Specificity of the asserted tendency and significant probative value
- The accused contended the assertion of a tendence that have a sexual interest in "females, including strangers, in their late teenage years to early twenties" is "in very broad compass" and that the description of the tendency overall is at a "very high level of generality". [20] The Crown's decision to confine the evidence to LS, Ms Bright, and QD dampens that criticism somewhat.
- Whether the "females" were known, or not known, to the accused seems unimportant. On the Crown case, the accused happened across LS and Ms Bright by chance and whether he knew either or both of them was of no significance (except perhaps in explaining why he killed Ms Bright, because she might recognise him). The qualification, "including strangers", perhaps is simply to emphasise that it does not matter for proof of the tendency whether the victim was known or not.
- The accused asserted a lack of precision in the terms "sexual violence" and "opportunistically" in the second part of the description of the tendency alleged. Considered in the context of what is alleged in respect of each of LS, Ms Bright and QD, the concept of "sexual violence" appears clear enough and the Crown described "opportunistically" thus: [21]
[I]n the sense that it involved a practice or policy of exploiting circumstances or opportunities to gain immediate advantage, rather than following a predetermined plan.
- The Crown submitted, and I accept, that there is evidence in the accused's admissions supporting the proposition that the murder of Ms Bright had a sexual component, namely that he moved her bra in order to "play with her the tits" because "she had a nice set" and that wanted to "root her" (but claimed he did not). [22] The admission that he killed her because "what happens if she woke up while I was, if I was fuckin' her … If she woke up and spotted who it was" is also relevant. [23] As previously indicated, the accused's suggestion that such admissions should be ignored because of circular reasoning is rejected.
- The accused submitted that there was no connection between a tendency of a person to commit a sexual assault and a tendency of a person to commit murder. [24] That may by so, but there is no requirement for the description of a tendency to conform with the description of the offence: Kanbut v R [2022] NSWCCA 259 at [64] (Beech-Jones CJ at CL). In proving the murder of Ms Bright the Crown is proposing to rely upon a piece of circumstantial evidence, namely that the accused had the tendencies identified in the Tendency Notice. The question is whether the evidence has significant probative value in that context (and vice versa).
- The accused accepted there were some similarities between the attacks upon LS and Ms Bright, namely their age and the near geographical proximity. However, he contended that detracting from this was the separation of the two events by a period of about 14 months and the lack of forensic evidence to support a theory that the attack upon LS was similar to any attack upon Ms Bright and the presence of evidence suggesting the contrary. Accordingly, there was no significant probative value in support of tendency required for cross-admissibility between Counts 1 and 2. [25]
- In relation to QD, the accused submitted there were also a number of differences that did not "sit neatly within the scope of the tendency contended for". Her age was similar but there was a significant gap in time with no suggestion of offending in the intervening period; she was well-known to the accused; and the location was very different (suburban Sydney). The circumstances of the first two incidents were of a substantially lower order of comparative seriousness and while the final incident was more serious, the conduct was said to be "distinct" from that which occurred in relation to LS and Ms Bright. For these reasons the accused contended there was no significant probative value arising from the incidents concerning QD. [26]
- I am satisfied that there is significant probative value in relation to the attacks upon LS and Ms Bright. They are each capable of establishing the tendencies described by the Crown in the Tendency Notice. It is a tendency that has sufficient specificity in that the interest and the conduct described is not common in ordinary human experience. The victims described make up a very discrete portion of the population and the term "sexual violence" is to be understood by the facts alleged which have quite distinctive features.
- I am significantly influenced by the similarities in the conduct of the perpetrator of the two attacks. They include in the case of LS a threat, "I'll kill you", and (obviously) in Ms Bright's case her murder. That they were both of a similar age, on the cusp of adulthood; were vulnerable by being alone in a relative dark place; and their resistance was suppressed by compression of the neck/throat are also very significant.
- The evidence strongly supports the existence of the tendencies alleged which in turn are potentially important and of consequence in establishing that the accused was the perpetrator of each of the two attacks.
- I am not so satisfied in respect of the attacks upon QD. The circumstances of these attacks do not need to be similar to those upon LS and Ms Bright to have significant probative value but the differences do detract from such a conclusion. They comprised, as the accused contended, an escalating course of conduct in the confines of a house where he was a visitor. The feature of applying compression to the complainant's throat is quite distinctive. However there is no suggestion of the accused acting upon the asserted tendency of committing sexual violence opportunistically in the 8-9 years since the attacks upon LS and Ms Bright.