The Queen v Beasley [2022] NTSC 16

• [4] The Crown case is that on 2 December 2019, the complainant travelled from the community in which she was then staying to the Barkly Homestead to buy alcohol. She spent some time drinking there and later returned to her home community with alcohol which had been purchased at the Homestead. On her return to the community she continued drinking with relatives and others near the sporting oval, and subsequently at the basketball courts area.
• [5] The accused approached the complainant while she was sitting at the basketball courts area, took hold of her, and started pulling her towards a house on the community which was occupied by his mother and at which he was staying. The complainant attempted to resist, and the accused struck her twice to the body with a metal bar. As a result, the complainant fell to the ground and lost consciousness for a short time. That conduct constitutes the first aggravated assault charged by the Crown. As stated, the accused has indicated an intention to plead guilty to that charge, but without conceding the facts alleged in the outline of the Crown case.
• [6] The accused took the complainant into a bedroom in the house. He asked her for sex and she refused. He then punched her to the face. That conduct constitutes the second charge of aggravated assault. Again, the accused has indicated an intention to plead guilty to that charge, but again without conceding the facts alleged in the outline of the Crown case.
• [7] The accused then moved the complainant's skirt and pants so that she was effectively naked from the waist down, and engaged in penile vaginal intercourse with her. While doing so, the accused was choking the complainant and putting his hand over her mouth to stop her from crying out. When the accused had finished, the complainant escaped from the room on a pretext, ran to the community clinic (which was at that time closed), and left a message on the after-hours phone located at the entrance to the clinic. The accused went after the complainant, dragged her back to the house, and struck her once more to the body with an iron bar before throwing her back into the same bedroom in the house. That is the conduct which constitutes the charge of sexual intercourse without consent and the third charge of aggravated assault. The accused has pleaded not guilty to those charges.
• [8] The following morning the complainant told the accused that she was going to check her bank balance and get money to buy food. Instead, she walked to the clinic to seek assistance and treatment for her injuries. The complainant reported to the clinic nurse that she had been hit by the accused. The clinic nurse observed a number of injuries and that the complainant was apparently in pain. The complainant was put on a drip with fluid and pain relief. A patient evacuation to the Alice Springs hospital was arranged and police were contacted. The complainant phoned her mother in Alice Springs and told her she had been assaulted by the accused.
• [9] While the complainant was being treated at the clinic the accused attended and put his arms around her, walked her to the toilet and suggested they have a cigarette together. On the Crown case, the accused was making a show of being solicitous. When the accused left the clinic the complainant identified him as the one responsible for the infliction of her injuries.
• [10] On evacuation to the Alice Springs Hospital, the complainant was found to have fractures to three vertebrae in the lumbar spine, a depressed fracture to her eye socket, soft tissue injuries consistent with strangulation, and pain and tenderness in her genital region. There was also significant swelling, tenderness and pain to other areas of her body.
• [11] On the morning of 4 December 2019, the complainant made a statement to police during which she disclosed the assaults. That afternoon, the complainant told a hospital staff member that she had been sexually assaulted. This further information was passed to police, and was subsequently confirmed by the complainant. The complainant was then referred to the Sexual Assault Referral Centre and was interviewed and examined that evening. She again confirmed her allegation of sexual intercourse without consent, and said she had not otherwise had sexual intercourse in the preceding two weeks. A swab taken at that time tested positive for semen, but there was an insufficient quantity of DNA to enable identification of the contributor. The Crown's forensic evidence is that the detection of the sperm at that time was consistent with ejaculation inside the complainant's vagina on the night of 2 December 2019.

• [12] The matter was initially listed for trial commencing on 7 September 2020, but that trial was vacated. However, at the time the Court heard and determined an objection to the admissibility of relationship evidence which the Crown sought to adduce at trial. At that time the Crown eschewed any intention to rely on the evidence for tendency purposes. The relationship evidence involved a serious assault perpetrated by the accused on the complainant on 11 October 2015, and some earlier assaults which were apparently not subject of convictions.
• [13] The accused and the complainant had been in a spousal relationship from 2012 until October 2015. There was a child of the relationship who was born in June 2014. The accused and the complainant separated after the commission of the serious assault in October 2015. That assault occurred in Tennant Creek. The accused had picked up the complainant, put her over his shoulder, carried her to a house, dropped her to the ground in the front yard of that house, and dragged her by the hair. He then struck her twice to the face and once to the ribs with a brick. As he was attempting to strike the complainant for a fourth time, she raised her right arm to block the blow and was struck again. When the complainant awoke the next morning she was unable to use her right arm and told the accused she wanted to go to hospital. He told her she was not allowed to do so. Later that afternoon she told the accused she was going to visit her uncle, and went to the hospital without the accused's knowledge. She suffered a fractured right forearm and other injuries as a result of the assault.
• [14] The accused left Tennant Creek after the commission of that assault, and as a consequence he was not arrested in relation to the matter until 30 December 2015. On 7 June 2016, he pleaded guilty in the Supreme Court at Alice Springs to unlawfully causing serious harm to the complainant. He was sentenced to a term of imprisonment and released on probation in late March 2017.
• [15] The Crown sought to lead evidence of that assault on the bases that it was relevant to explain conduct surrounding the 2019 charges which may otherwise appear surprising and implausible; it was relevant to the assessment of the accused's belief about whether the complainant was consenting to sexual intercourse; it was relevant to whether the complainant consented or submitted due to fear; and it was relevant to the assessment of the credibility of the complainant's account, particularly in relation to her failure to leave the house the following morning when she had opportunity and the delay in making the disclosure of sexual intercourse without consent. The then trial judge ruled that the evidence was inadmissible because it was unnecessary to provide context to the complainant's allegations, there was no surprising or implausible conduct which might be explained by the previous assault, and the evidence could not rationally affect the assessment of the probability of the existence of a fact in issue.
• [16] The trial was subsequently fixed to commence on 29 March 2021, and proceeded at that time. On the second day of the trial the officer in charge of the investigation gave evidence that the forensic tests had returned a negative result in terms of any DNA identification, but a positive result for the presence of semen. Due to a miscommunication in the office of the Director of Public Prosecutions, counsel who had been briefed to conduct the prosecution had anticipated the police officer would give evidence as to the absence of any DNA identification, but had been unaware of the presence of semen identified by the forensic testing. A mistrial was declared and the jury was discharged.
• [17] The matter was again listed for trial to commence on 4 October 2021. However, those dates were vacated to allow the defence opportunity to take expert advice and procure expert evidence in relation to the material provided under subpoena by the Forensic Biology Laboratory within Northern Territory Police.

• [18] As stated, the Crown has now indicated an intention to call evidence for tendency purposes and served a notice dated 7 January 2022 pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (the ENULA). Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value:

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

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

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

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

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

Note for section 97

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

• [19] Section 101 of the ENULA then provides that tendency evidence cannot be used against a defendant unless its probative value outweighs the danger of unfair prejudice to the defendant:

Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

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

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

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

• [20] The defence's first point of objection to the reliance on the evidence for tendency purposes is that the Crown has not given 'reasonable notice' of the intention to adduce the evidence, as required by s 97(1)(a) of the ENULA. The defence says that the Crown has not previously indicated an intention to adduce the evidence for tendency purposes throughout the course of the previous trial listings, the complainant's evidence has been pre-recorded and she has already been subject to cross-examination, and the receipt of the evidence in relation to the 2015 assault would require the complainant to be further cross-examined.
• [21] As to the first matter, the trial is not listed to commence until 29 March 2022. As already stated, the notice was provided on 7 January 2022. That is more than adequate and reasonable notice for these purposes. The point of reference for that assessment is the prospective trial date, not the previous occasions on which the matter has been abortively listed for trial.
• [22] As to the second matter, the defence submission is that '[t]he revised statement of the Crown seems to be at odds with the adamant evidence of the complainant that she and [the accused] were not in a relationship in 2019'. The reference to the 'revised statement' would appear to be a reference to the '(Revised) Crown Case Outline (as at 4/2/22)'. All that document relevantly provides is that 'by late 2019, [the complainant] ... had ... resumed contact with the accused for the purpose of enabling him to spend time with his son'. That is not a statement to the effect that the complainant had resumed a spousal or sexual relationship with the accused. However, on that assumption the defence submits further that if the tendency evidence is adduced it 'will need to cross-examine the complainant as to a possible motive to lie about the sexual assault allegation given that she ostensibly had reunited with him only to be betrayed by him with further violence'. That proposition would seem to be based on a false premise, but the short answer is that if the evidence is properly admissible for tendency purposes, and if there is a legitimate forensic need for further cross-examination as a consequence, the defence will be afforded that opportunity.
• [23] The evidence sought to be adduced by the Crown for this purpose may be summarised briefly as follows:

(a) evidence of the assault committed on 11 October 2015, including (i) forcibly removing the complainant from one place to another, (ii) violent assault with a weapon, (iii) directing the complainant not to seek medical treatment, and (iv) then seeking to minimise his conduct during an interview with police by denying the use of a weapon and denying preventing the complainant from seeking medical treatment;
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> (b) evidence of the first violent assault on the night of 2 December 2019 (to which the accused has pleaded guilty) including (i) forcibly moving the complainant from one place to another, and (ii) violent assault with a weapon;
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> (c) evidence of the second violent assault on the night of 2 December 2019 (to which the accused has pleaded guilty);
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> (d) evidence of the sexual intercourse without consent on the night of 2 December 2019 (to which the accused has pleaded not guilty), including (i) penile-vaginal penetration, (ii) choking the complainant, and (iii) putting his hand over the complainant's mouth to stop her from crying out;
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> (e) evidence of the third violent assault in the early morning of 3 December 2019 (to which the accused has pleaded not guilty), including (i) preventing the complainant from seeking medical treatment, (ii) forcibly moving the complainant from one place to another, and (iii) violent assault with a weapon; and
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> (f) evidence of dishonest and insincere conduct later in the day on 3 December 2019, including attending at the clinic and behaving in an 'exaggeratedly caring fashion' to the complainant.

• [24] The Crown submits that the evidence it seeks to adduce demonstrates a tendency on the part of the accused to act in the following particular ways:

(a) to use violence against the complainant (including the use of a weapon) to exercise control over her, particularly to punish or enforce compliance and particularly after consuming alcohol;
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> (b) to prevent the complainant from seeking medical treatment for injury sustained as a result of violence inflicted by him, or to dissuade the complainant from identifying him as the person who inflicted the injuries; and
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> (c) to engage in dishonest or insincere conduct after becoming aware the complainant has sought medical treatment.

• [25] In addition, the Crown submits that the evidence it seeks to adduce demonstrates a tendency on the part of the accused to have the following particular states of mind:

(a) a belief that he is entitled to exercise coercive control over the complainant;
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> (b) a belief that he is entitled to use violence against the complainant in order to exercise coercive control;
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> (c) an awareness that if the complainant seeks medical treatment for injuries suffered as a result of his violence, he may be identified as the person responsible; and
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> (d) an awareness of the risk of prosecution and punishment if the complainant discloses his responsibility, and a willingness to take steps to prevent such disclosure.

• [26] The Dictionary in the ENULA defines 'probative value' of evidence to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. The Crown contends that the evidence could rationally affect the determination of whether the accused applied physical force to the complainant without her consent in the act of penile-vaginal intercourse, and whether the accused applied physical force to the complainant by dragging her back from the clinic and striking her with an iron bar.

[27] The test of 'significant probative value' requires something more than mere relevance.[1] The evidence will have 'significant probative value' if it could rationally affect the assessment of the probability of the existence of one or more of the facts in issue in some important fashion.[2] This resolves to 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 facts in issue.[3]

[28] That assessment involves a two-step process. In the first step, the relevant question is whether the evidence concerning the previous conduct would be probative in establishing the tendencies and/or states of mind alleged by the Crown. If it is accepted that an inference of tendency could be sustained, the second question is whether that tendency makes it more probable that, on this occasion, the accused engaged in the conduct alleged in counts 3 and 4 on the indictment.[4]

[29] The question whether the evidence significantly bears on the facts in issue is 'a matter of fact and degree, and will be influenced by the nature of the fact in issue sought to be proved (or disproved)'.[5] As the matter initially proceeded, the defence conducted the cross-examination of those witnesses who gave pre-recorded evidence, and dealt with various pre-trial issues, on the basis that the alleged sexual intercourse and the alleged subsequent assault did not happen. Following the disclosure of the forensic evidence found on analysis of the swab, the defence position is that it may be explained by consensual sexual intercourse which took place between the accused and the complainant on the morning of 2 December 2019 or during the preceding days. It remains the case that every element which constitutes each of the offences charged is contested.

[30] That the evidence must have the capacity to inform the question whether the accused engaged in particular conduct does not mean that it must also demonstrate a tendency on the part of the accused to commit a particular type of crime. The evidence need only demonstrate a tendency 'to act in a particular way' or 'to have a particular state of mind'.[6] Moreover, s 97(1) of the ENULA does not condition the admissibility of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. It is not necessary that the evidence exhibit an 'underlying unity', 'a modus operandi' or a 'pattern of conduct'.[7] Depending upon the issues in the trial, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.[8]

[31] However, similarity remains a guide in determining in some circumstances whether tendency evidence has sufficient probative value to pass the test for admissibility.[9] The question is whether 'the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue'.[10] It is not enough that the evidence would prove a disposition to commit crimes of the kind in question;[11] in this case, crimes of violence. As Leeming JA stated in El-Haddad v R:

... "Significant" is directed to the probative value of the evidence. One way in which tendency evidence possesses significant probative value turns on the degree of generality or specificity with which the "tendency" is stated. A tendency which is stated with too high a level of generality will prove a handicap to its having significant probative value. Examples may be seen in Townsend v Townsend [2001] NSWCA 136 at [78], Ibrahim v Pham [2007] NSWCA 215 at [264] and R v Ford [2009] NSWCCA 306 at [53]. Conversely, "generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value": BP v R [2010] NSWCCA 303 at [108].

Most recently, in Sokolowskyj v R [2014] NSWCCA 55 at [40], Hoeben CJ at CL said that:

"One of the difficulties for the Crown in establishing 'significant probative value' was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly."

That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.[12]

• [32] The Crown submits that the evidence sought to be adduced for tendency purposes relates to two extended and 'significance-rich' episodes of behaviour. The description of those episodes as 'significance-rich' is directed to what are said to be the clear parallels and similarities between the accused's conduct in each case. Those similarities are said to include, in addition to frank violence, forcibly moving the complainant from one place to another, exercising coercive control, preventing the complainant from seeking medical assistance, and seeking to avoid criminal responsibility for his conduct. So far as the charge of sexual intercourse without consent is concerned, the Crown says that the sexual component of that offence should not be allowed to obscure the coercive violence alleged to have been applied by the accused during the course of the incident, which violence has clear parallels with the conduct involved in the assault in October 2015 and in the two assaults perpetrated earlier on 2 December 2019.
• [33] On close analysis, however, a number of the tendencies asserted are common features of many crimes of violence. The use of violence in a coercive manner while intoxicated by alcohol, the use of an offensive weapon and attempts to avoid criminal responsibility for violent conduct are, most regrettably, common and generalised features of domestic violence offending in the Northern Territory. There are also manifest difficulties in the proposition that evidence of the accused's false denials to police in the context of the 2015 offending, on the one hand, and the accused's 'exaggeratedly caring' attendances on the complainant following the 2019 incident, on the other hand, are probative of some material tendency.
• [34] Leaving aside those difficulties, the principal problem with the Crown's purported reliance on the 2015 assault for tendency purposes is that it was a single episode (albeit constituted by a course of conduct) which took place more than four years distant from the subsequent offending in 2019. There was no similar conduct in the intervening period. In fact, as the Crown submits, the relationship ended in October 2015, the accused thereafter served a significant period of imprisonment, the complainant entered into a relationship with another man and bore a child, and the complainant and the accused had little or nothing to do with each other until late-2019. Although the Crown points to those matters to explain why there had been no repetition of violent conduct in the intervening period, those matters equally militate against a finding of any relevant tendency. Nor is the Crown able to rely on a history or pattern of domestic violence offending on the part of the accused involving his former partners.

[35] The effluxion of time between a prior incident or incidents which are said to sustain an inference of tendency and the subsequent crime of which that inference is said to be probative may be of such duration as to suggest that the previous incident or incidents were isolated aberrations or otherwise not reflective of the relevant tendency on the part of the accused. In other words, remoteness in point of time from the circumstances of the offence charged will undermine the probative value of evidence to sustain an inference of tendency. Moreover, a single incident will ordinarily be less probative of tendency than a series of incidents with similar features. The Crown submits that evidence of a single prior episode may be probative in establishing tendency, and relies on the decision of the High Court in R v Bauer (A Pseudonym)[13] for that purpose.

[36] Care must be taken in transposing the principles which have application to tendency evidence in the context of sexual offending to other categories of offending. The Court in Bauer was at pains to make it clear that it was speaking with one voice to resolve the complexities which had hitherto governed 'the admissibility of tendency evidence in single complainant sexual offences cases'.[14] The relevant tendency in such cases is, in essence, sexual interest in the complainant, which gives rise to considerations which are quite different to an asserted tendency towards violent conduct. As the High Court observed (citations omitted):

The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML:

"Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried."[15]

• [37] The logic which applies in assessing the probative value of tendency evidence in cases involving sexual offences is that where a person is sexually attracted to another and has acted upon that attraction by engaging in a sexual act with the complainant, the person is more likely to seek to continue to give effect to the attraction by engaging in further sexual acts with the complainant as the opportunity presents. That probative value is elevated in circumstances in which the complainant is a child, by reason of the aberrant nature of the attraction. While it may well be accepted that physical assaults are not part of the ordinary incidents of a domestic relationship, and that past behaviour may in a general sense be predictive of future conduct, logic and human experience do not dictate that because an accused has committed a single assault in the domestic context more than four years previously he or she will seek to do it again when the opportunity presents, or that he or she has an established and demonstrated tendency to commit assaults of that nature.
• [38] Turning then to the two assaults which were committed immediately prior to the alleged sexual intercourse without consent, they also do not support the inference of tendency which the Crown asserts. That is because they formed part of the single course of conduct in which all four offences are alleged to have taken place. An assault on a complainant which has taken place immediately prior to a second assault on the same complainant is incapable, in and of itself, of establishing a tendency which is probative of the commission of the second assault (although, as discussed further below, it will ordinarily be admissible as relationship evidence). That situation may be contrasted with a sexual offence case in which there is evidence of repeated acts of a similar nature against the complainant (whether charged or uncharged) which have taken place on quite separate occasions over a period of weeks, months or years. In those circumstances, each separate act may well establish a tendency which is probative in proving each other act.
• [39] For these reasons, the evidence on which the Crown seeks to rely does not sustain the inference of the tendencies asserted. The threshold of significant probative value has not been satisfied. Even assuming the evidence has some probative value for tendency purposes, that value would not outweigh the danger of unfair prejudice to the defendant. That is so even making accommodation for the fact that s 101 of the ENULA no longer requires that the probative value of the evidence 'substantially outweighs' any prejudicial effect it may have on the accused. The probative value of the evidence for tendency purposes is slight, and there is at least some risk that it might be given disproportionate weight by the jury or form the basis for 'rank propensity' reasoning notwithstanding appropriate directions to the jury.

[40] As stated at the outset, the Crown contends that the evidence identified in the tendency notice is also properly admissible as relationship evidence. The admissibility of evidence for that purpose is governed by the general test of relevance in s 55 of the ENULA, and the discretions and obligations contained in Part 3.11 of the ENULA (particularly ss 135 and 137).[16] Relationship evidence will be admissible if it is necessary for and capable of providing context to a complainant's allegations,[17] including:

(a) as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct, and to explain the offences charged;

(b) to ensure that the jury is not required to decide issues in a vacuum, and to overcome a false impression that the event was an isolated one, or that the offence happened 'out of the blue', where the acts are closely and inextricably mixed up with the history of the offence;[18]

(c) to assess the credibility of a complainant's evidence;

(d) to explain why a complainant has made a delayed complaint to witnesses and/or the police;[19]

(e) to prove that the accused had a motive to commit the acts charged; and

(f) to negative issues concerning lawfulness (such as the question of intention or consent).[20]

[41] In order for context or relationship evidence to be relevant it must be shown that the evidence would make the complainant's version of the particular incident subject to the charge more capable of belief when seen in the context of that relationship. If the evidence does tend to explain the relevant occurrence, or to assist the choice between two explanations of the occurrence, then it will be relevant and prima facie admissible. The overarching purpose of relationship evidence is to place the accused's alleged conduct and/or state of mind within the surrounding events or a series of incidents which form part of a chain of events. For that reason, background evidence will generally need to have a sufficiently close temporal connection with the incident giving rise to the charge(s). It was to this requirement that Barwick CJ was referring in Wilson v The Queen when his Honour said that: 'It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury'.[21]

[42] However, as with purported tendency evidence, purported relationship evidence will also lose its relevance and probative force if the prior occasions, of which evidence is sought to be tendered, are remote in point of time to the act(s) charged.[22] In addition, evidence of prior quarrels in a relationship will be inadmissible where they are no more than 'transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing' and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings;[23] although there is no suggestion that the 2015 assault falls into this category.

• [43] The lack of temporal proximity between the assault in October 2015 and the incidents which took place in December 2019 is such as to deprive evidence of the incident which took place in October 2015 of relevance and probative value as relationship evidence. That is so notwithstanding the Crown's characterisation of the October 2015 incident as 'significance-rich' in terms of its parallels with the later incident. The lapse of more than four years between the first and second incidents is such that they cannot be said to form a chain of events within which the assessment of the accused's alleged conduct and/or state of mind in December 2019 properly falls to be assessed by the jury. As already noted, the Crown says that this lack of temporal proximity may be explained by the fact that for much of the time the accused was serving a prison sentence and the complainant was involved in a different relationship, but these are precisely the type of changes in circumstance which preclude the October 2015 incident from being characterised as reflective of the relationship in December 2019.
• [44] Even if it was considered that the evidence retains some residual probative value for relationship purposes, it would be outweighed by the danger of unfair prejudice to the accused, or substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. In particular, the evidence does not show a continuing course of conduct, cannot inform the impression of whether the offences charged happened 'out of the blue', and does not assist in the determination of whether sexual intercourse which took place in December 2019 was consensual.
• [45] However, in the application of the same principles, it is plain that evidence of the two assaults committed by the accused on the complainant earlier on 2 December 2019 (to which he has pleaded guilty) is both relevant and admissible as relationship evidence; and the probative value of that evidence is not outweighed by the danger of unfair prejudice to the accused nor substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. The complainant's evidence of the alleged sexual intercourse without consent and the third violent offence will be before the jury in any event for the purpose of proving those allegations, rather than as relationship evidence.

[46] The evidence of the accused's attendance at the health clinic later in the day on 3 December 2019, including his interactions with the complainant at that time, falls into a different category. That conduct is closely related in time and circumstance to the conduct alleged in the charges, and forms part of the general narrative of events. This transactional evidence has potential relevance both to whether the alleged conduct occurred and to the accused's state of mind at a particular time proximate to the time of the offence.[24] It will be a matter for the jury to determine whether the accused's conduct on that occasion was genuine or confected, whether it evinces any particular state of mind and what inferences should properly be drawn from that conduct. The probative value of that evidence is not outweighed by its prejudicial effect, particularly in circumstances where it might conceivably be characterised by the jury as genuinely solicitous to the complainant.

• [47] The rulings on the matters for preliminary determinations are:

(a) The evidence in relation to the incidents which occurred in October 2015 identified in the Crown's tendency notice dated 7 January 2022 is not admissible in the trial for tendency purposes.
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> (b) The evidence in relation to the incidents which occurred on 2 and 3 December 2019 identified in the Crown's tendency notice dated 7 January 2022 is not admissible in the trial for tendency purposes.
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> (c) The evidence in relation to the incidents which occurred in October 2015 identified in the Crown's tendency notice dated 7 January 2022 is not admissible as relationship evidence in proof of Counts 3 and 4 in the indictment.
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> (d) The evidence in relation to the incidents which occurred earlier on 2 December 2019 and which constitute Counts 1 and 2 in the indictment, is admissible as relationship evidence in proof of Counts 3 and 4 in the indictment.
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> (e) The evidence of the accused's attendance at the health clinic later in the day on 3 December 2019, including his interactions with the complainant at that time, is admissible as part of the relevant transaction and narrative of events.

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

[2] R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72]; R v Lock (1997) 91 A Crim R 356 at 361.

[3] Odgers, op cit, [EA.97.120]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72].

[4] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [40]- [41].

[5] Semaan v The Queen [2013] VSCA 134; (2013) 230 A Crim R 568 at [38].

[6] See, for example, R v Li [2003] NSWCCA 407 at [11].

[7] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [34]. approving the approach in R v Ford [2009] NSWCCA 306, R v PWD [2010] NSWCCA 209, Saoud v R [2014] NSWCCA 136; (2014) 87 NSWLR 481 and disapproving Velkoski v R [2014] VSCA 121; (2014) 45 VR 680 at 682.

[8] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [37].

[9] R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, [60]. See also AE v The Queen [2008] NSWCCA 52; R v Milton [2004] NSWCCA 195; R v Harker [2004] NSWCCA 427; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126; R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89.

[10] CEG v The Queen [2012] VSCA 55 at [14].

[11] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [57]- [58].

[12] El-Haddad v R [2015] NSWCCA 10; (2015) 88 NSWLR 93 at [70]- [72].

[13] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56.

[14] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56 at [47].

[15] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56 at [51].

[16] R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 ; Conway v R [2000] FCA 461; (2000) 172 ALR 185; FDP v R [2008] NSWCCA 317; R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356.

[17] Norman v The Queen [2012] NSWCCA 230.

[18] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, [6]-[7], [500], [513]; Roach v R [2011] HCA 12; (2011) 276 ALR 406 at [42].

[19] Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018, [19].

[20] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 339.

[21] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 337.

[22] R v Tsingopoulos [1964] VicRp 86; (1964) VR 676; R v Frawley [2000] NSWCCA 340, [12]-[14].

[23] R v Barbour (1939) 1 DLR 65, 66.

[24] Semaan v The Queen [2013] VSCA 134 at [32]; R v Adam [1999] NSWCCA 189 at [26]; R v Player [2000] NSWCCA 123 at [22]; R v Serratore [2001] NSWCCA 123; R v Mostyn [2004] NSWCCA 97 at [135].