The King v Hines [2025] NTSC 32

The King v Hines [2025] NTSC 32

• [1] The accused has been charged with one count of unlawfully causing serious harm to CN, the maximum penalty for which is imprisonment for 14 years.

• [2] The Crown alleges that the accused (a 21 year old woman from Tennant Creek), had an intermittent relationship, with the complainant, CN (aged 26), from about 2020. They had a child together. At the time of the alleged offending, the accused was on Police bail for an unrelated matter with conditions including abstaining from alcohol and residing with her father.
• [3] In August 2023, a physical altercation occurred between the accused and the complainant on the street outside [address redacted]. The complainant had been drinking with others. The confrontation escalated when the accused smashed a beer bottle and used the jagged glass to stab the complainant to the right leg, the abdomen, the chest and the head, causing significant injuries amounting to serious harm.
• [4] Witnesses intervened and the accused fled. The complainant received initial first aid and was later taken to Tennant Creek Hospital in a critical condition, then flown to Alice Springs Hospital.
• [5] Without intervention, the complainant could have died from what was described as a "massive haemothorax". If the complainant had survived, he could have suffered reduced lung capacity and longstanding breathing difficulty.
• [6] The accused was arrested the same night and treated for hand lacerations. The accused tested positive for alcohol (0.072 blood alcohol content) despite her bail conditions. In a police interview, the accused claimed self-defence but admitted to stabbing the complainant, and stating she was intoxicated.
• [7] The Crown argues that an inference can be drawn from the combination of the smashing of the bottle and the number and location of the stab injuries, that the accused was acting in retaliation and not in self-defence, and that the force used was, in any event, excessive and unjustifiable, given the severity and location of the wounds.

• [8] By a Tendency Notice ("the Notice") dated 30 March 2025, the defence gave notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ("the Act") that she intends to adduce evidence at the trial of the accused that the complainant, CN, had a tendency to act with aggression or violence toward domestic or intimate partners, including when emotionally provoked; and a tendency to become angry and escalate interpersonal conduct into physical or verbal violence, including in defiance of legal restraints such as DVOs, particularly while intoxicated.
• [9] The tendency evidence is said to relate to the issue of whether the accused was acting in self-defence at the time of the alleged offending.
• [10] The defence intends to prove the alleged tendency by means of:

(a) agreed facts from a sentencing hearing in which the complainant pleaded guilty to breaching a DVO by being intoxicated in the presence of the protected person (the accused);

(b) agreed facts from a sentencing hearing in which the complainant pleaded guilty to breach of a trespass order requiring him to stay away from the home of the accused and threatening the accused;

(c) agreed facts in relation to an incident in which the complainant pleaded guilty to walking away with the couple's child against the wishes of the accused and assaulting a police officer who intervened;

(d) agreed facts in relation to an incident in which the complainant pleaded guilty to approaching the accused and her mother while they had the baby; punching the accused's mother in the face when he was told to go away, pushing her over and knocking over the stroller with the child in it; and

(e) agreed facts in relation to the complainant pleading guilty to an incident in which the complainant assaulted the accused by hitting her on the head with a solid object while she was sitting on the couch.

• [11] The defence also intends to rely on this evidence as relationship evidence.

• [12] Under s 97 of the Act 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 have a particular state of mind unless:
  1. 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
  2. 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.
• [13] 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)

• [14] 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.

• [15] The first stage in assessing the probative value of the proposed evidence is to assess whether the evidence supports the existence of the alleged tendency.
• [16] In a Crown tendency application, the next stage in assessing the probative value of the evidence is to ask whether the existence of the tendency strongly supports the guilt of the accused on the charge on the indictment. That, obviously, is not applicable to a defence tendency application. Rather, in this case, the next step is to ask whether the existence of the tendency tends to support the defence position that the accused acted in self-defence.
• [17] In the case of a defence tendency evidence application, establishing that tendency evidence has significant probative value is not an onerous test. As I said in R v Smiler (No 2):[3]

The next question is whether the evidence has "significant" probative value. The Crown contended that, even if relevance could be established, the probative value of the evidence is so slight that it cannot be regarded as "significant". The probative value of evidence is defined as the extent to which the evidence could rationally affect the assessment of the probability of the existence of a particular fact in issue.[4] "Significant" probative value must mean something more than bare relevance, but it does not need to rise as high as "substantial" probative value. It has been said to mean evidence that is "important" or "of consequence".[5]

It needs to be borne in mind that the Crown bears the legal onus of proof on all issues including negating self-defence. The accused need only point to a reasonable possibility that he was acting in self-defence and submit that the Crown has not eliminated that possibility. Very little may be required for evidence to be "significant" or "of consequence" in pointing only to a reasonable possibility that the accused may have been acting in self-defence.[6]

• [18] The Crown argued that only the last incident, set out at [10](e) above, involved an assault on the accused and that only that incident has significant probative value on the question of whether the accused may have been acting in self-defence.
• [19] I do not agree. Two of the other incidents, set out at [10] (c) and (d) involved actual violence to other people in the presence of the accused and the incident in [10](b) involved an actual threat to the accused. Even the incident in [10](a) demonstrates that there was some background of violence or apprehended violence in the relationship leading to the imposition of DVOs which the complainant breached on more than one occasion.
• [20] All of those incidents together, it seems to me are highly relevant to establishing the relationship between the complainant and the accused during which the alleged offending occurred. Also, it seems to me that that evidence supports the existence of the tendencies on the complainant set out in the Notice, and the existence of those tendencies tends to support the defence position that the accused acted in self-defence.
• [21] That being so, given the low bar in defence tendency evidence applications, it seems to me that all five incidents, taken together rather than in isolation, are strongly probative in the relevant sense: that is to say they support the defence case that there is a reasonable doubt whether the accused was guilty of unlawfully causing serious harm to the complainant, because there is a reasonable possibility that she may have been acting in self-defence.
• [22] The Crown argued that incidents occurring so far before the alleged unlawful assault on the complainant could not have a significant probative value in relation to whether there was a reasonable possibility that the accused was acting in self-defence on the date of the alleged assault, but that submission ignores the effect of that evidence as relationship evidence. If it is admitted, the jury will be entitled to take the evidence into account as both relationship and tendency evidence in assessing the state of mind of the accused at the time of the alleged assault on the complainant; and that will be relevant to the jury's assessment of the circumstances as the accused saw them and the reasonableness of her response in the circumstances as she saw them given his history of threats, violence and breaches of domestic violence orders, when determining whether they are satisfied beyond reasonable doubt that the Crown has proved that the accused was not acting in self-defence.

• [23] The tendency evidence set out in the Notice is admitted.

[1] [2017] HCA 20 at [16] ("Hughes")

[3] R v Smiler (No 2) [2017] NTSC 31 at [15]- [16]; approved by Mildren AJ in R v Nudjulu [2020] NTSC 54 at [15]

[4] UEA s 3(1) (in the Dictionary)

[5] R v Lockyer (1996) 89 A Crim R 457 at 459