The Queen v Malibirr [2022] NTSC 59

TL v The Queen [2020] NSWCCA 265; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Reeves v The Queen (2013) A Crim R 448; [2013] VSCA 311; The Queen v Wicks [2018] NTSC 4 referred to

Crown: Office of the Director of Public Prosecutions

The Queen v Malibirr [2022] NTSC 59

• [1] The accused is charged with one count of performing an act of gross indecency on Jennifer Gurralpa without her consent and one count of aggravated assault against the same victim (aggravated by the fact that the victim is female, that she suffered harm and that she was unable to effectually defend herself).

• [2] The accused and the complainant, Ms Gurralpa, were in a domestic relationship, living together in Nakara at a relative's house. There was a Domestic Violence Order ("DVO") in place restraining the accused from being in the company of the complainant when drunk and from causing, attempting or threatening harm to the complainant.
• [3] The Crown alleges that on 26 July 2021, the accused and the complainant were drinking and both became intoxicated. They were seen together, intoxicated, on the corner of Fiddlers Lane and McMillans Road, rolling around on the ground. It is alleged that in that process the accused hit the complainant and that she became unconscious.
• [4] The complainant was unconscious, lying still on her back with her legs pointing towards the road. The accused sat next to her. He was wearing shorts but no shirt.
• [5] The accused removed the complainant's underwear and flicked them away. Then he exposed his penis, got on top of the complainant and thrust his penis against the complainant's body a number of times, moving her body with each thrust. He continued to do this for some time while the complainant remained motionless and unconscious on the ground.
• [6] These events were witnessed by a woman and, later by the woman's husband. The husband called out to the accused to stop what he was doing and the woman called 000.
• [7] A few minutes later the complainant regained consciousness and lifted her shoulders slightly. The accused pushed the complainant down again by her hands and punched her in the head three times. The complainant stopped moving again and the accused continued thrusting against her body.
• [8] Eventually, the accused rolled off the complainant and passed out next to her lying on his back.
• [9] The complainant sat up and head butted the accused on his stomach. Then the complainant stood up and staggered around rocking and covering her face with her hands. She wiped her body down and then staggered back to the accused and hit him on the head two or three times. She stood up, started to walk towards the road but then fell over and sat on the ground.
• [10] Police arrived shortly afterwards. They arrested the accused, noting that he was highly intoxicated.
• [11] They noted that the complainant was also highly intoxicated and had lacerations on her lip which were bleeding. The complainant told police that the accused was her husband and that nothing had happened. She refused to provide a statement at the time.

• [12] The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) ("UEA") of its intention to adduce tendency evidence.
• [13] The notice advises that the tendencies sought to be proved are the tendency of the accused:

(a) to act in a particular way, namely to engage in acts of violence towards Jennifer Gurralpa when intoxicated; and

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

(i) a violent disposition towards Jennifer Gurralpa; and/or

(ii) a preparedness to inflict violence on Jennifer Gurralpa when affected by alcohol.

• [14] The conduct about which evidence is sought to be adduced is the conduct the subject of the current charges as well as evidence that on 21 May 2022, the accused kicked Jennifer Gurralpa while she was seated, pushed her, hit her with a bag and later punched her in the face while walking, knocking her down, and pushed her into a concrete wall. The accused was arrested shortly thereafter and returned a breath test of 0.241% blood alcohol content. The incident was captured on CCTV. The Crown seeks to adduce the CCTV footage into evidence and to call evidence from a police officer, Constable Jordon, as to what she witnessed of the incident.
• [15] The tendency evidence is said to be relevant to:

(a) whether the accused committed an act of gross indecency on Jennifer Gurralpa on 26 July 2021;

(b) whether the accused pushed Jennifer Gurralpa down and punched her to the head;

(c) whether the accused knew Jennifer Gurralpa was not consenting to his conduct or was reckless as to her consent;

(d) to rebut any alternative innocent explanation for the events witnessed by the two witnesses to the actions described above.

• [16] The defence objects to the evidence being adduced as tendency evidence.
• [17] Under UEA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced), have significant probative value.
• [18] There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence has significant probative value in relation to the issues set out above. Significance means something in between mere relevance, and a substantial degree of relevance.
• [19] The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]

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

• [20] Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[2]

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

• [21] The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[3] Nor is it permissible to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.[4]
• [22] The accused contends that the evidence of the conduct on 21 May 2022 cannot establish that the accused had the tendency alleged because it consists of one incident only. To use it as tendency evidence involves circular reasoning. The jury could only be satisfied that the accused had the alleged tendency if they were satisfied that the accused had committed the violent acts alleged in count 2 in any event. Therefore the incident in May 2022 could have no additional probative value.
• [23] Defence counsel also contends that it would be unfair to the accused to adduce, as evidence of a supposed tendency, evidence of events subsequent in time to the charged acts.
• [24] Neither of these factors necessarily prevents the evidence from having probative value in establishing the alleged tendency. Evidence of later conduct is logically capable of establishing that an accused has a particular tendency and that the accused had that tendency at an earlier time;[5] and evidence of one incident is also logically capable of establishing a

tendency.[6] Whether the evidence supports the existence of the alleged tendency and whether the alleged tendency makes the facts making up the charged offence more likely are questions of fact in each case.

• [25] In my view the evidence set out in the tendency notice is capable of supporting proof of a tendency in the accused to engage in acts of violence towards Jennifer Gurralpa when intoxicated and, which is to say much the same thing, to have the state of mind asserted in the tendency notice.
• [26] The next question is whether that tendency makes it more likely that the accused committed the offences with which he has been charged. The Crown tendency notice states that the tendency is relevant to prove that the accused committed an act of gross indecency on Jennifer Gurralpa on 26 July 2021; that the accused pushed Jennifer Gurralpa down and punched her to the head; and that the accused knew Jennifer Gurralpa was not consenting to his conduct or was reckless as to her consent.
• [27] I accept that the asserted tendency makes it more likely that the accused acted violently towards the complainant by pushing her down and punching her in the head. That tendency, if established, significantly increases the likelihood that the accused had that state of mind and acted on it at the time relevant to the assault charge - ie. that the accused committed that offence. The evidence sought to be adduced as tendency evidence does have significant probative value in relation to that charge.
• [28] However, as a matter of logic, I do not see how the tendency to inflict violence on the complainant when intoxicated could make it more likely that he committed an act of gross indecency on her or that he knew she was not consenting to that act.
• [29] The prosecutor contended that the evidence that the complainant retaliated by inflicting acts of violence on the accused after he had thrust himself against her, is strong evidence that she did not consent, and noted that she also hit back at the accused in the incident depicted in the CCTV footage. However, that evidence does not depend upon the accused having the tendency alleged by the Crown. Further, the fact that the complainant hit back against the accused in the May 2022 incident does not add anything to the inferences that the Crown seeks to draw from her retaliation against the accused during the events the subject of the charges on the indictment.
• [30] I am satisfied that the threshold test in s 97 has been met in relation to the charge of assault, but not in relation to the gross indecency charge.
• [31] The next step is to consider whether the evidence satisfies the requirements of UEA s 101. In a criminal trial such as this, tendency evidence is not admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.
• [32] When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[7] The notion of prejudice in this general context "... means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate."[8] Something more is required, such as the possibility that the evidence may be misused by the jury in some unfair way.
• [33] The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[9]

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

• [34] The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[10]
• [35] In this case, the defence contends that admission of the evidence "would be highly prejudicial to the chances of acquittal" but has not identified any potential unfair misuse of the evidence.
• [36] I do not accept that there exists any realistic prospect of the evidence being misused in a way that is unfairly prejudicial to the defence provided it is made clear to the jury that it is relevant to the assault charge only and cannot be used as tendency evidence which supports a finding of guilt on the gross indecency charge. The jury will be given a suitable direction warning against gross propensity reasoning.
• [37] The use of this kind of tendency evidence involves a kind of permissible propensity reasoning in relation to the assault charge. As the plurality said in Hughes:[11]

The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.

• [38] I do not think the risk that the jury may engage in rank propensity reasoning is very great and, in my view, it can be adequately guarded against by the usual warnings.
• [39] Balanced against this, I consider the probative value of the evidence in relation to the assault charge is high. I consider that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. The tendency evidence specified in the notice will be admitted in relation to the assault charge only.

• [40] Different considerations arise when considering whether the same evidence should be admitted as relationship evidence. Its relevance for that purpose does not depend upon the capacity of the evidence to establish any particular tendency or state of mind in the accused. As Grant CJ held in R v Grant:[12]

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 the relationship.[13]

• [41] In this case, the evidence of the previous incident suggests that the relationship between the accused and Ms Gurralpa was characterised by lack of respect for the complainant and violence on the part of the accused inflicted on the complainant in public and in front of witnesses.
• [42] The Crown submits that the previous incident makes the offending more intelligible. Seen in isolation, the allegations in this case appear extraordinarily unlikely. Defence counsel conceded that most people (ie jurors) would find it highly unlikely that a man in a supposedly loving domestic relationship would assault his partner in the manner described by the witnesses, and then perform sexual acts upon her in public in front of those witnesses. Defence counsel also conceded that these allegations are less glaringly improbable if seen in the context of a relationship characterised by lack of respect and acts of public violence in front of witnesses. However, he contended that the fact that the accused assaulted the complainant in May 2022, does not make it more likely that he did so some 18 months earlier.
• [43] The prosecutor pointed out that the gap was only 10 months, not 18 months, and the evidence was that the relationship was a relatively recent one. It is therefore not illogical to infer the character of the relationship at the time of the alleged offences from its character in May 2022. That is a matter for the jury to determine taking all of the evidence into account including the gap between the alleged offending and the May 2022 incident.
• [44] I agree that the evidence of the incident in May 2022 is relevant to throw light on the nature of the relationship between the complainant and the accused. I also agree that placed in the context of that relationship, the offending is not so out of the blue or hard to believe. The relationship evidence is therefore relevant.
• [45] The CCTV footage of the incident in May 2022 and the evidence of Constable Jordon of what she observed of that incident will be admitted as tendency evidence on relation to Count 2 only. It will also be admitted as relationship evidence in relation to both counts.

[1] [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.

[3] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41].

[4] UEA s 94(4). See also IMM v The Queen (2016) 257 CLR 300 at [59].

[5] RH v R [2014] NSWCCA 71 in particular at [125] - [130]; TB v The Queen [2019] NSWCCA 224 at [103].

1. [6] TL v The Queen [2020] NSWCCA 265: TL was convicted of the murder of his 2 ½ year old step-daughter by inflicting blunt force trauma to her abdomen. The child died of internal bleeding. The NSWCCA held that evidence of one incident in which he had inflicted burns to her feet and bottom in a bath 10 days earlier was properly admitted as tendency evidence, the tendency alleged being to "deliberately inflict physical harm on the child". Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [86]): Aravena was charged with the offence of recklessly inflicting actual bodily harm with intent to have sexual intercourse. The Crown adduced tendency evidence of a 2006 incident in respect of which the appellant pleaded guilty to a charge of indecent assault. The NSWCCA dismissed his appeal holding that it is not necessary for evidence to be admissible as tendency evidence, that the conduct occur on more than one occasion. Although a single incident some years before may provide a weaker foundation than might have been the case for a tendency evidenced by multiple incidents of relevant conduct, such considerations did not deprive the evidence in this case of significant probative value. See also Reeves v The Queen (2013) A Crim R 448 at 463 at [56]; [2013] VSCA 311 at [56] and The Queen v Wicks [2018] NTSC 4.

[7] The Queen v AW [2018] NTSC 29 at [30].

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

[9] Hughes v The Queen [2017] HCA 20 at [17].

[10] R v Lisoff [1999] NSWCCA 364 at [60].

[11] Hughes v The Queen [2017] HCA 20 at [16].

[12] [2016] NTSC 54 at [77].

[13] In her statement to police the complainant said that she has no memory of the incidents the subject of the charges. However, by the same reasoning, evidence is relevant as relationship evidence if it makes the eye witnesses' account more probable when seen in the context of the relationship. See also HML v The Queen (2008) 23 CLR 334 at p 352.