Clayton (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0071

ROBERT CLAYTON (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE, ORR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2024
DATE OF JUDGMENT:	16 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 203
JUDGMENT APPEALED FROM:	Clayton (a pseudonym) v The King (County Court of Victoria, Judge Chettle, 26 July – 2 August 2022, 23 January 2023 – 31 January 2023 and 15 March 2023)

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CRIMINAL LAW – Appeal – Conviction – Common assault – Rape – Make threat to kill – Contextual evidence – Whether complainant’s context evidence overly detailed – Whether trial judge erred by admitting evidence for context purposes to bolster credibility of complainant – Application for leave to appeal refused.

Quinn v The Queen (2018) 272 A Crim R 146; DPP v Martin (a pseudonym) (2016) 261 A Crim R 538; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; R v AH (1997) 42 NSWLR 702; Qualtieri v The Queen (2006) 171 A Crim R 463; WFS v The Queen (2011) 33 VR 406; HML v The Queen (2008) 235 CLR 334; Hollingsworth v The Queen (2021) 294 A Crim R 179; Henderson (a pseudonym) v The Queen [2017] VSCA 237; Murillo (a pseudonym) v The Queen [2020] VSCA 68, considered.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms S Clancy
Solicitors
Applicant:	McFarlane Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
ORR JA
T FORREST JA:

Introduction

The applicant faced three separate trials in the County Court.
The first trial was of charges contained on indictment K12867206.2A. Those charges were three charges of common assault[1] and one charge of rape.[2] On 24 May 2022, the applicant was acquitted by jury of all charges at the first trial.
[1]Contrary to common law.
[2]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The second trial related to indictment K12867206.2B; this indictment contained three charges of common assault[3] and one charge of rape.[4] On 2 August 2022, the applicant was found guilty of two charges of common assault and one charge of rape; he was acquitted of the other charge of common assault.
[3]Contrary to common law.
[4]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The third trial was of offences contained on indictment K12867206.2D. The charges contained on this indictment were three charges of common assault,[5] two charges of make threat to kill,[6] one charge of intentionally cause injury[7] and an alternative charge of recklessly cause injury.[8] On 31 January 2023, the applicant was acquitted of the charge of intentionally cause injury but found guilty of the remaining charges.
[5]Contrary to common law.
[6]Contrary to s 20 of the Crimes Act 1958.
[7]Contrary to s 18 of the Crimes Act 1958.
[8]Contrary to s 18 of the Crimes Act 1958.
The applicant pleaded guilty to offences contained on indictment K12867206.2E, namely, two charges of possession of a drug of dependence.[9] The applicant pleaded guilty, also, to three related summary offences. They were offences of contravening bail conditions,[10] possessing a controlled weapon[11] and possessing cartridge ammunition.[12]
[9]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[10]Contrary to s 30A of the Bail Act 1977, as amended by the Bail Amendment Act 2016.
[11]Contrary to s 6 of the Controlled Weapons Act 1990.
[12]Contrary to s 124 of the Firearms Act 1996.
A plea hearing was held on 15 March 2023.
On 5 April 2023, the applicant was sentenced as follows in respect of the second and third trial indictments:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment K12867206.2B
1	Common assault	5 years	6 months	3 months
2	Common assault	5 years	6 months	3 months
4	Rape	25 years	8 years and 6 months	Base
Indictment K12867206.2D
1	Common assault	5 years	6 months	Nil
2	Make threat to kill	10 years	9 months	3 months
3	Common assault	5 years	9 months	3 months
4	Common assault	5 years	3 months	Nil
5	Make threat to kill	10 years	1 year	Base
7	Recklessly cause injury	5 years	9 months	3 months
Total Effective Sentence:		10 years’ imprisonment[13]
Non-Parole Period:		6 years’ and 6 months imprisonment
Pre-sentence Detention Declared:		1247 days
Section 6AAA Statement:		N/A
Other Relevant Orders: Forfeiture Order

[13]One year of the sentence imposed on indictment K12867206.2D was to be served cumulatively on the sentence imposed on indictment K12867206.2B of 9 years.

In respect of the plea indictment, the applicant was sentenced to an aggregate fine of $500 for the two charges of possession of a drug of dependence and an aggregate sentence of 1 month imprisonment for the related summary charges. Pursuant to s 6AAA of the Sentencing Act 1991, but for the pleas of guilty, his Honour declared that on the plea indictment the sentence imposed would have been two months’ imprisonment.
The applicant seeks leave to appeal against his convictions sustained at the second and third trials. He does so on two proposed grounds:
(1)The trial judge erred by allowing the prosecution to lead context evidence in excessive detail, resulting in a miscarriage of justice across the course of the three trials.
(2)The trial judge erred by allowing evidence admitted for context purposes to bolster the credibility of the complainant in the third trial.
For the reasons that follow, we would refuse leave to appeal.

Overview

This appeal relates to the convictions sustained in the second and third trials. Yet, in order to assess the merits of the applicant’s arguments it is necessary to have an understanding of what occurred by way of legal argument prior to the first trial as well as a rudimentary appreciation of what occurred at the first trial itself. Before delving into the detail, it may assist to obtain a quick ‘global’ or ‘birds’ eye’ view of how everything fitted together.
The applicant was in an intimate relationship with the complainant from late 2017 until November 2019. The applicant resided at premises owned by his mother in regional Victoria. From the beginning of the relationship the complainant spent much of her time living with the applicant at that address. The complainant fell pregnant to the applicant in mid 2019 and ultimately gave birth in 2020. The relationship deteriorated over time and, on 31 October 2019, the complainant made a statement to police in which she described a number of physical and sexual assaults that she alleged had been committed upon her by the applicant over the course of the relationship. This statement was signed on 1 November 2019.
Prior to the first trial, the prosecution gave notice that it sought to adduce evidence of both tendency and context. This evidence related to occasions described by the complainant when it was alleged that the applicant had been violent to her. This evidence was not the subject of any criminal charge. The applicant objected to the admissibility of the tendency and context evidence. Before the commencement of the first trial, the trial judge ruled that the prosecution could not rely on tendency evidence. The judge permitted the prosecution to rely on evidence of context.[14]
[14]DPP v [Clayton (a pseudonym)] (First trial – Ruling 1) (County Court of Victoria, Judge Chettle, 3 March 2022).
The complainant then gave her evidence the subject of the first trial. Her evidence in chief and her cross-examination were pre-recorded. Her evidence included the evidence of context that had been ruled admissible. During her cross-examination the complainant spoke of a photograph that she said had been taken by the applicant of the two of them. The complainant said that this photo depicted her with a black eye that had been caused by the applicant. In re-examination, the prosecutor tendered through the complainant a collection of close-up photographs of the complainant’s right eye that were said to depict an injury caused by the applicant. These particular photographs will — throughout this judgment — be referred to as the ‘right eye photos’. The ‘right eye photos’ formed part of the corpus of context evidence that was led at the first trial.
The first trial commenced with the empanelment of a jury. The recording of the complainant’s evidence was played. By the time of the first trial, the prosecutor had in his possession a photograph that was said to be a photograph — taken by the applicant — of the complainant and the applicant which, so the prosecution contended, depicted the complainant with a black left eye. This was, apparently, the specific photo that the complainant had described during her cross-examination. The prosecution tendered this photo in evidence, over objection, at the first trial. This particular photo will be referred to throughout the course of this judgment as the ‘selfie black left eye photo’.
The applicant sought a discharge of the jury by reason of this tender. This application was refused. The selfie black left eye photo was tendered through the informant, again as evidence of context. As indicated above, the jury acquitted the applicant of all charges at the first trial.
Prior to the second trial, the prosecutor indicated that he would seek to tender in chief through the complainant as evidence of context the right eye photos and the selfie black left eye photo. The applicant opposed this. The complainant was called on a voir dire. The judge ruled that the right eye photos and the selfie black left eye photo were admissible as context evidence.
The complainant’s evidence was then recorded for the purposes of the second trial. The complainant gave evidence of relevant offending as well as context evidence. Part of the evidence of context was the tender through her of the right eye photos and the selfie black left eye photo.
The second trial then commenced with the empanelment of a jury. The trial ran through to verdict and, as indicated above, the applicant was convicted of a number of offences.
Prior to the commencement of the third trial, the defence made a further objection to the admissibility of context evidence, which included the evidence of the right eye photos and the selfie black left eye photo. The judge again ruled against this application. The complainant’s evidence was then pre-recorded in anticipation of the third trial. The complainant gave evidence referable to the offending as well as evidence of context which — as in the second trial — included the tendering through her of the right eye photos and the selfie black left eye photo.
The third trial commenced and the recording of the complainant’s evidence was played to the jury. Arguments made by the prosecutor in his closing address to the jury caused, however, counsel for the applicant to apply for a discharge of the jury. The trial judge refused this application. The jury at the third trial convicted the applicant of various offences.
With that very brief chronology of events out of the way, it is necessary now to consider in greater depth the necessary factual background.

Ruling on tendency and contextual evidence made prior to the first trial

As indicated above, prior to the commencement of the first trial, the prosecution filed a summary of prosecution opening and a tendency notice. The point of the tendency notice was to indicate that the prosecution intended to adduce evidence in order to establish a tendency on the part of the applicant. Such alleged tendency included, in part, a tendency on the applicant’s part to act in a particular way, namely:
to carry out violent acts towards the Complainant … during an argument, by grabbing her [by] the throat, choking her, slamming her head into a surface and assaulting her.[15]
[15]Tendency Notice dated 10 January 2022.
In written submissions, the prosecution indicated that it also sought to lead four separate alleged incidents of violence as evidence of context. These were essentially four separate, and uncharged, occasions when the complainant alleged that the applicant had been violent to her prior to the commission of any charged offending. Summarised, those four occasions were as follows:
(a)in December 2016, the applicant drove the complainant to a paddock, threatened her, grabbed her wrists and placed something sharp against them (the ‘paddock occasion’);
(b)in January 2017, the applicant grabbed the complainant by the throat, choked her and slammed her head into a wall after she called him a ‘goose’ (the ‘goose occasion’);
(c)in February 2017, the applicant was looking to purchase a car from the complainant’s friend, GC, and made threats of violence towards the complainant in the presence of the friend (the ‘car-purchase occasion’); and
(d)in March 2018, the complainant won some money at the pokies. The applicant got angry at the complainant when she refused to provide him with some of her winnings. The applicant grabbed the complainant by the throat, slammed her into the floor and choked her. This caused the complainant to lose consciousness (the ‘pokies occasion’).[16]
[16]As the evidence transpired, the timing and detail of these four occasions differed from how they were described in the prosecution’s submissions. The evidence was that the paddock occasion occurred in late 2017 to early 2018; the goose occasion occurred in late 2017 to early 2018; the car-purchase occasion occurred in early to mid 2018; and the pokies occasion occurred in March 2018. The complainant gave evidence that when making her statement to the police, she had mistakenly thought she had met the applicant in 2016, which had caused her recollection of events to be out by one year. Two other ways the evidence differed from how it was foreshadowed in the prosecution’s submissions were (1) on the goose occasion, the complainant was not choked; and (2) on the pokies occasion, the complainant was not slammed into the floor.
The prosecution submitted that this contextual evidence was admissible because: (a) it provided a fuller context to the family dynamics and domestic setting in which the alleged offending upon the complainant had occurred; (b) it may prevent the jury from forming a false impression that the complainant’s allegations arose simply ‘out of the blue’; and (c) it was relevant to the states of mind of both the complainant and the applicant.
The applicant opposed the admission of the tendency and context evidence.
During legal argument there was a discussion about how detailed the context evidence would need to be if it were to be admitted. It seemed to be agreed by all that if the context evidence was to be admitted, efforts could be made to keep this evidence as confined as reasonably possible.
As noted above, the trial judge declined to admit the tendency evidence. The judge nevertheless ruled the context evidence admissible. In making that ruling, the judge stated as follows:
I am of the view that the context evidence is relevant and admissible for the reasons submitted by the prosecution. Such evidence bears directly upon the state of mind of the complainant, her failure to complain and her remaining in a relationship with the [applicant]. Essentially, the prosecution submit that the complainant was stuck in an abusive relationship. The defence say this simply is not true. As the issue for the jury is whether or not the complainant is telling the truth[,] in my view it is significant and important that the full nature of the relationship between the [applicant] and the complainant is put before the jury. That is not to say that great detail should be given in respect of the each of the context incidents. [The prosecutor] can and will narrow the evidence to be given so that the nature of the relationship can be determined without the jury being overwhelmed by repetitive detail.
Further, proper directions will be given to the jury as to the limited use that can be made of the evidence.[17]
[17]DPP v [Clayton (a pseudonym)] (First trial – Ruling 1)(County Court of Victoria, Judge Chettle, 3 March 2022) [21]–[22] (emphasis added).

The first trial

Although the applicant was acquitted of all charges at the first trial, it is necessary to have some understanding of what occurred. This understanding bears somewhat upon the substance of the applicant’s submissions that concern trials two and three.
Prior to recording the complainant’s evidence for the first trial, it was — as has been said — acknowledged by all that attempts would be made by the prosecutor to keep this evidence reasonably confined. Yet the prosecutor stated that he did not wish to adduce the evidence by means of asking leading questions. Still, the prosecutor did indicate that he would attempt to ‘[rein] it [the context evidence] in’. The judge expressly canvassed the possibility of the recording of the complainant’s evidence being edited if that were thought necessary. Defence counsel agreed that edits could be made if need be.
It is unnecessary to summarise at any great length the evidence given by the complainant that was recorded for the purposes of the first trial save to indicate that the complainant was taken through the four contextual occasions of violence[18] as a precursor to her being asked about the charged offending.
[18]The paddock occasion; the goose occasion; the car-purchase occasion; the pokies occasion.
The prosecutor invited the complainant to describe the context evidence in a ‘summary way’ and without ‘great length’. The complainant spoke in chief about the charged offending. The complainant was cross-examined at length and, in particular, with some vigour when it came to various inconsistencies that were said to be apparent in the very detail of the context evidence. It was put to the complainant that the applicant had never been violent to her. The complainant responded that this was untrue. At one point — as indicated above — the complainant said that she had a photo of herself which showed her injured when the applicant had assaulted her on or around the car-purchase occasion. As noted above, in re-examination the prosecutor tendered the right eye photos.
The judge also ruled, over objection, that the prosecutor was permitted to adduce evidence from JG and CS (both acquaintances of the complainant) to the effect that these witnesses saw bruising and marks on the complainant during the period when the applicant and the complainant were in a relationship. The judge ruled that JG was permitted to say that the complainant had said that the applicant beat her. This evidence was ruled admissible as evidence of context. As the judge put it:
These fall, in my view, in the same category as the context of ruling I made [earlier] this year. The nature of the relationship between the parties is essentially the most relevant part of this case. The [applicant] says he didn’t commit any of the acts of violence alleged against him and that his relationship with the complainant was not a violent and abusive relationship. This proposed evidence goes directly to that relevant issue, and it is relatively short, it is relatively contained and an appropriate direction to the jury in relation to what use they can make of it or [sic] mitigate against any improper prejudice, and I would admit the proposed evidence in both instances as context evidence.[19]
[19]DPP v [Clayton (a pseudonym)] (First trial – Ruling 2) (County Court of Victoria, Judge Chettle, 18 May 2022).
A recording of the complainant’s evidence was then played to the jury. By this stage, the prosecutor had in his possession the selfie black left eye photo. He sought to tender this photograph through the informant. Defence counsel opposed this and even sought a discharge of the jury. The judge ruled against the defence. In permitting the prosecutor to adduce the evidence of the selfie black left eye photo (and in refusing the application to discharge) the judge said:
The photograph goes to the heart of what I have already ruled, is central to this case, which is the relationship between the [applicant] and the complainant, and the jury may well think that the photograph, if it is produced, tends to support the credit of the witness, particularly where it was suggest[ed] in cross-examination that she had been making things up, including by inference, the assertion that the photograph showed a black eye from being punched by the [applicant]. In my view, there is no basis to exclude the evidence.[20]
[20]DPP v [Clayton (a pseudonym)] (First trial – Ruling 3) (County Court of Victoria, Judge Chettle, 19 May 2022).

It appears to have been the understanding of the parties — based on the recorded evidence given by the complainant — that the right eye photos and the selfie black left eye photo depicted injuries that were the product of violence perpetrated upon the complainant by the applicant on or about the time of the contextual car-purchase occasion. The selfie black left eye photo was ultimately tendered through the informant.
CS and JG gave their evidence. A further acquaintance of the complainant, GC, also gave evidence. GC’s evidence related to the car-purchase occasion of contextual violence. These witnesses feature in trials two and three; it is unnecessary at this stage to summarise their evidence.
Equally it is unnecessary to summarise each side’s closing arguments to the jury save perhaps to mention, albeit briefly, some basic features of the defence case.
The defence case was to deny that there had been any violence at all committed by the applicant upon the complainant. It was argued that the complainant’s behaviour was inconsistent with someone who had been subject to sustained violence. The defence pointed to affectionate letters that the complainant had sent to the applicant towards the end of the relationship in which she stated that she wanted the relationship to continue and in which, so it was put, the complainant had admitted to having made up her allegations against the applicant. It was put that the complainant had acted inconsistently by, at one stage, seeking to withdraw her police statement. It was suggested that she had acted inconsistently by seeking to vary an intervention order that had been taken out by police in order to protect her from the applicant. In the application to vary the intervention order, the complainant described the applicant as ‘innocent’.
It was argued by defence that any bruises and/or markings that could be seen on the complainant’s body could be explained by either the complainant’s intravenous drug use or her penchant for ‘rough sex’ with the applicant.
It was argued that it was the detail of the context evidence that established its untruthfulness. The context evidence could be shown to be untruthful by its inconsistency with certain pieces of independent evidence. For instance, the complainant’s version of the car-purchase occasion of contextual violence was undermined by the evidence of GC. That the complainant had apparently sought to link both the right eye photos and the selfie black left eye photo to the one act of violence established that this occasion of contextual violence simply could not be true. Each category of photograph showed damage to a different eye.
It was also argued that the complainant had a motive to lie: she lied about the violence so as to obtain emergency or crisis accommodation.

The second trial

Prior to the commencement of the second trial it was apparent that the prosecution had something of a change of heart. It no longer wanted to lead as context evidence any alleged violence that occurred as part of the car-purchase occasion. But the Crown still wanted to adduce the evidence, through the complainant, of the right eye photos and the selfie black left eye photo. The defence’s primary position in response to this change of approach was to oppose admission of these photographs as well as any evidence of the car-purchase occasion. The defence’s alternative position was to argue that if the right eye photos and the selfie black left eye photo were to be admitted, then the recorded evidence given by GC about the car-purchase occasion at the first trial, should be admitted as well. The evidence of GC was said to demonstrate various inconsistencies with the complainant’s account of violence on the car-purchase occasion.
The trial judge was, at least at first, rather unimpressed with the refashioned Crown proposal. Nevertheless, it was agreed that the complainant be called to give evidence on a voir dire in order to ascertain whether she could connect the right eye photos and the selfie black left eye photo with any particular event. Beyond saying that injuries depicted in each category of photo were caused by the applicant, the complainant was unable to recall precisely when these injuries were caused. As the complainant put it on the voir dire: ‘I can’t even pinpoint when that black eye occurred, like, like I said there was so many. It was almost on a daily basis with him’.
The prosecutor argued that notwithstanding the complainant’s inability to link the photographs to any particular occasion they were admissible, nevertheless, as context evidence. The defence maintained the position already described, namely that the photos were not admissible, but if they were to be admitted then the entirety of the evidence of the car-purchase occasion should also be led.
In argument, the trial judge observed that the complainant’s inconsistency in respect of dates and occasions provided the defence — generally speaking — with powerful material for effective cross-examination. The judge ruled that the prosecution could adduce the evidence of the right eye photos and the selfie black left eye photo. In so ruling the judge stated:
Insofar as the complainant now does not give evidence in the same terms as she did at the trial in relation to the two photograph[s] or the two sets of photographs planned to be used by the prosecution, that, in my view, does not affect their admissibility. The photographs, the jury could use as evidence that tended to support the fact that she received injuries, and she says she got those injuries from the [applicant]. In the context that the [applicant] says the relationship was fine and there was no violence, the existence of injuries — if the jury accept they are injuries — may support her version of events and help the jury in an assessment of her credibility.
It seemed to me, as a consequence of the admission of the photos, the defence are perfectly entitled to put to her what she said on a previous occasion and use that to attack her credit.[21]
[21]DPP v [Clayton (a pseudonym)] (Second trial – Ruling 1) (County Court of Victoria, Judge Chettle, 19 July 2022) (emphasis added).
The complainant’s evidence was then pre-recorded for the purposes of the second trial. Again the prosecutor, when adducing the evidence of context, said to the complainant: ‘I don’t need enormous amounts of detail’.
Because the applicant’s case in this Court attacks the convictions he sustained in the second trial, it is necessary to summarise the evidence that the complainant gave concerning both the charged offending and the occasions of context.
The complainant was taken initially to her evidence of context. She spoke about the paddock occasion. This occurred about five weeks into the relationship. The applicant had looked at the complainant’s phone and found text messages from an earlier boyfriend. The applicant became very angry. He took the complainant for a drive. He parked the vehicle near some paddocks. The applicant said to the complainant: ‘You know this could be your last night. I could just leave your body here in the fields, paddocks’. The applicant grabbed the complainant’s wrists, held a pocket knife against them and threatened to cut them.
The complainant then turned to the goose occasion. This was a week or two later. The complainant was with a friend who was taking her home after work. When the complainant and her friend arrived at the house the applicant was sitting on the couch; there were knife marks in the walls; the applicant had a knife in his pocket; and there was a knife on the couch. The friend looked mortified. The prosecutor tendered six photographs showing damage to the wall. The first, second and sixth of the photographs depicted the knife marks.
The complainant’s friend was concerned but eventually left after having been assured by the complainant that everything was fine. Later, the applicant wanted the complainant to drink with him. The complainant did not want to do so and went to bed. The next morning the applicant was very drunk; he was mad at the complainant because she had not stayed up drinking with him. The complainant called the applicant a ‘goose’ and the applicant became ‘angry violent’. The applicant got off the bed and held the complainant by the throat. The applicant slammed the complainant’s head into the wall; he got in her face and said: ‘you want to call me a fucking goose?’. The third of the six photographs showing damage to the wall depicted where on the wall the complainant said that the applicant had slammed her head.
The complainant then turned to the pokies occasion. This was around the start of 2018. The complainant had won a jackpot at the pokies — $2,500 in the form of a cheque. The complainant said that once she had won the money the applicant would not allow her out of his sight. The applicant was impatient and did not want to wait for the money; thus he asked his mother for a loan. The complainant was meant to reimburse the mother. The complainant spent the money on clothes. The applicant asked the complainant for money but was told that it had been spent. The applicant looked at the complainant in shock and said: ‘what, you spent it? You spent it all?’. The complainant responded that the money was all gone. The applicant grabbed the complainant by the throat and ‘strangled’ her. The complainant was left with bruising.
The complainant was then shown the selfie black left eye photo. The complainant said that this photo depicted her with a black eye; she said that she had tried to cover it up with her side fringe and makeup. She said that the black eye was caused by the applicant punching her. This was in the summer of 2018.
The complainant was then shown the right eye photos. The complainant said that these photographs depicted her eyelid after an altercation late one night when the applicant had punched her in the face, splitting open her eyelid and causing it to bleed. The complainant could not recall how the altercation began nor the date on which it occurred. She thought that it was around the same time as the paddock occasion.
The complainant said that the assaults were continuous or non-stop.
The complainant also gave evidence of the control that she said the applicant exercised over her. The applicant wanted the complainant’s SIM card so that she could not contact certain people. The complainant said that the applicant controlled her banking as well as her use of social media. By the end of the relationship the complainant said that she had lost all of her friends.
The complainant then turned to her evidence concerning the charged offending. She said that in the winter of 2018 she and the applicant had an argument about money. She then went to a pokies venue. While she was having a cigarette outside the venue the applicant walked past and saw her with an Aboriginal man. The complainant returned home. The applicant grabbed the complainant and pushed her violently into a wall; this caused her head to hit the wall (charge 1 — common assault).
The applicant then yelled at her: ‘are you trying to set me up?’. The complainant protested but the applicant continued to swear. He said ‘fucking bullshit. I saw you talking to Abos’. The applicant then slapped the complainant across the face before pushing her to the floor. The applicant put his arms around the complainant’s neck and ‘choked’ the complainant so that she was unable to breathe (charge 2 — common assault).
The applicant told the complainant to get on the couch. Once she had done so, the applicant punched the complainant in the face. The two then moved to a bed situated in the lounge room. The applicant tied the complainant’s wrists with cable ties behind her back; he wrapped tape around her head and over her mouth (charge 3 — common assault). The applicant told the complainant that he was going to give her what she always wanted.
The applicant pushed the complainant face-first onto the bed, such that she was bent over. The complainant was crying and said: ‘no, not like this’. The applicant forcibly ripped off the complainant’s jeans and her underwear. This caused the string of the complainant’s underwear to tear into the skin of her lower hip thus cutting her and leaving a scar. A photograph of this scar was tendered. The applicant unzipped his pants and said: ‘I’m gonna give you what you want again’. The applicant forcefully penetrated the complainant’s vagina with his penis. The complainant was crying. The applicant told the complainant to ‘shut up’. He told the complainant: ‘you like it’. The complainant was only able to mumble: ‘stop, this isn’t what I want. Not like this.’ The complainant said that she did not consent to the act of sexual penetration. The applicant ejaculated and then removed the cable ties (charge 4 — rape). The complainant immediately removed the tape from her face. She got dressed and went to sleep on the bed.
At various points in her evidence in chief the complainant described why it was that she had behaved perhaps counter-intuitively; that is to say, why she had continued to stay with the applicant despite his violence; why at one stage she had sought to withdraw her police statement; and why she had sought to vary an intervention order that had been taken out by police for her protection by declaring in the application to vary that the applicant was ‘innocent’. She sought to explain, also, why — towards the end of the relationship — she had written to the applicant love letters — letters that indicated a desire to continue the relationship.
In respect of these issues the complainant said that she was scared to leave the relationship. She said:
It was a very messy situation and like, I did — I loved him even through everything. I loved him. But I was scared of him.
She said that the applicant was the only person to whom she felt really connected. She said that she had ‘no friends, no family’. She said that:
When you’re in that situation you’ve got no control.
When cross-examined, the complainant’s credit and reliability was placed under sustained attack. At various points it was put to the complainant that she was lying, for reasons including to secure accommodation, to help the applicant’s mother to get insurance money, and to avoid a charge of perjury. The defence case — as put — was that albeit the applicant and the complainant might have engaged at times in ‘rough sex’, the relationship was entirely devoid of any non-consensual violence. It was suggested that the injuries that she had suffered were the product of intravenous drug use and the particular type of ‘rough’ consensual sex that she enjoyed with the applicant.
As in the first trial, a major theme of the cross-examination was to highlight the complainant’s apparently inconsistent or counter-intuitive behaviour; behaviour that was said to be at odds with how a person might normally react if they were the subject of repeated acts of violence at the hands of an intimate partner. Highlighted were, inter alia, the complainant’s decision to stay in the relationship and her sending of the love letters. It was suggested that if there was any truth to her allegations of violence, she would never have acted in this way.
The complainant gave quite expansive explanation as to why her behaviour was in truth neither counter-intuitive nor inconsistent. The complainant described herself as, in essence, a victim of domestic violence. The complainant, in this vein, responded at some length to questions asked by defence counsel. She said:
Desperate times lead to desperate measures when you’ve got no roof and he’s the only one that I still really clung to. Like I said, I still loved him. Regardless of what he did to me I still loved him.
…
You’ve never been in a domestic violence relationship so you could never understand the extreme formalities [scil, brutalities] of what goes through a domestic violence head. You will never be able to understand it.
…
[W]hen you’re in a domestic violen[ce] relationship and you still love that person regardless of what they do to you. You still end up going back …
The complainant was cross-examined extensively on various inconsistencies that were said to be evident in her testimony about the context evidence. The cross-examiner dealt in some detail with the complainant’s past inconsistent versions concerning how she had sustained the injuries depicted in the right eye photos and the selfie black left eye photo. It was put to her that she had previously attempted to link these two sets of photos to the same act of violence. It was put that such linkage was impossible in view of the fact that each category of photo depicted an injury to a different eye.
It was put to the complainant that the charged act of rape was made up and based on ‘rape fantasies’ that the complainant had had.
In re-examination the complainant was, again, given an opportunity to explain what may have seemed inconsistent or counter-intuitive behaviour on her part. She said:
I loved him [the applicant], and in a way I still do. He is the father of my child. Like I was going through fear of being alone and being part of that sort of domestic violen[ce] relationship you get so used to the abuse it comes naturally. It’s almost like being Stockholm’d, in a way.[22] Best way to probably describe it. Like, I did love him, he was the father of my child, and being so alone now and going through what I went through alone in that time it was scary. I only really had him to rely on …
…
It’s so hard to explain the trauma, the drug use. Like, everything had a play in it. Heavily pregnant, going cold turkey and having your own child crave it. All mixed emotions, all in one, and that one person who’s been consistent in your life you just cling to that … I was afraid of change. I was so used to it, so scared of change.
…
I did once withdraw [her police statement] so [the applicant] could get out, ‘cause I didn’t want to be alone, but I wasn’t gonna change the statement I made because the statement I made is the truth.[23]
[22]This was undoubtedly a reference to Stockholm syndrome, a condition in which a captive or victim of abuse develops positive feelings towards his or her captive or abuser.
[23]Emphasis added.
Various other witnesses gave evidence relevant to the complainant having been in an abusive relationship with the applicant.
LW was a counsellor at an employment agency. The complainant consulted with her in 2017 and again between November 2018 and January 2019. On an occasion in January 2019, the complainant told LW that she’d been in a ‘domestic violence situation’ with the applicant. The complainant told LW that she had concussion and bruises all over her body. LW saw a bruise on the complainant’s left arm. On a later consultation, they discussed ‘the cycle of violence’ and the complainant said that the applicant was ‘sorry’; that he was ‘so sweet and lovely’. LW saw the complainant months later. On this occasion LW saw bruises on the complainant’s arms and neck. Under cross-examination, LW agreed that she had recorded in her notes that the complainant denied that she was in the ‘cycle of violence’.
The recording of GC’s evidence from the first trial was then played to the jury. GC remembered seeing bruises on the complainant’s legs and arms when she was in a relationship with the applicant. GC said that the complainant had told him that these injuries had been caused by ‘rough sex’ when she was ‘chained up at certain points’. The complainant told GC that this was consensual; she seemed to ‘laugh it off’. Later, the complainant said to GC, in respect of her relationship with the applicant, that things were not ‘exactly what they appeared to be’. GC said that the complainant had said that the applicant ‘restricted … her movements’ and that her phone was ‘taken off her’.
GC was then asked to describe what he knew about the car-purchase occasion. GC said that he was selling a car to the applicant and, in order to do so, he went to the applicant’s property. GC saw the applicant ‘yelling and cursing’ at the complainant. The applicant told GC and the complainant to ‘shut up’ or he’d punch GC’s and the complainant’s ‘heads in’. GC and the complainant laughed. The applicant went inside, followed by the complainant. GC heard yelling from outside. The applicant then came back outside and the car was sold. The complainant told GC that the applicant was unhappy at GC being there.

GC said that some two months later, he was told by the complainant that the applicant had taken her phone, that he was monitoring her messages and calls and that he had given the complainant a ‘good, stern talking to’ for being in contact with GC. GC said that the complainant told him that the applicant had required that she cease being Facebook friends with GC. This was because the applicant thought that GC was going to take the complainant from him. GC said that the complainant told him that the applicant placed limitations on her movement.
JG’s recorded evidence from the first trial was played to the jury. JG gave evidence that around 2019, when the complainant was in a relationship with the applicant, she saw injuries on the complainant. She saw them mainly on the complainant’s legs and neck, although she thought that she saw them on the complainant’s arms and on one of her eyes. These were bruises. The complainant told the witness that the applicant used to ‘bash her’. She told the witness that the applicant would ‘grab her’. She said that the applicant did this to her because ‘he loved her’.
CS’s evidence from the first trial was played to the jury. Her evidence was that the complainant was ‘very quiet’ around the applicant. The complainant told CS that she and the applicant would ‘fight a lot’ and that ‘she would want to get out of there’. The complainant ‘always stated that she would want to leave’. The complainant said to CS that she had bruises but she didn’t say why. CS saw bruises on the complainant’s arms just above the elbow and around the inside of the elbow. The bruises were on both arms. There was also a bruise ‘above where her shoulder kind of is’. CS said that she never asked about the bruises around the complainant’s elbow area because she thought that these were caused by the complainant’s intravenous drug use.
It is necessary, in light of the arguments presented on the applicant’s behalf in this Court, to set out a portion of the prosecutor’s closing to the jury. Towards the end of prosecuting counsel’s address, he argued to the jury as follows:
I also want to make it clear, I hope, the defence case is not that she consented. The defence case is none of this happened. So really, in relation to this charge, the issue is black and white. If you are satisfied beyond reasonable doubt that this incident happened or not, consent has got nothing to do with this trial.
I anticipate you may want to see some evidence, some objective evidence to back up [the complainant’s] evidence in this trial. Well, she gave evidence that there was knife damage to the wall. Exhibit A shows knife damage to the lounge room wall. She said after the incident when she called the [applicant], ‘a goose’ her head was slammed into a wall and there is a head-shaped section of the wall in Exhibit A. You might think she’s telling the truth about that.
Now fair enough, she appears to be mistaken about sending photos to [GC and another person] after the [applicant] damaged the wall near her head, but she told you she was struck to the eye, Exhibit C shows bruising under her left eye. Exhibit D shows a scar underneath her right eye. Fair enough, it’s unclear about when that happened, but it’s there.
[The complainant] told you about how she won money on the pokies. The police investigated that and confirmed it. They came up with the document showing she’d won money on the pokies. She was telling the truth about that and importantly, is Exhibit D and the clearer photos tendered through [the informant], show a line of scarring across the hip of [the complainant].
[The complainant’s] evidence was that when the [applicant] raped her, he pulled out her G-string causing that scar. She said, ‘Horrible, and as he’s ripping them off, the thickest string was digging into my skin and at the time he did not notice, but it actually tore into my flesh with the force of ripping them off me.’ And [the complainant] does have a noticeable scar on her hip. The police took a photo of that scar. She was telling the truth about that. Why [are] all those pieces of evidence there? Because she’s telling the truth.
The defence closing was largely in line with how the defence had closed in the first trial. Defence counsel drew upon the manner in which the complainant had been cross-examined before the present jury. The complainant’s evidence was painted as unreliable, in particular due to its lack of coherence with independent evidence. Consistent with how the complainant was cross-examined, the complainant was painted as a liar who had acted in a manner that was inconsistent with how someone might behave had they been subjected to repeated violence at the hands of an intimate partner.
The judge gave directions to the jury concerning the use that might be made of the context evidence. It is necessary to set those directions out in full.
What has been called the context evidence, I am going to deal with in some detail, but the history of so-called violence and activities and threats and behaviour outside the charged events, the four charges, has been led in this case, and I will deal with it at some length, but the prosecution rely upon that evidence in a number of different ways, one of which is helping you explain or understand why the Crown say she might delay in going to the police or why she was reluctant to go into the police, and that involved an assessment by you of what their relationship was generally.
… That evidence has been led for very limited purpose. Even if you accept that they had a violent relationship and that in the past he had pushed her into the wall or taken her out to the paddocks and threatened to leave her there and things of that sort, that does not prove the offences charged in this case.
Through his counsel, [the applicant] has challenged all of the assertions [the complainant] makes. It was suggested to her that their relationship was not violent and that the allegations that she made about being in a violent domestic relationship which is a term she used, or I think she called herself, ‘Stockholmed’ on one occasion, did not happen.
So what is the relevance of all that? One of the relevance’s [sic] is that if you accept that she was subject to a controlling physical relationship and if you accept that she had been effectively bullied and subject to violence at the hands of [the applicant], you could understand why she did not complain as soon as the events occurred, because as she said, ‘You get used to it’ or words to that effect. That is one of the ways that you can use the context evidence in assessing her failure to complain for three or four months.
… You have evidence of what the prosecutor called context evidence, what I might call other misconduct evidence. That is, allegations of other acts of violence said to have occurred prior to the offences which are alleged against [the applicant].
That evidence is admitted for a very limited purpose. It helps you assess whether or not the allegations arose out-of-the-blue, as it were, whether if, for example, you might think as a jury, that if all you heard about was on the one night she came home, was pushed against the wall, choked, tied up and raped, that that was totally inconsistent with the relationship she had had with him for a number of years. So, to effectively try and the Crown try to create the picture of their relationship which the Crown allege was a violent, abusive, controlling relationship, that is why the evidence was led to put in context the incidents said to have occurred after the night she went to the poker machines.
It relates to why it was she stayed with him, why it was that she had a history or a way of dealing with his behaviour, if you accept it occurred; why it was that she was willing to remain in a relationship with him for some months after the events occurred, and it is relevant to his state of mind as to whether or not he might have believed that he could get away with behaviour like this because she does not complain and she does not go to the police.
Now, that is why it was led, to explain or put in perspective, the alleged offences, but it does not prove that he pushed her against the wall, choked her, tied her up and raped her. It is evidence against which the Crown say you assess those allegations, so even if you accept that what she told you about their relationship, the violence that she gave evidence about occurred, you could not convict the [applicant] unless you were satisfied beyond reasonable doubt that the individual acts charged occurred. It is those acts that the prosecution have to prove beyond reasonable doubt.[24]
[24]Emphasis added.
His Honour then turned to ‘evidence of other misconduct’, namely the evidence of the applicant’s drug use, and continued:
It is again context in the background of the nature of their relationship. You cannot use the uncharged acts or other improper conduct of drug use or violence outside the charged acts, as proof of the individual offences. They do not prove the original, they just go to the nature of their relationship, which is an issue in this trial. Between the parties, there is a real issue as to the nature of their relationship, and that is a matter for you. The Crown say she was the subject of violent control, the defence suggested that was not the case.[25]
[25]Emphasis added.
There were no exceptions to the judge’s charge.

The third trial

Prior to the third trial the defence reinvigorated its opposition to the admissibility of the context evidence. The offending the subject of the third trial was alleged to have occurred in September 2019, that is, towards the end of the relationship between the applicant and the complainant.
Defence counsel submitted that the complainant had not said that the events described in the context evidence had influenced her actions at the time of the events the subject of the third trial (presumably because the events described in the context evidence took place near the commencement of the relationship). Defence counsel also submitted that much of the unfair prejudice lay in the detail of the context evidence. It was submitted that the detail of the context evidence would lead to confusion on the jury’s part. The complainant’s inability to link the right eye photos and the selfie black left eye photo to any particular event occasioned — it was submitted — prejudice to the applicant. Defence counsel adopted the same position as was adopted at the second trial, namely, that if all the photographic evidence was to be adduced into evidence then all of the evidence pertaining to the car-purchase occasion would also need to be admitted.
The Crown re-asserted its original arguments for the admissibility of the context evidence. The prosecutor acknowledged that there was a period of up to two years between certain contextual acts and the offending the subject of this trial. Nevertheless, the prosecutor submitted that the context evidence was admissible. The prosecutor submitted that it was relevant for the Crown to prove that the applicant was a controlling force from the beginning of the relationship.
The judge confirmed his earlier rulings and ruled to admit the context evidence. The judge stated:
I accept that there is potential prejudice to the [applicant] but that that prejudice can be dealt with, I think, by proper and firm directions to the jury about how it could be used and how it can’t be used and that is, as a tendency evidence. It goes only to establish two things, I think, and perhaps, forensically, it might become relevant on the evidence for other reasons later, but it goes to demonstrate that the alleged incidents were not out of the blue and what otherwise might be seen as strange and it explains why she didn’t go running off to the police straight away.
The judge observed, further:
[T]he Crown have done their best to trim this down to what is reasonable. I mean, the relevance of the earlier stuff is to show that from the start this was a controlling and violent relationship. It goes to the nature of the relationship over the period of the two years that it endured …
The complainant’s evidence was then pre-recorded. It is unnecessary to set out all of what was said by the complainant concerning the occasions led as context evidence, that is, the paddock occasion; the goose occasion; and the pokies occasion. This evidence was given in detail similar to what had been said at the first two trials. Again, the complainant proved the right eye photos and the selfie black left eye photo.
Unlike at the second trial, but as had occurred at the first trial, the complainant did give context evidence in chief concerning the car-purchase occasion. It is necessary to summarise what the complainant said about this occasion at the third trial.
The complainant said of this occasion that she and GC were at the applicant’s home. The applicant and GC were going to organise to get some methamphetamine. The applicant vanished and she and GC were talking in the kitchen area. After a period, the complainant started messaging the applicant. One message said ‘where the F are ya’. The complainant did not receive a response. The complainant said that she and GC searched for the applicant and walked outside near some train tracks. But they were unable to locate the applicant. They both began walking back to the house when the applicant appeared; he was walking aggressively towards them. The applicant said ‘you want to send me abusive fucking texts’. The complainant and GC smirked at each other. The applicant said ‘oh you want to fucking laugh, I’ll just lay you both out right here right now, I’ll just lay you out’.
As occurred at the first two trials, the complainant gave evidence that the applicant was controlling. She said that he controlled her banking and her use of social media. She said that she stayed in the relationship because she ‘wasn’t really allowed to leave [the applicant’s] side’. She said that:
I wasn’t allowed to leave the house. Every time I was covered with bruises, marks, anything, he wouldn’t let me leave the house.
When asked why she stayed with the applicant she said: ‘I loved him. Regardless. I loved him’. After the complainant had secured emergency accommodation, towards the end of the relationship, the complainant said that she felt as if she had ‘done a mistake’. She said that she just wanted to go back to the applicant and that she hated being alone. She said that she had applied to vary the intervention order that police had taken out for her benefit, and had declared the applicant to be ‘innocent’ in so doing, because she was still very much in love with the applicant. She explained writing love letters to the applicant towards the end of the relationship. She said that she did this because she was still very much in love with the applicant.
The complainant then gave evidence concerning the charges on the indictment. The evidence was that she had fallen pregnant in mid 2019. She and the applicant became aware of the pregnancy on the day of a friend’s 21^st birthday in September 2019. They both attended the friend’s party and returned home at about 2:00 am.
The following day they went out to KFC for lunch and then returned home. The applicant was unable to locate $70 or $75 that he thought he had. He accused the complainant of having taken it. The applicant became enraged and ripped apart the complainant’s handbag. The applicant was screaming, trashing the loungeroom and pouring alcohol over the complainant. The applicant punched the complainant to the face (charge 1 — common assault) before throwing her to the floor. The applicant smashed a marble chopping board next to the complainant’s head and said, ‘I’m going to kill you, where is the fucking money?’ (charge 2 — make threat to kill).
The applicant grabbed the complainant by the hair, slammed her head into the ground and spat in her face. The couch was flipped over the complainant’s body, but her arms, head and legs were left exposed. The applicant stomped on the complainant’s neck and said that he would kill her if she did not stop screaming (charge 3 — common assault and charge 5 — make threat to kill). The applicant attempted to put the complainant in a choke-hold so as to silence her screams, but he was unable to do so. The complainant was able to block him (charge 4 — common assault). The applicant took a sharp implement and cut the complainant’s knee, leaving a scar (charge 6 — causing injury intentionally/charge 7 — causing injury recklessly). A photo of this injury was tendered.
The cross-examination of the complainant followed largely the same course that had been charted in the cross-examinations at the first and second trials. Again it was put to the complainant that the relationship was not a violent one. It was suggested that proof that this was so was that the complainant had stayed with the applicant. Again, the complainant was cross-examined about the love letters that she had sent to the applicant. It was suggested that the sending of these letters was proof that the complainant wished to continue the relationship and that the relationship could not have been a violent one.
It was suggested to the complainant that she had ‘played the victim’ in order to obtain crisis accommodation. Again, the withdrawal of the complainant’s police statement was relied upon as well as the complainant’s application to vary the intervention order. It was put that these acts demonstrated that the offending could not have occurred. Again, the complainant was cross-examined as to her past inconsistency concerning the provenance of the right eye photos and the selfie black left eye photo.
The complainant said that she was not allowed to seek medical help for her injuries. She said that she stayed with the applicant because she loved him. She said that she continued to see the applicant because she still loved him but she was afraid of him as well. She said that this was ‘conflicting’. She said that she would do anything, or virtually anything, for someone that she loved. The complainant’s continued love for the applicant explained her love letters that she sent to him. She said:
I loved him, I wanted the family with him. Today looking at these letters, they make me sick and I hate myself for how I was back then.
…
I loved him regardless of what he did to me. It’s part of the domestic violen[ce] relationship, ask anyone in that situation, they’ll tell you the same thing, you can’t help who you love at the time, regardless of what you go through.
…
I wanted to be with him and I was hoping maybe things would change. You always have that little bit of hope.
…
… as I keep telling you, I loved him. You can’t help who you love, especially in a domestic violen[ce] relationship, you want to see beyond the violence. You see hope. You hope they’re going to change.
A recording of GC’s evidence from the first trial was played as were recordings of the evidence of CS and JG. LW’s evidence was played as well.
The prosecutor addressed the jury. Again, because of issues raised in the present appeal, it is necessary to set out part of what the prosecutor had to say. After summarising the complainant’s evidence concerning the charged acts, the prosecutor said this:
Those are the things that she could remember, those are the things that she could tell you and as I say, she’s not prepared to lie, she wasn’t prepared to make things up.
And again, you may think what she said she can remember is backed-up by a photo of the injury to the leg and perhaps you may think it’s significant. There is this photo of the green marble chopping board damaged on the floor, which comes back to what I said at the start, and it is my main argument. She told you the truth about the charged offences, and if you agree, then you will find the [applicant] guilty, and I say you would find the [applicant] guilty of intentionally causing injury. I anticipate you probably want to see some objective evidence that backs [the complainant’s] evidence up. Well, remember, she gave evidence about knife damage to the walls when [the complainant’s friend] dropped her bag off, and Exhibit A shows knife damage to a lounge room wall. She said after that incident, she called the [applicant] a goose, and her head was slammed into a wall. A head-shaped section of damage to a wall is there in Exhibit A. She was telling the truth about that, I suggest.
Her evidence was that she sent photos to [GC and another person] after the [applicant] damaged the wall. Now, I accept that evidence is not clear, and she may, in fact, be wrong about that, but there is a photo taken by the police of head-shaped damage to the wall. It’s a matter for you, but you may think Exhibit B does show bruising under her left eye. You may think Exhibit C shows a scar over her eye. She told you about this incident when she wins the jackpot at the pokies. She gets the amount slightly wrong, but the police go and investigate and confirm, yes, there is a document. She won money at the pokies. She was telling the truth about that.
Why are all those pieces of objective evidence there? Because she’s telling the truth. As I said at the start, my main argument simply is that this trial boils down to a simple question: are you satisfied beyond reasonable doubt that [the complainant] told you the truth about the charged offences? If you are, you’ll find him guilty. If you are not, you must find him not guilty. I hope I am fairly summarising your essential task, and so it will be over to you.

The prosecutor’s closing address prompted a discharge application on the applicant’s part. The defence submitted that the prosecution closing address ‘verged on a coincidence or tendency argument’. It was submitted by defence that the prosecutor had essentially argued that ‘the uncharged acts are corroborated. That means [the complainant’s] telling the truth about them; therefore, she must be telling the truth about the charged acts’. It was put that ‘the uncharged acts have been used to bolster the likelihood that [the complainant’s] telling the truth about these charged acts’. The prosecutor opposed the application.
The trial judge refused to discharge the jury.[26]
[26]DPP v [Clayton (a pseudonym)] (Third trial – Ruling) (County Court of Victoria, Judge Chettle, 25 January 2023).
The defence then closed to the jury. Again, this closing followed the pattern that had been set in the first two trials. Again, defence counsel sought to exploit inconsistencies that were said to exist within the context evidence and between the complainant’s context evidence and evidence that was said to corroborate such evidence (such as the evidence of GC, the right eye photos and the selfie black left eye photo). It was argued that as soon as the complainant’s evidence ‘touches the outside world’ (that is to say, interacts with independent evidence) the complainant’s credit collapses. It was argued, therefore, that if the complainant could not be accepted as to her context evidence (because such evidence was shown to be inconsistent with the relevant independent evidence) her evidence of the charged events was similarly objectionable.
Again, the defence contended that the fact that the complainant stayed in the relationship with the applicant, and continued to go near him and see him, was inconsistent with her account of both generalised violence and the violence the subject of the offending. Again, the love letters, the application to vary the intervention order and the attempt to withdraw the police statement were all relied on.
As in the first two trials, the judge gave the jury detailed directions concerning how they were, and were not, to consider using the context evidence. Again, in light of the issues raised in this appeal, it is necessary to set out what his Honour had to say:
In this trial, there has been a lot of evidence, other alleged misconduct evidence. The prosecution I think called it context evidence at times but it is all the evidence that relate to allegations of events and violence outside the charged events. As you would appreciate, the charges all allegedly occurred in September 2019 when it is said after an argument about money, [the complainant] was assaulted in a number of ways, threatened and injured. They are the charged events and I will deal with them separately.
What I am talking about now is all the other evidence that you heard that was led by the prosecution about being taken out to the paddocks and threatened to be left out there and killed. About the seeing knife marks in the wall allegedly from [the applicant]. [GC] buying the car and the threat to assault where it is said that [the applicant] threatened to assault them both. The Leggies jackpot incident when the [applicant] allegedly choked [the complainant] into unconsciousness after she would not give him any more money from the winnings. Controlling her bank account. There is evidence from a number of witnesses, [JG], [LW], the witnesses who saw — who said they saw on occasions injuries and bruises and had conversations with [the complainant] about being assaulted or being the victim of domestic violence.
All of that was led for one purpose only. It was to enable you to assess the evidence [the complainant] gave about what she said happened in September in a realistic context. The prosecution case is that she was in an abusive and controlling relationship where she was frequently the subject of violence or threats at the hands of the [applicant]. Now, he is not charged with all that. He is only charged with the specific events that we have got on this indictment. However, you are entitled to, indeed you have to really, form an assessment as to the nature of their relationship because if you did not know about the background events surrounding their relationship, you might think that the alleged events really do not make sense to appear out of context, out of the blue and it really is a matter of accepting [the complainant’s] evidence — I withdraw that. You can only convict the [applicant] in this trial if you accept [the complainant’s] evidence about what she says happened on that night in September when these alleged offences occurred. But in assessing that, you are entitled to take into account your views of their relationship. The defence say there was not a violent relationship, that she is lying about it all. The prosecution say no, no, no, she was a victim of a violent and controlling relationship and these events did not occur out of the blue. It explains why she, the prosecution say to you, why she stayed with him, why she went back to him, why she behaved in some of the ways she did if you accept or come to a view about what the nature of their relationship was.
The prosecution say that she was in this caught up by [the applicant] in a violent relationship. The defence say it is all nonsense. That is how you use that prior evidence. You do not say we accept that he has been violent to her in the past, therefore he must be guilty of the charges laid. You do not do that. You cannot do that. You can only convict him if you accept her evidence in relation to what she says happened on that September night.
Now, whether you accept her evidence or not will depend upon her credibility in relation to those events and the background evidence is something against which you can assess her credibility and to determine whether or not there was what was the relationship that she was living with [the applicant].
Now, it goes to, relevant it may be, the context background evidence of alleged other violence may affect your assessment of why she did not leave the [applicant] or why she went back to him or why she went near him after these events occurred, why she had not left him beforehand and whether or not these allegations do make sense in the sense that they were not out of the blue.
Now, you have got evidence of other misconduct as well. [The applicant] on the evidence was injecting methylamphetamine, using drugs. Injecting [the complainant] with drugs. There is a suggestion that he did not want to keep the baby, that is perhaps in a different category. But what you have got to be careful of and remember I told you, you do not determine this case by prejudice or sympathy or bias. The fact that he was a drug user and that he has committed — may have committed offences using drugs in the past, does not determine the issues in this case. You cannot think well he used drugs, therefore he must have done this. You cannot think well he hit her in the past, he caused her bruises in the past, she has told others he was violent in the past, therefore he must have been violent now. You cannot use that sort of logic and it is easy to fall into, well he is the sort of bloke who would do that. That is not what you can do. You can only use it for assessing the nature of their relationship and using it for whether or not it helps you assess her credibility and reliability. You cannot use that evidence for any other purpose.[27]
[27]Emphasis added.
There were no exceptions to the judge’s charge.

The applicant’s submissions in this Court

Ground 1

In respect of ground 1, in his written case, the applicant submitted that the complainant’s evidence regarding contextual incidents went well beyond the scope of the trial judge’s initial ruling. It was submitted that this resulted in prejudice to the applicant. It was submitted that the manner in which the complainant was taken through her context evidence ‘was not highly contained’ and was ‘specific in detail and vivid in nature’. It was submitted, again in writing, that the context evidence went far beyond what was necessary and that ‘due to the volume and detail of evidence given by the complainant as context evidence’ the case against the applicant was rendered unfairly prejudicial and thus prejudiced the applicant’s right to a fair trial.
In oral submissions the applicant conceded that the trial judge was correct to rule that the evidence of context should be admitted. The applicant submitted:
We say his ruling was correct at law and that he followed the authorities correctly and it was really in practice and how the trials played out and the breadth and detail of the evidence that was subsequently led that occasioned the unfair prejudice.
The applicant submitted that the problem lay only in ‘the excessive detail’ of the complainant’s context evidence. It was argued that the complainant’s context evidence ought to have been reduced to a ‘few lines’. When it was suggested to the applicant’s counsel by the bench that there had been ample opportunity to edit the recordings of the complainant’s evidence so as to lessen the detail and that the judge had expressly invited such a course, counsel appeared to agree. Counsel submitted:
Once the ruling was made and the evidence was led, there was a forensic decision once it was before the Court to attack the credibility of each incident that was led as context.
…
Once the evidence was ruled admissible by the trial judge, the forensic decision I understand was taken that the complainant’s credit could be challenged within the context evidence.[28]
[28]Emphasis added.
It was contended, orally, by counsel for the applicant that:
In principle, his Honour’s ruling was correct but defence was remiss in not, perhaps, agitating more strongly for the prosecution to adhere to the ruling but certainly the prosecution took a very lax approach to complying with what his Honour said insofar as the prosecutor can and will confine his evidence to the matters that were the subject of his ruling.
It appeared to be conceded before us that the decision not to edit the complainant’s evidence, but instead attack it by reference to its detail, was motivated by the success of the acquittals sustained at the first trial. That said, an alternative reason was proffered — albeit faintly — for the failure to edit the complainant’s evidence, and this reason was that the judge had given his ‘implicit’ or ‘tacit’ approval to the manner in which the prosecutor adduced the complainant’s evidence.
It was accepted, however, that the trial judge had expressly invited counsel to seek edits of the recorded evidence of the complainant.
As for the prosecution’s leading of the selfie black left eye photo at trials two and three, the applicant submitted that this was an example of ‘how far th[ese] trial[s] got off track in terms of the admission of context evidence.’ But even in respect of this particular piece of evidence, it seemed to be conceded that once the complainant’s credibility had been attacked in cross-examination at the first trial ‘then it may well be that there was a legitimate purpose for a piece of evidence like that’.

Ground 2

Under ground 2, the applicant fixed in writing upon the closing address given by the prosecutor at the third trial.
The applicant submitted in his written case that the prejudice already caused by the overly-detailed context evidence from the complainant was exacerbated by the terms of the prosecutor’s closing address at the third trial. It was submitted that the prosecutor had constructed an illegitimate form of credibility reasoning. It was argued that the prosecutor had invited the jury to accept the complainant as credible when it came to her evidence of the charged acts on the basis that her testimony was supported by her corroborated evidence of context. It was submitted that this argument resulted in the context evidence being employed for a purpose that went beyond the basis of its admission.
In oral submissions, and notwithstanding the terms of ground 2, the applicant focused upon the prosecutor’s address at the second trial. Again, it was submitted that the prosecutor had invited an erroneous form of reasoning. The provenance of the prosecutor’s error, in this regard, was said to lie in the ruling the judge gave prior to the commencement of the second trial. This was when, in allowing the prosecution to adduce evidence of the right eye photos and the selfie black left eye photo, the judge had observed that if the jury accepted that those photos depicted injuries they may use that evidence to ‘support [the complainant’s] version of events and help the jury in an assessment of [the complainant’s] credibility’.[29]
[29]See paragraph 45 above.
The applicant submitted that the trial judge had ‘strayed from what is correct at law’ and allowed the photograph to ‘support or help the jury to assess the credit of the complainant’. It was submitted that this form of illegitimate reasoning was picked up by the prosecutor when, in closing, the prosecutor sought generally to accredit the complainant as to the charged offending by reference to the fact that the complainant’s context evidence was potentially supported.[30]
[30]See the passage from the prosecutor’s closing extracted at paragraph 98 above.
And yet, at the oral hearing of this appeal counsel for the applicant appeared to acknowledge that the prosecution’s tender of the right eye photos and the selfie black eye photo at the first trial may well have been proper in view of the manner in which the complainant had been cross-examined at that trial.

The respondent’s submissions in this Court

Ground 1

It was submitted by the respondent that the complainant’s evidence of context was properly admitted at the second and third trials. This evidence had significant probative value given the nature of the defence attack that was made upon the complainant’s credit and reliability — in particular the attack which alleged that the complainant had not acted in the way a person who had been offended against violently might behave. The context evidence was important in view of the defence’s emphasis upon the complainant’s failure to complain; her attempt to withdraw her police statement; her remaining in the relationship with the applicant; her assertion that the applicant was ‘innocent’ in the application to vary the intervention order; and her sending of love letters to the applicant towards the end of the relationship.
Unless the context evidence was admissible the complainant’s behaviour might seem inexplicable; the charged acts might appear ‘out of the blue’ and thus inherently unlikely; and the motive to lie relied on by defence (that the complainant ‘played the victim’ to obtain emergency accommodation) might seem intuitively plausible.
Sufficient detail of the complainant’s contextual account needed to be given so that that evidence was able sufficiently to play its valid role and not be rendered artificial. The applicant’s counsel had every opportunity to seek edits of the complainant’s recordings, if that had been thought necessary, but this had not occurred. Also, the applicant had failed to point to any particular aspect or detail of the complainant’s context evidence that was said to be overly prejudicial. None of the uncharged acts were more serious than the charged acts. The actual acts of contextual violence were led, it was submitted, in quite a confined manner.
It was submitted that the judge’s directions — in respect of which no exception was taken — sufficiently guarded against any risk that the jury might have misused the complainant’s context evidence.

Ground 2

The respondent submitted that the selfie black eye photo was admitted as context and relationship evidence. It was not admitted as evidence that went to the complainant’s credit in any generalised, or illegitimate, fashion. This photographic evidence need not have been treated any differently to the other context evidence. It was submitted that the prosecutor’s arguments concerning the use to be made of supporting evidence were legitimate. Again, when examined together with the judge’s directions, there was no risk of unfairness.

Consideration

Legal principle

In Quinn v The Queen[31] this Court considered the nature of evidence ‘that places relevant events in their true context, as part of the essential background’,[32] that is to say, evidence that is often referred to as ‘context evidence’. Quinn was a case of alleged sexual offending. Weinberg and Priest JJA observed in Quinn that:
This kind of context evidence may be tendered to explain the circumstances of the offence charged, so that a complainant is able [to] give a full account, and so that his or her description of the charged conduct will not appear ‘out of the blue’ and inexplicable on that account. Such evidence may also assist in explaining why the complainant did not complain in a timely manner about the offending, thus allowing the prosecution to meet a question which would naturally arise in the minds of the jury.[33]
[31](2018) 272 A Crim R 146; [2018] VSCA 82 (‘Quinn’).
[32]Ibid 149 [8] (Weinberg and Priest JJA).
[33]Ibid (citations omitted).
In DPP v Martin (a pseudonym)[34] — another case of alleged sexual offending — this Court observed in respect of context evidence that this type of evidence:
may be relevant for a number of different reasons, including: to provide a background against which to understand the charges laid, explain why the complainant complied with the sexual demands of the accused, explain why the complainant failed promptly to complain, and explain the accused’s confidence in committing the sexual acts or his control over the complainant.[35]
[34](2016) 261 A Crim R 538; [2016] VSCA 219.
[35]Ibid 539 [2] (Redlich, Weinberg and McLeish JJA).
In Ritchie (a pseudonym) v The Queen,[36] this Court differentiated between ‘context’ evidence and evidence of ‘tendency’. The Court observed that tendency evidence, if accepted, ‘may bear directly on the probability of the existence of a particular fact that is in issue in the case’; that is, tendency evidence ‘may add to the probability that the offending, alleged against an accused, did occur’.[37] The Court observed, however, that:
By contrast, context or relationship evidence does not, in that way, bear directly on the guilt of the accused. Rather, the purpose of that evidence is to explain why the parties might have behaved in a particular way, which might otherwise seem quite extraordinary or inexplicable.[38]
[36][2019] VSCA 202.
[37]Ibid [125] (Kaye, Weinberg JJA and Kidd AJA).
[38]Ibid.
It has been said that context evidence is relevant in a more general, and less direct way, than tendency evidence in the sense that context evidence may be said to bolster a complainant’s credibility.[39] As was described by Howie J in Qualtieri:
Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where without the context of the relationship those acts might be inexplicable. But other than generally assisting the complainant’s credibility in this way, context evidence does not make the complainant’s account more reliable than it would be in the absence of that evidence. Context evidence does not make it more likely that the accused committed any of the offences charged in the indictment.[40]
[39]See R v AH (1997) 42 NSWLR 702, 708 (Ireland J, Hunt CJ at CL agreeing at 703, Levine J agreeing at 709) (‘AH’); Qualtieri v The Queen (2006) 171 A Crim R 463, 494 [119] (Howie J, Latham J agreeing at 495 [124]); [2006] NSWCCA 95 (‘Qualtieri’). Both AH and Qualtieri were cited relevantly with approval by this Court in WFS v The Queen (2011) 33 VR 406, 417 [54], 423 [67] (Robson AJA, Buchanan JA agreeing at 408 [1], Whelan AJA agreeing at 408 [2]); [2011] VSCA 347.
[40]Qualtieri (2006) 171 A Crim R 463, 494 [119] (Howie J, Latham J agreeing at 495 [124]); [2006] NSWCCA 95.

In HML v The Queen,[41] Gleeson CJ explained the potential relevance of context evidence by employing the language of s 55 of the Evidence Act 1995 (Cth):
Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.[42]
[41](2008) 235 CLR 334; [2008] HCA 16 (‘HML’).
[42]Ibid 352 [6].
In explaining why evidence of a history of similar sexual activity between a complainant and accused before the occasion of alleged sexual offending may provide admissible context, Gleeson CJ emphasised the common sense foundation for the receipt of such evidence:
Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In Director of Public Prosecutions v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury’s assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.[43]
[43]Ibid (citations omitted).
Hayne J in HML said that:
A complainant’s evidence of what happened on a particular occasion will often make little sense (or at least convey a very different picture) if evidence of the occasion in question is not set in its proper factual context. In cases where the complainant and accused are related by blood or marriage, it is not to be doubted that evidence of that relationship is relevant and admissible. It is relevant because it provides an important part of the context within which the events are said to have occurred, and without which the complainant’s evidence would be incomplete.[44]
[44]Ibid 401 [180].
It has been recognised that it may be necessary, in certain circumstances, for evidence admissible as context evidence to be adduced in a limited or confined manner so as to reduce the risk of unfair prejudice.[45]
[45]Hollingsworth v The Queen (2021) 294 A Crim R 179, 210 [134] (Niall, Kennedy JJA and Macaulay AJA); [2021] VSCA 354; Henderson (a pseudonym) v The Queen [2017] VSCA 237, [70]–[71] (Beach, Ferguson and Coghlan JJA); Murillo (a pseudonym) v The Queen [2020] VSCA 68, [33]–[34] (Kaye JA).

Ground 1

As presented, the point at issue for the purposes of this ground of appeal is really quite narrow. In the first instance, the argument concerns the context evidence given by the complainant. It is not contended that the trial judge erred in ruling the evidence admissible on the bases sought by the prosecution. The applicant’s submission simply focuses on the level of detail that emerged in the complainant’s evidence.
We do not accept the applicant’s contention that the decision by trial counsel not to seek edits was necessitated by any ‘tacit’ approval by the judge of the detail with which the context evidence was adduced. Given the vigour with which trial counsel initially contested the admission of the context evidence, and her willingness to repeatedly seek discharges of the jury, we consider it particularly unlikely that the failure to take up the express invitation to seek edits of the context evidence was anything other than a considered forensic decision. Our view is reinforced by the period that elapsed after the recording of the complainant’s evidence for the first, second and third trials, which meant there was ample time for trial counsel to consider her position. And, as appeared to be conceded in argument before us, the better explanation is that defence counsel, especially in the light of the acquittals sustained at the first trial, formed the view that an attack upon the complainant’s credibility founded upon the inconsistences raised by the context evidence, would be an effective forensic decision. Having surveyed the transcript, in our view that decision was reasonable, in the light of the inconsistencies that emerged.
In circumstances where the very source of the applicant’s complaint on appeal lies in what the applicant considered apparently desirable at trial (now that the applicant concedes that the trial judge’s ruling on admissibility of context evidence was correct); it seems very difficult to conclude that there has been anything resembling a substantial miscarriage of justice.
Further, once it is understood that at least some evidence of the earlier four incidents of violence — and other controlling behaviours enacted by the applicant — had to be admitted as context evidence in this case (and so much is not in dispute), it is not apparent that there was an error or irregularity in the trial occasioned by the prosecutor adducing such evidence from the complainant in a manner that was overly vivid or detailed.
The context evidence in this case played an important role. Quite apart from overcoming the notion that the charged acts would otherwise have seemed to have occurred ‘out of the blue’, the context evidence was necessary to explain why the complainant behaved in ways that might otherwise have seemed counter-intuitive. As becomes evident from the survey of the proceedings that is conducted above, the complainant’s credibility at all three trials was made the subject of repeated and sustained attack by the defence on the basis that the complainant had, inter alia, continued to show the applicant affection; remained in a relationship with the applicant; tried to have the applicant seen as ‘innocent’ by a court empowered to vary an intervention order that was designed for the complainant’s protection; and tried to have her police statement withdrawn. This was all said to prove that the complainant lied when she said that the applicant had offended against her. But it was only when the complainant was able to describe the full nature of her apparent predicament — that is to say, the nature of her relationship with the applicant — that her explanation for why she had acted as she did became potentially rational or explicable. As can be seen, but for the evidence of context, the jury would have been deprived of an ability properly to assess the complainant’s claim to — as she put it — have been ‘Stockholm’d’ by the applicant.
But if the complainant was to be permitted to give such an explanation — and so much is not in dispute — then there had to be an evidential basis for it. The question is whether that evidential basis was too detailed. It is apparent that the prosecutor was mindful of the need to keep the context evidence suitably confined. We consider that the prosecutor largely succeeded in this regard. The context evidence was adduced from the complainant in a manner that was sufficient to ensure that that evidence remained open to be accepted, and thus able to form a proper basis for the complainant’s relevant explanations. This evidence was not dwelt upon excessively. We consider that had the complainant’s context evidence been more tightly confined, it may well have seemed artificial or glib.
That leaves the evidence of the photos, namely, the right eye photos and the selfie black left eye photo. Whilst it may be inferred that the defence saw a forensic advantage in not seeking edits to the complainant’s recorded evidence, the same cannot be said when it comes to the defence’s approach to this particular body of photographic evidence. The defence did consistently seek exclusion of this photographic evidence, in part due to the perception that it tended wrongfully to increase the detail of the context evidence.
But the difficulty that remains in relation to this photographic evidence is that it was all but conceded before this Court that the trial judge was correct to admit this evidence at the first trial in rebuttal, given the manner in which the complainant had been cross-examined at that trial. Given that the complainant was cross-examined in the same manner in trials two and three it is difficult to conclude that this evidence was not admissible at these trials.
In any event, the applicant’s case in this Court was not a complaint about admissibility per se as distinct from a complaint about excessive detail. On that point it is not apparent to us that the evidence of the right eye photos and the selfie black left eye photo operated so much as to increase the ‘detail’ of the context evidence as it did to provide support for evidential detail that was already in existence.
The complainant’s recorded evidence was that her relationship with the applicant was characterised by almost constant violence, albeit that the four nominated occasions that formed the subject of the judge’s initial ruling on context were the only other incidents of violence that she could recall with any particularity. Properly characterised, the right eye photos and the selfie black left eye photo did not increase the detail of the context evidence. Or, if they did, then any such increase was only marginal.
Finally, it cannot be overlooked that the judge spent considerable time directing the jury at both the second and third trials as to how the jury were, and how they were not, to use the evidence of context in this case, including how they were to use the right eye photos and the selfie black left eye photo. Importantly, the judge told the jury that they were not to reason that if they accepted the context evidence in this case, then it followed that the applicant was therefore guilty of the charged offences. As will be seen when consideration is given to the following ground of appeal, the jury were told that the right eye photos and the selfie black left eye photo could support their consideration of whether the complainant and the applicant had an abusive relationship, but could not support the individual charges. The judge’s directions weighed significantly against any risk of misuse by the jury of the context evidence.
Ground 1 must be rejected.

Ground 2

The essence of the applicant’s case under this ground is that the prosecutor invited, in his closing address, an illegitimate form of ‘bootstraps’ type of credit reasoning. In short it is said that the prosecutor argued basically along the following so-called illegitimate lines: ‘if you can accept the complainant as to her context evidence because that evidence is corroborated then you can accept what she says when it comes to the charged acts’.
As a preliminary matter, it must be recognised that the manner in which this ground was presented to the Court was shrouded in a degree of obscurity. Orally, the argument centred upon the second trial; whereas in writing, and according to the terms of ground 2, the focus was rather upon trial three. It may be assumed that the applicant pursues the same point in respect of both trials even though, as is apparent, there was no relevant exception taken by defence counsel at trial two.
As the authorities show, context evidence may be said — if accepted — to operate in a manner that enhances a complainant’s credibility. When the prosecutor’s addresses are examined in context, we see no error in how the prosecutor argued that could occur in the present case.
The prosecutor, at both trials, was disposed simply to remind the jury at what points the complainant’s evidence (both in relation to charged acts and uncharged acts) was supported by independent evidence. The prosecutor did not, as it has been argued, suggest that the complainant’s evidence of the alleged offending could be believed simply on account of the fact that her evidence of uncharged acts was independently supported.
The argument made by the prosecutor was an argument that — clearly enough — anticipated the giving by the judge of a unreliable witness warning — a warning that would, similarly, invite the jury to look for independent support for the complainant’s evidence in both its charged and uncharged manifestations. The prosecutor’s approach was to point to the complainant’s context evidence and note where that evidence was supported, as well as to point to the complainant’s charged evidence and note, also, where that particular evidence was independently supported. That left the context evidence to do the work that was properly assigned to it by means of the judge’s directions.
Whilst the prosecutor could be taken to have been arguing that the complainant’s context evidence became more credit-worthy on account of its independent support, it is not apparent that he argued that the complainant’s version of the charged offences became more credit-worthy by dint of the existence of the same independent evidence. And if there was any risk that the jury might have understood the prosecutor in such a manner, then that risk was removed by the terms of the judge’s unreliable witness warning. When — as part of the unreliable witness warning — the judge invited the jury to look for separate, independent pieces of evidence that supported the complainant’s testimony, the judge made clear that those pieces of evidence that were supportive of the complainant’s context evidence could not operate to support the complainant when it came to her account of the charged events. As the judge put it in the second trial:
But there is evidence that is independent of her in this case, and it depends on your assessment of it. You have evidence of photographs of injuries and evidence of observation of injuries. A number of witnesses saw injuries. [JG] this morning, you will remember she saw bruises on her neck, her arms, her legs and in various places. I think [LW] saw injuries on two occasions, one on her arm in September and another on her body when she came in in June 2019 and was seen in the foyer of the premises. [GC] gave evidence of observing the [applicant] arguing with her and threatening to punch her head in.
They are separate, independent pieces of evidence, with the possible exception of [LW’s] observations in June 2019. Because what is relevant about that — that is around about the time that the alleged offences are said to have occurred. But everything else, all the others, happen at a different time, separate and distinct from when it is that [the complainant] says she was assaulted and raped.
It seems to me, and I think I can direct you, that the only independent evidence separate from [the complainant] is the photographs taken by the police officer that she says demonstrate the cuts to her backside caused by the G-string being torn, she said. So you have independent evidence. If you accept that she does have injuries to that part of the body, the photographs and the evidence of the police officer having taken those photographs and seen the injuries could be used by you to support her evidence that it demonstrates she did have such a wound.
As to the other evidence, it is not corroborative. I will take that word away. As for the other evidence, the statements to [JG], observations of [CS], the observations of [GC] and the observations of [LW] in January 2019, they can only be supportive of the evidence that goes to a context as to the relationship she had. It is relevant for you determining [in] whether or not they had an abusive relationship, but it does not support the individual charges.
The only thing that might support the individual charges, as I say, are the photographs of the wounds to — if you accept they are scars to her behind. Again, to some extent, however, you are reliant upon [the complainant] to tell you that she got them at the hands of [the applicant]. It does establish, if you accept that there is a wound there, that she had a wound, and to that extent supports her evidence.
A similar direction was given in the third trial. As the judge reminded the jury at that trial:
So it is not a matter of saying look, she told the truth about that [the context occasions], therefore we accept her evidence about this [the charged event].
…
The other photographs of the other injuries, the photos to her eye, that you have, the selfie photo which we do not know when that was taken do not relate to the charged events, they go more to other allegations of violence in the past.
In these directions the jury were told clearly that the only independent evidence that could support the complainant’s credit in respect of the charged acts were the photos, or such other evidence, that could be directly related to those acts. The jury were told that they could not use the other independent evidence, that had been adduced to the support the context evidence, as evidence that supported the complainant when it came to the charged acts.
These direction put paid to any risk that either jury might have misunderstood the prosecutor’s final addresses.
Ground 2 cannot be upheld.

Conclusion

For these reasons leave to appeal against conviction must be refused.
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[2024] VSCA 203

16 September 2024