Casey v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0031

DAMIEN JOHN CASEY	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	21 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 257
JUDGMENT APPEALED FROM:	DPP v Casey (Unreported, County Court of Victoria, Judge Gucciardo, 31 January 2013)

---

CRIMINAL LAW – Application to appeal against conviction – Whether trial judge erred in admitting tendency evidence – Whether properly construed as evidence of relationship and context – Whether trial judge failed to adequately direct jury on the use of tendency evidence – Leave granted – Appeal dismissed.
CRIMINAL LAW – Application to appeal against sentence – Whether manifestly excessive – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Marich Legal
For the Respondent	Mr B F Kissane	Department of Public Prosecutions

ASHLEY JA:

I agree with Neave JA, whose reasons in draft I have had the opportunity of considering, that the applicant should have leave to appeal against his conviction on the charges upon which he was convicted on indictment C1208282.4, but that the appeal should be dismissed. If I had been sentencing the applicant on charge 15 on that indictment, I would have imposed a considerably shorter sentence. But that is not the test of manifest excess. Considered in accordance with authority, I agree with Neave JA that leave to appeal against sentence on that charge should be refused.

With respect to the conviction application, Neave JA has very fully set out the relevant circumstances. I need not add to what her Honour has written in that connection. I should explain, however, why I agree in her Honour’s conclusion that leave to appeal should be refused.

First, there appears to be a regrettable tendency for the Crown to misuse the tendency evidence provisions of the Evidence Act2008. In this case, as in others, the alleged tendency was so widely described as to be near-meaningless. Ultimately, and correctly, the Crown recognised that what was said to be tendency evidence did not meet that description at all.

Second, it is the fact that the complainant gave evidence of many uncharged acts. She was not precluded from doing so. It is difficult to imagine that she could have given a coherent account of the happening of the charged acts without doing so.

Third, once that evidence had been admitted, the jury had to understand to what uses it could and could not be put. The permitted uses, evidently, were as to relationship and context.

Fourth, whilst I accept that the impugned passages in the prosecutor’s closing address to which Neave JA refers at [72], [74], [76], [79], [81] and [83] can, in some instances at least, be explained by their particular relevance to specific charges, I consider that they had the overall effect of inviting the jury to use both charged and uncharged acts indiscriminately in reasoning to a conclusion of guilt of the charged offences; that they invited propensity reasoning. Absent very clear relevant warnings by the judge, I consider that these parts of the prosecutor’s address might well have produced irremediable prejudice to the applicant.

Fifth, the judge, both in his warning to the jury in the course of the evidence – see the reasons of Neave JA at [105] – and in his charge – see the reasons of Neave JA at [107] – did give lengthy remedial warnings. His Honour correctly spelt out the permissible and impermissible uses of the evidence now under consideration. His admonitions as to the uses to which that evidence could and could not be put were clearly stated.

As a counsel of perfection, it would have been better had the trial judge said something specific about the unsatisfactory aspects of the prosecutor’s address. But what his Honour said in his charge, which underlined his instruction given in the course of the evidence, was in my opinion adequate to repair such misleading impression as the address was susceptible of conveying.

I turn to the sentence imposed by his Honour on the charge of rape, which was constituted by the applicant continuing to penetrate the complainant in breach of s 38(2)(b) of the Crimes Act1958.

The judge was bound to sentence the applicant on the most favourable factual basis consistent with the jury’s verdict. That was the account of events given by the applicant in his record of interview – that the complainant had initially consented to intercourse, but had withdrawn consent very shortly before he ejaculated.

In terms, the judge did sentence the applicant on that basis.

Consistent with that factual basis, the jury must be taken not to have accepted the Crown’s argument that the complainant had, in effect, been terrorised into consent. Any such consent would not have been consent in the eyes of the law.

No complaint could be, or was raised that his Honour did not fully consider all the circumstances bearing upon sentence, not only in respect of the individual offences of which the applicant had been convicted, but also upon the question of totality and the appropriate overall non-parole period which should be set. It is unnecessary to recite what his Honour said about those matters.

Focusing upon the rape, the account which the applicant gave can be summarised in two passages:

… It was like, more or less, told me to stop and it, you know, I was at – I knew I was close to blowin’ so I kept goin’ until I blew. Simple.

and
As she, sorta, said, ‘stop’ I was as good as done.

In his sentencing remarks, the judge said this:

The jury opted upon a conviction for the scenario described by you in your record of interview. That is, that the sexual intercourse had begun consensually but at some point ‘B’ clearly indicated and communicated to you that she no longer consented and wanted you to stop. You did not. Fully knowing ‘B’ had clearly withdrawn her consent, you kept going until you ejaculated inside her.[1]

and
As to the rape, you said she said to stop and you did not ‘until I blew’.[2]

[1]DPP v Casey [2014] VCC (31 January 2013) [15].

[2]Ibid [16].

Later, in the context of the applicant’s lack of remorse, the judge said this:

Your position on the rape, it must be acknowledged, is an admission, a confession which probably and magnanimously led the jury to convict you on the alternate rape count.[3]

[3]Ibid [35].

Rape in all its forms is a very serious offence. The particular form of rape of which the applicant was found guilty is subject to the same maximum penalty – 25 years’ imprisonment – as other forms of rape. Nonetheless, against that background, I think it could not be said that this was a serious example of the offence. The continued penetration of the complainant by the applicant was, it should be inferred from the applicant’s account, for a matter of seconds. No doubt the applicant knew that the complainant had withdrawn her consent to intercourse. It was that awareness which, by the applicant continuing to the point of ejaculation, constituted the offence. It does appear to me, however, that in characterising the circumstances of this particular offence in the ways set out at [14]-[16] above, the judge did not fully recognise what must have been the very short duration of the continued penetration. This may explain the sentence that his Honour imposed on that charge, which I consider was stern.

Nonetheless, having regard to all the circumstances of the offence, the offender, and such material as there was showing the impact of the offence upon the complainant, I am not prepared to conclude that the sentence was beyond the permissible range. That is so, although, with respect, I have some reservations about what Neave JA says in the third sentence at [118], which appears to me to raise a matter for evidence.

NEAVE JA:

On 17 September 2012, the applicant was found guilty by a County Court jury of 9 charges on indictment C1208282.4. He was convicted of common law assault (charge 1), intentionally causing injury (charges 2, 3, 5, 6, 9 and 12), rape arising out of the continuation of penetration without consent, contrary to s 38(2)(b) of the Crimes Act 1958 (‘the Crimes Act’) (charge 15), and stalking contrary to s 21A of the Crimes Act (charge 16). The victim of these offences was his former de facto partner.

The jury found him not guilty of making a threat to kill (charge 4), of three charges of causing injury intentionally (charges 8, 10 and 11), of recklessly causing injury as an alternative to one of the intentionally causing injury charges (charge 13) and of rape contrary to s 38(1) of the Crimes Act.

The applicant pleaded guilty to charges on Indictment C1208282.1 of theft of electricity (charge 1), cultivation of a narcotic plant (charge 2) and possession of a drug of dependence (charge 3). On Indictment C1208282.3, he pleaded guilty to charges of criminal damage (charge 1), stalking his former partner (charge 2), stalking his partner’s boyfriend (charge 3) and stalking his former partner’s mother (charge 4).

The applicant was sentenced for the offences in the three indictments on 31 January 2013. The charges and sentences imposed arising out of the three indictments are set out in the table below.

Indictment C1208282.4

Charge No	Offence		Maximum	Sentence	Cumulation
1.	Assault contrary to common law.		5 years	9 months	3 months
2.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	12 months	4 months
3.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	9 months	3 months
4.	Making a threat to kill contrary to s 20 of the Crimes Act.		10 years	Not guilty	N/A
5.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	12 months	4 months
6.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	9 months	3 months
7.	Assault contrary to common law.		5 years	Not guilty	N/A
8.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	Not guilty	N/A
9.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	12 months	4 months
10.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	Not guilty	N/A
11.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	Not guilty	N/A
12.	Causing injury intentionally contrary to s 18 of the Crimes Act.		10 years	12 months	4 months
13.	Causing injury recklessly contrary to s 18 of the Crimes Act.		5 years	Not guilty	N/A
14.	Rape contrary to s 38(1) of the Crimes Act.		25 years	Not guilty	N/A
15.	Rape contrary to s 38(2)(b) of the Crimes Act.		25 years	4 years	Base
16.	Stalking contrary to s 21A of the Crimes Act.		10 years	9 months	3 months
Total effective sentence		6 years and 4 months imprisonment with a non-parole period of 5 years.

Indictment C1208282.1 (‘Drugs Indictment’)

Charge No	Offence		Maximum	Sentence	Cumulation
1.	Theft of electricity contrary to s 74 of the Crimes Act.		10 years	10 months	Base
2.	Cultivation of a narcotic plant contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981.		15 years	9 months	2 months
3.	Possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.		5 years	3 months	-
Total effective sentence		12 months (with four (4) months to be served cumulatively on the TES imposed for the Trial Indictment)

Indictment C1208282.3 (‘Stalking Indictment’)

Charge No	Offence		Maximum	Sentence	Cumulation
1.	Criminal damage contrary to s 197(1) of the Crimes Act.		10 years	3 months	-
2.	Stalking contrary to s 21A of the Crimes Act.		10 years	6 months	Base
3.	Stalking contrary to s 21A of the Crimes Act.		10 years	6 months	1 month
4.	Stalking contrary to s 21A of the Crimes Act.		10 years	6 months	1 month
Total effective sentence		8 months (with four (4) months to be served cumulatively on the TES imposed for the Trial Indictment)

The overall total effective sentence imposed on the applicant was 7 years’ imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal against his convictions arising from indictment C1208282.4 and against the sentences imposed in the three indictments. Leave to appeal against conviction and sentence was refused by Coghlan JA. The applicant now elects to have both his applications for leave to appeal reconsidered, although his application for leave to appeal against sentence now relates only to the sentence imposed on charge 15 in indictment C1208282.4.

The facts

Indictment C1208282.4 (assault, injury and rape charges)

The applicant and the complainant (‘PEB’)[4] became involved in a relationship in December 2007. They began living together at a property in Kilmore in January 2008. The complainant alleged that by about mid-January 2008 the applicant began to be violent towards her.
[4]The complainant’s name has been anonymised.

The complainant said that, on an occasion which occurred before the events covered by charge 1, they were having an argument and the applicant picked a sauce bottle to throw across the room when he elbowed the complainant in the head, causing a lump on her forehead. He then apologised.

About a month later, they had an argument about cigarettes. The witness said that she was sure that this occurred on 11 February 2008, as she had kept a diary describing this event. The applicant slapped her on the face several times. He stood on the back of her neck while she was on the floor. He then held her down, forced her mouth open and sprayed ‘Ajax’ cleaner in her mouth, saying he was going to ‘clean her mouth out’. She was terrified, tried to scream and was worried that she would be poisoned. She spat the Ajax out onto the floor and tried to crawl away whilst he stood over her, yelling. He told her that he was sorry, that he didn’t mean it and that it would never happen again (charge 1 – assault). During this incident, the applicant smashed crockery and glasses and a glass door.

On 6 June 2008, the applicant and the complainant had an argument in which he slapped her on the face repeatedly, stood on the back of her neck and held her around the throat, making it difficult for her to breathe (charge 2 – causing injury intentionally).

During this assault, the applicant smashed a bowl into the complainant’s face, which hurt her and gave her a black eye (charge 3 – causing injury intentionally).

The complainant alleged that, while this assault was occurring, the applicant dragged her around the house and to the car and that he placed her in the bathtub, held a knife at her throat and threatened to kill her (charge 4 – threat to kill). He was acquitted of that offence.

In his sentencing remarks, the trial judge said that the jury must have had a reasonable doubt as to whether the threat to kill was made at that time, but that he was satisfied that ‘the bath incident was true in the context in which [the complainant] gave it and I am satisfied of that fact beyond reasonable doubt’.[5]
[5]DPP v Casey [2014] VCC (31 January 2013) [5].

In July 2008, while the complainant and the applicant were arguing, the applicant slapped her on the face many times, and broke her rear top left molar. A dentist later confirmed that her tooth was broken and that her cheeks and throat were very sore and swollen (charge 5 – causing injury intentionally). On the same occasion, the applicant smashed the complainant’s head on the floor and kicked her four times in the kidneys. There was blood in her urine after this incident. (There was no charge relating to the kicking.) After this incident, the complainant called her father and asked him to collect her and help her remove her belongings because she was scared of the accused. Her father went to Kilmore to help her. While he was there, the applicant came out of the bedroom and apologised for hitting the complainant, saying that he had been angry.

After this incident, the applicant and the complainant moved in with her parents in Yarraville. On the morning of her 21st birthday, on 4 August 2008, they were at home alone. The applicant was in bed. The complainant had the television on and was receiving birthday calls from her family. The applicant yelled at her for making too much noise and keeping him awake. He picked up a can of Coke and threw it at her head. It hit her on the right temple and bruised her temple and ear (charge 6 – causing injury intentionally).

She started crying and asked him to leave. He screamed at her. She told him that she was going to call the police. He took the phone from her and threw it against a wall. She ran downstairs and phoned her mother. Whilst she was on the phone the complainant’s mother could hear the applicant yelling at the complainant and threatening her. There was no charge arising out of these threats.

The applicant went outside and the complainant locked the doors. Her mother came home within half an hour. The applicant had punched in the two front windows, smashing them. This was the basis of charge 1 on the Stalking Indictment. The complainant’s parents allowed the applicant to sleep in his car in the driveway of their house. He constantly revved the engine and sounded the car horn. The judge was satisfied beyond reasonable doubt that the behavior was ‘violent, frightening and threatening.’[6] The police were called, and the complainant’s father paid for the applicant to stay in a caravan park for a week. The complainant was taken to her grandmother’s house for safety.
[6]Ibid [8].

On about 10 August 2008, the applicant moved into a flat in Nagambie. The complainant went to visit him to say goodbye and to give him the dog that they had bought together. It was alleged that the applicant and complainant began to argue and that the applicant assaulted the complainant by pushing the leg of a metal chair into her head (charge 7 – common law assault). The applicant was acquitted of this offence. The applicant then said he was sorry and asked her to stay the night, which she did.

On about 14 September 2008, the applicant moved into the Half Moon Caravan Park in Brooklyn. The complainant said that she spent most nights with him, so would regard herself as living with him there. It was alleged at trial that during this time, the applicant picked the complainant up by the throat and tried to strangle her (charge 8 – causing jury intentionally). The jury found the applicant not guilty of this offence.

In late 2008, on another occasion at the Half Moon Caravan Park, the applicant dragged the complainant by her hair in the gravel outside the caravan and up the steps into the van. The applicant pushed the complainant in the face, causing her nose to bleed, and pushed her in the mouth, cutting her lip. She drove away to the bowling club where she worked. Her sister took her home and her family took photographs of her injuries. The complainant gave evidence about this offence at the trial, but it was not included in the indictment, as this testimony was unexpected by the prosecution.

In March 2009, at the caravan park, the complainant and the applicant had an argument. He pushed her onto the bed. When she resisted he pushed her legs above her right shoulder and she felt her ribs crack. When she tried to get up he grabbed the back of her head and pushed it into the window frame. She received a cut to her eye and bruising (charge 9 – causing injury intentionally).

She ran to her car and drove to the home of a friend, who looked at her and took her to Williamstown Hospital when he was told what had happened to the complainant. The complainant also told the hospital staff and her friend’s girlfriend what had happened, but refused to speak to police.

The complainant’s mother was contacted. The complainant’s mother took the complainant home and photographed her injuries the next day.

In early-2009, the applicant and the complainant were on a camping holiday at Echuca. The complainant was driving to the caravan park when they started having an argument about their dog. It was alleged that the applicant slammed the complainant’s head into the centre of the steering wheel and proceeded to push her head into the driver’s side window (charge 10 – causing injury intentionally). The applicant was found not guilty of this offence.

The applicant and the complainant moved into a property in Melton together in April or May 2009.

In mid-2010, the applicant and the complainant had an argument. It was alleged at trial that the applicant hit the complainant in the face with the palm of his hand, striking her nose and making it bleed (charge 11 – causing injury intentionally). The applicant was found not guilty of this offence.

Approximately two to three days later, the complainant and the applicant were lying in bed. After arguing with the complainant, the applicant put his foot on her back and kicked her out of bed and she fell to the floor. She told him that she was leaving him and gathered up her belongings. As she was walking down the hall, the applicant pushed her up against the wall. She fell to the floor. She got back up, walked into the lounge room and tried to continue to collect her things. The applicant picked her up under the chin, by the throat. He threw her to the floor. The applicant picked up a dog lead and whipped her with the metal end of the lead on her thighs and calves between four and eight times. She felt intense pain. He kicked her in the kidney, rib and stomach area (charge 12 – causing injury intentionally).

She got up and he started smoking a bong in the lounge room. She loaded her car with her belongings. She went back into the house to collect her television. The applicant refused to allow her to take it and pushed her out of the door. She fell backwards, banging her wrist, resulting in a bruise and cut to her right wrist. The applicant smashed other personal items she left in the house.

The complainant drove home to her parent’s house, where her brother took photographs of her injuries. The following day, she went to the Sunshine Hospital for treatment.

The complainant said that, after being whipped with the dog lead, she ended her relationship with the applicant and remained living at her parents’ house. She told him the relationship was over, but he continually attempted to contact her on her mobile phone and work phone, and also visited her work address. During this time he called her every day, variously apologising to her or threatening or abusing her depending upon his mood. She asked him to stop calling but he did not do so. The complainant entered into a new relationship with another man (her ‘boyfriend’) on 2 September 2009.

On 10 December 2010, the complainant was driving home from her boyfriend’s house at approximately 10.30am. She saw the applicant’s vehicle parked outside her parents’ house, while he was standing in the middle of the road. She braked and reversed her car away from him in panic. He continued to follow her car. She braked and locked her car door. He put his hand through the driver’s side triangular window – which had no glass – and tried to grab the keys out of the ignition. She tried to keep the keys and her finger got stuck in the metal loop of the key ring. Her finger started bleeding (charge 13 – causing injury recklessly). The applicant was found not guilty of the offence of causing injury recklessly. He pulled the keys from her grasp, yelling at her that she was a slut and a whore. Bystanders from a nearby park intervened and he got in his truck and left. She went inside her parents’ house. Ten minutes later the applicant returned and commenced to shout abuse at her outside the house. She asked her brother to call the police and told the applicant that the police were on the way. He left and the police attended a short time later. The applicant called her on her mobile phone and offered to give her car keys back. She hung up on him. When he continued to call, the police answered the phone. They later advised the complainant to get an intervention order, and she took steps to do so.

During the period from August to December 2010, the applicant drove up and down the road outside the complainant’s parent’s home early in the morning honking his car horn, telephoned the complainant frequently and left threatening and harassing messages. On one occasion he went into the backyard and removed her dog (charge 16 – stalking).

On Sunday 19 December 2010, the complainant went to the applicant’s home in Melton to collect the television and retrieve the dog, prior to the intervention order being finalised. Her evidence was that they agreed that she would enter through the unlocked back door after work at approximately midnight, and that she would sleep there and speak to him in the morning. The applicant woke up as soon as she arrived and asked her to sit on the bed next to him. The complainant said that she told him she did not want to, but did so when he became agitated and aggressive. It was alleged at trial that the applicant then raped the complainant. The jury acquitted the applicant of sexually penetrating the complainant without her consent, being aware that she was not consenting or might not be consenting (charge 14 – rape contrary to s 38(1) of the Crimes Act), but convicted him of continuing to penetrate her after she had withdrawn her consent (charge 15 – rape contrary to s 38(2)(b) of the Crimes Act).

The complainant applied for an intervention order on 21 December 2010, and an order prohibiting the applicant from contacting her was made on 4 January 2011.

Indictment C1208282.1 (‘drug charges’) and Indictment C1208282.3 (‘stalking charges’)

It is unnecessary to describe these offences, as the applicant‘s application for leave to appeal against sentence now relates only to the sentence imposed on charge 15 in Indictment C1208282.4.

The conviction appeal – Indictment C1208282.4
Proposed grounds

In the application heard by Coghlan JA, the applicant relied on three proposed grounds of appeal against conviction. He now confines his application for leave to appeal on two of those grounds, which are that:

1. The Learned Trial Judge erred in admitting tendency evidence.
2. The Learned Trial Judge failed to adequately direct the jury as to purported tendency evidence

It is convenient to consider these grounds together.

Background

On 29 February 2012, the Crown served notice of an intention to rely on tendency evidence, for the purposes of proving facts in issue relevant to the charged offences. The evidence which the Crown initially sought to call as tendency evidence included:

·Material in depositions and diary entries made by the complainant describing occasions on which the applicant verbally abused the complainant, threatened to leave her and inflicted injury on her;
·Evidence of the complainant’s father that, when he went to collect the complainant from Kilmore, the applicant had apologised for hitting her;
·Evidence of the complainant’s mother, father and brother about the applicant verbally abusing the complainant and breaking windows in their house;
·Medical evidence of injuries suffered by the applicant;
·Evidence of the content of abusive text messages sent by the applicant;
·The applicant’s admission in his record of interview that ‘there were definitely assaults’ of the complainant.

Some of the evidence identified in the Tendency Notice related to assaults and abuse that occurred at the same time as acts that were the subject of charges. Others related to abuse and assaults that occurred on other occasions. The main uncharged act was the incident in which the applicant picked up a sauce bottle to throw across the room and then elbowed the complainant in the forehead. In her diary, the complainant said she thought the elbowing was an accident and that the applicant had apologised. The notice also referred to threats and abuse which had occurred during the course of the relationship.

The evidence described in the Tendency Notice was said to prove the tendency of the applicant to have a particular state of mind and to act in a particular way, namely:

(a) That he intended that PEB would fear him and/or fear that he would carry out his threats;

(b) That he acted aggressively and violently in the course of arguments of confrontations with PEB and other members of her family.

The notice was open to the criticism made in Velkovski v The Queen[7] because it conflated the tendency evidence on which the Crown sought to rely with the conclusion to be drawn from that evidence. It may be noted that it also referred to both acts which were the subject of charges and acts which were not.[8] However because of the purposes for which the evidence was ultimately relied on at trial, it is unnecessary to discuss defects in the notice.
[7][2014] VSCA 121.
[8]Ibid [22].

At a pre-trial hearing, there was discussion between the trial judge and counsel as to the manner in which the evidence identified in the Tendency Notice might be relied upon as evidence to support particular charges; for example, the charge of rape. The judge expressed the view that some of this evidence could be regarded simply as background material relevant to the nature of the relationship between the applicant and the complainant, whilst other evidence might be relied upon for tendency purposes. For reasons discussed below, his Honour was clearly correct in that view.

On 15 August 2012, the judge ruled that the matters specified in the Tendency Notice[9] were admissible for ‘the purposes ascribed to them’ by the Tendency Notice, except for three specified matters.[10] His Honour also ruled that a statement made by the applicant when interviewed by the police that while they were having sex the complainant had told him to stop but ‘I knew I was close to blowing so I kept going until I blew’ was admissible, in support of charge 15.
[9]1, 4 and 7.
[10]Ruling T 51. The excluded matters (1, 4 and 7) concerned three entries in the complainant’s diary. In the first of these she described an incident in which the applicant abused her and threatened to smash her face into the ground. In the second she described an incident in which the applicant was angry with the complainant and threatened to leave her. In the third she said that after they had reconciled following charge 6 the applicant yelled at her during an argument.

In discussion following his Honour’s ruling, the judge said that evidence of charged acts could not be used for tendency purposes, and that he would give the usual separate consideration warning.

Part-way through the trial, the Crown abandoned its reliance on tendency evidence. The prosecutor said that:

the prosecution is of the view that given the way the evidence evolved, the number of charges et cetera and the background of the relationship, that the evidence of matters that are not the subject of charges such as abuse, vocalisation, the messages, texts or the screaming in the street et cetera, should be categorised as context indicating the nature of the relationship, background material for the charges, rather than as tendency. And prosecution will not be seeking for the matters of - I think it was the second incident at the Half Moon Caravan Park either to be as tendency rather than context Your Honour. So that may assist in clarifying or striking that one off the list Your Honour.

The prosecutor’s concession was entirely appropriate. It would have been impossible for a jury to assess whether the applicant was guilty of the offences with which he was charged without having an understanding of the nature of his relationship with the complainant and the context in which the alleged acts occurred. Moreover defence counsel relied on the relationship between the complainant and the applicant as the basis for an attack on her credibility.

The prosecutor’s decision not to rely on one of the assaults in the caravan park was presumably because the first time that the complainant referred to that assault was during the trial. Two other attacks at the Half Moon Caravan Park were the subject of charges 9 and 10.

Counsel for the applicant accepted the change in the Crown’s position, saying that ‘whatever we‘ve heard about incidents other than the charged acts is simply put before the jury as evidence of context.’ However, he said that he would be arguing that the evidence ‘did not establish the sorts of context from which particular charged acts can be considered’ and that there was a dispute between the Crown and the defence as to ‘the true relationship between these people.’

Closing addresses

At the trial, the defence case was that the complainant’s evidence of being beaten and stalked by the accused was not credible. The complainant was cross-examined about the fact that she had not gone to the police or told her parents about some of the alleged attacks on her until after the relationship had finally ended. It was argued that if she had been assaulted as she had alleged, she would not have returned to the applicant or tried to get him to come back to her after they had separated. Her complaint about the alleged rape was motivated by her desire to conceal from her new boyfriend the fact that she had voluntarily had sex with the applicant.

It was submitted that the applicant’s phone calls and text messages to the complainant were explained by their previous relationship, and that the complainant had also contacted the applicant on many occasions.

In his closing address, defence counsel described the complainant’s evidence relating to the particular charges in considerable detail, using them as the basis for a vigorous attack on the complainant’s credibility. Defence counsel said that the applicant and the complainant had been in a tempestuous relationship for two and a half years, and had fought physically throughout their relationship. The complainant had admitted to initiating some of the fights and to hitting the applicant in the testicles on one occasion, though she claimed that this was done in self‑defence, when the applicant was attacking her.

The complainant was said to have ‘given as good as she got’ in the context of the relationship. Defence counsel argued that the failure to charge the applicant for some of the acts described by the complainant cast doubt on her account of the charged acts.

In her closing address, the prosecutor first described the evidence relied upon to establish each of the charges in the indictment. In the course of doing so she referred to the complainant’s evidence that she had not left the applicant because he had said he was sorry and did not want the complainant to leave him after he had assaulted her on the occasion of charge 1, and that the applicant had been remorseful after he had assaulted her on other occasions. She also referred to a violent incident when the couple were living in the caravan park, which was not the subject of a charge.

When the prosecutor described the evidence relating to the stalking charge (charge 16), which allegedly occurred between 1 August 2010 and 28 December 2010, she told the jury that the applicant was not being tried for using bad language but for making threats which would frighten the complainant. She said that:

[PEB] was frightened and fearful for the safety of her family. You heard very clearly I say over the messages that he left, and they were levelled and were threatening. He's not just a boyfriend or an ex-boyfriend who is a bit annoyed and rings up to abuse people. It's much more than that. If you look at the whole way the relationship has evolved, the few slaps and then it's building up, as I said, like a piece of music, it's building up to the crescendo, and there's this little background going on, the text messages, the ringing at all hours of the night, the turning up on occasion tooting the horn, the threats to do so.
Why would someone do that you might ask? I say he wanted to make [PEB] do what he wanted. He wanted to annoy, he wanted to threaten, he wanted to scare her. Because, as [PEB] said in her diary, I'd rather get a slap or two essentially than lose him. And then you recall what she's saying in the background. She's saying I felt responsible. I brought him into this family, it was my problem to deal with, and unfortunately there were unfortunate consequences with that.

I describe that passage in the closing address as ‘the first crescendo analogy’.

A little later in her address, but still apparently when discussing the stalking charge, the prosecutor said that the jury had seen:

pieces of a stained glass…You’ve got the central piece of glass, the central colour…would be [PEB], then you have the other pieces that might fit in different colours….
And the picture they make, and it can never be the total picture. A picture is the escalating violence, it's the escalating, it's gathering momentum, and Mr Casey felt he could get away with it, and he did for a long time. Because, as [PEB] said in her diary, I’d rather get a slap or two essentially than lose him. And then you recall what she’s saying in the background. She’s saying I felt responsible. I brought him into this family, it was my problem to deal with, and unfortunately there were unfortunate consequences with that.

This passage is described below as the ‘stained glass window’ analogy.

Later in her discussion of the applicant’s phone calls, the prosecutor took the jury to a call on 27 November 2010 in which the applicant allegedly threatened to cut up the complainant’s dog – and to the content of some other calls. Counsel then said that these were threatening messages and that:

if anyone's getting those sorts of messages, and given the background and the behaviour of Mr Casey in the past, not only in their family home on her 21st birthday but in the driveway that night and then later on this day, this is 10 December. Given the background, I say to you that [PEB] would have been at least nervous, but I say fearful of, fearful of what he was going to do.

The prosecutor described threats and abuse in other text messages and then said she would move on to a totally different topic.

The prosecutor then said that the central issue was whether Mr Casey had committed the various charged offences. She referred to defence counsel’s attack on the complainant’s credibility, and said that:

you might have some doubts about her credit. And I say to you it’s not just her evidence that is important in this case. It’s perhaps a bit also like building a house. You have the foundation. That’s [PEB]’s evidence. You might believe all of it, you might believe some of it, et cetera.

The prosecutor referred to the evidence of hospital attendance and medical reports. She referred to the defence case that the complainant had fabricated the charge of rape because she did not want her new boyfriend to know that she had visited the applicant. Having told the jury that the onus was on the Crown to prove these offences, she used a second crescendo analogy in the context of the rape charge. She said:

The other thing is that this issue or the issue of the physical assaults, the cause injury and the assaults and the reckless cause injury, it's not as if they were recent. It's not as if they were invented for a preservation of the relationship. They've been going on for some time and, as I said to you earlier, it's like a piece of music getting louder and louder and culminating in an extreme act of violence. As [PEB] said, the lowest thing you can do to someone is to rape them.

I describe this as ’the second crescendo analogy’.

In response to the defence case that the complainant’s account of events was improbable, the prosecutor made remarks about the victim’s evidence as to why she had not complained earlier about the applicant’s violence, observing that:

Now domestic violence behaviour like this goes across many cultures, age groups, … this girl's 20, this girl was about 20, 22, 23 when these things were happening. All those factors that you need to take into consideration. Still fond of him, …
She didn't want to go to the police, she didn't want the photos taken, and then it was bit by piece the music started to get louder, it started to get louder. There is the dog leash incident and she leaves, then there is the rape, she goes to court and finally cracks. Much will probably be made of what she told [her new boyfriend],[11] and I won't really go into that in a huge amount of detail and quote bits and pieces out of the transcript, I think it was clear enough. She was worried and perhaps he might have gone and fixed up Damien Casey up [sic], she was worried about what was going to happen. She was wanting to keep everyone separate, she wanted to protect her family. She told him something that was not true but it did not take very long for her to confess or to come clean or to tell him the whole story. If you look at it in the picture of who she was and what was going on, and what had gone on, it makes sense.

[11]In closing, defence counsel relied on the fact that the complainant had told her new boyfriend that the rape had occurred at 9:00am and not at 1:00am to avoid explaining to her new boyfriend why she was at the applicant’s house at 1:00am. This was relied on by defence counsel to cast doubt on her allegation of rape.

This was ‘the third crescendo analogy’.

In conclusion, the prosecutor said:

there have been a lot of matters that you have had to listen to, a lot of charges. They are not things that are taken lightly and you will no doubt take your job very seriously, but bring with it your common sense. You have [PEB]'s evidence, as the foundation. You have what people observed, family members, they're the walls of the house. You have the photographs of injuries - as the roof. And then you have the cement, and I say out of Mr Casey's own mouth come words that confirm the way he viewed her and the way he treated her. ‘The fuck'n thing came in the door’, there was slaps, as if it was nothing, ladies and gentlemen. And then his version of the rape which I say, the prosecution says, is a version of what happened. The prosecution says was Charge 14, well this is the one to accept, but if you don't then out of his own mouth is the admission to Charge 15. Ladies and gentlemen, this is not a young lady who's cooked this up just so she doesn't use [sic] [her new boyfriend], this is a woman, a young woman, who has been repeatedly had her personal safety and integrity damaged, and in each of those charges she's given clear, precise, unexaggerated evidence about.

She then went on to discuss the evidence which supported particular charges.

I call this last reference ‘the cement analogy’.

The application for discharge of the jury

After the closing address, defence counsel complained that the prosecutor’s closing address had invited the jury to use the evidence to infer that the applicant had a tendency to be violent. He sought an application for discharge of the jury. The trial judge ruled that the jury should not be discharged, rejecting the claim that the Crown had reneged on its undertaking to rely on the evidence only for relationship and context purposes. His Honour said:

[Counsel] for the defence has made an application for the jury to be discharged. He submitted that the prosecutor in her final address addressed relationship evidence in an impermissible way, in a way which cannot be cured by proper directions.
Before I go to his submissions I need to say something about the nature of this evidence. I admitted evidence from [PEB] and other witnesses which was previously said by the Crown to indicate a tendency by the accused. It became apparent that such evidence as given should properly be confined as relationship evidence and that in some circumstances the evidence goes to the context of an offence or a series of charges.
Ultimately the evidence, whether given by [PEB] contained in a diary, the evidence given by her parents, the evidence of her brother, [her new boyfriend] and [her friend] was admitted on the basis that it was relevant to the jury's consideration of the issues to be raised in the case, particularly related to the state of mind of the applicant, the complainant and subject to proper direction the cogency of the evidence required its admission.
The nature of the relationship was put in issue both in the interview of the accused and in the trial itself. The evidence was not all one way in the sense that the complainant in her evidence, and through the evidence of her diary, disclosed her own behaviour. Indeed much cross-examination was directed to her mindset, her motivation, vacillation between apprehension and affection, her use of drugs, her mood swings and what she at one point felt were her responsibilities for the relationship's failings.
Evidence of the pre-existing relationship has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred, as well as that of the complainant. Such evidence can prove motive, intention or negative defences. If the evidence tends to explain the occurrence or to assist the choice between two explanations of the occurrence then it is relevant and admissible.
Relevant inferences may be drawn from such circumstantial evidence. To shut the jury off from any event throwing light on the relationship would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense, fearful, dysfunctional, inherently inconsistent relationship, on one view. Particular acts or statements occurring within that relationship are relevant to the issues arising in the trial. The probative value of this evidence lies in the improbability of witness giving accounts of happenings having the relevant degree of similarity unless the happening of the alleged events occurred.
The accused himself spoke about the relationship in terms favourable to him and contrary to the description given by the Crown witnesses. The evidence therefore can be used to understand how the accused and the complainant behaved at the times relevant to each charge and used to assist the jury to understand how these two people behaved on these occasions. Some of the evidence could establish on one view animosity, jealousy, possessiveness, hostility, lack of respect and a readiness to aggression and is therefore relevant to establishing intent and rebut claims of self-defence or even exaggeration.
[Counsel] complained that the prosecutor referred to a crescendo of incidents culminating in the rape, which was characterised as an act of violence. He is critical of submissions of the prosecutor which referred to some evidence as ‘opening a little window into how the accused treated the complainant’; complained that the prosecutor had used an emotive tone in describing the accused as showing no respect for her family, for her and her possessions.
An invitation, it was said, to look at all the evidence in a global way, that is, as I understand it, combining other acts not the subject of charges. I fail to see what the complaint in relation to that is when that's precisely how this evidence is used, and properly used. He submitted the prosecutor had in fact invited the jury to use context evidence to determine guilt. He submitted that the effect of the prosecutor's address was to say to the jury that Casey was the sort of person who acts violently in total disregard of the complainant and her family.
I do not accept that the prosecutor has characterised in her address the relationship improperly. The description of the relationship was aimed, in my view, at the assessment of the state of mind and intention of the accused and complainant, in my view the prosecutor has done no more than describe in realistic terms what the Crown contends was the nature of the relationship. Directions to the jury will instruct them as to the use of such evidence, and will deal with the issues of substitution and propensity.
In my view, the prosecutor was neither inviting propensity reasoning nor spoke inappropriately seeking to emotively inflame the jury's thinking. I do not find that she has addressed in a less than proper and robust and direct fashion on a reasoned consideration of the evidence. There is no high necessity to discharge this jury in the circumstances. The application is refused.

Counsel’s submissions on appeal
Proposed ground 1

In the written submission filed in support of Ground 1, counsel argued that although the prosecutor had abandoned reliance on uncharged acts as evidence of the applicant’s tendency to act in a violent and threatening manner, she had in fact relied on charged acts to prove that tendency. Contrary to s 97(1)(a) of the Evidence Act 2008 (‘the Act’), no notice had been given that the charged acts could be relied upon for that purpose. Further, the charged acts could not have been capable of being used as tendency evidence as they simply showed that the applicant had a violent disposition and did not show that he had a tendency to act in a particular way.

The applicant complained that the absence of a Tendency Notice relating to the charged acts made it impossible for the judge to assess whether charged acts had the ‘significant probative’ value necessary to prove facts in issue in particular charges as required by s 97(1)(b) of the Act, or whether their probative value was substantially outweighed by any prejudicial effect it might have on the applicant, as required by s 101.

In support of ground 2, the applicant submitted that the judge had not given a direction relating to the use of the tendency evidence and, in particular, had not specified what that evidence was. He also submitted that the direction given by the judge had equated relationship and context evidence.

At the hearing, the submission was put differently. The applicant contended that the complaint made in the first proposed ground of appeal was not confined to the acts which were the subject of the charges, but also applied to uncharged acts as well. He submitted that the whole tenor of the prosecution case was to persuade the jury to approach its task in a global way, without considering the evidence pertaining to particular charges. This was said to be have been particularly evident in the prosecutor’s closing address.

With the leave of the court the applicant filed a supplementary submission after the hearing to clarify that argument. This relied on the ‘stained glass window’ and ‘crescendo’ analogies invoked by the prosecutor in her closing address. It was argued that these turns of phrase had invited the jury to consider the similarities and underlying unity of the charged acts (which had not been included in the Tendency Notice) and in effect, to find that the applicant was guilty of all of these offences because his character made it likely that he had assaulted the complainant, intentionally caused her injury and had raped her by continuing to penetrate her after she withdrew her consent.

It was also submitted that references in the closing address to the contempt with which the applicant referred to the complainant in his police interview and the evidence of the abusive remarks he made to her were invitations to engage in impermissible propensity reasoning. Although the prosecutor referred to the remarks made by the applicant about the complainant in his police interview as providing ‘an insight’ or ‘little window’ into his attitude toward her, these comments were not particularised in the tendency notice. Finally, he submitted that the prosecutor’s closing remarks about ‘the cement’ provided by the applicant’s statement about how he viewed the complainant was intended to encourage the jury to consider all the charges as a whole, rather than considering them separately.

Finally, in support of proposed ground of appeal 2, it was submitted that the directions given by the judge to consider each charge separately and not to rely on propensity reasoning were insufficient to prevent the jury from relying on tendency reasoning. Counsel for the applicant submitted that:

the substitution and propensity warnings given as part of the Learned Trial Judge’s charge could not have been sufficient, in view of the deliberate and detailed manner in which the Prosecutor used the evidence to suggest the underlying unity of the charged and uncharged acts, ‘cemented’ together by the subjective tendency of the Applicant to treat the Complainant with violence and view her with contempt. The propensity warning might have been adequate in a case where the Prosecution had not openly sought to raise any inferences (about the likelihood of guilt, or ‘a picture of a particular individual’) from the context and relationship evidence. But that is what was done; it was done robustly and in a repetitive manner, and presented as a cogent process of reasoning towards guilt – not simply as a ‘view’ of, or comment about, the Applicant. The propensity warning was stated in general terms, forbidding only conclusions of ‘rank propensity’; it did not address the particular tendencies suggested by the Prosecutor, nor the impermissible manner in which the Prosecutor related them to the totality of the evidence.

The Crown submitted that the evidence identified in the tendency notice had properly been admissible as evidence of the relationship between the applicant and the respondent and the context in which the alleged acts occurred. There was nothing in the prosecutor’s closing address which invited the jury to use the evidence for tendency purposes. But in any case the judge had warned the jury against propensity reasoning and had explained the purposes for which relationship and context evidence could properly be used.

Conclusion on conviction appeal

The applicant contends that despite the Crown concession that the evidence in the tendency notice was relied on only as evidence of relationship or context, in her closing address the prosecutor sought to rely on evidence of charged and uncharged acts to show that the applicant had a general tendency to be violent. This had given rise to a substantial miscarriage of justice.

In my view some of the prosecutor’s remarks were unwise. For that reason I consider that ground 1 is reasonably arguable and would grant leave to appeal on that ground. However for the reasons set out below the ground fails. I will deal with each of the relevant passages in turn.

The prosecutor began by describing the facts relied upon in support of each separate charge and told the jury that ‘each separate bit of charge needs all the boxes ticked on the elements of them.’

The first use of a crescendo analogy related to the evidence in support of the stalking charge (charge 16). The offence of stalking requires a course of conduct. A person can only be held guilty of stalking if it is established that the offender has acted:

with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person[12]

or knows that the course of conduct in which they have engaged would be likely to cause such fear or apprehension[13] or ought to have understood that it be likely to cause such harm or arouse such apprehension[14] and it actually did have that result. Evidence of the nature of the relationship between the complainant and the applicant was relevant in proving whether he had the intention required to prove the stalking offence.

[12]Crimes Act 1958 s 21A(2)(g).

[13]Ibid s 21A(3)(a).

[14]Ibid s 21A(3)(b).

In my view the prosecutor should not have used the stained glass window analogy in this way. However, like the first use of the crescendo analogy, it was directed at the stalking charge. The same may be said of the next remarks made by the prosecutor, relied upon by the applicant, which were also relevant in establishing that the applicant’s contact with the complainant was calculated to frighten her. The fact that these remarks related to charge 16 is apparent because the prosecutor then told the jury that her previous remarks were ‘just to tie up all the stalking issues’ and that she would now move on to the other charges.

In my opinion the prosecutor’s observations about the stalking charge did not invite the jury to reason that if they accepted that the applicant had previously assaulted or injured the complainant he must also have stalked her. Rather they went to the state of mind of the applicant, when he did the various acts which were the subject of the stalking charge.

The prosecutor’s second and third use of the metaphor of music building to a crescendo is more troubling, although it must be read in the context of the defence attack on the complainant’s credibility. In those passages the prosecutor was anticipating that in his closing address defence counsel would submit that complainant had invented her evidence that she had been intentionally injured and raped by the applicant. The prosecutor alerted the jury to the complainant’s explanation of why she had stayed with the applicant and gone to see him on the occasion of the alleged rape, even though they were no longer partners.

Further, if the jury accepted that there was violence in the applicant’s relationship with the complainant, such evidence bore on the context in which the alleged rape occurred and was relevant to the elements of that offence. The prosecutor’s observations addressed the anticipated argument by the defence that she had invented the rape solely to preserve her relationship with her new boyfriend. The context in which the alleged penetration occurred was relevant in determining whether the complainant had consented to sexual penetration and to whether the applicant was aware that the complainant was not consenting or might not be consenting at that time. Without that evidence, the jury might well have found her behaviour inexplicable.

Nevertheless I would accept that there was a possible danger that some of the remarks made by the prosecutor could have been regarded by the jury as an invitation to rely on the applicant’s violence and abusive behaviour in order to reason that he was guilty of the offences with which he had been charged, particularly the rape.

In my view however, any danger that the jury would improperly rely on tendency reasoning was overcome by the warnings given by the trial judge. I now turn to ground 2.

Ground 2

Both during the trial and in his charge, the judge warned the jury not to rely on the context and relationship evidence in determining whether any particular offence had occurred. He also gave the jury a separate consideration warning, and warned them against propensity reasoning.

During the complainant’s evidence, she referred to an incident which occurred between the assaults covered by charges 8 and 9. At that point, his Honour gave the jury the following direction in relation to uncharged acts.

The prosecution has led and probably will led [sic] other evidence during the course of this witness's evidence which, although they are allegations of acts which may involve assaults or the like in terms of what the complainant says the accused did, but which are not specifically referred to the charges that are contained in the indictment.
So between, say, for example, Charge 7 - sorry, Charge 8 and 9, there was a piece of evidence from the complainant about another occasion in which there was a fight with the accused in which she said that she was effectively assaulted by the accused man. Now, that is not encompassed by any of the charges on the indictment on the charge sheet. So, legitimately, the question may be asked, ‘Well, how do we use that evidence? What does it amount to’, because I've already told you that you need to decide this case primarily on the evidence referrable to each of the charges. So you look at the evidence that's referrable to Charge 1, 2, 3, 4, and so on.

I note that in R v Yankovski,[19] a sentence of five years’ imprisonment was imposed on an offender who was convicted of rape. On at least one view, the rape took the form of continuing penetration after the complainant asked the applicant to stop. In that case, Redlich JA considered the sentence was ‘stern’, but not manifestly excessive.[20] Neither Chernov JA nor Vincent JA said that it was stern.
[19](2007) 178 A Crim R 495.
[20]Ibid 509 [43].

In my view, leave to appeal should be refused.

–––

Actions

Download as PDF Download as Word Document

Citations

Casey v The Queen [2014] VSCA 257

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Velkoski v The Queen [2014] VSCA 121

[2014] VSCA 257

21 October 2014