduce tendency evidence which was filed by the prosecution on 21 August 2015. The notice is 31 pages in length. The five tendencies which are sought to be relied upon by the prosecution appear on the last page. Subject to my further consideration of each tendency as pleaded below, they do appear on the face of them to specify the tendency that is sought to be proved by the prosecution. The balance of the notice sets out in some detail the evidence upon which the prosecution seeks to rely, and which evidence it argues is substantially probative. However, nowhere in the s 97 notice is there any explicit identification of the fact or facts in issue upon which the prosecution asserts the evidence bears.
2. As Simpson J said in Gardiner 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.

1. As stated above, the s 97 notice does not contain any explicit identification of the facts in issue in relation to each tendency sought to be relied upon by the prosecution. However the written submissions of the prosecution filed on 17 March 2017 do deal with the facts in issue in a global sense. At [4-6] of those submissions the following statements appear:

4. The Crown must prove that it was Mr Eastman (and not someone else) who murdered Mr Winchester on 10 January 1989. In establishing this, the Crown seeks to prove the following intermediate facts:

(i) Mr Eastman was the purchaser of the murder weapon; and

(ii) Mr Eastman threatened to kill Mr Winchester.

5. These facts are relevant as they could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue....

6. The tendency evidence sought to be adduced would have a bearing on the assessment of the probability that Mr Eastman purchased the murder weapon and held ill-will towards, and threatened, Mr Winchester. These matters make it more likely that it was Mr Eastman who was the murderer.

1. I turn below to consider each of the five tendencies which are before me.

Tendency 1 - Tendency to hold ill-will towards persons whom he perceived to be refusing to accede to his will or demands.

1. The tendency notice adverts to 28 incidents identifying threats and/or acts of violence by the accused over a 10 year period between 1985 and 1995. Of those 28 incidents 12 were the subject of evidence at the first trial and were admitted into evidence as proof of motive to murder. Eight (8) of the incidents post-dated the date of the murder.
2. To understand the general nature of the evidence upon which the prosecution intends to rely to establish the tendency in question it is useful to provide a brief summary of the 28 incidents.
   • (a) The first such incident relied upon is an alleged assault by throwing wine and dragging and pulling one Hugh Selby in 1985. Apparently this was related to dissatisfaction by the accused that Mr Selby had not acted upon his complaints.
   • (b) The second incident involves alleged threats and an assault in 1985 with an umbrella against a person with whom the accused had previously had a romantic relationship.
   • (c) The third incident relates to the alleged stalking of a woman in 1985. It would appear that the woman in question had rejected the romantic interest the accused had in her.
   • (d) The fourth incident relates to a comment, said to have been made by the accused in 1985 in consequence of no-one showing any interest in his superannuation dispute, to the effect that he felt sometimes like getting a gun and killing someone.
   • (e) The fifth incident relates to an alleged punch to the back of a person who refused to see him in early 1986.
   • (f) The sixth incident relates to an incident in July 1986 when the accused is alleged to have grabbed a woman and removed her from a room at the Administrative Appeals Tribunal after she refused his request to leave the room. It is also alleged that another person was assaulted in the course of that incident.
   • (g) The seventh incident relates to an event in December 1986 when the accused is alleged to have threatened to kill his parents after they refused him entry into their home.
   • (h) The eighth incident is said to have occurred in August 1987 when the accused assaulted and threatened one Alan Anforth who had made some legal submissions with which the accused disagreed.
   • (i) The ninth incident is an alleged threat in August 1987 to punch a person after that person had refused to make his secretary apologise to the accused.
   • (j) The tenth incident is an alleged threat in August 1987 to an employee of the Department of Finance with a baseball bat after the accused was informed that an act of grace payment had been refused.
   • (k) The eleventh incident is the same as the tenth except that the threat is alleged to have been made to a different employee of the Department of Finance.
   • (l) The twelfth incident is an alleged assault in December 1987 on one Andrew Russo during an argument over the use of a car park.
   • (m) The thirteenth incident relates to an alleged comment made to one Irene Finke on 24 December 1987 that the accused wanted to kill the neighbour and his friends, and the 'bastard police'.
   • (n) The fourteenth incident alleges a threat in 1988 to a woman that she 'better watch out'.
   • (o) The fifteenth incident is a general threat made to one Helen Vick in early 1988 regarding the return of the accused to the public service, saying that he would have to kill somebody to get the necessary publicity for people to see the injustice that had been done to him.
   • (p) The sixteenth matter relied upon is an alleged threat against Mr Winchester made in late 1985 to the accused's then solicitor, Mr Barbara.
   • (q) The seventeenth incident relates to an alleged threat to bash and kill Irene Finke if she 'bumps' into the accused.
   • (r) The eighteenth incident relates to an alleged threat made to Dennis Roantree, four days before the murder of Mr Winchester, about Mr Winchester, that police should be taught a lesson and that 'I should shoot the bastard'.
   • (s) The nineteenth incident involves a threat that may have post-dated the murder of Mr Winchester, to a Mr Moffat that the accused would 'punch out' another person.
   • (t) The twentieth incident which post-dates the murder of Mr Winchester by 14 months is an assault on two people apparently related to a dispute about a car park.
   • (u) The twenty-first such incident in July 1990 relates to a threat to break Hugh Selby's nose.
   • (v) The twenty-second incident relates to a threat made in August 1990 to shoot Senator Reid if she did not stop police harassment.
   • (w) The twenty-third incident relates to threats made to a journalist in August 1990 that unless harassment by police stopped the accused would shoot the reporter and his editor.
   • (x) The twenty-fourth incident is said to have been made to one Sylvia Sim that the accused would shoot a Mr Winder if police harassment did not stop.
   • (y) The twenty-fifth incident relates to alleged threats to shoot the ACT Attorney General in August 1991 if he did not stop police harassment.
   • (z) The twenty-sixth incident relates to an alleged threat in November 1992 against one Phillip Cotter that when the accused 'got his name, he would be dead'.
   • (aa) The twenty-seventh incident relates to an assault made against the CEO of ACT bus service in June 1994.
   • (bb) The twenty-eighth incident relates to an assault upon a Barbara Moore in February 1995 after the accused was denied membership of the ACT Heraldry and Genealogy Society.
3. Of course I understand that the defence contends that much of the evidence referred to above is inadmissible, or of little probative value, on a number of grounds, but for the purpose of the exercise in which I am presently engaged it is useful to determine the evidence upon which the prosecution submits the tendency in question is based. As can be seen, the prosecution seeks to rely upon a wide range of different behaviours on the part of the accused in vastly different circumstances and arising from a variety of different relationships between the accused and the persons the subject of the proposed evidence.
4. The prosecution case is that the accused had a motive to kill Mr Winchester. This developed in part because of Mr Winchester's refusal to accept the accused's representations concerning the Russo assault and it was this refusal that caused the accused extreme frustration and anger towards Mr Winchester. It is argued that if the accused had the tendency to hold ill-will towards persons whom he perceived to have refused to accede to his demands, it is more than likely that he held the same state of mind with regard to Mr Winchester.
5. The defence submits that the alleged tendency of the accused 'to hold ill-will towards persons whom he perceives to be refusing to accede to his will or demands', is impermissibly general and vague. It is argued that demonstrating, through evidence of many and varied incidents, that the accused had a general tendency to be ill-disposed to those whom he considered to be uncooperative or unhelpful is such a broad and vague concept that it cannot be used in support of the reasoning process upon which the prosecution seeks to rely. It is submitted that such evidence that there may be of ill-will on the part of the accused towards others in a variety of circumstances can have no bearing upon how the accused felt about Mr Winchester. The defence submits that the multilayered or multi-step reasoning process suggested by the prosecution should be rejected.
6. It is submitted on behalf of the accused that, in effect, what the prosecution seeks to prove is that the accused killed Mr Winchester because the prosecution can prove the intermediate fact that the accused bore ill will towards numerous people, and therefore it is more likely that he bore ill will towards Mr Winchester to the degree that he murdered him. It is submitted that such inferential reasoning is too remote. Furthermore, the remoteness of the concept of ill will is demonstrated by the fact that such a state of mind might be immediate, fleeting or perhaps held for a long time. If the accused held ill will in relation to many of the people referred to in the tendency notice it may well have been immediate and fleeting and thus of no relevance to the state of mind sought to be established by the prosecution.
7. However, in response to the defence contention contained in the previous paragraph the prosecution relies upon IMM v The Queen [2016] HCA 14; 257 CLR 300 where the majority said at [103]:

To warrant the description of having "significant probative value", the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable. To the extent that similes can help elucidate the statutory measure of "significant", the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue does not need to be "substantial" but does need to be "important" or "of consequence". The significance of the probative value of the evidence falls to be gauged having regard to the issues which would arise for the consideration of the jury in reasoning that the evidence made a fact in issue more or less probable and having regard to other evidence bearing on the existence of that fact adduced or to be adduced by the party seeking to adduce the evidence.

The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence. (Emphasis added)

1. The prosecution submits that the tendency evidence need only contribute to, and can only be understood accurately as comprising part of, a holistic Crown case and that this approach was upheld in Hughes v The Queen [2017] HCA 29 when the majority said 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 the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

(Emphasis added)

1. Based on this approach the prosecution argues that the tendency does not need to be formed around the 'intensity of the ill-will the accused is said to have held towards Mr Winchester' to be admissible, as argued by the defence. It is submitted that it is enough if the tendency is 'of consequence' in making a fact in issue more or less probable, having regard to the other evidence on that fact that the prosecution seeks to introduce into evidence.
2. The prosecution argues that the incidents referred to above in relation to Tendency 1, when looked at as part of the prosecution case as a whole, are of consequence in demonstrating that the accused had a tendency to display ill-will towards Mr Winchester, and others, in circumstances when he felt he had been refused or denied justice. Part of the prosecution case is that the accused's state of mind was that he would over-react to people in relation to minor issues and that led to major responses.
3. The defence argues that no modus operandi, pattern or common thread can be identified in the tendency notice. However, it is now clear from Hughes v The Queen [2017] HCA 29 that the concept of modus operandi etc is not required. As stated in Hughes v The Queen [2017] HCA 29 at [34]:

The omission of those familiar common law concepts is eloquent of the intention that evidence which may be significantly probative for the purposes of s 97(1)(b) should not be limited to evidence exhibiting the features so described.

Depending upon the issue in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.

1. Accordingly, the matter for my consideration at the present time is whether or not the prosecution has identified a s 97 tendency (that is a tendency on the part of the accused to think or act in a particular way)?

1. In my view the tendency sought to be relied upon by the prosecution under this heading is too wide and is impermissibly vague and general. What precisely does the concept of 'ill-will' mean? Is it a momentary flash of anger? Is it a deeply seated and long held grudge against a particular person? Is it a sense of resentment towards another person? Is it a derogatory opinion held about another person? Is it a dislike of another person? Is it hatred of another person? Is it displeasure at the conduct of another person?
2. The tendency which is required under s 97 is a tendency 'to act in a particular way' or to have a 'particular state of mind'. Whilst it is true that Hughes v The Queen [2017] HCA 29 can be said to be supportive of what may be said to be a 'broad tendency', in that case 'a sexual interest in females under the age of 16 years', it does not seem to me to be authority for such a wide concept as that of 'ill will'. That is a state of mind which, as discussed in the previous paragraph, in my opinion is difficult to define.
3. Although I am not asked at the moment to consider the probative value of each of the incidents relied upon in support of Tendency 1, the nature of those incidents is illustrative of the width of the tendency sought to be relied upon by the prosecution. The incidents in question range from actual assaults, to oral threats, to stalking, and the behaviours take place in a variety of circumstances and relationships Those include personal relationships, engagement with persons employed at the AAT, members of the public, a solicitor, the proprietor of a bus service, and in response to police harassment. Some of these incidents appear to be in immediate response to incidents which displeased the accused, such as a dispute about a car park. Others appear to be in response to long held concerns of his such as those about police harassment.
4. As stated above, the variety and different nature of behaviours and relationships which are associated with outbursts of anger on the part of the accused, are demonstrative of the width of behaviours upon which the prosecution seeks to rely in support of the tendency in question. It might be said that such incidents demonstrate that the accused is a person who at the relevant time, in response to what he regarded as provocation, was quick to engage in outbursts of anger in a variety of forms. The state of mind upon which the prosecution seeks to rely, that of holding 'ill-will towards persons whom he perceives to be refusing to accede to his will or demands' is far too wide and vague to be admissible.
5. The prosecution's proposal to present evidence of numerous incidents, to the effect that the accused has often (both before and after the date of the murder) responded in an unpleasant, threatening and at times violent manner to those whom he considers to be unhelpful or uncooperative, cannot support the reasoning process upon which the prosecution seeks to rely. Accordingly I am satisfied that the tendency pleaded as Tendency 1 is defective, as submitted by counsel for the accused.
6. Having determined that Tendency 1 as pleaded is defective, it is appropriate to add that even if I had concluded to the contrary, there are other significant issues which would affect the probative value of the evidence sought to be relied upon.
   • (a) First, as is apparent, a significant number (at least eight) of the incidents relied upon by the prosecution post-date the event sought to be proved through the tendency, in one case by a period of five years after the murder. I think it is clear that significant caution needs to be exercised in admitting evidence as to subsequent events (see R v Jacobson (Ruling No 2) [2014] VSC 368; 243 A Crim R 466; R v WR [2014] ACTSC 339).
   • (b) Furthermore, a considerable part of the evidence that the prosecution seeks to rely upon in support of this tendency was not led in the previous trial and some of the witnesses to some of the incidents are now deceased and the evidence can be led only through s 65 of the Evidence Act which in some cases presents serious difficulties in terms of fairness.
   • (c) Even if Tendency 1 as pleaded was not so broad as to be inadmissible, I consider that few of the individual incidents relied upon can be said to have significant probative value. It is to be remembered that the prosecution submits that the evidence sought to be relied upon in support of Tendency 1 bears upon the probability that the accused held 'illwill' towards Mr Winchester. The prosecution case is that the accused experienced a number of disappointments in his endeavours to seek re-employment in the Commonwealth Public Service, and that gradually and particularly from 1985 onwards, a build-up of frustration, resentment and anger occurred in the accused at what he perceived as the injustice of the circumstances in which he found himself.
7. The prosecution case is that in 1987 the accused was involved in a fight with a neighbour, Mr Russo, and that the accused then commenced a concerted campaign to have a charge of assault which was laid against him in consequence thereof set aside. Furthermore, that over the following years the injustice and frustration that the accused had initially felt towards the Commonwealth Public Service, was then focused on ACT police generally and finally upon Mr Winchester personally. This was the case mounted by the prosecution in the first trial and in essence remains so according to the prosecution's amended case statement filed 21 August 2015. No doubt the prosecution will lead relevant evidence in support of the above matters.
8. Taking into account the way in which the case is put by the prosecution, it appears to me that the prosecution submission in support of the admissibility of the evidence which it considers to be relevant to proof of Tendency 1, is really to the effect that the accused bore illwill (whatever that might mean) towards a variety of people, expressed in a variety of ways and occurring in a variety of circumstances and relationships. Therefore, so the argument goes, it is likely that he bore such illwill against Mr Winchester and in such a manner that he determined to, and did, murder him. In my view that form of reasoning is so remote that it is not capable of being seen to be significantly probative.

Tendency 2 - To have a desire to obtain possession of a firearm

1. The prosecution relies upon nineteen incidents as evidencing interest in the acquisition of a firearm. Sixteen of those incidents were relied upon at the first trial.
2. As stated above the s 97 notice did not identify explicitly the fact or facts in issue upon which the prosecution asserts this tendency bears. However, the written submissions filed on 17 March 2016 on behalf of the prosecution state at [36]:

It is submitted that evidence of Mr Eastman's long held desire to obtain possession of firearms, particularly rifles, is relevant and significant to establishing whether he bought the rifle that is alleged to have been used in murdering Mr Winchester. His anger towards the public service and police built up over some time and he had decided that someone was going to pay the price. The desire to purchase a firearm was reflective of a state of mind which ultimately focused on Mr Winchester.

1. The issue that the prosecution seeks to establish by Tendency 2 is to explain why it is that the accused wanted to obtain possession of a firearm. It is submitted that the circumstances which are relied upon to establish the tendency in question do in fact display 'a pattern of behaviour, modus operandi, system or pattern and common threads' (see R v PWD [2010] NSWCCA 209; 205 A Crim R 75 per Beazley JA, Buddin J and Barr AJ) in the conduct of the accused.
2. It is appropriate to examine briefly the incidents relied upon in this regard.
   • (a) The first incident relates to a time in 1986 when the accused was said to be interested in whether Mr Russo was selling a shotgun and also in 1987 when he enquired as to whether Mr Russo's sister could obtain a pistol from the USA.
   • (b) The second incident relates to an alleged interest in obtaining a firearm from a Mr Smith in October 1987.
   • (c) The third incident relates to an allegation that in November 1987 the accused attended to inspect a Mauser .243 calibre rifle at the home of a Mr Tierney.
   • (d) The fourth such incident relates to the alleged interest of the accused in obtaining a firearm through a Mr Cadman in January 1988.
   • (e) The fifth such incident relates to an alleged interest by the accused in purchasing a firearm through a Mr Alexandru in January 1988.
   • (f) The sixth such incident relates to an interest the accused is said to have had in obtaining a rifle through a Mr Dunbar in January 1988.
   • (g) The seventh such incident is said to be in the accused obtaining a firearm through a Mr Hadjitofi in January 1988.
   • (h) The eighth such incident is said to be in January 1988 when the accused allegedly showed an interest in purchasing a firearm through a Mr Fielding.
   • (i) The ninth such incident relates to an alleged interest by the accused in obtaining a firearm in January 1988 from a Mr Hyde.
   • (j) The tenth such incident relates to an alleged interest by the accused in obtaining a firearm in January 1988 from a Mr Knight.
   • (k) The eleventh such incident relates to the accused showing interest in obtaining a firearm from a Mr Aringo in January 1988.
   • (l) The twelfth such incident relates to the accused showing an interest in obtaining a firearm through a Mr Cowden in January 1988.
   • (m) The thirteenth such incident relates to alleged interest the accused showed in purchasing a firearm through a Mr Sparkes in January 1988.
   • (n) The fourteenth such incident relates to an alleged purchase of a firearm from a Mr Bradshaw in February 1988.
   • (o) The fifteenth such incident relates to the alleged purchase from a Mr Lenaghan of a Ruger .22 rifle in February 1988.
   • (p) The sixteenth and seventeenth such incidents relate to alleged intent of the accused in obtaining a firearm through a Mr Thompson in June 1988 and October 1988.
   • (q) The eighteenth incident relates to alleged interest shown by the accused in buying a Ruger 10/22 from a Mr Ross in November 1988.
   • (r) Finally in November 1988 it is alleged that the accused showed interest in a Ruger 10/22 which a Mr Kaalverink had for sale.
3. I observe again that there is considerable contention about how much of the evidence referred to in the preceding paragraph is admissible, or whether or not it is of significant probative value, but that is not a matter relevant to my present consideration.
4. In relation to the prosecution contention that the evidence referred to above demonstrates a state of mind on the part of the accused that he was desirous of possessing a firearm, the defence relies first upon the temporal issue of the evidence relied upon as being over a period of up to three years before the shooting of Mr Winchester. It is argued that evidence of a desire on the part of the accused to obtain a firearm in 1986 could not rationally affect the likelihood of the presence of the fact in issue that the accused desired and did obtain a firearm in January 1989. It is argued that an interest expressed years before the occasion in question renders the tendency of little or no probative value on the basis that desires wax and wane, and what may be desired at one point is not necessarily indicative of what may be desired at a later time by a person.
5. However, in response to the defence contention about the lack of temporal connection between the so called desire and the murder, the prosecution contends that the passage of time does not diminish the probative value of tendency evidence, and indeed, so it is submitted, can strengthen it. Reliance is had on RH v R [2014] NSWCCA 71; 241 A Crim R 1, where in the context of sexual assaults by the appellant over a lengthy period of time against several victims, it was held that evidence of events subsequent to the crime under consideration could be regarded as revealing a relevant and probative tendency. Furthermore the prosecution relies upon R v Droudis (No 13) [2016] NSWSC 1350 where conduct from 2007 through to 2014 was said to be relevant to a suggested tendency that the accused had to do the bidding of one Monis in a number of different ways including extremist activities and reprehensible conduct. In that case Johnston J said at [171]:

In the manner which I have outlined, the nature and dynamics of the relationship between Monis and the Accused are relevant, with the various events in the period 2007-2014, being capable of shedding considerable light upon the alleged motive of the Accused (and Monis) and the state of mind of the Accused in acting in different ways at the behest of Monis. The evidence forms part of a multi-facetted circumstantial case which the Crown advances.

1. Whilst I accept the prosecution argument that events which have taken place over a considerable period of time can still be relevant to a suggested tendency, in the circumstances of the tendency pleaded before me I agree with the submission of the defence that the desire pleaded can wax and wane and be the subject of different motivations at different times.
2. In addition it is submitted on behalf of the accused that the probative value of such a desire loses significance when one considers that it is likely that there were many people in the ACT with a similar interest in 1988 and early 1989. In my view there is some weight in this argument. The evidence in this case demonstrates that it was at that time commonplace for advertisements to be placed in the Canberra Times newspaper relating to the sale and purchase of firearms. Likewise care must be taken not to impose values that are now current on circumstances which existed more than 30 years ago. It will be recalled that it was not until after the tragic events at Port Arthur in Tasmania in 1996 that public opinion regarding gun ownership changed dramatically. Prior to that time (as was clearly demonstrated by the number of guns handed in during the subsequent amnesty) it was commonplace for many people to own firearms. There would have been nothing unusual in a person having a desire to own a firearm at that time, as distinct from now.
3. As stated above, the s 97 notice does not identify explicitly the fact in issue which the prosecution asserts this tendency bears upon. In my view in this regard it is deficient. However, if as suggested in paragraph 4 of the written submissions the fact in issue is that the accused was the purchaser of the murder weapon, then in my view neither the stated tendency nor the evidence relied upon in support of that stated tendency, is capable of having the requisite probative value. If, on the other hand, the fact in issue is that stated in paragraph 36 of the written submissions, that 'the desire to purchase a firearm was reflective of a state of mind which ultimately focused on Mr Winchester', then the stated tendency is in my view far too broad and the connection between the stated tendency and the murder of Mr Winchester is tenuous in the extreme.
4. Finally, a tendency under s 97 is a tendency to 'act in a particular way, or to have a particular state of mind', that is a tendency to think or act in a relatively distinctive ('particular') way. To my mind there is nothing distinctive or particular about the state of mind pleaded by the notice in relation to Tendency 2.

Tendency 3 - To make threats of, or use, unlawful violence against persons whom he perceived to refuse to accede to his will

1. The 28 incidents relied upon by the prosecution in support of Tendency 3 are the same incidents relied upon by the prosecution in support of Tendency 1.
2. The defence argues first that the breadth and generality of this tendency is demonstrated by its incorporation into a single finding of two different acts, being threats of violence and the use of violence. The defence submissions are that as those two different kinds of conduct are contained within the same tendency, the allegation is of a general kind and thus the force of any inferential reasoning that stems from the tendency is reduced.
3. In relation to this issue, and in the course of oral submissions, I raised the question with Senior Counsel for the prosecution as follows, at 328 of the transcript:

Q. Well, there is a specific complaint about the double barrel of that, isn't there?

A. There is, and there are a couple of things I need to say. Firstly, in Vojnevski - which we have put into our written submissions - that's exactly what was done. Two, there is a simple solution to that, which is we split it up. Now, if the court requires us to split it up, we'll do that; there is no problem with that.

The response of counsel for the accused to that submission was as follows at 3567:

Here, we say the tendencies as drafted, a [sic] very general, and earlier this morning I understood my friend to say, "Well, to the extent to which some of the tendencies refer to multiple acts, or multiple kinds of things like a threat to shoot or kill, or threats of violence or violence," quote and I understood my learned friend to submit that perhaps the tendencies can be redrafted.

It's submitted that if tendencies, these notices, were filed many months ago, the Crown in the case of both tendency and coincidence evidence, has already filed an amended notice for each. It's a bit late at this juncture to be submitting to your Honour, "Well, we can just redraft the tendencies if we haven't drafted them properly. If they're too general we'll just redraft them." It is submitted, rather, that if they're not done properly by this point then the tendencies just ought not be admitted.

1. I have considerable empathy with the submission advanced by Ms Line on behalf of the defence in this regard and in my view it is for the prosecution to draft its notice and not for the court to 'settle' it. In any event, and whilst it is true that in Vojneski v The Queen [2016] ACTCA 57 the Court accepted that a tendency to 'threaten or inflict harm' could be a relevant tendency, it should be observed that the tendency which the Court said could be relevant, was a tendency which was nowhere near as broad and general as that presently under consideration. Indeed, it was much more specific. The tendency that the Court indicated it may have approved at [37] in that case was as it said 'a relatively distinctive tendency', to wit:

.... [T]o become irrationally or disproportionately angry and then use knives to threaten or inflict harm on people or objects....

1. As to the threats, the defence argues that the relevance of this tendency and the probative value is questionable in circumstances whereby it is clear that if the accused said or threatened violence, he did not carry out his threats. It is contended that if anything, the accused's behaviour suggests that the accused was unlikely to carry out his threats and that he had a tendency to make empty threats. Furthermore it is argued that whilst some were threats to shoot, many of the threats were threats to harm in other ways, such as bash with a baseball bat, which circumstances are quite different from the crime alleged and are therefore of limited probative value.
2. The prosecution rejects the argument that the incorporation of the two separate acts of threatening, and using, unlawful violence renders the tendency stated in Tendency 3 defective. It is submitted that the two prongs of this tendency are sufficiently linked and that the tendency is worded specifically to encompass both threats (that did not involve the later use of violence) and incidents where unlawful violence was used following a threat. The prosecution referred to R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492, and Dao v R [2011] NSWCCA 63; NSWCCA 63; [2011] NSWCCA 63; 81 NSWLR 568 (Dao) which authorities stress that tendency evidence focuses on an individual's state of mind, and the way in which that state of mind makes it more likely that the individual committed an offence, rather than the exact actions manifested by that state of mind on previous occasions. In Cittadini Simpson J (with whom McLellan CJ at CL agreed) said at [20-23]:

20 The key is to identify the purpose for which tendency evidence is tendered and admitted.

21 I adhere to the views I have previously expressed, in Gardiner v R [2006] NSWCCA 190, at [124]:

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.

22 Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.

23 Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).

1. Likewise in Dao, Simpson J (with whom Spigelman CJ, Allsop P, Kirby and Schmidt agreed) said at [180]:

I respectfully take issue with the statement by Howie J in R v Harker [2004] NSWCCA 427 at [57]:

"... tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion." (bold added)

My difficulty with that formulation lies in the words "in the same way". Evidence of a tendency may cast light on the conduct or state of mind of a person without being evidence of conduct of the same kind: .......Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and, if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case, subject to s 101) it is admissible.

1. In addition it is clear, as the prosecution submits, that in Hughes the High Court considered that different manifestations of a state of mind cannot deprive tendency evidence of its probative value. In this regard the prosecution relies upon Hughes at [63] where the majority stated that "[t]he fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value."
2. However, notwithstanding that Hughes makes clear that a valid tendency, in that case, a sexual interest in teenage girls, may be established by conduct of various types, in my view the tendency pleaded under Tendency 3 is inherently problematic. The generality of the combination of two non-specific types of conduct, being first to make threats of unlawful violence and secondly, or alternatively, to use unlawful violence, is such that no particular way of behaving is identified with any specificity. Clearly, the greater the degree of generality of the pleaded tendency, the more difficult it will be to demonstrate that the evidence relied upon has significant probative value. On the other hand, the greater the specificity with which the tendency is stated, the more likely it is that the evidence will be probative of a tendency to act in a particular way or to do acts of a particular kind. As observed by Campbell JA, with whom Hodgson and Santow JJA agreed, in Ibrahim v Pham [2007] NSWCA 215 at [264] in relation to the case then under consideration: The "tendencies" that were alleged, as identified in each of the tendency notices, were of a very general kind. Even assuming, without deciding, that they counted as "tendencies" for the purposes of section 97, their generality provides a handicap to their having "significant probative value".
3. Whilst it is true that in Vojnevski the Court of Appeal of the Australian Capital Territory approved of the term 'to threaten or inflict harm', it did so in the specific context of the use of knives by the appellant. In that case, at [34-7] the Court said:

34. In the amended tendency notice, the prosecution listed "particulars of the tendency of which evidence is to be adduced" including:

(a) A tendency to become quickly aroused to anger and to act violently when angered.

(b) A tendency to threaten people with knives.

(c) A tendency when angry, to use knives to inflict harm on people or damage objects.

(d) A tendency to act violently when under the influence of alcohol and or marijuana.

(e) ....

Although the amended tendency notice referred to "particulars of the tendency" (suggesting only one tendency), each "particular" referred to a separate tendency.

35. At the admission stage, the matter was approached by asking whether a particular tendency incident evidenced one or more separate tendencies. However, in reality, the prosecution case of the trial relied upon the combination of tendencies (a) - (d) to establish one behavioural tendency that conformed to the way in which the perpetrator behaved at the time of the murder.

36. Of themselves, tendency (a) (the tendency "to become quickly aroused to anger and to act violently when angered") and tendency (d) (the tendency "to act violently when under the influence of alcohol and/or marijuana") are not distinctive or "particular" ways of behaving. On the other hand, a tendency to become quickly aroused to anger (or, as the trial judge put it, "to become irrationally or disproportionately angry"), and then to use knives to threaten or inflict harm on people or objects is such a tendency.

37. Had the prosecution relied on one relatively distinctive tendency (to become irrationally or disproportionately angry and then to use knives to threaten or inflict harm on people or objects) rather than four tendencies (two of which were not at all distinctive), this would have brought considerable focus to the determination of the admissibility of the tendency incidents and the framing of jury directions.

1. Accordingly, although two separate forms of conduct, that of making threats or inflicting harm, were approved by the Court, that approval was in the specific context of the use of knives to do so. Obviously, such behaviour as that is distinctive and particular. However, the pleaded tendency under Tendency 3 of 'making threats of, or use unlawful violence against persons' is such a broad statement that in my view it is defective. There is no specificity in relation to the nature of the alleged threats, nor is there any specificity in relation to the nature of the use of unlawful violence, so as to say that the conduct in question is distinctive or particular. Rather, the tendency pleaded bears considerable similarity to the tendency of 'to become quickly aroused to anger and to act violently when angered' which the Court of Appeal in Vojnevski rejected as an inadequately stated tendency. The width of Tendency 3 is all the more demonstrated in this case where the conduct of the accused relied upon has taken place in a range of vastly different circumstances and relationships including in professional contexts, against his parents and ex partners.
2. Finally it should be observed that the section 97 notice does not explicitly identify the facts in issue upon which the pleaded tendency is said to bear.

Tendency 4 - To threaten to shoot and kill people whom he perceived to refuse to accede to his will or demands.

1. As stated above the prosecution relies upon 16 separate incidents in respect of Tendency 4.
2. The defence submits that Tendency 4 has the same defect as Tendency 3 in that two different kinds of conduct, being in this case threats to shoot and threats to kill, are contained in the notice. It is submitted that the inclusion of two separate types of conduct has the effect of making the allegation one of a general kind thus reducing the power of any inferential reasoning that stems from the tendency. The defence argues that Tendency 4 incidents have little probative value in showing that it was the accused who killed Mr Winchester, as the accused's threats to shoot or kill others have always proved to be empty in the past.
3. It can be seen that there is a distinction between the tendency pleaded under Tendency 3 and the tendency now under consideration. First, the threat alleged under Tendency 4 is precise, that is, a threat to shoot or to kill in the circumstances specified in the notice. Whereas Tendency 3 was pleaded in the broad and in the double-barrelled, or alternative, context of threats of, or use of, unlawful violence, this tendency is pleaded with more specificity.
4. In Vojneski v The Queen [2016] ACTCA 57 the Court of Appeal, Murrell CJ, Refshauge and Wigney JJ, gave consideration to a s 97 tendency notice which listed five purported tendencies. Four of those tendencies were relied upon at trial by the prosecution, but as the Court of Appeal said at [35]:

.... in reality, the prosecution case at the trial relied upon the combination of tendencies (a)(d) to establish one behavioural tendency that conformed to the way in which the perpetrator behaved at the time of the murder.

Had the prosecution relied on one relatively distinctive tendency (to become irrationally or disproportionately angry and then to use knives to threaten or inflict harm on people or objects) rather than four tendencies (two of which were not at all distinctive), this would have brought considerable focus to the determination of the admissibility of the tendency incidents and the framing of jury directions.

1. In my view, the tendency pleaded under Tendency 4 is much more explicit in its terms than that pleaded under Tendency 3 and is similar in its terms to the tendency referred to with approval by the Court in Vojneski at [37] referred to above.
2. It is to be observed that the prosecution intends to call evidence that the accused made direct threats against Mr Winchester to his general practitioner, Dr Roantree, and to a solicitor, Mr Barbara. The prosecution submits that if the jury accept that the accused had this tendency, it would make it more likely that he did in fact make threats against Mr. Winchester to Mr. Barbara and to Dr. Roantree. If he made those threats shortly before the murder, it is submitted that that may affect the assessment of the probability that he committed the murder.
3. It is argued further that the tendency evidence of the earlier threats helps to prove that the threats made to Dr. Roantree and to Mr. Barbara were genuine, not flippant and were serious and that they were in a category similar to the statement made by Ms. Vick. Ms Vick gave evidence at the first trial of a threat made by the accused early in 1988 that perhaps he would have to kill somebody to get the necessary publicity so that people could see the injustice that had been done to him. It is contended that Tendency 4 helps prove that the reason for the threat was the state of mind of the accused and that the jury should not be forced to consider the Roantree and Barbara evidence in a vacuum.
4. In my view, Tendency 4 as pleaded is not defective and is capable of being relied upon by the prosecution in the way it proposes and is capable of being significantly probative. The intermediate fact in issue here is that the accused made direct threats to shoot or kill Mr Winchester. Evidence that the accused had a tendency to so threaten those whom he perceived to refuse to accede to his will is relevant to that issue. Thus it is relevant to the ultimate fact in issue in this trial and in my view is capable of being significantly probative. The evidence is to be tendered for the purpose of contributing to proof that those threats were made.
5. That of course is not to say that each incident relied upon by the prosecution in its tendency notice is admissible or is significantly probative, but as I understand the way in which the parties wish me to deal with this issue, those matters can be the subject of further argument before me.

Tendency 5 - Taking steps to obtain possession of a firearm.

1. As stated in relation to the other tendencies sought to be relied upon by the prosecution, the s 97 notice does not identify explicitly the fact or facts in issue upon which the prosecution asserts the evidence bears. However, in written submissions the prosecution submits that, assuming that the jury accepts the evidence that the accused took steps to obtain possession of a firearm, then that evidence is capable of having 'the effect that the accused murdered Mr Winchester by shooting him'. In this regard it is submitted that the correct focus of the test of significant probative value is that the evidence be taken at its highest. The prosecution relies upon DSJ v R [2012] NSWCCR 9; NSWCCA 9; [2012] NSWCCA 9; 84 NSWLR 758 where at [72] Whealy JA (Bathurst CJ, Allsop P, McClellan CJ and McCallum J agreeing) stated that the trial judge is required to 'take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue'. Whilst I accept that it is sufficient for evidence of tendency to demonstrate a pattern of behaviour or modus operandi, the evidence nevertheless must have the capacity to be of importance in establishing the fact in issue, in this case the ultimate fact in issue as to whether or not the tendency reflects a state of mind relevant to the murder of Mr Winchester. In this regard it is relevant to observe that much of the evidence pre-dates any contact with or anger towards Mr Winchester and therefore the connection with any state of mind relevant to his murder is tenuous indeed.
2. In my view the evidence that is sought to be introduced in support of Tendency 5 does not have the capacity, even taken at its highest, to lead to the conclusion that because over a period of time the accused may have taken steps to obtain a firearm, that leads to the conclusion that the accused murdered Mr Winchester. No doubt some of that evidence will be admissible upon the trial, at least for the purposes of demonstrating that the accused had an interest in firearms and endeavoured to obtain access to firearms. That evidence may well be relevant to issues of opportunity and perhaps motive. Some, or all of the evidence which is sought to be relied upon in support of Tendency 5 may be relevant to the coincidence notice. However in my view the tendency as pleaded is not a valid tendency as it has no significant probative value in connecting the evidence sought to be relied upon with the ultimate fact in issue in the case before me.

1. As stated above, it was agreed between the parties in relation to the tendency notice served by the prosecution pursuant to s 97 that I would first determine the two issues referred to in paragraph [11] above.
2. Having now determined those issues it is likely that other issues related to my determination will arise and obviously I will give counsel an opportunity to make submissions in respect of those issues. Clearly one issue that still requires determination is the outstanding question of the coincidence notice. I have been provided with written submissions in relation to this matter and to some degree there were oral submissions in relation to it at the time of the argument about the tendency notice. I will need to hear from counsel as to whether they seek to make further submissions in relation to this matter. Furthermore, I expect that there may be contention as to whether or not evidence at present relied upon by the prosecution in support of Tendency 4 is substantially probative or is otherwise inadmissible.
3. Accordingly, the rulings that I make in relation to the matters presently before me are as follows:
   • (a) The application of the defence for orders that the prosecution should not now be permitted to rely upon evidence of tendency and coincidence when it could have done so at Mr Eastman's first trial but chose not to do so, is dismissed.
   • (b) The tendency relied upon as Tendency 1, namely, that the accused had a tendency to have a particular state of mind to hold ill will towards persons whom he perceived to be refusing to accede to his will or demands is defective.
   • (c) The tendency relied upon as Tendency 2, that the accused had a tendency to have a particular state of mind, namely, to have a desire to obtain possession of a firearm is defective.
   • (d) The tendency relied upon as Tendency 3, that the accused had a tendency to act in a particular way, namely, to make threats of, or use, unlawful violence against persons whom he perceived to refuse to accede to his will or demands is defective.
   • (e) The tendency relied upon as Tendency 4 is admissible.
   • (f) The tendency relied upon as Tendency 5, that the accused had a tendency to act in a particular way, namely, to take steps to obtain possession of a firearm is defective.
   • (g) That liberty to apply is granted to the parties for the purposes of having the matter listed for submissions to be made in relation to matters arising in consequence of these orders.
   • (h) That until further or other order, publication (other than to the parties and their legal advisers) of these orders and the reasons therefor is prohibited.

I certify that the ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam.

[1] Indeed for the purposes of the matter before him, he assumed that the evidence in question would be admissible.