THE CROWN SEEKS THE COURT’S PERMISSION TO PRESENT A TENDENCY EVIDENCE TO PROVE THE VIOLENT CONDUCT OF THE ACCUSED

The Queen v Lewis [2021] NTSC 40 (6 May 2021)

The issues raised in this matter is whether evidence of two prior charged assaults by the accused against the complainant should be admitted as tendency evidence in a trial for aggravated assault and recklessly engaging in conduct giving rise to a danger of serious harm.

Facts:

The Crown’s case is that on 16 August 2018, AK said the accused came up behind her and flipped her over on the road. She said they then talked on the footpath before he flipped her again on the footpath making her hit the ground hard, that he told her he was going to kill her and then stamped his foot on her head two or three times, grabbed her by her foot and dragged her along the footpath a few metres, kicked her in her back four or five times and punched her in the ribs four or five times.

The Crown has given notice under S.97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT)(‘UEA’) of its intention to adduce tendency evidence. The Crown seeks to adduce evidence about conduct that is the subject of convictions of aggravated assault against AK and contravention of a domestic violence order relating to her.

The Crown says the proposed evidence establishes the tendency to a significant extent, and that the tendency makes the fact in issue more probable to a significant extent, essentially because a pattern of violent behavior against a domestic partner is strongly predictive of ongoing violent behavior and points to the unlikelihood of AK’s injuries having been caused by accident or by some random unidentified person.

Issue: Should the tendency evidence be admitted to prove the patern of violent behavior of the accused against AK?

Law:

• Under S.97 of the  UEA, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.

Analysis:

While the tendency evidence would, make it somewhat more likely that it was the accused who committed the charged offenses, on balance, the court does not consider that it would do so to the required significant degree.

In a criminal trial, such as this, tendency evidence is not admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.

When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.

The court considers there to be a real risk of misuse of the tendency evidence by the jury by giving the evidence more weight than it deserves. Where the only other substantial evidence in support of the Crown’s case is to be given by AK, the jury may place too much reliance on the fact that the accused has the tendencies and may reason that the accused did act on them without properly allowing for the possibility that he did not. In these circumstances, the potential prejudice to the accused is virtually impossible to address by a direction to the jury that in using the evidence for tendency reasoning, they should not give it too much, or disproportionate, weight. It seems  that the concept of not giving evidence too much weight would be a very difficult one for the jury to comprehend and follow.

Conclusion: For the above reasons, the tendency evidence specified in the Crown’s notice may not be admitted as tendency evidence under S.97 of the UEA.

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