Criminal Code (Tas), ss 125A, 170A(2), s 311(2), 326(3), 361A.

Evidence Act 2001 (Tas), ss 97, 101(2).

Hughes v The Queen [2017] HCA 20, 263 CLR 338; IMM v The Queen [2016] HCA 14, 257 CLR 200; Nguyen v The Queen [2020] HCA 23, 380 ALR 193; R v Bauer [2018] HCA 40, 266 CLR 56; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; Tasmania v L [2013] TASSC 47, referred to.

Criminal Law - Procedure - Information, indictment or presentment - Joinder - Of counts - By statute - Same facts or series of offences of same or similar character - Two counts of persistent family violence against different partners properly joined in same indictment.

Judgment Number: [2021] TASSC 31

1. The accused is charged on the same indictment with two counts of persistent family violence, contrary to s 170A(2) of the Criminal Code. He has pleaded not guilty to both charges. Each charge is alleged to have been committed against a different person.
2. The accused has applied for an order that the charges be tried separately, pursuant to the provisions of s 326(3) of the Code. The application is based on the following submissions:

(a) That the indictment is defective or erroneous because the two charges should not have been joined in the same indictment having regard to the provisions of s 311(2). This submission requires consideration of whether the two charges "are, or form part of, a series of crimes of the same or a similar character".

(b) That the indictment should be severed as a matter of discretion, pursuant to the provisions of s 326(3). In particular, it is argued that the accused will be prejudiced or embarrassed in his defence because the evidence on each charge is not admissible with respect to the other. A separate question, which is related to this issue, is whether the evidence of uncharged acts against other women is admissible in respect of either or both counts. The relevance of this evidence, and the basis of the cross-admissibility of the evidence on each count, is asserted by the prosecution to be in proof of tendency. The defence objects to its admission on that basis. Hence, the determination of this application will involve ruling on the admissibility of the said evidence.

1. The trial on each count commenced on the entry of the plea of not guilty. It is accepted by both parties that these questions can be determined by me pursuant to the provisions of s 361A of the Code. The parties agree that, for the purposes of that determination, I can have regard to the Crown papers, and neither party has sought to call any oral evidence on voir dire.

1. As this is a ruling within the trial, I do not intend to canvas the allegations or the evidence in detail. However, I will briefly summarise the prosecution case, in order to provide context for the ruling.
2. The crime of persistent family violence requires proof of an unlawful family violence act committed in relation to the accused's spouse or partner, on at least three occasions. It is not necessary to prove the dates on which, or the exact circumstances in which, any of the unlawful family violence acts were committed, although they must all have been committed within the period specified in the indictment. As with a crime under s 125A, this crime is intended to facilitate proof of and culpability for a course of criminal conduct committed over a period of time. It redresses problems of proof and pleading which arise in cases in which the course of conduct has involved several, perhaps numerous, unlawful acts of various descriptions, each of which may not be able to be recalled with sufficient particularisation by the complainant.
3. Count 1 alleges that the crime was committed between 1 May 2008 and 31 January 2012 against the first complainant. The accused and the first complainant commenced living together in December 2006, a few months after meeting, and were married on 1 January 2009. They separated in 2012. They have two children, born 25 May 2009 and 13 January 2011. The first complainant's evidence will describe controlling and emotionally abusive behaviour by the accused on a continuous basis throughout the relationship. The prosecution has particularised six unlawful family violence acts which comprise the crime. These are three acts of assault, one act of rape and two acts of assault on a pregnant woman. Count 2 alleges the crime of persistent family violence committed against the second complainant. The accused and the second complainant commenced a relationship soon after the end of the accused's relationship with the first complainant. Their relationship involved living together in a significant relationship between March 2012 and September 2015. The crime against the second complainant is alleged to have been committed between 1 September 2012 and 16 September 2015. The prosecution has particularised 16 unlawful family violence acts throughout this period. They are 11 acts of assault, one act of rape, three acts of assault on a pregnant woman, and one act of unlawfully injuring property. The second complainant's evidence will describe ongoing behaviour on the part of the accused which has many of the abusive and controlling features described by the first complainant. The prosecution also asserts that the family violence acts relied upon were committed in similar circumstances and exhibit similar features to the violence perpetrated against the first complainant.

1. The basic premise of s 311(2) is that an indictment shall charge one crime only. However, charges may be joined in the same indictment "if those charges arise substantially out of the same facts or closely related facts or are, or form part of, a series of crimes of the same or a similar character". There is no suggestion in this case that the charges arise out of the same or closely related facts. Accordingly, the question is whether they form part of "a series of crimes of the same or a similar character".
2. Defence counsel relies on a comment by Pearce J in a ruling in Tasmania v L [2013] TASSC 47 at [28] where his Honour, correctly in my view, said:

"For crimes to be a range of crimes of a similar character there must be some nexus between them, that is elements of similarity which, in the circumstances of the case, enable them to be described as a series."

"The necessary nexus between offences is established if the evidence of one is admissible on the trial of another; Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 562." [Other references not included.]

1. Accordingly, if the evidence in respect of each charge is cross-admissible, as asserted by the prosecution, then the crimes are properly joined in the indictment. For reasons which follow, I am satisfied that the evidence on each count is admissible with respect to the other, and accordingly, the requisite nexus is established.
2. In any event, irrespective of the evidentiary issue, I am satisfied that the crimes answer the description of part of "a series of crimes of the same or a similar character". They both allege the same crime, constituted in large part by unlawful family violence acts of the same type and nature. The crimes are alleged to have been committed consecutively, with the course of conduct in count 2 alleged to have commenced soon after the cessation of the course of conduct alleged in count 1. Most importantly, there are significant similarities in the conduct alleged in respect of each crime. Both allege a pattern of criminal conduct committed by the accused against a woman with whom he was in a family relationship, which arise out of his approach to the relationship and culminate in repeated violence. The violence in respect of each case has a number of similar features, including sexual violence and assaults perpetrated while the complainant in question was pregnant. There are other similarities alleged by the prosecution that I will refer to shortly.
3. Accordingly, I am satisfied that the crimes are properly joined in the same indictment under s 311(2). The indictment will not be severed for this reason.

1. I will consider firstly the question of the cross-admissibility of the evidence relating to each count in respect of the other. It is this issue which will determine whether the indictment should be severed pursuant to s 326(3). The prejudice or embarrassment relied upon by the defence will only arise if the evidence of one count is not admissible in respect of the other. The question of the admissibility of the uncharged acts on other women does not directly affect this question, although the resolution of that issue will depend upon the same considerations, ie whether the said evidence is admissible on a tendency basis.
2. The tendency notice given by the prosecution describes the tendency of the accused which the prosecution seeks to prove as follows:

(a) To exercise control and dominion over females with whom he forms relationships.

(b) To act violently in their presence when he loses control and becomes frustrated with them, or aspects of the relationship.

(c) To act violently towards his female partners when he loses control or becomes frustrated with them, or aspects of the relationship.

(d) To commit particular acts of violence towards his female partners, including punching, kicking, choking, pushing, grabbing, and using sexual intercourse to overpower or subdue them.

1. Section 97 of the Evidence Act 2001 provides that evidence of a tendency that a person has or had is not admissible to prove that the person has that tendency to act in a particular way unless the court thinks that the evidence will, either by itself or having regard to other evidence, have significant probative value. Section 101 provides that the tendency evidence cannot be used against a defendant in a criminal proceeding unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
2. Accordingly, to determine whether the evidence is admissible pursuant to these provisions, it is necessary for me to evaluate the probative value of the evidence. In doing so, I proceed on the basis that the possible use to which the evidence might be put is to be taken at its highest. It should also be assumed that the evidence would be accepted by the jury: see IMM v The Queen [2016] HCA 14, 257 CLR 200.
3. The probative value of tendency evidence was explained by the plurality of the High Court in Hughes v The Queen [2017] HCA 20, 263 CLR 338 at [16]:

"The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue." [Footnotes omitted.]

1. The plurality went on to note that in a criminal proceeding "the facts in issue ... are those which establish the elements of the offence". In this case, the prosecution asserts that in respect of each charge, the tendency evidence is relevant to prove the commission of the unlawful family violence acts. It will do so, according to the prosecution's submission, by making it more likely that on each occasion relevant to the count in question, the accused has acted in the way alleged by the prosecution. Further, the prosecution asserts that the evidence will be relevant to rebut any suggestion by the accused that an act of violence was committed in lawful self-defence.
2. The plurality also discussed the process of assessment of probative value at [41]:

"The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."

1. Accordingly, the assessment of probative value involves a two-stage process. In this case, I am satisfied that the evidence of each complainant in her description of the course of conduct involving a number of unlawful family violence acts, and the circumstances in which those acts were committed, will strongly support proof of the tendency asserted by the prosecution. The evidence of each asserts repeated acts over a lengthy period of time, and demonstrates the features relevant to the asserted tendency. The evidence of each woman would, if accepted, clearly suggest a pattern of behaviour which can only reasonably be described as a tendency to act in a particular way. If accepted by the jury, as I must assume will be the case, such evidence will clearly and rationally affect to a significant extent the assessment of the probability of the existence of the tendency.
2. The next question is the extent to which the existence of that tendency makes more likely in respect of each count, the existence of the facts making up that count, in particular whether the accused has committed the alleged unlawful family violence acts. In respect of this question, in R v Bauer [2018] HCA 40, 266 CLR 56, the High Court, in a joint judgment, further explained the probative value arising from tendency evidence in a multiple complainant case. At [58] the court said:

"In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true." [Footnote omitted.]

1. Although these comments were made in the context of a case concerned with sexual offences, they are apposite to the case before me. Counsels' submissions largely focussed on this consideration. Mr Stevens submits that there is no feature of the tendency established by the evidence of one count which would substantially increase the probability that the accused has committed the other crime. Mr Stevens argues that there is no special feature linking the two cases, that the commission of violent acts in a domestic setting is extremely common in the community and, in any event, heavily dependent on and related to the particular circumstances of the relationship in question. The prosecution asserts that the conduct in each case demonstrates a definite and identifiable pattern of behaviour which is similar, if not replicated, in each case. The prosecution submits that this similarity underpins the requisite probative value.
2. I agree with the prosecution's submission. I disagree with Mr Stevens' submission in relation to the common occurrence of acts of family violence. Whilst it is certainly the experience of the Court that the commission of such crimes occurs frequently, such conduct is not the common experience of ordinary members of the community. In this respect, the conduct is analogous to the features relevant to sexual interest in children which was determinative in the case of Hughes. Further, and in any event, what is alleged in respect of each count goes well beyond isolated cases of family violence responsive only to the particular circumstances in which the parties found themselves. In each case, the evidence establishes a clear pattern of wider behaviour in the relationship with particular features which indicate an individualistic and identifiable approach to family relationships. The unlawful family violence acts in each case appear to occur either as part of or the immediate extension of this pattern of conduct. In making these assessments, it must be borne in mind that the use of the evidence must be taken at its highest for the prosecution. Ultimately, the question for me is the extent to which the evidence will affect the assessment of the existence of the facts in issue, that is the commission of the alleged family violence acts. In my view, the clear identification of these patterns of conduct and their similarity in each case leads to the conclusion that the evidence will strongly support that assessment.
3. As already noted, I do not intend, nor do I consider it appropriate, for me to go into significant detail about the particular evidence in question. However, in a general sense, I note some of the features of the tendency of the accused demonstrated by the evidence, which link the evidence of each woman and contribute to the probative value of the tendency evidence:
   • The evidence of each supports a general tendency to control the behaviour and conduct of the complainant.
   • The evidence of each suggests a high sex drive which leads to particular and similar expectations of the partner for the purpose of sexual gratification.
   • The evidence of each suggests abrupt changes of mood and attitude, linked to both of the foregoing.
   • In each case, the repetition of violent conduct.
   • In each case, the violent conduct is linked to anger and frustration arising from the accused's expectations of his partner, and his perception, evidenced by accusation, that she was not meeting those expectations.
   • A similarity in the acts of violence and the accused's subsequent reaction to violent conduct. For example, in each case, the accused is alleged to have raped the complainant, and to have assaulted her when she was pregnant, and by force which includes choking, punches to the head, kicking her and pushing her to the ground or into furniture. The accused's reaction in each case to these acts of considerable violence is alleged to have been to apologise within the context of an expectation that the relationship would continue.
4. It follows that I am satisfied that the evidence of each complainant has significant probative value in respect of proof of the other crime.
5. It is then necessary to consider whether the evidence in each case satisfies the requirements of s 101. In this regard, there is no doubt that the evidence has the capacity to cause prejudice to the accused of the type referred to in that section. The nature of such prejudice was described by the plurality in Hughes as follows at [17]:

"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 have a particular state of mind, or to act in a particular way, may not have had that state of mind, or 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 have that state of mind or 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. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."

1. It is clear that each aspect of prejudice identified in this passage is potentially applicable in this case. In particular, there is considerable potential for a jury to experience an emotional response to the evidence. Further, the High Court's comment concerning the requirement of the accused to answer "a raft of uncharged conduct" is applicable. Although the accused will also suffer prejudice of this type in the trial of each count in any event because of the rolled-up nature of the crime and the fact that the alleged courses of conduct extended over a period of years, and arose within a matrix of varying circumstances, this difficulty will be compounded by the introduction of the tendency evidence on a cross-admissible basis.
2. However, the determinative question under s 101(2) is whether the probative value will substantially outweigh this prejudicial effect. In my view, in respect of each count, it will do so. I think that the evidence possesses a high degree of probative value. Further, the prejudicial effect of the evidence can be ameliorated to a considerable degree by appropriate directions. I accept the submissions of Ms Mason SC that the Court is very experienced in directing juries in such circumstances, usually in the context of sexual cases, in which the prejudice is likely to be even greater because of the subject matter, and the fact that the alleged victims in many cases are, or were at the time of the alleged offending, children. I think that all of the aspects of the prejudice which will be engaged by this evidence can be satisfactorily dealt with by directions, at least to the extent where my evaluation of the balancing exercise concludes that the evidence complies with the requirements of s 101.
3. Accordingly, I will admit the evidence on one count in respect of the other, on a tendency basis. It follows that there is no basis to sever the indictment, and this application is refused.

The evidence of other uncharged acts by other witnesses

1. The prosecution intends to adduce tendency evidence from two other women, both former partners of the accused. The first commenced a relationship with the accused when she was approximately 14 years of age and in years 10 and 11 at school. At that time, the accused was living in Queensland. During the course of the relationship, the accused was living in a granny flat at the back of the witness's mother's house. The witness was living with her father but stayed with the accused each weekend. The relationship subsisted between 2000 and 2002.
2. The witness will give evidence of features of the relationship which support the alleged tendency. They include controlling conduct and a number of aspects of family violence, including serious physical and sexual assault.
3. The second witness commenced a relationship at or soon after the end of the relationship with the first witness. The witness cohabited with the accused for approximately three years between 2002 and 2005. The witness again gives evidence of a pattern of controlling and violent behaviour. Although the witness does not assert any acts of overt sexual violence, she does assert demanding behaviour in relation to sexual matters and one incident which demonstrates an assumption of sexual control.
4. In my view, the evidence of each witness has substantial probative value in respect of the proof of each count on the indictment. In each case, I am of the view that the evidence strongly supports the existence of the asserted tendency and will affect in a significant way the assessment of the probability of the existence of the facts in issue. I am satisfied of this despite the age of the allegations. I note that the relationships occur consecutively. The second relationship ended approximately one year before the commencement of the relationship relevant to count 1. There is therefore a sequential connection between these relationships, and those relevant to the charges on the indictment. Further, they both involve significant relationships that extended over a period of years. Taken together with the evidence on each count, they strongly support proof of a longstanding tendency to behave within a relationship in the manner particularised by the prosecution, and which I have already concluded will have significant probative value in the proof of each count.
5. In relation to the question of prejudice, Mr Stevens submits that there are further aspects of prejudice arising from these witnesses, in addition to those already discussed. Firstly, he submits that because each witness will give evidence in respect of uncharged acts, it will not be necessary for the jury to be satisfied of the truth of the evidence of that witness beyond reasonable doubt before it can be used as tendency evidence. He distinguishes this from the evidence of each complainant relevant to the indictment.
6. I assume that Mr Stevens' submission relates to comments by the High Court in Bauer. At [86] the court said:

Contrary to the practice which has operated for some time in New South Wales trial judges in that State should not ordinarily direct a jury that, before they may act on evidence on uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt."

1. However, there are two matters to observe in relation to that comment. Firstly, the earlier parts of the paragraph make it very clear that the High Court was concerned only with directions "ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it". That is not the situation in this case. In this case, the evidence of uncharged acts will be adduced from a witness other than the complainant. I think that this difference is significant and clearly distinguishes this case from the case being dealt with by the High Court in Bauer. Further the court went on, after the above comment, to say:

"Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt."

1. This is a clear reference to the principle emerging from Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 (which was footnoted as an appropriate authority by the High Court in respect of this comment). There is no question that tendency evidence is a form of circumstantial evidence, and hence the principle in Shepherd is applicable. Accordingly, if I conclude that significant prejudice will arise unless the jury is directed that it may only use the tendency evidence if satisfied of its accuracy beyond reasonable doubt, or that it is otherwise in the interests of justice and a fair trial that such a direction be given, then it is open for me to give that direction.
2. Mr Stevens also submitted that prejudice will arise because the accused has not had the opportunity to respond to the allegations of these witnesses relating to uncharged acts, during a police interview. The argument is that there will therefore not be an exculpatory version available on the prosecution case, which may mean that in order to deny or respond to this evidence, he will be forced into the witness box. I do not accept this submission. Even if the women concerned or either of them had made a complaint to police and there was a consequent investigation, there is no obligation on police to interview a person suspected of criminal conduct. Even if such an interview takes place, there is no obligation on the prosecution to tender an out of court statement which is completely exculpatory. This can be contrasted to the case of an interview which contains a mixture of exculpatory and inculpatory statements, Nguyen v The Queen [2020] HCA 23, 380 ALR 193. Accordingly, the accused cannot claim any legitimate expectation to the availability of such evidence adduced in the prosecution case, and it is difficult to see therefore how any prejudice arises from the absence of such evidence. In any event, it is not unusual for tendency evidence comprised of uncharged acts to be admitted in circumstances where those acts have not been the subject of earlier complaint or a police investigation or interview.
3. However, I do accept the related point that the admission of this evidence will cause prejudice of the type described in Hughes, in the sense that it will compound the difficulties arising from the accused having to answer "a raft of uncharged conduct stretching back, perhaps, over many years". I accept that this creates prejudice and may necessitate an appropriate warning or direction to the jury. However, it is not unusual that a jury will need to assess evidence of this nature, and an appropriate direction is likely to substantially obviate such prejudice.
4. Finally, Mr Stevens argues that the prejudice which may potentially arise from the jury's emotional response to the evidence generally is likely to be compounded by the fact that the witnesses were very young females at the time of the relevant relationships. This is a reasonable observation.
5. Ultimately, however, the question posed by s 101 requires an evaluative judgment as to whether the probative value of the evidence substantially outweighs its prejudicial effect. For the reasons already given, I consider that the probative value of the evidence is high, and the prejudice can be ameliorated to a significant degree by appropriate directions. I am satisfied that the said test has been met. Accordingly, I would also admit this evidence on a tendency basis, in respect of each count.