THE STATE OF WESTERN AUSTRALIA -v- HUISH [2023] WASC 500 | Case summary

Supreme Court of WA|2023-11-13|Before: Fiannaca J

Office of the Director of Public Prosecutions for WA

The accused is charged on Supreme Court indictment 44 of 2022 (the indictment) with 19 offences arising out of events on 16 November 2021, when he is alleged to have committed extreme acts of violence against his then domestic partner, Jordana Jayde Fareso, at his home in Burswood, culminating in an alleged offence of attempted murder. I will refer to Ms Fareso as the complainant.
The State has applied for orders that, at the trial of the accused on the charges, the State be permitted to adduce evidence of prior conduct of the accused that the State contends constitutes propensity evidence under s 31A of the Evidence Act 1906 (WA) (the Act). The orders sought relate to three items of evidence, which I will particularise below.
The application was heard at a pre-trial hearing on 13 November 2023. At the conclusion of the hearing, having heard from the prosecutor and counsel for the accused, I was satisfied that the State should be permitted to adduce the evidence particularised. Accordingly, I made the orders sought by the State, gave brief reasons, and indicated that I would publish reasons subsequently.

(a) 4 counts of unlawfully impeding the normal breathing and blood circulation of the complainant, by manually applying pressure on or to her neck, in a circumstance of aggravation (Criminal Code (WA) s 298(b));

(b) 2 counts of making a threat to unlawfully harm the complainant, in a circumstance of aggravation (Criminal Code s 338B(1)(b)(ii));

(c) One count of making a threat to unlawfully kill the complainant, with intent to compel her to do an act she was entitled to abstain from doing, in a circumstance of aggravation (Criminal Code s 338A(d) and (e)(i));

(d) 2 counts of making a threat to unlawfully kill the complainant in a circumstance of aggravation (Criminal Code (WA) s 338B(1)(a)(ii));

(e) 3 counts of aggravated assault occasioning bodily harm (Criminal Code (WA) s 317(1)(a));

(f) 2 counts of aggravated deprivation of liberty (Criminal Code (WA) s 333(a));

(g) One count of aggravated unlawful wounding (Criminal Code (WA) s 301(1)(a)); and

(h) One count of attempted murder (Criminal Code (WA) s 283(1)(a)).

The circumstance of aggravation, in each case where it is alleged, is that the accused was in a family relationship with the complainant.
For convenience, I will refer to the offence under s 298(b) of the Criminal Code as 'aggravated strangulation'.
The accused is also charged with one count of obstructing police officers in the performance of their functions (Criminal Code (WA) s 172) and two counts of assaulting a police officer who was performing a function of his office or employment (Criminal Code (WA) s 318(4)), which are offences alleged to have been committed by the accused when police attended his home immediately after he is alleged to have committed the offences against the complainant.

Section 31A of the Evidence Act provides as follows:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

By s 31A, the admissibility of propensity evidence depends on the court 'considering' that the evidence meets the criteria for admissibility set out in subsection (2).
In accordance with the usual practice, the State has sought rulings prior to trial in respect of the admissibility of the propensity evidence it seeks to adduce. It has done so by applying for orders permitting it to lead the following evidence on any trial of the accused on the indictment:[1]

(a) Evidence of the conduct of the accused in relation to an offence committed by him on 9 August 2016 in Upper Coomera, Queensland, of choking a woman, with whom he was in a domestic relationship, in respect of which he was convicted and sentenced in the Queensland District Court on 13 December 2017;

(b) Evidence of the conduct of the accused in relation to an offence committed by him on 15 September 2018 in Newcastle, New South Wales, of intentionally choking a person with recklessness, in the context of domestic violence, in respect of which he was convicted in his absence on 15 November 2018 in the Newcastle Local Court, and for which an arrest warrant was issued; and

(c) Evidence of the alleged conduct of the accused on 22 December 2020 at his home in Burswood, involving the choking or strangulation of another woman, JGS with whom he was in a domestic relationship.[2]

The accused has not been convicted of any offence in respect of the last matter. The alleged victim in that matter did not make a complaint to the police about the alleged offence. However, on 24 December 2021, she provided a statement concerning the incident in the context of the police investigation into the offences the subject of the present indictment. The State has identified the relevant tendency or propensity evidence in respect of that incident by reference to that statement.
The accused has not been arraigned on the indictment. It was agreed by the State and the accused at the hearing on 13 November 2023 that the accused's arraignment should be deferred until an upcoming status conference. However, the accused has been committed to this court for trial after he entered pleas of not guilty in the Stirling Gardens Magistrates Court to 13 of the charges that now appear on the indictment. The other charges have been included on the indictment pursuant to s 83(6) of the Criminal Procedure Act 2004 (WA). The charges to which the accused entered pleas of not guilty, and on which he was committed for trial, include the four charges of aggravated strangulation and the charge of attempted murder. The application relates specifically to the trial of the accused on those charges. Accordingly, I was satisfied that the application was properly before the court.
The application is supported by two affidavits of Katherine Anne Gregory, a Senior State Prosecutor at the Office of the Director of Public Prosecutions for Western Australia, who also appeared as counsel for the State at the hearing. The affidavits, dated 23 October 2023 and 3 November 2023, attach:[3]

(1) a record of Queensland Court Outcomes for the accused showing his conviction and sentence for the offence of 9 August 2016 (the Queensland offence) (KAG-1, 23.10.2023);

(2) the facts of the Queensland offence as described in a Queensland Police Service Court Brief (KAG-2, 23.10.2023);

(3) transcript of the sentencing hearing in the District Court of Queensland on 13 December 2017 in respect of the Queensland offence (KAG-1, 3.11.2023);

(4) a New South Wales Criminal History for the accused, showing his conviction in the Newcastle Local Court on 15 November 2018 of the offence of 15 September 2018 (the NSW offence) (KAG-3, 23.10.2023);

(5) the facts of the NSW offence from the NSW Police records (KAG-4, 23.10.23); and

(6) the transcript of proceedings in the Newcastle Local Court on 15 November 2018 in which the accused was convicted of the NSW offence in his absence, having failed to appear in answer to his bail (KAG-5, 23.10.2023).

In the proceedings of 15 November 2018, the prosecutor tendered the facts for the offence. In the present application, the State submitted that I could proceed on the basis that the facts tendered were those attached as KAG-4 to Ms Gregory's affidavit of 23 October 2023. The reference number shown on KAG-4 correlates with the charge number shown for the offence in the accused's NSW Criminal History (KAG-3). However, in the transcript of 15 November 2018 (KAG-5), there is insufficient information on which to conclude that the facts tendered were those contained in KAG-4. Ms Gregory said that, if necessary, the State would obtain evidence from the prosecutor in those proceedings to confirm that the facts in KAG-4 were those tendered on 15 November 2018. I will determine the admissibility of the evidence in respect of the incident of 15 September 2018 on the basis that the facts were as set out in KAG-4. Should it transpire that the assumption is incorrect, the admissibility of the evidence concerning that incident will need to be reconsidered.
Apart from Ms Gregory's affidavits, the materials available for consideration on the application include the witnesses' statements and documentary exhibits in the prosecution brief. As will appear below, it is only necessary to have regard to some of those materials to determine the application.

The alleged facts of the charges in the indictment

It is first necessary to consider the facts alleged in respect of the counts in the indictment.
The parties agreed that, for the purposes of ascertaining the alleged facts of those offences, I could have regard to an Amended Statement of Material Facts, dated 19 May 2023, attached to the prosecution brief, and the complainant's statement, dated 17 November 2021, at pages 1 to 27 of the prosecution brief. The Amended Statement of Material Facts is based largely on the complainant's statement, with page and paragraph references indicating the sources of particular alleged facts.
Given the issues that have been raised in the application, it is necessary to outline the alleged facts in some detail, largely in terms of the Amended Statement of Material Facts, but also drawing on other aspects of the complainant's statement. The alleged facts are as follows.
The accused is a male who is approximately 193 cm tall. At the time of the alleged offending, he was 31 years of age and had a solid, muscular build. The complainant is a female who is approximately 166 cm tall. At the time of the alleged offending, she was 22 years of age and had a slim build.
As at the date of the alleged offending, the accused and the complainant had been in a relationship for approximately seven months. They were not living together, but the complainant had previously been to the accused's residential apartment in Burswood.
The complainant describes a volatile relationship in which she and the accused had a number of arguments, even to the point of the accused threatening to kill himself on one occasion and stating that the complainant should also die. According to the complainant, on occasions the accused exhibited bursts of anger, including punching doors. In the last two weeks or so before the alleged offending, the accused had become jealous and suspicious of the complainant's behaviour, and had interrogated her about where she had been, accusing her of lying when she responded.
The offending is alleged to have occurred sometime between 7.00 am and 8.30 am on Tuesday, 16 November 2021. The complainant had stayed at the accused's apartment the previous night, having spent the previous afternoon with him. On the morning of 16 November 2021, the accused left his residential apartment in Burswood, ostensibly to go to the gym. While he was away from the apartment, he and the complainant exchanged text messages on their mobile telephones. As a result of the messages, the accused returned to the apartment and confronted the complainant.
The complainant was in the accused's bedroom getting ready to go out. The accused asked the complainant where her mobile telephone was. He then saw the mobile telephone on the bed. He picked it up and demanded the complainant's PIN code to access the mobile telephone. The complainant asked for her mobile telephone back and said she would 'open' it using facial recognition.
The accused became angry, demanded the PIN code again and threatened to choke the complainant. This is the subject of count 1 on the indictment, being a count of making a threat to harm, in circumstances of aggravation. When the complainant asked for her mobile phone to be returned to her, the accused became angrier.
The accused grabbed the complainant by the throat with one hand, squeezing her neck violently, and said, 'I'm going to kill you.' The complainant was unable to draw air into her lungs and felt scared for her life. She struggled violently against the accused's grip around her neck by punching and kicking out at him, but was unable to break free. The accused maintained his grip around the complainant's neck for approximately 12 seconds before the complainant dropped to the floor and broke his grip from around her neck. Those alleged acts of the accused give rise to count 2, which is the first charge of aggravated strangulation, and count 3, which is the charge of making a threat to kill with intent to compel the complainant to do an act which she was entitled to abstain from doing, in circumstances of aggravation.
The complainant got to her feet and ran from the bedroom into the main living area. The accused pursued her, and, as she reached the lounge, he pushed her onto the lounge. He then stood over her and grabbed her around the throat with both hands. He squeezed the complainant's throat for approximately 20 seconds, pushing his body weight down on the complainant as he squeezed her throat, cutting off her ability to breath and making her gasp for air. That alleged act gives rise to count 4, which is the second count of aggravated strangulation.
The complainant grabbed the accused's wrists and attempted to fight him off. She began to feel faint and thought she was going to pass out. Her vision became blurry, and she could not see. Despite those impediments, she managed to roll off the lounge onto the floor and break free from the accused's grip. She then ran to the front door and managed to open it slightly. However, the accused pursued her to the door and, used his hip and shoulder to force the door to close. Those alleged acts of the accused are the subject of count 5, being the charge of aggravated deprivation of liberty.
The accused again grabbed the complainant by the throat with both hands, pinned her against the cupboard to the left of the front door and squeezed her throat for approximately five to six seconds, cutting off her ability to breathe. That is the subject of count 6, the third charge of aggravated strangulation.
The complainant managed to push herself off the cupboard and broke the accused's grip around her throat. She sprinted towards the balcony door and ran out onto the balcony. She looked for a way to escape from the accused. As she was looking over the balcony railing, the accused grabbed her by the back of her hair and pulled her backwards, which caused her to land on her buttocks. He then dragged the complainant by her hair along the ground and back into the apartment. These alleged acts of the accused are the subject of count 7, being the first count of aggravated assault occasioning bodily harm. The bodily harm is not specified in the context of the description of the alleged offence, but the Amended Statement of Material Facts, towards the end, lists a number of injuries to the complainant, some of which could be consistent with the alleged physical assault on the balcony.
As the accused was dragging the complainant by her hair, she was screaming for help and trying physically to resist being dragged back inside. The accused overcame her resistance and dragged her back into the apartment, where he sat on her, while she was on the ground on her back, and punched her repeatedly with both fists to her upper body and head. The complainant raised her arms to protect her face from the punches. The punches to her upper body are described as having been delivered with a great deal of force to her chest and rib area. The combined alleged acts of violence and the injuries associated with them, which appear to include a rib fracture, swelling to her head and minor bruising to her chest, right shoulder and stomach, are the subject of count 8, being the second count of aggravated assault occasioning bodily harm.
It is alleged that, after punching the complainant, the accused again grabbed her around the throat with both hands for approximately 20 seconds, cutting off the complainant's ability to breath and impeding her blood flow. He did so whilst straddling her and pushing down on her body with his body weight. The complainant was unable to breathe and gasped for air. The accused said, 'I'm gonna kill you, cunt.' The alleged acts give rise to count 9, being the fourth charge of aggravated strangulation, and count 10, being a charge of an aggravated threat to kill.
It is alleged that the accused released his grip on the complainant's neck, stood up and walked towards the kitchen, saying, 'I'm gonna stab you, cunt.' He selected a knife from the knife block, put it back and selected a larger knife. The complainant, who had gotten to her feet, ran to the front door. It is alleged the accused again prevented the complainant from leaving, by hitting the front door with his body, and standing with his back to the door, blocking the only exit available to the complainant. He said to her, 'Nice try.' He pushed the complainant back into the hallway. He was armed with the large knife, which he held above his head. The accused's actions in preventing the complainant from leaving are the subject of count 12, the second count of deprivation of liberty.
Despite the accused's actions, it appears the complainant was able to grab the door handle and pulled the door open. As she did so, she grabbed the edge of the door with her left hand to assist with opening it. The accused again used his body weight to 'hip and shoulder' the door to close it. The complainant's left hand was jammed between the door and the door frame. Her little finger was broken in multiple places and subsequently required a series of screws and plates to repair the injury. The accused's alleged acts and the associated injury to the complainant are the subject of count 13, being the third count of aggravated assault occasioning bodily harm.
The complainant was able to pull her hand free from the door. The accused was still holding the large kitchen knife in his left hand. He raised it in the air, moved towards the complainant and motioned in a stabbing like movement towards the complainant's chest. The complainant put her left hand up to grab the knife and prevent the accused from stabbing her. The knife pierced the palm of her left hand, causing a 5 cm laceration. It also lacerated her left thumb. These alleged facts are the subject of count 14, which is the second count of aggravated unlawful wounding.
The complainant screamed, 'Dan, you've cut my finger off', and let go of the knife as she moved away from the accused. She ran to the dining area, placing the dining room table between her and the accused. The accused, still brandishing the knife, stood on the opposite side of the dining room table, trapping the complainant between the dining room table and the corner of the room. The complainant pleaded with him not to hurt her and to think about his future. The accused stated, 'I don't give a fuck, I'm going to kill you.' He leant over the table, swinging, and slashing the knife towards the complainant. The complainant backed away into the corner of the room to avoid the knife. The accused climbed onto the dining room table on one knee and leant towards the complainant. She seized the opportunity and ran past him into the main bathroom, closing the door behind her. She put her back against the door and pressed both feet against the sink to prevent the accused from entering. The accused rammed the door several times and shouted, 'I'm going to kill you, I'm going to kill you.'
The threats to kill described in the preceding paragraph are the subject of count 15, being the final count of aggravated threat to kill.
The accused managed to force the door open and then removed the door from its hinges entirely. He grabbed the complainant, who was trapped in the corner of the room, and swept her legs from under her, causing her to drop to the floor with force. He then straddled the complainant, sitting on her hips, and said, 'I'm going to kill you and I'm going put you in a cargo box.' He placed two hands around the complainant's neck, pressed down with a great deal of force and squeezed hard. The complainant struggled for air. She could not breathe, and her blood flow was impeded. She grabbed at the accused's wrists to make him let go. Her vision began to blur, and she felt she was losing consciousness. She went limp. Those alleged facts are the basis for count 16, the attempted murder.
The accused let go of the complainant's throat and slapped her across the face, saying, 'I know you're faking.' The complainant lay motionless on the bathroom floor, too scared to move. The accused splashed water on her face, attempting to get a reaction from her. He said, 'If you don't open your eyes, I'm going to piss on your face.' When the complainant did not move, the accused urinated on her face. He then used the flexible shower hose to spray water onto the complainant's face. He waited for a reaction, which was not forthcoming. He did it again.
The accused then pulled the complainant's eye lids back and held her mobile telephone in front of her face in an attempt to activate the facial recognition and gain access to the mobile telephone. He was not able to gain access. He then started pushing down on the complainant's chest and breathing a couple of times into her mouth. He did this a couple of times before rolling the complainant into the recovery position. He then left the bathroom.
The complainant remained motionless on the bathroom floor and heard the sound of the vacuum cleaner going.
After a short time, the accused returned, rolled the complainant onto her back, and placed a cold metal object against her throat, saying, 'This isn't funny. If you don't open your eyes, I'm going to kill you.' He again left the bathroom, but returned a short time later. He made several attempts to pick the complainant up, but dropped her on the ground. Eventually, he managed to pick her up and carry her to the bedroom, where he placed her on the bed. He again slapped her across the face. He then left the bedroom, but returned a short time later and placed a band aid on the complainant's left hand. He then left the room and closed the door behind him.
Sometime soon after that, two police officers attended at the accused's address after receiving a call from a member of the public who said they had seen a female being dragged by her hair across a balcony. The accused answered the door. Upon being informed that the officers were there about a disturbance, he said he had had a fight with his girlfriend and that she had left the apartment. The officers asked the accused for his girlfriend's mobile telephone number, to do a welfare check. The accused provided the complainant's mobile number to them. When they called the number, they could hear a mobile telephone ringing inside the accused's pocket, which he attempted to silence. The officers observed what appeared to be dried blood on the accused's white shoes. They told the accused they were entering the premises to ascertain the welfare of his partner as they suspected a serious offence had been committed. The accused threatened to kill the officers if they touched him. They tried to reason with him and convince him to allow them into the residence without the need to force entry. After asking if the officers had a warrant, and being told they did not need one, the accused remained in the doorway, preventing entry. The officers used force to overcome his resistance and gain entry. It is sufficient to note that in the course of that interaction, the accused is alleged to have punched both officers to the head.
The accused's alleged acts against the police officers are the subject of counts 17 to 19, being the count of obstructing public officers who were performing a function of their office and two counts of assaulting a public officer who was performing a function of his office.
Once they had overcome his resistance, the police detained the accused.
In the meantime, the complainant, who had initially remained motionless on the bed, had heard the knock at the door and the subsequent scuffling sounds and male voices. She ran from the bedroom and saw the accused resisting the attempts of police officers to restrain him. She dropped to the floor in relief. After the officers had detained the accused, they provided first aid to the complainant, who was bleeding from her hand.
The complainant was subsequently taken to hospital by paramedics. Some of her injuries are described in the narrative above. It is not necessary to describe the other injuries for present purposes.
The accused was arrested. On 24 November 2021, detectives attended the prison where the accused was being held on remand. They did so for the purpose of interviewing him. He declined to be interviewed, after receiving legal advice.

I now turn to the propensity evidence the State seeks to adduce.

The first matter that the State contends is propensity evidence is the offence committed by the accused in Queensland on 9 August 2016.
The accused pleaded guilty to the Queensland offence and was sentenced in the District Court of Queensland on 13 December 2017. In sentencing the accused, the learned sentencing judge said that the circumstances of the offence were set out in the 'Crown's statement of facts' which was an exhibit before the court (KAG-1, 3.11.2023). His Honour then outlined the facts in summary. It is not clear whether the 'Crown's statement of facts' referred to by his Honour was the same as the 'Facts of the charge' in the Queensland Police Service Court Brief, which is attached as KAG-2 to Ms Gregory's affidavit of 23 October 2023. It is apparent, as will appear below, that the sentencing judge's outline of the facts contained some details that are not in KAG-2, most notably, that the victim stopped breathing when the accused choked her the first time. It is safe to assume that additional information was before his Honour that is not in KAG-2. During the course of the hearing in this application, counsel for the accused submitted that I should have regard to the contents of KAG-2 as well as the sentencing judge's outline of the facts in comparing the circumstances of the Queensland offence with the circumstances of the offences alleged in the present case. It appears that if the evidence in respect of the Queensland offence is ruled to be admissible, the parties will endeavour to arrive at an agreed statement of facts to be presented to the jury by the State that will combine the contents of the 'Facts of the charge' in the Queensland Police Service Court Brief with the outline of the facts stated by the sentencing judge. I will proceed on the basis that the evidence on which the State intends to rely would reflect the following facts in respect of the Queensland offence.
In accordance with the 'Facts of the charge' in the Queensland Police Service Court Brief (KAG-2, 23.10.2023):

(1) The victim of the Queensland offence and the accused (referred to as 'the defendant') had been in a relationship for approximately two years, had been living together for approximately 18 months, and had an 8-month-old child together. At the time of the offence, they lived together at an address in Upper Coomera.

(2) The facts of the offence were as follows:[4]

On Saturday the 6th of August 2016, the victim and defendant [had] a verbal argument[.] [N]either person spoke to each other until Tuesday the 9th of August when the defendant arrived home from work at approximately 6pm. The defendant attempted to leave the house to go to the gym, before speaking with the victim[.] [H]owever[,] as the defendant approached the front door[,] the victim pushed the defendant in the back. The defendant stated he wanted to leave and [that] the relationship was over. The victim commenced punching the defendant in the chest and arms. The defendant pushed the victim to the right into the wall with force[,] which ... caused the victim's right shoulder to go into the wall causing a large hole. The defendant ... used his right hand [to grab] the victim by the throat and squeezed for approximately 5 seconds.

The victim [states] she did not know how she got into the lounge room after that[,] however[,] [she] recalls the defendant using his left hand and grabbing the victim again around the throat and squeez[ing] to the point that the victim could not breathe. The defendant said words to the effect of, "[Y]ou hit me[,] and I will hit you back[.]" The victim punched the defendant in the stomach in an attempt to break his grip[,] however[,] the defendant ... punched the victim with his right hand to the left side of her jaw.

The victim ... then picked up their 8 month old child and walked into the bedroom to start packing things for herself and the child to leave.

The victim attempted to leave the bedroom whilst holding the child on her hip[.] [T]he defendant refused to get out of the way[,] so the victim punched the defendant in the arm and pushed the defendant in the stomach to try and get him out of the way. The defendant again grabbed the victim by the throat and squeezed while she was holding the child. The victim ... then retaliated and grabbed the defendant by the throat and squeezed. Both [the] defendant and the victim ... let go of each other. The defendant requested to hold the child[,] which the victim agreed[,] so she could continue to pack things up. The defendant ... walked outside with the child and contacted his mother via phone. After a short while[,] the defendant handed the child back to the victim[,] [who] drove to her parents' house for refuge.

(3) On 18 August 2016, the victim attended the Coomera Police Station and informed police of what had happened. She provided photos of her injuries, which, by that stage, had visibly healed. The police applied for a domestic violence order and attended the accused's address that evening. Later, at the police station, he took part in an interview in which he 'mostly agreed with the version of events supplied by the victim', but said that the victim had punched him to his jaw and face, as well as to his arms and chest. He told police that he had pushed the victim into the wall and held her there by the throat to stop her from hitting him in the face, but that he did not squeeze. He said he only grabbed the victim by the throat on one other occasion, while she was in the bedroom. He admitted squeezing her throat on that occasion. He said that, on that occasion, he only punched the victim after she had punched him again in the jaw. He said he knew he should not have done it, but claimed that he did it to stop the victim from hitting him. He claimed that he did not report the matter to police as there is a stigma attaching to men reporting domestic violence.

(4) The victim weighed approximately 65 kilograms, whereas the accused weighed approximately 104 kilograms, attended the gym regularly and had previous boxing training.

The facts are also reflected in the outline stated by the learned sentencing judge when sentencing the accused on 13 December 2017, as follows (KAG-1, 3.11.2023):

In essence ... you had been in a relationship with the complainant for some time, and the two of you had a son together.

During a period when the relationship seems to have been breaking down, you approached the complainant in relation to that issue and sought to discuss it with her. This angered her, and she approached you, swore at you, pushed you into the closed front door of the residence and punched you multiple times in the arms, chest and face. Of course, she was a much smaller person, physically, then you at the time. You retaliated in actions that controlled her actions and are not said to amount to criminal activity. However, during that and the ensuing interactions between you over the next little while, you committed the offence, and the offence, I should say, is a rolled-up charge of choking, which purely seems to embrace three different incidents.

The first one was you squeezing her neck with your right hand for around 5 seconds until she stopped breathing, and you remove your hand from her throat. There was a further interaction elsewhere in the house where you grabbed her again around the throat and threatened her. She took your baby Anne went to the bedroom, apparently with the intention of packing to leave, but you then locked the bedroom door, saying that you wanted to hug the baby, at a time when she still had the baby on her hip. An interaction or an argument continued at the bedroom door for what is said to have been some little time. You grabbed her throat again and squeezed it. She grabbed your throat as well, and you released your grip.

The second matter that the State contends is propensity evidence is the offence committed by the accused in New South Wales on 15 September 2018.
In accordance with attachment KAG-4 of Ms Gregory's affidavit of 23 October 2023, the facts in relation to the New South Wales offence are as follows:[5]

[Both the victim and the accused were 28 years old at the time of the offence.]

The victim and [the] accused [had] been in a domestic relationship for approximately 6 months [but] [did] not reside together. There [were] no children [from] the relationship.

On Saturday the 15th September 2018, the victim and accused attended the Rydges Motel, located in Wharf Road[,] Newcastle. During the course of the evening[,] the victim and accused attended several licensed premises within the Newcastle area and consumed approximately 8 - 10 drinks over several hours.

About 10 prn, the victim and the accused became engaged in a verbal argument over the consensual agreement (sic) of the victim having ... terminated [her] pregnancy one week prior. The victim and the accused returned to their room, 331[,] at the Rydges Motel.

The accused continued to abuse the victim for having ... terminated [the] pregnancy, calling her a "cunt", and stated[,] "[You] killed my baby." The accused told the victim of his intentions [to kill] himself[,] and proceeded to attempt to smash a bottle on a table. The accused could not break the bottle and smashed a wine glass on a table. The accused went into the bathroom and began slashing his forearm with broken glass. The victim ... told the accused to stop harming himself, which he refused to do.

The victim left the bathroom and returned to the bedroom. The accused exited the bathroom, bleeding from his forearm. The victim was sitting on the bed when [the] accused stood over the top of the victim and spat once on her face[.] [He then] went back into the bathroom. Several seconds later[,] the accused returned to the bedroom and pushed the victim backwards onto the bed. The accused pushed the victim backwards causing her to be [lying] down. The accused straddled the victim and sat on her with his body weight. The accused smeared the blood from his forearm on the face of the victim. The victim told the accused to get [off] her ... her[,] ... which he refused to do. The accused placed both his hands around the neck of the victim and began putting pressure on [her] airway ... The victim [lay] still for several seconds[,] as she was in shock at the actions of the accused.

The accused continued to place more pressure on the victim's neck, by squeezing with both hands. While on top of the victim, the accused ... said to the victim, "[You're] gonna die with me cunt." The victim, fearing she was going to lose consciousness, thrashed her arms, hitting the accused in an attempt to get the accused off her. This lasted for several seconds. The accused removed himself [from] the victim and proceeded to make phone calls to the front counter of the motel, requesting Police and Ambulance. The victim felt immediate pain to the left side of her neck, was struggling to breath and began crying. The accused told the victim ... he would either go to gaol or die.

About 10 minutes later police arrived and entered the room. The accused was [lying] on the bed with lacerations to his arm. The victim's clothing was covered in blood. The accused immediately stated to police ... that he needed to be arrested as he just tried to strangle the victim. The accused was placed in handcuffs and escorted from the motel. The accused was assessed by ambulance officers and minor first aid was tendered to the lacerations on his arm.

The accused was conveyed to Newcastle Police Station ...

The accused declined to be interviewed by the police.

The final matter that the State contends is propensity evidence is uncharged conduct of the accused alleged to have occurred on 22 December 2020 at his home in Burswood. The alleged victim, JGS, was in a relationship with the accused at the time.
In her statement, dated 24 December 2021, JGS gives the following:[6]

(1) She is 24 years of age.

(2) She met the accused around June 2020 through her circle of friends. They started dating in July 2020. The accused tuned 30 years of age in that month. She describes the accused as initially being 'lovely and sweet' and a 'good boyfriend'.

(3) There was a concerning incident early in the relationship when, while they were at a café for breakfast, the accused slammed a glass on the table and appeared to be extremely angry for no apparent reason. JGS dismissed the incident as stress related.

(4) The relationship was very good between July and October 2020, although 'things were too hard at times': [11] - [13]. They were living apart, in respective share homes.

(5) JGS had shared custody of a dog with her previous boyfriend, which required her to have contact with him. The accused would not allow her to have contact with her ex-partner, so she had to stop seeing the dog. The accused told her that he had trust issues because he had been cheated on before.

(6) JGS was upset by the circumstances and felt as though the accused was controlling her. Notwithstanding what he had said, she went to see her dog at her ex-partner's place. The following day, the accused attended her home and said he had driven past her ex-partner's home to see if she was there, and that he wanted to ram through the house because he was so angry. JGS decided they needed some time apart. The accused agreed.

(7) Subsequently the accused made romantic gestures towards JGS, and the relationship resumed.

(8) In October 2020, at JGS's suggestion, the accused moved into his own unit in a multistorey apartment building in Burswood. JGS moved in with him.

(9) There was an occasion when JGS confronted the accused about messages on his phone which were an exchange between the accused and another woman, and which contained sexually explicit images. During the confrontation, the accused, who was holding nails which he was using to assemble some furniture, threw the nails at JGS's legs in anger. Although it did not hurt JGS, the conduct scared her. The accused subsequently apologised, and the relationship returned to its normal pleasant state.

(10) In October 2020, the accused told JGS he was seeing a therapist, working through controlling his issues and anger. JGS became aware the accused had 'some controlling issues', as he would 'regularly go through [her] phone': [66]. JGS told the accused there was nothing to see. She was upset by his behaviour because it seemed that he did not trust her and that nothing she said would change his mind.

(11) On 22 December 2020, the accused was driving JGS home from a dentist appointment. She was reading the after-care sheets out loud. She mentioned to the accused that she could not drink red wine or anything that could stain her teeth. Without warning, the accused 'snapped' and verbally abused her: [71]. He swore at JGS in an aggressive tone and was condescending towards her.

(12) When they arrived at their apartment, JGS went straight to the bedroom, sat on the bed, and asked the accused to leave her alone, as she needed time to digest what had just happened.

(13) The accused came into the room. By his facial expressions, he appeared still to be in a rage. He walked to the sliding doors that opened onto the balcony and 'ripped the blinds off the wall': [77]. JGS said, 'What the hell are you doing?' She stood in the middle of the room.

(14) The accused grabbed her by the throat, really hard, and forced her backwards into the wall, which was three to four metres from where she had been standing. He forced her into the wall so hard that JGS thought the wall, which was made of plasterboard, was going to break.

(15) The pressure the accused applied to her throat was so hard it was cutting off her ability to breathe. She was grabbing at him with both hands, and slapping his arms to make him let go. She could not get any words out, making only sounds. She was 'really scared': [84].

(16) It seemed the accused had JGS by throat for a long time, although she says it was probably about a minute. She could not breathe. The accused had her pinned against the wall. He said, 'I'm going to kill you now.' However, he then 'took a couple of backward steps and let [her] go': [89]. He 'started crying and feeling sorry for himself': [89].

(17) JGS tried to leave by the front door, but the accused took her phone and keys from her. She was on the floor, begging him to return them to her. The accused said things like 'No, you're not going anywhere' and 'You're staying right here, I will not let you leave': [94].

(18) The accused then went to the kitchen and came back with a large kitchen knife, which he was holding near his chest. He said he was going to hurt and cut himself and jump off the balcony. JGS took the knife from him and put it on the table.

(19) The accused's demeanour had changed. He was 'sobbing and self-demeaning': [100].

(20) The accused got another knife from the kitchen and eventually went into the bathroom and locked the door behind him. JGS called '000', as she believed the accused was cutting himself. Ambulance officers arrived with police officers. JGS told the police and ambulance officers that the accused had strangled her.

(21) The accused left with the police and ambulance officers and was taken to hospital.

(22) Although JGS went to the hospital and stayed with the accused for a while, she left the relationship in the days that followed.

JGS goes on to describe the accused as behaving in an aggressive and 'unhinged' way when she went to retrieve her belongings from the apartment, but that is not conduct that is relied on as part of the propensity evidence. For completeness, I note that she also says the accused was subsequently apologetic and told her she deserved better.

In respect of each of the items of evidence the State wishes to adduce, in order for the evidence to be admissible under s 31A of the Evidence Act, it must satisfy three requirements:

(1) It must be propensity evidence or relationship evidence;

(2) It must have significant probative value, either by itself or having regard to other evidence adduced or to be adduced; and

(3) The probative value of the evidence compared to the degree of risk of an unfair trial, must be such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

With respect to the first requirement, the term 'propensity evidence' as defined in s 31A(1) has a broad meaning. The term is defined to include, among other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct' in this context, so far as is presently relevant, refers to the manner in which the accused person behaves or has behaved.[7] The words 'a tendency' in this context, so far as is relevant to the present case, refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.[8] The tendency may be to have a particular state of mind or to act in a particular way.[9]
The term 'relationship evidence' is defined in s 31A(1) to mean 'evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time'. There is a degree of overlap between the definitions of 'propensity evidence' and 'relationship evidence' in s 31A(1). As was noted in RMD v The State of Western Australia[10] (RMD), there will often be cases where evidence which falls within the definition of 'propensity evidence' will also fit the description of 'relationship evidence'.[11] In my view, this is such a case, in that the State relies on the accused's conduct towards his intimate partners at times when he becomes enraged towards them or is otherwise in a heightened emotional state. At the hearing, the accused did not dispute that the evidence on which the State intends to rely is propensity evidence, so it is not necessary to canvass further the authorities in respect of the meaning of that term. However, the accused did take issue with the State's characterization of the propensity evidence and whether the evidence has significant probative value.
In RMD, the principles relevant to whether propensity evidence has significant probative value were summarised by Beech JA (Mazza JA agreeing) as follows, citing DKA v The State of Western Australia[12] (DKA), which had referred to a number of appellate decisions to discern the principles:[13]

(1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.

(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.

(3) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.

(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.

(6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

(7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.

(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)

The summary was subsequently adopted by the Court of Appeal in The State of Western Australia v JHN[14] (JHN). The court in JHN also adopted the following observations from Jackson in relation to the assessment of whether propensity evidence has significant probative value:[15]

Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:

(a) the evidence is capable of proving the propensity; and

(b) proof of the propensity increases the likelihood of the commission of the offences.

Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.

Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)

In explaining why, in that case, the evidence on counts 3 and 4 had significant probative value in proving counts 1 and 2, the court in Jackson also identified the following relevant principles:[16]

(a) An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.

(b) Whether propensity evidence has significant probative value will depend upon the nature of the fact in issue to which it is said to be relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

(c) If propensity evidence is said to be relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be conducted separately in relation to each fact in issue to which the propensity evidence is said to be relevant.

(d) The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to assess the different value of propensity evidence in relation to different facts in issue when deciding whether, having regard to the nature and significance of those facts, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, in the proceedings for the relevant offence.

For the purpose of determining the admissibility of propensity evidence and relationship evidence, a court must take the evidence at its highest from the perspective of the prosecution.[17] Thus the probative value of propensity evidence and relationship evidence is to be assessed by reference to what the evidence is capable of proving, taken at its highest.
In JHN the court also noted that the probative value of propensity evidence, in terms of its capacity to increase the probability that the accused committed the charged acts, may be found in its capacity to support the credibility of a State witness's account of the charged acts.[18] The court also noted that the assessment of whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context, namely, the fact or facts in issue at the trial and the other evidence (including any other propensity evidence) adduced or to be adduced at the trial.[19]
In the context of sexual offences, the courts have held that, generally, the fact that propensity evidence is capable of proving that an accused has a relevant sexual interest (for instance, towards a child) will not of itself be sufficient to warrant the conclusion that the propensity evidence is significantly probative of whether they acted in the way alleged. Generally, it is the tendency to act on a sexual interest that has significant probative value in showing that an accused has acted in a certain way on the occasion the subject of the charge.[20] That approach to the assessment of whether propensity evidence has significant probative value may be extrapolated to the attitudes of an accused person towards other matters, such as the use of particular forms of violence. It would be the accused's tendency to act on his attitude to the use of such a form of violence that would have significant probative value in showing that an accused has acted in that way on the occasion the subject of the charge.
Even where the propensity demonstrates a tendency to act in a particular way, the determination of whether it has significant probative value may depend on the particularity with which the propensity is formulated. In MNA v The State of Western Aistralia[21] (MNA), Buss P and Mitchell JA dealt with the relationship between the level of particularity of the propensity evidence and whether the evidence has significant probative value as follows:[22]

In Hughes, the majority indicated that whether a tendency to act on the interest has significant probative value depends on the particularity of the tendency and a consideration of the circumstances of the case. Later, the majority observed:

A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. (footnotes omitted)

As to the requirement in s 31A(2)(b) that, for propensity evidence to be admissible, its probative value, compared to the degree of risk of an unfair trial, must be such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, the question of what risk there is of an unfair trial requires consideration of the potential improper prejudice the evidence might create.
As the Court of Appeal noted in JHN,[23] referring to the reasons of Steytler P in Dair v The State of Western Australia[24] (Dair), the possible sources of prejudice that might be occasioned by the admission of propensity evidence at a criminal trial, and which consequently may give rise to the risk of an unfair trial, include that:

(a) the jury might believe that the accused is guilty merely because he was a person likely to do the charged acts;

(b) the jury might tend to condemn the accused, not because he or she is guilty of the charged offence, but because the accused has escaped punishment for other offences; and

(c) the jury might become confused or distracted from deciding whether the accused is guilty of the charged offence because of the jury's concentration upon resolving whether the accused committed the acts the subject of the propensity evidence.

In Dair,[25] Miller JA referred to the following view expressed by Roberts-Smith JA (with whom Wheeler and Miller JJA agreed on this point) in Donaldson:[26]

The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning

In Donaldson, Roberts-Smith JA noted that the term 'propensity reasoning' was apt to describe the impermissible form of reasoning, of the kind referred to in the preceding paragraph, 'to distinguish it from the process whereby, whether because coincidence or fortuitousness could not otherwise explain it, the subject evidence tends directly to prove the accused's guilt of the offences charged.'[27] The reference to propensity evidence tending to directly prove the accused's guilt is most apt when the issue at trial is whether the accused was the person who committed the alleged offence (that is, an identity issue). However, in my opinion, the observation in respect of the inability of coincidence or fortuitousness to otherwise explain a similarity between propensity evidence and evidence which tends to prove the guilt of the accused applies equally in a case such as the present. In such a case, a trier of fact may well consider that the probability that the complainant is honest and accurate in her account, that the accused committed offences against her involving a particular form of violence, is significantly enhanced if the accused has demonstrated a propensity to commit that form of violence, and the similarity between the allegations under consideration and the propensity evidence cannot be explained by coincidence or fortuitousness. That is a permissible form of reasoning.
In Dair, Miller JA noted that, in the passages referred to above from the reasons of Roberts-Smith JA in Donaldson, his Honour did not refer to the words 'such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial'.[28] Miller JA noted that the 'fair-minded' people proviso was an important aspect of s 31A(2)(b). In his Honour's opinion, the phrase required the 'old test of prejudice' to be expanded, and that what is required is 'a consideration of what fair-minded people would think about the public interest in having all relevant evidence of guilt before the jury'.[29] In summary, as his Honour observed:[30]

There may be circumstances where there is undoubtedly a risk of an unfair trial, but if there is a public interest in having all relevant evidence of guilt admitted, it must take priority over that risk.

For the purposes of s 31A(2)(b), fair‑minded people are reasonable members of the general community who are not lawyers but who, it must be assumed, have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.[31]
When assessing the risk of an unfair trial, for the purposes of the hypothetical comparison provided for by s 31A(2)(b), the court must take into account any directions that might be given in an attempt to overcome the prejudice, and their likely effect on the trier of fact.[32]

Is the evidence sought to be adduced propensity evidence and/or relationship evidence?

The first question to be considered in determining the applications is whether the evidence in each case of the prior offences on 9 August 2016 and 15 September 2018, and the uncharged acts concerning JGS on 22 December 2020, is 'propensity evidence' or 'relationship evidence' within the meaning of s 31A(1). At the hearing of the application, it was conceded on behalf of the accused that the evidence sought to be adduced by the State in respect of the three prior incidents is propensity evidence for the purposes of s 31A. That concession was properly made. The proposed evidence is evidence of the conduct of the accused or a tendency that he had in relation to his intimate partners. Arguably, it could also be regarded as relationship evidence for the purposes of s 31A, in that it is evidence of the accused's conduct towards a class of persons, namely his intimate partners, over a period of time. However, it is sufficient to proceed on the basis that the evidence is propensity evidence, and henceforth I will refer to it in that way.
In its written submissions, the state formulated the propensity as 'a tendency or propensity to manually impede the normal breathing and blood circulation of women with whom he is in an intimate relationship by manually applying pressure on or to their necks when he is angry'.[33] In my view, that formulation was at the same time too broad and unnecessarily confined to one form of emotional state as the catalyst for the past conduct which would make it relevant as propensity evidence. It was too broad because there was more to each of the incidents than the accused becoming angry. The circumstances giving rise to the anger are a necessary aspect of each incident in determining the nature of the accused's tendency or propensity to resort to strangling or choking of women with whom he is in an intimate relationship. The original formulation was unnecessarily confined, because the accused's emotional state during the past incidents might properly be regarded as a heightened emotional state not confined to anger. For instance, in relation to the incident of 15 September 2018 in New South Wales, the accused's emotional state might be regarded as a combination of anger and despair, in which he threatened self-harm and inflicted injuries upon himself, as well as strangling the victim in that case. The catalyst for his actions was a strong negative emotional reaction towards his partner because of a grievance arising from the fact she had terminated her pregnancy.
Ms Fisher, for the accused, fairly and properly acknowledged that the State's initial formulation of the alleged propensity was unnecessarily confined. As I will discuss below, the accused's argument was focussed on the dissimilarities between the past incidents and the charged conduct, which the accused submitted deprived the propensity evidence of significant probative value in respect of the offences in the indictment.
Although the formulation of the propensity evidence must be in language that adequately identifies the correlation between the past conduct and the charged conduct with sufficient particularity, the need for particularity should not be regarded as a pedantic exercise in arriving at a single correct textual formulation. Nevertheless, it is necessary to identify the key features of the conduct relied upon as propensity evidence.
In this case, the alleged propensity might more fully be described as a propensity of the accused to choke or strangle an intimate partner when he is in a heightened emotional state because he feels aggrieved by something she has done, or that he believes she has done. At the hearing, that was essentially the formulation adopted by the State.

Does the propensity evidence have significant probative value?

The next question is whether the evidence in respect of each of the prior offences and the uncharged acts has significant probative value, either by itself or having regard to other evidence to be adduced.

The State submitted that each of the items of propensity evidence has significant probative value in establishing whether or not the accused committed the four offences of aggravated strangulation and the attempted murder offence, which also involved manual strangulation, as alleged by the complainant. In other words, the evidence is sought to be adduced for the first purpose identified in Jackson and JHN referred to at [64] above.
The State submitted the propensity evidence supports a finding that the accused has previously demonstrated a propensity to use choking or strangulation as a form of violence against an intimate partner in circumstances in which he was angry or in a heightened emotional state during an argument with that partner because he felt aggrieved as a result of some conduct or perceived conduct of that partner. The State submitted that the probative value of such a finding is significant because it is capable of rationally affecting, in a manner that is important or of consequence, the determination of whether the accused acted in that way in circumstances in this case that are sufficiently similar, and in some respects strikingly similar to the previous incidents. As in the incidents the subject of the propensity evidence, the applicant was in an intimate relationship with the complainant in this case, and had been for a period of time, he felt aggrieved by something he believed the complainant had done, he was angry and engaged in an argument with the complainant, and he was in a heightened state of emotion when he assaulted her. In essence, the State's submission is that the fact the accused had resorted to manual strangulation or choking of his intimate partner to impede breathing or circulation of the blood in the past in such circumstances rationally affects the likelihood that he did so on this occasion.
The State acknowledged that there were differences between the incidents the subject of the propensity evidence, and between those incidents and the present case, in respect of the accused's motivation, or the catalyst for his emotional state. The accused's anger in the present case stemmed from his belief that the complainant had been unfaithful and the fact she would not give him her phone; the primary emotional driver therefore appears to have been jealousy. The most similar incident to the present case in that regard was the alleged incident of 22 December 2020. However, the State submitted that, for the propensity evidence in this case to have significant probative value, it is not necessary that the motivation or catalyst for the violent behaviour be the same. The authorities do not require that degree of specificity. The State submitted that the similarities between the propensity evidence incidents and the present case were more significant than the differences.

Ms Fisher, for the accused, submitted that, although the proposed evidence is propensity evidence, it does not have significant probative value. She accepted that all of the incidents concerned persons with whom the accused was in an intimate relationship, and that they all involved heightened emotions and acts of choking or strangulation by the accused. However, she submitted that, beyond that, the incidents were largely dissimilar.
In relation to the Queensland incident in 2016, Ms Fisher noted that the accused was set upon by his intimate partner (the victim of the offences of which he was convicted) as he was trying to leave their home; in other words, she initiated the violence. Although the accused's initial reaction to the victim's assault on him was not the subject of the offences for which he was sentenced, Ms Fisher submitted that the context needed to be taken into account as a factor that differentiated that incident from the present case. In discussion with Ms Fisher, I pointed out that such context may be relevant to the accused's first act of impeding breathing or strangulation in that incident, whether the context be regarded as the accused responding to a provocation or utilising excessive self-defence, but the subsequent acts of strangulation occurred after the accused had followed the victim to the bedroom, and any violent acts by her towards the accused from that point in time were in the context of the victim defending herself against the accused's violence. However, Ms Fisher submitted that the surrounding circumstances were nevertheless relevant to a consideration of whether the propensity evidence has significant probative value. She noted that the accused and the victim in the Queensland incident had not been speaking to each other for three days, that it was the accused who wanted to leave the relationship as he believed it was over, and the victim started punching him after he told her those things. Ms Fisher submitted that, even after the accused followed the victim to the bedroom, the choking of the victim by the accused, by grabbing her throat, was said to have occurred in circumstances in which the accused said to the victim that, if she hit him, he would hit her back.[34] Ms Fisher maintained that those were very different circumstances to those of the present case, such that the accused's use of choking in that case could not rationally affect in a significant way the issue of whether he choked the complainant in the circumstances of the alleged offences on the indictment.
In relation to the New South Wales incident in 2018, Ms Fisher conceded that, as the accused stands convicted of that offending in his absence, it can be relied upon as propensity evidence, irrespective of the accused's instructions that he had attended court and had been turned away, and that he was not aware a warrant had issued. However, it was submitted again that the circumstances of that incident were so different from the circumstances of the present case that the evidence of the accused's use of strangulation in that incident could not provide the jury 'real assistance in their consideration of the indictment'.[35] Apart from the fact that the catalyst for the New South Wales incident was the fact that the victim had terminated a pregnancy, Ms Fisher noted that the accused was 'in the process of self-harming when [that incident] took place', which was said to be a significant feature of that incident that is absent from the circumstances of the present case.[36]
Finally, Ms Fisher submitted that the circumstances of the alleged incident of December 2020 involving JGS were also significantly different from those of the present case, such as to deprive the propensity evidence of significant probative value. Ms Fisher noted that, although JGS speaks in her statement about the accused 'regularly going through [her] phone', that was not part of the circumstances in which he is alleged to have attacked her, grabbing her by the throat and impeding her ability to breathe. Ms Fisher noted that the circumstances of that alleged incident included the accused threatening to harm himself with a knife and to jump off a balcony, which prompted JGS to remove the knife from him. Ms Fisher submitted that, in that regard, the circumstances of the December 2020 incident might be thought to have similarities to the incident in New South Wales, where the accused also engaged in self-harming behaviour, but it was dissimilar to the incident the subject of the present indictment.

Conclusions in relation to significant probative value

The need for particularity or specificity in formulating the propensity evidence for the purposes of s 31A does not mean that the circumstances of the alleged offending must correlate in all respects (even all significant respects) with the circumstances of the prior conduct that is said to establish a propensity of the accused to behave in a certain way. There may be aspects of the accused's prior conduct, which affected the seriousness of that conduct, that are absent in the alleged offences to be tried, and vice versa. On my understanding of the authorities to which I have referred above in respect of this issue, the question is whether there is sufficient correlation in relation to a specific form of behaviour as to reveal a tendency or propensity that has significant probative value, in that it increases the probability that the accused did a particular alleged act that constitutes the offence charged, where that is the issue, as in this case.
As I have already indicated, the alleged propensity in this case may be described as a propensity of the accused to choke or strangle an intimate partner when he is in a heightened emotional state, including but not limited to anger or rage, because he feels aggrieved by something she has done, or that he believes she has done.
The propensity evidence is not to be viewed in isolation. It is necessary to consider the other propensity evidence and the evidence to be adduced in respect of the present case.
In my opinion, in considering the probative value of each incident that is the subject of propensity evidence, the fact that the accused has acted in a similar way in a variety of circumstances in which he has been in a heightened emotional state because of conflict with an intimate partner, strengthens the argument that, characterised in the way I have outlined, the propensity evidence has significant probative value. That is, it has the capacity to rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue in the trial in the present case, namely whether the accused grabbed the complainant by the throat and impeded her breathing and circulation as she has alleged in respect of the aggravated strangulation offences and the attempted murder offence. It would be open to the jury to conclude from the propensity evidence[37] that the forceful grabbing of his partner by the throat, in a manner that is likely to impede her breathing or blood circulation, is a form of violence to which the accused is likely to resort when he is in a heightened negative emotional state (whether anger, frustration or distress) because he feels aggrieved by his partner, irrespective of the cause of that emotional state or the nature of the grievance.
In my opinion, consistent with the authorities referred to above, what is important is the extent to which there are similarities between the incidents that inform the probability of the accused acting in a particular way, rather than whether there are dissimilarities between the incidents in respect of the broader circumstances. That is particularly so when the issue is whether the accused has acted in a particular way, rather than whether it was the accused who committed particular offences (that is, where the issue is identity).

In my opinion, the differences between the circumstances of the incident in Queensland in 2016 and the circumstances of the alleged offences of aggravated strangulation and attempted murder in this case are not such as to detract from the probative value of the propensity evidence, having regard to the similarities in the circumstances. Those similarities include the following:

(1) The victim in each case was female.

(2) The victim was an intimate partner, not a stranger.

(3) In each instance the accused felt aggrieved by the conduct or perceived conduct of the victim. While the nature of the grievance was different in each case, it was related to an issue in the relationship between the accused and the victim.

(4) The situation between the accused and the victim became highly charged in each case.

(5) The accused became very angry and reacted with violence towards the victim in each case.

(6) The accused resorted to the use of choking or strangulation within a very short time of the physical altercation commencing in the Queensland case, and within a very short time of confronting the complainant about her phone and assaulting her in the present case.

(7) The accused's assault upon the victim was persistent in each case, even though the extent and duration of the overall violence was different.

(8) The accused was significantly bigger than the victim in each case.

Although the victim in the 2016 incident initiated the physical altercation, the accused's reaction in grabbing her by the throat was telling. As the sentencing judge noted,[38] the victim was a significantly smaller person physically than the accused. Further, the accused attended the gym regularly and had trained as a boxer.[39] It would be expected that he had the capacity to defend himself and restrain the victim by physical means other than grabbing her by the throat and squeezing until she could not breathe.[40]
Aspects of the 2016 incident that are not present in the circumstances of the alleged offending in the present case include the fact that two of the acts of choking in 2016 (the first and last) appear to have been brief, and the accused desisted with the choking when the victim grabbed him by the throat in retaliation. Further, the incident in 2016 was ultimately defused by both the accused and the victim in a cooperative manner. In addition, the accused cooperated with the police when they attended the home. However, in my view, while those circumstances may be relevant when comparing the respondent's overall degree of moral culpability in respect of the 2016 offending and his alleged offending in the present case, or when identifying mitigating factors, they do not reduce the telling nature of the similarities between the incidents outlined above. In other words, they do not reduce the significance of the propensity evidence to establishing that the accused has a tendency to resort to choking or strangulation as a form of violence against an intimate partner when in a heightened negative emotional state in a highly-charged situation in which he feels aggrieved by his partner's conduct or perceived conduct.

As with the 2016 incident, in my opinion, the differences between the circumstances of the incident in New South Wales in 2018 and the circumstances of the alleged offences of aggravated strangulation and attempted murder in this case are not such as to detract from the probative value of the propensity evidence, having regard to the similarities in the circumstances. Those similarities include most of the similarities between the 2016 incident and the offending alleged in the present case, referred to at [95] above. Arguably, the similarity of persistence of violence is not present in respect of the 2018 incident, as, apart from the act of spitting on the victim's face, the physical assault on the victim appears to have been confined to one instance. Further, there is nothing in the facts outlined in that case to indicate the relative sizes of the accused and the victim. However, a significant similarity between the 2018 incident and the alleged offending in the present case is that the accused straddled the victim on each occasion while choking her, persisted with applying pressure to her neck to the point that the victim in each case thought she was going to lose consciousness, and threatened to kill the victim, although in the 2018 incident, it was in the context of telling the victim that she was going to die with him.
The differences between the 2018 incident and the alleged offending in the present case include those to which Ms Fisher referred, being that the incident happened in the context of the accused indicating that he was going to kill himself, and in fact inflicting injuries to himself, because he was upset about the victim having terminated her pregnancy. Another difference is that, when the victim in the 2018 incident thrashed her arms about and hit the accused for several seconds to make him stop, he did eventually remove himself from her. Further, it was the accused who requested that police and an ambulance attend immediately after attacking the victim in the 2018 incident, and he admitted to police, when they arrived, that he had tried to strangle the victim.
In my opinion, the difference in the motivation or catalyst for the accused's actions is a matter of detail that does not prevent the propensity evidence from having significant probative value in establishing that the accused has a tendency to resort to choking or strangulation as a form of violence against an intimate partner when in a heightened negative emotional state in a highly-charged situation in which he feels aggrieved by his partner's conduct or perceived conduct. The point is that, while the accused may have been distressed and suicidal in the 2018 incident, he was also angry with the victim, and his conduct manifested an intention to punish the victim, indeed to end her life, and the means he immediately adopted was strangulation. As with the 2016 incident, the other differences to which I have referred may be relevant when comparing the respondent's overall degree of moral culpability in respect of the 2018 offending and his alleged offending in the present case, or when identifying mitigating factors, but they do not reduce the telling nature of the similarities between the incidents outlined above.

Ms Fisher acknowledged that the 2020 alleged incident involving JGS bore the closest similarity to the circumstances of the alleged offending in the present case. The similarities include those I outlined above in respect of the 2016 incident,[41] except that there is no evidence at this stage to indicate the relative sizes of the accused and JGS and, while the strangulation by the accused of JGS is alleged to have been relatively prolonged, the violence alleged to have been inflicted by the accused against her was confined to the one act of strangulation. Other similarities between the circumstances involving JGS and the circumstances of the alleged offending in the present case are that, in each instance:

(1) the accused, for the most part, had previously been caring and romantic towards the alleged victim;

(2) the catalyst for the confrontation that escalated to violence appears to have been jealousy. In relation to JGS it appears to have stemmed from the fact that she was communicating with her ex-boyfriend over access to their shared dog. In relation to the complainant in the present case, it stemmed from his belief that she was being unfaithful to him; and

(3) the accused threatened to kill the alleged victim.

The differences between the 2020 incident and the alleged offending in the present case include those identified by Ms Fisher, mainly related to the fact that the accused appeared to be in a frame of mind of wanting to kill himself or cause physical harm to himself. I note that, although the accused is alleged to have obtained a knife from the kitchen in the 2020 incident, as he is alleged to have done in the course of the alleged offending in the present case, his purpose for doing so in the 2020 incident appears to have been to harm himself, and there is no suggestion that he used the knife to threaten JGS, so I do not consider that aspect of the matter to be a similarity. As with the 2018 incident, the 2020 alleged incident is different from the present case in that the accused appeared to be distressed and sorry for himself, and he cooperated with the police when they attended.
As with the other propensity evidence, in my opinion, the differences between the circumstances of the 2020 alleged incident and the circumstances of the alleged offences of aggravated strangulation and attempted murder in this case are not such as to detract from the probative value of the 2020 propensity evidence, when one has regard to the similarities in the circumstances between the alleged incidents. As with the other propensity evidence, the differences to which I have referred may be relevant when comparing the respondent's overall degree of moral culpability in respect of the 2020 alleged offending and his alleged offending in the present case, but they do not reduce the telling nature of the similarities between the incidents. I note that the question of mitigating factors does not arise in respect of the 2020 incident, as the accused was not charged in respect of that incident.

(v) The propensity evidence has significant probative value

It is apparent that the defence case is that the accused did not commit the acts of strangulation as alleged by the complainant in this case. Before the jury could find the accused guilty of the aggravated strangulation charges and the attempted murder charge, it would need to be satisfied beyond reasonable doubt that the alleged acts occurred as described by the complainant. It would need to be satisfied that the complainant is an honest and reliable witness in her evidence concerning those matters. The State's case is that the complainant's evidence is supported by other circumstantial evidence, including forensic evidence, evidence of injuries to the complainant's body, and the accused's behaviour when the police attended the unit. The propensity evidence is also sought to be adduced as circumstantial evidence that tends to support the complainant's account.
In my opinion, this is a case in which the probative value of the propensity evidence, in terms of its capacity to increase the probability that the accused committed the charged acts, may be found in its capacity to support the credibility of complainant's account of the charged acts. The fact that strangulation may well be considered an extreme and very dangerous form of violence, that the accused was much bigger and stronger that the complainant, and that generally the accused and the complainant appear to have been in a loving relationship until that time, may raise doubts about whether the accused would resort to that form of violence. However, if jurors know that the accused has a tendency to use that kind of violence when he is angry or in a heightened state of emotion because of a grievance against his intimate partner, notwithstanding that his relationship with his partner has previously been a good relationship, they may be more likely to accept the complainant's evidence about those acts of violence.
Obviously, what the jury make of the evidence will be a matter for their own assessment, and will depend on a consideration of all the evidence adduced at the trial, taking into account the directions they will be given about the evidence. Those directions will include that they can have regard to differences between the past incidents and the circumstances of the present case in determining what weight they give to the propensity evidence. However, having regard to my analysis of the evidence above, the jury may well consider that the probability that the complainant is honest and accurate in her account that the accused committed offences against her involving strangulation, is significantly enhanced if the accused has demonstrated a propensity to commit that form of violence, and the similarity between the allegations under consideration and the propensity evidence cannot be explained by coincidence or fortuitousness.
In summary, the propensity evidence has significant probative value because it is capable of establishing that the accused has a tendency to act on a particular violent impulse in particular circumstances, and that, in turn, is capable of rationally affecting in an important or consequential way the determination of whether he acted in that way on the occasion the subject of the charges.

Probative value compared to risk of unfair trial

Ms Fisher submitted on behalf of the accused that all three aspects of prejudice identified by Steytler P in Dair, which might give rise to the risk of an unfair trial, are relevant in this case. First, there is a risk the jury will engage in impermissible propensity reasoning, namely that the accused must be guilty of the aggravated strangulation offences and the attempted murder offence because he is the sort of person who is likely to do the acts of strangulation alleged; that is, he must be guilty on this occasion because he has done it before.[42] Ms Fisher submitted that, even with a direction warning against such reasoning, a jury 'would likely engage in that impermissible reasoning because it is just so prejudicial and significant, weighing against whatever direction [they are] given'.[43] Ms Fisher submitted that the risk is particularly significant because of the amount of propensity evidence sought to be adduced[44] and the fact that it concerns 'such an emotional area of the law'.[45]
Secondly, Ms Fisher submitted that there is a risk the jury may become distracted from deciding whether the accused is guilty of the charged offences because of the need to make findings about the unproven allegations of JGS in relation to the 2020 incident.
Thirdly, Ms Fisher submitted that, despite any direction given by the trial judge, in circumstances where so many women have come forward with allegations against the accused, there may be a tendency for the jury to want to condemn the accused not because they are satisfied beyond reasonable doubt of the offences charged, but because they believe he has escaped punishment for past conduct. Although Ms Fisher did not specify this, I understood her submission to relate to both the allegations made by JGS and the 2018 offending, for which he was dealt with in his absence and resulted in the issue of an arrest warrant, but for which he has not undergone punishment.
Ms Fisher submitted that the combination of prejudicial factors elevates the risk of an unfair trial to a level where it could not be said that fair minded people would think that the public interest in adducing all relevant evidence must have priority over that risk.
The State's submission is, in essence, that any prejudice arising from the admission of the propensity evidence can be addressed by directions to the jury, which, it must be assumed, they would follow. Further, the significance of the probative value of the evidence is such that the public interest in adducing all relevant evidence must have priority over the risk of an unfair trial.
I accept that, in a case of this kind, propensity evidence of the kind proposed to be adduced does carry a risk that the jury would engage in impermissible propensity reasoning, being the first prejudicial factor referred to be Ms Fisher. The question is whether such reasoning can adequately be guarded against by trial directions. I accept Ms Fisher's submission that the availability of such directions cannot mean that in every case they must be assumed to determine the test under s 31A(2)(b) in favour of admission of the propensity evidence. Careful consideration must be given to the degree of risk of an unfair trial and the capacity of directions to adequately reduce that risk.
In my opinion, the risk of impermissible propensity reasoning in this case can be adequately countered by directions of the kind I will outline below. While I accept that the subject matter of the propensity evidence may properly be described as emotive, the evidence to be given by the complainant in this case relates to a much more sustained and brutal violent assault allegedly inflicted upon the complainant by the accused than was the subject of any of the propensity evidence incidents. Further, the conduct alleged by the complainant included degrading aspects that were absent in the propensity evidence incidents. Accordingly, the potential for the evidence to evoke an emotional response exists without the propensity evidence, and the jury will be directed to put any such response aside and to judge the evidence impartially. It will be explained to the jury that this is an essential aspect of ensuring an accused receives a fair trial. In my opinion, any additional emotional content of the propensity evidence can properly be dealt with by an appropriate direction of that kind. In my opinion, the nature and extent of the propensity evidence is not such as to preclude the usual assumption that the jury will follow the judge's directions and will approach their deliberations in an impartial manner. I do not consider that the risk of an unfair trial is elevated to a level, because of the nature and extent of the propensity evidence, where, applying the fair minded person test, the public interest in adducing all relevant evidence should no longer have priority.
Further, I do not consider that the propensity evidence is of such a nature or quantum as to distract the jury from its task of deciding whether the accused is guilty of the offences charged. The first two items of propensity evidence will be presented in the form of an agreed statement of facts. That is, whether or not the accused agrees with the facts, it will be agreed by the parties that the accused was dealt with on the basis of facts found by the court on each occasion (in Queensland and New South Wales) which will be read to the jury. There is no occasion for distraction of the jury from its task in that regard. As for the allegations made by JGS, she will be called as a witness. She will be assessed by the jury in the same way all witnesses to the facts are assessed as to credibility and reliability, subject to a direction that, before they could rely on her evidence about the strangulation by the accused, they would need to be satisfied about that evidence beyond reasonable doubt. Her proposed evidence is not complicated. The issue the jury would need to decide for the purpose of using her evidence as propensity evidence is narrow and relatively simple.
Finally, while there may be a risk that the jury would consider the accused has escaped punishment for past conduct, particularly if they find the accused committed the act of strangulation described by JGS, I am satisfied that such a risk can be adequately nullified by an appropriate direction to the jury to the effect that their duty is to decide whether the accused is guilty or not guilty of the offences with which he is charged, that they must not concern themselves with the consequences of their findings, and they must not concern themselves with what the outcomes might have been in respect of past matters.
I am satisfied that the probative value of the propensity evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence that has significant probative value must have priority over the risk of an unfair trial. Indeed, given the probative value of the propensity evidence as outlined in my analysis above, underscored by the significant similarities between the accused's past conduct and the alleged conduct in this case, it would be quite extraordinary, in my view, not to give priority to the admission of the propensity evidence as a matter of public interest. In my opinion, the risk of an unfair trial can be adequately ameliorated by directions to the jury against impermissible reasoning or allowing prejudice to affect their deliberations.

It is appropriate that I outline briefly the directions I consider to be appropriate to be given to the jury in relation to the propensity evidence, apart from the directions to which I have already referred concerning prejudice.
In relation to the propensity evidence concerning the Queensland and New South Wales incidents, the jury would be directed that they can rely on the agreed facts that will be read to them. As to the evidence of JGS, the jury would be directed that, before they could rely upon it as a further instance of propensity evidence, they would need to be satisfied beyond reasonable doubt that she was truthful and accurate in her evidence.
The jury would be directed that the basis on which the evidence was adduced was as evidence tending to establish a propensity by the accused to resort to strangling or choking of his intimate partner when he is in a heightened emotional state, in a highly charged situation, and he is reacting to what he perceives to be a grievance concerning his intimate partner. It would be necessary to address the specifics of each propensity evidence incident that the State contends establishes that propensity and to direct the jury that they must be satisfied the evidence in fact establishes that propensity, before they could rely on it as such.
The jury would be directed that, in relation to any such evidence that the accused has a tendency to act in the particular way described, in circumstances that may be considered to be similar to the circumstances the subject of the alleged offences in the indictment, they may take that evidence into account when they are assessing the likelihood of events having occurred as described by the complainant, bearing in mind that they need to be satisfied beyond reasonable doubt before they could find the accused guilty of any particular count they are considering. The jury would be directed that the propensity evidence is specifically relevant to the charges concerning the strangulation or the impeding of normal breath and blood circulation by the application of pressure to the complainant's neck (which include the attempted murder charge), and not to any of the other charges in the indictment.
The jury would also be directed that they should take into account any differences between the prior incidents and the circumstances described by the complainant in determining what weight to give to the propensity evidence and whether it has any bearing on the likelihood that events occurred as described by the complainant, and, therefore, whether they accept her evidence.
The jury would be directed that they not reason that because the accused has behaved in the same or a similar way in the past, he is necessarily guilty of the offences in the indictment. They would be directed that, in accordance with their oaths and affirmations, they are required to consider the evidence carefully to determine whether they are satisfied in relation to each count on the indictment that the elements of the offence have been proved.

For the above reasons, the propensity evidence sought to be adduced by the State is admissible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] I have paraphrased the items specified in the application for ease of reference, and have anonymised the name of the complainant in the third item.

[2] I have decided that it is appropriate to anonymise the name of the alleged victim in that matter, as the alleged conduct is not the subject of any charge, but it appears JGS has not foreclosed the possibility of making a complaint, saying in her statement that she is 'not ready to make a criminal complaint'.

[3] The label for each attachment and the date of the affidavit to which it is attached is identified at the end of each item.

[4] I have added syntax and made some grammatical changes for clarity.

[5] Again, I have added syntax and made some grammatical changes for clarity.

[6] This is an outline, and some of what JGS states is paraphrased. Paragraph references are to paragraphs in that statement.

[7] The State of Western Australia v Jackson [2019] WASCA 118 (Jackson) [20].

[9] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 (McPhillamy) [26].

[10] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.

[12] DKA v The State of Western Australia [2017] WASCA 44.

[14] The State of Western Australia v JHN [2021] WASCA 225 [115].

[15] Jackson [21] - [23]; JHN [116].

[16] Jackson [52] - [53]; JHN [117].

[17] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 (IMM) [44], [47], [50] (French CJ, Kiefel, Bell and Keane JJ0, [90], [91], [93]; RMD [52(b)] (Buss P); Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [153] (Roberts-Smith JA, Wheeler JA agreeing); DKA [35].

[18] JHN [118(b)], citing RMD [52] (Buss P).

[19] JHN [118(c)], citing Lilley v The State of Western Australia [2019] WASCA 164 [61].

[20] McPhillamy [26] ‑ [27]; Jackson [63]; MNA v The State of Western Australia [2020] WASCA 84 [85] ‑ [86], [173].

[21] MNA v The State of Western Australia [2020] WASCA 84.

[22] MNA [86], referring to Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [40], [64] (Kiefel CJ, Bell, Keane and Edelman JJ).

[24] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [63].

[31] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [50]; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 (Preston) [45]; DKA v The State of Western Australia [2017] WASCA 44 [32]; RMD v The State of Western Australia [51]; JHN [119].

[32] Dair [64]; Preston [41]; DKA [31].

[33] Submissions in Support of the s 31A Propensity Application, dated 23 October 2023 [5].

[37] Including the evidence of JGS in respect of the alleged conduct in December 2020, if that evidence is accepted by the jury.

[38] See [53] above.

[39] See [52] above.

[40] See [52](2) above.

[41] See [95] above.

[44] Described by Ms Fisher as a 'mountain of s 31A evidence': ts 39.

THE STATE OF WESTERN AUSTRALIA -v- HUISH [2023] WASC 500 (13 November 2023)

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

(v) The propensity evidence has significant probative value

Legislation Cited (1)

Cases Cited (5)