The King v Dixon

The King v Dixon (No 1) [2023] NTSC 100

• [1] The accused is charged with one count of unlawfully causing serious harm to EC.
• [2] By a Tendency Notice ("the Notice") dated 13 November 2023 the Crown gave notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ("ENULA") that it intends to adduce tendency evidence at the trial of the accused. On the hearing of the voir dire, the Crown sought and was granted leave to amend the Notice. The Notice originally referred to the accused having a tendency to have a violent disposition toward women with whom he is in a domestic relationship; the amended Notice alleged a tendency to have a violent disposition toward women in a domestic violence context.
• [3] The amended Notice states that the proposed tendency evidence relates to the following fact in issue: whether the accused assaulted the complainant (his sister-in-law EC) by kicking her in the face when she was on the ground and in circumstances where the accused was intoxicated and he had not been provoked by her.
• [4] The tendencies sought to be proved by adducing the tendency evidence are the tendency of the accused to:

(a) have a particular state of mind, namely:

(i) to have a violent disposition towards women within a domestic violence context;

(ii) to have the disposition at (i) when intoxicated; and

(iii) to have the disposition at (i) when unprovoked; and

(b) act in a particular way, namely:

(i) to assault women within a domestic violence context;

(ii) to assault women in the category of (i) above focusing the application of force towards the head.

• [5] The accused opposes the application to lead tendency evidence.
• [6] The Crown intends to prove the acts relied on as tendency evidence by tendering the agreed facts in relation to two charges of aggravated assault to which the accused pleaded guilty, one in 2018 and one in 2019. The victim in each case was the accused's domestic partner.
• [7] In summary those agreed facts were as follows:

(a) In September 2018, the accused and his partner, YH, were drinking and had become intoxicated. At about midnight, the accused picked up a metal pole and hit YH on the head with it. Then he poured water all over her. The accused gave no reason for the attack.

(b) In February 2019, the defendant and YH were drinking and the accused became intoxicated. Sometime in the late afternoon, after they left the drinking location, the accused became angry and jealous of the victim and punched her in the head about three times. The victim became scared and ran towards the shops near Taylor Street, crying. The accused continued to "jealous" her and swear at her, accusing her of having relations with his brothers and uncles.

The victim flagged down the Night Patrol vehicle which was passing. The Night Patrol stopped in the middle of the road to help the victim. As it did so, the accused caught up with the victim. He stabbed her in the head with a sharp object three times. The victim fell to the ground and the accused stabbed her twice more and kicked her several times in the side.

A Night Patrol officer put the victim in the patrol vehicle and began to provide first aid. At this point the victim had bruising to both sides of her face and forehead and lacerations to the back of her head which were bleeding.

While this was happening, the accused called the victim a cunt and a slut and said she needed to be hurt.

The victim got out of the patrol vehicle and the accused attacked her again. He got a sharp stick and stabbed her in the back of the head at least two times. The Night Patrol officer pushed him away.

While this was happening, the other Night Patrol officer phoned the police. The accused saw this and said, "What you calling police for? Don't do that. Don't do that to me." Then he said, "Fuck off!" and walked away.

The victim suffered multiple abrasions to her head, cuts to her forehead, swollen and bruised left eye, laceration to the right eyebrow and superficial abrasion to the left hand.

• [8] The Crown contends that the facts of the two offences to which the accused pleaded guilty in the past prove the existence of the above tendencies, and that having that state of mind and the preparedness to act on it in the way demonstrated by the agreed facts in the two offences makes it more likely that the accused had that tendency on 4 November 2022 and acted on it when intoxicated by encouraging his cousin brother Simon Gibson to assault EC and joining in the assault himself by kicking EC in the face.
• [9] The Crown relied on the similarity between the statement which the accused agreed making in 2019 that YH needed to be hurt and the statement which he is alleged to have made in the present case encouraging his brother to hit EC harder and asking, "How is she supposed to feel pain from that?"

• [10] The accused contended that the tendency evidence sought to be adduced does not "strongly support" the existence of the alleged tendency. Counsel submitted that violence towards women while intoxicated, and aiming that violence towards the head were ubiquitous features of domestic violence offences.
• [11] Defence counsel contended further that these were different kinds of offences against a different category of victim - his own domestic partner - in a different context - an argument over jealousy - and hence did not strongly support the tendency alleged.
• [12] Defence counsel cavilled with the Crown's contention that all three offences had the common feature of lack of provocation because the agreed facts did not say positively that there had been no provocation. However, in my view it is open to the Crown to make this submission because on the facts as agreed there was no apparent provocation. None was mentioned and that would have been a relevant factor in sentencing.

• [13] Under ENULA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced), have significant probative value.
• [14] The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]

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. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)

• [15] Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[2]

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.

• [16] The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[3] Nor is it permissible to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.[4]
• [17] In my view, the evidence set out in the amended Notice is capable of supporting proof of a tendency in the accused to have a violent disposition towards women within a domestic violence context, especially when intoxicated, and even if unprovoked; and to act on that tendency by assaulting women - especially focusing on the head.
• [18] I am also of the view it would be open to the jury to find that proof of this tendency makes it more likely that the accused had that state of mind, and acted on it, on the occasion in issue in relation to the charge (ie 4 November 2022), and to add that in the balance when considering whether they are satisfied beyond reasonable doubt of his guilt on the charge on the indictment.
• [19] I am therefore satisfied that the tendency evidence has significant probative value having regard to other evidence to be adduced by the Crown and, accordingly, that the threshold test in s 97 has been met. What makes the evidence particularly significant is the similarity between the words which the accused agreed he said to the victim in 2019 - that she needed to be hurt - and the evidence to be adduced by the Crown of words the accused is said to have uttered in this case, encouraging his brother to hit the victim harder so she would suffer pain. This has the potential to illuminate the accused's attitude to women in a domestic violence context.
• [20] The next step is to consider whether the evidence satisfies the requirements of ENULA s 101. In a criminal trial such as this, tendency evidence is not admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused. The accused did not make any submissions directed to s 101, limiting his submissions to a contention that the threshold condition in s 97 had not been met. It is nevertheless incumbent on the Court to be satisfied that the evidence satisfies the condition for admissibility in section 101.
• [21] When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[5] The notion of prejudice in this general context "... means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate."[6] Something more is required, such as the possibility that the evidence may be misused by the jury in some unfair way.
• [22] The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[7]

In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to 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.

• [23] The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[8]
• [24] The Court must be vigilant to guard against the danger of rank propensity reasoning. However, the use of tendency evidence involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[9]

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.

• [25] The defence did not identify any potential prejudice to the accused from the admission of the evidence and, apart from the risk of rank propensity reasoning, which can be overcome by a suitable direction, I do not think there is any.
• [26] I consider the probative value of the tendency evidence outweighs any danger of unfair prejudice to the defendant.
• [27] The tendency evidence will be admitted.

[1] [2017] HCA 20 ("Hughes") at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.

[3] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41].

[4] ENULA s 94(4). See also IMM v The Queen (2016) 257 CLR 300 at [59].

[5] The Queen v AW [2018] NTSC 29 at [30].

[6] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.

[8] R v Lisoff [1999] NSWCCA 364 at [60].