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[2025] NSWSC 1097
General information, not legal advice.
Supreme Court of NSW
2025-07-08
Garling J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Sultana (No.2) [2025] NSWSC 1097
Hearing dates: 08 July 2025
Date of orders: 08 July 2025
Decision date: 08 July 2025
Jurisdiction: Common Law
Before: Garling J
Decision: Objection to the admission of the tendency and coincidence evidence overruled
Catchwords: EVIDENCE – Tendency evidence – Coincidence evidence – Criminal proceedings – Notice – Significant probative value – Section 97 of the Evidence Act 1995 (NSW) – Tendency rule – Coincidence rule – Where the accused demonstrates a tendency to use or threaten violence towards women in whom he has a sexual interest when he perceives that his relationship with them is breaking down – Whether the passage of time between the events the subject of the tendency and the offence on trial rendered the evidence too old – Whether the conduct of the accused in the events the subject of the tendency were sufficiently similar to the offence on trial – Whether the tendency goes to the substantial issue in proceedings – Whether the evidence could rationally affect the probability of a fact in issue – Coincidence evidence inherently linked to tendency evidence – Evidence admitted
Legislation Cited: Crimes Act 1900 (NSW) s 86(1)(b)
Evidence Act 1995 (NSW) ss 97(1), 101(2)
Cases Cited: T L v The King [2022] HCA 35; (2022) 275 CLR 83
Texts Cited: Not Applicable
Category: Procedural rulings
Parties: The Crown
Paul Jason Sultana (Accused)
Representation: Counsel:
Y Prowse (Crown)
Dr G Woods KC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Proctor & Associates (Accused)
File Number(s): 2023/17108
Publication restriction: Not Applicable
Jason Paul Sultana (“the accused”) has been arraigned before this Court on a single charge, namely, that on 16 January 2023 at Penrith, he murdered Dayna Isaac.
The accused has pleaded not guilty, and the proceedings are set for a trial to commence on Monday 14 July 2025.
As part of its case, the Crown has indicated that it proposes to tender evidence to establish a tendency on the part of the accused to act in a particular way and, further, that there are two or more events, the subject of proposed evidence, which amount to coincidence evidence, which tends to prove that the accused murdered Ms Isaac.
The accused opposes the admission of the tendency evidence and the coincidence evidence.
On 8 July 2025, having heard the submissions with respect to the tendency and coincidence evidence, I ruled that the Crown would be entitled to lead such evidence at the trial in admissible form. I indicated that I would give my reasons in due course. These are my reasons for that ruling.
Since the ruling was given before the trial commenced, it is necessary to rely upon the Crown Case Statement as setting out what the Crown anticipates its case against the accused will be.
The accused, at the relevant time, lived in Cranebrook. The deceased, Ms Isaac, lived in an apartment in Penrith with her two children, who were then aged 3½ years and 18 months, respectively.
The Crown case is that the accused and the deceased had been in an intimate relationship for approximately one month prior to her death.
The deceased was married to Mikkel Isaac (“Isaac”). The accused came to meet the deceased when he resided in a granny flat on a property in which the deceased and Isaac were living for approximately one month in 2018.
In March 2021, the deceased and Isaac were arrested in relation to a number of drug supply, firearm supply and criminal group offences. The deceased was granted conditional bail on 17 March 2021, but Isaac remained in custody until 23 January 2023, when he was released on bail.
It became apparent in December 2022, that the accused and the deceased had recently renewed their friendship. On Christmas Day 2022, the deceased and her two children attended her mother’s house to celebrate Christmas. The deceased’s father was present, as was the accused.
Shortly after Christmas Day, the deceased told her father, in answer to a query about her relationship with the accused, that the accused “wants more than what we have. … we’re just friends. I’ve made it really clear to him, we’re just friends”.
In the first half of January 2023, Isaac spoke with the deceased about the accused. The deceased told Isaac that she had slept with the accused. She told Isaac that “We are only friends, nothing more than that, he cares about me”.
During January, on a number of occasions, the deceased and the accused attended celebratory events and stayed overnight together. The overnight stays were sometimes at the deceased’s unit or, on one occasion, in hotel accommodation.
According to a conversation on 15 January 2023, the deceased told her mother that the accused did not have a key to her unit and that she did not want a relationship with him. The accused had started to move his belongings into her unit, but that did not accord with the deceased’s wishes.
On Monday 16 January 2023, the deceased attended a work trial at a potential employer’s premises in Penrith. She returned to her home, at the conclusion of the half day trial, just after 1.00pm.
At about 1.10pm, a neighbour in the adjoining apartment heard arguing come from within the deceased’s unit. The argument was between a male and a female. The neighbour heard, in addition to the argument which involved high-pitched or frantic screams, thuds from within the unit. She heard a male voice yelling “Shut up”, and a female voice saying “Don’t” followed immediately by “Stop”. There was no further sound from the female voice after that.
The neighbour heard the deceased’s apartment door opening. She heard the door close and the footsteps of a person walking away. She saw a male wearing a black baseball hat, sunglasses and a short-sleeved black t-shirt walking out of the apartment complex and towards the underground carpark door. He was seen to be carrying a green shopping bag in his left hand. It is the Crown case that the person observed by the deceased’s neighbour was the accused leaving the unit complex. Further, it is the Crown case that the accused departed from the unit complex in the deceased’s motor vehicle, which was a Toyota RAV4, at about 1.28pm.
At about 2.10pm, the accused telephoned his mother and said to her in a repetitive way “It’s bad. It’s bad”. He agreed to meet with his mother, and he drove her back to the apartment complex in the deceased’s motor vehicle. He continued to repeat the phrase “It’s bad. It’s bad”. His mother thought that the accused was acting “really erratic and manic”.
At about 2.27pm, the accused and his mother arrived at the apartment complex and parked the deceased’s car in the underground carpark. They both went inside the deceased’s unit.
The accused’s mother walked in the front door and saw blood in the entryway near the loungeroom on the floor. She saw marks on the wall which appeared to her “like someone had been pushed into the wall there”. She took a few more steps into the unit and saw the deceased in her bedroom, lying on her back, on the bed. She had blood on the right side of her face and her underwear was around her ankles. The accused’s mother left the unit immediately and was later collected by her father. The accused left the unit immediately after his mother left.
The deceased’s apartment was checked at about 2.32pm by her neighbour. She knocked on the door and listened for a response, or any movement at all. She walked around the apartment complex and noticed that the car space for the deceased’s unit was empty. Although she tried to see into the deceased’s unit, she was unsuccessful. At about 3.00pm, she contacted the police. The police attended at 3.34pm but did not enter the apartment. They left a “Victim Welfare Check” card under the door and rescheduled a further police attendance at 6.30pm.
The accused’s mother entered the foyer of the Penrith Police Station at about 4.00pm intending to report “a crime”. Following this visit at about 4.20pm, the police again attended the deceased’s unit, were able to gain access through a window, and discovered the deceased lying on her back, on her bed, in the bedroom. The deceased had significant injuries to her face. The cord from a lamp, which was lying on the bed, had been wrapped around the deceased’s neck. A white coloured cord was also wrapped around her neck.
While these events were occurring, shortly before 4.00pm, the accused was observed in the backyard of his residence, at Cranebrook, standing adjacent to a fire which was burning in the backyard. The observer noted the scent of the smoke as being akin to that of oily rags. As well, shortly before that, the police were notified of a vehicle fire approximately 100 metres deep into bushland in the area of Castlereagh. A vehicle was on fire, and had been attended by Rural Fire Service officers. A number of burnt objects, as well as multiple pieces of pink fabric, were observed scattered on the ground surrounding the burnt-out vehicle. It is the Crown case that the accused drove the deceased’s motor vehicle into that area and set it alight.
In the early hours of the morning of Tuesday 17 January 2023, the accused was arrested whilst asleep in the loungeroom of the Cranebrook property. After his arrest, the accused was interviewed and denied any knowledge of the death of the deceased, denied that he was responsible for her death and further denied his mother’s account of what occurred.
A post-mortem established that the direct cause of death was ligature strangulation in the context of blunt force head injury.
In the days following the arrest of the accused, the neighbour took part in a photograph lineup and identified the accused as the male she saw at the deceased’s residence on the day of her death. The accused’s DNA has been recovered from two blood swabs taken from within the deceased’s apartment. Four post-mortem swabs of the left and right hand, and wrists, of the deceased, have revealed DNA in respect of which the accused’s DNA cannot be excluded as a contributor. The same result has been obtained with respect to a post-mortem swab of a left fingernail clipping of the deceased.
The Crown’s case is a circumstantial one.
It relies upon admissions by the accused, to his mother, on the day of the offence, and his taking her to the deceased’s apartment. It relies upon admissions by the accused of engaging in conduct which the Crown will submit to the jury points to a consciousness of guilt, namely:
sometime after 1.30pm and before 6.30pm, on the day of the offence, the accused changed his appearance by shaving his head and beard;
between 2.27pm and 3.49pm, the accused drove the deceased’s motor vehicle into the bushland at Castlereagh and set it alight, and then left the location;
between 2.27pm and 3.55pm at his residence at Cranebrook, the accused set several items alight in a metal bin in the backyard of the premises.
The Crown will also argue that the accused had a motive to harm the deceased, because she had rejected his attempts to continue to deepen their nascent intimate relationship.
The accused does not dispute that the deceased was murdered. He puts in issue the fact that he was the person responsible for the death of the deceased. The accused, it is anticipated, will submit to the jury that the Crown cannot prove beyond reasonable doubt that he is guilty of the offence.
At the time of delivering these reasons, it is anticipated that agreement will be reached on a range of facts.
However, it is necessary to proceed on the basis of the Crown Case Statement, dated 23 April 2025.
A Tendency Notice was originally served by the Crown on 17 April 2025.
By an Amended Tendency Notice delivered on 8 July 2025, the Crown gave notice that the accused was the person whose tendency was the subject of evidence sought to be adduced. It expressed the tendency in this way:
“The tendency sought to be proved is:
(i) His tendency to act in a particular way, namely:
(a) To use violence or the threat of violence towards women in whom he has a sexual interest when he perceives that his relationship with them is breaking down.”
The Crown wishes to lead evidence relating to three previous women who, the Crown contends, were subject to violence at the hands of the accused when their relationship with him had been breaking down.
The first of these incidents involved an offence committed on 6 July 2011, shortly after a three-year relationship between the accused and Ms Cassie Gardiner had come to an end. After Ms Gardiner left work, she observed the accused sitting in a motor vehicle in the carpark outside her work. She proceeded with friends to a hotel. Whilst at the hotel, she received a phone call from a friend advising her that the accused was still in the carpark. Shortly afterwards, the accused approached Ms Gardiner in the hotel. She walked away from him. The accused followed her and began to shout at her. The two were separated by a male friend and security staff at the hotel intervened and removed the accused.
At the end of the evening, as Ms Gardiner left the hotel with her friends and was walking through the carpark, the accused grabbed her from behind, put an arm around her waist and placed his hand over her mouth. She was pulled off balance and dragged backwards a short distance. The accused forced Ms Gardiner to walk with him through the carpark to his vehicle.
He then opened the car door and forced Ms Gardiner into the middle of the back seat. There were three other people in the vehicle, including the accused’s brother and his cousin. Once in the vehicle, the accused told his cousin to drive the car away, which he did. During the car trip, the accused continued shouting at Ms Gardiner about their relationship. She was in fear for her safety and was crying hysterically. The accused would not let her leave the vehicle.
The accused pleaded guilty to taking and detaining with intent to obtain a psychological advantage, namely, to talk to the victim about their relationship, contrary to s 86(1)(b) of the Crimes Act 1900 (NSW).
The second incident involved a woman called Ms Rebecca Swan, with whom the accused was in an intimate relationship for about 9 months.
Ms Swan alleged that the accused became abusive and controlling during the relationship, which broke down after intervention by the Department of Community Services, regarding the accused assaulting Ms Swan and her children. About six months after Ms Swan and the accused had separated, Ms Swan was at home watching television with a male friend. Early in the morning, her male friend left, and Ms Swan prepared for bed. She heard noises in the backyard of her house and saw the shadow of a person through a window. She rang 000 and asked for the police to attend her home.
Ms Swan went to her bedroom and began to telephone a friend. Before she could complete the call, she heard a loud noise coming from the back of the house, and seconds later, she saw the accused walking into her bedroom.
“I am sick of this happening. He will not leave me alone. I can’t do this anymore. He only just got released from jail and turned up at my house days later. He is very controlling and obsessive. I am very afraid of Paul and what he might do.”
The accused pleaded guilty to breaking and entering Ms Swan’s house and committing a serious indictable offence whilst in the house, namely, intimidation, in circumstances of aggravation, namely that he knew there was a person present within the dwelling. All of these events occurred in December 2012.
There are two instances relied upon in 2016 and 2017. The complainant was Ms Renee Millar. She was in relationship with Mr Raymond Clissold. They lived together in Oxley Park. In May 2016, Mr Clissold was arrested and entered custody. About two weeks later, Ms Millar met the accused and developed a relationship with him, to the extent that the accused would stay at her home.
Mr Clissold was released from custody in July 2016 and returned home to Oxley Park. This created tension between the accused and Mr Clissold.
On Sunday, 31 July 2016, which was about a week or so after Mr Clissold was released from custody, Ms Millar and Mr Clissold were in a motor vehicle together which stopped by the side of the road. Whilst the car was stopped and Ms Millar attended to inflating her tyre, she noticed that the accused’s car was parked about 100 metres away. The accused revved his car engine loudly, drove in front of Ms Millar’s car, and then reversed into it. He drove forward and reversed back into Ms Millar’s car again whilst she and Mr Clissold were in the car.
The accused reversed into Ms Millar’s car a third time, creating a significant impact and causing injury to Ms Millar.
When arrested, the accused told police that, on the day in question, he had been to various locations to look for Ms Millar. He admitted that he pulled his vehicle over in front of Ms Millar’s vehicle and rammed it in reverse, making a large impact as he collided with the vehicle. He admitted to doing so three times. He told police that he did all of these things because he wanted to hurt Mr Clissold and fight with him.
The accused pleaded guilty to a charge of predatory driving, destroying or damaging property, and a charge of stalking or intimidating intending to cause fear of physical harm.
A second incident occurred in October 2017. The accused was on parole after serving a non-parole period for previous offences. Late one evening, whilst Ms Millar was driving a car with three passengers, including her 4-month-old daughter, she was pursued by a much larger car being driven by the accused. The car being driven by the accused approached Ms Millar’s car and crashed into its rear deliberately. Whilst Ms Millar was attempting to make an escape, she was pursued by the car being driven by the accused, which then deliberately crashed into the front of her car, forcing her off the road.
To be admissible, the evidence must pass both of the tests set out in s 97(1) and s 101(2) of the Evidence Act 1995 (NSW).
Section 97(1) provides:
“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.”
“101: Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
1 …
- Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.”
The accused did not contend that adequate notice had not been given of the proposed reliance by the Crown upon tendency evidence. The issue, rather, was whether the evidence either, by itself, or together with other evidence, had significant probative value.
Senior counsel for the accused opposed the admission of the tendency evidence essentially upon the basis that, having regard to the period of time which had elapsed, in two of the cases this was a period of 13 or 14 years from when the events relied upon to give rise to the tendency had occurred. Senior counsel submitted that, having regard to the passage of time between those dates, and the date when the trial was to be conducted, the evidence was “simply stale, too old and not probative”.
With respect to those two matters, the accused also submitted that the facts do not describe or engage with the offence of murder but, rather, relate to conduct occurring with respect to an entirely different kind of offence. Whilst the accused accepted that the offences did not have to be identical in order to allow for the admission of tendency evidence, he submitted that the difference in the character of the allegations, when taken together with the significant gap in time, would mean that the Court ought to conclude that the proposed tendency evidence had no substantial probative value.
With respect to the tendency evidence of the matters arising in 2016 and 2017, senior counsel submitted that those events were both of a kind entirely different in character, and outcome, of the accused’s behaviour, such that they would not be capable of providing any substantial probative value if admitted into evidence.
The Crown submitted that the evidence to be relied upon, and to be tendered, shows a tendency existing over the 12 years before the murder occurred, which tendency is evidence, on four different occasions, whereby the accused has acted violently towards women in whom he had a sexual interest by reason of a relationship, but in circumstances where that relationship was breaking down.
The Crown submitted that it had sought to make the tendency alleged more narrow than perhaps a general domestic violence tendency and, to the extent that a significant period of time had passed (which the Crown acknowledged), it was the fact that behaviour, in the course of a relationship, is not something, on the Crown’s submissions, which could occur in a short space of time. After all, the Crown submitted, the relationship must be permitted to be formed, developed and then break down.
The Crown noted that its case, which would be established independently of the tendency evidence, was, deriving from texts and social media messages, that the deceased was trying to end her relationship with the accused and that the accused was angry or jealous about the continued contact between the deceased and her husband, Mikkel Isaac.
The accused opposed the admission of the evidence on the basis, similar to that enunciated with respect to the evidence being used as tendency evidence, that the evidence was too old and related to events of an entirely different character, such that they could not establish any coincidence.
The Crown submitted that, with regard to the substantial issue in the proceedings, namely, not whether the deceased was murdered, but rather whether the accused was the person who, in fact, murdered the deceased, the identification of the accused as the murderer was a fact in issue. The Crown submitted that the jury should be entitled to take into account:
“… the unlikelihood of someone else committing the offence in circumstances where the accused had in the past demonstrated violence towards women in whom he had a sexual interest at a time when he perceived the relationship was ending …”
Having heard argument on 8 July 2025, I ruled that the proposed evidence was admissible, but only for the purpose of establishing a tendency or for coincidence and for no other reasons. I indicated that I would provide further reasons in due course.
These are the reasons. The proposed evidence, taken at its highest if admitted, would be capable of establishing, and would establish, the tendency set out in the Notice to which I have referred above, and would be capable of being regarded as coincidence evidence of the kind asserted in the Notice.
The real issue between the parties was whether the probative value of the evidence was, as required by s 97 of the Evidence Act, significant, whether taken alone or taken together with other evidence.
The starting point for evaluating the probative value of the evidence is the extent to which it could rationally affect the probability of a fact in issue. This logically leads to the question of what the fact in issue was. Here, the relevant fact in issue was whether the accused murdered the deceased.
It is against that fact in issue that the probative value of the evidence must be weighed.
In T L v The King [2022] HCA 35; (2022) 275 CLR 83 at [28]-[29] the High Court said:
“28. Assessment of the probative value of evidence requires that the possible use to which the evidence might be put to be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible … For evidence to have ‘significant probative value’, it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In other words, the evidence must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged.
- There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of ‘significant probative value’. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.” (footnotes omitted)
The Crown case is intended to be that a neighbour living near the deceased’s unit heard arguing coming from within the deceased’s unit, and identified the male voice heard in the course of that argument as being that of the accused. It is also the Crown case that the neighbour saw the accused leaving the deceased’s unit area shortly after that argument ceased.
The Crown accepts that such voice and visual identification would be the subject of appropriate directions and warnings to the jury.
Nevertheless, the Crown submits that given, that the issue is whether it was the accused engaged in the argument in the course of which the deceased was murdered, then evidence that the accused had a tendency in circumstances which were similar to those existing with respect to the deceased, namely a breakdown in their relationship, would be an important fact assisting the jury to reason that the Crown has proved beyond reasonable doubt that the accused murdered the deceased.
Notwithstanding the length of time that has passed, the nature of the tendency, to behave violently in particular circumstances, is not a tendency that is liable to dissipate. It is a tendency of a kind that will only emerge when a relationship is breaking down. I do not think that the passage of time of about 12 years (at the most) has the effect contended for by the accused, namely making the tendency “stale”. On the contrary, in my view, the passage of time is to be expected or, alternatively put, is not unexpected in the circumstances here.
The evidence, because of the connecting facts, namely the breakdown of a sexual relationship, or the pursuit of an unwilling participant to such a relationship, are sufficiently similar to the breakdown of the relationship, or the pursuit of the relationship by the accused, with the deceased, so as to mean that the tendency will, in my assessment, have substantive probative value.
For those reasons, I was satisfied that the evidence should be admitted to prove the tendency alleged.
Given the evidence will be admitted for that purpose, the question of the admissibility of it as coincidence evidence becomes slightly less complex.
That is because the evidence will be admitted. The jury will be given directions as to how to use that evidence in terms of a coincidence. And how to reason with respect to that.
In my view, the nature of the evidence proposed to be admitted is capable of establishing that the murder of the deceased, and the accused’s admitted criminal conduct in the four other events, could be regarded by the jury as standing against any explanation of coincidence.
It is for these reasons that I overruled the accused’s objection to the tender at the trial of the specified evidence for tendency and coincidence purposes.
**********
R
Sultana
(2022) 275 CLR 83
He snatched the phone out of her hand. An argument ensued. Ms Swan noticed that the accused had a knife with him, the blade of which was wrapped in cardboard. At some stage during their argument, the accused said to Ms Swan, “I came here to chop you up into little pieces and throw you in the ocean”.
Eventually, after talking to the accused to keep him calm, both Ms Swan and the accused fell asleep.
Sometime after sunrise, she woke up to the accused shouting at her about messages he had found on her phone and other matters. She got up from the bed, and as she did so, the accused grabbed her throat and squeezed it. He forced her to ground, and then let go of her, before saying “I should just kill you”.
Eventually the police came to Ms Swan’s house, where they were able to observe damage to the laundry door leading into the house from the backyard, and the knife in its cardboard sheath. At that time, an AVO was in place. The accused had previously been charged with breaching that AVO. Ms Swan said this in her statement:
The Crown submitted that the proposed tendency evidence had significant probative value, as it would establish that the accused would “… keep tabs on women in whom he had a sexual interest, would become enraged when he perceived them to be ending the relationship and/or otherwise interacting with another man, and to respond with violence”.
The Crown submitted that the probative value of the evidence was extremely high, despite the passage of time, because the evidence was capable of establishing that the accused had the tendency alleged and that such a piece of circumstantial evidence would be of significant probative value for the jury in deciding whether the accused was the person who murdered the deceased.
The Crown accepted that the evidence was prejudicial, however submitted that the prejudice was outweighed by the probative value and, further, that there was no risk that the jury would misuse the evidence due to any directions which may be given.