The King v Ebborn [2023] NTSC 10

HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13; R v Bauer [2018] HCA 40; (2018) 266 CLR 56; R v Lisoff [1999] NSWCCA 364; The Queen v AW [2018] NTSC 29, applied

Crown: Office of the Director of Public Prosecutions

The King v Ebborn [2023] NTSC 10

• [1] The accused is charged (inter alia) with a number of counts of sexual intercourse with CD without her consent.
• [2] In summary, the Crown case against the accused is that at 5.30 in the morning on 19 September 2021, after drinking at a nightclub in town where he had a brief conversation with CD, the accused went to the house where CD lived with her then partner TO, who called the accused "uncle". The accused's son also lived at the house. To the accused's knowledge, both TO and the accused's son were away from the house at the time. The Crown alleges that the accused forced his way through a screen door, damaging the fly screen (count 1- property damage). He entered the house with the intention of assaulting the complainant (count 2 - aggravated unlawful entry). He went into CD's bedroom and began having penile vaginal intercourse with her. CD initially thought the person on top of her was TO and that he had come home early. When she realised it was not TO, she tried to push the accused off her and told him, "No," (count 3 - sexual intercourse without consent). While he was on top of her with his penis in her vagina, the accused was saying things such as, "You like that." The accused then forced his penis into CD's mouth while she said, "No," and tried to push him away (count 4 - sexual intercourse without consent). He did that about two or three times. The accused kept trying to persuade CD to have consensual sex with him. He told her that her partner was cheating on her and "fucking sluts out there". The accused then inserted two fingers into CD's vagina while she tried to push his hand away. CD said, "No, no. Stop, stop," trying to push his hand away and then he got more aggressive and started doing it a lot harder. CD got upset and started crying and the accused walked out of the room. The accused then got some lotion and tried to massage CD's back. She kept telling him to stop and that he should not be doing those things. He said, "Did I get the wrong idea, Bub?" Then he made her delete her call log and left saying, "I'll leave you alone now." At some point during the assault, it is alleged that the accused brought a sex toy into the room and invited CD to use it. She declined. He had seen the sex toy in the bathroom on a previous visit to the house and hidden it.
• [3] The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ("UEA") of its intention to adduce tendency evidence.
• [4] The notice advises that the tendencies sought to be proved are the tendency of the accused:

(a) to act in a particular way, namely:

(i) attend the house of a friend or relative in the early hours of the morning uninvited;

(ii) persist in sexual conduct with a female occupant of the house despite her protestations;

(iii) engage in sexual acts with a female occupant of the house despite the impact it may have on the accused's relationship with his close friend or relative; and

(iv) in the aftermath of the assault, to engage in conduct designed to avoid detection.

(b) to have a particular state of mind, namely a willingness to engage in sexual conduct with a female despite her protestations and the impact it might have on his relationship with a close friend or relative.

• [5] The conduct about which evidence is sought to be adduced is evidence of the conduct the subject of the current charges as well as evidence of a previous sexual assault committed by the accused in 2009.
• [6] The facts in the 2009 case were that, on 28 February 2009, after drinking at a bar in Palmerston and becoming intoxicated, at about 3.30 in the morning, the accused went to the home of a close friend. The friend was absent. The door was opened by the friend's 13 year old daughter, LG. The accused and LG sat on the couch and conversed for a time. Then the accused said he felt sick and needed to lie down. LG said he could sleep in her room and she would sleep with her mother, who was asleep in one of the bedrooms.
• [7] The accused and LG went into her bedroom and the accused shut the door and lay on the bed. He asked LG to stay and talk to him for a while and she agreed. LG sat on the end of the bed. The accused told her she was beautiful and that he loved her. He ran two fingers from her ankle to her waist. Then he ran his fingers from her stomach to between her breasts. LG stood up and walked towards the door. The accused asked her to stay for another 5 minutes, then asked her if she was a virgin. She said, "Yes," and he said, "I want to be your first." LG said, "That's disgusting. You're like a brother to me."
• [8] The accused stood up and hugged LG with both arms then put his hands on either side of her face and kissed her on the lips. LG tried to push him away, but he leaned forward and tried to kiss her again. She covered her mouth and turned her head. The accused said, "You've got big boobs for a 13 year old." He put his right hand on her left breast, outside her clothing and squeezed it. Then he put his hand on her genital area over her clothes. She reacted instinctively by squeezing her legs together. LG told the accused to leave. The accused then removed his hand, told LG not to tell anyone and left.[1]
• [9] The Crown has summarised the evidence sought to be adduced as tendency evidence in the following terms.

The accused attended an address after drinking. Despite the victim's resistance, the accused persisted in assaulting her indecently, touching up her body, squeezing her breast and touching her genital area. On leaving, the accused told the victim not to tell anyone.

The accused (aged 23) was at a bar. He attended the address of a close family friend. The 13 year old victim allowed the accused into the residence. The victim allowed the accused to sleep in her bedroom. The accused made inappropriate sexual comments and assaulted her indecently. The victim physically resisted the accused and told him that he was like a brother to her.

The accused attended an address after being at a nightclub. Despite the complainant's resistance, the accused persisted in assaulting her by having vaginal/ penile intercourse, forcing his penis into her mouth, and inserting his fingers into her vagina. Upon leaving, the accused made the complainant delete the record of his contact to her phone.

The accused (aged 35) was at a nightclub. He attended the address of his son and nephew. The accused entered the residence and went into the 21 year old complainant's bedroom. He had sexual intercourse with her in a number of ways and made inappropriate sexual comments. The victim physically resisted and told him to stop.

• [10] The tendency evidence is said to be relevant to:

(a) whether the accused had sexual intercourse with CD;

(b) that the accused was prepared to have sexual intercourse with CD despite her relationship with TO;

(c) whether the accused knew that CD was not consenting to sexual intercourse or was reckless as to her consent;

(d) to rebut any alternative innocent explanation, including for DNA matching the accused's DNA being located on CD's underwear.

• [11] The defence objects to the evidence being adduced as tendency evidence.
• [12] Under UEA, 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.
• [13] There is no dispute about the adequacy of the notice given. The defence objects to the admissibility of the evidence on the grounds set out below.
• [14] The substantive question under s 97 is whether the evidence has significant probative value in relation to the issues set out above. Significance means something in between mere relevance, and a substantial degree of relevance.
• [15] The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[2]

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)

• [16] Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[3]

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.

• [17] 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. That is not likely to be an issue in the present case in any event as the evidence to be adduced concerns prior offending for which the accused pleaded guilty in the Local Court.
• [18] In my view the evidence set out in the tendency notice is capable of supporting proof that the accused has the tendencies set out in the tendency notice, namely to:

(a) attend the house of a friend or relative in the early hours of the morning uninvited;

(b) persist in sexual conduct with a female occupant of the house despite her protestations;

(c) engage in sexual acts with a female occupant of the house despite the impact it may have on the accused's relationship with his close friend or relative; and

(d) in the aftermath of the assault, to engage in conduct designed to avoid detection.

It also evidences the asserted state of mind behind the behavioural tendencies alleged.

• [19] The High Court has said that there need not be any striking similarities or a distinct modus operandi for tendency evidence to be significantly probative of a fact in issue,[4] but where the tendency evidence sought to be adduced relates to sexual misconduct with a person other than the complainant in the instant case, it will usually be necessary to identify some feature which serves to link the other sexual misconduct with the alleged offending conduct.[5] As the High Court said in Bauer:[6]

If ... 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.

• [20] In my view, that is the case here.
• [21] The defence argues that these tendencies are common to sexual offending generally to the extent of being "generic", contending that the earlier offence involved a child victim and very different conduct and that the resemblances are superficial at best. The defence also contends that the remoteness in time of the 2009 offending (some 12 years before the present alleged offending) undermines the ability of the evidence to support a tendency. Defence counsel relies on the following passage from The Queen v Beasley:[7]

The effluxion of time between a prior incident or incidents which are said to sustain an inference of tendency and the subsequent crime of which that inference is said to be probative may be of such duration as to suggest that the previous incident or incidents were isolated aberrations or otherwise not reflective of the relevant tendency on the part of the accused. In other words, remoteness in point of time from the circumstances of the offence charged will undermine the probative value of evidence to sustain an inference of tendency. Moreover, a single incident will ordinarily be less probative of tendency than a series of incidents with similar features.

• [22] The defence submits that this is a case in which the tenuous nature of the similarities between the prior offending and the present charges, the gap of 12 years between the two incidents, and the fact that there is only a single prior incident on which the Crown can rely to establish the tendency, means that the evidence does not reach the required standard in s 97 of having substantial probative value.
• [23] I disagree. The behaviour proved in relation to the 2009 offence is unusual almost to the point of being bizarre and has clear and obvious similarities to the present alleged offending, in that both involved turning up at the home of a close friend or relative in the early hours of the morning uninvited and, once inside, sexually assaulting a female occupant of the house with what seems to be a pretence or unfounded assumption that sexual activity is or would be consensual, notwithstanding the victims' protests and attempts to stop him, while persistently importuning the victim to engage in activities of a sexual nature. Also common to both the earlier offence and the current alleged offences is the fact that the accused was prepared to do these things despite the closeness of his relationship to the male householders and the obvious risk to that relationship in each case. The Crown also relies on the fact that in both offences there was a substantial age difference between the accused and the victims and that in each case, the accused took steps to avoid detection; in the earlier offence telling the victim not to say anything and in the present alleged offending, making the complainant delete her call log on her phone to destroy evidence that he had called her earlier that morning.
• [24] While the passage of time between the two incidents is a relevant consideration, in my view the unusualness of the conduct in question and the distinctly similar features, as outlined in the tendency notice, strongly support proof of the alleged tendencies despite the passage of time.
• [25] Defence counsel rightly concedes that a tendency may be proved by evidence of a single prior episode, but contends that a single incident will ordinarily be less probative of the existence of a tendency than a series of incidents.[8] So much may be accepted. However, in my view, the unusual nature of the earlier incident and its striking similarity to aspects of the present offending are sufficient to establish the tendencies alleged by the Crown.
• [26] Defence contended that the offending conduct in the earlier incident was very different from the alleged offending in the present charges. In the earlier offence, the offender was greeted by the victim and allowed to enter the house; the victim was 13 and the offender 23; and the offending conduct consisted of indecent touching, attempted kissing and squeezing a breast. By contrast the present charges are of multiple acts of sexual intercourse without consent on an adult woman following an unlawful entry. Defence counsel submits that, as a matter of logic, committing an indecent assault on a child victim 12 years ago would not make it more likely that the accused would commit the present alleged offences involving the sexual penetration and fellatio of a 21 year old woman.
• [27] However, this submission ignores the salient features of the alleged tendency - namely that the accused turned up in the early hours of the morning at the home of a close relative or friend, and once inside, sexually molested a woman in the house, persisting in importuning her despite her protests and despite the risk to his relationship to the friend or relative, as well as the age difference in each case and the attempt to avoid detection after the fact, though the two latter features are of lesser relevance. I am therefore satisfied that the proposed tendency evidence is apt to prove the alleged tendencies.
• [28] Turning to the second aspect of the enquiry under s 97, for the same reason (ie the unusual nature of the tendencies evidenced by the earlier incident and its similarity to aspects of the present offending) those tendencies, if established, significantly increase the likelihood that the accused had that state of mind and acted on it at the times relevant to the charges on the indictment - ie that he committed the offences with which he is charged.
• [29] I am therefore satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence has significant probative value.
• [30] The next step is to consider whether the evidence satisfies the requirements of UEA 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 accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any danger of unfair prejudice to the accused.
• [31] When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[9] 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."[10] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
• [32] The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[11]

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.

• [33] 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.[12]
• [34] In this case, the defence asserted that there was a risk of two kinds of prejudice, "reasoning prejudice" and "moral prejudice". In support of the submission relating to "reasoning prejudice", defence relies on the following quotation from the Australian Law Reform Commission report:

People are enormously more confident of the expected nature of a person's social behaviour, given knowledge of their behaviour on one occasion than reality affords them any right to be.[13]

An example given was that members of the public are said to overestimate the recidivism rate of sex offenders.

• [35] This asserted danger boils down to the risk that the jury may engage in rank propensity reasoning. In support of this objection defence submitted:

The "Halo Effect" poses a risk that the prior misconduct will result in the fact-finder concluding that the accused is of bad character. ... There is also the fact, well known, that the untrained fact-finders such as members of a jury will conclude that the accused is "the sort of person" who is likely to have committed the offence charged.

• [36] The defence explained the danger of "moral prejudice" in the following terms.[14]

Moral prejudice can arise in a number of ways once tendency evidence is introduced. There is the "regret matrix", a psychological theory that suggests that when the fact-finder is provided with evidence of prior misconduct by the accused they anticipate less personal regret upon a finding of guilt. Accordingly, jurors may require a lower degree of probabilistic satisfaction of guilt to make such a finding. Further, Hoitink and Hopkins observe that there is evidence to suggest that a risk of moral prejudice arising from the introduction of tendency evidence is greater the more "socially unacceptable or unattractive" the accused's past behaviour. The authors refer to a British study which found that while mock-jurors appeared generally to make a rational use of evidence of past offending by the accused, evidence of a previous conviction for sexual assault against a child appeared to be used irrationally. The authors go on to observe that the empirical studies show the ease with which "moral prejudice" can arise from propensity evidence.

• [37] This boils down to a submission that the jury might be influenced by an irrational or emotional response to the evidence.
• [38] I do not agree that there is a real risk of misuse of the tendency evidence by the jury.
• [39] So far as the risk of propensity reasoning is concerned, the use of this kind of tendency evidence involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[15]

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.

• [40] I do not think the risk that the jury may engage in rank propensity reasoning is very great and, in my view, it can be adequately guarded against by the usual warnings. Although not necessary to my arriving at this conclusion, I take some comfort in having reached this conclusion from the summary of recommendations of the Royal Commission into Child Sexual Abuse relating to tendency and coincidence evidence tendered by the Crown, which refers to research suggesting that the risk of rank propensity reasoning in sexual offence cases is not high and that juries in general comply with directions given by the judge.
• [41] Nor do I think that there is any real risk that hearing evidence about the earlier incident is likely to have much greater emotional impact (if any) than hearing from the complainant about the allegations the subject of the charges on the indictment. Apart from the age of the victim in the prior incident,[16] the present allegations relate to conduct which is more serious than the conduct of which the accused was found guilty in 2009 and, in any case, the jury will be warned against rank propensity reasoning and the risk of acting on any emotional reaction to the earlier offending.
• [42] The defence submissions about "reasoning prejudice" and "moral prejudice" are largely generic and not supported by any evidence called in the present proceeding. The submissions would apply to all tendency evidence, yet the legislative intention is that tendency evidence is to be admitted if it satisfies the test in s 97 and the probative value of the evidence outweighs the danger of unfair prejudice to the accused.
• [43] In my view, that test is satisfied in the present case. I consider the probative value of the evidence to be high and that its probative value outweighs any danger of unfair prejudice to the accused. The tendency evidence specified in the notice will be admitted.

[1] That is the extent of the agreed facts in the precis prepared for the accused's guilty plea on a charge of indecently assaulting a child under the age of 16 in the Local Court. The statement by LG which is also annexed to the tendency notice also contains further allegations of sexual importunity including that the accused asked why she would not allow him to be her first and saying, "I'll make your first time the best time."

[2] [2017] HCA 20 ("Hughes") at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.

[4] Hughes at [34], [39] to [41].

[5] McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13 at [31].

[7] [2022] NTSC 16 at [35].

[8] The Queen v Beasley [2022] NTSC 16 at [35] per Grant CJ.

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

[10] HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [12] per Gleeson CJ.

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

[13] ALRC Report 102 paragraph 3.21.

[14] Citing research by Hoitink and Hopkins.

[16] The Crown submitted that if there was thought to be some prejudice to the accused in the jury knowing that he had committed a sexual offence against a child, and harbouring a prejudice against him as a result, that could be eliminated by not telling the jury the age of the victim in the first offence as that fact is not a necessary aspect of the asserted tendency. There is something in that suggestion although it would obviously only be done with the consent of both parties since, although it would eliminate the potential emotional reaction to the accused having indecently assaulted a child, it might detract from the ability of the defence to emphasise to the jury the differences between the two offences with a view to asking the jury not to accept that the accused had the asserted tendency.