NSWNSWCCA

Taylor v R

[2020] NSWCCA 355

Court of Criminal Appeal (NSW)|2020-11-11|Before: Bell P, Walton J, Beech-Jones J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-11-11

Before

Bell P, Walton J, Beech-Jones J

Catchwords

[2015] NSWCCA 288 Armstrong v R [2017] NSWCCA 323 BP v R
R v BP [2010] NSWCCA 303 DAO v The Queen (2011) 81 NSWLR 568
[2011] NSWCCA 63 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 DSJ v The Queen
NS v The Queen (2012) 84 NSWLR 758

Source

Original judgment source is linked above.

Catchwords

[2015] NSWCCA 288 Armstrong v R [2017] NSWCCA 323 BP v RR v BP [2010] NSWCCA 303 DAO v The Queen (2011) 81 NSWLR 568[2011] NSWCCA 63 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 DSJ v The QueenNS v The Queen (2012) 84 NSWLR 758[2012] NSWCCA 9 El-Haddad v R (2015) 88 NSWLR 93[2015] NSWCCA 10 Elomar v RHasan v RCheikho v RCheikho v RJamal v R (2014) 300 FLR 323[2014] NSWCCA 303 Gardiner v R (2006) 162 A Crim R 233[2006] NSWCCA 190 Hughes v R (2017) 263 CLR 338[2017] HCA 20 Ibrahim v Pham [2007] NSWCA 215 IMM v R (2016) 257 CLR 300[2016] HCA 14 KJR v R (2007) 173 A Crim R 226[2007] NSWCCA 165 M v The Queen (1994) 181 CLR 487[1994] HCA 63 McPhillamy v R (2018) 92 ALJR 1045[2018] HCA 52 O'Keefe v The Queen [2009] NSWCCA 121 Papakosmas v The Queen (1999) 196 CLR 297

Judgment (28 paragraphs)

[1]

IMM v R (2016) 257 CLR 300; [2016] HCA 14 KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52 O'Keefe v The Queen [2009] NSWCCA 121 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 R v Allen [2020] NSWCCA 173 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v BD (1997) 94 A Crim R 131 R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 R v Cook [2004] NSWCCA 52 R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 R v Joiner (2002) 133 A Crim R 90; [2002] NSWCCA 354 R v Knight [2015] NSWCCA 34 R v Lockyer (1996) 89 A Crim R 457 R v Milton [2004] NSWCCA 195 R v MM [2014] NSWCCA 144 R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 R v SK [2011] NSWCCA 292 R v Smith (2008) 190 A Crim R 8; [2008] NSWCCA 247 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 RHB v The Queen [2011] VSCA 295 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Semaan v R (2013) 39 VR 503; [2013] VSCA 13 Sokolowskyj v R [2014] NSWCCA 55 SSN v R [2012] NSWCCA 163 Townsend v Townsend [2001] NSWCA 136 Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171; (1995) 140 ALR 701 Texts Cited: R Weinstein, J Anderson, J Marychurch, J Roy, Uniform Evidence Law in Australia (3rd ed, 2020) Category: Principal judgment Parties: Edward Charles Taylor (Applicant) Crown (Respondent) Representation: Counsel:

[2]

P Segal (Applicant) B Hatfield (Respondent)

[3]

Brock Partners Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/100527 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 05 November 2019 Before: Bright DCJ File Number(s): 2018/100527

[4]

[This headnote is not to be read as part of the judgment] Mr Edward Charles Taylor (the applicant) was charged on indictment with a number of domestic violence offences against the complainant with whom he had previously been in an on-again off-again relationship. Following a trial in the District Court of New South Wales, a jury found the applicant not guilty on three of the counts, but guilty on six of the counts relating to conduct in March 2018. For the purpose of the appeal proceedings, the relevant counts on which the applicant was found guilty included one count of breaking and entering the dwelling house of the complainant and committing a serious indictable offence therein, namely, intimidating the complainant with the intention of causing her to fear physical or mental harm, knowing that persons were inside (Count 4), intimidating the complainant with the intention of causing her to fear physical or mental harm (Count 6), one count of having in his possession an implement of housebreaking without lawful excuse (Count 8) and one count of entering the dwelling house of the complainant with the intent to commit a serious indictable offence therein, namely, intimidating the complainant with the intention of causing her to fear physical or mental harm, knowing that persons were inside (Count 9). The Crown case in respect of Count 9 involved a proposition that the applicant gained external access to the balcony of the complainant's apartment, which was on the fourth floor of a five storey apartment block. This was despite the trial judge's observation that it remained "inexplicable" how the applicant would have been able to gain external access to the fourth floor balcony. Further, in support of Counts 1-10, the Crown relied upon tendency evidence, being a statement of agreed facts signed by the applicant in 2010, which was used for the purpose of sentencing the applicant in relation to a charge of recklessly occasioning grievous bodily harm to his ex-wife in 2008. The statement of agreed facts included a statement that there had been a history of domestic violence throughout the marriage, detailed circumstances where the applicant was verbally aggressive and intimidating towards his ex-wife, detailed a violent assault where the applicant struck his ex-wife and fractured three of her ribs, and described a detain for advantage count against his ex-wife. The applicant was sentenced to an aggregate term of imprisonment of 1 year and 10 months in respect of four of the counts (including Counts 4 and 9), with a non-parole period of 1 year. With respect to two of the counts (including Count 6), a community correction order was imposed for a period of 2 years. The principal issues raised on appeal were:

[5]

The Court allowed the appeal in part but (by majority) (Beech-Jones J, Walton J agreeing) otherwise dismissed the appeal, holding:

[6]

As to ground 1:

The Court unanimously held that it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. No evidence was led by the Crown to suggest how the applicant could have achieved such a feat. The Crown's submission that the only available and rational inference was that the applicant used a step ladder to climb the exterior of the building was not convincing, as there were a number of other available and rational inferences to explain how the applicant accessed the balcony: [53]-[70] (Bell P); [135] (Walton J); [139] (Beech-Jones J). M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, considered.

[7]

Per Walton and Beech-Jones JJ: 2. The tendency evidence relied upon had "significant probative value". Although there was a period of over nine years that had elapsed between the applicant's attack on his ex-wife and the events the subject of the charges against him, that period of time must be considered in the context of the alleged tendency, which was that he was violent or threatening towards women with whom he had an intimate relationship. There was no evidence that the applicant formed any other relationship between the breakdown of his marriage and the commencement of his relationship with the complainant: [136] (Walton J); [140]-[155] (Beech-Jones J). Hughes v R (2017) 263 CLR 338; [2017] HCA 20, applied; McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52, distinguished. 3. The probative value of the tendency evidence substantially outweighed its prejudicial effect. The admission of the evidence was not likely to lead to the jury having some form of adverse emotional response, and the trial judge's direction specifically warned them in that regard: [136] (Walton J); [156]-[157] (Beech-Jones J).

[8]

Per Bell P (dissenting): 4. The tendency evidence relied upon in the present case was not of "significant probative value". This was because, inter alia, the conduct that the tendency evidence established occurred in very different circumstances to the conduct the subject of the charges, there was a significant passage of time between the events the subject of the tendency evidence and the matters charged, and the relative generality with which the tendency was formulated did not "strongly support" the proof of a fact that made up the offence charged: [123]-[127]. DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63; Hughes v R (2017) 263 CLR 338; [2017] HCA 20; IMM v R (2016) 257 CLR 300; [2016] HCA 14; McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52; R v Bauer (2018) 266 CLR 56; [2018] HCA 40; R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306; R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209, considered and applied. R v Joiner (2002) 133 A Crim R 90; [2002] NSWCCA 354, distinguished. 5. Even if the tendency evidence could be described as "probative", its probative value did not substantially outweigh its prejudicial effect, as required under s 101(2) of the Evidence Act 1995 (NSW). There was a particular danger of prejudice in the likely emotional response by the jury to the degree of violence inflicted by the applicant on his former wife, even allowing for the ameliorative effect of the trial judge's directions to the jury: [128]-[130]. 6. Consideration and summary by Bell P of the relevant principles with respect to tendency evidence: [122].

[9]

Judgment

BELL P: Mr Edward Charles Taylor (the applicant) was charged on indictment with the following offences: "1 between the 1st day of January 2018 and the 5th day of January 2018, at The Entrance in the State of New South Wales, did assault Beverly WALTERS. S 61 Crimes Act 1900 Law part code 64782 2 on or about the 27th day of March 2018, at The Entrance in the State of New South Wales, did assault Beverly WALTERS thereby occasioning actual bodily harm to her. S 59(1) Crimes Act 1900 Law part code 64780 3 on or about the 27th day of March 2018, at The Entrance in the State of New South Wales, did intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 4 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did attempt to break and enter the dwelling house of Beverly WALTERS at [XX], The Entrance, and commit a serious indictable offence therein, namely, intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm, knowing persons were inside. S 112(2) Crimes Act 1900 Law part code 39106 S 344A(1) Crimes Act 1900 Law part code 1101 5 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did intentionally damage property, namely a door handle the property of New South Wales Land and Housing Corporation. S 195(1)(a) Crimes Act 1900 Law part code 821 6 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70755 7 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did damage property, namely a door, the property of New South Wales Land and Housing Corporation. S 195(1)(a) Crimes Act 1900 Law part code 817 8 on the 30th day of March 2018, at The Entrance in the State of New South Wales, did without lawful excuse have in his possession an implement of housebreaking. S 114(1)(b) Crimes Act 1900 Law part code 610 9 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did enter the dwelling house of Beverly WALTERS situate[d] at [XX], The Entrance with intent to commit a serious indictable offence therein, namely intimidate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm, knowing there were persons inside. S 111(2) Crimes Act 1900 Law part code 560 10 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did intimate Beverly WALTERS with the intention of causing Beverly WALTERS to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 11 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did intimidate Nicole LAWRENCE with the intention of causing Nicole LAWRENCE to fear physical or mental harm. S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70755 12 on the 31st day of March 2018, at The Entrance in the State of New South Wales, did resist Luke JAY, a Police officer in the execution of his duty. S 58 Crimes Act 1900 Law part code 239". The applicant pleaded not guilty to each of these charges.

[10]

The appeal

The applicant sought an extension of time in which to appeal his conviction and an extension of time to seek leave to appeal his sentence. As it happened, the applicant did not press his application for leave to appeal against sentence.
Other than on the basis that an extension of time would be futile because it was contended the challenges to conviction would not succeed, the application for an extension of time was not opposed. The time to appeal conviction should be extended.

[11]

The Crown case at trial

The applicant and the complainant were in an on-again off-again relationship for about two years prior to the alleged offences. The applicant would stay at the complainant's two bedroom apartment at The Entrance for a few nights each week. The complainant had moved into the apartment in about October 2017.
The charges against the applicant related to four separate incidents of alleged domestic violence against the complainant in the period January to March 2018. He was found by the jury not guilty of a charge of common assault on the complainant between 1 and 5 January 2018, not guilty of assault occasioning actual bodily harm on the complainant on 27 March 2018 and not guilty of intimidating intending to cause fear of physical or mental harm against the complainant on 27 March 2018. The counts on which the applicant was convicted related to conduct on 30 and 31 March 2018.
The complainant's apartment was on the fourth floor of a five storey apartment block. The means of access to that apartment were central to the first ground of appeal for reasons which will be explained. Two external images of the complainant's apartment form Annexures A (Annexure A (621548, pdf)) and B (Annexure B (866056, pdf)) to this judgment, being Exhibits 4 and 3 respectively from the trial.
A diagram of the apartment showed that there was a single internal entrance to the apartment from a corridor on the fourth floor of the apartment and that there was internal access to the balcony from doors from the main bedroom, a spare second bedroom and the lounge area. The fourth floor was accessible via a lift and a set of internal fire stairs.
The entrance to the apartment building was by means of an electronic blue "fob".
The evidence was that there were CCTV cameras on the ground floor entry to the apartment building, on the lift entrances and two cameras on level 4. The evidence of Senior Constable Sayer was that approximately 40 hours of footage was downloaded from which compilations of footage was made for each of 30 March and 31 March 2018 with two video files created. An editing process was involved as must have been the case given the multiplicity of cameras. Precisely how this was done was not explained in evidence.

[12]

Counts 4, 6 and 8

Counts 4, 6 and 8 related to an incident in the early hours of the morning of 30 March 2018. The complainant was at home in her apartment with her friend, Ms Lawrence.
According to their evidence, the complainant and Ms Lawrence went to bed at about 1am, after placing a refrigerator at the front door of the apartment, as the lock on the front door did not work properly. Shortly after, they heard banging and pushing at the door, and they both sat behind the fridge and braced themselves to hold the door shut. The banging stopped after a short while.
The complainant looked out over her balcony and saw a male she believed to be the applicant carrying a bag over his shoulder. A few minutes later, the banging started on the front door again. The police were called, the banging stopped, and police arrived a few minutes later, and noticed that the front handle on the door was missing. Police identified themselves and the complainant let them in. Police checked the entire complex and searched the surrounding areas but could not locate any persons.
CCTV footage confirmed that the applicant approached the door of the complainant's unit, and broke the door handle off before leaving.

[13]

Counts 9 and 11

Counts 9 and 11 related to an incident at the apartment of the complainant in the early hours of the morning on 31 March 2018. The complainant was again at home with Ms Lawrence. As put to the jury, the applicant gained external access to the balcony of the apartment in the early hours of the morning, and on being seen by the applicant and Ms Lawrence, picked up a chair on the balcony and threatened to smash through the glass door and attack Ms Lawrence, whereupon Ms Lawrence and the complainant rapidly left the apartment and went directly to the police station where they gave statements to the police to apparently similar effect.
When the complainant and Ms Lawrence came to give their evidence in chief, however, it did not accord at all with what was contained in their statements about what had occurred in the early morning of 31 March 2018 and the Crown successfully applied to have both declared unfavourable witnesses within the meaning of s 38 of the Evidence Act 1995 (NSW).
In relation to the complainant, her oral examination in chief produced the following evidence in relation to the circumstances relating to what became Count 9: "Q. Do you know what time it was that you got in for the night, if I can use that expression? A. No. I'd been high for nearly a week. I don't ‑ things like that, you lose sense of time completely. Q. Do you know why it was that Nicole was there that night? A. I'd asked her to look after me because I thought I was going to have a psychotic episode. Q. You asked her to come to your place? A. That's right. I've had a breakdown and been hospitalised before from psychosis. Q. At some point prior to the Friday night, did you see Mr Taylor during the day, or not? A. No, I'd spoken to him and said that I'd left the fob and the key ‑ the things in the letterbox for him. Q. You spoke to him between the two nights, during the day, at some point; is that right? A. The day. Q. And you said to him that you left the fob in your letterbox, do you mean? A. Yeah, there was no longer a key because I had to have the door handle changed. Q. When did you have to have the door handle changed? A. When? Q. Yes? A. It was a long weekend. I'm not sure whether they came that weekend or not. Q. By the time you went to bed on ‑ or retired for the night on the Friday night, was there a new‑‑ A. I didn't go to bed and retire. I'd ‑ like I said, I was on ice. You don't sleep. Q. Let's say 10 o'clock on Friday night, as a marker in time, was there a front door handle on your unit at that point in time? A. I ‑ I would imagine so, yes. Q. And was it a different lock on the front door from the night before, or was it the same lock? A. It would have been the same lock, but I had the fridge pushed up, because my ‑ people had my ID, my keys, and they knew exactly what apartment I lived in as my car had been stolen with all my items, so I put the fridge up for security. People have actually just walked into your apartment ‑ other tenants that live in the units. Q. When you spoke to Teddy during the day, was there any arrangement to meet up with him, or not? A. Yes. Q. When were you going to meet up? A. I just said, 'Come home.' Q. You said, 'come home'? A. I just said, 'Come home. I'll leave the fob in the letterbox for you.' Q. And what about a front door key? A. There was no front door key, because they had ‑ I needed a replacement door handle."

[14]

It was not in contest that the man referred to in this table was the applicant. What the entry for 2.41am shows is that the applicant was not in the apartment at that time and that he must have found his way on to the balcony at some point between 2.41am and 3.36am. A still image of the 2.41am footage showed the applicant with what appears to be a two-step step-ladder no more than 1 metre high (the applicant described it as "two foot") entering the fire stairs from the basement car park.
The applicant accepted that he was present at the apartment block on the night of 30 March and the morning of 31 March 2018. In the course of his evidence-in-chief, he said that had been asleep in the spare bedroom and briefly left the apartment during that period, having woken up, to retrieve a "little … only about a 2 foot" stepladder from his ute in order to "put the smoke detectors" back in the spare room in the apartment. He maintained this account of events during cross-examination by the Crown.
Of most significance for present purposes is that aspect of the Crown's case to the effect that the applicant accessed the balcony externally, that is to say, not by the front door to the apartment. It would appear that the Crown was necessarily drawn to this theory of the applicant's presence on the balcony by the evidence of Ms Lawrence and the complainant, at least as provided in their police statements, that the front door to the apartment was blocked by a fridge or a table and that they were awake and in the living room when they heard and saw the applicant on the balcony.

[15]

Count 12

Count 12 involved the attendance of Senior Constable Moore, Senior Constable Brien and Senior Constable Jay at the address of the complainant on 31 March 2018. Upon arrival, Senior Constable Jay saw the applicant running and jumping a fence at the front of the unit complex. Senior Constable Moore and Senior Constable Jay exited the police vehicle, when the latter spotted the applicant running down a ramp at the front of the complex. Senior Constable Jay yelled at the applicant to "Stop". Senior Constable Jay engaged in a short foot pursuit with the applicant, before catching him and tackling him to the ground. The applicant began to struggle with Senior Constable Jay, and continued to pull away as he was directed to stop resisting. The applicant continued to struggle and resist, before two other officers, Constable Ballico and Senior Constable Greentree, ran over to assist, and the applicant was handcuffed.

[16]

Grounds of appeal

The applicant appeals against his conviction on the following two grounds: "GROUND ONE In relation to Count 9, the verdict is unreasonable because there is no direct evidence, or proper inference from direct evidence, that persons were in the premises at the time of entry, hence that element of the offence is not capable of proof. GROUND TWO Evidence in relation to conduct of the applicant in 2008 ought not to have been admitted as tendency evidence."
Appeal ground 1 relates to Count 9 only, and it would appear that appeal ground 2 seeks to challenge the applicant's conviction on Counts 4, 6 and 9 only, or at the very least principally as the tendency evidence which is the subject of that ground does not relate to the charge of resisting arrest. A third ground of appeal relating to sentence was not pursued.

[17]

Appeal ground one

In relation to Count 9, the relevant offence for which the applicant was found guilty was pursuant to s 111(2) of the Crimes Act 1900 (NSW). Section 111(1)-(2) provides that: "Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years."
Section 105A of the Crimes Act outlines "circumstances of aggravation". Sub-section 105A(1)(f) provides that there will be a circumstance of aggravation where "the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed".
Section 115A of the Crimes Act provides for alternative verdicts, with sub-section (1) outlining that: "(1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly."
The prosecution did not rely on a statutory alternative verdict to the charge, absent the aggravating feature, which was available pursuant to s 115A of the Crimes Act. The trial transcript reveals that the Crown Prosecutor asked the trial judge not to address the jury on the statutory alternative on the basis that the Crown "didn't open on it". The applicant thus submitted that the Crown "nailed its colours to the mast", to stand or fall on the elements as they were charged in Count 9. The Crown on appeal did not shy away from this fact.
It was also accepted by the Crown that its case at trial was that the applicant could only have got on to the balcony externally rather than as a result of having first entered the apartment through the front door. As the CCTV footage suggests, that access must have occurred at some point after 2.41am and before 3.36am, when the complainant and Ms Lawrence left the apartment. The "external access" case was tied to the element of aggravation contained in the charge.

[18]

Consideration - appeal ground one

The principles applicable to a ground alleging an unreasonable verdict were enunciated by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, and were recently confirmed by the High Court in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [43]-[45], where the Court outlined that: "[43] At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt. (Footnote omitted; emphasis in original.) [45] As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M". (emphasis in original, footnotes omitted).
In my opinion, it was not reasonably open to the jury to have been satisfied beyond reasonable doubt that the applicant had accessed the balcony externally. The jury must have had a doubt about this aspect of the case which was of central significance to the Crown's case at trial.
No evidence was led by the Crown to suggest how the applicant, a man of 59 years of age and 5 foot 6 inches in height, could have achieved such a feat. Senior Constable Moore, the officer in charge, was asked the following questions in relation to how the applicant might have accessed the balcony: "Q. It was, was it said to you in so many words by either Ms Walters or Ms Lawrence that they were startled by the appearance of the accused on the balcony? A. Yes. Q. Did you have any discussion with any of your colleagues about how the accused might have got onto level 4? A. Many. Q. You can see there, exhibit 4, there's what looks like a drain pipe? A. Yes. Q. It's nowhere near the balcony in the reach of a normal human being? A. No. No. Q. You agree with that? A. Yes, I agree, sorry, yes. Q. Similarly, given that the configuration is the same at the front as the back as to those units, there's nothing on the outside of the units like a ladder or external fire escape that would get one up to level 4? A. No. The fire escape, those on exhibit 4 where those small rectangular windows are, that's actually the fire escape."

[19]

Appeal ground two

The second ground of appeal relates to the admission of tendency evidence in the course of the trial.
There had been a pre-trial argument on 14 March 2019 before Wilson SC DCJ relating to proposed tendency evidence referred to in a Tendency Notice dated 25 February 2019.
Two categories of tendency evidence were permitted. The second ground of appeal only related to the tendency evidence which supported the tendency described by the trial judge in her summing up to the jury as that the applicant had a "tendency to threaten and be physically violent towards women with whom he has an intimate relationship".
The relevant tendency evidence comprised the 2010 statement of agreed facts used in the applicant's sentencing in 2010 in relation to conduct in 2008 and to which reference has already been made at [10] above. The statement of agreed facts was read on to the record at the trial by a police officer in the course of giving her evidence. Given the nature of the second ground of appeal, it is necessary to set out the statement in its entirety: "The complainant in this matter is Yvonne Taylor. At the time of the offences she was 46 years old and had been married to the offender for the past 30 years. They have two adult children, Renee and Glenn. Mrs Taylor and the offender had resided at [XX], Bandi Bandi for the past 11 years prior to the commission of these offences. There had been a history of domestic violence throughout the marriage. At about 8 am on Saturday 25 October 2008, Mrs Taylor and the offender drove to Port Macquarie for a dog show. Both the offender and Mrs Taylor breed dogs. Once they had finished showing their dogs the offender and Mrs Taylor were sitting and having a drink and talking about the dogs. Mrs Taylor disagreed with the offender and he became really angry so Mrs Taylor kept quiet. After about ten minutes she asked the offender if she had said anything wrong. The offender told her 'Just get your gear and shut your mouth'. They both got in the car. Mrs Taylor to rang Steve Vogt, a family friend and employee whom they had both known, to come and pick her up from Slippery Rock. Mr Vogt agreed to do that. He had been staying at their house while Mrs Taylor and the offender attended the dog show. The offender dropped Mrs Taylor off at Telegraph Point and he said to her 'Get out and fuck off'. The offender drove off towards Stoney Park. Mrs Taylor started walking west along Pembroke Road and had walked for about 4 or 5 kilometres when Mr Vogt picked her up. Mrs Taylor got into the car and told Mr Vogt what had happened. Mr Vogt drove Mrs Taylor home and they arrived about 5pm. Mrs Taylor started packing some clothes and Mr Vogt waited outside. About half an hour later the offender arrived. Mrs Taylor heard the car screaming up the driveway through the gate, coming to a sliding halt. The offender screamed to Mr Vogt 'Fuck off and stay out of me and my wife's business'. He looked very angry. Mrs Taylor sat down on the lounge putting her hands to the side of her head. Mrs Taylor knew what was coming and she was really scared. She tried to get herself in a foetal position to make herself small. Seq 5 - Reckless grievous bodily harm: A few seconds later she heard the offender rush through the open wooden door. The offender started punching Mrs Taylor to the back of her head. Mrs Taylor remembers about 3 good blows with the last one knocking her off the lounge to the floor. The back of Mrs Taylor's head was in immediate pain and it felt like it was going to explode with pain and dizziness. When Mrs Taylor fell to the floor, she fell onto her right side into a foetal position. The offender stood over her and then with a closed fist pulled his arm right back before punching Mrs Taylor as hard as he could to her left rib cage. Mrs Taylor felt and heard her ribs break - it was like a sharp cracking sound. Mrs Taylor felt excruciating pain and she could hardly breathe. Mrs Taylor started yelling out 'I need help, I need to go the hospital'. The assault lasted about two minutes. Mr Vogt then picked up Mrs Taylor and took her out to his car. Seq 8 - Detain for advantage (to obtain money) Mrs Taylor and Mr Vogt only managed to get about 1 kilometre from the house when the offender came roaring up behind them in the Land Cruiser. He flew up the embankment beside them and came to a halt in front of them, so that Mr Vogt had to stop the car. The offender came up to Mrs Taylor's window and started screaming at her to get out of the car. He started screaming 'Where is it ? Where is it ?'. Mrs Taylor knew that he was referring to the $2,000.00 that she had got from selling her dogs. She said to the offender 'I haven't got it'. The offender told Mrs Taylor to give him the money or he would break her dogs neck. The dog was sitting in the car. Mrs Taylor was worried that the offender was going to hurt her dog so she showed the offender that her handbag had nothing in it and said 'It's in the wardrobe'. The offender kept saying 'Get out of the car now or I am going to break your jaw'. The offender opened her door and Mrs Taylor went with the accused because she knew if she did not she would get hurt. She was really afraid. Mrs Taylor tried to get out or the car slowly, and she got down on her hands and knees because she was in so much pain. The offender kept screaming at her 'Get up and get in the car !'. Mrs Taylor slowly walked to the Landcruiser and got in the front passenger seat. The offender yelled something to Mr Vogt. The offender drove the car and at times he would accelerate. As he was jerking the car, Mrs Taylor felt immediate pain to her ribs. The offender said to her 'I could put you through hell right now if I wanted to'. Mrs Taylor felt really scared about what the offender would do next. When they both got back to the house, the offender went straight to the wardrobe in the bedroom. Mrs Taylor got out of the car and walked to the lounge room. The offender found the money and said 'OK, you wanna get to the hospital, get back in the car and I'll take you back to Steve and he can take you in'. Mrs Taylor got back in the car and the offender drove her to where Mr Vogt was. The offender said 'If he's gone, tough luck coz I'm not taking you in'. Mr Vogt was not there so the offender drove back to the house. NB : the period of time for the kidnapping incorporates the time from the offender driving back to the house and getting the money and ending when the complainant gets back in the car to be taken to Mr Vogt. Mrs Taylor went inside the house and sat in the loungeroom for the rest of the night. She was in so much pain that she could not lie down. The offender did not speak to her that night. The offender went to bed after a short while. About a week later, without the knowledge of the offender, Mrs Taylor packed some clothes and spare money into a bag and hid the bag in a drawer in the lounge room. After the offender went to sleep, Mrs Taylor rang Mr Vogt and asked him to pick her up on the track. Mr Vogt drove Mrs Taylor to Port Macquarie, dropping her off at a motel. Mrs Taylor called her daughter, Renee, the next morning and told her what had happened. Mrs Taylor's daughter then came and picked her up arriving at the motel about 5pm on Tuesday 4th November 2008. Mrs Taylor and her daughter then travelled north. On Tuesday 11 November 2008, Mrs Taylor was examined by Dr Lakemond. On examination Mrs Taylor was tender over the left rib. There were no bruises visible. X rays of the chest reported three acute fractures of the 7th, 8th and 9th ribs, with possible fractures of the 5th and 6th ribs. On 9 November 2008 Police in Bundaberg Queensland arrested the offender. The offender was extradited from Maryborough in Queensland on 24 November 2009. The accused declined to participate in an ERISP in relation to these matters. He was then charged."

[20]

Relevant statutory provisions

Section 97(1) of the Evidence Act deals with the tendency rule. It provides as follows: "(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".
At the time of the pre-trial ruling of Wilson DCJ as to the tendency evidence, and at the time of the trial, s 101(2) of the Evidence Act provided that: "(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." (emphasis added).
Section 101(2) thus imposed an additional hurdle on the prosecution in a criminal trial seeking to introduce tendency evidence. Such evidence was required to: (i) be relevant to a fact in issue in the sense of being rationally capable of affecting the assessment of the existence of a fact in issue; (ii) be of "significant probative value", that is to say something more than merely relevant; and (iii) not only outweigh the danger of prejudice to the accused but to do so substantially.
Section 101(2) was amended on 10 June 2020 by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the 2020 amendments) as follows: "Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant." The word "substantially" was omitted from the subsection and the expression "the danger of unfair prejudice" was introduced to replace the phrase "prejudicial effect".

[21]

The nature of tendency evidence

In Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124], Simpson J (as her Honour then was) explained tendency evidence as follows: "Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion."
In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 300 FLR 323; [2014] NSWCCA 303 at [359]-[360] (Elomar), the Court (comprised of Bathurst CJ, Hoeben CJ at CL and Simpson J, as her Honour then was) outlined that: "Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. … Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."
In Hughes v R (2017) 263 CLR 338; [2017] HCA 20 at [70] (Hughes), Gageler J (in dissent as to the result, although the majority judgment did not address this issue) observed as to the problem to which the tendency rule is directed, that: "Tendency evidence - be it of character or reputation or of conduct other than an occasion in issue in a proceeding - is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to 'postdict' the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue." (footnote omitted).

[22]

Four High Court decisions

There have been four significant decisions of the High Court concerning tendency evidence in the last four years, the focus of which has principally been on the meaning of "significant probative value" in s 97(1) of the Evidence Act, namely, IMM v R (2016) 257 CLR 300; [2016] HCA 14 (IMM); Hughes; Bauer; and McPhillamy v R (2018) 92 ALJR 1045; [2018] HCA 52 (McPhillamy). In addition, there has been a plethora of decisions in relation to tendency evidence in this Court and other intermediate appellate courts in the last decade.
IMM saw the quashing of convictions by five of the seven justices of the High Court on the basis that the tendency evidence admitted at the trial was not of significant probative value in respect of one charge of sexual intercourse with a child under 16 years of age and three counts of indecent dealing with the same child, the accused's step grand-daughter. The tendency evidence that was led was to the effect that the accused had previously run his hand up his step grand-daughter's leg whilst she was giving him a back massage. The tendency that this evidence was said to have demonstrated was that the accused had a sexual interest in his step grand-daughter and was prepared to act upon it.
French CJ, Kiefel, Bell and Keane JJ (the plurality) together with Gageler J held that the tendency evidence should not have been admitted on the basis that it did not have significant probative value. Key to this conclusion was that the tendency evidence was that of the complainant herself in a case where its probative effect would have been to boost the credibility of her own account of the facts constituting the alleged offences. In this context, the plurality observed at [62] that in cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.
IMM also resolved a clash between intermediate appellate decisions of the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. At [39], the plurality held that this was to be determined by the trial judge on the assumption that the jury will accept the evidence. Their Honours also held in the same paragraph that "[t]his assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible" or reliable. At [44], their Honours said: "The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest."

[23]

Summary of principles

Apart from the principles from the four recent High Court decisions already noted, a review of the authorities, coupled with my own observations in respect of the interrelationship between ss 97 and 101(2) of the Evidence Act, supports the following propositions: (i) the starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice: see, for example, Elomar at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139]; (ii) if the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That definition mirrors the definition of "relevant evidence" in s 55 of the Evidence Act; (iii) if the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as "significant" within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM, that the evidence must have a probative value extending beyond the mere fact that it is relevant; (iv) the assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest: see IMM (see at [98]-[99] above); (v) evidence will be of "significant probative value" if it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: (see Hughes at [16]; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-176; (1995) 140 ALR 701; R v Lockyer (1996) 89 A Crim R 457 at 459 (Lockyer)) or if it has more than mere relevance but something less than a "substantial" degree of relevance: see Lockyer at 459; DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [58] and [60]; (vi) it is not necessary in order for the evidence to have significant probative value that it be strikingly similar or even closely similar conduct: see, for example, Hughes at [38]-[39]; Ford at [38]; PWD at [79]; or that it have an underlying unity with the charges: see Saoud at [39]; (vii) whilst in order to qualify as tendency evidence, the conduct sought to be adduced does not necessarily need to bear a striking or even close similarity with the offences charged (see proposition (vi) above), the closer the degree of similarity, the more significant and more probative the evidence is likely to be: see BP at [108]; DAO at [180]; AC v R [2016] NSWCCA 21 at [58]; O'Keefe v The Queen [2009] NSWCCA 121 at [60] (O'Keefe). This is because the specificity of the tendency directly informs the strength of the inferential mode of reasoning: see El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [72] (El-Haddad); Hughes at [93]-[94]; (viii) nevertheless, any degree of similarity need not reach the level required for coincidence evidence: see KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165 at [51]-[54]; (ix) similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself such that, even if the conduct itself is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of "significant probative value": see RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [141]-[143] (RH); (x) conversely, the level of generality of the evidence may affect the significance of its probative value: see Townsend v Townsend [2001] NSWCA 136 at [78]; Ibrahim v Pham [2007] NSWCA 215 at [264]; El-Haddad at [70]; Ford at [53]; DAO at [179]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [85] (Aravena); O'Keefe at [60]; Sokolowskyj v R [2014] NSWCCA 55 at [40] (Sokolowskyj); SSN v R [2012] NSWCCA 163 at [38] (SSN). It has been held, for example, that evidence that the accused had sexual contact with two boys in their early teens was not, by itself, sufficient to be of "significant probative value" in a case where the accused was charged with 6 counts of homosexual intercourse with a male aged between 10 and 18 years of age: see R v Milton [2004] NSWCCA 195 at [31] (Milton); see also R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 at [50] (Fletcher); (xi) tendency evidence obtains no more probative value than it otherwise bears simply by adding general factors to describe the tendency that have by themselves little significance: see O'Keefe at [62]; (xii) whether or not the evidence sought to be tendered in support of the asserted tendency is "significant" does not in itself involve an assessment of the degree or extent to which the evidence is "significant", so long as it bears that characterisation, however the degree of significance is relevant for the s 101(2) weighing exercise; (xiii) a concession that evidence sought to be adduced in support of the asserted tendency is of significant probative value therefore does not relieve the Court of the need to consider the degree of significance which that evidence has; (xiv) the degree of significance of the evidence sought to be adduced as tendency evidence may be affected by: (a) the number of times the tendency asserted has manifested itself in the evidence sought to be adduced: see, for example, RHB v The Queen [2011] VSCA 295 at [20]. Thus, a "single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue": see Aravena at [89], cf. Ford at [45], where Campbell JA outlined that "it is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions"; see also Knight at [11]; (b) the similarity of the circumstances in which the prior conduct occurred: see, for example, Milton at [31]; Fletcher at [57] and [68]; and R v Smith (2008) 190 A Crim R 8; [2008] NSWCCA 247 at [17]; (c) the distance in time between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced: see, for example, McPhillamy at [30]-[32]; R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164 at [64] (Watkins) (where it was held that pleas of guilty to charges of fraud in relation to conduct 10-15 years prior to trial for similar offences was too great a distance, in circumstances where the Court acknowledged that people do reform and that Watkins' plea to the earlier offences might have thrown doubt on the continuation of the tendency 15 years (after); Semaan v R (2013) 39 VR 503; [2013] VSCA 13 at [41]; Anthony v Morton [2018] NSWSC 1884 at [336]; and Aravena at [89]. (d) however, despite large temporal gaps, other linking factors between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced may nevertheless result in such evidence have significant probative value: see, for example, R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 at [36]; R v SK [2011] NSWCCA 292 at [27] (SK); RH at [115]-[117]. One example of this is where an accused admits that the tendency disclosed by earlier conduct continued over time, thereby rendering a temporal gap largely immaterial: see RDT at [36] and [41]; (e) conversely, the absence of any evidence as to the manifestation of the tendency in a lengthy intervening period will undermine the likely probative value of the historic tendency evidence: see, for example, Watkins at [36]; (f) the nature of the proceedings and the particular offences charged in a criminal case: see, for example, Hughes at [16]; (g) the identity of the witnesses providing the tendency evidence and any relationship they may have to a complainant: see, for example, SSN at [51]; (h) the issue to which the evidence is relevant: see, for example, Hughes at [42]. For example, a tendency expressed in general or even generic terms of a characteristic with no particularly unusual factors will be of little probative value when it is sought to be used to establish the identity of an offender, in the case of disputed identity: see O'Keefe at [65]; (i) the existence of other evidence relied upon by the Crown to prove the underlying charges, and the relationship of that evidence to the tendency evidence sought to be adduced: see, for example, O'Keefe at [59]; (xv) 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: see, for example, Hughes at [41]; (xvi) tendency evidence need not directly establish all elements of an offence charged: see Armstrong v R [2017] NSWCCA 323 at [20] (Armstrong); (xvii) prior to the 2020 amendments to s 101(2), the significant probative value of the evidence had to substantially outweigh the danger of prejudice. "Substantially" is a stronger concept than "significant" as used in the expression "significant probative value" in s 97(1) of the Evidence Act. It is emphatic and places a high hurdle in the way of the admission of evidence that is not only relevant but significantly so; (xviii) following the 2020 amendments to s 101(2) of the Evidence Act, tendency evidence cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. The amendments to s 101(2) of the Evidence Act have been regarded as reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence: see R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at 528-531; (xix) the assessment required under s 101(2) involves the trial judge making an evaluative judgment; it is not a discretionary exercise: see, for example, R v Cook [2004] NSWCCA 52 at [38]; and Ford at [63]. (xx) the nature of tendency evidence is inherently prejudicial (see SK at [34]; and RH at [169]), and may have a powerful subconscious effect on a jury: see Hughes at [71]-[74]; (xxi) there is an inevitability that prior illegal acts, especially perhaps where the illegal acts relate to alleged sexual acts or acts of domestic violence, will be prejudicial in terms of their impact: see, for example, Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 at [80]; (xxii) "unfair prejudice" in s 101(2) as amended refers to harm to the interests of the accused that is unfair, because there is a real risk that the evidence will be misused by the jury in some unfair way, for example, by providing some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: see Ford at [56]; R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at 325; [1999] HCA 37 at [91]; R v Suteski (2002) 56 NSWLR 182 at 199; [2002] NSWCCA 509 at [116]; SSN at [37]; and R v MM [2014] NSWCCA 144 at [43]; (xxiii) unfair prejudice might arise from: (a) the nature or quality of the conduct the subject of the tendency evidence; (b) whether or not it has been established or the subject of admissions; (c) where it involves a plethora of factors that might give rise to a confusion or distraction; (d) whether it is corroborated; (e) an underestimation by the jury of the number of persons who share the tendency: see Hughes at [17]; (f) where there has been no past conviction or admission as to the past conduct, the need for an accused to answer uncharged conduct potentially stretching back over many years: see Hughes at [17]; and (g) a jury's emotional or irrational response to particular tendency evidence; or (h) any combination of the above (non-exhaustive) factors; (xxiv) when considering whether the probative value of tendency evidence outweighs its prejudicial effect, the Court is entitled to take into account that juries are to be properly directed as to the use to which such evidence is to be put: see PWD at [90]; RH at [176]; and Armstrong at [24]; (xxv) acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits, and judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice: see, for example, R v Allen [2020] NSWCCA 173 at [111], [115] and [152]-[160] (Allen); (xxvi) there will be cases (of which McPhillamy is an illustration) where directions to a jury, even coupled with an assumption that they will be conscientiously followed, will be incapable of overcoming or ameliorating prejudice: see, for example, Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [113], [128] and [129]; R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 at [83]; and Sokolowskyj at [48]; (xxvii) "[a]n assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s 101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence": see Sokolowskyj at [56]; see also Allen at [154]. This may, for example, be because of the nature or extent of the prejudice which the evidence carries or the subconscious effect on the jury, notwithstanding directions; (xxviii) the corollary of the proposition confirmed in IMM, namely that the probative value of the tendency evidence is to be assessed on the basis that the jury will accept it at its highest, is that, to the extent that that evidence carried prejudice to an accused, that prejudice is to be assessed on the same basis, namely that the jury will accept the evidence at its highest. In other words, the impact of any prejudice is not to be reduced by reason of the fact that the jury might not accept the evidence as credible or reliable.

[24]

Consideration

Obviously enough, the applicant's challenge to the admission of the tendency evidence in the current case falls to be considered by reference to the Evidence Act as it was prior to the 2020 amendments. Of particular significance in this context was the requirement that any significant probative value of the evidence sought to be tendered substantially outweigh any prejudicial effect.
Bauer requires this Court to reach its own view as to the significance of the probative value of the tendency evidence: see at [110] above.
In my opinion, and taking account of the principles summarised above, the tendency evidence relied upon in the present case, whilst not irrelevant, was not of "significant probative value" for the following reasons: (i) the conduct it established occurred in very different circumstances to the conduct the subject of the charges: it was conduct that was directed to the applicant's wife of 30 years; involved elements of alcohol (drinking after the dog show), the presence of another man, Mr Vogt, who appeared to be close to the applicant's former wife, a dispute over money (the $2,000 cash from the sale of dogs) and physical violence involving the breaking of at least 3 ribs and repeated blows to the head: see [74] above. (Interpolating here, the degree of violence in the 2008 conduct involved, and the charge of reckless grievous bodily harm to which the applicant pleaded guilty, would inevitably have been highly prejudicial in the eyes of the jury); (ii) no physical violence to anybody's person was involved in counts 4, 6, 8 or 9; (iii) the passage of time between the events the subject of the tendency evidence and the matters charged - a period of about 10 years - coupled with the lack of any evidence of violence towards women in the intervening years or an admission by the applicant of a continuing tendency to threaten and exhibit violence towards women with whom he was in a relationship; and (iv) as such, it was only evidence of violence towards one other woman. To make this observation is not, of course, to condone violence towards women in any way: such conduct is at all times abhorrent. It is, however, to focus on the purpose of the tendency rule and the requirement that tendency evidence have an elevated level of probative value before one even reaches the weighing exercise required in a criminal trial by s 101(2), at which stage the probative value must outweigh (and substantially outweigh, prior to the 2020 amendments) the prejudicial effect; (v) the relative generality with which the tendency was formulated. I do not consider that it could be described as "strongly support[ing]" the proof of a fact that makes up the offence charge, cf. Hughes at [41].

[25]

Orders

It follows from the above that the appeal from the applicant's conviction in respect of Counts 4, 6, 8 and 9 should be allowed and those convictions set aside. The appeal did not extend to the applicant's convictions in respect of Counts 11 and 12, in respect of which indicative sentences were given of four months each.
It would, in these circumstances, be necessary to resentence the applicant taking into account that he has already served the non-parole period of his sentence and has already served 2 months of a 12 month parole period, and where the period served exceeds the indicative periods of sentence in respect of both Counts 11 and 12, not allowing for any cumulation.
As, however, both Walton and Beech-Jones JJ disagree with my conclusion in relation to the ground of appeal relating to the admission and use of tendency evidence, I agree that, in those circumstances and on the basis that a majority of the Court would dismiss the appeal on that ground, it is appropriate that the orders proposed by Beech-Jones J be made.
WALTON J: It is unnecessary to traverse the facts and circumstances of this matter as they are set out in the judgment of Bell P.
In respect to ground 1, I agree with Bell P. After my own careful consideration of the evidence, I am also not satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt in respect to count 9. Ground 1 should be upheld.
In respect to ground 2, I respectfully agree with Beech-Jones J in relation to the admissibility of the tendency evidence. For the reasons enunciated by his Honour, I am satisfied that the tendency evidence admitted had significant probative value. The evidence supports not only that the applicant possessed the tendency as at the date of the subject charges, that is, March 2018, but also that he acted upon it (see McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [27]). Furthermore, given the specific terms of the direction given by the trial judge, I also do not accept that the admission of the tendency evidence was likely to lead to the jury having some form of adverse emotional response that would distract them from considering the evidence in the manner in which they were directed.
Although leave to raise this ground should be granted, ground 2 should be otherwise dismissed.

[26]

Ground 2: Tendency Evidence

Ground 2 of the appeal concerns the admission of tendency evidence. The jury was directed that it could use that evidence in relation to counts 1 to 10 on the indictment but not counts 11 and 12. The jury acquitted the applicant on counts 1 to 3 but convicted him on counts 4, 6, 8, 9, 11 and 12. (Counts 5 and 10 were alternative counts which either did not arise or were not pursued). The applicant's submissions on this ground do not expressly state that it only concerns the applicant's conviction on counts 4, 6, 8 and 9. However, I will treat the submissions as so confined although my conclusion would apply equally to any attack on the conviction on counts 11 and 12. In that regard, I respectfully disagree with Bell P's conclusion in relation to the admissibility of the tendency evidence. My reasons for this are as follows.
In a case such as this, an assessment of whether the evidence sought to be led as tendency evidence has significant probative value involves a "consideration of two interrelated but separate matters", namely, the "extent to which the evidence supports the [alleged] tendency" and the "extent to which the tendency makes more likely the facts making up the charged offence" (Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41]; "Hughes"). A conclusion that such evidence has a high degree of probative value is likely "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" ([id]).
In this case, the tendency identified in the trial judge's summing up was that the applicant had a tendency "to be physically violent towards women with whom he is in an intimate relationship", although the trial judge also referred to a tendency "to be threatening and physically violent towards women with whom he had an intimate relationship" (see [78]). Insofar as one formulation refers to threatening behaviour and the other does not, no complaint was made by the applicant. Otherwise, nothing turns on the difference between whether the tendency related to someone with whom the applicant was "in" a relationship or someone with whom he "had" a relationship, given that the charges the subject of the appeal relate to what was, on any view, a breakdown of his relationship with Ms Walters, even if temporary.

[27]

Relief

It follows from my agreement with Bell P in relation to ground 1 that I consider that an acquittal should be entered on count 9 of the indictment. However, I consider that the applicant's challenge to his conviction on counts 4, 6 and 8 (and the remaining counts) should be dismissed.
The applicant originally sought leave to appeal from his aggregate sentence of imprisonment on counts 4, 9, 11 and 12 but the application was not pressed. In light of his acquittal on count 9, the issue arises as to what should be done with that sentence.
The total of the aggregate sentence imposed for counts 4, 9, 11 and 12 was 22 months imprisonment commencing 5 October 2019 and expiring 4 August 2020, with a non‑parole period of 12 months. Thus, although the applicant's non-parole period has expired, he is still subject to parole conditions. The indicative sentences for each of counts 4, 9, 11 and 12 was 12 months, 12 months, 4 months and 4 months imprisonment respectively. The indicative sentence for count 9 was clearly a large contributor to the overall aggregate sentence that was imposed. On any view the aggregate sentence cannot stand in light of the applicant's acquittal on count 9. That said, having reviewed the sentence judge's remarks on sentence I agree with the indicative sentences for counts 4, 11 and 12.
Overall, I consider it appropriate to impose a fresh aggregate sentence of 14 months which expired on 5 December 2020. The effect of such a sentence is that the applicant would no longer subject to any parole conditions.
Accordingly, the orders that I propose are: 1. The applicant be granted leave to appeal against his conviction on count 9 of the indictment presented against him on 4 June 2019, being an offence under s 111(2) of the Crimes Act 1900, that the appeal be allowed, the conviction set aside and an acquittal be entered; 2. The applicant be otherwise granted leave to appeal against his convictions but the appeal be dismissed; 3. That the aggregate sentence of imprisonment imposed on the applicant on 5 November 2019 be set aside, and in lieu thereof the applicant be sentenced to aggregate term of imprisonment for 14 months commencing 5 October 2019 and expiring on 4 December 2020, with a non-parole period of 10 months; 4. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence that make up the aggregate sentence are: 1. Count 4 - 12 months imprisonment; 2. Count 11 - 4 months imprisonment; 3. Count 12 - 4 months imprisonment.

[28]

Amendments 23 December 2020 - At [88], the last sentence has been reformatted. At 122, in second sentence, "... concept that ..." has been changed to "... concept than ..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020

Taylor v R

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