SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2022 0138	

DARRYL POOLE (A PSEUDONYM)	Applicant	
		
v		
		
THE KING	Respondent	
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JUDGES:	NIALL AND T FORREST JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 December 2022	
DATE OF JUDGMENT:	22 December 2022	
MEDIUM NEUTRAL CITATION:	[2022] VSCA 287	
JUDGMENT APPEALED FROM:	DPP v [Poole] (County Court of Victoria, Judge Cannon, 1 December 2021)	
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CRIMINAL LAW – Interlocutory appeal – Common assault – Rape – Making a Threat to Kill – Making a Threat to Inflict Serious Injury – Causing Injury Recklessly – Three complainants – Evidence of three complainants joined in single indictment – Whether indictment should be severed – Whether evidence of each complainant is cross-admissible on tendency basis – Leave to appeal refused.

Evidence Act 2008; Criminal Procedure Act 2009, referred to. 

House v The King (1936) 55 CLR 499; Papaskomas v R (1999) 196 CLR 297; Festa v R (2001) 208 CLR 593; R v Dickman (2017) 261 CLR 601; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (2019) 266 CLR 58; Dempsey (a pseudonym) v The Queen [2019] VSCA 224, referred to.
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Counsel	
Applicants:		Tom Danos and Heather Anderson 	
Respondent:		Abilene Singh 	
	
Solicitors	
Applicants:		Docherty Legal 	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions 	

NIALL JA
T FORREST JA:
Background 
1	The applicant was presented in the County Court at Melbourne on an indictment containing 17 charges. The following table sets out the shorthand version of those charges and, where appropriate, the identity of the alleged victim. 
	Charge 		Offence 		Victim		Date 	
	1		Common assault		PL		1 November 2017 – 31 December 2017	
	2		Making threat to inflict serious injury 		PL		19 August 2019 – 20 August 2019 	
	3		Rape		PL		19 August 2019 – 20 August 2019	
	4		Rape		PL		19 August 2019 – 20 August 2019	
	5		Unlawful imprisonment 		PL		19 August 2019 – 20 August 2019	
	6		Common assault		HD		1 January 2020 – 31 January 2020	
	7		Common assault		HD		1 January 2020 – 31 January 2020	
	8		Common assault		HD		1 January 2020 – 31 January 2020	
	9		Common assault		HD		1 January 2020 – 31 January 2020	
	10		Possession of a firearm while a prohibited person		N/A		1 January 2020 – 31 January 2020	
	11		Possession of a firearm while a prohibited person		N/A		28 February 2020	
	12		Rape		HD		28 February 2020	
	13		Possession of a firearm while a prohibited person		N/A		1 March 2020	
	14		Common assault		TB		4 March 2020	
	15		Causing injury recklessly		TB		4 March 2020	
	16		Making threat to kill		PL		1 February 2020 – 9 March 2020	
	17		Possession of a firearm while a prohibited person		N/A		1 February 2020 – 9 March 2020	
2	Preliminary argument took place in November 2021. The majority of the charges concerned offences allegedly committed against three female complainants: PL, HD and TB. The prosecutor sought to rely on tendency reasoning pursuant to s 97(1) of the Evidence Act 2008 (‘the Act’), and contended that the evidence as it concerned each individual complainant was cross‑admissible in the charges that concerned the other two complainants on a tendency basis. The applicant, then represented by different counsel, argued that the impugned evidence of each individual complainant was inadmissible in the charges concerning the other two, and that the indictment ought to be severed to confine any trial to charges that concerned an individual complainant. 
3	The applicant was successful in persuading the judge to sever the firearms charges (Charges 10, 11, 13 and 17) on the basis that the prosecution would need to prove that he was a ‘prohibited person’ with the associated introduction of evidence that would be highly prejudicial to the remaining charges. 
4	The applicant’s then counsel advised the trial judge by email on 1 December 2021 that the applicant would not be seeking to appeal the ruling. Accordingly at that stage no application to the trial judge was made under s 295 of the Criminal Procedure Act 2009 (‘the CPA’) for leave to certify under sub‑s (3). 
5	On 21 September 2022, the applicant, represented by different counsel, sought and received certification under s 295(3)(b) of the CPA ‘on the ground that cross‑admissibility of the tendency evidence in this case is intertwined with the question of severance, such that, if there is no cross admissibility on this basis, then severance would almost certainly follow…’.
6	On 26 September 2022 the applicant gave notice of an application for leave to appeal against an interlocutory decision. This was nearly 10 months after her Honour’s impugned ruling. The grounds of the appeal are expressed as follows:
(1)	That the learned Judge erred in ruling evidence cross‑admissible between each complainant.
(2)	That the learned Judge erred in ruling that the case as it related to each complainant should be severed one from the other.
(a) 	In particular that Her Honour did not separately consider the issue of whether the charges were properly joined in the first place. 
(b)	That it was ‘implicit’ (per Her Honour’s comments in the certification hearing) that the argument for severance failed when she considered that the tendency evidence was cross‑admissible between each complainant. 
7	On this application counsel for the Director of Public Prosecutions opposed the application for an extension of time in which to seek leave to appeal against the interlocutory decision, and also advised the Court that the Director had determined that it would not persist with the joinder of the TB charges and would be filing over a fresh trial indictment that was confined to the charges concerning the complainants PL and HD. 
8	This advice altered the landscape of this application, and much of the written cases, directed as they were to the joinder of charges concerning all three complainants, can be set aside. Although, upon a strict view, this proceeding proposes an appeal from her Honour’s ‘three complainant ruling’, it seems to us to be of practical assistance to the parties to proceed to consider whether the proposed two complainant trial was appropriately joined on the basis of tendency reasoning. In short compass we indicated to the parties: 
(a)	That if there was merit in the application for leave to appeal the proposed joinder of the PL and HD charges in the one indictment relying on cross‑admissible tendency reasoning, then we would grant leave out of time to make that application. 
(b)	The merits of the application would focus on whether tendency reasoning was cross‑admissible as between the PL and HD charges. 
(c)	That, given the change in the respondent’s position, it was inappropriate to consider the application from a House principles perspective, and, in the circumstances we would consider afresh the tendency reasoning issue and the related joinder issue. 
9	Ground 2 was not pressed in oral submissions and it is unnecessary to consider it. Counsel for the applicant on this application did not draw the appeal grounds. 
10	In a ‘tendency notice’ prepared under s 97(1)(a) of the Act, the prosecution sought to rely on tendencies of the accused to act in a particular way, namely: 
(a)	A tendency to be spontaneously violent towards females he knows (‘the first tendency’).
(b)	A tendency of using weapons such as firearms, baseball bats, axes or dumbbells to engage in violence towards females he knows (‘the second tendency’). 
11	The evidence relied upon to establish these tendencies was set out in the notice, which we shall reproduce below. We shall include only the evidence relevant to the two remaining complainants in the applicant’s trial. 
Substance of Evidence Relied Upon to Support Tendency 	Features of Evidence Establishing the Tendency 	
Date: Between 1 November 2017 to 31 December 2017. 
Place: Echuca 
Substance of Evidence: The accused punched PL to the face. The accused then dragged PL to the kitchen continuously punching her. The accused then picked up an axe with a yellow handle. 
Charge: Charge 1 – Common Assault	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows. 	
Date: Between 19 August 2019 to 20 August 2019 
Place: Echuca 
Substance of Evidence: Once PL arrived at the accused’s home and sat down on a couch, the accused’s demeanour immediately changed, and he told PL to “get the fuck in the room”. 
The accused taunted PL and said that “I’ll hang you up” whilst holding up an extension cord in the shape of a noose. 
Charge: Charge 2 – Threat to Inflict Serious Injury 	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows.	
Date: Between 19 August 2019 and 
20 August 2019 
Place: Echuca 
Substance of Evidence: The accused 
penetrated PL’s vagina by inserting his fingers into PL’s vagina and throughout the incident intermittently penetrated PL without her consent by inserting his penis into her vagina. Throughout this incident, the accused was periodically reinforcing that he would smash her head in with a metal dumb bell if PL did not let the accused continue. 
Charge: Charge 3 (Rape) and Charge 4 (Rape)	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows.	
Date: Between 1 January 2020 to 31 January 2020. 
Place: Echuca 
Substance of Evidence: The accused without warning punched HD twice to the right side of her face and then threw a frozen drink over her, punched her twice again. 
Charge: Charge 6 – Common Assault	- That the accused has a tendency to be spontaneously violent towards females he knows. 
	
Date: Between 1 January 2020 to 31 January 2020 
Place: Echuca 
Substance of Evidence: The accused without warning used a jet lighter to direct a flame onto HD’s foot causing momentary excruciating pain. 
Charge: Charge 8 – Common Assault	- That the accused has a tendency to be spontaneously violent towards females he knows. 
	
Date: Between 1 January 2020 to 31 January 2020 
Place: Echuca 
Substance of Evidence: The accused had possession of a shotgun and pointed it directly at HD’s face terrifying her immediately. The accused then pulled the trigger and HD heard the firing mechanism click. 
Charge: Charge 9 – Common Law Assault.	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows.	
Date: 28 February 2020 
Place: Kanyapella 
Substance of Evidence: After the accused had told HD to remove all of her clothing, the accused made her sit on his lap facing in his direction whilst he sat in the middle of the rear back seat still clothed. The accused’s shotgun was in the vehicle loaded which HD observed. The accused penetrated HD without her consent by inserting his penis inside her vagina. During this incident, the shotgun was in HD’s presence loaded. 
Charge: Charge 12 – Rape	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows.	
Date: Between 1 February 2020 to 9 March 2020 
Place: Echuca 
Substance of Evidence: The accused and PL were communicating via Snapchat video call and during this communication the accused brandished what PL observed was a shotgun. 
During the call the accused told PL that he was going to shoot PL and then he was going to shoot himself.
Charge: Charge 13 – Making a Threat to Kill	- That the accused has a tendency to be spontaneously violent towards females he knows. 
- That the accused has a tendency to use weapons to engage in violence and/or as a means of threatening females he knows.	
Evidentiary Summary 
12	It is necessary to summarize the allegations in more detail than is contained in the notice. 
PL – Incident 1 
13	PL was in a relationship with the applicant, perhaps intermittently, over a number of years. They have two children together, now aged 4 and 2. On an occasion between 1 November 2017 and 31 December 2017 PL attended at the applicant’s house apparently to make arrangements for the return of her caravan. At this time PL and the applicant were not cohabiting. She sat in the lounge room and talked with the applicant. 
	‘[Darryl] just punched me straight in the face, out of nowhere. He hit the side of my face, but I don’t remember which side it was. It bruised the side of my face and eye, and my nose bled all night from it. I was actually choking on blood all night from it…He dragged me into the kitchen by my hair and repeatedly punched me in the head. There was a BBQ gas bottle in there…He turned it on so there was a flame and told me that he was going to burn me. As [Darryl] pulled on the bottle, the plastic cord thing broke off the bottle and stopped the flame…There was blood everywhere on the floor. [Darryl] had completely lost it. Shortly after this, [Darryl] picked up a big axe with a yellow handle and told me to get in the shower. I thought he was going to hit me with it and kill me. I was fully clothed. I nearly dropped down in there because he punched me in head so many times. I seriously lost count…He turned the water on fully cold.’ (Charge 1 – Common Assault). 
PL – Incidents 2 and 3
14	The second incident alleged in the tendency notice is alleged to have occurred nearly two years later, on either 19 or 20 August 2019. At this stage PL and the applicant were living apart. Relevantly PL’s statement sets out the following circumstances:
	‘[Darryl] rang me and told me that he is going to kill himself, and that if I don’t believe him, I would believe him after his dad cuts him down in the morning. I tried to call him back, but he didn’t answer.’ 
	‘I jumped in the car and drove to [Darryl’s] …I knocked on the front door, [Darryl] opened the door. He was standing there in a pair of shorts and no top. He gave me a really big hug and told me that he loves me. I told him I loved him too, but it has to stop, that it’s all too unhealthy.’ 
	‘He told me to close the door and come in for a minute because it was cold. I walked into the loungeroom, his Father was lying on the couch. I felt like his Dad was pretending to be asleep on the couch. [Darryl] told me to sit down on the couch, which I did. He was fine one second, and then suddenly he turned mental.’ 
	‘[Darryl] was talking to me nicely to begin with. As soon as I sat down on the couch, [Darryl] turned around and picked up a white electrical extension lead from the floor and turned back around. The lead was a few meters long. He was fine one second, and then suddenly he turned mental.’ 
	‘He said, “get the fuck in the room”. I remember my heart sunk. His Dad said, “just be nice to each other”.’ 
	‘I went into the room. [Darryl] accused me of sleeping with a guy called Brendan. I have never slept with Brendan.’ 
	‘[Darryl] said “I’ll hang you up” while holding the extension cord, and putting it in the shape of a noose, like he was going to put it around my neck. [Darryl] was aggressive…I thought he was going to kill me.’ (Charge 2 – Threat to Inflict Serious Injury).
	‘[Darryl] took my car keys from me, he snatched them out of my hand. I don’t know what he did with them, I just know that I couldn’t see them.’ 
	‘He suddenly stopped and told me to get my clothes off. At the time I was wearing a black adidas jumper, black adidas shoes and a pair of black leggings.’ 
	‘He said “take your clothes off or I’ll smash your head in with these weights”. He was motioning to a dumbbell on the ground with weights on either side I believed him, I thought he was really going to do it. I was trying to work out how I could talk myself out of the room, but nothing worked.’ 
	‘I took my clothes off. I didn’t want to but knew that [Darryl] was going to bash me if [I] didn’t do what he said. He was saying “I know you’ve slept with someone” while he was looking at my clothes. I said “I haven’t done anything [Darryl]”.’ 
	‘Before I took my clothes off, I said, “not again” and he just said “yeah again.” I kept telling him that I needed to leave but he said no.’ 
	‘He then stuck his fingers deep into my vagina and when he pulled them out he said, “That’s blow, that’s blow”, and wiped his fingers on my black leggings on the floor. I was profusely telling him over and over that I hadn’t slept with anyone else. He just said, “well, what’s this?”’ (Charge 3 – Rape).
	‘He spat on my face and called me a whore, and then licked his spit off my face and did it again a few times. He started getting really weird then and said, “You’re not allowed to have sex with anyone else, unless I tell you to” and “do you think it’s weird that I’m so jealous, but that I want someone else to fuck you?”’
	‘Basically, he just started having sex with me then by putting his penis into my vagina. He didn’t wear a condom. But he would start and stop. He was still threatening to smash my head in with the weights if I didn’t let him. He kept telling me this throughout the night, that he was going to smash my head in with the weights if I didn’t let him. I was lying on the bed, he was constantly spitting on my face and licking it off while he was doing it. He was on top of me for the whole time. It was the same position for the whole incident.’ 
	‘Throughout the whole incident, he kept telling me that he wanted me to do a drug test. He made me get up and go to the bathroom and gave me a jar to piss in, but my nerves were so shot that I couldn’t. [Darryl] kept asking me why I couldn’t go to the toilet, I don’t remember what I said.’ 
	‘[Darryl] kept having sex with me on and off throughout the whole night. He only ejaculated the once at the end, when he ejaculated inside of me. When he finally finished at around 4 AM in the morning, he let me leave and gave me my car keys back. I was telling him through the whole duration of this that I had to go home, that I had to go home and check on [our son].’
	‘I did not want to have sex with [Darryl], I only didn’t physically try to fight him because he was mental, and I knew he would hurt me if I tried. I only went over to his house because I thought he was going to kill himself, not to have sex with him.’ (Charge 4 – Rape).
	‘After he finished having sex with me, he started to act normal again, telling me that he loved me, telling me that he knew nothing happened between me and Brendan, and that he was just jealous. He told me that I can go home now and check on our son.’ 
15	The final PL incident relied on in the tendency notice is said to have occurred between 1 February 2020 and 9 March 2020. We shall again quote from PL’s statement:
	‘I was video chatting with [Darryl] via Snap Chat video call. He was holding his gun, it has a short‑curved handle, the gun looked wooden and has silver on it. The bits you pull back are silver. It’s a double barrel. I assume it’s a shotgun. During the video call he said he was going to shoot me and threated to shoot himself.’ 
	‘When he threatened me, he said that he was going to shoot me and kill himself.’ 
	‘I screenshotted the chat, which shows the gun. I have given this to Police.’ (Charge 16 – Making a Threat to Kill).
HD – Incident 1 
16	In January 2020 HD had known the applicant for about 3 years. From October 2019 they commenced ‘hanging out together’. The applicant asked HD to withdraw money using a bankcard in the name of PL’s brother. This request was made at the applicant’s house after HD had stayed the night. HD went to the bank with a friend and between them they discovered the account was empty. She was delayed a while in returning to the applicant’s house. 
	‘Next minute, [Darryl] came into the house…I was in the shed, out the back of the house. I passed the bank card to [Darryl] and said “sorry, I just stopped here for a second, I was coming to your house”. I looked down and all of a sudden, I copped the biggest punch in the face from [Darryl]. It dazed me, I didn’t know what to do. I was seeing stars and everything was ringing in my head. [Darryl] then punched me again to the face with a closed fist, and it nearly knocked me out. It wasn’t just a slap, it was a full, closed fist punch. It was full force and hit me both times on the right cheek bone. [Darryl] threw his frozen raspberry drink on me, and then hit me another few times in the head which was much softer than before.” 
	‘He said, “you’re a fucking dumb cunt, I told you to get the money out, not Corey”. I said Corey got it out because I was feeling really sick. [Darryl] said, “I don’t give a fuck, if I tell you to do something you do it, you dumb dog”. [Darryl] picked up a piece of wood and said, “you want to be smart you dog?”’ 
	‘It took about two weeks for the swelling on my face to go down.’ (Charge 6 – Common Assault).
HD – Incident 2 
17	A week or two after the first incident, HD was travelling with the applicant in his car. HD was playing with a phone charger and asked the applicant if he thought it would hurt if somebody was whipped with the charger. It is alleged that the applicant replied, ‘Let’s find out’ and began whipping HD across her thighs with the charger. It is further alleged that the applicant whipped HD’s arm when she tried to stop him (Charge 7 – Common Assault). 
18	It should be noted that this incident was not included in the original notice. It was added orally in discussion before the judge, and is included in her Honour’s careful decision. 
HD – Incident 3 
19	On a separate occasion in about January 2020 HD alleges that she was lying on a couch in the lounge room of the applicant’s house.
	‘As I [was] lying there, [Darryl] out of nowhere started burning the bottom of my foot with a jet that he had. I was in excruciating pain, he just thought it was funny as fuck. It was on the heal [sic] of my right foot.’ (Charge 8 – Common Assault).
HD – Incident 4 
20	At around the same time (January 2020) while HD was at the applicant’s house she went out to her car to retrieve something . She walked back into the lounge room. 
	‘[Darryl] put his gun in my face and pulled the trigger. I heard it click but I didn’t flinch.’
	‘[Darryl] looked me and laughed and said “this is how I know we’re friends, you didn’t even flinch”… I said “fucking hell mate, how was I supposed to know it wasn’t loaded.”’ (Charge 9 – Common Assault).
HD – Incident 5
21	On about 28 February 2020, in the early hours of the morning the applicant took the complainant for a drive. He retrieved a double barrelled shotgun hidden in bushland foliage near the river. He loaded the gun in the presence of HD. The applicant said, ‘I think if anyone got killed out here, I don’t reckon they would be found.’ They drove to a secluded spot. The headlights of a car came into sight. The applicant said, ‘I hope that car comes over so I can shoot them.’ The applicant started touching HD’s neck; she noticed he was touching his apparently erect penis through his shorts. He said, ‘Get in the back seat, I will give you a proper massage.’ HD said, ‘No, I don’t need one’, the applicant said, ‘Get in the back.’ Relevantly, her police statement then reads:
	‘…he had his hand on the gun which was sitting half on my leg on the centre console, with the barrel pointing towards my leg. I thought he was going to shoot me in the leg if I didn’t do what he was saying.’
	‘I was really scared, I didn’t know what to do so just climbed over into the backseat over the centre console, so he didn’t shoot me. I sat in the middle of the back seat. [Darryl] got out of the car and then got back in through the back door and sat on the driver’s side back seat. I asked if he can put the radio on, but he just laughed and asked why. I said “because this is awkward, I have a partner”. He just kept laughing.’
	‘[Darryl] told me to take my jumper off. [Darryl] knows I don’t normally wear a T‑shirt under my jumper. I didn’t do it straight away, so [Darryl] physically pulled my jumper off, over my head. It was a grey adidas jumper. The adidas writing was pink. [Darryl] put my clothes on the floor behind the passenger seat. [Darryl] then undid my bra, which was white with gold, pink and silver on it, and took it off.’ 
	‘I was crying but was trying to stop so he didn’t see and get angry. I had tears on my face though. I just shut my eyes at this point…The gun was still across the centre console of the car. He kept asking me if I liked the gun, but I wasn’t answering.’ 
	‘He told me to stand up, which I did, as much as you can in the back seat of the car, and he pulled my pants and underwear down and pulled them off completely. I was wearing black leggings. [Darryl] then sat on the middle seat of the car and made me get on top of him. I was completely naked at this point, and was sitting on his lap, facing him. [Darryl] was still dressed at this point. [Darryl] was just touching me, on my hips and everywhere else, groping my breasts with his hand.’ 
	‘[Darryl] said “why are you so tense”, but I didn’t answer. [Darryl] grabbed me by my hips and laid me down in the back seat, so my head was at the passenger side. I just said “this is going to make things awkward, you [sic] that ey?”. [Darryl] just laughed, and then started taking all his clothes off. [Darryl] was completely naked.’
	‘[Darryl] grabbed my left leg really hard and pushed it across my body and then started having sex with me, by putting his penis into my vagina. I was lying on my back, but with my left leg pushed up over my body. [Darryl] was having sex with me from this position, with his groin pushing into the underside of my left thigh while he was putting his dick in me.’ 
	‘He was slapping me on the leg and arse while this was happening which was hurting.’
	‘My eyes were closed and my head was facing the other way, [Darryl] kept telling me to look at him. He kept grabbing me by the throat, not really hard but saying “do you like that?”. I didn’t answer him.’ 
	‘[Darryl] kept having sex with me for about five minutes. He did not wear a condom. I knew he wasn’t so I asked him to not cum inside of me. He finished by pulled [sic] out of me and ejaculated all over my leg.’ 
	‘[Darryl] grabbed a shammy rag that was in his car and wiped me down. It was a green and yellow shammy rag, he put it in the front passenger side door pocket.’ 
	‘I did not want to have sex with [Darryl], and only did so because I actually thought he was going to kill me if I didn’t. …I thought that I didn’t have a choice.’ (Charge 12 – Rape).
The Judge’s Reasons 
22	Given the change in the evidence relied upon for tendency purposes, there is little utility in analysing the judge’s reasons. It is sufficient to say that the judge concluded that the tendency evidence, including the now jettisoned TB’s evidence, demonstrated a tendency for the applicant to be spontaneously violent towards females he knows and a tendency to use weapons to engage in violence towards those females. 
23	The judge correctly observed that the central issue in respect of each offence on the then indictment was whether the incident being considered actually occurred. The truthfulness and reliability of each of the complainants would be the central issue at trial. The judge determined that the evidence set out in the tendency notice had significant probative value as tendency evidence (s 97(1) of the Act) and that this probative value substantially outweighed any prejudicial effect it may have had to the applicant (s 101 of the Act). 
Legal Principles 
24	Section 97(1) of the Act provides, inter alia, that evidence of ‘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 to act in a particular way, unless the court thinks that the evidence, by itself or in combination with other evidence to be adduced will have a significant probative value’. 
25	Section 101 of the Act overlays a further requirement that, before any tendency evidence is adduced in a criminal proceeding an assessment must be made that the ‘probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.’
26	In Hughes, the evaluation of ‘significant probative value’ was stated to involve consideration of two separate but related matters:
(a)	the extent to which the evidence supports the tendency; and 
(b)	the extent to which the tendency makes more likely the facts constituting the charged offence.
27	The High Court in Bauer explained that in multiple complainant sexual cases, such as the present, where a question arises as to whether evidence that an accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, there must be some feature of or about the offending which links the two together:
	In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Discussion 
28	Part 3.6 of the Act, considered globally, invites the following questions: 
(a)	Does the evidence support the tendency sought to be relied upon?
(b)	Is the tendency capable of affecting the assessment of the probability of a fact in issue? Put another way is the evidence relevant within the meaning of s 55 of the Act? 
(c)	Does the tendency evidence have significant probative value in respect of that fact in issue? 
(d)	Does the probative value of the tendency evidence substantially outweigh any prejudicial effect it may have on the accused? 
(a)	Does the evidence support the tendency sought to be relied upon?
29	It will be recalled the respondent seeks to rely on two separate but related tendencies: 
(a)	A tendency to be spontaneously violent towards females he knows.
(b)	A tendency of using weapons such as firearms, baseball bats, axes or dumbbells to engage in violence towards females he knows. 
30	We consider that the following evidence taken at its highest supports the existence of one, or other, or both the above tendencies. Our reasons necessarily involve some repetition of the evidence. 
PL Incident 1 (1 November 2017 to 31 December 2017) 
•	The applicant punched PL to the face with significant enough force to bruise the side of her face and cause her to bleed all night. The punch was ‘out of nowhere’ (Charge 1 – Common Assault).
•	The applicant then dragged PL by the hair to the kitchen and continuously punched her (Charge 1 – Common Assault).
•	The applicant then brandished an axe with a yellow handle and told PL to get in the shower and threatened to kill her with the axe (Charge 1 – Common Assault). 
•	This evidence supports both tendencies alleged. 
PL Incidents 2 and 3 (19 or 20 August 2019) 
•	PL went to the applicant’s house after he threatened to kill himself. ‘He was fine one second and then turned mental.’ He threatened her with a white electrical extension cord and told her to ‘get the fuck in the room.’ 
•	PL was (wrongly) accused of sleeping with another man. The applicant held the extension cord like a noose. He said, ‘I’ll hang you up.’ He told her to get her clothes off ‘or he would smash her head in’ with a set of nearby dumbbell weights. PL complied. 
•	The applicant then stuck his fingers deep into PL’s vagina (Charge 1 – Rape). He removed them and said, ‘That’s blow’. He then spat in PL’s face and told her she couldn’t have sex with anyone else unless ‘I tell you to.’ 
•	The applicant then started having penile vaginal sex with PL while continuing to threaten her with the dumbbell weights. He constantly spat on her face.
•	PL didn’t resist physically ‘because he was mental and [she] knew she would hurt [her] if [she] tried’ (Charge 4 – Rape). 
•	This evidence supports both tendencies alleged. 
PL Incident 4 (1 February 2020 to 31 March 2020) 
•	PL was video chatting with the applicant. He was holding a gun – probably a double‑barrelled shotgun. He threatened to shoot PL and them himself. 
•	This evidence supports the second tendency.
HD Incident 1 (1 January 2020 to 31 January 2020) 
•	The applicant without warning punched HD in the face, threw a frozen drink over her and then punched her twice more (Charge 6 – Common Assault). 
•	This evidence supports both tendencies alleged. 
HD Incident 2 
•	The applicant whipped HD with a phone charger while they were driving in his car. 
•	This evidence supports the second tendency.
HD Incident 3 (1 January 2020 to 31 January 2020)
•	Without warning the applicant used a jet lighter to burn HD’s foot (Charge 8 – Common Assault).
•	This evidence supports the second tendency.
HD Incident 4
•	The applicant pointed a shotgun directly at HD’s face and pulled the trigger causing the firing mechanism to ‘click’. The gun was apparently unloaded (Charge 9 – Common Assault).
•	This evidence supports both tendencies. 
HD Incident 5 (1 February 2020 to 9 March 2020) 
•	The applicant and HD were driving in the applicant’s car. The applicant retrieved and loaded a shotgun in HD’s presence. It was positioned in the console area of the car pointing towards the back seat. They were in a remote area. The applicant said to HD that ‘I think if anyone got killed out here, I don’t reckon they would be found.’ The applicant directed HD to remove her clothing. The applicant sat in the middle of the back seat and directed HD to sit on his lap, whereupon he penetrated her vagina with his penis. The loaded shotgun was present throughout this incident and at times the barrel was touching HD. HD did not consent to being sexually penetrated. She thought she would be killed if she did not have sex with the applicant (Charge 12 – Rape).
•	This evidence supports both tendencies alleged.
31	The tendencies relied upon — to behave spontaneously violently towards females the applicant knows and to use weapons such a firearms, axes and dumbbells to engage in violence towards females — are amply supported by the evidence. Our examination of it reveals that the applicant often ‘out of the blue’ would behave violently to female friends and this violence was frequently accompanied by either the use of a weapon, or the threat of such use. The applicant has at times of violence used a shotgun (loaded and unloaded), an extension cord, a phone charger, a gas lighter, a barbecue gas cylinder and cord, gymnasium dumbbells, a frozen drink and an axe to threaten or actually inflict violence. 
(b)	Do the tendencies support the probability of a fact in issue?; and 
(c)	Does the tendency evidence have significant probative value in respect of that fact in issue? 
32	It must be borne steadily in mind that the applicant’s proposed defence to all charges is that the offending simply did not occur. Thus all material facts are in issue. The trial judge, correctly, stated: ‘[t]herefore the truthfulness and reliability of each of the complainants will be the underlying issue at trial.’ Notwithstanding that this statement was made about a three‑complainant indictment, it remains apt for this now two‑complainant indictment. In our view the impugned ‘tendency’ evidence goes well beyond demonstrating a mere predisposition towards violence. The applicant’s tendency, and the evidence that supports it, towards spontaneous violent eruptions and his use of weapons against the female objects of his violence reveals, in our view, quite an unusual characteristic or pattern to his conduct. It follows that the tendencies relied upon, if proved, support the probability of every fact in issue which involves the use of spontaneous violence or a preparedness to use or threaten to use a weapon to inflict violence. Both tendencies demonstrated are therefore relevant to every charge on the revised indictment. In the language of the High Court in Bauer, we consider there to be some common features of or about the offending which may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true. 
33	Further we view the tendency evidence relied upon as having significant probative value in the proposed joint trial. The pattern of spontaneous eruptions of physical violence, as alleged, makes it more probable that the applicant behaved in a spontaneously physically violent manner. The pattern of use of a foreign object either as a weapon, or as a threatened weapon, makes it more probable that the applicant carried out acts of this nature. One act of rape in circumstances of the threat of violence using a nearby weapon (whether a dumbbell or a loaded shotgun) supports the probability of the applicant carrying out another act of a similar nature. 
34	We consider the probative value of the tendency evidence is very high, when viewed against the backdrop of a blanket denial of any offending whatsoever. The evidence strongly supports the identified tendencies, and for the above reasons makes it substantially more likely that the facts constituting the charged offences actually occurred. 
(d)	Does the probative value of the tendency evidence substantially outweigh any prejudicial effect it may have on the accused?
35	The prejudicial effect on the accused is confined to ‘unfair prejudice’; it does not concern itself with the prejudice to an applicant’s case that naturally arises from powerfully probative evidence. The High Court in R v Dickman said:
	Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence.
While this statement was made in the context of ‘unfair prejudice’ as the expression concerns s 137 of the Act it has equal application to the term ‘prejudicial effect’ in s 101. 
36	In Hughes the High Court said: 
	In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
37	As we have said we consider that the probative value of the tendency evidence, if cross‑admissible, between the charges concerning both complainants, is very high. It offers strong support for the two tendencies alleged and is capable of demonstrating that it is it substantially more likely that the facts constituting the charged offences actually occurred. 
38	We consider that the prejudicial effect is largely confined to the jury reasoning from a propensity standpoint, rather than through legitimate tendency reasoning. Should the jury reason (for example) that ‘we are satisfied that the applicant is a person of poor character who, as a consequence, is more likely to have committed some or all of these offences’, such reasoning would be impermissible and would cause the trial to miscarry. The potential for such reasoning can be minimised by careful directions on the process of legitimate tendency reasoning and by strong directions on the need to avoid impermissible discreditable conduct reasoning. 
39	It follows that we are of the view:
(a)	that the tendency evidence will, by itself, and in combination with other evidence in the joint trial, have significant probative value; and 
(b)	the probative value of that evidence substantially outweighs any prejudicial effect it may have on the applicant. 
(c)	The charges on the indictment are appropriately joined. 
Conclusion
40	The application for an extension of time in which to file the application for leave to appeal will be refused.