The King v Williamson [2025] NTSC 38

EVIDENCE - Admissibility and relevance - Evidence (National Uniform Legislation) Act ss 98, 101 - Whether evidence of alleged charged conduct and conduct of alleged co-offender the subject of convictions in the Local Court admissible as coincidence evidence - Lack of similarity between proposed coincidence offence and alleged offending - Evidence not admissible as coincidence evidence due to insufficient probative value

EVIDENCE - Admissibility and relevance - Whether evidence of alleged charged conduct relating to one incident cross-admissible as context evidence in relation to the other incident - Evidence cross-admissible as context evidence to enable true understanding of accused's motivation for alleged offending

CRIMINAL LAW - Jurisdiction, practice and procedure - Application to sever indictment - Evidence cross-admissible as context evidence and, potentially, as tendency evidence - Application not pressed

Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Nguyen v The Queen (2020) 94 ALJR 686; The Queen v Lisoff [1999] NSWCCA 364; The Queen v LM [2017] NTSC 81; The Queen v Naa [2009] NSWSC 851; The Queen v Taylor [1999] ACTSC 47, applied.

BD v The Queen [2017] NTCCA 2; Carr v The Queen [2002] TASSC 60; (2002) 11 Tas R 362; Christie v Leachinsky [1947] UKHL 2; [1947] AC 573; Cornwell v The Queen [2010] NSWCCA 59; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; Derwish v The Queen [2016] VSCA 7; Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Martin v New South Wales [2002] NSWCA 337; Matthews (a pseudonym) v The King [2023] VSCA 229; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334; O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566; Packett v The King [1937] HCA 53; (1937) 58 CLR 190; Police v Williams [2014] SASC 177; (2014) 246 A Crim R 317; SB v The Queen [2007] HCATrans 253; Slaveski v Victoria [2010] VSC 441 ; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528; The King v Dixon (No 1) [2023] NTSC 100; The King v Mayatjun [2023] NTSC 16; The King v Overs [2024] NTSC 46; The Queen v AB [2001] NSWCCA 496; The Queen v AC [2018] NSWCCA 130; The Queen v AW [2018] NTSC 29; The Queen v Bauer (2018) 266 CLR 56; The Queen v Bertrand [2008] VSCA 182; (2008) 20 VR 222; The Queen v Cranston (1988) 1 Qd R 159; The Queen v Deng [2001] NSWCCA 153;The Queen v Gale [2012] NSWCCA 174; (2012) 217 A Crim R 487; The Queen v Hiko [2018] NTSC 35; The Queen v Keane [1994] 1 WLR 746; The Queen v Lisoff [1999] NSWCCA 364; The Queen v Lipton [2011] NSWCCA 24; (2011) 221 A Crim R 384; The Queen v Martin [2018] NTSC 19; The Queen v O'Brien [2017] NTSC 34; The Queen v PJMS [2011] NTSC 48; The Queen v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454; The Queen v Spiteri (2004) 61 NSWLR 369; The Queen v Tupou [2016] NTSC 56; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598; TL v The King [2022] HCA 35; (2022) 275 CLR 83, referred to.

Criminal Code 1983 (NT) ss 188, 218, 219, 221, 222, 309, 341.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 81, 84, 90, 97, 98, 101, 137, 138.

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021)

S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021).

Crown: Office of the Director of Public Prosecutions

The King v Williamson [2025] NTSC 38

[1] The accused is charged with four offences said to have occurred in two separate incidents on the same night at Yulara. The parties sought pre-trial rulings on the admissibility of various evidence to be relied on by the Crown at trial. That evidence includes things said by the accused after his arrest relied on as admissions. The Defence objected to the admissibility of any admissions on the basis that the accused's detention by Police after an initial arrest by citizens was unlawful.

[2] The Crown also seeks to rely on tendency evidence in the form of: (a) the evidence relating to the four charged acts; (b) prior conduct for which the accused has been convicted in other proceedings; and (c) conduct in respect of which the accused has been charged in other proceedings which have yet to be dealt with by the Local Court. The Defence denied the admissibility of the proposed tendency evidence on various bases, including that the accused's pleas of guilty on the basis of admitted facts had not been proved by the Crown, a failure to disclose the entirety of the prosecution briefs in those other proceedings, inadequacy of the Crown's tendency notices and that the probative value of the proposed tendency evidence did not outweigh the danger of unfair prejudice to the accused.

[3] The Crown also seeks to rely on coincidence evidence in the form of the evidence relating to the four charged acts and conduct in respect of which the alleged co-offender had been convicted in other proceedings. The Defence objected to this evidence on the basis that it did not have significant probative value.

[4] The Crown also seeks to rely on context evidence in the form of the evidence relating to the charged acts the subject of the first incident being cross-admissible in relation to the charged acts the subject of the second incident and vice versa. The Defence objected to the cross-admissibility of the evidence as context evidence on the basis that the evidence of one incident was not necessary to understand the evidence of the other.

[5] Subject to the evidence not being cross-admissible, the Defence seeks that the indictment be severed with the consequence that two trials be conducted in respect of each incident.

[6] The accused is charged by an indictment dated 20 December 2023 with four counts in relation to conduct on 12-13 May 2023 at Yulara. The charges are:

(a) one count of aggravated unlawful entry of a dwelling, contrary to ss 221 and 222 of the Criminal Code 1983 (NT) ('Criminal Code') (Count 1);

(b) one count of aggravated assault, contrary to s 188 of the Criminal Code (Count 2);

(c) one count of aggravated unlawful entry of a bar building, contrary to ss 221 and 222 of the Criminal Code (Count 3); and

(d) one count of aggravated robbery contrary to ss 218 and 219 of the Criminal Code (Count 4).

[7] Counts 1 and 2 are alleged to have occurred at a dwelling in Yulara in the same incident while Counts 3 and 4 are alleged to have occurred at a bar in a separate incident some five hours later. Each count is alleged to have been committed by the accused in company with a named co-offender, RD.

[8] The Crown case is that, on 12 May 2023 at about 7.15pm, RR and RT lived and worked at the Yulara resort complex as security guards. They were at the unit of RR ('unit 10') watching television. The accused and RD went into the next door unit of RT ('unit 9') via the front door with the intention of stealing. They began searching through unit 9 for things to steal.

[9] RT noticed that the front door of unit 9 was open, and he had left it closed. He went to unit 9 to check. When he got to the veranda, he thought someone was inside. He leant against the wall next to the door waiting for the person inside to come out. He saw RD inside his unit, later describing him as a tall, skinny, Indigenous male, approximately 18-20 years old, wearing a black and red hoodie, long black pants and shoes.

[10] As RD exited unit 9, RT grabbed hold of the chest area of his hoodie and pulled him to the ground. He said to RD: 'What are you doing here?' RD replied in an Aboriginal language that RT did not understand. RD began resisting and swung a punch at RT, which missed. Fearing RD was armed, RT punched him once in self-defence.

[11] Hearing the commotion, RR walked out from unit 10 and saw RT and RD. RR also saw the accused, now on the balcony of unit 9. RR later described the accused as approximately 20 years old, wearing a white and black long sleeved shirt and black shorts. The accused yelled out: 'Brother, brother.' The accused's entry into unit 9 is the offending the subject of Count 1.

[12] RR saw the accused, who was three metres away from him, pick up a two burner electric stove and throw it towards RR and RT. The stove struck RR to his forehead, causing a small cut and bruising. The accused picked up an old bicycle and threw it towards RR and RT. RR ran at the accused to stop him throwing further items. The accused retreated then ran away. RT continued to hold RD and told RR to call the Police, which he did. The accused returned and yelled at RT and RR. He became increasingly angry and aggressive. He picked up the bicycle again and threw it at RR and RT in an attempt to get RT to let go of RD. The accused was extremely aggressive and threatened to throw things at RR and RT. Fearing that both he and RR would be further assaulted, RT released RD. The accused and RD then ran off. RR did not seek medical attention for the cut and bruising he sustained. The assault against him by the accused is the offending the subject of Count 2.

[13] Later that night, at around midnight, the accused and RD went to the back of a hotel at the Yulara resort complex and approached a poolside bar. The bar was closed. The free-standing building housing the serving area and holding the alcohol was locked. The accused and RD broke into the bar building with the intention of stealing alcohol. An employee of the resort, TJ, was conducting a night patrol of the hotel premises. He approached the bar building and saw that the roller security door covering had been opened, there were two Indigenous males inside and some damage to the building. TJ later described one of the males as wearing a black hoodie and the other male as wearing a dirty white or grey jumper. The accused yelled out and he and RD began running away. TJ ran towards the staff kitchen to get assistance. The cost of repairing the damage to the building was around $1,000. The entry into the bar building by the accused is the offending the subject of Count 3.

[14] The accused and RD turned and came back towards TJ, picking up rocks and throwing them at him. TJ kept running away from them. He tripped and fell a short distance from the bar building. While he was lying on the ground, the accused and RD approached and stood over him. They then kicked and punched TJ aggressively, striking him six or seven times to the head, chest and legs as he lay on the ground. The accused and RD took TJ's wallet and keys. They continued to kick and punch him while locating and seizing his property. One of the offenders yelled at TJ: 'You're gonna die'. TJ called for help. The accused and RD grabbed rocks and raised their arms, aggressively yelling at TJ: 'Where's your fucking phone?' repeatedly. TJ said he was not sure. TJ got to his feet and, in fear, took his watch from his wrist and said: 'Here, that's all I have.' The accused and RD took the watch, which was valued at around $700. TJ yelled for help again. The accused and RD laughed and said: 'You've already tried that.' A security staff member, GR, approached and saw the accused or RD holding TJ to the upper body. They then ran off towards the fire trail behind the hotel. TJ was later taken to the clinic, suffering lacerations on his forehead and wrists and bruising under both eyes. The assault and robbery of TJ is the offending the subject of Count 4.

[15] GR called for security assistance from RR and another person, LD. RR and LD ran to the fire trail and saw two people running up the sand dunes from the direction of the bar. RR ran up a sand dune and found the accused lying on the sand. RR recognised the accused as the same person who had assaulted him earlier at unit 9. RR and LD remained with the accused. TJ had called his supervisor, who had called 000.

[16] Police officers Acting Sergeant Teresa Grieve and Constable Matthew Bawden attended at the sand dune where the accused was located and took him into custody. At around 12.40am, he was taken to the Yulara Watch House. After being cautioned, the accused made admissions in relation to the offending.

[17] The accused denies any involvement in this offending. Effectively, the Defence case raises the issue of identification.

[18] At 6.04am, the following conversation between A/Sergeant Grieve, Constable Bawden and the accused was video recorded:

Bawden: Ah, present with me is, could you state your name?

Bawden: Oh ok, so I must just inform you that you do not have to say anything, that anything you say or do may be given in evidence. I must also inform you that you may communicate with or attempt to communicate with a friend or relative to inform them of your whereabouts. Is there anything you'd like to say?

Grieve: Do you want us to call anyone and let them know that you're here?

Grieve: What are you doing here? You've been arrested in relation to an assault at the [bar], in [the hotel], and also in relation to an unlawful entry of the [bar]. So there's an allegation that you broke into a bar and then you assaulted a staff member of ... the hotel.

Grieve: Well. That's what you're here for, ok? That's what you're here for in relation to that.

Accused: I - I dunno. He's probably going back to Mutti.

Grieve: Back at Mutti, yeah? Where do you live at the moment?

Grieve: Imanpa? You still living at Imanpa or you stay at Mutti?

Bawden: Ok. Is there anyone you want us to contact to let them know you're here?

Grieve: I just told you what you're doing here. Do you want us to call anyone let them know that you're in the cells?

Accused: No can you ask that ah, different [RD]or what?

Grieve: I don't reckon. Look, I called NAAJA earlier tonight but you were a bit too drunk to talk to them, if I call NAAJA now do you want to talk to them now?

Police 2: Do you want to be formally interviewed in relation to what's happened tonight...?

Police 2: Ok. So you don't want to participate in an electronically recorded interview, is that correct?

[19] The Crown argued that the italicised answers above ('alleged admissions') are implied admissions by the accused that: (a) he was present at the time of the robbery involving the assault of TJ, and the unlawful entry of the bar building which preceded it, i.e. for Counts 3 and 4; and (b) he had no legitimate reason (such as work or residence) to be in Yulara when he was located by security guards in the sand dunes.

Proper characterisation of the alleged admissions

[20] Section 81(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ('Evidence Act') provides (relevantly) that the hearsay rule does not apply to evidence of an admission. The term 'admission' is defined to mean a previous representation that is: (a) made by a person who (relevantly) is or becomes a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding.[1]

[21] In his leading text, Stephen Odgers states that:[2]

...any acknowledgement of some relevant fact that tended to establish guilt, or liability, would be an admission. Indeed, any representation, adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence would constitute an admission.[3]

[22] Section 81(2) of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made or shortly before or shortly after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission.

[23] The intention behind this provision was to permit the admission into evidence of assertions which qualify or modify an admission to ensure, in fairness to the defendant, that the admission is considered in context.[4]

[24] In Nguyen v The Queen ('Nguyen'),[5] the High Court observed (at [22]) that:

It is to be expected that exculpatory statements made in a record of interview which also contains admissions will usually satisfy the requirements of s 81(2)(a) and (b). In the event that there is some doubt about the connection between an exculpatory statement and an admission, it should be borne in mind that what is to be made of a mixed statement is a matter for the jury, which might attach different degrees of credit to different parts of it. It has been observed that, under the Uniform Evidence Acts, provided relevant evidence is rationally capable of acceptance, questions of credibility and reliability are to be seen as squarely within the province of the jury. Considerations of this kind suggest that no narrow approach should be taken to the relationship between exculpatory statements and admissions. [citations omitted]

[25] What is 'shortly before' or 'shortly after' the admission is to be determined by reference to whether the admission and the other representation were made on a 'single occasion', or within such time as excludes the intervention of self-serving after-thought, reconstruction or alteration.[6] There is no issue about whether the statements by the accused were made shortly before or shortly after the alleged admissions within s 81(2).

[26] Generally speaking, wholly exculpatory representations are not admissions, because they are not adverse to the accused's interest in the outcome of the proceedings, and are therefore not admissible under s 81 of the Evidence Act.

[27] There is some controversy in the authorities as to whether a wholly exculpatory statement can constitute an 'admission'. There is some authority in support of the proposition that a wholly exculpatory statement which is a lie may be admissible as an 'admission' by conduct, however there is also authority to the contrary.[7] It is not necessary to resolve that controversy in this matter.

[28] Initially, the Defence argued that the things said by the accused in the conversation set out in paragraph [18] above are not admissible under s 81 of the Evidence Act as admissions because they comprise only an exculpatory denial and an identification of a person who struck someone during an assault, which is information the accused may have acquired by various means other than his involvement in the offending.

[29] Ultimately, as I understood it, the Defence did not press this submission. In case I am wrong about that, I reject the submission, for the following reasons.

[30] The accused's statements, after being told he was in custody in relation to an allegation that he broke into a bar and assaulted a staff member, that the accused 'didn't hit him', 'it wasn't me' and 'it was RD' are plainly capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence. The facts, taken as a whole, are: (i) those asserted by TJ about seeing the two Indigenous men in the bar building, dressed as TJ described them, and then being assaulted and robbed by those men;[8] and (ii) the facts asserted by RR that he and another security officer found the accused lying down on the sand dune after seeing two men run up the sand dunes from the direction of the bar shortly after the two men who robbed TJ were seen running towards the fire trail after the offending the subject of Counts 3 and 4.[9]

[31] The accused's statements are plainly capable of indicating that the accused was present when the offending the subject of Counts 3 and 4 occurred and that he was involved in it. They are admissions within s 81(1).

[32] The Crown argued that the accused's statements about where he and RD were living, namely at a place other than Yulara, where other evidence will establish that the only accommodation available at Yulara at the time was for staff and resort guests,[10] were admissible under s 81(2) as statements reasonably necessary to refer to in order to understand the admissions made by the accused to the effect that he was present at the bar at the time of the offending in Counts 3 and 4. I do not accept that the accused's statements about where he and RD lived are reasonably necessary to understand the admissions.

[33] However, I consider that the accused's statements about where he lived, not being Yulara, are also admissions within s 81(1) because they are reasonably capable of being understood as an admission that the accused's presence in the sand dune near the hotel at around midnight, shortly after the alleged offending the subject of Counts 3 and 4, was for a reason other than residence or work which, with the other evidence referred to, would reasonably permit the inference that he was present because of his involvement in the offending on those Counts. Similarly, coupled with the evidence of RR that the accused was present and involved in the offending the subject of Counts 1 and 2 (an unlawful entry of a residence and an assault upon being discovered) with another man five hours earlier, would reasonably permit the inference that he was present because of his involvement in the offending on those Counts.

[34] The Crown also argued that the alleged admissions about the offending the subject of Counts 3 and 4 were capable of being understood as admissions to the accused being present for, and involved in, the offending the subject of Counts 1 and 2. I do not accept this submission. The admission that the accused and RD were present and involved in the offending the subject of Counts 3 and 4, even coupled with the evidence of RR that the accused was present and involved in the offending the subject of Counts 1 and 2 with another man five hours earlier, is not capable of rationally affecting the assessment of the probability of whether the accused was present and involved in the offending the subject of Counts 1 and 2.

If the admissions are admitted, the whole conversation must be admitted

[35] In Nguyen, the High Court observed (at [27]) that:

It is well settled that if the prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury including those hearsay statements by which the accused tried to exculpate himself or herself. This practice is not to be confused with questions of admissibility, although the two may share a common rationale. The practice may be understood to reflect the fundamental obligation ... that the prosecution put its case fully and fairly. The prosecution may not 'pick and choose' between statements which it says bear out its case and those which do not. [citations omitted]

[36] The High Court held in Nguyen (at [41]) that where an accused provides both inculpatory and exculpatory statements to investigating Police officers, it is to be expected that, if the prosecutorial duty is to be met, the prosecutor will tender that evidence in the Crown case, unless there is good reason not to do so.

[37] Consequently, because the alleged admissions are admissible by virtue of s 81 of the Evidence Act, if they are to be admitted, in accordance with the principle in Nguyen, the whole of the conversation would have to be admitted into evidence.

Was the detention of the accused at the time of the admissions unlawful?

[38] The Defence argued that the admissions (and the whole conversation) should be excluded by virtue of ss 84, 90 or 137 of the Evidence Act. Each of these arguments was premised on the proposition that, at the time the accused made the admissions, his detention was unlawful because: (a) his arrest by security staff was unlawful because the common law requirements for an arrest were not satisfied; or (b) his arrest by Police was unlawful because it was for the purpose of investigation.

The accused was located and detained by security staff

[39] After hearing that the bar was being broken into, GR arrived at the bar to see two Indigenous men and TJ. One of the Indigenous men had hold of TJ.[11] When they saw him approaching, the two Indigenous males ran off toward the fire trail at the back of the hotel.[12] GR chased them and radioed to other security staff what he had seen and that the two Indigenous men were running towards the back of the hotel grounds.[13] RR and RT said they would head around to the fire trail.[14]

[40] RR drove along the fire trail at the back of the hotel and saw two people running up the sand dunes from the direction of the bar.[15] He got out of the car and started running towards them but could not find them.[16]

[41] GR ran up a sand dune and found one Indigenous man lying in the sand.[17] RR joined GR and RR recognised the Indigenous man as the man who had thrown the electric stove at him earlier that night, still wearing the same clothes.[18] RR said the Indigenous man appeared to him to be consistent with the man he had seen assaulting TJ at the bar.[19] Police were called and GR and RR waited with the accused. GR told the accused to 'stay on the ground'. The accused lay there on the sand dune until Constable Bawden and A/Sergeant Grieve arrived.[20] GR told the security control team over the radio that he had the accused 'in custody'.[21]

[42] The Crown argued that, when A/Sergeant Grieve and Constable Bawden arrived at the accused's location on the sand dune, the accused had been arrested by GR and RR pursuant to s 441(2)(a) of the Criminal Code.

[43] Section 441(2)(a) provides that a person, not being a member of the Police Force, may without warrant arrest an offender where they find the offender committing an offence or doing an act or behaving or conducting himself, or in such circumstances, that they believe on reasonable grounds that the offender has committed an offence and that the arrest of the offender is necessary (relevantly): (i) to ensure the appearance of the offender before a court of competent jurisdiction; or (ii) to preserve public order.

[44] The Crown argued, and it may be accepted on the basis of GR's and RR's evidence set out in paragraphs [41] and [57] above, that they both believed, on reasonable grounds, that the accused had committed the offences the subject of Counts 3 and 4 (because GR recognised the accused as the offender who had hold of TJ) and Counts 1 and 2 (because RR recognised the accused as the offender who had thrown the items at RR when RT had grabbed the other offender coming out of unit 9).

[45] The Defence argued that the accused was not arrested by GR and RR because the requirements for a valid citizen's arrest had not been met. Those requirements were said to arise under the common law, and to comprise: (a) words of arrest; (b) an act of arrest (or submission to arrest); and (c) informing the person of the reason for the arrest, which is subject to some limited exceptions argued not to apply here.

[46] The Defence relied on Police v Williams [2014] SASC 177; (2014) 246 A Crim R 317 for the common law requirements of a lawful arrest. That case concerned the requirements for a lawful arrest without warrant by a Police officer with a statutory power of arrest without warrant.[22] The Crown did not demur from the proposition that these three common law requirements for a lawful arrest also apply to a statutory power to make a citizen's arrest without warrant.

[47] By his command to the accused to 'stay on the ground', GR deprived the accused of his liberty, to which the accused submitted, and so there was an act of arrest. This is confirmed by GR's saying, into his handheld radio: 'I've got one in custody here'.

[48] Also, by those words GR communicated to the accused that he was under arrest, because any form of words may be used to communicate the fact of the arrest, but they must 'unequivocally bring home to the arrestee that he or she is acting under compulsion'.[23] This is confirmed by the accused remaining where he was.

[49] However, neither GR nor RR spoke any words to the accused telling him of the reason for his arrest.

[50] It has been held that the requirement that the person arrested should be informed of the reason why he is arrested does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.[24] To accept that the accused must have known the nature of the alleged offence requires me to be satisfied that the accused was one of the offenders who broke into the bar building and assaulted TJ, ran away from the bar, into the sand dunes, and was then found shortly afterwards by GR. If he was, he would be well-aware of why he was being detained by security officers.

[51] Section 142(1)(a) of the Evidence Act provides, in effect, that in a proceeding such as this, in which the Court is to decide whether evidence should be admitted or not, the civil standard of proof applies to findings of fact necessary for that decision. Whether the accused was aware of why he was being detained by security is a fact necessary for deciding, ultimately, whether the admissions the accused made to Police were made whilst he was unlawfully detained by them, which turns on whether the citizen's arrest was lawfully made. Section 142(2) requires the Court, in determining whether it is so satisfied, to take into account the importance of the evidence (i.e. the admissions) in the proceeding and the gravity of the matters alleged in relation to the question.

[52] GR's evidence was that he recognised the accused as the one holding TJ at the bar. He also said the two Indigenous men he saw with TJ at the bar ran off towards the fire trail behind the hotel. RR's evidence was that, from the fire trail, he saw two people running up the sand dunes from the direction of the bar. The accused was found in the sand dunes off the fire trail behind the hotel in which the bar is located shortly after the incident at the bar occurred.[25] TJ's evidence was that one of the two men he saw in the bar building was wearing 'a very dirty white/grey jumper'. When apprehended, the accused was wearing a dark grey and light grey or white hoodie.[26]

[53] On the basis of that evidence, on the balance of probabilities, I find that the accused was one of the offenders involved in the alleged offending at the bar and, consequently, was more than likely aware of why he was detained by security. In reaching that satisfaction, I have taken into account that the admissions are of importance in the trial, given that the sole issue in the case is identification, and the Crown's heavy reliance on circumstantial evidence to establish that one of the offenders was the accused. I also take into account that the allegation that the accused was unlawfully detained by security and then by Police is a relatively grave one.

[54] Consequently, each of the common law requirements for an arrest were fulfilled and I am satisfied that the citizen's arrest of the accused effected by GR and RR was a lawful citizen's arrest.

[55] When A/Sergeant Grieve and Constable Bawden arrived, they climbed the sand dune where the accused was still lying face down in the sand, not moving. Both officers asked GR and RR what happened, and they said he broke into the bar.[27] The officers made efforts to rouse the accused, who did not move, but said he was cold. The officers moved the accused's arms behind his back and handcuffed him. A/Sergeant Grieve then asked GR and RR what they had seen. RR said 'they were both attempting to break into' the bar. A/Sergeant Grieve asked what they had witnessed with the accused and GR said he saw him running away from the bar. A/Sergeant Grieve asked if he saw the accused in the bar and RR said 'no'.

[56] The accused then said that he was bleeding. A/Sergeant Grieve said to him:

Okay, mate, at the moment, you are under arrest ... for investigation into an alleged break in, okay.

[57] The officers then assisted the accused to stand up. GR told the officers the accused and his friend had also broken into RT's unit and assaulted RR, and RR confirmed that he could identify the accused as the same person who assaulted him. The accused said: 'It wasn't me.' The accused gave the officers his first name and said he was bleeding. A/Sergeant Grieve said it did not look like blood, and they would check him when they got into the light. The officers escorted the accused down the sand dune to the Police vehicle, searched him, asked him his name and where he was from, which the accused provided, and then placed him into the Police vehicle.

[58] A/Sergeant Grieve said to GR and RR that, at the moment, Police had the accused 'under arrest for investigation ... into an unlawful entry' and for her to actually charge the accused with that unlawful entry, she would need 'some actual evidence' that he was in the bar or attempting to break into the bar, 'trying to, or actually, committing an offence'. She said that, at this point, the accused was 'arrested for investigation', and although she could 'assume he is a suspect', that was not enough to charge him. RR indicated that he was certain the accused was the one who broke into unit 9 that night and A/Sergeant Grieve said she would get a statement from him about that and perhaps that would be enough to charge the accused. She said she could not lay a charge on the accused until she was confident that she had enough evidence. She asked GR to send through any CCTV or body worn footage of the accused in the bar or running away.

[59] The officers then took the accused to the Watch House where he was processed into custody.

[60] The Defence argued that, given A/Sergeant Grieve's statements as set out above, the accused's arrest by the Police officers was unlawful because it was for an improper investigative purpose. In other words, the accused's arrest by Police lacked their reasonable belief that the accused had committed an offence required by s 123 of the Police Administration Act 1978 (NT) ('PAA').

[61] The proposition that, when Police take into their custody a person who has been arrested by a citizen under s 441(2) of the Criminal Code, they are arresting that person inconsistent with s 441(4) of the Criminal Code.

[62] Section 441(4) of the Criminal Code provides that, as soon as practicable after a person is arrested under s 441(2), they must be delivered to a member of the Police Force and the PAA applies in relation to the arrestee and the member as if the arrest had been made under the PAA.

[63] It is clear by the terms of s 441(4) of the Criminal Code that, upon delivery of the arrestee to Police, the provisions of the PAA apply to that person as if the arrest had been made by the Police member under the PAA. Thus, the requirements of s 123 of the PAA do not apply. The Police member taking delivery of the arrestee is not required to have the reasonable belief set out in s 123 of the PAA. Common sense confirms this position because, at that stage, Police would not have sufficient information about the basis for the citizen's arrest to have formed that belief.

[64] This position is also confirmed by s 441(5) and (6) of the Criminal Code. They provide that a person arrested under s 441(2)(a) must be held only while the reason for their arrest continues (s 441(5)) and must be released immediately from custody where it becomes apparent that the person did not commit the offence for which the person was arrested (s 441(6)).

[65] In effect, the reasonable belief of the citizen who effected the arrest under s 441(2)(a) of the Criminal Code is the basis upon which the arrestee is held, just as the basis for the arrest of a person under s 123 of the PAA is the reasonable belief of the Police member who effected the arrest.

[66] This confirms that there must be a period of time for which Police are permitted to detain, with force, if necessary, a person delivered to them under s 441 of the Criminal Code, for as long as the reason for the arrestee's arrest continues.

[67] The Defence argued that the placement of the accused in handcuffs 'prior to arresting him' was unlawful. Again, the submission was founded upon the proposition that the accused was arrested by Police pursuant to s 123 of the PAA. That proposition was erroneous. It is not necessary to determine whether placing the accused in handcuffs at the time he was delivered into the custody of Police, when he was lying face down on the sand and offering no resistance, was reasonable or excessive in the circumstances. No evidence was received in relation to the states of mind of A/Sergeant Grieve and Constable Bawden about that, and the Defence conceded that it would not, of itself, give rise to a basis for the exclusion of the admissions.

[68] In any event, s 137(1) of the PAA provides that, subject to s 137(2) and (3), a person taken into lawful custody shall be brought before a court of competent jurisdiction as soon as practicable after being taken into custody unless granted bail or released. Section 137(2) provides (relevantly) that a member of the Police Force may, for a reasonable period, continue to hold in custody a person taken into lawful custody to enable the person to be questioned or investigations to be carried out.

[69] By virtue of s 441(4) of the Criminal Code, s 137(2) of the PAA applies to permit a member of the Police Force to continue to hold in custody, for a reasonable period, a person delivered to them under s 441 of the Criminal Code to enable the person to be questioned or investigations to be carried out.

[70] It follows that there was no 'arrest' of the accused by A/Sergeant Grieve and Constable Bawden which required them to form a reasonable belief that the accused had committed an offence. Rather, the accused was delivered into their custody following a lawful citizen's arrest based on the reasonable beliefs of GR and RR that he had committed offences, and s 137(2) of the PAA permitted Police to hold the accused in custody for a reasonable period to enable him to be questioned or investigations to be carried out.

[71] That was clearly the purpose for which he was delivered to A/Sergeant Grieve and Constable Bawden and his lawful custody was continued by them.

[72] Consequently, the accused's delivery into Police custody and his detention by Police at the time he made the admissions was not unlawful.

[73] It follows that the premise of the Defence's reliance upon each of ss 84, 90 and 137 of the Evidence Act is not established, and the operation of those provisions need not be considered.

Were the admissions made after a proper caution by Police?

[74] Initially, the Defence argued that the admissions should also be excluded under s 138(1)(a) of the Evidence Act as evidence of a statement made during questioning improperly obtained, by reference to s 139 of that Act.

[75] As I understood it, that submission was ultimately not pressed. In case I am wrong about that, I will address the submissions briefly.

[76] Section 140 of the PAA provides that, before any questioning or investigation under s 137(2) commences, the investigating member must inform the person in custody that the person: (a) does not have to say anything but that anything the person does say or do may be given in evidence; and (b) may communicate with or attempt to communicate with a friend or relative to inform them of the person's whereabouts and, save in circumstances not presently applicable, the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable them to make or attempt to make the communication.

[77] It is clear that the conversation with the accused in which he made the admissions was a conversation which contained the words in s 140 of the PAA and was directed to fulfilling its requirements.

[78] Section 139(1) of the Evidence Act provides that, for the purposes of s 138(1)(a), evidence of a statement made by a person 'during questioning' is taken to have been obtained improperly if: (a) the person was under arrest at the time; (b) the questioning was conducted by an investigating official who was at the time empowered to arrest the person; and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. Section 139(3) provides that the caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency.

[79] A caution was given in virtually identical terms as s 139(1)(c). The caution was given in English. The critical issue in s 139(3) is whether the caution was communicated to the arrested person in a way which ensured that he or she understood the matters contained in the caution.[28]

[80] I apply the test formulated by Higgins J in The Queen v Taylor [1999] ACTSC 47 at [19], namely that the caution will fail to satisfy s 139(3) if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood, but there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution.

[81] There is no evidence that the accused did not understand the caution. There is evidence that the accused is an Indigenous person and spoke an Indigenous language in addition to English.

[82] On the basis of the body worn footage of A/Sergeant Grieve and Constable Bawden of their conversation with the accused,[29] I find that the accused spoke and understood English and was capable of understanding the things said to him during that conversation, including the caution.

[83] Consequently, the caution administered to the accused satisfied the requirements of s 139(3).

[84] It is therefore strictly unnecessary to determine whether the accused's statements were made 'during questioning'. I will do so briefly. I adopt the approach of Howie J in The Queen v Naa [2009] NSWSC 851 at [98]- [99] to the effect that the word 'questioning' is not defined and in its ordinary meaning refers to 'asking questions of someone' or 'interrogating' and does not mean 'a conversation during which questions are asked'. The section was clearly aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information. The section is aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it does not achieve the purpose for which it was enacted, but neither should it be construed to apply to a situation to which the words used in the section are not appropriate.

[85] While the conversation was not undertaken by the Police officers as formal questioning, and it was the accused's volunteering of 'I didn't hit him' and 'It wasn't me' that prompted A/Sergeant Grieve's question 'Who was it?', it seems to me that that question and the following eight questions asked of the accused were an informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information about an offence in respect of which the accused had been arrested. Those questions and answers were 'during questioning' within s 139 of the Evidence Act.

[86] What the accused said, after being administered the caution, is not indicative of a lack of understanding of the caution and his right to silence. It is just as indicative of an intention on his part to protest his innocence by asserting a primary role in the offending by RD.

[87] For the reasons set out above regarding his understanding of the caution, I do not accept that the conversation falls within s 139 of the Evidence Act such that the admissions were obtained improperly within s 138(1)(a) of the Evidence Act.

Conclusion in relation to admissibility of conversation with Police

[88] For the reasons set out above, the asserted admissions made by the accused to Police are admissible and may be relied upon by the Crown at the trial in the ways set out above, subject to the Crown tendering the record of the whole of the conversation.

[89] On 20 December 2024, the Crown served on the Defence a tendency notice ('1st tendency notice') and proposed tendency evidence indicating its intention to adduce tendency evidence about the accused. The proposed tendency evidence was directed to establishing the conduct of the accused and comprised:

(a) documents relating to offences in respect of 11 incidents for which the accused had been found guilty and dealt with by the Local Court;

(b) the evidence relating to Counts 1 - 4; and

(c) evidence relating to an alleged offence in respect of which the accused had been charged but was yet to be dealt with by the Local Court.

[90] On 24 March 2025, the Defence filed and served written submissions objecting to the receipt of the proposed tendency evidence on various bases, including in relation to the form and content of the 1st tendency notice and the nature of the proposed tendency evidence.

[91] On 2 April 2025, the Crown filed and served an amended tendency notice ('2nd tendency notice') and proposed tendency evidence which was in substantially the same form as the 1st tendency notice and proposed tendency evidence, save that:

(a) the names of prosecution witnesses who had provided statements to Police in respect of seven of the 11 incidents the subject of the convictions had been added under the heading 'witnesses' and copies of those statements had been attached to the notice;

(b) in relation to some of those incidents, the names of persons who compiled bundles of photographs contained in the prosecution brief had been added under the heading 'witnesses', and copies of those bundles had been attached to the notice; and

(c) references to each of the 11 certificates of proceedings had been included in the table headed 'substance of evidence'.

Reasonable notice of the intention to elicit tendency evidence

[92] The Defence argued that the Crown's provision of the 2nd tendency notice after the Defence had filed its written submissions prior to the most recent tranche of the voir dire was not sufficient compliance with the requirement in s 97(1)(a) of the Evidence Act to give 'reasonable notice' of its intention to adduce the evidence.

[93] To the extent that this submission related to the content of the 2nd tendency notice, it is addressed below.

[94] To the extent that this submission related to the timing of the service of the 2nd tendency notice, I note that: (a) the trial has yet to be listed; (b) the substance of the 2nd tendency notice was not materially different to the substance of the 1st tendency notice which had been provided months earlier; and (c) the Defence had the opportunity at the oral hearing on 7 April 2025 to put whatever arguments it wished to put about the sufficiency of the 2nd tendency notice, and did so. Consequently, I do not accept that, as regards the timing of its service, the Crown did not give reasonable notice to the Defence of its intention to adduce the evidence.

Relevance and admissibility of the fact of conviction

[95] The Defence argued that the 'court outcomes' relating to the 11 incidents is irrelevant and inadmissible under the provisions of the Evidence Act prohibiting the admission of findings of other courts.

[96] Presumably, this is a reference to s 91(1) of the Evidence Act. That provides that evidence of the decision, or of a finding of fact, in (relevantly) an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

[97] It has been held by this Court that s 91 of the Evidence Act does not preclude the admissibility of certificates of proceedings disclosing conviction and agreed facts tendered and received on the accused's plea of guilty in other proceedings as evidence of the accused's conduct because the fact that the accused pleaded guilty is sufficient to prove that there was no issue in the other proceeding as to guilt and the circumstances of the offence on which the plea was based, so those facts were not 'facts in issue' in those proceedings.[30]

[98] Hence, the certificates of conviction are not rendered inadmissible by s 91 of the Evidence Act, if it is established that the accused pleaded guilty to the offences identified in the certificates of conviction.

[99] The certificates of conviction may be relevant, on the voir dire, to establishing that the accused was dealt with by the Local Court for the charges referred to (see below). However, I accept the Defence submission that, in the trial, what is relevant for the purpose of the tendency reasoning is not the fact that the accused was convicted by the Local Court for the charged offences, but that he engaged in the conduct the subject of those convictions.

[100] The Defence argued that, as out of court statements made about the accused's conduct, the statements of fact included in the proposed tendency evidence are inadmissible hearsay and would only be admissible if they are shown to be admissions within s 81 of the Evidence Act. The Defence submitted that the transcript or audio of the entry of the accused's plea in the Local Court was necessary to establish those admissions.

[101] The Crown argued that it should be inferred from the 'certified sentencing facts exhibits' that there was a plea hearing in which the accused pleaded guilty to the charges for which he was convicted, and that the 'tendered sentencing facts' were admitted on behalf of the accused before being formally received.

[102] The difficulty for the Crown's proposed tendency evidence is that:

(a) the certificates of proceedings from the Local Court do not indicate, on their face, that the accused pleaded guilty to the charges referred to in the certificates, and state only that he was 'convicted and proven guilty'; and

(b) the statements of facts do not clearly indicate, on their face, that they were the facts agreed to by the accused for the purposes of his pleas of guilty.

[103] Each of the statements of facts is headed 'Statement of alleged facts'. The 'certification' on the face of the statements of facts is simply a certification by a Justice of the Peace that the document is a true copy of a document shown to the Justice of the Peace.

[104] Of the 11 statements of facts attached to the 1st tendency notice, only three (in relation to files 21811583, 220000863 and 22113553) contain any indication that suggests that the document was received as an exhibit in the proceedings. Those indications are in the form of a handwritten notation appearing on the first page of the statement of facts in the form: 'P1'. One other statement of facts (in relation to file 22126146) contains a handwritten factual addition to the last paragraph. Inexplicably, the copies of the three statements of facts attached to the 2nd tendency notice do not contain those handwritten notations. Nor are they certified as true copies.

[105] The Crown has argued that the source of the statements of facts was the Local Court, but has not put on any evidence (such as an affidavit from the prosecutor) to establish what the Crown sought from the Local Court in relation to each file (such as a certified copy of the tendered and agreed statements of facts), and that the Local Court provided the statements of facts attached to the 1st tendency notice in response to that request.

[106] In circumstances where the Defence put in issue the admissibility of the proposed tendency evidence, and refused to concede that the accused pleaded guilty to the offences of which he was convicted on the basis of the conduct in the statements of facts, it became incumbent on the Crown to establish, by evidence on the voir dire, the provenance of the statements of facts and their character as the agreed statements of facts received into evidence by the Local Court on the accused's pleas.

[107] That could have been achieved by an affidavit from the prosecutor deposing that he sought from the Local Court a certified copy of the tendered and agreed statements of facts for each of the 11 files, and that the Local Court provided the statements of facts attached to the tendency notices in response to that request. Such evidence would permit the inference that the accused had pleaded guilty to the charges referred to in the certificates of conviction, and had, by his pleas, admitted that he had engaged in the conduct referred to in the statements of facts.

[108] In the absence of such evidence, there is no evidentiary foundation for the inference to be drawn. It is difficult to accept the handwritten notation on three of the 11 statements of facts attached to the 1st tendency notice as a sufficient evidentiary foundation for the inference in respect of those three files, let alone the other eight files, in circumstances where that notation does not appear on the same statements of facts attached to the 2nd tendency notice. I also note that the 2nd tendency notice attaches only seven of the 11 statements of facts (uncertified) attached to the 1st tendency notice.

[109] Consequently, the Crown has not established that the accused has made admissions, by pleas of guilty in the Local Court on the basis of agreed statements of facts, that he engaged in the conduct the subject of the proposed tendency evidence. Without that, the proposed tendency evidence is inadmissible.

[110] This conclusion should not be understood as precluding the Crown from putting such evidence before the Court in the future. Any further application by the Crown to rely on the proposed tendency evidence would need to be determined, if and when it is made. For that reason, I will address the other issues relating to the proposed tendency evidence on the assumption that the fact of the accused's admissions to the conduct set out in the statements of facts was established.

[111] The Defence argued that, in addition to the certificates of conviction and the statements of facts, the prosecution was required, in accordance with its general duty of disclosure, to disclose to the Defence all of the witness statements and other evidence relied on by the prosecution, at least prior to the accused's pleas of guilty, in those Local Court proceedings.

[112] In the 2nd tendency notice, the Crown attempted to do so but was only able to provide witness statements and other evidence in relation to seven of the 11 Local Court files.

[113] At common law, the prosecutorial duty of disclosure requires the prosecution to disclose documents which are material, that is, documents which can be seen, on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence going to either (a) or (b).[31]

[114] I do not accept that, where it is accepted by the Defence or the Crown establishes on the voir dire that the accused's conduct the subject of the proposed tendency evidence was admitted by him via his plea of guilty in earlier proceedings on the basis of agreed facts, the prosecutorial duty of disclosure extends to, effectively, the content of the prosecution brief in that proceeding. I cannot see how, if the accused has formally admitted, in the solemn context of court proceedings, to certain conduct, the identity of witnesses who observed that conduct, gave statements to Police about it, would have been called to give evidence about it if there was a trial, but were not called to give evidence about it because there was no trial and the accused admitted, by his plea on the basis of agreed facts, that he had engaged in that conduct, the statements of those witnesses and other evidence relied on by the prosecution in those proceedings prior to the plea can sensibly be said to be 'material' and so to fall within the duty of disclosure.

[115] In this context, the relevant evidence is the accused's admission of the conduct, not a witness's observations of that conduct.

[116] The Defence's reliance on The Queen v AB [2001] NSWCCA 496 in support of this argument was misplaced. In that case, the Court of Criminal Appeal held that the tendency notice served by the prosecution sufficiently complied with the requirements for a tendency notice (see below) because it referred to three statements, which had previously been served on the Defence, made by the complainant about uncharged sexual acts between the appellant and the complainant comprising the proposed tendency evidence. It was not a case about tendency evidence comprised of the accused's admissions to conduct by guilty pleas in prior proceedings. The proposed tendency evidence was evidence of the complainant's observations of the accused's conduct. Naturally, the statements made by the complainant recording those observations would be material and required to be disclosed. That case says nothing about whether the prosecution is required to disclose the witness statements or other evidence in the prosecution brief for the Local Court file when what is relied on is an admission as to conduct via a guilty plea in other proceedings.

[117] Furthermore, contrary to the Defence's submission, the evidence of witnesses who observed the conduct which the accused has admitted on a plea of guilty in other proceedings is not 'reasonably necessary to refer to in order to understand the admission' within s 81(2)(b) of the Evidence Act. A court sentences an accused for their conduct on the basis of an admitted statement of facts, without reference to the statements of witnesses who observed that conduct. I therefore reject the submission that the evidence of those witnesses is material such as to require it to be disclosed to the Defence when the Crown intends to rely on tendency evidence comprised of the accused's admission to conduct by way of a guilty plea in other proceedings.

Requirement for the names of all witnesses of the conduct

[118] The Defence argued that the 1st tendency notice did not include the information required by s 99 of the Evidence Act and r 6 of the Evidence (National Uniform Legislation) Regulations 2012 (NT), which require that a tendency notice given under s 97(1)(a) of the Evidence Act must state: (a) the substance of the evidence that the notifying party intends to adduce; and (relevantly) (b) if that evidence consists of, or indicates, evidence of the conduct of a person: (i) particulars of the date, time and place at, and the circumstances in which, the conduct occurred; and (ii) the name of each person who saw, heard or otherwise perceived the conduct.

[119] It has been held that it will be sufficient for the purposes of the notice if the names required to be included are identifiable by reference to associated documents provided with the notice.[32]

[120] The 1st tendency notice set out, in summary tabular form, the conduct of the accused to be proved by the proposed tendency evidence, with a reference to the date, time and place of the conduct, and a reference to statements of facts relating to the 11 Local Court files. Annexed to the 1st tendency notice was a copy of the 11 Local Court certificates of proceedings relating to each of those files and the statements of facts relating to each file.

[121] The Defence argued that the requirements of r 6(b)(ii) had not been met by the 1st tendency notice, which did not list any names and only attached the statements of facts. It was said that that regulation requires the tendency notice to include the names of 'each person who saw, heard or otherwise perceived the conduct' of the accused described in the statements of facts, meaning an exhaustive list of all persons who perceived the conduct is required to be included in the notice. It was said that failure to provide that list of names, along with those persons' statements, deprived the Court and the accused of the ability to make a proper assessment of the probative value of the evidence.

[122] It has been held that the purpose of the tendency notice requirements in r 6(2) are first, to ensure that attention is given to specific conduct and the circumstances of the conduct, and secondly, to enable the person whose conduct is in question to meet the tendency evidence, which purpose is linked with the decision upon probative value to be made by the Court, since only with knowledge of specific conduct and the circumstances of the conduct can a proper assessment be made of the probative value of the evidence in relation to the conduct alleged at the trial.[33]

[123] I do not accept that, where it is accepted by the Defence or the Crown establishes on the voir dire that the accused's conduct the subject of the proposed tendency evidence was admitted by him via his plea of guilty in earlier proceedings on the basis of agreed facts, r 6(2) is not complied with unless the tendency notice includes an exhaustive list of all persons who observed that conduct. In those circumstances, a tendency notice which summarises the specific conduct, identifies its time, date and place, and includes or attaches the statement of agreed facts (which invariably includes the name of any victims or other witnesses of the conduct) received on the plea would clearly ensure that attention is given to specific conduct and the circumstances of it, and would clearly enable the accused to meet that evidence - if he is able to.[34]

Notice of the conduct the subject of unresolved charges in the Local Court

[124] As regards the instance of conduct the subject of unresolved proceedings in the Local Court, the proposed tendency evidence comprises statutory declarations of two witnesses to the alleged offending, a statutory declaration of a fingerprint expert who matched to the accused fingerprints found on a soft drink can that a witness saw the offender leave at the scene, CCTV footage of the alleged offending and photographs of the location of the alleged offence and the soft drink can.

[125] No complaint was specifically made by the Defence in relation to this instance of conduct about inadequacy of the tendency notices or the disclosure of the material comprising the proposed tendency evidence.

[126] As I understand it, the material comprises the entire prosecution brief in those Local Court proceedings. Provision of the entire prosecution brief as the proposed tendency evidence in respect of that conduct would ensure that adequate reasonable notice has been given.

[127] Under s 97 of the Evidence Act, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless (relevantly) the Court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value. '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.[35]

[128] Both of the tendency notices state that the tendencies sought to be proved by the proposed tendency evidence are the tendency of the accused to:

(a) act in a particular way, namely:

(i) to opportunistically steal property, particularly alcohol, cash or personal valuables, including by taking it directly from another person;

(ii) to engage in the stealing, or attempted stealing, in company with one or more co-offenders;

(iii) to unlawfully enter premises, including by force (particularly when acting with one or more co-offenders), to steal alcohol, cash or personal valuables;

(iv) to steal or attempt to steal alcohol from places where alcohol is kept in large hotel premises;

(v) to respond by using force when discovered or confronted for stealing property or conduct preparatory to stealing property;

(vi) to respond by using violent force when confronted about his presence and conduct in or around the hotel; and

(b) to have a particular state of mind, namely, a preparedness to engage in the conduct described in paragraph (a) above, notwithstanding the risk of detection by CCTV surveillance and without taking steps to conceal his identity.

[129] The proposed tendency evidence relates essentially to the essential facts in issue in the proceedings, namely that the accused committed the alleged offending.

Assessment of probative value of proposed tendency evidence

[130] The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen, as follows:[36]

The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.

[131] Assessing the probative value of proposed tendency evidence is therefore a two-stage process. As the plurality said in Hughes:[37]

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

[132] The plurality in Hughes held (at [31]) that commonly, tendency evidence will bear similarity to the conduct in issue, but the admission of tendency evidence is not conditioned on that similarity. Further, the probative value of tendency evidence will vary depending on the issue that it is adduced to prove. Where it is adduced to prove the identity of the offender for a known offence, the probative value will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.

[133] In TL v The King [2022] HCA 35; (2022) 275 CLR 83 ('TL'), the High Court said (at [30]) of this last observation in Hughes that it was postulating a situation in which there was little or no other evidence of identity apart from the tendency evidence such that the identity of the perpetrator was 'at large'. In TL, there was evidence of identity, including that the appellant was one of only three people who had the opportunity to inflict the fatal injuries and pointing against the likelihood that the perpetrator was the two people other than the appellant. Consequently, 'close similarity' between the conduct evidencing the tendency and the offence was not required.

[134] Furthermore, the High Court held (at [31]) that a contention that the asserted tendency must be able to identify an accused from other potential perpetrators of the charged offence tends to conflate probative value and proof. The High Court held (at [37]) that it was not necessary for the prosecution to neutralise or disprove the existence of the same tendency on the part of the other possible perpetrators.

[135] I agree with the observations of Burns J in The King v Mayatjun [2023] NTSC 16 (at [176]) that the absence in other cases in which the Crown seeks to adduce tendency evidence to prove identity of matters important in the factual matrix in TL which gave significant probative value to the tendency evidence in that case, particularly that there were only three people who could have committed the offence, is not necessarily fatal. This is because each case must be determined on its own facts.

[136] 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.[38] A 'significant' probative value is a probative value which is important or of consequence.[39] 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.[40]

[137] The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.[41] This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[42] Nor does it involve assessing the significance of the possibility of collusion or concoction which 'should be left to an occasion when it is raised in a concrete factual setting'.[43]

The conduct said to establish the asserted tendencies

[138] The conduct of the accused the Crown intends to establish by the proposed tendency evidence is as follows:

(a) On 8 March 2018, at 6.10pm, the accused went into a liquor store in Alice Springs through the back entrance and took two bottles of spirits from the shelf and ran from the store, through the back entrance, without paying for them. A Police officer chased him and he ran. He turned and threw one of the bottles at her. She grabbed his arm to arrest him but he pulled away and kept running. He was apprehended by witnesses and the Police officer and restrained, despite struggling to get free. (Local Court file 21811583)

(b) On 27 April 2019, at 1.22pm, the accused, in the company of another man, bought soft drink and a packet of cigarettes, and in another transaction, in the company of two other men, bought three alcoholic drinks at a hotel, using a credit card left in a purse which had been stolen from a woman who had left the purse on the ground while she washed her car at a public car wash. The transactions were caught on CCTV. (Local Court file 21916907)

(c) On 28 April 2019, at 2.20am, the accused and two other men, went to a hotel in Alice Springs. The accused had a metal wheel lever. One of the three threw the wheel lever against a large glass window to the dining room, shattering the window. The accused and one of the men went inside. They ran to the bar and stole eight bottles of spirits, then ran from the premises through the shattered window. The incident was caught on CCTV and witnessed by the hotel's night manager. (Local Court file 21916938)

(d) On 30 April 2019, at 7.43pm, the accused and another man went to a liquor store in Alice Springs. The accused was refused service and asked to leave. As they stood outside, the accused pointed to a display of bottles of spirits in the store. While the accused waited outside, the co-offender ran into the store to the display shelf pointed out by the accused, took two bottles of spirits and ran to the exit. He ran into a Police officer who tried to block his exit, there was a struggle, and he left the store still held by the officer, but trying to break free. He gave the two bottles of spirits to the accused. The officer let the co-offender go and he and the accused ran away. (Local Court file 21916948)

(e) On 1 January 2020, at 11.48am, the accused went into a hostel building with the intention of stealing property. There were no staff at the counter, so he walked around to the cash draw, took out around $405 and walked out of the building. The offending was caught on CCTV. (Local Court file 22000863)

(f) On 23 August 2020, at 12.20pm, the accused went into a baby clothing store in Alice Springs. While the staff were at the back of the store, the defendant walked around the front counter, looking at the cash register. He found its key, opened it, took out $350 and left the store. The offending was caught on CCTV. (Local Court file 22026784)

(g) On 17 November 2020, at 3.20pm, the accused went into a tavern in Alice Springs with the intention of stealing. He sat on a bench and watched staff. When they walked away from the bar, he walked to the bar, reached behind it and took a bottle of spirits. He tucked the bottle under his shirt and walked out of the tavern. The incident was caught on CCTV. (Local Court file 22037162)

(h) On 20 November 2020, between 8am and 9.30am, the accused stole a woman's purse from a table in a café in Alice Springs which she had left unattended while she placed her order. When the woman saw the accused nearby later and approached him, he ran away. (Local Court file 22037172)

(i) On 24 November 2020, at about 12.00pm, the accused walked into an office in a shopping arcade in Alice Springs. He asked the woman working there for a drink of water. She went to the water dispenser and poured him some water. He indicated he wanted more. When she went to the dispenser to get more water, he took her wallet off the desk and ran out. (Local Court file 20237924)

(j) On 27 April 2021, at about 4pm, the accused and another man went to the hotel at the Yulara resort. They were harassing guests around the pool. Security guards were called. When they arrived in the nearby carpark, the accused and co-offender called the security guards over to them. There was a brief conversation. The co-offender began to shape up to one of the security guards and the accused picked up two rocks and motioned as if to throw them. The co-offender punched one of the security guards, the accused dropped the rocks and also swung punches at the security guard. The accused picked up the rocks again and approached the other security guard. The first security guard grabbed the accused from behind. The co-offender tried to pick up rocks but was chased away by the second security guard. The accused walked away. (Local Court file 22113553)

(k) On 4 August 2021, between 8.45am and 1pm, the accused broke into a residence in Alice Springs by damaging a glass panel in a door and stole 10 bottles of alcohol and around $150. (Local Court file 22126146)

(l) On 12 May 2023, at around 8pm, with a co-offender, the accused committed the offending the subject of Counts 1 and 2 at the unit in Yulara.

(m) On 13 May 2023, at around midnight, with a co-offender, the accused committed the offending the subject of Counts 3 and 4 at the bar in the Yulara resort.

(n) On 26 July 2024, at 7.46am, the accused broke into a restaurant that was not open for business and stole two bottles of spirits from behind the bar. When confronted by a staff member, who tried to grab his arm, he pulled his arm and ran away. The offending was caught on CCTV. (Local Court file 22430628)

Does the conduct support the asserted tendencies?

[139] The central issue in this case is one of identification. The Defence argued that a great level of similarity in the conduct the subject of the proposed tendency evidence was necessary because the pool of potential offenders is very large, noting that the offences are relatively common.

[140] This is not a case like that postulated in Hughes in which there was little or no other evidence of identity apart from the tendency evidence, making the identity of the perpetrator 'at large'. In this case, the Crown intends to adduce the direct identification evidence of RR of the accused as the offender who threw the electric stove at him after the co-offender who had unlawfully entered unit 9 was restrained by RT; the direct identification evidence of GR of the accused as the offender who had hold of TJ in the bar; the admissions made by the accused which permit the inference that he was present during the offending at the bar; the evidence relating to the offenders being seen running from the bar area to the fire trail and towards the sand dunes; the evidence of the accused being found in the sand dune by GR shortly after the offending, at around midnight; and the evidence about the hotels and bars in Yulara all being closed and Yulara being home only to guests of the Yulara resort and employees, which the accused was not.

[141] The proposed tendency evidence shows that in the six year period commencing five years prior to the alleged offending and one year and two months after the alleged offending, the accused had, on six occasions stolen alcohol,[44] on seven occasions stolen cash or personal items,[45] and on two occasions had attempted to steal either alcohol or personal property.[46] This evidence supports, to a significant extent, the asserted tendency in paragraph (a)(i) of the accused to opportunistically steal alcohol and personal valuables.

[142] The proposed tendency evidence shows that, on six of those occasions, the accused had done so in company with other offenders.[47] This evidence supports, to a significant extent, the asserted tendency in paragraph (a)(ii) of the accused to steal or attempt to steal property in company.

[143] The proposed tendency evidence shows that, on five of those occasions, he had done so by unlawfully entering a hotel or a residence.[48] This evidence supports, to a significant extent the asserted tendency in paragraph (a)(iii) to unlawfully enter premises to steal alcohol and personal valuables, and the asserted tendency in paragraph (a)(iv) to do so from hotel premises.

[144] The proposed tendency evidence shows that, on two of those occasions, he used force against a person when confronted about his conduct.[49] This evidence supports, to a significant extent, the asserted tendency in paragraph (a)(v) to respond by using force when discovered or confronted in relation to the stealing of property or conduct in preparation therefor.

[145] The proposed tendency evidence shows that, on the 11 occasions the accused had stolen alcohol or personal valuables or attempted to do so, his conduct was observed by witnesses or captured on CCTV.[50] This evidence supports, to a significant extent, the asserted tendency in paragraph (b) of a preparedness to engage in that conduct notwithstanding the risk of detection.

[146] The proposed tendency evidence shows that, on two of those 11 occasions, he used force when confronted about his conduct at the hotel.[51] This evidence does not support, to a significant extent, the asserted tendency in paragraph (a)(vi) to respond by using violent force when confronted about his presence and conduct at the hotel. This is essentially because there were only two such incidents in a period of two years. The third incident in which the accused used force[52] was preceded by the accused and his co-offender calling the security guards over to their location and a brief conversation the content of which is unknown. It is difficult to describe that conduct as a response to a confrontation about the accused's presence and conduct at the hotel.

Do the asserted tendencies make more likely the charged offences?

[147] Taken with the other evidence to be relied on by the Crown as referred to above, the asserted tendencies in paragraphs (a)(i), (ii), (iii), (iv), (v) and (b) do make more likely, to a significant extent, that it was the accused who committed the charged offending. The hypothetical jury would rationally think it likely that the tendencies, and the evidence supporting them, are important in relation to the determination of whether the accused committed the charged offending.

Proposed tendency evidence has significant probative value

[148] Consequently, I consider that the proposed tendency evidence has significant probative value, save in relation to the asserted tendency in paragraph (a)(vi).

[149] Section 101(2) of the Evidence Act restricts the admissibility of tendency evidence unless its probative value outweighs the danger of unfair prejudice to the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.

[150] When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[53] The notion of prejudice in this general context 'means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.'[54] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.

[151] The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial:[55]

In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

[152] The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[56]

[153] The Defence argued that there is a risk, which cannot be cured by judicial direction, that the jury would engage in 'simple bad person' reasoning or reasoning that the accused is a thief and so he committed these offences.

[154] With all tendency evidence and reasoning, there is a risk that the jury will engage in rank propensity reasoning of this kind. That is why the jury is commonly directed, when tendency evidence is put before the jury, that: (a) finding the accused did have the tendency the Crown alleges is not enough to prove guilt; (b) while the tendency may assist the Crown to prove the accused committed the offences, it is not enough by itself; (c) the question is whether it makes it more likely the accused was the person who did the conduct the Crown alleges on any of the occasions that are the subject of the charges and that is the only way the accused's tendency may be used; and (d) ultimately, they must decide whether the specific offences with which the accused has been charged have been proved, which decision must be based upon all of the evidence relevant to each of the charges.[57] This risk can be adequately addressed by a direction which includes the elements just referred to, and makes clear that the jury cannot convict the accused of any charged act unless satisfied beyond reasonable doubt of the commission of that act.[58]

[155] The Defence also argued that there is a risk that the jury would consider that the charged offences occur less frequently than is actually the case, leading to the jury giving too much weight to the asserted tendencies. I do not accept this submission. I consider it unlikely that a jury would approach these charges with the perception that offending of this nature is rare. It seems to me more likely that a jury would approach these charges with the perception that offending of this nature is commonplace, given the recent attention given to crime fuelled or motivated by alcohol in the media both generally and as a result of the recent amendments to the Bail Act passed by the Northern Territory legislature. Further, to the extent that this submission is founded upon the proposition that the identity of the offender is 'at large' because the pool of potential offenders is large, I have dealt with that above. To the extent that it is founded upon the proposition that the jury may reason that a person with the asserted tendencies would act on them whenever the opportunity arises, it is met by the ameliorating effect of the tendency direction referred to above.

[156] I therefore do not accept that the probative value of the proposed tendency evidence is outweighed by the danger of unfair prejudice to the accused.

Conclusion in relation to admissibility of proposed tendency evidence

[157] For the reasons set out above, if the Crown had established that the accused had admitted by pleas of guilty in the Local Court to the conduct referred to in the statements of facts within the proposed tendency evidence, that evidence would be admissible as tendency evidence.

[158] In the absence of that proof, the proposed tendency evidence is not admissible.

[159] The Crown has filed two notices of its intention to adduce the following evidence as coincidence evidence:

(a) evidence that RD has:

(i) on the occasions the subject of the four counts on 12-13 May 2023, twice unlawfully entered premises, including a bar, at Yulara with a co-offender (the accused); and

(ii) on four other occasions (one of which involved three unlawful entries some seven hours apart), three of which were with co-offenders, unlawfully entered a bar or hotel in Yulara and stolen alcohol, being occasions on 12 September 2016, 29 December 2017, 10 April 2023 and 16 July 2023, the subject of admissions by way of pleas in the Local Court to charged offending,

(b) evidence that the accused has, essentially, committed the offending alleged in the four counts on the indictment ('proposed accused coincidence evidence').

Probative value of proposed coincidence evidence

[160] Section 98(1) of the Evidence Act provides that evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or both, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice of its intention to do so; 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.

[161] It is clear from the note to s 98(1) that one of the events referred to in s 98(1) may be an event the occurrence of which is a fact in issue in the proceeding.

[162] It has been accepted that the same analysis in assessing the probative value of tendency evidence applies to the requirement for significant probative value in relation to coincidence evidence in s 98 of the Evidence Act.[59]

[163] On the basis of the proposed RD coincidence evidence, the Crown would ask the jury to reason that, having regard to similarities in RD's offending (unlawful entry of premises in Yulara to steal, and stealing alcohol), it is improbable that RD's involvement in the offending the subject of Counts 3 and 4 (evidenced by the accused's identification of him in the admissions), including the common purpose with the accused, occurred coincidentally.

[164] On the basis of the proposed accused coincidence evidence, the Crown would ask the jury to reason that, having regard to similarities in the offending the subject of Counts 1 and 2, and the offending the subject of Counts 3 and 4, it is improbable that the accused's presence with RD during and after Counts 3 and 4 occurred coincidentally, and it is improbable that RD's presence with the accused during Counts 1 and 2 occurred coincidentally.

[165] The Crown argued that the similarities are the location of the two incidents at the Yulara resort approximately five hours apart, that there were two co-offenders who were Indigenous men, one wearing a black and red or black hoodie and the other wearing a white and black long sleeved shirt or a dirty white or grey jumper. This evidence would be coupled with the evidence as to the presence of the accused near the scene and where the offenders had fled, the accused's identification of RD as the person who committed Count 4, and his implied admission that he was present with RD and involved in the offending the subject of Counts 3 and 4, and the identification of the accused by RR as one of the two offenders who committed the offending the subject of Counts 1 and 2.

[166] I consider the probative value of the proposed accused coincidence evidence to be weak. I do not accept it has significant probative value. The proposed coincidence evidence has little capacity to affect the probability that it was the accused and RD who committed both sets of offending. The similarities are neither stark nor extensive.

[167] Further, to my mind, the reasoning suffers from the difficulty identified in The Queen v Gale [2012] NSWCCA 174; (2012) 217 A Crim R 487 at [37], in which Simpson J stated that:

Some of the asserted similarities expose a serious logical fallacy in the argument. The [asserted similarities] are all, far from being established similarities (or similarities capable of being established), the very facts that the DPP seeks to prove by the coincidence evidence. This involves, in my opinion, a misunderstanding of the note to s 98. The note permits an 'event' to be the subject of coincidence evidence, even where its occurrence is a fact in issue in the proceeding. The Crown cannot use the (asserted) presence of [one defendant] at both events to prove that [that defendant] was present at the [robbery for which the defendant was on trial]. The argument is a classic instance of 'begging the question' (properly so called). It assumes the very facts that the DPP seeks to prove. In my opinion, similarities for the purposes of s 98 must be capable of proof by means other than the 'facts' sought to be established.

[168] The proposed RD coincidence evidence would show that RD has on four other occasions across a period of seven years, unlawfully entered premises at Yulara and stolen alcohol, three times with one or more co-offenders and once on his own. By itself, it does not say anything at all about the guilt of the accused.

[169] It does not add anything to the evidence of the accused's identification of RD as the offender in Count 4 and the accused's implied admission that he (the accused) was present and involved in the offending in Counts 3 and 4. The proposed RD coincidence evidence has very limited capacity to affect the probability that the accused was present at the bar with RD and in execution of a common purpose of stealing alcohol. The evidence has even less capacity to affect the probability that the accused and RD committed the robbery of TJ, which is a different kind of offending to unlawful entry with intent to steal, and involved violence upon TJ apparently unrelated to any purpose of stealing alcohol. Similarly, the evidence has very limited capacity to affect the probability that the accused and RD committed the unlawful entry of unit 9 the subject of Count 1, as there was no suggestion of an intention to steal alcohol in particular, or to commit the assault the subject of Count 2, which was again a different kind of offending involving violence upon RR apparently unrelated to any purpose of stealing alcohol.

Conclusion in relation to proposed coincidence evidence

[170] For the above reasons, the proposed coincidence evidence is inadmissible.

[171] Section 309(1) of the Criminal Code provides that charges for more than one offence may be joined in the same indictment against the same person (relevantly) if those charges 'are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose'. Section 309(1A) provides that, to avoid doubt, charges for more than one offence may be joined even if the offences are alleged to have been committed against different persons.

[172] The meaning of the word 'series' in this context has been said to be somewhat vague, but connotes some connection between the crimes; relates more to the legal character or components of the offences than to the facts alleged by the prosecution in each particular instance; and requires some nexus or similarity between the offences which in all the circumstances of the case enables them to be described as a series.[60] It has also been said that whether charges are or form part of a series of offences of the same or similar character calls for the exercise of some judgement.[61]

[173] The Defence accepted that all four charges were properly joined in the indictment pursuant to s 309 of the Criminal Code.

[174] This concession was properly made. The Crown alleges that the two sets of offending were committed by the accused and RD at the Yulara resort within five hours of each other, and both involved an unlawful entry with intent to steal, followed by a violent response to being discovered. I accept the Crown's submission that the four offences are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose. The location and timeframe, coupled with the nature of the offending, give a real and substantial connection between the two sets of offending. There is a sufficient connection between the alleged offences to treat them as a series within the meaning of s 309(1) of the Criminal Code.[62]

[175] The Crown argued that the evidence about the alleged offending the subject of Counts 1 and 2 is relevant context evidence in respect of the alleged offending the subject of Counts 3 and 4, and vice versa.

[176] The Crown relied on the decision of the High Court in O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, in which a majority of the High Court concluded that evidence of drunken violent assaults on fellow employees without cause during the day and night prior to a violent attack on the victim, causing his death, was admissible. As Latham CJ put it (at 575), the evidence of the assaults put the act of attacking the victim 'in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night' and it is evidence of facts and matters which form constituent parts or ingredients of the transaction itself or explain or make more intelligible the course of conduct pursued. As Dixon J put it (at 577), without evidence of what, during the day and night before the assault on the victim, was done by the men present, particularly the evidence of the behaviour of the accused, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.

[177] Despite the concession that the charges were properly joined, the Defence argued against the admissibility of the two sets of evidence as context evidence on the basis that one set of evidence was not necessary in order to understand the other.

[178] On the Crown case, the accused engaged in the two sets of offending with the same state of mind - a desire to steal alcohol or valuables such as money with which to acquire alcohol. Without the evidence about the conduct the subject of Counts 3 and 4, the evidence about Counts 1 and 2 could not be truly understood in that light, with the strength of motivation that the two sets of evidence would disclose. Similarly, without the evidence about the conduct the subject of Counts 1 and 2, the evidence about Counts 3 and 4, particularly the violence and opportunistic theft of personal valuables in Count 4, could not be truly understood with the strength of motivation and preparedness to respond violently that the two sets of evidence would disclose.

[179] I consider that the evidence about the two incidents is 'cross-admissible' as context evidence.

[180] The Defence applied pursuant to s 341 of the Criminal Code for an order that Counts 3 and 4 be severed from the indictment such that there be separate trials, one for the alleged offending in Counts 1 and 2 and one for the alleged offending in Counts 3 and 4. This application was acknowledged to be dependent upon the two sets of evidence not being 'cross-admissible', whether as tendency evidence or context evidence.

[181] Section 341(1) provides that the Court may order a separate trial of any count or counts in the indictment where the Court is of the opinion that the accused may be (relevantly) prejudiced in his defence by reason of being charged with more than one offence in the same indictment.

[182] The purposes of s 341A include (relevantly): to ensure that the jury is provided with the full picture of the facts and circumstances surrounding the allegations, rather than an artificial and individualised context for each episode of alleged offending; and to reduce costs, save time and conserve legal and judicial resources.[63] The presumption in s 341A does not abrogate the Court's discretion to sever the indictment and order separate trials where there is a real risk of prejudice that cannot be allayed by directions from the trial judge.[64] The dominant consideration remains ensuring that an accused is not deprived by prejudice of a fair trial and the notion of prejudice is similar to that referred to in paragraph [150][65] above.65 Further, the loss by an accused of the strategic advantage of conducting his or her defence in each trial in isolation does not of itself constitute prejudice in the mate[66]al sense.66

[183] The exercise of the discretion to sever charges will be guided by a number of considerations, including: (a) the degree of interrelationship between the facts giving rise to the counts, and in particular whether the evidence is cross-admissible between counts for a legitimate purpose; (b) whether any potential prejudice may be allayed by proper directions to the jury; and (c) the impact on both the complainant and the accused of ordering multiple trials.[67] As set out above in relation to the joinder of the counts in the indictment, there is a significant degree of interrelationship between the facts giving rise to the counts.

[184] Given my findings in relation to the cross-admissibility of the evidence about the two incidents as context evidence, and the significant probative value of the proposed tendency evidence (which may ultimately be admitted if the Crown can establish the accused admitted to the conduct the subject of the 11 Local Court files), it must follow that the Defence application for severance and separate trials was not pressed.

[185] For the above reasons, I make the following rulings.

(1) The asserted admissions made by the accused to Police are admissible and may be relied upon by the Crown at the trial as described in these reasons, subject to the Crown tendering the record of the whole of the conversation.

(2) If the Crown had established by evidence on the voir dire that the accused had admitted, by pleas of guilty in the Local Court, to the conduct referred to in the statements of facts within the proposed tendency evidence, that evidence would be admissible as tendency evidence. In the absence of that proof, the proposed tendency evidence is presently not admissible.

(3) The proposed coincidence evidence is inadmissible.

(4) The evidence about the two incidents on 12-13 May 2023 is 'cross-admissible' as context evidence.

(5) Given the conclusions in Orders 2 and 4, the Defence application for severance and separate trials was not pressed.

[2] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2020) [EA.81.60].

[3] Citing The Queen v W [1999] NSWCCA 116 at [39]- [41] per Wood CJ at CL (Barr and James JJ agreeing). See also The Queen v Visagie [2021] NTSC 73 at [12]- [14] per Brownhill J.

[4] See Australian Law Reform Commission, Evidence (Interim) Report (Report 26, Vol 1) [755], extracted in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 19th ed, 2020) [EA.81.240].

[5] (2020) 94 ALJR 686 per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.

[6] See Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769; (2009) 258 ALR 598 at [48], [50] and [54] per Barrett J.

[7] See The Queen v Tupou [2016] NTSC 56 at [47]- [51] per Barr J and the cases there referred to. See also Carr v The Queen [2002] TASSC 60; (2002) 11 Tas R 362; The Queen v Bertrand [2008] VSCA 182; (2008) 20 VR 222 at [46].

[8] See Statutory Declaration of TJ, [3], [6], [8]-[15]: Ex P17.

[9] See Statutory Declaration of RR, [10]-[13]: Ex P14.

[10] See Statutory Declaration of Constable Matthew Bawden, [7], [8], [10]: Ex P19; Statutory Declaration of Teresa Nicole Grieve, [15]-[17]: Ex P20.

[11] See Statutory Declaration of GR, [5]-[9]: Ex P17.

[12] See Statutory Declaration of GR, [10]: Ex P17.

[13] See Statutory Declaration of GR, [11]: Ex P17; Statutory Declaration of RR, [10]: Ex P14.

[14] See Statutory Declaration of GR, [12]: Ex P17.

[15] See Statutory Declaration of RR, [11]: Ex P14.

[16] See Statutory Declaration of RR, [12]: Ex P14.

[17] See Statutory Declaration of GR, [14]: Ex P17; Statutory Declaration of RR, [13]: Ex P14.

[18] See Statutory Declaration of RR, [13]: Ex P14.

[19] See Statutory Declaration of GR, [15]: Ex P17.

[20] See Statutory Declaration of GR, [16]-[17]: Ex P17; Statutory Declaration of RR, [14]-[15]: Ex P14; Body Worn Footage of GR: Ex P31.

[21] See Body Worn Footage of GR: Ex P31.

[22] One of the authorities relied on expressly imposed these common law requirements for a lawful arrest on the assumption that there was a statutory power of arrest. See Slaveski v Victoria [2010] VSC 441 at [103], cited with approval at [236] of Police v Williams [2014] SASC 177; (2014) 246 A Crim R 317.

[23] Police v Williams [2014] SASC 177; (2014) 246 A Crim R 317 at [236], citing Slaveski v Victoria [2010] VSC 441 at [108]- [109].

[24] Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 at 587-588 per Viscount Simon, cited in Police v Williams [2014] SASC 177; (2014) 246 A Crim R 317 at [237].

[27] Body Worn Footage of Constable Bawden: Ex P23.

[28] The Queen v Deng [2001] NSWCCA 153 at [17] per James J, at [34] per Ipp AJA.

[30] The Queen v Hiko [2018] NTSC 35 at [26]- [29] per Grant CJ; The Queen v Martin [2018] NTSC 19 at [17] per Mildren AJ. See, for example, The King v Overs [2024] NTSC 46 at [12] per Grant CJ; The King v Dixon (No 1) [2023] NTSC 100 at [6] per Kelly J.

[31] The Queen v Keane [1994] 1 WLR 746 at 752 per Taylor LCJ, Auld and Mitchell JJ citing R v Melvin (unreported), 20 December 1993 per Jowitt J, applied in The Queen v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 at [48], [54] per Hodgson JA, whose remarks were in turn adopted in The Queen v Spiteri (2004) 61 NSWLR 369 at [20] per Simpson J (Grove and Shaw JJ agreeing), in Cornwell v The Queen [2010] NSWCCA 59 at [210] per McClellan CJ at CL (Johnson J agreeing) and at [297] per Simpson J, and in The Queen v Lipton [2011] NSWCCA 24; (2011) 221 A Crim R 384 at [77]- [79] per McColl JA (RS Hulme and Hislop JJ agreeing). See also Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585 at [48] per Edelman and Steward JJ.

[32] The Queen v AB [2001] NSWCCA 496 at [15] per Adams J (Spigelman CJ and Sully J agreeing).

[33] Martin v New South Wales [2002] NSWCA 337 at [91] per Giles JA, cited with approval in Matthews (a pseudonym) v The King [2023] VSCA 229 at [47] per Kennedy and Macaulay JJA and J Forest AJA, and in The Queen v AC [2018] NSWCCA 130 at [23] per Meagher JA, Bellew and Fagan JJ.

[34] Matthews (a pseudonym) v The King [2023] VSCA 229 at [47] per Kennedy and Macaulay JJA and J Forest AJA.

[35] Evidence Act, s 3, Dictionary, Part 1.

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

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

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

[41] IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].

[42] IMM at [38]-[39], [41], [58].

[44] The conduct in paragraphs [138](a), (c), (d), (g), (k) and (n).

[45] The conduct in paragraphs [138](b), (e), (f), (h), (i), (k) and (m).

[46] The conduct in paragraphs [138](l) and (m). Here, it may be reasonably inferred that the accused entered unit 9 in order to steal either alcohol or property, and that the accused entered the bar building in order to steal alcohol.

[47] The conduct in paragraphs [138](b), (c), (d), (j), (l) and (m).

[48] The conduct in paragraphs [138](c), (k), (l), (m) and (n).

[49] The conduct in paragraphs [138](l) and (m).

[50] The conduct in paragraphs [138](a), (b), (c), (d), (e), (f), (g), (h), (i), (m) and (n).

[51] The conduct in paragraphs [138](a) and (l).

[52] The conduct in paragraphs [138](j).

[53] The Queen v AW [2018] NTSC 29 at [30] per Grant CJ.

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

[56] The Queen v Lisoff [1999] NSWCCA 364 at [60] per Spigelman CJ, Newman and Sully JJ.

[57] See, for example, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [4-227].

[58] See The Queen v Bauer (2018) 266 CLR 56 at [74] per the Court.

[59] See Derwish v The Queen [2016] VSCA 72 at [75] per Weinberg AP, Redlich and Kyrou JJA.

[60] The Queen v LM [2017] NTSC 81 ('The Queen v LM') at [36] per Grant CJ, citing Packett v The King [1937] HCA 53; (1937) 58 CLR 190 at 207 per Dixon J; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 540-541 per Brennan J; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at 9 per Dawson J; The Queen v PJMS [2011] NTSC 48 at [10] per Mildren J.

[61] The Queen v Cranston (1988) 1 Qd R 159 at 162 per Macrossan J.

[62] Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 541 per Brennan J.

[63] The Queen v LM at [41] per Grant CJ.

[65] Ibid at [43]. See also The Queen v O'Brien [2017] NTSC 34 ('O'Brien') at [11] per Grant CJ.

[66] The Queen v LM at [43]; O'Brien at [11].

[67] The Queen v LM at [56] per Grant CJ.