The King v Robertson [2025] NTSC 63

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

The King v Robertson [2025] NTSC 63

• [1] The accused is charged with the murder of Kumanjayi Jurrah ('the deceased'), contrary to s 156 of the Criminal Code (NT). The offence is alleged to have taken place on or about 14 July2023.
• [2] The facts set out in the following paragraphs [3] to [14] are taken from the Crown case outline.[1]
• [3] The accused and the deceased had first commenced their relationship at some time before January 2000. In the years which followed, there were many periods of separation, some of which lasted years, and during which one or both of the parties had a relationship with a different domestic partner.
• [4] From an early time the relationship between the accused and the deceased was marred by violent and controlling behaviour on the part of the accused. On many occasions their 'troubles' came to the attention of the police, on some occasions as a result of reporting by the deceased herself and on other occasions because the police were called by other persons.
• [5] On some of the occasions referred to in the previous paragraph, the deceased provided police with a formal statement to enable the prosecution of the accused. On occasions the deceased asked for protection by way of a police DVO, or for the accused to be taken into custody overnight. Sometimes the deceased told the police that she did not want any action taken against the accused.
• [6] The accused was convicted of assaulting the deceased, with circumstances of aggravation, on four occasions. The assaults were committed on 18 June 2001, 6 November 2001, 11 August 2009 and 25 September 2022. All but one involved the use of a weapon causing harm. There were many other occasions when the deceased reported that she had been assaulted by the accused with a weapon, and in the period from January 2000 onwards, many DVOs were put in place for the protection of the deceased.
• [7] The accused and deceased resumed their relationship in 2022 after several years spent apart. Sometimes the deceased stayed with family at Hidden Valley town camp but mostly she would stay with the accused in a place they called "the saltbush", a scrub area near the Mercure Hotel, in Stott Terrace, Alice Springs
• [8] Recurring sources of tension and conflict in the resumed relationship included royalty money, control by the accused over the deceased's keycard, the deceased's attempts to retrieve her keycard and other belongings, and mutual jealousy accusations. The Crown acknowledges that the violence in the relationship did not always involve the deceased being a passive participant, but the discrepancies in size, weight and capacity for applying violent force were such that the deceased was generally the dominated and often injured party.
• [9] During 2022 and the first half of 2023, when interacting with police, the deceased increasingly referred to attacks with weapons by the accused and expressed concerns about the risk she faced from him.
• [10] In that period, violent assaults committed by the accused, or other incidents involving the threat of violence by the accused, took place on 4 April 2022, 6 May 2022, 27 June 2022, 25 September 2022 and 6 July 2023. They are respectively incidents 7, 5, 4, 2 and 1 set out in Table 'A' of the further amended tendency notice, extracted in par [22] below. It is not necessary to here separately describe those incidents, given that they are described in the Table, but they are important components of the unfortunate narrative of events which ultimately led to the death of the deceased.
• [11] In the afternoon of Friday, 14 July 2023, the accused and the deceased were unsuccessful in attempts to obtain alcohol. They consumed an unknown quantity of hand sanitiser together. At about 9 PM that day, they were dropped off on Stott Terrace near their saltbush campsite. From there, the accused and the deceased started to make their way to their tent, which was about 70 metres from the road. At some point along the trail, the accused engaged in a lengthy assault or series of assaults on the deceased, involving a large number of applications of force to various parts of her body.
• [12] The Crown is not in a position to particularise the sequence in which the applications of force took place but asserts that it can be inferred from the spread and nature of injuries sustained (which included multiple blunt force trauma bruising to the back) that they took place over an extended period of time.
• [13] The applications of force included multiple strikes with a mini sledgehammer weighing 2.086 kg.[2] The accused struck a substantial blow to the deceased's head with that sledgehammer, causing injury and bleeding. Specifically, it caused a large gaping laceration in the left temporal region of the scalp and caused a small depressed fracture (7 millimetres long) to the underlying skull.

1. The cause of death was described as "respiratory failure due to extensive chest and head injuries and hypovolaemic shock due to blood loss".[3] The forensic pathologist noted extensive soft tissue haemorrhages and internal bruising across various parts of the deceased's body, including the chest, side, back and head. She also noted injuries to the deceased's left leg, from the hip to the ankle, and a number of associated fractures. There were many external and internal signs of injury to the deceased's left arm, consistent with defensive injuries, that is, consistent with her attempts to protect herself.

• [15] Senior counsel for the accused informed the court on 10 July 2025 that there will be no issue at trial that (1) the accused committed the acts which caused the fatal injuries and that (2) the acts were deliberate acts. It will be conceded that the fatal injuries were not caused by accident and that there was no third-party involvement. Although those concessions will need to be the subject of formal admissions at trial, I assume for the purposes of this decision that relevant admissions will be made
• [16] In prosecuting the murder charge, the Crown does not allege that the accused intended to kill the deceased. Rather the Crown contends that "it can be inferred from the available evidence (including in respect of the past and ongoing relationship between the accused and the deceased) that the violence was accompanied by a willingness and desire to bring about a result whereby the deceased would suffer harm that would be significant and long-standing".[4]
• [17] A person commits the offence of murder contrary to s 156 Criminal Code if (a) the person engages in conduct; (b) the conduct causes the death of another person; and (c) the person intends to cause the death of, or serious harm to, that ... person by that conduct. The word 'conduct' in this context means an act, or physical action. To 'engage in conduct' is to perform an act. A person's conduct 'causes' death or harm if it substantially contributes to the death or harm. The meaning of 'serious harm' for present purposes is physical harm that endangers or is likely to endanger a person's life, or that is or is likely to be significant and long-standing. The definition includes 'the cumulative effect of more than one harm'. The Crown's contention, extracted in the previous paragraph, is thus that the accused engaged in violent conduct against the deceased with intent to cause her serious harm, in the sense of harm that was likely to be significant and long-standing.
• [18] I turn to consider the Crown's application to adduce tendency evidence.
• [19] By Notice dated 6 June 2025, given pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 ("ENULA"), the Crown notified the intention to adduce tendency evidence. The Notice provided that the tendency evidence related to the following facts in issue in the proceedings:

Whether the accused caused the injuries which GJ ('the deceased') suffered on the night of 14 July 2023 and/or in the early morning of 15 July 2023;

To rebut any defence proposition that the injuries suffered by the deceased were the result of an accident or some event not involving the application of violent force by the accused;

Whether the accused struck or otherwise applied force to the deceased on the night of 14 July 2023 or the early morning of 15 July 2023 with an intention to cause serious harm.

• [20] In the light of the concessions (proposed admissions) referred to in [15] above, the first and second of the facts in issue are no longer truly in issue. The third remains, and should be the focus of my consideration of probative value.[5] Although the nature and extent of the injuries described in [13] and [14] might be sufficient to prove conduct engaged in by the accused with intent to cause harm that was likely to be significant and long-standing, the Crown in addition seeks to adduce tendency evidence in relation to the issue of intent.
• [21] The tendency sought to be proved is the tendency of the accused to:

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

(i) a violent disposition towards his current or former domestic partner including GJ, and a preparedness to act on that disposition, in particular after consuming alcohol;

(ii) a willingness and desire to inflict injuries on his current or former domestic partner likely to require medical treatment and/or to be disfiguring in particular after consuming alcohol.

(b) act in a particular way, namely:

(i) to use violent force to cause harm to a current or former domestic partner, including GJ, in particular by the use of weapons of convenience and in particular after consuming alcohol.

(ii) to continue a commenced assault against a current or former domestic partner by way of multiple sequential applications of force, including where conduct is paused to locate a weapon (or replacement weapon).

• [22] The Tables below set out the various incidents and the evidence relied on by the Crown of threatened or actual applications of force to the deceased and two other female victims, with relevant particulars:

Table A - GJ incidents [in reverse chronological order]

The accused made a threat to GJ articulated in terms consistent with a contemplation of causing serious harm.

The accused and GJ were living rough in Alice Springs. They had gone to the Yeperenye Centre in the town area. GJ approached Police who were at the entrance of the bottle shop and reported that the accused was threatening her ("he told me I'll hit you with axe"), and that she was frightened ("I don't wanna die").

• - Representations on BWV from GJ.
• - Benjamin Thorneycroft (Police)
• - Kahlil Currie (Police)
• - Rachael Hayden (Police)
• - Callum Innis (Police)

The accused hit GJ to the head with a rock three times, causing a laceration and bleeding, and also scratched GJ's neck, causing cuts and abrasions. After the arrival of the Police the accused made a threat to GJ consistent with contemplation of a particular outcome in terms of the degree of future harm to be caused to her.

GJ had been drinking with family members at Hidden Valley Camp and then went with them to the saltbush area near the Mercure Hotel to keep drinking. GJ was sitting down with others when the accused walked over and hit her with a rock to the head, using both hands. This caused pain and bleeding from a laceration to the top of GJ's right forehead. The accused dropped the rock and scratched GJ's neck, causing cuts and abrasions. Police arrived at nearby Mueller Street in response to reports of a domestic disturbance. GJ was observed to be bleeding from the laceration from her forehead and told Police that she had been hit with a big rock three times. She was concerned about getting back her keycard which was in JR's possession. The accused was arrested for the purposes of serving a domestic violence order. While in Police custody at the scene and in the presence of GJ, the accused shouted out in Warlpiri: "I'm gonna hit you GJ - I'm gonna make you bleed." GJ declined at that time to make a statement.

• - GJ (representations on BWV and in GJ Police statement).
• - Dale Spera (Police)
• - Nicholas Snook (Police)
• - Steve Haig (Police)
• - Peter Heaft (Police)
• - Injury photographs
• - Police BWV
• - Certificate of proceedings.
• - Tendered statement of facts.

The accused hit GJ multiple times to the back with a large rock, and also punched her and struck her with a chair.

GJ and the accused were at a bush camp near the Mercure Hotel, together with another Aboriginal woman AW and AW's partner Chris. AW phoned 000 for help, making a report to the effect that there was a violent man there who was hitting his wife. Police attended and spoke first to AW and then to GJ. GJ said: "I been really crippled from the big rock", that she had been hit with the rock three times, and that "he been punch me". She also said she had been hit with a chair and tried to show Police the chair. GJ said she wanted to make a statement. Police were unwilling to do so while she was still under the influence of alcohol, and wanted to take her to the Hospital. GJ told Police that to start off with they had been drinking "good way", and went on to say "but he's a jealousing man". Police retrieved GJ's keycard from JR's possession and took GJ to the Alice Springs Hospital, where she reported having been hit with a large rock several times. On examination she was very tender over the mid thoracic spine and posterior ribs.

• - Arabella Williams (000 call and initial BWV).
• - GJ (representations on BWV and to ASH staff).
• - Simon Gillett (Police)
• - Yumbi Yenga Yenga (Police)
• - Police BWV
• - ASH records

After assaulting GJ and being taken into Police custody, the accused made a threat to GJ articulated in terms consistent with a contemplation of causing serious harm

The accused and GJ had had a fight in which the accused's face was scratched. The accused was then seen to be punching GJ and another woman outside the front of the Alice Springs Library.

The accused caused a large lump to GJ's face. The women sought refuge in the library. The accused was still attempting to gain access to the Library until he realised the Police had arrived. Police spoke first to the accused, and then to GJ who walked out once she had seen he was with Police.

The accused had GJ's bag and phone. At one point GJ said to Constable Charteris: "Cause I'm getting sick of it, always hit me." While the accused was in the back of the Police van, and still in close proximity to GJ, he said to GJ in Warlpiri on two occasions "I'm going to stab you."

• - Amy Brown (000 call)
• - GJ (representations on BWV)
• - Christopher Myles (Police)
• - Benjamin Charteris (Police)
• - Police BWV

The accused assaulted GJ by punching her over an extended period of time causing severe pain to her left wrist/forearm and to her back. The assault included a bite to GJ's left hand, and a blow to the ear causing bleeding.

The accused and GJ were camping in the saltbush area across from the Mercure Hotel (at that time still being used as a Covid 19 quarantine facility). At about 7 am GJ came over to the Mercure and sought assistance from the security guard at the entrance. Police were called and arrived to find GJ sitting down near the entrance nursing her left wrist/forearm. Police also noted dried blood around her right ear. GJ was unable to move the fingers on her left hand and also complained of pain to her back:"...my back too, really pain"..."He was hitting me - there was no sleep"... "Last night, right up to morning time:..."That's why I been run this way." GJ also said that when she ran away "he was looking for, I don't know what for, might be nulla nulla." GJ asked for a restraining order and for assistance in getting back her clothes. GJ was taken to the Alice Springs Hospital. ED staff recorded that her left arm and upper back were very hyperalgesic, and that range of motion was very limited at the elbow and wrist due to pain. Arrangements were made for GJ to be taken to the Women's Shelter.

• - GJ (representations on BWV and to ASH staff)
• - Nicol Fawcett (Police)
• - Dylan Hart (Police)
• - Police BWV
• - ASH records

The accused pushed GJ to the ground and kicked her to her right hip (causing an extensive haematoma and a lumbar transverse process fracture), and to her left eye (causing a 4cm open wound with significant tissue swelling) while wearing steel-capped boots, and then picked up a rock and struck her with it to the left side of her head. (causing a 3cm open wound to her left scalp).

GJ had been drinking with family at a residence in Larapinta on the night of 23/5/11. In the early morning of 25/5/11 the accused (her then ex-domestic partner) came to the unit and became jealous and angry. He assaulted her and caused the injuries. After a further period drinking at Warlpiri Camp, GJ went to the Sobering Up Shelter, and was taken from there to the Alice Springs Hospital. She told Hospital staff that she had been kicked with steel-capped boots. A CT scan revealed a fresh lumbar vertebral transverse process fracture (this was treated conservatively). Police were called to the Hospital and took a statement from GJ. In the statement GJ disclosed not just the assault on 24/5/11 but also an assault the week before when the accused had hit her to the left side of the head with a big rock.

• - GJ (representations to ASH staff and to Police in GJ Police statement).
• - Dr Helen Nicholson
• - Alain Diamond (former Police)
• - Jamie Mawhinney (former Police)

The accused threw a tennis ball-sized rock at GJ from 4 metres away, which hit her in the scalp causing a laceration wound and bleeding. The accused subsequently bit GJ to the right cheek, breaking open the scar tissue of a pre-existing injury.

The accused and GJ had been drinking together behind Hoppy's Camp a few hours earlier, but GJ had left and gone to House 12. The accused came to House 12 and argued with GJ. He picked up the rock and threw it at GJ. The argument continued and the accused bit GJ to the right cheek, where there was already a large area of scar tissue. Photos taken by Police show the laceration to GJ's scalp with dried blood descending through her hair to the neck, and the fresh wound to GJ's cheek. The accused subsequently pleaded guilty to assaulting GJ.

• - Certificate of proceedings
• - Accepted summary of facts
• - Tendered Police injury photos

The accused stabbed GJ twice with a knife, once to the right side and once to the right buttock. GJ required hospitalisation and surgery. The stabbing resulted in a penetration of the "peritoneal reflection" but there was no visceral injury.

The accused, together with his then girlfriend, had come to the house at Hidden Valley Camp, where GJ was staying. It was late at night and GJ had been sleeping outside the house. GJ woke up and there was an argument between her and the accused about the accused staying there with girlfriend. The accused started chasing GJ with a knife. GJ tried to get away and hide, but the accused caught up with her and stabbed her twice. He stopped when a family member intervened.

• - GJ (representations to ASH staff and to Police, in GJ Police statement)
• - ASH records
• - Sarah Firth (Police)

The accused struck GJ with a star picket while she was sleeping, breaking her left forearm. GJ woke up but was still on the ground when the accused applied further force to GJ's head

The accused and GJ were separated and there was a full non-contact DVO in place. During the afternoon of 6/11/01 the accused was drinking at House 5 Little Sisters Camp, and GJ was drinking outside House 7 Little Sisters Camp. The accused approached GJ and told her she shouldn't be drinking alcohol. GJ told the accused that he couldn't come near her, invoking the DVO. The accused then accused GJ of having a new boyfriend. At about 7pm the accused returned to the outside of House 7, by which time GJ was sleeping there. The accused was holding a star picket, which he swung and broke GJ's arm. He then hit GJ's head. GJ was admitted for treatment at Alice Springs Hospital and underwent surgery to pin the bone. She was also treated for a bruised and grazed left cheek.

• - Certificate of proceedings
• - Accepted summary of facts

The accused punched GJ twice to the stomach when she was 32 weeks pregnant, and a short time later threatened to throw a stone at GJ. After being restrained by one of GJ's family members, the accused followed GJ into a room and stabbed her approximately 5 times to the stomach and buttocks with a spoon. After the accused's arrest he called out to GJ threatening to kill her.

GJ was at House 7 Little Sisters Camp. The accused knew that GJ was heavily pregnant. The accused came there heavily intoxicated, and began arguing with GJ. A fight ensued inside the house. The accused punched GJ twice to her stomach, causing her to collapse to the ground. He then ripped off all her clothes leaving her naked. GJ screamed out for help and the accused left the house. The accused returned a short time later armed with a rock the size of a house brick. He raised the rock above his head and was about to throw it, when he was restrained by one of GJ's family members. It was at this point that the accused followed GJ into a bedroom and started stabbing her with a spoon. After Police arrived and the accused had been arrested and placed in the back of the Police van the accused called out to GJ: "you fucking bitch, I'll fucking kill you."

• - Certificate of proceedings
• - Accepted summary of facts
• - GJ (representations to Police and GJ Police statement)
• - Scott Reinke (former Police)

Accused choked MG and then struck her with a large stick, causing a displaced fracture above the left elbow.

The accused and MG had been drinking alcohol at a campsite in bushland near Yipirinya School, and were both intoxicated, despite a DVO restraining the accused from being in MG's company when drinking or under the influence of alcohol. The accused became angry for a reason he did not disclose, and choked MG with both hands to the point where she could not breathe. When she tried to protect herself, the accused walked away, armed himself with the stick, and then returned to assault MR with it. MR required surgery (open reduction and internal fixation of the left distal humerus bone) and the injury constituted serious harm.

• - Certificate of proceedings;
• - Tendered Crown Facts;
• - X-ray images of injury

Accused armed himself with a long pair of scissors and after walking behind PR accusing her of infidelity, stabbed her multiple times (including twice to the forearm as she was trying to defend herself, and subsequently 4 times to the buttocks).

The accused and PR were at the Trucking Yards camp. PR had raised her arm to defend herself after the accused had pushed her to the ground, and upon seeing that he had the scissors raised above his head ready to stab her. The stab wounds to PR's buttocks were inflicted after PR had rolled over on her side in an attempt to shield herself. PR suffered severe muscle damage to her left arm, plus lacerations to the head, chest and legs.

• - Certificate of proceedings
• - Accepted sentencing facts
• - PR (committal proceedings evidence)

After drinking a large amount of alcohol, the accused started to harass PR about seeing other men. PR got up and told the accused she was going to the toilet. The accused grabbed a screwdriver which was lying on the ground next to him, and stabbed PR once to the lower leg. After a period of continuing jealous harassment, the accused picked up the screwdriver again and stabbed PR twice to the left side of her head, and then poked her once in the upper back. All of PR's injuries were bleeding. PR was medevacked to Alice Springs Hospital and was treated for a laceration to her head.

• - Certificate of proceedings
• - Accepted sentencing facts

• [23] Tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. Tendency is relied on as circumstantial evidence in proof of the offence charged.[6] The jury is asked to reason by inference that, because the accused acted in a particular way on some other occasion or occasions, he acted in the same way on the occasion the subject of the charge at trial.[7] Evidence that an accused had a particular tendency is adduced in order to render more probable the proposition that, on the particular occasion relevant to the proceeding, the accused had a particular state of mind (or acted in a particular way), in order to provide the foundation for an inference to that effect.[8]
• [24] Section 97 ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note for section 97

The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

• [25] Section 101 of the ENULA has application to criminal proceedings and provides, so far as is relevant for these purposes, that tendency evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect. It provides:

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

• [26] The Dictionary in the ENULA defines "probative value" of evidence to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The Crown contends that the proposed tendency evidence is "relevant to and significantly probative of specific intent", that is, whether the accused intended to cause serious harm to the deceased.

1. The test of "significant probative value" requires something more than mere relevance.[9] In the present case, the proposed tendency evidence would have "significant probative value" if it could rationally affect the assessment of the probability of the remaining fact in issue in some important fashion.[10] This resolves to a judicial evaluation about the reasoning processes open to the hypothetical jury: whether the jury would rationally think it likely that the evidence is important in relation to the determination of that fact in issue.[11]

• [28] I approach the evaluation in a two-step process. The first step is to assess whether the evidence of previous conduct would be probative in establishing the tendencies alleged by the Crown, extracted in par [21] above. If an inference of tendency can be sustained, the second step is to consider whether that tendency makes it more probable that the accused engaged in the conduct alleged by the Crown with the intention to cause serious harm to the deceased.
• [29] In my opinion, the evidence of numerous incidents over a period of more than 20 years proves a tendency on the part of the accused, in particular when intoxicated by alcohol, to have a violent disposition or inclination to violence directed at his then-current or previous domestic female partners and a preparedness to deploy weapons and/or otherwise use violent force to inflict serious injury or injuries on those women.
• [30] Senior counsel for the accused submitted that violence carried out in the distant past cannot sensibly be used to establish a state of mind or an intent in conduct engaged in 25 years later. He contends that it is "even plainer where there are a series of relevantly similar episodes of a similar nature through the intervening years".[12] In oral submissions, defence counsel contended that the Crown should not be permitted to adduce "the earliest material", because (if I correctly understand the submission) the historical events occurred so long ago that evidence about them could not have significant probative value, as required by s 97(1)(b) ENULA. The gap is so great that "strong inferences" could not be drawn in relation to specific intent in 2023. Defence counsel also contended, as an additional reason to exclude evidence of those historical incidents which involved a victim or victims other than the deceased, that there was a real risk of unfair prejudice, in that the probative value of the evidence does not outweigh the prejudicial effect it may have on the accused, with the result that s 101(2) ENULA prohibits the use of the evidence
• [31] In my judgment, events from many years ago are very relevant in the present case to prove the tendencies alleged by the Crown. In other cases, for example where conduct relied on to prove a tendency occurred many years previously and had not been repeated, the historical conduct might not be particularly probative of the alleged tendency. In the present case, however, evidence of events which took place many years ago should properly be considered with evidence of events in the intervening period from 2001 to July 2023. The greater the number of manifestations of the alleged tendency during that period, the greater the probability of the existence of the tendency. Regularity of occurrence is also an important consideration. The submission of senior counsel quoted in [30] is correct, but for the reverse reason to that advanced. In my opinion, the tendency is better proven where there are a series of relevantly similar episodes of a similar nature through the intervening years.
• [32] I acknowledge that a tendency may be proven in a particular case by a limited number of relevant incidents. For example, the Victorian Court of Appeal in GBF v The Queen recognised a tendency on the basis of "only two incidents of its manifestation", explaining its decision as follows: [13]

.... as logic dictates, and the common law similar fact cases confirm, an accused may have a tendency to engage in a particular kind of criminal behaviour which he or she has demonstrated on only very few occasions and yet which may still be significantly probative of the fact that he or she has so acted on a further occasion. It depends upon the nature of the tendency. ...

• [33] However, the fact that a tendency might be proven in a particular case by evidence of a limited number of relatively recent incidents does not preclude the Crown from proving the alleged tendency in a more comprehensive way by reference to relevant historical incidents. Proof of the tendency in that way may well increase the prospects of a guilty verdict, but that is not unfair prejudice.[14]
• [34] My characterisation of the substance of the proven tendency in [29] is a re-statement (in slightly different terms) of the several distinct tendencies or sub-tendencies alleged in the tendency notice, save for that in par (b)(ii). The significance of the asserted sub-tendency in par (b)(ii) is that a tendency to engage in multiple sequential applications of force and/or pausing to obtain a weapon or replacement weapon suggest an intent to cause not only additional harm but also more serious harm. Indeed the use of a weapon, whether deployed at the outset or at a later stage in an assault, is itself an indication of intent to cause harm and, depending on the facts, serious harm. I will say more about par (b)(ii) in [50] below.
• [35] The 'numerous incidents' involving the deceased, referred to in [29], are incidents 14, 13, 9, 8, 4, 2 and 1 in Table A. The incidents involving other women are incident 1 of the MG incidents (pressed by the Crown) in Table C and incident 1 of the two PR incidents in Table E. There are nine incidents altogether. I discuss all those incidents in [36] - [45] below.
• [36] Incidents 14 and 13 of the incidents involving the deceased took place respectively in June and November 2001.
• [37] In incident 14, the heavily intoxicated accused assaulted the deceased with multiple sequential applications of force: twice punching her to the stomach; shortly afterwards threatening her with a large rock and attempting to throw it at her (until he was restrained), then stabbing her several times with a spoon to her stomach and buttocks. When arrested, the accused made a threat to kill.
• [38] In incident 13, there were two separate applications of force by the intoxicated accused. He used a star picket to fracture the deceased's forearm. He then struck her on the head.
• [39] The first incident involving PR took place in August 2005. The accused stabbed the victim multiple times with a long pair of scissors to the forearm and buttocks, in the process causing severe muscle damage to her left arm.
• [40] Incident 9 of the incidents involving the deceased took place in August 2009. There were two separate applications of force by the intoxicated accused. He threw a tennis ball-sized rock at the deceased, causing a scalp laceration and bleeding, and then bit deceased to the cheek causing a fresh wound in existing scar tissue.
• [41] Incident 8 of the incidents involving the deceased took place in May 2011. There were multiple sequential applications of force, starting with the accused pushing the deceased to the ground and kicking her to the hip causing an extensive haematoma and a lumbar transverse process fracture. The accused was wearing steel-capped boots. He kicked the deceased to the left eye causing a 4 cm open wound. He also struck the deceased with a rock to the left side of her head causing a 3 cm scalp wound.
• [42] Incident 1 of the MG incidents took place in May 2017. There were two separate applications of force by the intoxicated accused. He first choked the victim with both hands to the point where she could not breathe. He then armed himself with a large stick and re-commenced the assault on the victim by striking her above the elbow causing a fracture of the left distal humerus.
• [43] Incident 4 of the incidents involving the deceased took place in June 2022. The accused struck the deceased to the back several times with a large rock, causing tenderness over the mid-thoracic spine and posterior ribs.
• [44] Incident 2 of the incidents involving the deceased took place in September 2022. There were two kinds of application of force by the accused. He first hit her three times to the head with a rock, causing a laceration to her forehead and bleeding. He then dropped the rock and scratched the deceased on the neck, causing cuts and abrasions. After his arrest, he made a threat (to make the deceased bleed) indicative of an intent to cause serious harm or, at least, a state of mind in which he envisaged causing serious harm to the deceased, whether by use of a weapon or with his bare hands.
• [45] Incident 1 of the incidents involving the deceased took place on 6 July 2023, just over a week before her death. The accused threatened to hit the deceased with an axe. The specific reference to a sharp and heavy weapon is indicative of an intent to cause serious harm or, at least, a state of mind in which the accused envisaged causing serious harm to the deceased by use of the axe.
• [46] Eight of the nine incidents took place over a period of 21 years, from mid-2001 to late 2022. For present purposes, I will treat the two incidents in 2001 as one, notwithstanding that they took place five months apart. For the same reason, I will treat the two incidents in 2022 as one incident. It can be seen that incidents took place in 2001, 2005, 2009, 2011, 2017 and 2022. The gaps in years between incidents are respectively four years, four years, two years, six years and five years. The average gap is about four years. I note the average gap between incidents would be considerably less than that.
• [47] There is an explanation or partial explanation for the gaps. For example, the accused served a gaol sentence of three years and four months from 26 August 2005 to 25 December 2008 for, inter alia, unlawfully causing grievous harm to PR in August 2005. The accused was sentenced to a gaol term of four years and six months for unlawfully causing serious harm to MG on 24 May 2017; he was in prison from 30 May 2017 until released on parole on 14 December 2020. His criminal record (exhibit P7) provides evidence of several other prison sentences for violent offending from 2001 onwards, including a sentence of two years (with a non-parole period of 14 months) for the aggravated assault of the deceased in November 2001, and a sentence of five months (suspended after four months) for the aggravated assault of the deceased in August 2009.
• [48] The accused spent more than eight years in gaol from mid-2001 to late 2022. The nature of the alleged tendency is such that it would not manifest during the periods of time the accused spent in custody.
• [49] I accept the Crown submission that the accused's tendency to have a particular state of mind involved a persisting mindset that was enduring, and "triggered from time to time".[15] It is not necessary for me to make a finding as to the precise trigger for each incident, whether it was alcohol or sexual jealousy, or a combination, or some other trigger.
• [50] The numerous incidents summarized in [36] - [45] provide proof of the tendency described in [29] above. They also provide proof of the tendency alleged in par (b)(ii) of the tendency notice. The accused's conduct and words attributed to him demonstrate an intent to cause serious harm and/or a state of mind in which he envisaged intentionally causing serious harm and/or represented an attempt to cause serious harm and/or actually causing serious harm. Of the nine incidents identified by me, five involved multiple applications of different kinds of force.[16] Those five involved the deployment of at least one weapon. A further three incidents involved the deployment of the same weapon several times.[17] In two of the incidents, the accused made serious threats: that he would hit the deceased and make her bleed; and that he would hit her with an axe. In four or possibly five incidents, the accused was intoxicated or had been drinking.[18] The combined evidence has significant probative value. It is not necessary for all aspects of the alleged tendency (or sub-tendencies) to be present in each incident relied on.[19]
• [51] In conclusion, I am satisfied that evidence of the nine incidents has significant probative value in that it could rationally affect to a significant degree the assessment of the probability of whether the accused struck or otherwise applied force to the deceased with an intention to cause serious harm. I am further satisfied that the probative value of that evidence outweighs the danger of unfair prejudice to the accused.
• [52] This ruling is intended to permit the Crown to lead tendency evidence limited to the incidents specified by me. I have not determined objections or dealt with defence argument in relation to admissibility on grounds other than tendency (and consideration of prejudicial effect under s 101(2) ENULA).

[1] Amended Outline dated 6 June 2025.

[2] The head section weighed about 1.8 kg.

1. [3] Hypovolaemic shock is an emergency condition in which severe blood or other fluid loss (for example, from internal bleeding) makes the heart unable to pump enough blood to the body. This type of shock may cause multiple organ failure.

[4] Crown Case Outline, 6 June 2025, par 42

[5] Ebborn v The King [2025] NTCCA 2 at [54] - [56].

[6] JS v R [2022] NSWCCA 145 at [43] per Bastin AJA, Hamill J and Dhanji J agreeing at [53] and [54] respectively.

[7] R v Harker [2004] NSWCCA 472 at [57], per Howie J; Santow JA and Bell J agreeing.

[8] R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] - [23] per Simpson J; McClellan CJ at CL agreeing.

[9] Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 180 ALR 569 at [72]-[73]; S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service, [EA.97.120]; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702.

1. [10] R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [51]; DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72]; R v Lock (1997) 91 A Crim R 356 at 361.
2. [11] Odgers, op cit, [EA.97.120]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72].

[12] Defence written submissions in reply, 27 June 2025, par 15.

[13] GBF v The Queen [2010] VSCA 135 at [34].

[14] See the discussion of 'prejudicial effect' and 'unfair prejudice' in R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [55] - [59] per Campbell JA. See also R v Bauer [2018] HCA 40; 266 CLR 56 at [73].

[15] Oral submission in reply, 11 July 2025.

[16] Incidents 14, 9, 8, and 2 involving the deceased, and the incident involving MG.

[17] Incident 13 and 4 involving the deceased, and the incident involving PR.

[18] Incidents 14, 13, 9 (and possibly 4) involving the deceased, and the incident involving MG.

[19] See, by way of example, Lynch v The King [2025] NTCCA 5 at [48] - [49], [77].