The Queen v Hoffmann [2021] NTSC 31

• [2] The Crown case is that in the days prior to 4 June 2019, the accused acquired weapons for the purpose of taking revenge on a man he believed was providing drugs to the accused's girlfriend and prevailing on her to work as a prostitute. On 4 June 2019, the accused consumed a quantity of methamphetamine, armed himself with a shotgun and travelled to the Darwin rural area looking for his girlfriend. In the course of that search he unlawfully entered into a number of dwelling houses while armed with the shotgun, threatened to kill one woman, and recklessly endangered the life of another woman by the use of a motor vehicle.
• [3] The accused then left the rural area and drove to an inner-city motel in which he knew the man he was looking for had previously been living, and which he believed the man still visited from time to time. The accused unlawfully entered the motel. While there he shot and killed the caretaker and fired the shotgun in a manner that recklessly endangered the lives of two other people.
• [4] The accused then left the motel and drove to a block of units nearby. He unlawfully entered those premises and shot through the door of the first unit, killing the occupant. He then shot through the door of the second unit and unlawfully entered it, recklessly endangering the life of the occupant of that unit in the process.
• [5] The accused then left the block of units and went to a nearby club where he had arranged to meet a male associate. The associate was waiting in the carpark when the accused arrived. Following an argument, the accused punched his associate to the head causing him to fall to the ground, before shooting him in the head with the shotgun and killing him.
• [6] The accused then left the club and drove to a recycling centre in a neighbouring suburb. He searched through the premises armed with the shotgun and a knife until he was confronted by the occupant of the premises. A protracted struggle between the accused and the occupant ensued, during which the accused stabbed the occupant more than 30 times, causing his death.
• [7] The accused then left the recycling centre and drove to the Peter McAulay Centre in Berrimah, where he attempted to gain entry, causing damage in the process. He was unsuccessful in gaining entry and drove back towards the Darwin central business district. He was apprehended on the Daly Street Bridge and taken into custody.
• [8] A sample of the accused's blood collected at 9 pm on 4 June 2019 was found on analysis to contain concentrations of methamphetamine at the top end of the range for "high recreational" use.

• [9] The Crown has served a notice dated 29 June 2020 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.

• [10] Section 101 of the ENULA then provides that tendency evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect:

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

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

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

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

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

• [11] The evidence sought to be adduced for tendency purposes relates to eight previous incidents which took place between 1995 and 2014, in which the accused is said to have behaved violently. Those incidents and the tendencies they are said to prove are set out in the table at Attachment A. The incidents may be summarised briefly as follows.

(1) On 23 June 1995, the accused punched another man to the ground in a Darwin hotel and kicked the victim in the head while he lay on the ground unconscious, breaking his jaw and causing grievous harm.

(2) On 9 August 2003, the accused struck another man in the face in a Darwin nightclub, threw him to the ground and then stomped on his face.

(3) On 4 July 2006, the accused caused criminal damage to another man's motor vehicle when the victim refused to allow the accused to reside at the victim's shed.

(4) On 27 October 2007, the accused unlawfully entered residential premises in an attempt to locate a man with whom he had a drug dispute.

(5) On 12 November 2009, the accused attended his mother's residence but she would not let him in and called police. When police attended, the accused challenged them to a fight and resisted arrest. He had to be subdued with capsicum spray and physical force.

(6) On 2 April 2010, the accused punched a security guard in the jaw after being asked to leave a Darwin bar.

(7) On 10 December 2010, the accused went to another man's house and punched the victim to the right side of the face, knocking him unconscious.

(8) On 14 December 2014, the accused jumped the back fence of a suburban dwelling armed with a baseball bat, smashed the two rear windows and back door of the premises with the baseball bat, and unlawfully entered the house. The accused then went to a different residence in another suburb, smashed the rear window of a motor vehicle with the baseball bat, smashed the windows of a second motor vehicle, and then smashed the windows of the residential premises. The accused then went to another residence in a different suburb and smashed the windows of two motor vehicles. The accused then went to another residence, smashed the windows of another motor vehicle, entered the premises in which another man, a woman and two children were present, and struck the male victim three times to the back of the head with the baseball bat.

• [12] In addition, the Crown contends that evidence of each of the offences charged under the present indictment is cross-admissible for tendency purposes in relation to each other charge.
• [13] 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 relentlessly pursue violent consequences or retribution against those he believes have wronged him or others;

(b) to intentionally use violence to exact retribution against those he believes have wronged him or others;

(c) to intentionally use gratuitous violence against victims after they have been rendered defenceless; and

(d) to intentionally and unlawfully enter residences in an attempt to locate persons connected with the address.

• [14] 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) the formation of the intention to engage in violent conduct and/or to bring about violent consequences while under the influence of intoxicating substances; and

(b) an awareness of the substantial risk of causing death to which his violent conduct gives rise while under the influence of intoxicating substances.

• [15] 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 tendency evidence could rationally affect the determination of various facts in issue in the proceedings, including:

(a) whether the accused engaged in the conduct alleged in each of the counts on the indictment;

(b) whether the accused intended to kill or cause serious harm to the four deceased;

(c) whether the accused was reckless as to the risk to others to which his conduct gave rise; and

(d) whether the accused unlawfully entered dwellings with the intention of threatening persons with a weapon.

[16] 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]

[17] The assessment is a two-step process. In the first step, the assessment 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 each of the counts on the indictment; that he intended to kill or cause serious harm to the deceased; that he entered the dwelling houses with the intention to threaten people with a weapon; and/or that he was reckless as to the risk to others to which his conduct gave rise (where recklessness is an element).[4]

[18] The defence submits that as identity and conduct are not to be disputed at trial, the only facts in issue (at least in the context of the murder charges) is whether the accused intended to kill or cause serious harm to the deceased in each case. That submission should not be accepted. The facts in issue are the facts which constitute the elements of the offences charged, together with such ancillary facts as are relevant to those ultimate facts. A fact in issue is not to be equated with a fact in dispute. Even where an accused indicates as part of the pre-trial processes that he or she does not dispute a material fact, the accused is not bound by pleadings and the onus remains on the Crown to prove each element of the charge beyond reasonable doubt.[5]

[19] 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)".[6] 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".[7]

[20] For this reason, the existence of a "striking similarity" or "underlying unity" between the incidents described in the evidence sought to be adduced for tendency purposes and the conduct charged is not a necessary requirement for admissibility under the statute. However, similarity remains a guide in determining in some circumstances whether tendency evidence has sufficient probative value to pass the test for admissibility.[8] 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".[9]

[21] The tendencies asserted by the Crown in this case are cast in quite specific terms, no doubt to avoid any criticism that they are too general in terms and scope to carry any probative value, and to demonstrate the relevance of those tendencies to the facts said to constitute the offences in this case. On close examination, however, the tendencies asserted are common features of many crimes of violence. It is not enough that the evidence would prove a disposition to commit crimes of the kind in question;[10] in this case, crimes of violence.

• [22] It may be accepted that the evidence would be probative in establishing some of the tendencies to act asserted by the Crown. However, the tendencies which might be established by the first seven incidents identified by the Crown do not make it more probable that on this occasion the accused engaged in the conduct alleged in each of the counts on the indictment. Even allowing for the specificities sought to be attributed to the conduct in the notice of tendency evidence, the first, second and sixth incidents were essentially bar fights. The third incident involved a brief scuffle and the accused then damaging the victim's car. The fourth incident involved a break and enter at night-time with no violence. The materials relied upon by the Crown to describe the incident are insufficient to establish that the accused unlawfully entered that particular residence in an attempt to locate a person connected with the address (or a general tendency to do so). The fifth incident was essentially domestic and familial in nature. That the accused became distraught in those circumstances, and invited police to fight on that occasion, does not make it more probable that the accused engaged in the conduct alleged in the present proceedings. The seventh incident demonstrates nothing more than a propensity to use violence, and the materials relied upon by the Crown are insufficient to establish retribution as a motive.
• [23] Turning then to the tendencies to have a particular state of mind which are asserted by the Crown, the first seven incidents are not probative in establishing those tendencies. Much less do they make it more probable that the accused engaged in the conduct alleged in the indictment. The first tendency asserted is the formation of the intention to engage in violent conduct and/or to bring about violent consequences while under the influence of intoxicating substances. The materials relied upon by the Crown only disclose intoxication at the time of the incident at the home of the accused's mother (the fifth incident), and at the time of the assault on the bouncer (the sixth incident). In both cases, the implication is that the accused was intoxicated by alcohol rather than methamphetamine. As the defence submits, a tendency to intend and inflict violence while under the influence of alcohol does not make it more likely that the accused intended violence while under the influence of methamphetamine.
• [24] The second tendency asserted is an awareness of the substantial risk of causing death to which the accused's violent conduct gives rise while under the influence of intoxicating substances. Even leaving aside the question of intoxication, the fact that the accused has previously been involved in violent incidents in which he has punched or kicked other people cannot by itself inform the level or nature of his awareness of the risk of causing death which was involved in the conduct charged by indictment. None of the first seven incidents relied upon involved serious harm or death; none of them involved the element of intending to cause serious harm; and none of them involved the use of a weapon on a person, much less a gun or knife.
• [25] For these reasons, the evidence in relation to the first seven incidents is inadmissible for tendency purposes. The Crown pressed in its written submissions that the evidence was also directly relevant to the question whether the accused formed the requisite intent despite the extent of his intoxication, although that submission was not developed during the course of oral argument. The fact that the accused has previously committed violent offences for which he has pleaded guilty can have no direct relevance to the question whether the accused formed the intention to kill or cause serious harm during the course of the incidents which form the basis of the present charges.
• [26] Different considerations arise in relation to the eighth incident identified in the Crown's tendency notice. That incident took place on 14 December 2014, and was more proximate in time to the incidents which form the basis of the present charges. On that day, the accused consumed a quantity of methamphetamine. He armed himself with a baseball bat and jumped the back fence of a house in Karama, before smashing the windows and back door. He then walked around to the front of the house and entered it, still holding the baseball bat. One of the residents of the house called police. After arguing with her, the accused left that house and went to a different house in Malak, still armed with the baseball bat. On the way into that residence the accused smashed the windscreens and rear windows of two vehicles belonging to one of the occupants. He then smashed the front windows of the unit.
• [27] The accused then left that place and went to another unit complex in Malak, where he shattered the windscreen and rear windows of vehicles owned by two of the occupants. The accused then went to a different address in Malak and smashed the windows of another vehicle. Finally, the accused went to another house in Malak and entered the residence by walking through the back door. One of the occupants was in the lounge room with her two young children. The accused entered the bathroom where the male occupant of the house was with his seven-year-old son, and struck the adult victim twice to the back of the head with the baseball bat with sufficient force to knock the victim to the ground. The accused then struck the victim a third time to the head with the baseball bat. These blows caused the victim serious harm. The victim fled and flagged down a passing police vehicle. Police pursued the accused. He ignored commands from police to stop and drop the baseball bat, and had to be subdued by the use of a Taser. The accused subsequently participated in an interview with police in which he said the incidents stemmed from gaol grudges and feuds that had been going on for some time, and related to matters involving drugs.
• [28] A number of observations may be made about that course of conduct. First, the accused was intoxicated by methamphetamine at the time and clearly formed the intention to engage in violent conduct while under the influence of that substance. Second, the accused's motivation and intention throughout was to inflict violence and retribution on persons against whom he held grudges, including in relation to matters involving drugs. Third, the conduct clearly involved the accused entering various residences in an attempt to locate persons he believed lived in those residences, for the purpose of inflicting violence upon them in pursuit of the grudge and in response to some perceived wrong. Fourth, there is a degree of similarity, although clearly not an identity, between the conduct on the earlier occasion and the circumstances of the offences now charged. Fifth, the use to which the tendency evidence is sought to be put is to prove conduct rather than to identify the accused, and striking similarity or underlying unity is less important to the question of admissibility. Sixth, the previous incident is not so remote in time from the circumstances of the offences now charged as to undermine its probative value in permitting inferences of tendency to be drawn.
• [29] Having regard to those considerations, features and similarities, the evidence concerning the accused's conduct on 14 December 2014 would be probative in establishing tendencies to inflict violence and retribution on persons against whom he held grudges, including in relation to matters involving drugs; to enter residences unlawfully in an attempt to locate persons he believed lived in those residences for the purpose of inflicting violence upon them in response to some perceived wrong; and to form the intention to engage in violent conduct while under the influence of methamphetamine. However, it is difficult to see how that prior incident would demonstrate a tendency on the part of the accused to have "an awareness of the substantial risk of causing death that his conduct enlivened whilst under the influence of intoxicating substances".
• [30] As to the second step in the assessment, those tendencies which are available, if found by the jury to be established on the evidence, would make it more probable that on this occasion the accused engaged in the conduct alleged in each of the counts on the indictment; the accused entered various dwelling houses with the intention to threaten people with a weapon in pursuit of retribution; and the accused had formed the intention to inflict violence on the four deceased persons.

[31] The defence submits that even if the facts in issue are not limited to the facts in dispute, assessing the probative value of tendency evidence will depend upon whether the matter it is led to address is a live issue at the trial. It is said on that basis that the probative value of the evidence in proving that the accused performed the acts which are the subject of the charges ceases to be significant in light of the fact that the defence does not dispute either identity or the performance of the acts.[11] That is no doubt because the Crown case in that respect would appear to be relatively strong, and there is no doubt that the accused performed the acts alleged. If there is any reasonable doubt, it lies in the defence contention that the accused did not intend to kill or cause serious harm to those people. For that reason, the evidence remains probative, and highly so, in determining whether the deceased met their deaths in any other way than in the pursuit of a vendetta by the accused, and by the infliction of lethal force which was intended to cause at least serious bodily harm.[12]

[32] It falls then to consider whether the probative value of the evidence of the eighth incident "substantially outweighs" any prejudicial effect within the meaning of s 101 of the ENULA. The dominant consideration in balancing probative value against prejudicial effect remains ensuring that an accused is not deprived by prejudice of a fair trial. The notion of prejudice in this context "means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate".[13] In addition, it is not enough that there is a mere possibility that the evidence will be misused by the jury in some unfair way. There must be a real risk of unfair prejudice by reason of the admission of the evidence.[14]

[33] There are two potential risks of unfair or improper use in this case. The first potential risk is that the admission of the evidence concerning the accused's prior conduct during the course of the eighth incident may cause the jury to punish the accused for that prior conduct, rather than addressing the offences presently charged. The second potential risk is that the jury might be diverted from a proper consideration of the evidence, and assume the accused's guilt because he is someone with the tendency to act in that way.[15] The nature of the evidence concerning the eighth incident is not such that the jury may be emotionally affected by it, and any possibility that the jury may use the evidence improperly can be accommodated by suitable directions.[16]

• [34] For these reasons, I have concluded that the probative value of the evidence concerning the eighth incident substantially outweighs its prejudicial effect.
• [35] Different considerations arise in relation to the Crown's contention that evidence of each of the offences charged under the present indictment is cross-admissible for tendency purposes in relation to each other charge. Those offences are all to be tried together. There is no application for the severance of the indictment, and nor is there any ground for such an application. In those circumstances, the jury will necessarily hear the evidence relating to each offence charged on the indictment. In practical terms, the risk of unfair prejudice is diminished for that reason.
• [36] Ranged against that, the evidence concerning the accused's course of conduct over the incidents alleged to have taken place on 4 June 2019 would be highly probative in establishing a tendency to inflict violence and retribution against his enemies; a tendency to enter residences unlawfully for that purpose; and a tendency to engage intentionally in violent conduct while under the influence of methamphetamine. In turn, those tendencies, if found to subsist on the basis of the evidence of the other incidents taking place on that day, would make it more probable that the accused engaged in the conduct alleged in each of the counts on the indictment, and that he had formed the intention to inflict violence on the four deceased persons.
• [37] For these reasons, I have concluded that the evidence in relation to each charge on the indictment is admissible for tendency purposes in the trial of each other charge on the indictment.

• [38] The Crown has also served a notice dated 29 June 2020 pursuant to s 98(1) of the ENULA, which provides:

(1) Evidence that 2 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 any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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.

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

• [39] As with the provision for tendency evidence, s 101 of the ENULA then provides that coincidence evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect.
• [40] The evidence sought to be adduced for coincidence purposes is of the incident which took place on 14 December 2014, which has already been described above in the context of the tendency evidence. In addition, the Crown contends that evidence of each of the offences charged under the present indictment is cross-admissible for coincidence purposes in relation to each other charge. The Crown contends that the evidence proves that the accused did the following particular acts:

(a) engaged in a course of violent conduct in similar circumstances, namely whilst under the influence of illicit substances, over an extended period of time, involving multiple locations and victims, and while armed with a weapon; and

(b) unlawfully entered multiple dwellings with intent to use or threaten violence.

• [41] In addition, the Crown contends that the evidence proves that the accused had the following particular states of mind:

(a) the intention to engage in violent conduct and/or to bring about violent consequences while under the influence of intoxicating substances; and

(b) an awareness of the substantial risk of causing death to which his violent conduct gives rise while under the influence of intoxicating substances.

• [42] The Crown contends that the coincidence evidence relates to the following facts in issue in the proceedings:

(a) whether the accused engaged in the conduct alleged in each of the counts on the indictment;

(b) whether the accused had the capacity to form a specific intent in relation to his conduct, notwithstanding he was under the influence of illicit substances;

(c) whether the accused had the capacity to form an awareness regarding the risk of death his conduct gave rise to, notwithstanding he was under the influence of illicit substances;

(d) whether the accused unlawfully entered dwellings with the intent of threatening persons with a weapon;

(e) whether the accused knew the nature and quality of his conduct on 4 June 2019;

(f) whether the accused knew his conduct on 4 June 2019 was wrong; and

(g) whether the accused was in control of his actions on 4 June 2019.

• [43] As matters presently stand, the accused has disavowed any reliance on the defence of mental impairment and the last three facts are not in issue in the proceedings. As to the other facts, the Crown submission is, in essence, that because of the improbability of the events on 14 December 2014 and each of the acts on 4 June 2019 occurring coincidentally, the accused must have done the particular things and had the particular states of mind asserted in the coincidence notice.
• [44] Coincidence reasoning relies fundamentally on similarities or linkages between two or more events or the circumstances in which those events happen. In order to have significant probative value in proving that the accused did the acts asserted, the other events or circumstances advanced for that purpose must be similar enough or so uniquely linked to the relevant act in 2019 to make it highly probable that it was the accused who committed that act. In order to have significant probative value in proving that the accused had a particular state of mind, the other events or circumstances in which he had that state of mind must be similar enough or so uniquely linked to the relevant act in 2019 to make it highly probable that he had the same state of mind at that time. Coincidence evidence only gains probative value when it indicates the objective improbability of an event occurring accidentally, or the objective improbability that the established state of mind during the first incident was not also present in the second.
• [45] Unlike tendency evidence, coincidence evidence does not directly reflect on a person's character, tendencies or disposition. Its only purpose is to link an accused to the offences by negating mere coincidence. When understood in that light, the fact that the accused performed the acts described above on 14 December 2014 in no way makes it more probable, by coincidence reasoning, that he performed the acts on 4 June 2019. While the similarities between the two incidents have been catalogued above, they are not so marked or uniquely linked as to make it highly probable that it was also the accused who performed the acts on 4 June 2019.
• [46] So far as state of mind is concerned, it may readily be accepted that the accused had the intention to engage in violent conduct and to bring about violent consequences on 14 December 2014. It may also be readily accepted from the evidence of conduct, which the defence says will be uncontested, that the accused had the intention to engage in violent conduct and bring about violent consequences on 4 June 2019. However, that is a conclusion which arises from the performance of the acts on 4 June 2019. It is not a conclusion which is significantly bolstered or supported on coincidence grounds by the similarities or linkages between the incident in December 2014 and any of the acts performed on 4 June 2019. It is also the case that proof of the accused's conduct on 14 December 2014, at least by reference to the materials identified in the Crown's coincidence notice, does not establish an awareness on the part of the accused at that time of the substantial risk of causing death to which his violent conduct gave rise. It establishes only that the accused engaged in that conduct and accepted criminal responsibility for it.
• [47] The same observations may be made in relation to the Crown's contention that evidence of each of the offences charged under the present indictment is cross-admissible for coincidence purposes in relation to each other charge. As already stated, the accused's knowledge of the nature and quality of his conduct is not a relevant matter in issue given that the accused has not to this point in time raised the defence of mental impairment. Leaving aside the issue of mental impairment, the question whether the accused had the capacity to form a specific intent in relation to his conduct concerning one event or victim on 4 June 2019 is not materially informed by his conduct concerning any other event or victim on that day.
• [48] For these reasons, the evidence identified in the Crown's coincidence notice is inadmissible in the trial for coincidence purposes.

• [49] The third issue for preliminary determination concerns the Crown's intention to adduce hearsay evidence of a statement made to police by Theodore Ulrich Schadegg (the witness) on 9 June 2019, which was five days after the events in question. The witness is unavailable to testify because he died at the Royal Darwin Hospital on 20 January 2021 from acute renal failure. The witness was the caretaker at the club at which one of the murders is alleged to have taken place. The statement indicates that the witness heard and saw various dealings and events which are relevant to the matters in issue.
• [50] The Crown has given notice pursuant to s 67 of the ENULA that it intends to adduce hearsay evidence of the witness's representations in the form of a statutory declaration made to police on 9 June 2019, and the notes and statements of the police officer who took that statement concerning the circumstances in which the representations were made. The Crown invokes ss 65(2)(a), (b) and (c) of the ENULA, which provide:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable;

• [51] The content of the witness's statutory declaration may be summarised briefly as follows:

(a) He had been the caretaker at the club for approximately seven years at the time the statement was made. His first language is German, but he had lived in Australia since 1967 and spoke English well.

(b) On the day in question he was suffering from shingles and was not feeling well. He had taken pain relief medication. He spent most the day in his room near the back carpark of the club.

(c) Some time before 5 pm on 4 June 2019, he heard gunshots in the distance. He knew they were gunshots because he had undertaken military service in Switzerland and elsewhere. About 15 minutes later he went to the toilet, which was also adjacent to the carpark, and heard two male voices yelling and arguing with each other in the carpark. He thought they were on the Geranium Street side of the club. He did not recognise the voices and he could not discern the substance of the argument. He could hear them calling each other names like "fucking idiot". He did not consider the incident unusual, as patrons of the club often went outside to have arguments.

(d) After about five minutes, the two men suddenly stop arguing. About one minute after the sound of argument ceased, he heard one of the voices say something like, "Here it goes you fucking cunt". He then heard a gunshot. He thought somebody had shot a car, because he remembered a metallic sound like a bullet striking metal. Again, it sounded to the witness as if this was taking place in the carpark near Geranium Street.

(e) The witness walked out to the Geranium Street side of the club and the heard a car door slam and a vehicle leaving in a hurry from the back of the club. He then went back inside his room. Not long after that he heard one of the managers closing the gate and moving people away. He then went outside and saw a body lying at the back of the club next to the water pump valve. The person had been shot in the head. He did not recognise the body, but the gunshot wound made it unrecognisable anyway. The witness was surprised that the body was out the back near the water pump valve, because it had sounded to him as if everything was happening on the Geranium Street side of the club.

• [52] The evidence of the police officer who took the statutory declaration from the witness may be summarised briefly as follows:

(a) On the evening of 4 June 2019, he was advised during the course of a Crimes Division briefing that there had been a number of shooting incidents in which victims had suffered gunshot injuries, and that the alleged offender was in police custody. He was tasked to attend at the club.

(b) When the police officer arrived at the club, the crime scene guard advised there was a deceased male who appeared to have a gunshot injury to the head, and the manager of the club was preparing CCTV footage of the incident to provide to police. Two staff members at the club subsequently showed the police officer footage taken by the camera trained on the rear carpark to the club. That footage showed an incident in which the deceased male was knocked unconscious by another male, before being shot once with a firearm as he lay apparently unconscious. The club employees provided the police officer with a USB containing the footage of the incident.

(c) On the morning of 9 June 2019, the police officer attended at the club and took a handwritten statement from the witness. The content of that statement is as summarised in the preceding paragraph.

• [53] The witness said to have made the previous representations is identified with sufficient particularity. The witness is inarguably unavailable to give evidence about the matters contained in the representations. In taking the statutory declaration from the witness, the police officer both saw and heard the representations being made. Assuming that at least one the conditions in s 65(2) of the ENULA is satisfied, evidence may be adduced by the police officer reading onto the record what was said[17]; or, in circumstances where the police officer observed that the document being produced, by tendering the statutory declaration through the police officer[18].
• [54] There is some doubt attending the question whether these representations may be characterised as made when the witness was under a duty to make them, or to make representations of that kind. The scope of s 65(2)(a) of the ENULA is not settled. While the representations were not made by the witness in the course of a legal duty to observe and record them, the provision is not obviously or expressly limited to representations made in discharge of a legal duty. In this case, the witness heard and saw things in the lead up to and the aftermath of a killing in his workplace, police attended on him for the purpose of taking a statement from him in relation to the matters he saw and heard, and the witness made a solemn declaration pursuant to legislation that the representations contained in the statutory declaration made to police in that context were true in every particular. In those circumstances, I conclude that the witness was, in a relevant sense, under a duty to make those statements. However, if I am wrong in that conclusion, it is not the sole basis on which an exception to the hearsay rule may be made out.
• [55] As extracted above, ss 65(2)(b) and (c) of the ENULA also provide exceptions for representations made shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; and representations made in circumstances that make it highly probable that the representation is reliable. Although the phrase "shortly after" imports a degree of flexibility[19], the Full Federal Court has observed that it would be an unusual case in which a representation made five days after an event might be regarded as having been made "soon after" it[20]. That is so even in circumstances where the events might be considered still "fresh" in the memory of the person making the representations. That approach is consistent with the res gestae exception to the hearsay rule from which the statutory exception is derived, however the ambit of the phrase "shortly after" cannot be arbitrarily confined.
• [56] I respectfully adopt the following analysis undertaken by Kelly J in R v Ryan concerning the operation of s 65(2)(b) of the ENULA:[21]

(1) The section is not just a restatement of the res gestae principles. It was intended to significantly expand upon the range of statements that were admissible at common law as part of the res gestae. ([Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204] at [123] and [133]; [Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454] at [33]).

(2) A narrative of past events may be admissible under s 65(2)(b). (Conway at [133]).

(3) The emphasis in s 65(2)(b) is not on reliability as such, but on admitting evidence that is unlikely to have been fabricated. For that reason the section requires that the statements be made "when" the asserted fact occurred (rephrased in Williams as "during the occurrence of the asserted fact") or "shortly after" the asserted fact occurred (rephrased in Williams as "under the proximate pressure of the asserted fact"). ([Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490] at [48]).

(4) For that reason, the court should not over-emphasise such matters as whether the events in question were fresh in the memory of the person making the statement in determining whether a statement was made shortly after the event. (Williams at [48]) However it is proper to take into account whether the events are likely to have been fresh in the mind of the person when the statement was made, as the policy behind the provision is to exclude evidence of a recollection which may have faded in accuracy over time. (Conway at [123]-[135]; Harris [33]-[40]; R v Mankotia (unreported, Supreme Court, NSW, Sperling J, No 70049 of 1997, 27 July 1998) quoted in Harris at [34]).

(5) "The predominant factor in the phrase 'shortly after' must be the actual time elapsed and whether that fits the ordinary usage of the term 'shortly after' in the circumstances of the case." (R v Mankotia quoted in Harris at [34]).

(6) The assessment of whether a statement was made "shortly after" the event in question may be influenced by the subject matter of the statement and by how long the memory of such an event is likely to be clear in the mind. (R v Mankotia; Harris at [34]).

• [57] Although I consider it highly unlikely that the representations were a fabrication, and that the memory of the events were likely to be clear the witness's mind, I am unable to conclude that they were made "shortly after" the event in the relevant sense. A statement made five days after the event cannot in these circumstances be properly characterised as one made "under the proximate pressure of the asserted fact". While in The Queen v Smiler (No 1)[22] a formal statement made to police seven days after the event was found to fall within the exception in s 65(2)(b) of the ENULA, that was in circumstances in which the complainant had made an initial statement to police to the same effect in the immediate aftermath of the incident.
• [58] Turning then to s 65(2)(c) of the ENULA, the relevant question under that provision is whether the representations were made in circumstances making it highly probable they are reliable. Although the test in s 65(2)(c) imposes a higher threshold of admissibility, it is not contingent on the representations being made "shortly after". There is nothing improbable about the account given by the witness. There is no suggestion of confusion on his part. The representations were made while the witness was giving a formal statement to police, and subject to the legal and moral obligations that entailed. The representations concerned a fatal shooting, which is not something the witness would likely be mistaken about or not remember accurately. The representations are consistent with what can be seen on the CCTV footage of the incident. Although the witness's first language was German, he had been in Australia for more than 50 years and his English speech and comprehension were assessed as good by the police officer who took the statement. Although the witness was ill with shingles at the time and on medication, there is no suggestion that his perceptions were thereby impaired, or that the things he saw and heard may have been affected by those matters. Finally, the witness had no personal interest in the subject matter of the interaction which he heard, the participants in the transaction, or the outcome of any police investigation or subsequent criminal proceedings. For these reasons, I find that the representations were made in circumstances making it highly probable they were reliable.
• [59] The probative value of this evidence is neither 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. In particular, the evidence has a high degree of probative value in determining the circumstances in which the shooting at the club took place, and whether there was an intention on the part of the accused to kill or cause serious harm to the alleged victim. Counsel for the accused submits that the probative value is slight in circumstances where the statement provides that a voice called out "something like 'Here it goes you fucking cunt'".
• [60] The use of the qualification "something like" in this context is to say that the words used were either those or similar to that formulation. It would seem unlikely that the witness is mistaken in relation to the expletives used, and there is nothing inherently prejudicial to the accused about the words "Here it goes". The significance of the witness's evidence lies in the general tenor of the interaction between the accused and the alleged victim, and the sequence in which events unfolded, rather than whether those precise words were spoken. The issue of whether those exact words recorded in the witness's statutory declaration were spoken, and the significance of that matter, is one for submission to the jury.
• [61] It may be accepted that the defence will be unable to cross-examine the witness on the content of the statutory declaration. However, given the existence of the CCTV footage of the incident, the witness's general evidence about the nature of the altercation between the accused and the alleged victim, and that part of the victim's statement with which the defence takes particular issue, it is difficult to see how that inability will give rise to unfair prejudice. There is no prospect of unfair prejudice to the accused which cannot be ameliorated by appropriate directions to the jury.

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

(a) The evidence identified in the Crown's tendency notice concerning the incidents on 23 June 1995, 8 August 2003, 4 July 2006, 27 October 2007, 12 November 2009, 2 April 2010 and 10 December 2010 is inadmissible in the trial for tendency purposes.

(b) The evidence identified in the Crown's tendency notice concerning the incident on 14 December 2014 is admissible in the trial for tendency purposes.

(c) The evidence in relation to each charge on the indictment is admissible for tendency purposes in the trial of each other charge on the indictment.

(d) The evidence identified in the Crown's coincidence notice is inadmissible in the trial for coincidence purposes.

(e) The representations made by Theodor Ulrich Schadegg in the statutory declaration dated 9 June 2019 are admissible pursuant to s 65 of the ENULA.

[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 The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72]; R v Lock (1997) 91 A Crim R 356 at 361.

[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) 92 ALJR 52 at [40]- [41].

[5] R v Burton [2013] 37 A Crim R 238 at [148]-[150].

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

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

[8] 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.

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

[10] Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 at [57]- [58].

[11] Relying on Stubley v State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 at [65].

[12] See, for example, R v Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90.

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

[14] R v Lisoff [1999] NSWCCA 364 at [60]; R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [91]-[92]; Ainsworth v Burden [2005] NSWCA 174 at [99]; Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232 at [70]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [56]; Doklu v R [2010] NSWCCA 309; (2010) 208 A Crim R 333 at [45].

[15] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]); R v AH (1997) 42 NSWLR 702 at 709; R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 at [49]- [50].

[16] See, for example, Gilbert v The Queen (1999) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd [2013] VSCA 17 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [22], [26], [29], [38].

[17] R v Suteski (No 4) [2002] NSWSC 218; (2002) 128 A Crim R 275.

[18] Conway v R [2000] FCA 461; (2000) 98 FCR 204 at [154]; R v Mrish (unreported, NSWSC, 4 October 1996).

[19] R v Mankotia [1998] NSWSC 295; Conway v R [2000] FCA 461; (2000) 98 FCR 204.

[20] Williams v R [2000] FCA 1868; (2000) 119 A Crim R 490; cf Harris v R [2005] NSWCCA 432; (2005) 158 A Crim R 454 at [39]; R v Gover [2000] NSWCCA 303; (2000) 118 A Crim R 8 at [33].

[21] R v Ryan [2013] NTSC 54; (2013) 33 NTLR 123 at 131-132 at [27].

[22] The Queen v Smiler (No 1) [2017] NTSC 28.