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Supreme Court 8 July 2025

R v Sultana (No.2)

[2025] NSWSC 1097

HomicideDomestic & family violence
EVIDENCE TENDENCY EVIDENCE COINCIDENCE EVIDENCE CRIMINAL PROCEEDINGS NOTICE SIGNIFICANT PROBATIVE VALUE

Citation: R v Sultana (No.2) [2025] NSWSC 1097
Court: Supreme Court of New South Wales
Date: 8 July 2025
Judge: Garling J

Background

The accused faces a single charge of murdering Dayna Isaac on 16 January 2023 at Penrith. The accused and the deceased had been in an intimate relationship for approximately one month before her death, though the deceased had made clear to family members that she did not want a deeper relationship and had rejected the accused's attempts to move their relationship forward.

The Crown's case is circumstantial. A neighbour heard a violent argument between a male and female voice coming from the deceased's unit at around 1.10pm on the day of her death, after which the female voice fell silent. The deceased was later found lying on her bed with two cords wrapped around her neck. The post-mortem confirmed the cause of death as ligature strangulation in the context of blunt force head injury. The accused's DNA was recovered from blood swabs taken from within the apartment and from post-mortem swabs of the deceased's hands and fingernails.

Before the trial commenced, the Crown sought leave to adduce tendency and coincidence evidence based on four prior incidents involving three other women. The accused opposed admission of that evidence, and Garling J delivered this ruling resolving the dispute.

Legal Issues

  • Whether the Crown's proposed tendency evidence met the threshold of "significant probative value" required by s 97(1) of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect under s 101(2)
  • Whether a passage of approximately 12 to 14 years between the prior incidents and the charged offence rendered the tendency evidence too stale to be admissible
  • Whether the prior incidents were sufficiently similar in character to the charged offence to carry significant probative value
  • Whether the same evidence was admissible as coincidence evidence

Decision

Issue 1: The tendency alleged

The Crown framed the tendency narrowly: that the accused demonstrated a tendency to use or threaten violence towards women in whom he had a sexual interest when he perceived that his relationship with them was breaking down. The four prior incidents spanned 2011, 2012, 2016 and 2017, and involved three different women. They included kidnapping an ex-partner to discuss their relationship, breaking into a former partner's home with a knife and threatening to kill her, and deliberately ramming a former partner's car on multiple occasions. Each arose in the context of a relationship breakdown or perceived rivalry (at [35]-[55]).

Issue 2: Significant probative value and staleness

Garling J accepted that the passage of approximately 12 years (at the most) had elapsed between the earliest incidents and the charged offence. His Honour rejected the submission that this made the evidence stale. The tendency to behave violently when a relationship breaks down is not the kind of tendency liable to dissipate with time; it can only emerge when the relevant relational circumstances arise (at [82]). The central fact in issue was whether the accused murdered the deceased. Garling J held that evidence of the accused's prior conduct in closely analogous relational circumstances was capable of rationally affecting the probability of that fact in issue and carried significant probative value, whether considered alone or together with other evidence (at [75]-[83]).

Issue 3: Sufficient similarity

His Honour found that the connecting facts across all four incidents, namely the breakdown of a sexual relationship or the pursuit of an unwilling participant in such a relationship, were sufficiently similar to the accused's conduct towards the deceased to give the tendency evidence substantive probative value (at [83]). The offences did not need to be identical in nature to the charged murder.

Issue 4: Coincidence evidence

Having admitted the evidence for tendency purposes, Garling J found that the same evidence was also admissible as coincidence evidence. The four prior incidents, taken together with the charged offence, were capable of being regarded by the jury as standing against any explanation of coincidence. Appropriate jury directions as to the use of the evidence would accompany its admission (at [85]-[87]).

Orders Made

  • Objection to the admission of the tendency and coincidence evidence overruled

Key Takeaways

  • A tendency to respond with violence when a sexual relationship breaks down is not the kind of tendency liable to dissipate over time; Garling J held that a gap of up to 12 years between prior incidents and the charged offence did not render tendency evidence stale where the tendency could only manifest in particular relational circumstances (at [82]).

  • Under s 97(1) of the Evidence Act 1995 (NSW), the probative value of tendency evidence is assessed by reference to the extent to which it could rationally affect the probability of the specific fact in issue. Here, that fact was the identity of the deceased's killer, not merely the circumstances of the killing (at [76]-[77]).

  • Prior incidents do not need to involve identical offences to the charge on trial. Sufficient similarity in the underlying relational circumstances, specifically the breakdown of a sexual relationship or the pursuit of an unwilling partner, was enough to satisfy the significant probative value threshold (at [83]).

  • Where tendency evidence is admitted, the admissibility of the same evidence as coincidence evidence becomes a less complex question. The High Court's approach in TL v The King (2022) 275 CLR 83 informed the court's evaluation of how the evidence could rationally affect the probability of a fact in issue (at [78], [85]).

  • Evidence may carry significant probative value for both tendency and coincidence purposes simultaneously. Garling J admitted all four prior incidents on both bases, subject to jury directions on the permissible use of the evidence (at [73], [87]-[88]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 86(1)(b)
- Evidence Act 1995 (NSW) ss 97(1), 101(2)

Cases
- T L v The King [2022] HCA 35; (2022) 275 CLR 83