R v Martin

The Amended Tendency Notice

1. The accused's Amended Tendency Notice dated 8 July 2024 identifies the relevant tendencies of the deceased in the following terms: 1. The deceased's tendency to act in an aggressive or violent manner towards someone with whom he was in a relationship, in particular Ms Maxie Wilson; 2. The deceased's tendency to behave in a possessive or controlling manner towards Ms Maxie Wilson; and 3. The deceased's tendency to act in a particular way, namely, to behave violently in response to feelings of jealousy about Ms Maxie Wilson, or in order to control Ms Maxie Wilson.
2. The accused anticipates that the majority of the evidence required to establish the alleged tendencies will be adduced orally from Ms Wilson, who is to be called in the Crown case. Otherwise, it is anticipated the evidence from Ms Wilson will be supplemented by medical and other records and evidence.
3. The Amended Tendency Notice also identified the "facts in issue" upon which the alleged tendencies bore in the following terms (for consistency, the numbering of the facts adopts those used in the accused's written submissions): 1. Whether the deceased attended the home of the accused for the purpose of locating Ms Wilson. 2. Whether the deceased intended to attempt to force or convince Ms Wilson to return home with him. 3. Whether when at the time the deceased arrived at the home of the accused, he was motivated by jealousy and/or a belief that he had an entitlement to a relationship with Ms Wilson. 4. Whether at that time he was jealous of the accused's relationship with Ms Wilson. 5. Whether the deceased was angry that Ms Wilson was in a relationship with the accused, and/or at the home of the accused. 6. Whether the deceased was prepared to act violently towards the accused and/or Ms Wilson in order to prevent Ms Wilson remaining with the accused. 7. Whether the deceased threatened Ms Wilson or the accused. 8. Whether the deceased behaved in a way that would cause the accused to fear for his and/or Ms Wilson's safety.
4. In relation to the facts in issue, the following matters should be noted.
5. First, the Crown accepted that the above accurately represents each of the facts in issue in the trial - albeit that, in connection with the fact in par (f), the Crown disputes that the evidence is capable of establishing that the deceased had a tendency to act violently towards the accused to prevent Ms Wilson from being with him. It is unnecessary, in the context of the present application, to deal with that contention, particularly as the evidence on the application is confined, but I return to it briefly, below, in the context of the third tendency.
6. Secondly, the first five facts in issue (facts (a)-(e)) relate to the first and second tendencies sought to be proved. The sixth fact in issue (fact (f)) - the one that the Crown, in its written submissions contested, as noted in [16], above - relates to, or arises out of, the third tendency sought to be proved.
7. Thirdly, the sixth and seventh facts in issue (facts (g)-(h)) are substantive, possibly the most substantive, issues in the trial.

Admission of tendency evidence: s 97 of the Evidence Act

1. The admission of tendency evidence is governed by s 97 of the Evidence Act, which provides as follows: 97 The tendency rule (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. (2) Subsection (1) (a) does not apply if - (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
2. Section 97(2) is not relevant and may be put to one side. So too, given the application is by the accused and not the Crown, can s 101 of the Evidence Act - a section that, relevantly, is engaged when tendency evidence is sought to be adduced by the prosecution against the defendant.

Consideration and disposition

1. By its terms, the admissibility of tendency evidence requires satisfaction of two matters - the giving of notice (s 97(1)(a)) and that the evidence has "significant probative value" (s 97(1)(b)).
2. The Crown has accepted, and I find, that the accused has given reasonable notice in writing of his intention to adduce the evidence: s 97(1)(a) is thus satisfied.
3. The term "probative value" is defined in the Dictionary as follows: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
4. In relation to the requirement that the evidence have on its own, or in conjunction with other evidence, "significant probative value", the Crown accepts that the evidence bears that character. It is as well to explain why, separately from what the Crown accepted, I consider that to be so. Before doing so, brief reference will be made to the legal principles that inform whether the evidence should be so characterised.
5. The test posed by s 97(1)(b) requires "consideration of two interrelated but separate matters" - namely, the extent to which the evidence supports the asserted tendency and the extent to which the tendency is probative of the charged offences or the fact or facts sought to be proved by the evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] ('Hughes'); TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28]. The fact that the matters are "interrelated means that they are not necessarily to be addressed by a two-stage enquiry": Geraghty v R [2023] NSWCCA 47 at [45]. The position with respect to substantive probative value within s 97(1)(b) was summarised in Hughes at [41] in this way: 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.
6. Three further matters should be noted. The first is that an assessment of significant probative value may vary depending upon the standard of proof: Hughes at [16]. That is potentially significant in the forensic context of how this evidence (and the alleged tendencies) are argued to be material - namely, whether the accused was acting in self-defence. That is because, given the Crown bears the onus of proving beyond reasonable doubt that the accused was not acting in self-defence, evidence that is capable of establishing that he was acting in self-defence as a reasonable possibility may be of substantial importance and, as a corollary, of significant probative value. The second is that, when determining the probative value of the evidence sought to be adduced, it is accepted that the section requires the Court to take the proposed evidence at its highest - that is, to assume that the jury will accept the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52]; R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69]. The third relates to timing: the date of the enquiry into whether the deceased had the relevant tendencies is the date of the altercation leading to his death: McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [26]; Taylor v R [2020] NSWCCA 355 at [136] and [144].
7. Accompanying the tendency notice was a folder of the evidence that the accused seeks to adduce. Generally, that material may be described as evidencing that during the course of their relationship the deceased would prevent Ms Wilson from leaving their home, that he acted in a jealous and possessive manner towards Ms Wilson and on occasions assaulted her, including forcing her to drink bleach. In order to assess the extent to which the evidence supports the asserted tendencies and that the tendencies are probative of the facts sought to be proved by the evidence, it is necessary to say something more about the evidence relied upon by the accused. It is convenient to do this by reference to the "index number" that grouped the documents.

Index number 1 documents

1. The material under index number 1 is from a NSW Police brief of evidence arising from a domestic violence episode that occurred on 6 November 2021. This involved the deceased acting threateningly and violently toward Ms Wilson. It was also the occasion he forced her to drink a quantity of bleach. The material also includes some medical evidence that is corroborative of the allegation that the deceased forced Ms Wilson to drink bleach; as well as evidence that establishes that a provisional apprehended domestic violence order was made following these events and subsequently breached by the deceased; and includes an account by the deceased, whilst Ms Wilson was being isolated following a positive COVID-19 diagnosis, where he expressed concerns about whether Ms Wilson would be around other males.

Index number 2 documents

1. This material consists of a statement from Adam Fletcher dated 4 February 2022. Mr Fletcher, it will be recalled, resided in a unit in the complex.
2. The particular paragraphs of this statement relied upon (pars 5, 8 and 13-16) address his perception of the deceased's character (he is recorded to have known him for around 12 years) and that he knew him to be a "drug user" (par 5); that Ms Wilson attended his premises "a number of months ago… in despair with a number of injuries" after she had been assaulted by the deceased and that Ms Wilson told him that the deceased "bashed her all the time" (par 8); that on 3 February 2022 the deceased had attended his unit and stated, amongst other matters, the things referred to in [7], above and, shortly after the deceased left his house, he heard an argument between the deceased, Ms Wilson and "Rhys", which continued on for some considerable period of time and involved "a lot of aggression" and abuse directed towards both of them from the deceased, including abuse directed towards Ms Wilson to the effect that she was "unloyal and disrespectful" (pars 13-16).

Index number 3 documents

1. This material consists of a statement from John Ehiobuche dated 10 February 2022. Mr Ehiobuche was an acquaintance of the deceased.
2. The particular paragraphs of this statement relied upon (pars 13 and 17) concern a conversation that was had between Mr Ehiobuche and the deceased on 3 February 2022 about Ms Wilson. The deceased is reported to have said that he was "not happy" that Ms Wilson was seen with "another guy", and he stated in effect that he and Ms Wilson "were getting back together" and that they were "going to get engaged" (par 13), and he later sent Mr Ehiobuche a text message set out in [8], above.

Index number 4 documents

1. This material consists of a statement from Reece Neeson dated 4 February 2022. Mr Neeson, it will be recalled, resided at the complex and the deceased and Ms Wilson resided with him for a period during 2021.
2. The particular paragraph of this statement relied upon (par 7) records that the deceased attended Mr Neeson's unit in the afternoon of 3 February 2022; that he was looking for Ms Wilson; that he had "bought her an engagement ring"; and that the deceased said he was going to Adam Fletcher's unit "to get a cigarette".

Index number 5 documents

1. This material consists of a statement from Norman Kelly dated 22 March 2022. Mr Kelly also resided at the complex.
2. The particular paragraph of this statement relied upon (par 5) records that the deceased attended Mr Kelly's unit in the afternoon of 3 February 2022 and was said by Mr Kelly to be "drunk", "carrying on and crying" and asking about where Ms Wilson was. The paragraph also records that, later, Ms Wilson came to his unit "asking for me to call 000".

Index number 6 documents

1. This material consists of a considerable number of text messages between the deceased and Ms Wilson in the period 5 January to 25 January 2022.
2. The critical messages, as described on pp 6-7 of the amended tendency notice, relate to the deceased's expression of love for Ms Wilson and a desire to be engaged to, and be with, her; an image of a diamond ring; and messages from Ms Wilson that included her stating: "we don't have a future together anymore", "I don't feel safe there it's quite simple", and "Leave me alone" (this last message being sent by Ms Wilson to the deceased on 25 January 2022).

Index number 7 documents

1. The material consists of a statement from Ms Wilson dated 28 March 2022.
2. The particular paragraphs of this statement relied upon (pars 10-12, 15, 29, 32 and 38) record that the deceased and Ms Wilson were both drug users and following Ms Wilson and the deceased entering into an intimate relationship in 2015, she came to realise that the deceased was "obsessive" and "controlling"; from 2017, the deceased had been violent towards her and they would have "domestics" (pars 10-12); that there was a domestic violence incident in November 2021 (par 15); that the accused knew the deceased was Ms Wilson's former partner, and that she had told the accused that the relationship "had been pretty hectic, that [the deceased] was abusive and that, but I didn't really go into details" (par 29); that on 3 February 2022 she saw the deceased "walking into" Adam Fletcher's unit, and that she was "shocked because [she] didn't expect to see him", that she felt anxious "and it was daunting because of [their] history and what [the deceased] was like" (par 32); and that later that evening, she saw the deceased come towards the accused's front door and say words to the effect: "what's my girlfriend doing in your house?", in a voice that Ms Wilson described as sounding "slurry like he had been drinking" (par 38).

Index number 8 documents

1. This material consists of a report from Leah Vircoe dated 5 January 2024. Ms Vircoe was a psychologist retained to provide a report for Ms Wilson's sentencing proceedings on 19 January 2024.
2. The particular paragraphs relied upon from this report (pars 22, 24, 48 and 55) record details of Ms Wilson's relationship with the deceased that included her describing the deceased as being "jealous and controlling", and that the relationship was marred by significant domestic violence perpetrated by the deceased, including details of the incident that occurred on 6 November 2021 (par 22); that she had been hospitalised on two occasions following being physically abused by the deceased (par 24); that during the course of the relationship with the deceased, Ms Wilson experienced symptoms of anxiety and depression but that these conditions "reduced in both severity and frequency following the conclusion of this relationship in late 2021" (par 48); and that Ms Wilson's "fear of abandonment" was thought to have contributed to her struggle to leave the relationship "despite her alleged experience of significant and sustained abuse" (par 55).

Index number 9 documents

1. This material consists of the transcript of Ms Wilson's sentence hearing on 19 January 2024.
2. There were two passages from the evidence relied upon: the first was the evidence that concerned the domestic violence episode on 6 November 2021 (p 5, lines 6-32); the second was the evidence that at the time the deceased presented to the front door of the accused's unit on 3 February 2022, Ms Wilson is alleged to have said: "You shut the fuck up, stop it, you're full of lies, go away, leave us alone, get rid of him". (p 11, lines 37-49).

Application of s 97(1)(b)

1. Having set out the tenor of the evidence sought to be relied upon, I now turn to consider the requirements of s 97(1)(b).
2. The accused's overarching submission, one accepted by the Crown, is that the tendency evidence sought to be adduced is relevant to the conduct and state of mind of the deceased at the time of, or immediately before, the confrontation with the accused and, further, the fact in issue is whether, at the relevant time, the deceased had a particular state of mind and acted in a way that might have given rise to a belief by the accused that his conduct was necessary to defend himself and/or Ms Wilson (accused's submissions at [18] and [24]; Crown submissions at [13]).
3. Two further matters should be addressed in connection with each of the tendencies, and before dealing with them. The first is that the accused submits (and the Crown did not contest) that whether or not the accused was aware of the deceased's tendency to have a particular state of mind or act violently is not determinative, nor particularly significant, in considering the admissibility of this evidence as tendency evidence. I accept that submission. If the accused was aware of the deceased's behaviour towards Ms Wilson (the accused's submissions made reference to an alleged exchange in the moments leading up to critical events: the accused's submissions at [19]), then this evidence may be relevant and admissible for a non-tendency purpose. The second is that the accused notes that much of the evidence relied upon to establish the relevant tendencies arises from the context of the deceased's relationship with Ms Wilson. The submission made (which was not contested by the Crown, and is a submission which I accept) was that it does not mean that the deceased's state of mind at those times during the relationship are not relevant or indicative of his state of mind on the night of 3 February 2022. Nor does the fact that most of the deceased's previous violent conduct was directed at Ms Wilson mean that the evidence is not capable of bearing on the question as to whether the deceased was violent towards the accused during the confrontation which resulted in his death. The evidence of what the deceased is alleged to have said to Mr Fletcher on 3 February 2022 about "Rhys" provides some support for this submission.

The deceased's tendency to act in an aggressive or violent manner towards someone with whom he was in a relationship, in particular Ms Maxie Wilson

1. In my view, having reviewed the evidence, there are, as I have set out, consistent versions and evidence supporting that the deceased had the tendency alleged. That is, in effect, a reasonably consistent theme of the versions that Ms Wilson has given, or reported, and the incident on 6 November 2021 - some three months before the relevant events - I consider illustrates as much. As the Crown submitted, the evidence can properly be understood as comprising multiple incidents of violence by the deceased towards, and conduct seeking to exert control over, Ms Maxie Wilson during the course of their relationship which had recently ended.
2. I am, therefore, satisfied that the evidence proposed to be adduced, in combination, strongly supports proof of the tendency.
3. The next issue is the extent to which the tendency is probative of the fact or facts sought to be proved by the evidence. The accused submitted that this tendency was relevant to the deceased's state of mind at the time he appeared at the front door of the accused's home on 3 February 2022 and whether he was prepared to use violence directed towards Ms Wilson so as to force her to leave with him (accused's submissions at [16]). The Crown accepted as much, submitting that the tendency had "the capacity to rationally affect the probability of the nature of the confrontation between the accused and the deceased" (Crown submissions at [7]). I accept these submissions, and accept that the tendency strongly supports proof of a fact or facts that could significantly inform the nature of the altercation between the accused and the deceased.
4. It follows from this conclusion that the accused can adduce evidence of the conduct of the deceased referred to in the items in the tendency notice referable to the tendency of the deceased to act in an aggressive or violent manner towards someone with whom he was in a relationship, in particular Ms Maxie Wilson. Necessarily any evidence sought to be adduced must be in admissible or agreed form.

The deceased's tendency to behave in a possessive or controlling manner towards Ms Maxie Wilson

1. In my view, the remarks that I have made in connection with the first tendency alleged apply equally here - the tendencies are closely related, and the evidence in relation to the second tendency overlaps with the first tendency. I am, therefore, satisfied that the evidence proposed to be adduced, in combination, strongly supports proof of the tendency.
2. The next issue is the extent to which the tendency is probative of the fact or facts sought to be proved by the evidence. Again, as with the first tendency (see [50], above), and for essentially the same reasons, I consider the second tendency to be probative of the fact or facts sought to be proved by the evidence as identified in the submissions of the parties earlier referred to - put simply, the deceased's state of mind at the time he appeared at the front door of the accused's home on 3 February 2022, and whether he was prepared to use violence directed towards Ms Wilson so as to force her to leave with him.
3. It follows from this conclusion that the accused can adduce evidence of the conduct of the deceased referred to in the items in the tendency notice referable to the tendency of the deceased to behave in a possessive or controlling manner towards Ms Maxie Wilson. Necessarily any evidence sought to be adduced must be in admissible or agreed form.

The deceased's tendency to behave violently in response to feelings of jealousy about Ms Maxie Wilson, or in order to control Ms Maxie Wilson

1. In my view, given it is closely related to the first and second tendencies, the reasons that I have given in connection with those tendencies for why the evidence will have significant probative value apply equally to the third tendency.
2. This tendency, unlike the first two, is not exclusively directed towards Ms Wilson. As I have earlier noted, the Crown submitted that there was no evidence to support that the deceased had a tendency to act violently toward the accused to prevent Ms Wilson from being with him and the evidence relied upon in the tendency notice did not suggest as much, nor did it suggest that the deceased had a tendency to act violently toward any person who may be in a domestic relationship with Ms Wilson. The accused nevertheless submitted that the fact that the deceased's previous violent conduct was directed toward Ms Wilson did not mean that the evidence and tendency was incapable of bearing on the question as to whether the deceased was violent toward the accused during the confrontation which resulted in his death. Notwithstanding this difference (or potential difference) in the expression of the tendency alleged, I remain of the view that the evidence proposed to be adduced to support it (in conjunction with other evidence, notably that which occurred on the day of the altercation and in the moments surrounding it) has significant probative value in connection with the issue of whether deceased acted in a particular way, and the accused's response if he did.
3. It follows from this conclusion that the accused can adduce evidence of the conduct of the deceased referred to in the items in the tendency notice referable to the tendency of the deceased to behave violently in response to feelings of jealousy about Ms Maxie Wilson or in order to control Ms Maxie Wilson.

Orders

1. For the above reasons, but subject to hearing from the parties about the precise form of the ruling, I make the following ruling: 1. The accused may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased to act in an aggressive or violent manner towards someone with whom he was in a relationship, in particular Ms Maxie Wilson as described variously in items 1-9 of the amended tendency notice dated 8 July 2024. 2. The accused may adduce evidence of the conduct of the deceased referable to the alleged tendency of the deceased to behave in a possessive or controlling manner towards Ms Maxie Wilson as described variously in items 1-9 of the amended tendency notice dated 8 July 2024. 3. The accused may adduce evidence of conduct of the deceased referable to the alleged tendency of the deceased to act in a particular way, namely, to behave violently in response to feelings of jealousy about Ms Maxie Wilson, or in order to control Ms Maxie Wilson as described variously in items 1-9 of the amended tendency notice dated 8 July 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024