R v Villella

1 Michael Villella is charged on indictment with two groups of offences involving physical violence and threats thereof to Emily Isles occurring on two separate occasions 17 months apart, and two single instances of destroying or damaging her property occurring separately five months apart in the middle of the same 17-month period. Mr Villella and Ms Isles were in an intimate relationship during most of that period but had broken up in the month before the last occasion of alleged offending.

2 On the same indictment, Mr Villella is charged with alternative offences involving a single instance of more serious physical violence to Ms Isles' friend Dimitrios Zervas. This offence is alleged to have occurred as part of the same series of offences allegedly committed against Ms Isles on the last occasion.

3 The trial is due to commence in this Court on the first Wednesday of November this year. These reasons contain three pre-trial rulings.

4 The Director of Public Prosecutions has given written notice that, at trial, she intends to adduce evidence said to establish a tendency in Mr Villella to act in a particular way - namely, "to engage in physical and verbal violence upon [Ms Isles] and/or to damage or threaten to damage her belongings ... during the course of the relationship". The evidence relied on to prove this tendency is the very same evidence (and no other) which is to be led in direct proof of the events said to establish the offences charged concerning Ms Isles. Mr Villella submits that the evidence is inadmissible as tendency evidence.

5 The Director's application to rely on the evidence as tendency evidence is refused. This is because the evidence does not have significant probative value as tendency evidence and, in any event, because its probative value as tendency evidence is outweighed by the prejudicial effect it may have on Mr Villella.

6 Necessarily, the evidence will be admissible in proof of the offences charged in the usual way. Further, contrary to Mr Villella's submission, that evidence will be cross-admissible for other purposes - namely, as to animus, motive and context.

7 Finally, given that the evidence will be cross-admissible in these ways, Mr Villella's foreshadowed application for severance of the indictment would be hopeless.

8 Before turning to my more detailed reasons for those conclusions, I shall give a brief summary of the background to this matter, and then a summary of the charged offences and the evidence said to prove them. This information is taken mostly from the summary of prosecution opening filed by the Director.[1]

9 The alleged offending occurred on four separate occasions between September 2019 and February 2021. Mr Villella (then aged 48 to 50) and Ms Isles (25 to 27) were in an "on-again/off-again" relationship for about two-and-a-half years. During this period, Ms Isles lived intermittently with Mr Villella at his premises in Westmeadows and with Mr Zervas (aged 60 to 61) at his premises in Tullamarine.

10 The principal sources of evidence to be led by the prosecution at trial are the viva voce evidence of Ms Isles and Mr Zervas, text messages between Mr Villella and Ms Isles, photographs, medical evidence, and a CCTV recording of part of the alleged assault on Mr Zervas.

Charges 1-4: Assaults, reckless endangerment, threat to kill (September 2019)

11 The first four charges arise out of an incident said to have occurred in September 2019. Ms Isles alleges the following events.

12 While the two were in a bedroom at Mr Villella's home in Westmeadows, Mr Villella approached Ms Isles from behind and wrapped a rope around her, so that her arms were tied to either side of her body. He said, "Better I do it than they do it," and, "What have you been saying," which he repeated. He pushed her onto the bed on her back and put his knees on her hips, so that she could not move. Ms Isles screamed for help. Mr Villella placed one hand around her neck and squeezed tightly before using his other hand to slap her across the face. The alleged slap to the face is charged as a common assault[2] (Charge 1).

13 Mr Villella continued to squeeze Ms Isles' neck for a couple of minutes. She struggled to breathe. Whilst doing this, he said, "You're not telling me the truth. Goodnight, Emily, you're going to sleep. I'm so sorry." This alleged behaviour is charged as a threat to kill[3] (Charge 4).

14 Mr Villella put a pillowcase over Ms Isles' face. She screamed, begging him to stop. He then placed a pillow over her face and pushed it down, resulting in her "feeling dizzy from the lack of air". This continued for a few minutes. This alleged behaviour is charged as reckless conduct endangering life[4] (Charge 2) and, in the alternative, common assault[5] (Charge 3).

15 Mr Villella removed the pillow and said, "They can deal with you now. Now get the fuck out of my house." He then got off her and stood to the side of the bed.

16 Ms Isles ran out of the house without her shoes or jacket. There is evidence, from Mr Zervas, that Mr Villella rang him and said, "Come pick up Emily. She left and has no shoes on [and it's] raining."[6] Ms Isles was collected in that state by Mr Zervas and driven to his home. She told him that Mr Villella had tried to kill her.

17 As a result of these events, Ms Isles suffered a swollen left cheek and redness around her neck, which changed to spots of bruising over time.

18 In Mr Villella's defence response,[7] it is said that he denies that these events occurred.

19 The second incident is said to have occurred about six months later, in March 2020.

20 Mr Villella rang and texted Ms Isles and told her that he was going to set her car and clothes on fire. Shortly after that, he sent Ms Isles photos of her clothes on fire.[8]

21 Mr Zervas saw Mr Villella at his home holding a bag of clothes in one hand and a jerry can in the other. Mr Villella poured fuel onto the bag and set it alight. He then attempted to put out the fire with a fire extinguisher, before Mr Zervas assisted in that task. Mr Villella gave the remaining contents of the bag to Mr Zervas to take away.

22 This alleged behaviour is charged as arson[9] (Charge 5).

23 It appears from his defence response and from written submissions filed by counsel ahead of this application that Mr Villella does not dispute this allegation.[10]

Charge 6: Criminal damage to car (August 2020)

24 The third incident is alleged to have occurred about five months later, in August 2020.

25 Ms Isles received text messages from Mr Villella asking her to move her car from the front of his address. Within one of the messages was a photo of her car with an axe sticking up out of the boot-lid, accompanied by text that read, "Oh what a shame you don't have to move it. Look what someone done to it while I was out."[11]

26 A couple of days later, while discussing the damage to the car, Mr Villella admitted to Ms Isles that he had caused that damage. Within that same time period, Mr Zervas saw damage to the boot-lid of Ms Isles' car.

27 This alleged behaviour is charged as criminal damage[12] (Charge 6).

28 In his defence response and in the written submissions, it is indicated that Mr Villella denies embedding an axe in the boot-lid of Ms Isles' car, if indeed any such event occurred.

Charges 7-13: Threat, menaces, assault, injuries, aggravated burglary (February 2021)

29 The fourth and final series of offences is alleged to have been committed about six months after the third incident, on 5 February 2021.

30 In January that year, following the end of her relationship with Mr Villella, Ms Isles moved to Mr Zervas's home in Tullamarine.

31 On 5 February, via text messages sent between 5:18 p.m. and 9:36 p.m., Ms Isles and Mr Villella discussed their relationship, including where Ms Isles would be sleeping that night. It is unnecessary to set out the terms of each of those texts here. Suffice it to say that it is alleged that some of the texts included menacing remarks. This behaviour is charged as the Commonwealth offence of using a carriage service to menace[13] (Charge 8).

32 In one of the text messages, sent at 5:18 p.m., Mr Villella wrote:[14]

Emily you fucking slut I promise you this you call the cops u slut I'll crave up everything you ever cared about into pieces You're a two face gutter slug how dare u threaten me your dead u cunt fuck you im happy to go to jail I'm going to make u pay for every dollar you stole off me fucken abo coon slut you'd blow a fucking lebo and a coon but not me. I'm going to make u pay for the pain you gave me trust me you going to feel the pain you ungrateful using prosuitute.

33 These words are charged as a threat to kill[15] (Charge 7).

34 At about 9:42 p.m. the same evening, Mr Villella arrived in his utility at Mr Zervas's home. He went to the rear of the premises. While there (but outside the house), he punched Mr Zervas with a right fist to the left side of the face, causing him to fall backwards to the ground. Mr Villella continued to punch Mr Zervas. The first punch is captured on CCTV. Mr Zervas was dazed. He suffered bruising, swelling and fractures to the jaw and nose. He required multiple surgeries on his jaw. This alleged behaviour is charged as intentionally causing serious injury[16] (Charge 9) and, in the alternative, recklessly causing serious injury[17] (Charge 10).

35 It is alleged that, thereafter, Mr Villella entered the laundry and pushed Ms Isles with his elbow, causing her to fall to the ground. He then kicked her to the face. While Ms Isles did not sustain any visible injuries, she reported having a sore neck and a headache. The alleged entry to the laundry is charged as aggravated burglary, having been done with an intention to assault a person in the building, knowing or being reckless as to whether a person was therein[18] (Charge 11). The alleged acts of physical violence are charged as recklessly causing injury[19] (Charge 12) and common assault[20] (Charge 13).

36 Mr Zervas tried to move Mr Villella away from Ms Isles, but he was hit to the face again by Mr Villella. There appears to be no separate charge relating to this allegation.

37 Before leaving the premises, Mr Villella stood outside screaming at Mr Zervas and Ms Isles not to call the police. He yelled, "You're fucking her, you're fucking her."

38 In his defence response and in the written submissions, it is indicated that Mr Villella denies aggravated burglary and any assault upon Ms Isles.[21]

39 The next day, on 6 February 2021, Mr Villella was arrested at the Northern Hospital in Epping. Medical records show that he had a right scaphoid (i.e., wrist) fracture, although it is not said when or how he sustained this injury.[22] When interviewed by police, Mr Villella declined to comment in response to the allegations.

40 In the pre-trial defence documents, it is indicated that there might be a resolution of some of the charges on the indictment.

41 I took this possible resolution to include Charges 7 and 8 (the alleged menaces and threat by text), Charges 9 and 10 (the alleged assault on Mr Zervas) and Charge 5 (the alleged arson of the bag of clothes).

42 At the oral hearing, I was informed by Mr Desmond, who appeared for Mr Villella, that he and Mr Porceddu, who appeared for the Director, would continue their discussions about a possible resolution of the matter, including in respect of other charges.

43 Mr Desmond also indicated that, if the matter went to trial, there may be pleas of guilty to some charges before the jury. He also accepted that, were such pleas entered, the evidence in support of those charges still would be led before the jury.

44 On this application, counsel filed an outline of written submissions ahead of the hearing concerning the admissibility of the evidence as tendency evidence.[23]

45 Having read the tendency notice, the summary of prosecution opening, the defence response, the tendency notice and the parties' submissions on tendency, I was in a position to indicate my preliminary view to counsel at the commencement of the oral hearing, which I did. In particular, I advised counsel that my preliminary view was that the evidence was inadmissible as tendency evidence. I explained my reasons for that view, which were a brief summary of the reasons which appear below.

46 I also indicated that my preliminary view was that the same evidence was nevertheless cross-admissible for non-tendency purposes - namely, animus, motive and context.

47 In the defence response, it was indicated that, if the evidence were ruled inadmissible for a tendency purpose, an application for severance from the indictment of the charges concerning the first incident (Charges 1-4) might be made. I indicated that my preliminary view was that, in light of the cross-admissibility of the evidence for non-tendency purposes, such an application could not succeed.

48 I then invited counsel to make any oral submissions they might wish to make on these issues.

49 On the tendency argument, Mr Porceddu adopted the written submissions already filed on behalf of the Director (which were not under his hand). He submitted, in the alternative, that the evidence was admissible as to animus, motive and context. He also submitted that severance of Charges 1-4 from the indictment would result in the remaining charges being considered by the jury in a vacuum, and that severance should not be ordered.

50 On the tendency argument, Mr Desmond adopted his written submissions. I shall refer to his oral submissions on the admissibility of the evidence for non-tendency purposes, and those on severance, later in these reasons.

51 At the conclusion of the hearing, I ruled that the evidence upon which the Director sought to rely was inadmissible as tendency evidence but that it was cross-admissible as to animus, motive and context. I also confirmed my indication that an application for severance would not succeed.

52 My more detailed reasons for those conclusions follow.

53 Relevantly, s 97 of the Evidence Act 2008 (Vic) is in the following terms:[24]

(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.

54 The Director filed a tendency notice (dated 31 March 2022) pursuant to s 97(1)(a).

55 In that notice, it is said that the prosecution seeks to rely upon the tendency of Mr Villella to act in a particular way - namely, to engage in physical and verbal violence upon Ms Isles and/or to damage or threaten to damage her belongings; and, specifically, that, during the course of the relationship, he:

a) made verbal threats of violence towards Ms Isles;

c) made verbal threats to damage or destroy items belonging to her; and

56 In paragraph 3, the tendency notice goes on to provide that, "[a]s indicated in Table A below, the tendency evidence relates to the following facts in issue". Table A is then set out below. There are two columns in the table. Each of the thirteen charges on the indictment is listed in the first column under the heading "Charges". In the second column, which is headed "Facts in issue to which the tendency evidence relates", beside each charge listed is a question which, in substance, asks whether the events alleged in support of the particular charge in fact occurred.

57 Underneath Table A, the notice states that "[t]he tendency set out in paragraph 3 is relied upon in support of the following charges as making more likely the facts founding those charges"; and that "[t]he evidence relied upon to establish the tendency [is] set out in Table B". Table B is then set out thereunder.

58 There are three columns in Table B. In the first column, beside each of the eleven charges (i.e., Charges 1-8 and 11-13) listed under the heading "Substance of evidence relied upon to support tendency", there is a short description of the factual allegations forming the basis of the charge.

59 In the second column in Table B, under the heading "Features of evidence establishing the tendency", these things are said:[25]

a) in respect of each of Charges 1-3 and 11-13: "[t]hat the accused has a tendency to commit physical violence toward the complainant during the course of the relationship";

b) in respect of each of Charges 4, 7 and 8: "[t]hat the accused has a tendency to make verbal threats of violence toward the complainant during the course of the relationship"; and

c) in respect of each of Charges 5 and 6: "[t]hat the accused has a tendency to damage or destroy items belonging to the complainant during the course of the relationship".

60 Notably, Charges 9 and 10 (which concern the alleged assault resulting in serious injury to Mr Zervas) are not mentioned in Table B.

61 The third column of Table B is headed "Relevant witnesses and depositions reference". In that column, pages from the statements of Ms Iles and Mr Zervas, and from the transcript of viva voce evidence given at the committal hearing of 22 October 2021, are identified as corresponding with the nominated charge. No reference is made in the third column to the content of any of that evidence.

62 More particularly, under that heading, the page of cross-examination of Ms Isles at the committal that is identified vis-à-vis Charge 1 concerns only the incident involving the allegations of the slap to her face, the words uttered, and the putting of the pillow over her face.[26] This is evidence of the incidents said to give rise to Charges 1-4, rather than any separate evidence of other charged or uncharged acts on another occasion or occasions said to show a tendency in Mr Villella to commit physical or verbal violence upon Ms Isles during the course of the relationship.

63 Under the same heading, the page of Ms Isles' statement and the pages of committal cross-examination identified vis-à-vis Charges 2, 3 and 4 concern the events said to give rise to Charges 1-4, and not evidence of any other charged or uncharged incident or incidents of physical violence or threats on another occasion or occasions.[27]

64 In respect of Charges 5 and 6, which concern the alleged offences of property damage (namely, the burning of the clothes and the embedding of the axe in the boot-lid of the car), the only pages identified are those concerning evidence supporting those two charges, without distinguishing between them.[28] Those pages so identified do not refer to any evidence of other incidents of property damage on another occasion or occasions.

65 In respect of Charges 7 and 8, which concern the text messages alleged to amount to a threat to kill and menacing remarks, the only threat or menaces identified in the pages of evidence mentioned concern the allegations said to constitute those charges, without distinguishing between them.[29] Again, there is no reference to any other allegation of behaviour of that nature on another occasion or occasions.

66 And yet again, in respect of Charges 11-13, which concern the alleged aggravated burglary and assaults on Ms Isles, the only behaviour referred to in the pages of the depositions identified concerns the allegations in those charges, and nothing else of that nature, whether charged or uncharged, said to have occurred on another occasion or occasions.[30]

67 On the face of it, then, the notice does not suggest that there is evidence of behaviour on occasions separate from those constituting the charged incidents that might give rise to any potential tendency reasoning.

68 There are, however, two respects in which it might be said that the notice refers, as potential tendency evidence, to evidence other than the evidence directly supporting the charge in question. First, insofar as the pages of the depositions to which reference is made include evidence that goes to one or more other instances of charged behaviour occurring at or around the same time as the charged incident (or, in the case of Charges 5 and 6, those two charged incidents occurring on separate occasions), it might be gleaned from the notice that reliance is placed on this other evidence as tendency evidence vis-à-vis that charged incident.

69 Secondly, as I indicated earlier, underneath Table A, the notice provides that "the tendency set out in paragraph 3 is relied upon in support of the following charges as making more likely the facts founding those charges".[31] Thus, it might be said that this is an indication, if only implicit, that the tendency relevant to proof of each charge is to be established by proof of the events that go in proof of the other charges listed in Table B. But, in my view, it is far from clear.

70 In the Director's written outline, it was submitted that whether the evidence has significant probative value is to be judged according to the effect of the evidence in combination with other evidence in the case. This includes the other tendency evidence. Thus, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence, which might reinforce it, so that, when considered together with all the evidence, it does have significant probative value.[32] I accept these submissions.

71 The Director also submitted that the probative value of the tendency evidence is to be judged according to the facts in issue in the trial. The threshold of significant probative value will generally be easier for the prosecution to meet where the issue is whether the complainant has fabricated an allegation against a known offender[33] than it will in a case where the issue is the identity of alleged offender. The threshold will likely be easier again where there is a single complainant (as here) than it will be in cases involving multiple complainants which the prosecution seeks to have heard together.[34] Again, I accept these submissions.

72 As I understood the written submissions, the Director proceeded on something approximating the basis I have suggested might be gleaned from the notice - namely, that it is the evidence supporting all of the charged offences (except those concerning the assault on Mr Zervas) that would establish that Mr Villella had a tendency to act in a particular way towards Ms Isles, and that that tendency would be probative of each of those charged offences.[35]

73 The Director submitted that, while the tendency has been particularised as a single tendency - namely, a tendency to engage in physical and verbal violence upon Ms Isles and/or to damage or threaten to damage her belongings - this "could possibly be regarded as two tendencies, one to engage in physical and verbal violence, the other to damage or threaten to damage property".

74 It was also submitted that, whether there is one tendency or two, the evidence meets the threshold for admissibility as tendency evidence, set by s 97(1)(b). In particular, the Director argued that a demonstrated willingness to commit or threaten violence against an intimate partner (as the evidence is capable of showing in this case in respect of Charges 1-4, 7-8 and 11-13) has significant probative value in relation to an allegation of actual or threatened violence against that same partner, regardless of the presence of any common feature of or about the offending. Likewise, a demonstrated willingness to destroy or threaten to destroy property belonging to an intimate partner (as the evidence is capable of showing in respect of Charges 5 and 6) has significant probative value in relation to an allegation of destroying or damaging property belonging to that partner, regardless of the presence of a common feature.

75 Alternatively, the Director submitted that common features of the alleged offending were shown to be present in this case. In this regard, however, it was said that the common feature or features do not need to relate to the precise nature or circumstances of the alleged offence itself. They may simply be features "about" the alleged offending, such as to create a link. Thus, in Hughes v The Queen[36] for example, the common feature was that the sexual offences alleged - both charged and uncharged, and which were quite different in nature and committed against different complainants in widely different circumstances - were all committed in circumstances where the accused took a serious risk of detection. That was sufficient.

76 In the present case, the common features of the alleged offending were said to be:

a) that the offending was committed against the same person (Ms Isles);

b) that Ms Isles was Mr Villella's intimate partner;

c) that the motivation for the offences was jealousy; and

d) that there were two separate incidents of physical violence against Ms Isles, two separate incidents of threatening to kill her, and two separate incidents of damage to or destruction of her property.

77 Further, it was submitted that the allegations in this case are neither far separated in time (being 17 months from first to last) nor in nature and gravity.[37]

78 The Director conceded that there is not a very large number of incidents alleged, but submitted that what is alleged is sufficient to found the tendencies asserted.

79 It was, however, conceded that the evidence would not be admissible as tendency evidence in support of Charges 9 and 10 (i.e., intentionally causing serious injury to Mr Zervas, and the reckless alternative). I accept that concession. That said, the Director submitted that the same evidence, and indeed the evidence of Ms Isles generally, is "extremely relevant contextually" to the charges concerning Mr Zervas.

80 Since the aggravated burglary (Charge 11) was put on the basis of entry into a building with an intent to assault a person therein (namely, Ms Isles), it was submitted that the tendency evidence is applicable to this charge as well.

81 Insofar as the written submissions filed on behalf of Mr Villella asserted that the probative value of the tendency evidence does not, within the meaning of s 101(2) of the Act, substantially outweigh its prejudicial effect, the Director observed that no specific potential prejudicial effect was identified in those submissions. It was submitted that considerations such as the risk of the evidence evoking an emotional response in the jury, or the fact that some allegations are more serious than others, cannot found a conclusion that there would be a risk of unfair prejudice.[38]

82 Finally, the Director submitted that the probative value of the evidence is high, and that there is little, if any, unfair prejudicial effect.

83 Accordingly, the submission concluded, the evidence ought to be admitted as tendency evidence.

84 As may be apparent from my earlier remarks, Mr Desmond's written submissions were filed in response to the tendency notice and well before the Director's submissions were filed.

in this particular [n]otice has conflated the tendency evidence and the conclusions to be drawn from that evidence by suggesting that the tendency was [Mr Villella's] willingness to act upon his asserted willingness to engage in ... physical and verbal violence.

86 In his submission, this Court's task in making an assessment under s 97(1)(b) must centre on what Ms Isles says occurred on the asserted tendency occasion or occasions and look for the connection or nexus (if any) it may have with features of the charged offence under consideration.

87 It was submitted that, in undertaking this task, when considering asserted tendency evidence, evidence of events forming part of the same transaction cannot be used to prove the tendency used to prove those same events, as such a process would involve circular (or "bootstraps") reasoning.

88 In analysing the evidence, counsel divided the allegations according to the four separate occasions on which the charged acts were said to have occurred:

a) The first group concerns the events alleged on the one occasion in September 2019 - namely, the slap, the pillow on the face, and the threat ("the pillow incident") (Charges 1-4).

b) The second concerns the alleged arson of the clothes in March 2020 (Charge 5).

c) The third concerns the alleged axe-in-the-boot-lid incident in August 2020 (Charge 6).

d) The final group concerns the series of events alleged on 5 February 2021 - namely, the threat and menaces via text, the assault on Mr Zervas, the entry to the laundry, and the assaults on Ms Isles (Charges 7-13).

89 Mr Desmond pointed out that trial issues have been stated in the defence response to be as follows:

a) The allegations relating to the pillow incident in September 2019 are denied. Mr Villella neither assaulted nor threatened Ms Isles.

b) The axe incident of March 2020 is denied - that is to say, whoever embedded an axe in the boot-lid of the car, if that is what occurred, it was not Mr Villella.

c) As for the incidents of 5 February 2021, Mr Villella denies the allegations of aggravated burglary and assaulting Ms Isles.

90 Tendency reasoning uses a finding that an accused had a particular tendency to assist in proof of the fact that he or she acted in a similar way on another occasion or occasions. The tendency finding may make it more probable that the accused acted in that similar way on the charged occasion. But, in Mr Desmond's submission, the alleged act establishing that tendency must have a feature about it which it has in common with the charged act, so that proof of the tendency increases the probability that the accused committed the charged act.

91 It was submitted that the alleged slap to the face (Charge 1) could have no bearing on the probability that Mr Villella recklessly engaged in conduct that placed Ms Isles in danger of death by holding a pillow over her face (Charge 2). These two allegations are of a completely different nature and gravity. As Charge 3 (common assault) is an alternative to Charge 2, it was submitted that the same point must apply to that charge.

92 In Mr Desmond's submission, the alleged threat to kill (in Charge 4) is not made more probable by the events alleged during the narrative said to support Charges 1-3, which involve the same narrative of which the alleged threat is a part. Further, he submitted that none of the allegations founding Charges 1-4 is made more probable by any other of those allegations. While the pillow incident comprises four charges (one of which is an alternative), those charges stem from the one incident on the one occasion. This, it was said, is isolated alleged offending on one night, and proof of one offence on that occasion does not make it more probable, on a tendency basis, that the other charged offending on that occasion occurred.

93 It was submitted that the temporal connection between the pillow incident (Charges 1-4) is too remote to support any asserted tendency so as to be admissible on that basis in proof of the actual or threatened violence allegedly committed towards Ms Isles in the February 2021 incident (Charges 7, 8, 11, 12 and 13). Further, the alleged conduct supporting Charges 2 and 3 (reckless conduct endangering life and its alternative of common assault) is of a completely different nature and gravity to that which is alleged in those charges.

94 Consistently with the concession that was to come subsequently in the Director's written submissions, Mr Desmond submitted that whatever tendency Mr Villella is alleged to have relating to Ms Isles, evidence of that alleged tendency would be inadmissible in proof of the allegations in Charges 9 and 10, which concern the assault upon Mr Zervas. As I have said, I accept that is so.

95 Nor, in Mr Desmond's submission, could the asserted tendency vis-à-vis Ms Isles be admissible in support of proof of the alleged aggravated burglary (Charge 11).

96 Finally, Mr Desmond argued that any probative value of the asserted tendency evidence does not substantially outweigh the prejudicial effect it may have on Mr Villella, and therefore must be excluded pursuant to s 101(2) of the Act in any event.

97 Section 99 of the Act provides that notice given under s 97 is "to be given in accordance with any regulations or rules of court made for the purposes of this section". Regulation 8(1) of the Evidence Regulations 2019 (Vic) sets out the things that must be stated in a notice for the purposes of s 99 in the following terms:

For the purposes of section 99 of the Act, a notice given under section 97(1)(a) of the Act (relating to the tendency rule) must state -

(a) the substance of the evidence that the notifying party intends to adduce; and

(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of -

(i) the date, time and place at and the circumstances in which the conduct occurred; and

(ii) the name of each person who saw, heard or otherwise perceived the conduct; and

98 On the face of it, the written notice given in this case appears to comply with these requirements.

99 It may be doubtful, however, that the document gives all of the information it should give. In my view, the notice is unhelpful, at best. While it spells out the asserted tendency (or tendencies), and from where the tendency in issue springs, it fails clearly to identify in respect of which charged offence or offences the tendency in issue is said to apply. Moreover, on one reading, the notice appears to have it (at least in part) that the asserted tendency in relation to any identified charged offence is said to spring as well from the evidence supporting that same charged offence, which simply cannot be right.

100 While Hughes involved evidence of charged and uncharged acts against multiple complainants and non-complainants, it can be seen in the reasons of Gageler J and Nettle J how the notice in that case identified (or was understood to identify) to which counts the evidence of the asserted tendency was said to be related, and how a distinction was drawn in this respect between one count and the others.[39] On my reading of the notice, nothing like this was done in the present case. In my view, such an approach would have been preferable.

101 That said, as we have seen, it has been made clear enough in the written submissions how the Director would seek to use each asserted tendency, in relation to which charged offences the tendency reasoning would apply, and which evidence it is said would establish that tendency in relation to the charges. While the Director's submissions came after his, I did not understand Mr Desmond to complain that he was prejudiced in any material way in responding to the notice.

102 In those circumstances, and given that I consider the evidence to be inadmissible as tendency evidence in any event, it is unnecessary to reach any conclusion as to whether the deficiencies in the notice - if deficiencies they be - are such that the notice should be regarded as ineffective on the basis that it fails to provide all of the information that I think is required. It would be inutile now to require the Director to file a fresh notice.

103 However, it would be fairer to the accused, and more helpful to the Court, and thereby more conducive to the proper and efficient running of criminal trials, if more care were taken to draft tendency notices in ways that make clear not only the particular tendency (or tendencies) said to arise, but also to which charge or charges that tendency is (or those tendencies are) said to relate, and which evidence is said to establish that tendency (or those tendencies), whether that be evidence of charged or uncharged acts or from complainant or non-complainant witnesses or other sources. Further, if the prosecution seeks to lead the evidence that directly supports two or more charges as cross-admissible on a tendency basis, then that should be said in the notice in plain terms.

104 Neither the accused nor the Court should be left to guess at these matters. Nor should either the accused or the Court have to wait until written or oral submissions are made by the prosecutor to obtain the necessary clarity. Rather, while the notice should not be in the form of a submission - and matters of greater complexity and subtlety ought to be reserved for submissions - the notice must be drafted in such a way as to make plain the basic points I have just mentioned. All it takes is a bit of serious thought and, usually, a few sentences in the notice. Imprecision and slovenliness in drafting such an important document in the criminal trial process should be avoided.

Evidence lacks significant probative value as tendency evidence

Evidence must have significant probative value as tendency vis-à-vis offence charged

105 Insofar as s 97(1)(b) requires that 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", the significant probative value must relate to the evidence as tendency evidence.

106 In this case, given the terms of the notice and by force of the chapeau to s 97(1), the significant probative value of the evidence must relate to proof that Mr Villella "had a tendency ... to act in a particular way" - namely, the way (or ways) identified in the notice (and clarified in submissions). And that tendency must be capable of impacting in the required way on an assessment of whether the charged behaviour to which the tendency is said to relate in fact occurred.

107 While the Director argued that it was possible to see the tendency particularised in the notice as two tendencies, it seems to me it might be analysed as three: one to engage in physical violence towards Ms Isles, another to engage in threats of physical violence (or "verbal violence") towards her, and yet another to damage or threaten to damage her property, each during the course of the relationship. Indeed, as we have seen, under the heading to the second column of Table B of the notice, each of those three tendencies is identified as relating to offences involving the same type of alleged conduct. That said, given that the two separate occasions giving rise to Charges 1-4 on the one hand and Charges 7-8 and 11-13 on the other comprise allegations of both physical and verbal violence towards Ms Isles, it is appropriate to employ the taxonomy urged by the Director in the written submissions - namely, two tendencies, one to engage in physical and verbal violence to Ms Isles, the other to damage or threaten to damage her property.

108 In taking this approach, I am conscious that, by collapsing two separate asserted tendencies into the one tendency of both physical and verbal violence, there is a risk that, if this tendency were considered disjunctively, a tendency to threaten may be treated as significantly probative of actual violence, and vice versa, which may not be appropriate. But provided that potential difficulty is recognised when conducting the analysis required by s 97(1), the relevant tendency should not be overweighted or underweighted in assessing whether the evidence has significant probative value. Further, since instances of both physical and verbal violence are alleged on the two separate occasions in issue, it seems to me appropriate to analyse the asserted tendency in this way.

109 In circumstances where the offences involving physical violence or threats against Ms Isles were allegedly committed close in time on the first occasion (Charges 1-4) and also close - albeit not all quite as close - in time on the other (Charges 7-8 and 11-13), it is, I think, not reasonably practicable to analyse any one piece of the charged behaviour alleged on either of those two occasions as evidence of tendency vis-à-vis another instance of charged behaviour on that same occasion.

110 Thus, in respect of the first occasion, the slap to the face (the common assault in Charge 1), putting the pillow on Ms Isles' face (the reckless endangerment in Charge 2, and its alternative of common assault in Charge 3) and the threat to kill (Charge 4) all are alleged to have occurred very close in time, and may be said even to overlap to some extent.

111 Similarly, in respect of the second occasion of alleged offending of this type - which involved a threat and menaces and physical violence 17 months after the first occasion - while the threat and the menaces alleged in the text messages (Charges 7 and 8) occurred when Mr Villella (at least from his perspective) was away from Mr Zervas's premises, and while the alleged physical violence towards Ms Isles (Charges 11-13) occurred at those premises (and immediately after the alleged assault of Mr Zervas), all of those offences alleged were still rather close to each other in time. Further, in the case of Charges 7 and 8, each piece of alleged behaviour is part of the same series of text messages. And, in the case of the entry to the laundry (with an intent to assault) and the assaults comprising Charges 11-13, those alleged offences appear to occur within seconds of each other and may also overlap to some extent.

112 It might be thought incongruous to say that instances of alleged behaviour are too close in time to be analysed fruitfully as giving rise to a tendency inter se, and yet that the result may be the same if the alleged acts are too far apart. But there is no incongruity. The predictive or "postdict[ive]"[40] power of evidence of this kind stems, at least in part, from its relation of one or more events to another or others over time. If the events alleged occur very close in time or overlap, then there is no (or very little) room for prediction: the relevant event or events are in process at the one time, or more or less. If they are few in number and a long way apart, the events may be capable of being predictive or postdictive, but not sufficiently so to meet the test of significant probative value. In the latter case, as we shall see, it is largely a question of degree.

113 Thus, in the circumstances of this case, I think it is preferable to consider each of the two occasions of alleged physical and verbal violence (each comprising the behaviour alleged in any or all of the charges on one occasion) as potentially available as tendency evidence in proof of a charged offence allegedly committed on the other occasion, rather than considering the behaviour alleged in one group of charged offences (except the charge being considered) as potentially available as tendency evidence in proof of the charges being considered within the same group.

114 Similarly, since the two single instances of alleged property damage by Mr Villella were committed on two separate occasions five months apart, it is preferable to treat the relevant aspect of the tendency asserted - namely, to damage or threaten to damage Ms Isles' property in the course of their relationship - as the one potential tendency, with each incident of charged property damage as potentially available as tendency evidence in proof of the other.

Allegation of aggravated burglary to be included in analysis

115 Given the submissions on this point, I should add the following. A legitimate distinction may be drawn between the offence of aggravated burglary (Charge 11), which does not require proof of physical or verbal violence, and the offences charged that do require such proof. In this case, those offences requiring proof of actual violence upon Ms Isles are the assaults, reckless endangerment and recklessly causing injury (Charges 1-3 and 12-13); and those requiring proof of verbal violence towards her are threats to kill (Charges 4 and 7) and, to a lesser extent, the menace offence (Charge 8).[41]

116 That said, the basis for the aggravated burglary alleged here is entry with an intent to assault a person in the building (i.e., the laundry). The person at whom the alleged intention to assault was directed was Ms Isles, and the alleged assaults on her were committed immediately after entry into the laundry.

117 Given the terms of s 97(1), despite the fact the Director's notice could have specified, but does not, a tendency to have "a particular state of mind" (such as an intention to assault), and instead is confined to a tendency "to act in a particular way", I do not think that, in the circumstances of this case, it would be sound to hold that the tendency asserted in the notice could not go to proof of the intent to assault required for the kind of aggravated burglary alleged in this case. This is especially so where, on the Director's case, the alleged assaults followed immediately upon entry into the laundry.

118 Thus, the evidence of the aggravated burglary (and, in particular, the requirement of an intention to assault) will be included in the analysis of the evidence as potential tendency evidence.

119 Despite the possibility that there may be pleas of guilty to some of the charges (or to some other charges instead), no pleas of guilty have been entered as yet, and no relevant admissions have been made. In those circumstances, I have conducted the analysis on the assumption that all charges on the indictment will be in issue.

120 If that were to change, it is difficult to see how the Director's case for admissibility of the evidence at trial as tendency evidence could be improved.

No need for common features at a high level of particularity

121 I have had regard to the common features of the alleged offending relied on by the Director in support of the case for admissibility, and I accept that the presence of common features furthers the argument that the evidence has significant probative value as tendency evidence. However, I do not accept that it is necessary to show the presence of common features at the level of particularity urged by Mr Desmond in order that the evidence, in this case, be regarded as having significant probative value as tendency evidence.

122 In this regard, I do not accept that the fact the allegation of reckless conduct endangering life involved in the pillow incident is arguably substantially more serious than, and different in nature from, the physical violence against Ms Isles alleged in the other charges is fatal to an argument for significant probative value. Instead, in the circumstances of this case, it is, at least potentially, enough that the allegations underlying each of the charged acts of physical and verbal violence involve just that - either physical or verbal violence, as the case may be.

123 In saying these things, I am conscious of the remarks of Nettle J in Hughes, upon which Mr Desmond relied, albeit that his Honour was in dissent:[42]

[153] The "probative value" of evidence means the extent to which the evidence can rationally affect the assessment of the probability of the existence of a fact in issue or, put differently, the degree of its relevance. Because each count on a multiple count indictment must be considered separately and decided separately by reference only to so much of the evidence adduced as is relevant to that count, the question of whether tendency evidence could have significant probative value in relation to a particular count needs to be decided individually for each count by reference to the facts in issue for that count. It is not an exercise that may properly be undertaken by an analysis expressed in broad generalities. It requires precise particularisation of each tendency alleged and logical analysis of why the alleged tendency, if proved, would have significant probative value in relation to a fact in issue in respect of the count under consideration.

[154] Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence. Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence, or that the complainant is telling the truth as to the commission of the offence.

124 Thus, I have considered, in relation to each charged offence, including the reckless endangerment charge, whether the relevant asserted tendency evidence, if proved, would have significant probative value as tendency evidence in respect of that charged offence.

No significant probative value - physical and verbal violence

125 Having considered the issues and the evidence in these ways, and also counsel's submissions, for the reasons that follow, I am of the view that none of the evidence upon which the Director seeks to rely has significant probative value as tendency evidence in relation to any of the charged offences.

126 First, insofar as the evidence is said to be admissible in proof of a tendency in Mr Villella to engage in physical and verbal violence towards Ms Isles in the course of their relationship, there are, as we have seen, only two separate occasions on which there is evidence that such behaviour occurred, albeit that each occasion concerns multiple alleged instances of physical and verbal violence.

127 As Gageler J explained in Hughes:[43]

Tendency reasoning, as courts have long recognised, is not deductive logic. It is a form of inferential or inductive reasoning. What it involves is "admeasuring the probability or improbability of the fact ... in issue ... given the fact or facts sought to be adduced in evidence". In the admeasurement of that probability or improbability, as courts have again long recognised, there inheres a very real risk of attaching "too much importance" to the tendency evidence - of giving tendency evidence "too much weight".

128 While there need not be more than two separate occasions involving behaviour of the kind alleged in this case to establish a tendency of the same kind, to my way of thinking, the fact that there are only the two such occasions alleged in this particular case reduces the predictive or postdictive power of the evidence and thereby reduces, or at least limits, its probative value as potential tendency evidence.

129 Secondly, while it is far from reducing it to nought, that these two occasions are said to have occurred 17 months apart also reduces, or limits, the probative value of the evidence as tendency evidence.

130 Again, it is helpful to refer to the reasons of Gageler J in Hughes:[44]

The problem that inheres in tendency reasoning has come to be exposed by social science research and explained in social science literature in more precise terms. The problem is one of cognitive bias, amounting to an inclination observable on the part of most persons to overvalue dispositional or personality-based explanations for another person's conduct and to undervalue situational explanations for that conduct. The bias is towards overestimating the probability of another person acting consistently with a tendency that the person is thought to have - of treating the person as more consistent than he or she actually is.

131 His Honour's remarks are capable of application to an assessment of whether the evidence in question has significant probative value, and also to an assessment of whether, within the meaning of s 101(2), the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. For the moment, I am dealing with significant probative value. I shall address the question under s 101(2) later.

132 While a leopard might never change its spots, it is common experience that human beings can, and do, change their thoughts and disposition over time, especially over longer periods. Put another way, it is less convincing to act on the basis that a person will revert to type, and conclude that the person committed the charged act in question, the greater the period of time that has passed since the occurrence of the events said to justify the resort to reasoning of that kind in the first place. In those circumstances, that the two occasions of alleged offending involving physical and verbal violence occurred 17 months apart also tends to reduce the predictive or postdictive power of the evidence as tendency evidence.

133 Finally, in considering the previous points, I have taken into account that allegedly occurring between these two occasions of alleged multiple acts of actual and threatened physical violence were two separate instances of property damage. Further, these alleged instances of property damage might be said to have rather sinister - even disturbing - features, which themselves might be thought to have physically threatening overtones. But, in the end, they are still instances of property damage or destruction, not physical violence or threats thereof. Despite the fact that, at a broader level of abstraction, these two types of asserted tendency evidence might be said to have common features, and might even be described as no more than different ways of committing "family violence"[45] (which might also be said to be a common feature at the heart of these allegations), the differences between them are such that it would be wrong to treat the evidence of property damage in this case as significantly probative of a tendency to commit acts of physical or verbal violence. It is, in my judgment, one thing to resort to property damage in circumstances such as those said to have obtained in this case; it is quite another to resort to physical violence or threats thereof.

134 For these reasons, I do not accept that the evidence of physical and verbal violence on either the first or the second occasion in issue has significant probative value as tendency evidence - that is to say, as evidence that Mr Villella had a tendency to engage in physical and verbal violence towards Ms Isles in the course of their relationship - in proof of such behaviour alleged on the other occasion.

135 As a unanimous High Court observed in R v Bauer, while the question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, it is a question about which reasonable minds may sometimes differ.[46] While I can see arguments either way in the present case, in the end, I am firmly of the view that the evidence in issue here lacks significant probative value as tendency evidence.

136 I should add that, while the asserted tendency is a tendency to act in a particular way towards Ms Isles "in the course of the relationship", I think it is of no moment (or none adverse to the Director's position) that, in January 2021, the relationship was said to have ended, so that it was, or might not have been, on foot by the time of the alleged behaviour in February 2021. The Director should not be denied the possibility of tendency reasoning merely because it might be said that one of the features of the asserted tendency spelled out in the tendency notice was no longer present for part of the relevant period.

137 In any event, it is plain - from the evidence of the text messages between them on 5 February 2021 - that Mr Villella and Ms Isles were still in the throes of discussing their relationship at that time. Moreover, it is also clear (if, for example, the evidence of what Mr Villella is alleged to have said, and the manner in which he appears to have said it, as he left the premises on that day, is accepted) that he was angry at what he believed was Ms Isles' loss of intimate affection for him in favour of Mr Zervas. Further still, in this regard, it might even be said that the breakdown of the relationship only potentiated Mr Villella's tendency to act in the way alleged.

138 That said, I maintain the view that the evidence of physical and verbal violence does not have significant probative value as tendency evidence.

No significant probative value - property damage

139 I turn now to the question whether the evidence of property damage directly proving the offences in Charges 5 and 6 is admissible as tendency evidence - i.e., as evidence of a tendency on the part of Mr Villella to damage or threaten to damage Ms Isles' property in the course of their relationship - in proof of either of those two charged offences or of any other charged offences. For reasons that follow, I do not accept that that evidence has significant probative value as tendency evidence in either respect.

140 First, as I indicated earlier, I think it would be wrong to treat such behaviour as significantly probative of a tendency to physical or verbal violence, if it can be probative of such a tendency in any meaningful sense, and therefore as admissible as tendency evidence in proof of the charges alleging physical or verbal violence.

141 Secondly, while, obviously, the evidence of the commission of property damage on each occasion is potentially probative of such behaviour being committed on the other, I do not think the evidence has significant probative value as tendency evidence. Again, rather like the situation that obtains in relation to the evidence of physical and verbal violence, there are only the two alleged instances of property damage - as spectacular and sinister as each may be - occurring five months apart, which lessens the probative value of that evidence. Further, while those two instances of alleged property damage are book-ended, as it were, by the alleged offences of physical and verbal violence occurring six months before the first instance of alleged property damage and six months after the second, that does not, to my way of thinking, raise the probative value of the evidence sufficiently to meet the threshold in s 97(1)(b) of the Act.

142 For these reasons, none of the evidence sought to be relied on by the Director as establishing a tendency of either kind is of significant probative value as tendency evidence within the meaning of s 97(1)(b).

143 Accordingly, the Director's application must be refused on that basis alone.

Probative value of evidence does not substantially outweigh its prejudicial effect

144 There is, however, an alternative or additional basis on which the application must be refused.

145 Section 101(2) of the Act provides as follows:[47]

Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

146 Even were I to suppose that the evidence in issue had significant probative value as tendency evidence, I would still not be persuaded that it should be used in that way. This is because I am not satisfied that the probative value of that evidence substantially outweighs any prejudicial effect it may have on Mr Villella if allowed to be used as tendency evidence.

147 In Hughes, in the reasons of the plurality, this was said:[48]

In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) ... imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency ... to act in a particular way ... may not have acted in that way ... on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency ... to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence.

148 In my view, if the evidence in this case were admitted as tendency evidence, there would be an unacceptable risk that a jury would fail to allow that Mr Villella, if found to have the tendency (or tendencies) asserted, might not have acted in accordance with that tendency (or those tendencies) on one or more of the charged occasions in issue.

149 There is also an unacceptable risk that a jury would give the asserted tendency evidence - or, put another way, the type of reasoning that such evidence permits - disproportionate weight. This seems to me to be all the more likely in circumstances where there are only two occasions on which each of the two forms of tendency reasoning urged may be based, and in circumstances where the two occasions of alleged physical and verbal violence towards Ms Isles occurred as far as 17 months apart. This is because, if the evidence does reach the threshold of significant probative value as tendency evidence, it does so only by a hair's breadth. But a jury is not to know this. Admissibility is a question of law for a judge, not one of fact for a jury. For all we know, if the jury were allowed to employ tendency reasoning, it might be thought by them that the capacity of the evidence to give rise to tendency reasoning, and thereby to assist in proof of the offences charged, might be powerfully probative, when it cannot be. In the circumstances of this case, no judicial direction could be adequate to guard against any such misapprehension.

150 Finally, it seems to me that, at trial, the jury will be required to consider, among other things, three rather important questions. The first will be whether the evidence of Ms Isles is to be accepted beyond reasonable doubt in respect of the disputed events. The second will be as to the precise detail she may give of these events vis-à-vis each charge alleged. Both of these issues will turn in large part on the credibility and reliability of Ms Isles. This will be especially so when it comes to her allegations of the pillow incident of September 2019 (Charges 1-4), the axe incident of August 2020 (Charge 6) and the aggravated burglary and assaults incident of February 2021 (Charges 11-13). The third issue is likely to concern whether, if the substance of Ms Isles' evidence is accepted (whether or not in its entirety), the evidence proves some of the more nuanced elements of the charges - for example, whether the pillow incident and the accompanying words uttered amounted to the elements of reckless conduct endangering life and a threat to kill, whether the nominated text message of 5 February 2021 amounted to the elements of a threat to kill, and whether, for the purposes of aggravated burglary, Mr Villella possessed an intent to assault Ms Isles at the time he entered the laundry (if he is found to have done so).

151 In my view, there is an unacceptable risk that allowing tendency reasoning would deflect a jury not only from the necessary scrutiny of Ms Isles' evidence of each of these alleged incidents but also, if that evidence were accepted (whether in whole or in part), from the necessary consideration of whether the elements of at least some of the charged offences were established. In this way, I am troubled that the probative value of the evidence would be elevated beyond its true capacity to prove any or all of the offences alleged and disputed. This is yet another reason why I am not satisfied that the probative value of the evidence, as tendency evidence, substantially outweighs any prejudicial effect it might have on Mr Villella.

152 In those circumstances, even if, contrary to my view, the evidence does have significant probative value as tendency evidence, I am not persuaded that it clears the hurdle in s 101(2). Accordingly, the evidence must not be admitted for use as tendency evidence.

153 It follows that the Director's application must be refused.

Evidence cross-admissible for non-tendency purposes

154 None of this is to say that the evidence of physical and verbal violence on the two occasions is not cross-admissible on other - non-tendency - bases, in addition to its capacity directly to prove the acts alleged in the charged offences. Plainly, it is.

155 The evidence is capable of showing an animus in Mr Villella towards Ms Isles, and a motive - that of jealousy - for him to commit the offences alleged. Despite the point I made earlier about the limitations of using evidence of property damage as evidence of a tendency to engage in physical and verbal violence, I think that these non-tendency bases for admissibility also apply, albeit with less force, to the evidence of property damage in this case to be led in proof of Charges 5 and 6. Further, while the content of the text messages that preceded the alleged assaults on Ms Isles on 5 February 2021 is also capable of placing those alleged assaults in a realistic context - so that it can be said that this behaviour did not come out of the blue, and is therefore more credible than it might appear absent that context - the evidence of the physical violence involved in the pillow incident committed in September 2019 is also capable of having the same effect.

156 I should add that I also accept the Director's submission that much of the evidence of Ms Isles generally will be relevant contextually to the allegations of intentionally causing serious injury and (alternatively) recklessly causing serious injury to Mr Zervas (Charges 9 and 10).

157 Mr Desmond submitted that the Court must refuse to admit the evidence for these purposes because, pursuant to s 137 of the Act, its probative value is outweighed by the danger of unfair prejudice to the accused. In particular, he submitted inter alia that, in circumstances where the alleged events giving rise to Charges 1-4 were more serious than the events alleged concerning Ms Isles in the other charges, and were said to occur 17 months before the last charged incident, those alleged events lacked the probative value to be regarded safely as evidence of animus, motive or context relevant to the other charged incidents. Further, he submitted that there was an unacceptable risk that the jury would use the evidence of that first incident in a rank propensity fashion in proof of the later charged incidents.

158 While the concerns which Mr Desmond expressed are all legitimate, I do not accept that the evidence, if used cross-admissibly as to animus, motive and context, would lack probative value. While it does not have the significant probative value required for admissibility as tendency evidence, it nevertheless has probative value for these non-tendency purposes. Nor do I accept that the probative value of the evidence, if used in these ways, would be outweighed by the danger of unfair prejudice to Mr Villella. The jury would be directed on the use or uses that may be made of the evidence, if accepted. I am confident that such directions would be sufficient to offset any danger of unfair prejudice to Mr Villella.

159 In the minds of some, there may be little practical difference between the use of the evidence for these purposes and its use for a tendency purpose. But the difference is fundamental. These purposes for admissibility involve different forms of reasoning from tendency reasoning. The former are permissible ways in which to reason from the evidence to be given in this case. By way of contrast, if the evidence does not have significant probative value as tendency evidence, then it is not admissible for that purpose and must not be used in that way.

160 Section 136 of the Evidence Act reposes in a court a discretion to limit the use to be made of evidence if there is thought to be a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. Subject to the submissions of counsel at trial, it may be that, in addition to directions of the type I have just mentioned and those to the effect that the jury must consider each charge separately according to the evidence (and the law) applicable to that charge and that they must not substitute the evidence on another charge for the evidence applicable to the charge under consideration,[49] there should be an anti-tendency direction.[50] Of course, as a matter of forensic judgment, counsel might resist the giving of such a direction on the basis that it might be thought better not to mention the war.[51] Anyway, we shall see what counsel submit at trial, if it comes to it.

161 Accordingly, the evidence is admissible for these non-tendency purposes.

162 As indicated earlier, in Mr Villella's defence response, it is said that "[finalisation] of the tendency evidence argument will likely determine whether a severance application is made [in respect of] the September 2019 incident and other charges".

163 I reached my preliminary view - that, even if the evidence were inadmissible as tendency evidence, there appeared to be no reasonable basis for severance - on the basis that the evidence is cross-admissible for non-tendency purposes. As it happens, those same purposes of cross-admissibility are also capable of assisting in proof of the assault-based offence allegedly committed against Mr Zervas.

164 Mr Desmond submitted that, absent severance of Charges 1-4, there was an unacceptable risk that the jury would use the evidence supporting those charges in a rank propensity fashion in proof of the later charged incidents, and vice versa.

165 For the reasons I have given concerning the cross-admissibility of that evidence as going to animus, motive and context, I do not accept that submission.

166 In those circumstances, it would seem appropriate to have all of the charges in the indictment tried together before the one jury, and inappropriate to do otherwise.

167 Accordingly, while no formal application was made for severance at the hearing, my view is that such an application would be hopeless.

[1] The summary of prosecution opening is dated 25 February 2022.

[3] Contrary to s 20 of the Crimes Act 1958 (Vic).

[4] Contrary to s 22 of the Crimes Act 1958 (Vic).

[6] Depositions, p 71. This evidence is not mentioned in the summary of prosecution opening.

[7] The defence response is dated 16 March 2022.

[8] As I understand it, the photo and the text message have not been retained.

[9] Contrary to ss 197(1) and (6) of the Crimes Act 1958 (Vic).

[10] On my reading of the depositions, it is not entirely clear whether the acts spoken of by Ms Isles and Mr Zervas are said to have been committed in the same transaction, or on two separate occasions in the one day. While it seems likely that the witnesses are speaking of the same acts, if it is said that there were in fact two instances of arson, and the charge goes to trial, the Director will need to elect which instance is relied upon in proof of the charge. See, e.g., R v Trotter (1982) 7 A Crim R 8 at 14-18 (especially at 17-18) (per McInerney, Anderson and Gobbo JJ).

[11] Again, as I understand it, the photo and the text message have not been retained.

[12] Contrary to s 197(1) of the Crimes Act 1958 (Vic).

[13] Contrary to s 474.17 of the Criminal Code (Cth).

[14] I have reproduced this text message in the unedited form in which it appears in the summary of prosecution opening.

[15] Contrary to s 20 of the Crimes Act 1958 (Vic).

[16] Contrary to s 16 of the Crimes Act 1958 (Vic).

[17] Contrary to s 17 of the Crimes Act 1958 (Vic).

[18] Contrary to s 77 of the Crimes Act 1958 (Vic).

[19] Contrary to s 18 of the Crimes Act 1958 (Vic).

[21] At the oral hearing, defence counsel pointed out, correctly, that it is not clear which of the alleged assaults upon Ms Isles in the laundry is charged as which offence (i.e., the offence charged in Charge 12 or the one charged in Charge 13) or whether the alleged offence in Charge 13 is an alternative to the alleged offence in Charge 12. This should be clarified by the Director prior to trial.

[22] At the oral hearing, the prosecutor indicated that it was not proposed to lead the evidence of the wrist injury at trial.

[23] The prosecution submissions are dated 8 July 2022, and were filed after the defence submissions, which are dated 26 April 2022.

[29] Depositions, pp 55-66 & Exhibit 1 (which includes photographs of messages on Ms Isles' phone).

[30] Depositions, pp 56, 78, 555, 557 & 558.

[32] Reference was made in the written submissions to Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 362[61]-[62] (per Kiefel CJ, Bell, Keane and Edelman JJ).

[33] And, in certain aspects, that appears to be Mr Villella's defence in this case.

[34] Reference was made in the written submissions to Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 355-356[39] (per Kiefel CJ, Bell, Keane and Edelman JJ); and R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at 87[58]-88[60] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[35] I note that, in his statement of 28 May 2021, Mr Zervas alleges an occasion on which Mr Villella "smash[ed] ... things he had [brought] in his ute for [Ms Isles]" (Depositions, p 70). Further, he alleges an occasion when Mr Villella "grabbed [Ms Isles] by her hair dragging her to near his garage door [and] ripped the phone out of [her] hand and smashed it on his driveway", and threatened to "smash [his] face" (Depositions, pp 74-75). These alleged events do not appear to feature in Ms Isles' statements. In any event, none of this evidence is referred to in the tendency notice. Nor was this evidence relied on in the Director's submissions in support of any argument relating to tendency.

[36] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.

[37] Reference was made to R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at 89[62] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[38] Reliance was placed on DPP v Pearson (a pseudonym) [2021] VSCA 336, especially at [81] & [93] (per T Forrest and Walker JJA). That matter concerned allegations of sexual offending against the applicant's three nieces aged 12, 14 and 15 years.

[39] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 376[106] (per Gageler J) & 379[117] (per Nettle J). While Gageler J and Nettle J were each in dissent on the appeal, that was for reasons unconnected with the point just made.

[40] See Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 365[70] (per Gageler J), referring to Saks and Spellman, The Psychological Foundations of Evidence Law (2016) at 151.

[41] Section 474.17(1)(b) requires proof that the accused used the carriage service "in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive".

[42] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 391[153]-392[154] (per Nettle J) (citations omitted).

[43] See Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 365[71] (per Gageler J) (citations omitted). While his Honour was in dissent, these points are not controversial.

[44] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 365-366[72] (per Gageler J) (citations omitted). Again, while his Honour was in dissent, these remarks remain valid.

[45] See, for example, the definition of "family violence" in s 5 of the Family Violence Protection Act 2008 (Vic).

[46] R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at 88-89[61] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[48] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 349[17] (per Kiefel CJ, Bell, Keane and Edelman JJ). Notwithstanding the point I made earlier about aggravated burglary and intent to assault, some of the ellipses I have inserted in the quoted passage reflect my deletion of their Honours' references to a tendency to have "a particular state of mind", since this case, as reflected in the tendency notice and as argued by the Director, is principally about an asserted tendency "to act in a particular way".

[49] Again, compare, e.g., Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at 391-392[153] (per Nettle J).

[50] See Division 2 of Part 4 of the Jury Directions Act 2015 (Vic).

[51] A feat that, some will remember, Basil Fawlty failed to achieve, and excruciatingly so.