Court of Appeal (ACT)|2016-11-10|Before: Murrell CJ, Refshauge and Wigney JJ

Vojneski v The Queen [2016] ACTCA 57 (10 November 2016)

Appeal against sentence allowed. Appellant sentenced to 19 years' imprisonment with a nonparole period of 10 years' imprisonment. See [140].

CRIMINAL LAW - EVIDENCE - Tendency evidence - use of tendency evidence - tests for admissibility - whether misdirection on tendency evidence -- similarity between tendency incidents - no substantial miscarriage of justice - similarity of tendency incidents and offence incident

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Punishment - sentencing - murder - whether case in the worst category - public protection

Evidence Act 2011 (ACT) ss 55, 97, 101, Dictionary

BP v The Queen [2010] NSWCCA 303

Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199

Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568

Elomar v The Queen [2014] NSWCCA 303; 316 ALR 206

Festa v The Queen [2001] HCA 72; 208 CLR 593

Fillippou v The Queen [2015] HCA 29; 256 CLR 47

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478

HML v The Queen [2008] HCA 16; 235 CLR 334

House v The King [1936] HCA 40; 55 CLR 499

Hughes v The Queen [2015] NSWCCA 330

IMM v The Queen [2016] HCA 14; 90 ALJR 529

Munro v The Queen [2014] ACTCA 11

R v Costa (No 1) [2015] ACTSC 63

R v Eastman (Unreported, Supreme Court of the ACT, Carruthers AJ, 10 November 1995)

R v Hillier (Unreported, Supreme Court of the ACT, Grey J, 16 March 2005)

R v Lam [2014] ACTSC 49

R v Lockyer (1996) 89 A Crim R 457

R v McDougall (Unreported, Supreme Court of the ACT, Gray J, 21 July 2011)

R v O'Keefe [2009] NSWCCA 121

R v Schmidt [2013] ACTSC 295

R v Steer and Williams (Unreported, Supreme Court of the ACT, Crispin J, 16 October 1997)

R v Vojneski [2014] ACTSC 66

R v Vojneski (No 4) [2014] ACTSC 307

Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481

Velkoski v The Queen [2014] VSCA 121; 45 VR 680

Vojneski v The Queen [2015] ACTCA 44

Australian Law Reform Commission, Evidence, Interim Report No 26 (1985)

Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016)

New South Wales Judicial Commission, Criminal Trials Courts Bench Book, vol 1 (Update 52)

Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016)

ACTCA 56 of 2014; ACTCA 20 of 2015

Date of Decision: 11 April 2014; 3 September 2014 and 11 November 2014

1. On the night of 27 March 2012, Paula Conlon (the deceased) was stabbed to death in her bedroom at the home that she shared with a young boarder, A. The perpetrator used "severe" force to inflict 11 stab wounds and four incised wounds to the deceased, principally to her chest, heart and lung regions, and to her forearms. The murder weapon was not located.

2. Prior to her death, the deceased was in a relationship with the appellant. The appellant was charged with murdering the deceased.

3. At the trial, the identity of the perpetrator was the central issue. The defence did not address the jury on mental impairment or self defence, although evidence of the mental instability of the accused was admitted without objection.

4. The prosecution advanced a circumstantial case to prove that the appellant was the murderer.

5. The circumstances upon which the prosecution relied included alleged tendencies of the appellant. The prosecution asserted that the appellant tended to become quickly aroused to anger and, when angry, to use knives to threaten people and to inflict harm on people and objects.

6. Another circumstance upon which the prosecution relied was the existence of possible motives for the appellant to murder the deceased, including the motive that, just before the deceased's death and at a time when the appellant was short of money to buy drugs, he discovered that the deceased had purchased clothing. The prosecution said that this discovery may have aroused a tendency of the appellant to become angry and violent when he was not provided with money for drugs and, by that route, may have provided the appellant with a motive to kill the deceased.

7. On 3 September 2014, a jury found that the appellant was guilty of murder.

8. On 11 November 2014, Burns J (the trial judge) sentenced the appellant to life imprisonment: R v Vojneski (No.4) [2014] ACTSC 307 (Vojneski No.4).

9. Initially, the appellant appealed only against sentence. Later, Penfold J granted the appellant leave to appeal against conviction on the grounds that the trial judge had erred by admitting tendency evidence and had misdirected the jury in relation to tendency evidence: Vojneski v The Queen [2015] ACTCA 44 (Leave Decision).

10. First, the appellant contended that the trial judge should have rejected the evidence of the tendency incidents because, under s 101 of the Evidence Act 2011 (ACT) (Evidence Act), the probative value of the evidence did not substantially outweigh its prejudicial effect, regardless of whether the incidents were considered individually or cumulatively (the s 101 ground).

11. Second, the appellant submitted that the trial judge had misdirected the jury by telling them to disregard any similarities between the tendency incidents and the offence incident when assessing the weight to be given to the tendency evidence (the misdirection ground).

12. Third, the appellant submitted that the sentence was manifestly excessive and that the trial judge had erred in the manner in which he approached the sentencing exercise (the sentence grounds).

13. A decision under s 101(2) is reviewable pursuant to the principles stated in House v The King [1936] HCA 40; 55 CLR 499 (House v The King). In Hughes v The Queen [2015] NSWCCA 330 (Hughes) at [189], the NSWCCA said:

(Section 101 (2)) involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]- [95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2).

A similar approach was taken in R v O'Keefe [2009] NSWCCA 121 (O'Keefe) at [49] and Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 (Saoud) at [6] and [60].

14. However, we note that, in IMM v The Queen [2016] HCA 14 (IMM), the issue was not directly raised, and the majority determined the matter without regard to House v The King limitations.

15. The prosecution submitted that the appellant should be permitted to argue neither conviction ground.

16. The prosecution argued that, as the s 101 ground involved an appeal against an interlocutory order, leave was required under s 37E(4) Supreme Court Act 1933 (ACT). In support of the contention that leave should be refused, the prosecution said that, at no time, prior to or during the trial, did the appellant seek to appeal the decision and it was not until 7 May 2015, almost six months after the appeal against sentence was lodged, that the appellant sought to add conviction grounds. The delay militated against the grant of leave to appeal the interlocutory order.

17. In relation to the misdirection ground, the prosecution relied on Court Procedure Rules 2006 (ACT) (CPR) r 5531. Rule 5531 does not speak of "leave". Rather, subject to another order of the Court of Appeal, it prevents a person from pursuing a ground of appeal concerning an alleged misdirection if the person failed to object at the trial. The prosecution noted that the appellant did not seek a redirection on the point now taken, although his counsel did ask for further directions about other matters and the trial judge made most of the requested redirections.

18. In addition, in relation to both conviction grounds, the prosecution submitted that the belated attempt to appeal had an "armchair quality": Munro v The Queen [2014] ACTCA 11 per Burns J at [128] (Refshauge and Penfold JJ agreeing).

19. In our view, the appellant should be permitted to pursue both grounds.

20. When dealing with the question of leave to appeal out of time on both conviction grounds in the Leave Decision, Penfold J addressed delay at [21]-[24], finding that the appellant's explanation for the delay was "not particularly persuasive" but, on the other hand, any fault lay with the appellant's lawyers rather the appellant himself. Her Honour considered the s 101 ground in some detail. At [89] her Honour opined that some or all of the tendency evidence had been wrongly admitted and there might be a miscarriage of justice if the appellant was refused leave to appeal out of time. Her Honour did not examine the misdirection ground in any detail because she considered that the merits of that ground depended on the merits of the s 101 ground. Her Honour referred the question of whether leave should be granted under r 5531 to the three-member Court of Appeal.

21. Given Penfold J's views about delay and the merits of the s 101 ground, we would not refuse leave to appeal the s 101 ground or to decline to make an order under r 5531 on the related misdirection ground.

22. There are other reasons for reaching this conclusion.

23. As to the s 101 ground, it is true that an application for leave to appeal from an interlocutory order should be filed not later than seven days after the day that the interlocutory order is given: r 5312 CPR. However, if an application to appeal a pre-trial tendency evidence ruling is filed prior to the trial, the Court of Appeal is unlikely to entertain the application prior to the trial because that would delay the trial. In addition, until the trial occurs, one cannot know what the witnesses will say about the tendency incidents, and what they say may affect the strength of any appeal. Further, if the accused is acquitted, it will be unnecessary to hear the application. The criminal process should not be unnecessarily fragmented by appeals against interlocutory orders. In Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478 (a civil case), the High Court decided that, on an appeal from a final order, an interlocutory order may be challenged when the order affected the final judgment. In this case, the tendency evidence had the capacity to affect the conviction.

24. The provisions of s 76(2) of the Court Procedures Act 2004 (ACT) are worth noting. Section 76(2) enables a court to make a pre-trial ruling on evidence. Such a ruling is prima facie binding on the trial judge and "is taken to be part of the trial of the accused person": ss 76(3) and (4). Section 76 is designed to enable trials to run more quickly and smoothly. It would be unfortunate if the efficiencies achieved by s 76 were undermined by the pre-trial hearing of applications for leave to appeal to the Court of Appeal against rulings made under s 76.

25. In this case, the appellant's objection to the admission of the evidence of tendency incidents was always alive. There were good practical reasons for not pursuing an application for leave to appeal prior to the trial and, in the Leave Decision, Penfold J expressed the view that the admission of the tendency evidence may have resulted in a miscarriage of justice. For all these reasons, the appellant should be granted leave to appeal the interlocutory ruling concerning the admission of tendency evidence.

26. Rule 5531 requires an appellant to seek a redirection at the time when the contested direction is made, enabling a trial judge to correct any error at the time of the trial. The failure to seek a redirection may be treated as a concession that any error was immaterial; it was not noticed or, if noticed, it was considered trivial in the context of the way in which the trial was run.

27. In this case, the asserted misdirection resulted from an exchange between defence counsel and the trial judge concerning tendency evidence; it occurred as the trial judge was responding to and correcting what had been said by defence counsel. Defence counsel's failure to seek a redirection was not an "unexplained failure to take a point": Hughes at [236]. Consequently, r 5531 should not impede an appeal against the asserted misdirection.

28. In addition to tendency circumstance/s, the prosecution relied upon the following non-tendency circumstances:

(a) The appellant and the deceased were in a relationship.

(b) During the afternoon and evening of 27 March, the appellant was at the deceased's residence. The pair drank alcohol and listened to music.

(c) Apart from the appellant, the deceased and A, there was no evidence that anyone else was present at the deceased's flat in the period shortly before the murder.

(d) Prior to 9:42 pm on 27 March, the deceased's mobile telephone was used to contact drug associates of the appellant who were not known to the deceased. Some of the communications concerned the acquisition of illegal drugs on credit ("on tick").

(e) The murder occurred at about 10:05 pm. A was in his bedroom (which was adjacent to the deceased's bedroom). He was wearing headphones and playing games on the Internet. When he had been playing "League of Legends" for about 20 minutes, he heard a scream that sounded like the deceased's voice and seemed to emanate from her bedroom. D, the person with whom A was playing "League of Legends", was verbally communicating with A while they played. D also heard a piercing scream about 20 minutes into the game. A computer examiner said that the game had commenced at 9:45 pm.

(f) About 15 minutes after he heard the scream, A heard a tap running in the kitchen. He then heard the side gate opening or closing.

(g) The deceased's injuries were consistent with the killer having used a cook's knife that was part of a knife block set that was kept in the deceased's kitchen. After the murder, the cook's knife was found to be missing. It was never located.

(h) The appellant's fingerprint was found on the fusion knife that sat within the knife block set adjacent to the usual position of the cook's knife. The fusion knife was not suitable for use as a stabbing weapon. Admittedly, the position of the fingerprint was also consistent with normal use of the fusion knife.

(i) When arrested, the appellant had a wound on the leading edge of his right index finger which was consistent with offensive knife injury.

(j) Consistent with the deceased attempting to defend herself against the appellant, the appellant's DNA was found under the deceased's right fingernails, her right forearm was injured and there appeared to be scratches on the appellant.

(k) The appellant's blood was found on the outside door handle of the deceased's bedroom and on the floor below the handle.

(l) A bag on the deceased's bed contained clothing that the deceased had purchased online. The bag had been delivered on the day of the murder. There was a bloodstained cut (or stab) on the bag. The blood contained the deceased's DNA. The cut was consistent with the weapon that had been used to kill the deceased. The appellant's fingerprints were on the bag.

(m) The appellant and the deceased were short of money. Earlier on 27 March the deceased had borrowed $50 petrol money from a friend.

(n) Previously, the appellant had expressed jealousy about the deceased's relationship with her estranged husband and A.

(o) At 7:52 am on 28 March, the appellant was discovered unexpectedly by a friend of the appellant's brother. He found the appellant asleep in a van outside his residence. The van was a work van owned by the appellant's brother. The van was often parked at the friend's residence, which was very close to the appellant's brother's workplace. However, the van had not been there on the previous night. The appellant did not drive, but relied upon public transport or lifts provided by friends. The deceased's residence was closer to the appellant's residence than to the friend's house.

(p) When he was discovered on the morning of 28 March, the appellant was wearing different clothes from those that he had been wearing on the night of 27 March. The clothes that the appellant had been wearing on 27 March were not found.

(q) The appellant and the deceased had communicated by telephone very frequently, but on 28 and 29 March the appellant made no attempt to contact the deceased.

(r) There was no forensic evidence linking another person to the murder. There was no suggestion that another person had a motive to murder the deceased.

29. There was evidence that, at about 11:00 pm on 27 March 2012, neighbours of the deceased heard yelling followed by the slamming of a car door and the sound of a car screeching away. The prosecution did not rely upon this evidence, suggesting that the event may have been unrelated.

30. Section 97 of the Evidence Act provides:

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

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

31. The Dictionary to the Evidence Act states:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

32. Section 101(2) of the Evidence Act provides:

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

33. Pursuant to s 97(1)(a) of the Evidence Act, the prosecution gave notice of its intention to adduce tendency evidence of 14 incidents between 2001 and 2012.

34. In the amended tendency notice, the prosecution listed "particulars of the tendency of which evidence is to be adduced" (emphasis added), including:

(a) A tendency to become quickly aroused to anger and to act violently when angered.

(b) A tendency to threaten people with knives.

(c) A tendency when angry, to use knives to inflict harm on people or damage objects.

(d) A tendency to act violently when under the influence of alcohol and/or marijuana.

(e) A tendency to become angry and violent when not provided with money for drugs.

Although the amended tendency notice referred to "particulars of the tendency" (suggesting only one tendency), each "particular" referred to a separate tendency.

35. At the admission stage, the matter was approached by asking whether a particular tendency incident evidenced one or more separate tendencies. However, in reality, the prosecution case at the trial relied upon the combination of tendencies (a) - (d) to establish one behavioural tendency that conformed to the way in which the perpetrator behaved at the time of the murder.

36. Of themselves, tendency (a) (the tendency "to become quickly aroused to anger and to act violently when angered") and tendency (d) (the tendency "to act violently when under the influence of alcohol and/or marijuana") are not distinctive or "particular" ways of behaving. On the other hand, a tendency to become quickly aroused to anger (or, as the trial judge put it, "to become irrationally or disproportionately angry"), and then to use knives to threaten or inflict harm on people or objects is such a tendency.

37. Had the prosecution relied on one relatively distinctive tendency (to become irrationally or disproportionately angry and then to use knives to threaten or inflict harm on people or objects) rather than four tendencies (two of which were not at all distinctive), this would have brought considerable focus to the determination of the admissibility of the tendency incidents and the framing of jury directions.

38. In relation to tendency (e) (to "become angry and violent when not provided with money for drugs") the prosecution said that, at the time of the offence, the appellant was seeking drugs and was short of money, so may have become enraged at the deceased's recent online purchase of clothing (developed a motive to kill) and (consistent with the motive and in conformity with a tendency to behave violently when not provided with money for drugs) then murdered the deceased.

39. This analysis of the asserted tendency/s is apparent with the benefit of hindsight; it was not clearly articulated to the trial judge.

40. On 11 April 2014, the trial judge decided to admit evidence of eight of the 14 incidents upon which the prosecution sought to rely to establish the asserted tendencies, finding that the evidence of each incident had significant probative value and satisfied the test in s 101 of the Evidence Act: R v Vojneski [2014] ACTSC 66.

41. On a tendency evidence application, a judge is necessarily constrained by the evidence and information available at the time of the application, which may not match the evidence adduced at the later trial. However, in this case, there was reasonable consistency between the foreshadowed evidence and the evidence that was adduced at the trial.

42. The evidence of the tendency incidents that was adduced at the trial can be summarised as follows:

1 The Skyfire Incident. This incident occurred in March 2001 when the appellant was 17 years old. At the flat occupied by the appellant and his family, there was a verbal altercation between the appellant and J, the appellant's sister's partner. The appellant had a poor relationship with J. Following the altercation, J departed and the appellant remained in the flat with his sister, two children and a cat. The appellant had a blunt knife. He went to the kitchen, obtained a kitchen knife, approached the cat and made a sawing motion on the neck of the cat. The appellant told his sister "I should kill you" and began to laugh. He gave his sister another knife, saying "Take this to protect yourself". J returned to the flat. The appellant greeted him brandishing the knife and then used his fist to strike J in the head. A struggle ensued between the appellant and J, during which J attempted to seize the knife. J hit the appellant, snapped the blade of the knife, pinned the appellant to the ground, kneed him in the head and kicked him in the face. J ran to his car, pursued by the appellant. The appellant picked up a child's scooter and threw it at J's car, damaging the windscreen. As a result of the incident, J was bleeding and had a swollen face. The appellant's sister was very upset. The appellant pleaded guilty to assaulting J and thereby occasioning to him actual bodily harm, assaulting his sister, and intentionally destroying the windscreen of J's car. When interviewed by Mr Killick, a psychologist, in 2004, the appellant appeared to have genuine difficulty recalling this incident and events associated with the 2002 "Barbecue Incident". The trial judge admitted the Skyfire Incident on the basis that it supported tendencies a), b) and d).

2 The Barbecue Incident. On 23 November 2002, after a family barbeque dinner at which a significant quantity of alcohol was consumed, there was a tense discussion between the appellant and J. The relationship between the appellant and J was fractured; the appellant was concerned that J had been violent towards his sister and J had made a complaint against the appellant (although the appellant had said earlier that evening that he harboured "no hard feelings" toward J). The appellant obtained a penknife or pocketknife from a kitchen drawer, "calmly walked" towards J and stabbed him in the chest, puncturing J's lung. The appellant then departed. In 2004, the appellant told Mr Killick, the psychologist, that he had been intoxicated with alcohol and marijuana at the time of the incident. The appellant was convicted of intentionally and unlawfully using an offensive weapon (a knife with a 4 inch blade) against another person in circumstances likely to endanger human life and assault occasioning actual bodily harm. The trial judge admitted this evidence to support tendencies a), b), c) and d).

3 The Mother Incident. On 3 September 2004, the appellant and his mother were at home. The appellant became frustrated because of symptoms that may have been associated with the medication that he was taking (he was having difficulty with chewing and speaking). The appellant's mother was knitting. The appellant hit his mother in the head. She sustained a two inch laceration to her forehead. The facts tendered at the sentencing hearing stated that the impact of the blow had caused the victim's forehead to split open but, at the trial, the appellant's mother said that the injury may have been caused by a knitting needle, rather than being the direct result of the appellant's blow. When police attended, the appellant was "strangely calm". He was convicted of assault occasioning actual bodily harm. The trial judge admitted this evidence to support tendency a).

4 The Former Partner Incident. In September 2007, the appellant was at his unit with his then partner. She told him that she had provided her telephone number to another man. The appellant became upset. He walked into the kitchen, grabbed a knife and, while holding the knife, said that he would stab his partner. She ran to a neighbour's house. The appellant followed. She accompanied him back to his flat and, as they were walking back, he seemed to be calm. He told her that he had the knife in his pocket but would not use it. In cross-examination, the appellant's former girlfriend agreed that her police statement was made many years after the incident and she may have been mistaken about whether she saw a knife before she ran to the neighbour's house. A few days after the incident, the appellant reported to his case manager that he had responded to his girlfriend's statement by obtaining a knife, and that he was "planning to hurt himself with it, not anyone else", but had decided to go to bed instead. He realised that he had scared his girlfriend. The trial judge allowed this evidence in relation to tendencies a) and b).

5 The Tyres Incident. In the early hours of 6 February 2011, the appellant threatened to slit his neighbour's throat. Minutes later, another man told the appellant that he should go home. The appellant responded by saying that he would stab the man. A short time later, the appellant used a knife to stab all the tyres of his neighbour's car. When the appellant noticed that the neighbour was looking at him, the appellant waived the knife at the neighbour, and said that he was going to stab him. The neighbour called the police. Police attended the appellant's unit and saw a kitchen knife on the coffee table just inside the front door. The appellant was too intoxicated to be interviewed. Two days later, the appellant told a psychologist and a nurse that, prior to the tyres incident, he had consumed alcohol and Xanax tablets and he could not remember what had happened. Two or three days later, the appellant drove past the neighbour and screamed that he would slit the neighbour's throat and kill him. The appellant pleaded guilty to intentionally damaging the tyres. The trial judge admitted this evidence in relation to tendencies a), b), c) and d).

6 The Balcony Incident. On 16 January 2012 the appellant and the deceased were at the appellant's flat. Both were highly intoxicated. After examining messages on the deceased's mobile telephone, the appellant concluded that she had recently spent a night with her estranged husband. He contacted the deceased's friend C and questioned her. C reassured him that the deceased had not spent a night with her estranged husband. In response to reports of screaming, police attended the appellant's unit at 10:45 pm, and found the deceased outside the unit, in an intoxicated and "hysterical" state. She was crying to be let back in to the unit. She was wearing a dressing gown or similar attire. The police did not observe any injury to the deceased. The appellant told the police that he had been drinking with the deceased and they had begun to argue, then he had evicted her and thrown her clothes from the balcony. He wanted her to leave. The police concluded that the appellant was intoxicated. They assisted the deceased to leave the scene. C's mother, M, collected the deceased. That night and over the following days, the deceased told M that the appellant had obtained a knife, cleaned it and threatened her before "[throwing her] over the balcony... with no clothes" and then "[throwing] her clothes out". M saw bruising on the deceased's arms and neck. C saw bruising on the deceased's arms that was consistent with the deceased having been held over the balcony railing. The trial judge allowed this evidence in relation to tendencies a) and b).

7 Use of Drugs. After initially presenting as an uncooperative witness, the appellant's mother gave evidence that the appellant became sad and angry when he could not access drugs and she preferred to give him money for drugs rather than deal with his behaviour. She gave him $300-$400 per week. The appellant's brother gave evidence that the appellant had begun to use "ice" two or three years prior to 2012. The appellant often became frustrated and verbally abusive if not given money for drugs and the appellant's brother gave money to the appellant, believing that the money would be used to purchase drugs. The trial judge allowed this evidence in relation to tendencies a) and e).

8 The Prison Incident. In 2013 the appellant was a remand prisoner at the Alexander Maconochie Centre. After 1 pm on 29 August 2013, the appellant spoke to a prison officer, alleging that another prisoner had forged the appellant's signature on a buy-up form and had obtained buy-up goods for which the appellant had been charged. After making enquiries, the prison officer suggested that the appellant complete a prisoner complaint form. At about 2:45 pm, the appellant approached the prison officer and punched him three times in the head. Several officers were required to restrain the appellant. The trial judge noted the prejudice associated with revealing that the appellant had been held in custody, but his Honour considered that the prejudice could be mitigated by directing the jury that the appellant was only in custody awaiting trial on the charge before them. The trial judge admitted the evidence in relation to tendency a).

43. The prosecution also sought to lead the evidence of incidents 1, 2, 4, 5 and 6 and two other incidents as coincidence evidence, but the application was refused.

Sections 55, 97 and 101 of the Evidence Act

1) Is there tendency evidence that is relevant under s 55 of the Evidence Act?

44. A tendency under s 97 of the Evidence Act is a tendency "to act in a particular way or to have a particular state of mind", i.e. a tendency to think or act in a relatively distinctive ("particular") way. To qualify as "tendency evidence", evidence of one or more "tendency incidents" must show a behavioural or mental "tendency" and must not be a random collection of incidents that say nothing "particular" about the offender's thinking or behaviour.

45. It is important to carefully articulate the tendency that evidence is said to prove: R v Lam [2014] ACTSC 49 (Lam) at [40]. As discussed in [34]-[37] above, careful articulation was absent in the present case.

46. In Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) (Odgers) at 669 [EA.97.60], the author quotes from Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 1, [797], describing the role of tendency evidence as follows:

if an individual has behaved in a particular way in a particular situation, that individual is likely to behave in a similar way in a similar situation.

47. In criminal proceedings, tendency evidence is often called to show that, at the time of the alleged offence, the accused tended to think or act in a particular way that makes it more likely that he or she committed the offence because the behavioural or mental tendency of the accused conformed to the offending behaviour. Or, to put it another way, evidence may support an inference that the accused tended to behave or think in a particular way which makes it more likely that the accused did so at the time of the offence: R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 at [22]-[23] and Elomar v The Queen [2014] NSWCCA 303; 316 ALR 206 at [359]. In IMM v The Queen [2016] HCA 14; 90 ALJR 529 (IMM) at [104] Gageler J said:

The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence of the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of a fact in issue of the accused's actual state of mind at the time when the circumstances of the alleged offence.

(Citations omitted)

48. Like any other evidence, in order to be admissible tendency evidence must be relevant within the meaning of s 55 of the Evidence Act; it must be capable of elucidating a "fact in issue" in the proceedings. At the s 55 admissibility stage, the questions are:

(a) Has the tendering party identified a s 97 tendency (a tendency to act or think in a "particular" way)?

(b) Are the incidents (individually or in combination/s) capable of establishing the asserted tendency?

(c) What is the relevant "fact in issue" in the proceedings?

(d) If the fact finder accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue (often - could it inform whether the accused committed the offence because the tendency conforms with what is otherwise known about the offending behaviour)?

49. When (as is usual) the prosecution relies on several incidents to establish an asserted tendency, the incidents must contain an inherent element of "similarity" in order to demonstrate a "tendency" and engage the section: Saoud per Basten JA at [28]. It is always useful to consider the similarities (and dissimilarities) between "tendency incidents" for the purpose of deciding whether they do support the existence of the asserted tendency to think or act in a "particular" way. Speaking of similarities between tendency incidents, at 677 Odgers says:

As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do an act of a distinctive kind.

(Citations omitted)

50. However, incidents may support an inference that an accused has a behavioural "tendency" even if the incidents themselves are somewhat dissimilar. In this regard, there is a fundamental distinction between tendency evidence and coincidence evidence. Unfortunately, the two rules are apt to be confused. Under the coincidence rule, similarity between events is the critical issue; the coincidence rule requires a comparison of the similarities between two or more events (usually, one is the offence event) for the purpose of deciding whether it is improbable (or implausible) that the events can be explained by coincidence. On the other hand, the tendency rule requires that the tendency be considered alongside the offence event. At 675, Odgers states:

The distinction between tendency and coincidence reasoning needs to be emphasised, notwithstanding the fact that essentially the same test of admissibility applies (see ss 98 and 101). The existence of "similarity" is not essential to tendency reasoning, while it will always be a necessary requirement for coincidence evidence (see s 98). This provision, unlike coincidence evidence under 98, is not "based upon similarities". It is not essential that the evidence reveal "striking similarities" or "unusual features".

(Citations omitted)

2) Section 97: Does the tendency evidence have significant probative value?

51. In criminal proceedings, the prosecution generally seeks to rely upon a tendency to think or act in a relatively disreputable way, and the evidence adduced to support the tendency is inherently prejudicial. In Saoud, at [30], Basten JA (with whom Fullerton and R A Hulme JJ agreed) said that:

"tendency" is seen as a risky form of circumstantial evidence capable of causing prejudice.

52. Consequently, the Evidence Act prescribes that, before it can be admitted, tendency evidence must be more than merely relevant (probative). It must have "significant probative value" and the probative value must "substantially outweigh" any "prejudicial effect": ss 97 and 101 of the Evidence Act.

53. The probative value of evidence is the degree of its relevance to a fact in issue: R v Lockyer (1996) 89 A Crim R 457 at 459. Or, as the majority said in IMM at [46]:

The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

(Emphasis added)

To a similar effect, at [103], Gaegler J said that in order to have "significant" probative value, evidence must be "important" or "of consequence" to proving or disproving the existence of a fact in issue, but the capacity of the evidence to prove or disprove the fact need not be "substantial."

54. In theory, the extent and nature of similarities between tendency incidents is not critical to the determination of "significant probative value": Saoud at [40], [47]-[48], Hughes at [166]-[167]. However, in practice, when considering whether tendency evidence has "significant probative value" it is important to examine the similarities between the tendency incidents. A high degree of similarity between tendency incidents may show a strong and distinctive tendency which, because of its strength and distinctiveness, may be more influential in the context of fact-finding.

55. It is not necessary to analyse what the Victorian Court of Appeal meant in Velkoski v The Queen [2014] VSCA 121; 45 VR 680 when, having concluded at [165] that the law regarding tendency evidence had developed differently in NSW and Victoria, at [171] it said:

It is the degree of similarity of the operative features (of the tendency incidents) that gives the tendency evidence its relative strength_._

Any difference between the approach taken in NSW and that taken in Victoria is unlikely to lead to a different outcome. Regardless of whether, in principle, similarity between tendency incidents is essential or inessential to a consideration of "significant probative value", in practice it will almost always be important.

56. Theoretically, it is the tendency (rather than the supporting evidence) that is to be compared to the offence incident. However, at a practical level it is important to consider the similarities between the tendency incidents and the offence incident. A tendency can be discerned only by examining the tendency incidents from which the tendency is to be inferred. A high degree of similarity between the tendency incidents and the offence incident may show that a distinctive behavioural tendency of the accused conforms closely to the offending conduct. In BP v The Queen [2010] NSWCCA 303 at [108] Hodgson JA (Price and Fullerton JJ agreeing) said:

It is not necessary in criminal cases that ... there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

57. Generally, both the distinctiveness of the tendency (often evidenced by very similar tendency incidents) and the degree of conformity between the tendency and the offending conduct (often, but not necessarily, shown by similarity between the tendency incidents and the offence incident), that determines the probative value of tendency evidence (the degree to which the tendency evidence has the capacity to influence fact-finding). But ultimately it is conformity between the tendency and the offending conduct that informs probative value: Hughes at [183]. As tendency incidents are only evidence of a tendency, some caution should be exercised when directly comparing the similarities between tendency incidents and the offence incident. In the case of coincidence evidence, the position is otherwise; the relevant comparison is a direct comparison of the similarities between one incident and another (usually the offence incident).

59. First, a decision that evidence has significant probative value is a decision about the capacity of the evidence to influence the fact-finder; about the reasoning process that is open to a jury: R v Ford [2009] NSWCCA 306; 273 ALR 286 (Ford) at [52], Saoud at [33].

60. Second, as a matter of logic, it is hard to see that the probative value of tendency evidence can be diminished (or strengthened) by the fact that there are (or are not) other circumstances that, regardless of the tendency evidence, may establish the fact/s in issue, i.e. because the prosecution case is otherwise strong (or weak). In some cases, the contrary position has been advanced, presumably because s 97(1)(b) invites the court to consider whether the proposed tendency evidence will "either by itself or having regard to other evidence" have significant probative value.

3) Section 101: Does the probative value of the tendency evidence substantially outweigh any prejudicial effect?

61. Section 101(2) requires the identification of the probative value and the prejudicial effect of the tendency evidence. Then a balancing exercise must be conducted on the facts of each case: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95], Hughes at [190].

62. At the s 101 stage of the inquiry, it is necessary to identify the type or types of prejudicial effect in question: Ford per Campbell JA at [64].

63. The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact-finder will misuse the evidence in an unfair way by giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction: Festa v The Queen [2001] HCA 72; 208 CLR 593 per McHugh J at [51] (Festa), Lam at [31]-[32], R v Costa (No 1) [2015] ACTSC 63 at [44]. As noted above, tendency evidence usually raises disreputable conduct, i.e. contains inherent prejudice. But in many cases this prejudicial effect can be greatly reduced by appropriate jury directions. In particular cases, tendency evidence may have another prejudicial effect.

64. In O'Keefe at [60], Howie J (with whom McColl JA and Grove J agreed) observed:

The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally.

We agree. For example, a tendency to "behave badly" would be so general that, even if it did qualify as a tendency to behave in a "particular" way (which, in our view, it would not), it would not enable the supporting tendency evidence to pass the s 101 test. Again, this emphasises the need to carefully articulate a specific tendency.

65. We note that a consideration of the facts in O'Keefe suggests that, from a prosecution perspective, it sets a high threshold for when tendency evidence has "significant probative value".

65. Once tendency evidence is admitted, it is for the jury (or other fact-finder) to consider whether the evidence does establish an asserted tendency to think or act in a "particular" way. If the jury finds that the evidence does establish an asserted tendency, then the tendency is a circumstance that can be used to inform a "fact in issue", and the jury must decide what weight to attach to the tendency circumstance.

66. In deciding whether evidence does establish an asserted tendency, and the weight to attach to the tendency, the jury will need to ask:

(a) What, if any, mental or behavioural tendency do any (or all) of the tendency incidents establish? The answer to this question will usually include a consideration of the similarities between the tendency incidents, the number of such incidents and when the incidents occurred vis a vis the offence incident.

(b) What weight should be given to an established tendency? The answer to this question will often involve considering the degree to which the tendency is distinctive (as evidenced by the tendency incidents) and the extent to which the tendency conforms with what is independently known about the offending behaviour.

67. From the above discussion, three points emerge that are important to this appeal.

68. First, to the extent reasonably possible, the prosecution should articulate a distinctive tendency. Such articulation will aid a determination of whether the asserted tendency is a tendency to act or think in a "particular" way, whether the tendency incidents evidence the asserted tendency, the probative value of the tendency evidence, the risk of prejudice associated with the evidence and the weight that the fact-finder should attach to it.

69. Second, when considering whether the evidence supports the inference of a tendency, it is necessary to consider the similarities between tendency incidents.

70. Third, when considering the degree of probative value attaching to tendency evidence, whether the probative value substantially outweighs any prejudicial effect and the weight that should be attached to tendency evidence, it is usually important to consider both the similarities between the tendency incidents (how distinctive is the tendency?) and the similarities between the tendency incidents and the offence incident (how closely does the established tendency conform with the offence?).

71. The trial judge approached the admission of tendency evidence in a manner that was, in principle, correct. His Honour acknowledged the importance of identifying the "fact in issue" to which the proposed tendency evidence related: at [48]. His Honour observed that, in determining "probative value", the approach in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 should be followed, i.e., the judge should not usurp the function of a jury by predicting how the jury would view the evidence: at [39]-[41]. Applying Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568 per Simpson J at [148], his Honour noted that, in the context of "significant probative value", "significant" means "important" or "of consequence": at [43]. This approach was consistent with the subsequent decision of the plurality (French CJ, Kiefel, Bell and Keane JJ) in IMM at [50]-[54].

72. His Honour was satisfied that each of the alleged tendencies was relevant to the principal fact in issue, i.e. whether the appellant was the person who killed the deceased; if the jury was satisfied that the accused had a relevant tendency, then the jury could use that tendency to reason towards a finding that the appellant was the person who killed the deceased: at [50]-[51].

73. The trial judge identified the prejudicial effect of tendency evidence revealing criminal or disreputable acts, and the important role that directions may play in ensuring that a jury does not use the evidence in an unfair way, as evidence that the accused is a person of bad character who is therefore more likely to have committed the offence: at [45].

74. The trial judge correctly considered each tendency incident separately when deciding whether the probative value of the evidence substantially outweighed any prejudicial effect. His Honour was also correct to consider each separate in incident in the context of the other incidents.

The appellant's submissions on the admission of tendency evidence

75. The appellant submitted that the tendency evidence should not have been admitted because:

(a) The prosecution erroneously relied upon the tendency evidence to reason in a circular way; the prosecution reasoned that the appellant was prone to anger, using knives when angry, demonstrating violence when angry, when denied money for drugs and when under the influence of drugs or alcohol, the prosecution speculated that the offence contained those features and then the prosecution concluded that the appellant must be the perpetrator.

(b) The probative value of the evidence did not substantially outweigh its prejudicial effect, as required by s 101. The admission of the tendency evidence was highly prejudicial. It did little more than put the appellant's criminal record before the jury and paint the appellant as "a knife wielding maniac who was likely to have done something crazy". The Mother Incident showed the appellant to be a person of such deplorable character that he would injure his mother. The Prison Incident was prejudicial because it showed that the appellant was a prisoner at the time of the incident.

76. The first submission raises s 55 and/or s 97 considerations rather than s 101 considerations. The submission does not clearly relate to the grounds in the Notice of Appeal. We do not accept the submission. Our brief reasons are given below.

77. In relation to point (b), as to most of the tendency incidents, we do not accept that the trial judge's decision (that the probative value of the tendency evidence substantially outweighed its prejudicial effect) was plainly unreasonable or unjust. However, in relation to the Mother Incident and the Prison Incident, we consider that the evidence should have been rejected. Our reasons are given below.

Was the finding of significant probative value based on a circular argument?

10. ...the tendency evidence was used both to construct what had happened, on the basis that it was the Appellant acting in accordance with the identified tendencies, and then to establish, by virtue of the Appellant having tendencies that matched what had happened, that he was the offender.

11. Specifically, on the basis that the Appellant was prone to anger, prone to threaten or use knives when angry, prone to be violent when angry, when denied money for drugs and when under the influence of drugs or alcohol, the case was constructed such that these features were said to exist, and this was what had occurred. If this was what occurred, which could only be speculated on the basis of the tendencies, then it was the Appellant, who bore these tendencies, who was responsible. The use of the tendency, particularly going to the central use of identification of the offender, was inherently circular.

The appellant relied upon observations of Penfold J in the Leave Decision at [64].

79. The appellant's submissions assumed that the tendency evidence was designed to go directly to the issue of whether the appellant committed the particular offence on the particular day. It was not. Tendency evidence is circumstantial evidence. It is indirect evidence; it may allow an inference that the accused had a behavioural tendency at the time of the offence and that circumstance may support a finding of guilt.

80. The prosecution case was that the way in which the murder was committed (an apparently frenzied stabbing of a domestic partner with a kitchen knife) conformed to the appellant's tendency to act in such a way. In addition, in relation to tendency (e), the prosecution said that the appellant tended to become angry when not provided with money for drugs and it should be inferred that, on 27 March 2012, the appellant was without money for drugs and would have tended to become angry, giving the appellant a possible motive to kill the deceased. This possible motive was itself merely a circumstance.

81. The prosecution argued that, when all the circumstances (including both the non-tendency circumstances referred to in [28] above and the tendency circumstances) were taken together, the only rational inference was that the appellant was the perpetrator. This reasoning process is not circular.

Did the probative value of the tendency evidence substantially outweigh any prejudicial effect?

82. In the notice of appeal, the appellant did not dispute that the tendency incidents had "significant probative value" within the meaning of s 97(1)(b), i.e. they had significant capacity to inform the issue of whether the appellant was the person who murdered the deceased.

83. The appellant argued that a significant prejudicial effect attached to the tendency evidence; the sheer weight of the evidence of generalised bad character and criminal disposition might have caused the jury to reason that the appellant was "a nasty piece of work" and was therefore the sort of person who would stab his partner to death. The appellant submitted that, prompted by the tendency evidence, the jury may have returned a guilty verdict for emotional reasons.

84. On the appeal, the question is whether the outcome of the s 101(2) balancing exercise was unreasonable or plainly wrong.

85. The trial judge was entitled to conclude that, when taken together, the Skyfire Incident, the Barbecue Incident, the Former Partner Incident, the Tyres Incident and the Balcony Incident were capable of establishing that the appellant had a long-standing behavioural tendency to become "irrationally or disproportionately angry" in a domestic context, and then obtain a knife (on three occasions, the knife was obtained from the kitchen and on the other occasions it may well have been obtained from the kitchen) and use the knife to threaten or stab the victim. The incidents spanned 11 years. The Balcony Incident involved the deceased (the appellant's most recent domestic partner) and it occurred about 10 weeks before the deceased was murdered. This relatively distinctive tendency conformed to the offence. Consequently, the trial judge was entitled to conclude that the evidence had significant probative value.

86. The evidence was prejudicial in the sense that it revealed disreputable conduct by the appellant, but as the disreputable conduct was what gave the evidence its probative value, it was not unfair prejudice. Any unfair prejudice arising from misuse of the evidence (by reasoning that, if the appellant was a person of generally bad character, he was more likely to have committed the murder) could be adequately addressed by appropriate directions.

87. As part of the Royal Commission into Institutional Responses to Child Sexual Abuse, an empirical study was undertaken to examine jury reasoning in relation to tendency evidence: Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) (the study). The study found that, although conviction rates were higher in trials where tendency evidence was led, "none of the juries in the tendency evidence trial... engaged in impermissible tendency reasoning": at 136.

88. It does not follow that, because the accused had committed crimes such as assault and threaten to kill, the jury's emotive reaction might be to punish him for the much more serious offence of murder. Juries are robust and are not readily overwhelmed by disturbing evidence. In any event, the subject matter of the tendency incidents was relatively benign. The tendency incidents were not factually horrific or otherwise likely to inspire an overly emotional response. If properly instructed, it is hard to see that a jury would misuse the evidence, either by fallacious reasoning or by becoming diverted by the inflammatory content of the evidence: Festa per McHugh J at [51]. The Royal Commission study found "no evidence of emotional or illogical reasoning in any of the trials in which tendency evidence had been admitted": at 114.

89. Evidence that the appellant became angry and abusive when he could not access drugs was admitted in relation to tendencies (a) (the tendency to become quickly aroused to anger and to act violently when angered) and (e) (the tendency to become angry and violent when not provided with money for drugs). For the reasons already explained, when considered in isolation, tendency (a) did not amount to a s 97 tendency. The principal significance of the evidence was in relation to tendency (e) and the circumstance of motive. The evidence was potentially influential in relation to these matters. The appellant did not identify any particular prejudice associated with the evidence, merely complaining that, when it was taken with the other tendency evidence, there was an overwhelming volume of bad character evidence.

90. In relation to these tendency incidents, the conclusion of the trial judge was not unreasonable or plainly wrong.

91. The Mother Incident and the Prison Incident are in a different category.

92. The Mother Incident was admitted only to establish tendency (a) (a tendency to become quickly aroused to anger and to act violently when angered) which, in isolation, scarcely qualifies as a tendency to act in a "particular" way. The incident occurred eight years before the offence. It involved a punch, not a knife. We consider that this incident did not have significant probative value; it was not potentially "influential in the context of fact-finding". On the other hand, it did not have a significant prejudicial effect. At the trial, it became clear that the appellant may not have deliberately caused the injury to his mother (the injury may have been caused accidentally by a knitting needle) and the appellant's aggression may have been because he was adjusting to new medication. These factors, the age of the incident and the fact that limited anger was displayed in the incident, establish that both any probative value and the potential for prejudice were very low.

93. The evidence of the Mother Incident should have been excluded because it did not evidence a tendency to behave in a "particular" way, it lacked significant probative value and, because it lacked significant probative value, the probative value did not substantially outweigh any prejudicial effect.

94. Similarly, the prosecution lead evidence of the Prison Incident only to establish tendency (a) (a tendency to become quickly aroused to anger and to act violently when angered) which, considered in isolation, is not really a tendency to act in a "particular" way. The Prison Incident was quite different in nature from the other tendency incidents. It occurred in a prison context, not a domestic context. The grievance that provoked the appellant to strike the prison officer may have been a legitimate grievance. No knife was involved. Like the conduct the subject of the Mother Incident, the conduct was relatively benign. As to the additional prejudice associated with disclosure that the appellant was a prison inmate, the trial judge correctly identified that such prejudice could be adequately addressed by directing the jury that the appellant was in custody awaiting trial on the subject charge.

95. The evidence of the Prison Incident should have been excluded because it did not evidence a tendency to behave in a "particular" way, it lacked significant probative value and, because it lacked significant probative value, any probative value did not substantially outweigh any prejudicial effect.

96. In summary, evidence of the Mother Incident and the Prison Incident should have been excluded because it did not evidence a tendency to behave in a "particular" way and failed the s 55, s 97 and s 101 tests. The appellant has not established that the trial judge was unreasonable or plainly wrong to admit the other tendency evidence; it was well open to his Honour to conclude that the other tendency evidence was capable of establishing a s 97 tendency or tendencies that were significantly probative of a fact in issue (whether the appellant was the murderer) and that the probative value of the evidence substantially outweighed any prejudicial effect.

97. On the appeal, the appellant contended that the italicised sentence in [101] below was erroneous.

98. We agree, but we consider that the error did not result in a substantial miscarriage of justice.

99. After giving general directions and directing the jury about the evidence of motive, his Honour directed the jury about tendency evidence. First, his Honour explained the general nature of tendency evidence in the following way:

This evidence is before you because the Crown says that there is a pattern of behaviour that reveals that the accused has a tendency to act in a particular way. The Crown says that these earlier incidents reveal a pattern of behaviour on the part of the accused that reveal he had a tendency to act in particular ways.

100. Next, his Honour referred to the five tendencies upon which the prosecution relied. His Honour corrected an error in the prosecution address (the prosecutor had referred to the appellant's tendency to be attracted to knives, but this was not one of the five tendencies).

101. His Honour then referred to defence counsel's submission that the jury would give little weight to the tendency incidents because there were few similarities or parallels between those incidents and the offence. His Honour went on:

I want to make it clear that this evidence is not led by the Crown to establish that the accused stabbed Paula Conlon because of similarities between the earlier incidents and the events of the 27th of March 2012. The purpose of leading this evidence is to establish that the accused had certain tendencies as at the date of the murder of Paula Conlon. You will readily understand that it is not necessary that these earlier events have any striking similarity to the events of the 27th of March 2012 before they may establish that the accused had one or more of the tendencies alleged by the Crown. You should not ask yourself whether there are similarities between these earlier incidents and the events of the 27th of March. The question you should ask yourself is whether you are satisfied that the accused, as at the 27th of March, had any of the tendencies alleged by the Crown. It is not necessary that each incident had features demonstrating or being capable of demonstrating all of the alleged tendencies. A particular incident may have features capable of demonstrating only one alleged tendency or it may have features capable of demonstrating more than one.

(Emphasis added)

102. The trial judge took the jury through the eight tendency incidents. His Honour directed the jury that, before it could rely upon the circumstance of a tendency, the jury would first have to be satisfied beyond reasonable doubt that one or more of the tendency incidents occurred. Second, the jury would have to be satisfied beyond reasonable doubt that the evidence proved a relevant tendency. His Honour repeatedly referred to the need for proof beyond reasonable doubt.

103. The second italicised passage was not entirely inaccurate. The trial judge was pointing out that the key issue was not whether the tendency incidents were similar (let alone, strikingly similar) to the offence incident, but whether and to what extent there was conformity between the tendency and the offending conduct. His Honour was saying that tendency incidents were only evidence of relevant tendencies. As the reference to "striking similarity" shows, the trial judge was emphasising that the tendency incidents were admitted to support tendency, not coincidence. Consequently, the relevant comparison was not a direct comparison of the similarities between the tendency incidents and the offence incident, but a consideration of whether the tendency that was established by the tendency evidence conformed to what was independently known about the offence incident.

104. However, it was wrong to suggest that the jury should not compare the tendency incidents with the offence incident for the purpose of identifying similarities. That is because tendencies can only be divined and explained by tendency incidents. Comparison of tendency incidents with the offence incident enables a jury to decide how closely the tendency/s established by the tendency evidence conform/s with the offence, i.e. for the purpose of deciding what weight to attach to the tendencies.

105. To the extent that the direction was somewhat inaccurate, we note that it was given by way of elaboration of the preceding statement that "it is not necessary that these earlier events have any striking similarity to the events of 27 March 2012 before they may establish that the accused had one or more of the tendencies alleged". That statement was completely accurate. Further, in the sentence that followed the somewhat inaccurate statement, the trial judge posed the correct question: whether the jury was satisfied that, at the time of the offence, the appellant had any of the alleged tendencies. A related and valid point that the trial judge repeatedly made was that the jury should not look at each tendency incident in isolation to determine whether it showed a relevant tendency, but should look at the incidents as a whole.

106. The trial judge gave otherwise unimpeachable directions about tendency, both in his Honour's opening remarks and in his Honour's final directions.

107. It is arguable that the trial judge's directions about tendency evidence were overly favourable to the defence. His Honour directed the jury that the prosecution must prove the relevant tendency incidents beyond reasonable doubt before they could be used to support the existence of the asserted tendency. In addition, the trial judge directed the jury that any tendency must be proved beyond reasonable doubt. These directions followed the standard direction in the New South Wales Judicial Commission, Criminal Trials Courts Bench Book, vol 1 (Update 52) [4-227] (the Bench Book). But, as the Bench Book authors point out at [4-225], it is doubtful that it is necessary to prove an asserted tendency beyond reasonable doubt (at least in relation to cases other than child sexual assault cases, in relation to which see HML v The Queen [2008] HCA 16; 235 CLR 334). However, this point was taken neither at the trial nor on the appeal and it is merely noted in passing.

108. As we have identified errors in relation to the admission of evidence and in the summing up, it is necessary to consider whether the errors could have led to a substantial miscarriage of justice.

109. The erroneous admission of evidence about the Mother Incident and the Prison Incident was inconsequential and could not have prejudiced the accused in any significant way. The lack of probative value attaching to the evidence was patent. Any prejudicial effect was minimal.

110. The somewhat inaccurate direction in the summing up is one line in an otherwise exemplary summing up. It could not have diverted the jury from the task of working out whether the appellant had the alleged tendencies and, if so, the weight that should be attached to that circumstantial evidence.

111. We are satisfied that, when considered both individually and in combination, the errors have not resulted in a substantial miscarriage of justice in the sense that the errors deprived the appellant of a chance of acquittal that was fairly open to him: Fillippou v The Queen [2015] HCA 29; 256 CLR 47.

112. The appeal against conviction should be dismissed.

113. Since we have prepared these reasons, we have had the advantage of reading in draft what Wigney J has written about the tendency evidence in this case. We agree with his Honour's additional remarks.

Vojneski v The Queen [2016] ACTCA 57

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Vojneski v The Queen [2016] ACTCA 57 (10 November 2016)

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