In the circumstances of this case, particularly as the accused has not been charged with any offence against [DE] the Court must bear in mind that there is a real risk that a jury might use the evidence of [DE] as positive proof of the accused's guilt on the twenty-three on which he is indicted.
57 With respect, I do not understand the import of this passage of his Honour's reasoning and it seems to me that it reveals possible confusion in his Honour's mind about the significance of tendency evidence. The simple fact is that tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion. In the present case, the Crown wishes to adduce the evidence in order to argue that because the respondent acted in a particular way towards DE, he must have acted in the same way towards the complainant. The jury is entitled to use tendency evidence as "positive proof" of the accused's guilt where it is admitted after a consideration of s 101(2). But the use to be made of the evidence has nothing to do with whether the accused has been charged with any offence arising from the conduct that is the subject of the evidence.
58 Finally, his Honour in his judgment on the admissibility of the evidence failed, in my opinion, to give adequate reasons for his determination that the probative value of the evidence was outweighed by its prejudicial effect. It is, with respect, not enough to repeat, as some kind of mantra, words taken from s 101(2) without explaining how it is that the evidence is so prejudicial that it ought to be rejected in the exercise of discretion once it is accepted that the evidence is admissible under s 97(1). I am quite unable from an examination of the whole of his Honour's reasons to find that any proper evaluation of the evidence based upon the weighing of its probative value as against its prejudicial effect took place.
59 I am of the opinion, therefore, that the Crown's appeal should succeed in respect of the determination by his Honour under s 100(1) not to dispense with the notice requirement. During the course of the hearing the Court raised with the parities possible orders that the Court might make if it were minded to allow the appeal. The Crown indicated that it would say nothing in opposition to an order dispensing with notice on condition that the trial be adjourned and that the Crown pay the costs of the adjournment including the respondent's costs of the proceedings before Judge Puckeridge. Counsel for the respondent also indicated that he did not want to be heard in respect of such an order being made if the Court determined, contrary to his submissions, to allow the appeal.
60 I do not believe that the Court should indicate how the discretion arising under s 101(2) should be exercised if, and when, the matters comes back before the District Court for hearing as to the admissibility of the evidence of DE. Of course on that occasion the material before the trial judge might be different to that which was before Judge Puckeridge, particularly if DE is called to give evidence on a Basha inquiry and is cross-examined on behalf of the respondent. Further, the nature of the discretion under s 101(2) is such that reasonable minds might differ on how it should be exercised in any particular case: Milton at [33]. It could not be said that it is not open for a trial judge to exercise the discretion under s 101(2) to reject the evidence, provided of course that the discretion is exercised in a principled way and adequate reasons are given.
61 Judge Puckeridge for reasons that he did not disclose refused to consider the admissibility of parts of DE's statement on a basis other than as tendency evidence. Of course such a decision was within his Honour's discretion but I have difficulty in understanding why such a ruling should be postponed until after the trial commences. Part of the evidence that DE would give is clearly admissible as proving the relationship between the complainant and the respondent, if that is a matter in issue at the trial. Mr Sutherland candidly informed the Court that he would have difficulty arguing the contrary. I do not understand how any evidence that might be given by the complainant or any other witness in the Crown case could affect the admissibility of that part of the evidence. For example, the failure of the complainant to give evidence of those facts could not deprive the evidence of its probative value or otherwise lead to the rejection of the evidence. Even if the complainant were to deny that any such incident occurred, it would not follow that DE could not give evidence of those events in accordance with his statement. On the material that is available to this Court, I cannot see any basis upon which that evidence might be rejected in the exercise of discretion and I do not see how that situation could change during the hearing of evidence in the Crown case.
62 Before concluding this judgment, I cannot avoid censuring the Crown for the conduct of this prosecution, not just in the District Court but also in proceedings in the Local Court prior to committal. Had it been the case that the Crown needed leave to bring this appeal, for my part it would have been hard pressed to convince the Court that leave should be granted. This is another instance of this Court being called upon to intervene at the behest of the Crown at the eleventh hour with a trial about to commence or underway in circumstances where the Crown has to a very large part been the author of the problem that it seeks to redress. It is unfair to the trial judge, the accused and other litigants before this Court that the Crown should appeal against a ruling in circumstances of urgency because of its own failure to properly prepare the matter for trial well before the hearing date. I do not understand how this matter was allowed to reach the stage where a ruling on such potentially significant evidence in a trial of such serious charges had to be made on the day listed for the commencement of the trial.