The King v Manakgu [2025] NTSC 84

Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258; BD v The Queen [2017] NTCCA 2; Director of Public Prosecutions v Campbell (No 1) [2013] VSC 665; Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743; Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 281 CLR 18; Director of Public Prosecutions v Wilson [2021] VSC 766; DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349; Elomar v The Queen [2014] NSWCCA 303; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; RH v The Queen [2014] NSWCCA 71; (2014) 241 A Crim R 1; Saoud v The Queen [2014] NSWCCA 136; Taylor v The Queen [2020] NSWCCA 355; The Queen v Beserick (1993) 30 NSWLR 510; The Queen v Cakovski [2004] NSWCCA 280; The Queen v Holmes (No 5) [2021] NSWSC 115; The Queen v Lockyer (1996) 89 A Crim R 457; The Queen v Majak [2022] NTSC 57; The Queen v Malibirr [2022] NTSC 59; The Queen v Rolfe (No 7) [2022] NTSC 1; The Queen v Taylor [2003] NSWCCA 194; TL v The Queen [2020] NSWCCA 265, referred to.

Criminal Code Act 1983 (NT) ss 208H(1), 208J(3), 208P(d)

Evidence Act 1939 (NT) s 21AB(c)

Evidence (National Uniform Legislation) Act 2011 (NT) ss 81,97, 98 135.

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

The King v Manakgu [2025] NTSC 84

[1] The female accused, who was 33 years old at the time of the alleged offending, is charged with two counts of having sexual intercourse without consent with the male complainant, who was 15 years old or, alternatively, two counts of aggravated sexual intercourse with a child under 16. The Defence seeks to rely at the trial on tendency evidence comprising a single instance of conduct of the complainant against another woman some three months after the alleged offending in respect of which he pleaded guilty to a charge of attempted sexual intercourse without consent. The Defence case at trial is intended to be that a reasonable possibility consistent with the accused's innocence is that the sexual encounter between the complainant and the accused was not consensual on the accused's part, meaning that she did not engage in the acts of sexual intercourse voluntarily and intentionally. The Defence seeks to rely on the proposed tendency evidence to establish tendencies on the part of the complainant to encounter or target women older than him alone at night with the intention of initiating non-consensual sexual intercourse with them. If the proposed tendency evidence is ruled to be admissible, the Defence seeks leave pursuant to s 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) to cross-examine the complainant about the conduct comprising the proposed tendency evidence.

[2] The Crown opposed the tendency evidence application but conceded that if the proposed tendency evidence is ruled to be admissible, the requirement for the grant of leave to cross-examine the complainant would be satisfied.

[3] The trial is listed for 16 February 2026 and a special sitting for the complainant's evidence is listed for 20 November 2025.

[4] On 17 November 2025, I ruled that the proposed tendency evidence is admissible to prove the alleged tendencies of the complainant, and gave the Defence leave to cross-examine the complainant in relation thereto, with consequent leave to the Crown to re-examine the complainant on any matters arising from cross-examination. I indicated I would publish reasons subsequently. These are my reasons.

[5] The accused is charged by indictment dated 24 July 2025 with two counts of sexual intercourse without consent, contrary to s 208H(1) of the Criminal Code, comprised of sexual intercourse by way of fellatio and penile/vaginal penetration (Counts 1 and 3). In the alternative, the accused is charged with two counts of sexual intercourse with a child, contrary to s 208J(3) of the Criminal Code (Counts 2 and 4). Count 4 is charged with the circumstance of aggravation that the child was threatened with serious harm or death, within s 208P(d) of the Criminal Code.

[6] The Crown case against the accused is as follows.

[7] The accused was 30 years old at the time of the offending. She was in a relationship with JM, who was 55 years old and lived in Woodroffe, Palmerston.

[8] The complainant was 15 years old at the time of the offending and lived in Woodroffe, Palmerston.

[9] The accused and the complainant were not known to each other.

[10] On 28 July 2024, prior to 8.50pm, the accused was at JM's house. She had been drinking alcohol and was intoxicated. She sat out the front of JM's house with a woman, CJ, for a time and then went to look for cigarettes.

[11] She left JM's house and walked along Baldwin Drive with a bottle in her hand. She threw the bottle across the street and kept walking. She crossed the road and went to a payphone at the front of the Woodroffe shops.

[12] She used the payphone. At 9pm, she walked to the road and sat down in the roadway for a short time. She walked back across the road to the payphone. She used the payphone again. JM approached her and spoke to her for around one minute. He left when the accused started swearing at him.

[13] At 9.12pm, the accused kicked the payphone twice. She repeatedly banged on the phone box with the phone in her hand for about one minute.

[14] The complainant was at his home nearby when he heard the banging. He went for a walk to the shops to investigate what the noise was.

[15] At 9.13pm, the accused walked away from the payphone into the park area next to the shops. That area was unlit.

[16] The complainant had seen the accused damaging the payphone. At 9.14pm he reached the payphone and stopped to inspect the damage. The accused walked out of the park back to the payphone carrying a large stick.

[17] The complainant started to walk away from the accused, who reached the payphone. While the complainant was a short distance from the accused, he turned and said to the accused: 'Stop doing that. People are at work in the morning and you are going to wake them up'. The accused asked the complainant if he wanted to get hit. She told him to 'fuck off'. The complainant said he would leave and walked away.

[18] The accused followed after the complainant still carrying the stick. She called out to the complainant telling him to come to her and asking if he wanted to 'hook up'. CJ heard the accused say that and went inside JM's house to tell JM that he needed to go find the accused.

[19] The complainant walked to the corner of the shops and the accused walked into the car park a short distance, dropping the stick. The complainant walked back towards the accused and stood on the footpath speaking to her. The complainant said he was looking for 'smokes' and the accused said she just needed 'ICE'. The complainant said he did not want to 'wreck' his health. The accused told the complainant he was sexy, hot and beautiful. She said to him: 'I just want you, you sexy.'

[20] The accused asked the complainant if she could perform fellatio on him. The complainant was alarmed and said: 'No, I am only 15 years old. I can't be doing that.'

[21] The accused walked to the complainant and tried to put her arms around his neck but he stepped back. The complainant and the accused walked together a short distance. The accused grabbed the complainant's hands. The complainant let her hands go and started to slowly walk away from the accused, turning back to speak to her. The accused followed the complainant and then sat down in the car park. The complainant spoke to the accused for about two minutes while she was sitting on the ground.

[22] At 9.22pm, the accused got up and walked with the complainant behind the shops. While they were walking, the accused tried to put her arm around the complainant's neck and then put her hand on his back. The accused and the complainant then walked out of view of the CCTV cameras.

[23] Behind the shops, the accused started kissing the complainant's neck. The complainant told her he was uncomfortable and to get away. He pushed her away. The accused pulled him in. The accused pulled the complainant's shorts down, grabbed his genitals and performed fellatio on him. That is the offending the subject of Counts 1 and 2.

[24] The accused asked the complainant to have sex with her. The complainant responded that he did not want to do it. The accused became angry with the complainant and threatened him saying: 'I will bash you. I will put you in a coma. I will strangle you. I will come back with a gun or knife if you don't do it.' The accused told the complainant she wanted to get pregnant and wanted the complainant to come meet her family. The accused slapped the complainant and head butted him. The accused squeezed the complainant's genitals, causing him pain.

[25] The accused's threats made the complainant feel confused and scared. He felt he could not refuse to have sexual intercourse with the accused. The accused took her pants off, faced the back wall of the shops and directed the complainant to insert his penis into her vagina. The complainant stood behind the accused and inserted his penis into her vagina and had sexual intercourse with the accused until he ejaculated. The complainant felt very intimidated, his heart was racing and he believed the accused would hurt him if he did not have sexual intercourse with her.

[26] At 9.24pm, JM was out looking for the accused. He walked through the car park to where the accused and the complainant were located. JM saw the accused having sexual intercourse with the complainant. JM walked back to his house.

[27] At 9.31pm, the complainant walked back into the car park. The accused remained out of view of the CCTV cameras.

[28] At 9.32pm, JM walked through the car park towards the complainant. JM pushed the complainant hard using both hands, causing the complainant to fall backwards onto the ground, scratching his back. JM said to the complainant: 'I don't ever want to see you again.' JM went to the back of the shops where the accused was located.

[29] A friend of JM's walked to the car park, holding a metal pole. He spoke briefly with the complainant.

[30] At 9.33pm, JM walked back to the car park, joined his friend and they walked back to JM's house.

[31] The complainant remained in the car park for a couple of minutes and then walked to JM's house. The complainant told JM that he was scared and forced by the accused to have sex with her. JM apologised to the complainant for pushing him over. At 10.13pm, JM called Police to report the matter. The complainant stayed with JM for some time.

[32] At one point, the accused came back to JM's house. She stayed around the area. She walked up to another house to pat some dogs. When a dog barked, the accused threatened to come back with a gun and shoot the dogs. The owner of that house called Police.

[33] At 1.01am, Police attended at that house. As an officer was speaking to the resident, the complainant went up to him and told him the girl they were looking for was at JM's house. He said: 'She just raped me'.

[34] With the complainant's assistance, the accused was located by Police near the shops at 1.05am. She was arrested for sexual intercourse with a child. The accused said: 'I was drunk' and 'I didn't know, I was drunk'. The accused was cautioned by Police and said: 'I didn't rape him. I was drunk. True god. I didn't know anything about it, I was drunk.'

[35] The complainant underwent a forensic examination at the Sexual Assault Referral Centre. Samples taken from the complainant's penis were later found to have the accused's DNA. Later that day, the complainant participated in a child forensic interview with Police.

[36] The accused was subject to a forensic examination. Samples taken from the accused's vagina showed sperm and the complainant's DNA.

[37] The Defence filed a tendency notice prior to the voir dire.

[38] During the voir dire, leave was granted to make various amendments to the tendency notice.

[39] As amended, the tendency notice identified two alleged tendencies of the complainant, being:

(a) to act in a particular way, namely to encounter women who are older than him and are alone in the vicinity of Baldwin Drive, Woodroffe, in the evening, with the intention of initiating sexual intercourse with them non-consensually; and

(b) to have a particular state of mind, namely a desire to target women who are alone in the evening time with the intention of conducting sexual intercourse with them non-consensually.

[40] The tendency notice says the proposed tendency evidence relates to the following facts in issue in the proceeding:

(a) whether the complainant or the accused initiated the conduct that constitutes sexual intercourse; and

(b) whether the accused was consenting to the sexual intercourse.

[41] The Crown submitted that whether the accused was consenting to the sexual intercourse is not an element of the offences. The Defence accepted that the fact in issue to which the proposed tendency evidence relates is more properly described as whether the accused voluntarily and intentionally engaged in the two acts of sexual intercourse with the complainant. That is an element of the charged offences which the Crown must prove beyond reasonable doubt. It is an ultimate fact. Who initiated the sexual intercourse and whether the accused was consenting to it are ancillary facts relevant to that ultimate fact, all of which are in dispute.

[42] On 18 July 2025, the complainant was found guilty by the Youth Justice Court of one count of attempted sexual intercourse without consent committed on 21 October 2024. He was sentenced to detention for six months, suspended after he had served just over five months.

[43] The proposed tendency evidence comprises the conduct of the complainant described in the charge sequencing report which the parties agreed set out the agreed facts which were tendered on the complainant's plea of guilty to the charge and admitted by him at that time. On the basis that his admission to the agreed facts on the plea renders the proposed tendency evidence admissible as admissions within s 81 of the Evidence (National Uniform Legislation) Act 2011 (NT) ('Evidence Act'), the parties were agreed that, if the proposed tendency evidence is ruled to be admissible, those facts would be reduced to a set of agreed facts to be tendered at the trial.

[44] The proposed tendency evidence is as follows.

[45] The complainant was 16 years old at the time of the offending. The victim was a 38 year old woman. The victim and the complainant were known to each other. The victim was a school teacher and the complainant was her pupil in 2013 and 2014.

[46] At about 6.30pm on 21 October 2024, the victim left her home on foot to go for a walk. As she walked along the footpath of Sibbald Crescent, Woodroffe, she saw a person walking on Baldwin Drive in her direction. She passed Baldwin Drive and kept walking. She saw that the person had caught up to her and was walking behind her.

[47] The victim turned onto Vernier Circuit and kept walking. She was feeling uneasy and decided to call her husband. She took her phone out of her pocket and felt a hand on her shoulder. She got a fright and said: 'Whoa. Please don't. Please don't.'

[48] The victim turned around and saw the complainant. She recognised him and said: 'You're [complainant's first name]. You're [complainant's full name], aren't you?' The complainant replied: 'Yeah'. The victim asked the complainant if he was alright and if he needed anything. The complainant told the victim he had gotten into a fight with his brother. The victim asked the complainant if he needed help.

[49] The complainant said: 'Oh back there I was just gonna come up and touch your arse'. The victim replied: 'You don't say that to people. You don't do that to people. That's not okay. I've been your teacher. That's not an appropriate thing for you to be doing.'

[50] The complainant told the victim that he had a 'wank' in the bedroom that day. The victim reiterated that it was not appropriate for him to be telling her that.

[51] The complainant asked the victim to 'suck [his] dick'. The victim replied: 'No, that's disgusting. You need to leave because I'm going to call the police if you don't'.

[52] The victim tried to make a call to 000. The complainant reached out and grabbed the victim's breast, knocking her phone from her hand. He punched the victim on the side of her face, striking her cheek and causing pain. The complainant struck the victim to the head, knocking her to the ground. She landed on her bottom in a seated position.

[53] The victim screamed for help. The complainant pulled down his shorts with one hand, exposing part of his penis. He held the back of the victim's head and tried to force her face towards his penis. The victim tried to push the complainant away and continued to call for help.

[54] A witness who had just arrived at her home nearby heard the victim yelling for help. She ran to assist the victim, calling out 'hey, hey' as she approached. As the witness ran towards the victim and the complainant, the complainant punched the victim to the head from above with force. Hearing the witness approach, the complainant fled.

[55] As a result of the assault, the victim suffered pain and bruising to her cheek and a 3 cm cut to the top of her head at the hairline which required stitching.

[56] Tendency evidence is a form of circumstantial evidence.[1]

[57] Tendency evidence permits the jury to reason from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to determining the likelihood that the person had the particular state of mind or acted in the particular way on the occasion in issue.[2]

[58] Tendency evidence provides the foundation for an inference to reach a conclusion of fact, the inference being that, because the person had the relevant tendency, it is more likely that they 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.[3] 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.[4]

[59] The justification for adducing tendency evidence is that the evidence tells the jury something important about the person whose tendency is sought to be proved (i.e., the accused, the complainant, someone else), in particular the way in which the person can be expected to think or act in particular circumstances, and what is revealed about the person must be of importance in determining a fact in issue, which need not be the ultimate fact in issue, but may be a subsidiary or collateral fact which is nevertheless important in reasoning that an ultimate fact in issue exists.[5]

[60] 'Tendency', in its ordinary meaning, refers to an inclination towards a particular behaviour or way of thinking. Proposed tendency evidence need not, therefore, establish that a person has a fixed pattern of behaviour or thought; rather the proposed tendency evidence will allow the jury to draw an inference that, when presented with particular circumstances, the person will tend to act or think in a particular way, which will allow the jury to draw a second inference, namely that when confronted with the same or similar circumstances, the person will act or think in the same way as he or she has acted or thought in the past when confronted with those circumstances.[6]

Requirements for admission of tendency evidence

[61] Section 97(1) of the Evidence Act provides that evidence of a person's character, reputation or conduct, or a tendency they have or had, is not admissible to prove they have or had a tendency 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 the other party(ies) of their 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.

[62] There is no issue with the notice to adduce tendency evidence given by the Defence, including as amended at the voir dire.

[63] 'Probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[7]

[64] 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.[8] A 'significant' probative value is a probative value which is important or of consequence.[9] The term 'significant' connotes something more than mere relevance but less than a substantial degree of relevance and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[10]

[65] In the context of an application by the prosecution to adduce tendency evidence, it is well accepted that the evaluation of the probative value of the proposed tendency evidence involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency; and second, the extent to which the tendency makes more likely facts making up the charged offence.[11]

[66] Where the application to adduce tendency evidence is made by the Defence, this is not done to prove a tendency which makes more likely facts making up the charged offence. In such contexts, it has been accepted that the analysis still requires consideration of the two interrelated matters, but the test must of necessity be different because the accused does not bear any legal onus of proof.[12] In such circumstances, the evidence is pressed in order to establish, as a reasonable possibility, a state of facts consistent with the innocence of the accused; rather than, where tendency evidence is pressed by the prosecution, in order to establish beyond reasonable doubt facts that make up the charged offence.

[67] It follows that evidence which could be classified as having 'significant' probative value in a defence application may not be so classified if it were a prosecution application, and the test for the admission of tendency evidence is easier to satisfy where the evidence is sought to be adduced by the Defence than where tendency evidence is sought to be adduced by the prosecution.[13]

The proposed tendency evidence in the context of the other evidence

[68] Section 97 of the Evidence Act provides that tendency evidence may have significant probative value either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the tendency evidence.

[69] The Crown relied on the following observations in support of a submission that the proposed tendency evidence does not have significant probative value because: (a) there is nothing about the Crown case which even remotely suggests that the accused was not engaging in sexual intercourse with the complainant voluntarily and intentionally; and (b) no evidence presently exists which is to be adduced by the Defence at trial to suggest that possibility, given that the accused has not provided any statement to Police.

[70] In Hughes, Gordon J held (at [214]) that implicit in the language of s 97(1)(b) is a limitation that regard is not to be had to evidence adduced or sought to be adduced by another party to the proceeding. In DSJ v Director of Public Prosecutions (Cth),[14] Bathurst CJ (Allsop P and McCallum J agreeing) held (at [9]), when addressing the identical language in s 98 of the equivalent of the Evidence Act, that regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings.

[71] I do not accept that these observations, or the language of s 97(1)(b), present a barrier to the admissibility of the proposed tendency evidence in this case. First, s 97(1)(b) makes clear that when assessing the probative value of the evidence, regard may be had to other evidence to be adduced by the party seeking to adduce the tendency evidence. It may be the intention of the Defence to adduce other evidence at the trial in an effort to raise a reasonable possibility consistent with innocence. Here, the intention of the Defence is to raise a reasonable possibility that the accused did not voluntarily and intentionally engage in sexual intercourse with the complainant, potentially by adducing evidence from the accused or from some Crown witness (such as the complainant in cross-examination) or both.

[72] It cannot be the case that tendency evidence sought to be relied upon by the accused at trial is not admissible unless there exists, at the time the tendency application is determined, some evidence to be tendered by the Defence at the trial. Section 97(1)(b) is not in such terms. Such a requirement would be inconsistent with the accused's right to silence. No authority was cited for such a broad proposition.

[73] Secondly, Gordon J's observation was immediately followed (at [215]) by the observation that the task of assessing the strength of the inference that a person has or had a tendency is not undertaken in a vacuum. Her Honour said that doing so is no more than a step on the way to reasoning to a conclusion about the ultimate question posed by s 97(1)(b): the extent to which the tendency evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Similarly, Bathurst CJ's observation was immediately followed by the observation that the limitation in s 97(1)(b) demonstrates that it is no part of the Court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value.

[74] The observations relied on by the Crown about the limitation in s 97(1)(b) must be understood in the contexts just referred to. It seems to me that the words of limitation in s 97(1)(b) are directed to the very matter referred to by Bathurst CJ, namely that the Court is not to assess the probative value of the tendency evidence by undertaking a fact-finding analysis based on all of the evidence in the case, thereby usurping the role of the jury. That is what the words of limitation in s 97(1)(b) are, at least in part, directed to.

[75] That is not to say that the facts alleged by the Crown and the evidence to be relied upon by the Crown are not to be taken into account when assessing the probative value of the tendency evidence sought to be adduced by the Defence.

[76] In DPP v Campbell, a case involving a defence tendency application, Kaye J held (at [58]) that the extent to which the tendency evidence has probative value must be considered in the context of all the facts of the case and it would be incongruous if, in considering that question, the Court did not also take into account other evidence which was to be adduced by the prosecution.[15] I agree. The task of assessing the probative value of the tendency evidence could not sensibly be undertaken if the Court could not take into account the Crown case, the facts alleged and to be proved by the Crown by evidence it has called or is to call in the trial. It would not be possible to decide the extent to which the tendency evidence could rationally affect the assessment of the probability of the existence of a fact in issue without taking into account what facts the Crown intends to prove at the trial.

[77] The Queen v Lockyer[16] is an early and much endorsed case involving tendency evidence sought to be led by the Defence. The accused was charged with the murder of his 11 month old daughter. The Crown case, as put in the prosecutor's opening address and as adduced by the prosecutor from the accused's wife, was that the accused bashed the child to death at the home at a time when only the accused and his wife were present. In the Defence opening address, the case put for the accused was that he was not the one who bashed the child. The Defence sought to adduce tendency evidence from the accused's wife in cross-examination about a previous incident in which the child had received injuries in circumstances from which an inference could be drawn that there was a reasonable possibility that it was the wife who inflicted the injuries. When the tendency application was made, the Defence informed the Court that the accused would give evidence and assert that he was not responsible for the injuries to the child which caused her death. Hunt CJ at CL permitted the Defence to cross-examine the wife about the tendency evidence and the inferences available from it.

[78] In other words, his Honour permitted the tendency evidence to be adduced by the Defence through cross-examination of the Crown's witness. When the application was made, there was no evidence from the accused in existence which raised the possibility that the injuries to the child the subject of the charges were inflicted by the wife. The only evidence on the Crown case that raised that as a possibility was the fact that only the accused and his wife were in the house at the relevant time. In assessing the probative value of the tendency evidence, which was to be elicited from a Crown witness, Hunt CJ at CL took into account the facts in issue in the case, the evidence of the Crown about who was present at the home at the relevant time and the accused's indication that he would give evidence that it was not him who inflicted the injuries.

[79] Consequently, I do not accept that in assessing the probative value of the proposed tendency evidence, the Court may not consider the facts alleged by the Crown and the evidence that the Crown intends to lead to establish them.

[80] The Crown also sought to distinguish this case from other cases in which tendency evidence sought to be adduced by the Defence was admitted on the basis that those cases: (a) involved some partial defence (such as self-defence) which arose on the Crown case; or (b) involved an accused who had given a statement to Police such that there was some evidence in existence at the time the tendency application was made which raised the relevant possibility in the Defence case. The Crown contrasted those cases with the present case where, it was submitted, the intended defence does not arise, nor is it even suggested, on the Crown case.

[81] It is not necessary to consider whether that is an accurate characterisation of the relevant authorities because, in this case, two aspects of the Crown case sufficiently raise the possibility in the Defence case, at least to a similar degree to the way it arose in Lockyer (where there was another person present in the home at the relevant time). The first aspect is that, on the Crown case, the complainant engaged in penile/vaginal sexual intercourse with the accused, an act which must have involved penetration and an erection. The second aspect is that, on the Crown case, that intercourse took place with the complainant penetrating the accused from behind. I accept the Defence submission that that fact is rationally capable of raising a possibility that it was the complainant who was the 'aggressor' in the act.

Probative value of the proposed tendency evidence

Capacity of proposed tendency evidence to support alleged tendencies

[82] The first question is the extent to which the proposed tendency evidence supports the alleged tendencies, i.e. to encounter women who are older than him and are alone in the vicinity of Baldwin Drive, Woodroffe in the evening with the intention of initiating sexual intercourse with them non-consensually, and a desire to target women who are alone in the evening with the intention of conducting sexual intercourse within them non-consensually.

[83] The proposed tendency evidence comprises a single incident. Even in a prosecution application, a single instance of prior conduct can have significant probative value and be admissible as tendency evidence. For example, in TL v The Queen,[17] it was alleged that the defendant had murdered a young child. The tendency evidence sought to be led by the prosecution was a single instance of conduct by the appellant in relation to the same child, some 10 days earlier, in which the child sustained significant injuries whilst in the appellant's care. The Court of Criminal Appeal held[18] that the evidence had significant probative value because, amongst other things, the number of potential offenders who could have committed the murder was small, the assault occurred 10 days prior to the alleged murder and the assault involved the deliberate infliction of significant injuries to the child. It was observed (at [208]) that the acts involved in the assault were different from the acts involved in the murder, but they involved the same victim in the same house in the same family, they were close in time, and they involved a deliberate act of cruelty which was not spontaneous. In the High Court, the appellant did not dispute that the evidence of prior injuries supported the asserted tendency but argued that the tendency did not make it more likely that the appellant had inflicted the injuries to the child that caused her death because there was a lack of similarity between the infliction of blunt force trauma (the mechanism of death) and burns from hot water (the prior incident). The High Court rejected that argument (at [37]), concluding that the tendency (a tendency to engage in violent conduct against the child and inflict serious physical harm) was sufficiently striking that its existence was capable of being important to a conclusion that the appellant was the perpetrator.

[84] In Aravena v The Queen,[19] the proposed tendency evidence sought to be relied on by the prosecution was a single incident almost seven years prior to the alleged offending. The New South Wales Court of Criminal Appeal held (at [89]) that a single incident is not for that reason precluded as tendency evidence. The Court observed that 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. However, such considerations did not deprive the tendency evidence of significance.

[85] The Crown sought to distinguish the decision in Aravena from the present case on the basis that, in that case, the Court had been entitled to take into account the evidence relating to the allegations in support of the asserted tendencies. No particular passage of Aravena was identified which indicated that the Court had done so. On my reading, the Court simply concluded (at [82]) that the tendency evidence had the capacity to inform the jury's assessment of the two facts in issue - the nature of the assault the appellant acknowledged having committed upon the complainant, and his intention at the time. That is a necessary part of the assessment process. Nowhere in the decision is it apparent that the Court relied on the evidence relating to the allegations in support of the asserted tendencies. That is to say, the decision was predicated on the basis that there was a single prior incident.

[86] In the present case, the single incident was about two months and three weeks after the charged incident. It is, therefore, quite proximate in time.

[87] The Crown accepted that conduct after the alleged offending is logically capable of establishing the existence of a tendency at an earlier time.[20] However, the Crown argued that, as a general proposition, conduct after the relevant time is less capable of establishing the existence of a tendency at an earlier time because of the possibility that the tendency developed after the alleged incident. It was put that this is not the case with tendency evidence of conduct prior to the alleged offending because a tendency existing at the earlier time is unlikely to have dissipated. Essentially, the submission was that it is more likely that a tendency founded on a single incident after the alleged offending developed afterwards than that a tendency founded on a single incident before the alleged offending went away. No authority was cited for this proposition. As a matter of logic, the submission is difficult to accept, although I note that a similar proposition has been accepted in relation to context evidence.[21] It seems to me that such generalities are of little assistance. It is preferable to consider the particular case on its own circumstances.

[88] The Crown also argued that, in this case, 'the better and more likely view' is that the complainant's experience during the alleged offending, combined with the impact of his intellectual disabilities, led to the later offending conduct comprising the proposed tendency evidence. Reliance was placed on a report prepared by clinical psychologist Laura Scott in May 2025. Ms Scott conducted a neuropsychological examination of the complainant, opined that the complainant's profile is consistent with a moderate intellectual disability, discussed the incident the subject of the proposed tendency evidence with the complainant and opined that the incident the subject of the alleged offending likely had a significant impact on the complainant's behaviours at the time of the proposed tendency evidence incident. Reliance was also placed on a report prepared by clinical and forensic psychologist Dr Katie Seidler in October 2025. Dr Seidler undertook a review of the relevant documentation. She opined that there were a number of alternative explanations to explain the complainant's behaviour the subject of the proposed tendency evidence, namely his own trauma and abuse, including of a sexual nature, that he was having a psychotic episode, or that he was motivated by normative developmental processes confused by intellectual disability and trauma, or some combination thereof. These were said to be 'more commensurate' with her knowledge and experience in this area than a tendency to sexually assault adult females. On the basis of these reports, the Crown argued that the proposed tendency evidence provides little to no support for the alleged tendencies.

[89] The base difficulty with the Crown's submission is that it invites the Court to engage in a fact-finding exercise to determine whether it is more likely that the complainant had the alleged tendencies or it is more likely that the complainant's subsequent behaviour was a response to the charged offending by the accused against him. That is the province of the jury.

[90] I note that in RH v The Queen,[22] Ward JA (Harrison and R A Hulme JJ agreeing) held (at [105]-[106]) that the jury's assessment of proposed tendency evidence about sexual conduct at a later time than the charged conduct would involve an assessment as to the likelihood that the later conduct was an isolated instance or the first time the appellant had acted on any tendency the jury was satisfied was established by that conduct, and the jury would be expected to approach the issue having regard to all of the other evidence before it, including any evidence that might suggest a particular explanation for the tendency only to have manifested itself at a late stage in the appellant's life. Thus, the Court accepted in that case that issues regarding the subsequent development of a tendency were for the jury.

[91] It is not for the Court on this application to decide between those alternative possibilities. Rather, it is for the Court to decide if the proposed tendency evidence is capable, to a significant extent, of raising a reasonable possibility that the complainant had the alleged tendencies, and whether those tendencies are capable, to a significant extent, of raising a reasonable possibility that the accused was not voluntarily and intentionally engaging in fellatio or penile/vaginal sexual intercourse with the complainant.

[92] It is not necessary that the conduct relied on as tendency evidence be strikingly or even closely similar conduct to, or that it have an underlying unity with, the charged conduct.[23] However, the closer the degree of similarity, the more significant and more probative the evidence is likely to be, because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.[24] 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 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'.[25] The case of TL v The Queen referred to in paragraph [83] above is an example of this proposition.

[93] Here, there is some similarity in the circumstances in which the two incidents occurred. At night, in a particular vicinity near where the complainant lived, he encountered a woman alone. In the proposed tendency evidence incident, the complainant said things to the woman which had sexual connotations. The Crown case in the alleged offending is that sexual intercourse took place, comprised of fellatio by the accused upon the complainant and then penile/vaginal sexual intercourse. In the proposed tendency evidence incident, by his words ('suck my dick') and actions (pulling down his shorts to partly expose his penis and pushing the victim's head towards it), the complainant appeared to have intended the victim to perform fellatio upon him. So much is clear from the charge to which he pleaded guilty of attempted sexual intercourse without consent. The complainant used force against the victim, which could rationally demonstrate his persistence for a sexual encounter notwithstanding the victim's expressed lack of consent and her resistance.

[94] I think that the proposed tendency evidence is capable, to a significant extent, of raising a reasonable possibility that the complainant had the alleged tendencies at the time of the alleged offending.

Capacity of the alleged tendencies to support the reasonable possibility

[95] The relevant reasonable possibility consistent with innocence is that the accused did not deliberately and intentionally engage in the two acts of sexual intercourse with the complainant. If the jury were to accept that the complainant had the alleged tendencies at the time of the offending, it could raise the relevant reasonable possibility consistent with innocence.

[96] The alleged tendencies would, on the standard applicable to defence applications, have significant probative value in supporting the relevant reasonable possibility consistent with innocence.

Probative value of the proposed tendency evidence

[97] For the above reasons, the proposed tendency evidence satisfies the requirements of s 97 of the Evidence Act and is admissible at the trial.

[98] The Crown argued that the proposed tendency evidence should be excluded under s 135(a) and/or (b) of the Evidence Act.

[99] Section 135 provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (relevantly) (a) be unfairly prejudicial to a party; or (b) be misleading or confusing.

[100] In The Queen v Taylor,[26] it was observed that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few. It was not a case about tendency evidence, but the Court held that the trial Judge's exclusion of the evidence tendered by the accused, in the exercise of the discretion under s 135, was open.

[101] In The Queen v Cakovski,[27] which concerned a defence tendency application, it was observed that 'a trial judge would need to think long and hard before exercising [the s 135] discretion against an accused in a criminal trial'.

[102] In rejecting a Crown submission that the tendency evidence sought to be led by the defence would result in a 'trial within a trial' and an undue waste of time, Kaye JA held in DPP v Dixon (at [137]) that the proposed tendency evidence in the trial for attempted murder and causing serious injury (that the victim had shot and killed a man 25 years before the incident the subject of the trial) would be susceptible of rather simple proof, which the prosecution could adduce, with the consequence that the evidence would be quite confined. The circumstances of that killing were not in dispute (see [132]).

[103] The Crown argued that the danger of unfair prejudice to it was that the proposed tendency evidence might cause an emotive or irrational response in the jury, or they would give it more weight than it deserved given that it comprised a single incident.

[104] Any danger of an emotional response can be ameliorated by clear directions to the jury to put aside their emotions and act on the basis of reason and logic, as well as clear directions about tendency reasoning and the use to which they may, and may not, put the proposed tendency evidence.

[105] I consider the danger of giving the evidence undue weight to be slight because the jury will be made well-aware that a single incident is relied upon to establish the tendency.

[106] The Crown argued that there is a real risk that the proposed tendency evidence would be misleading, confusing or otherwise prejudicial because the jury would not have the evidence from the psychologists about the complainant's disability, his explanations for his conduct as reported to Ms Scott, and the psychological opinion evidence about alternative explanations for his conduct, including any link to the incident the subject of the alleged offending. As set out above, the jury's assessment of the proposed tendency evidence would properly involve receipt of the psychological opinion evidence. The Defence conceded that at least Ms Scott's report would be admissible in that regard.

[107] The Crown also submitted that there is a risk that the jury would be diverted from their essential task[28] by the tendency and psychological evidence. I do not agree. The proposed tendency evidence can be adduced by agreed facts. The same could be done with Ms Scott's observations and opinions, and Dr Seidler's, if necessary.

[108] Consequently, I do not accept that the significant probative value of the proposed tendency evidence is substantially outweighed by these matters.

[109] Section 4(1) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) provides that (relevantly), except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to the complainant's sexual activities with any other person and leave must not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.

[110] The Crown conceded that if the Court were to be satisfied that the proposed tendency evidence has significant probative value, the requirement for leave in s 4(1) to cross-examine the complainant about the incident the subject of the proposed tendency evidence would be satisfied.

[111] The Defence did not identify, in any detailed way, the subject matter of the proposed cross-examination. I anticipate that the cross-examination will focus upon the complainant's intention and motivations of a sexual nature for the conduct the subject of the proposed tendency evidence, those being the subject of the alleged tendencies.

[112] The complainant is a vulnerable witness within s 21AB(c) of the Evidence Act 1939 (NT). He is a child and he suffers from an intellectual disability. The cross-examination will need to be undertaken with care, cognisant of these matters, and without undue questioning about the details of the conduct (which will be proven by agreed facts).

[113] For the above reasons, I made the following orders:

1. The proposed tendency evidence is admissible to prove the alleged tendencies in the tendency notice as amended at the voir dire, being:

(a) the tendency of the complainant to act in a particular way, namely to encounter women who are older than him and are alone in the vicinity of Baldwin Drive, Woodroffe, in the evening with the intention of initiating sexual intercourse with them non-consensually; and

(b) the tendency of the complainant to have a particular state of mind, namely a desire to target women who are alone in the evening with the intention of conducting sexual intercourse with them non-consensually.

1. Pursuant to s 4(1) of the Sexual Offences (Evidence and Procedure) Act 1983, the Defence has leave to cross-examine the complainant about his conduct comprised of the proposed tendency evidence.
2. Pursuant to s 4(1) of the Sexual Offences (Evidence and Procedure) Act 1983, the Crown has leave to re-examine the complainant about his conduct comprised of the proposed tendency evidence as arises out of the Defence cross-examination.

[1] Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 281 CLR 18 ('Roder') at [23] per the Court.

[2] Roder at [24], citing Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ ('Hughes').

[3] Elomar v The Queen [2014] NSWCCA 303 at [359] per Bathurst CJ, Hoeben CJ at CL and Simpson J ('Elomar'). See also Hughes at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.

[5] The Queen v Rolfe (No 7) [2022] NTSC 1 per Burns J.

[7] Evidence Act, Dictionary.

[9] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [46] per French CJ, Kiefel, Bell and Keane JJ ('IMM').

[10] BD v The Queen [2017] NTCCA 2 at [84] per Grant CJ, Kelly and Barr JJ.

[12] Director of Public Prosecutions v Campbell (No 1) [2013] VSC 665 at [41] per Kaye J ('DPP v Campbell'); Director of Public Prosecutions (Vic) v Dixon (Ruling No 1) [2020] VSC 743 at [106]- [107] per Kaye JA ('DPP v Dixon'); The Queen v Holmes (No 5) [2021] NSWSC 115 at [34], [35], [44] per Campbell J.

[13] Ibid. See also DPP v Campbell at [55] per Kaye J; The Queen v Lockyer (1996) 89 A Crim R 457 at 460 per Hunt CJ at CL.

[14] DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349.

[15] The same view was taken by Taylor J in Director of Public Prosecutions v Wilson [2021] VSC 766 at [56], and by me in The Queen v Majak [2022] NTSC 57 at [44].

[16] The Queen v Lockyer (1996) 89 A Crim R 457.

[17] TL v The King [2022] HCA 35; (2022) 275 CLR 83.

[18] TL v The Queen [2020] NSWCCA 265.

[19] Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258.

[20] Citing The Queen v Malibirr [2022] NTSC 59 at [24] per Kelly J.

[21] In The Queen v Beserick (1993) 30 NSWLR 510, Hunt CJ at CL said (at 523) that, in general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind. This conclusion was founded (at 525) on whether the subsequent sexual activity was relevant in order to place the earlier activity in its proper context.

[22] RH v The Queen [2014] NSWCCA 71; (2014) 241 A Crim R 1.

[23] Hughes at [38]-[39]; Saoud v The Queen [2014] NSWCCA 136 at [39] per Basten JA (Fullerton and R A Hulme JJ agreeing).

[24] Taylor v The Queen [2020] NSWCCA 355 at [122(vii)] per Bell P and the authorities there referred to.

[25] Ibid at [122(ix)] per Bell P and the authorities there referred to.

[26] The Queen v Taylor [2003] NSWCCA 194 at [130] per Bell J (Spigelman CJ and Miles AJ agreeing).

[27] [2004] NSWCCA 280 at [72] per Hidden J.

[28] See The Queen v Rolfe (No 7) [2022] NTSC 1 at [113] per Burns J.