Director of Public Prosecutions v Avalos
[2020] VCC 125
•18 February 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DILAN AVALOS (A PSEUDONYM) |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF RULING: | 18 February 2020 | |
CASE MAY BE CITED AS: | DPP v Avalos | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 125 | |
REASONS FOR RULING
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Subject: Tendency Evidence
Catchwords: Tendency Evidence --- Intimate Partner Violence --- Multiple Complainants --- Tendency alleged of frequent and extreme violence without provocation, including use of physical force to the head region and to other parts of the body including with weapons --- Charges of physical violence and Threats to Kill --- Charges of Rape --- Accused denies all violence and sexual violence --- Evidence strongly supports existence of the tendency alleged --- Tendency alleged has significant probative value of the facts in issue, including the Rape charges given close connection between the tendency for extreme violence and the allegations founding the Rape charges --- Probative value substantially outweighs any Prejudicial effect
Legislation Cited: Evidence Act 2008.
Cases Cited:McPhillamy v The Queen (2018) 92 ALJR 1045 --- Hughes v The Queen (2017) 92 ALJR 52 --- R v Bauer (2018) 92 ALJR 846 --- KJM v The Queen (No 2) [2011] VSCA 268 --- Phillips v The Queen (2006) 225 CLR 303 --- Jacobs (a pseudonym) v The Queen [2017] VSCA 309.
Ruling: Evidence admissible as evidence of Tendency
| APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms N Rogers SC & Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Mr P Chadwick QC & Ms K Rolfe | Valos Black & Assoc. |
HER HONOUR:
Indictment B.1
1 By way of indictment H11802169B.1, Dilan Avalos[1] is charged with 20 offences in relation to 4 separate female complainants.
[1] A pseudonym.
2 In relation to Adelle Coughlan[2] the accused is charged over period 9 April to 9 May 2010 with three charges of rape, two charges of intentionally causing injury one charge of assault and one charge of threat to kill.
[2] A pseudonym.
3 In relation to Tracy Sutcliffe[3] he is charged over a period from January to October 2013 with two charges of rape three charges of intentionally causing injury and a charge of common assault
[3] A pseudonym.
4 In relation to Jodie Crane[4] over the period March to May 2014 he is charged with one charge of rape one charge of intentionally causing injury and one charge of threat to kill
[4] A pseudonym.
5 In relation to Sonia, known as Cindy, Dukes[5] over the period August to November 2014 he is charged with two charges of rape and two charges of threat to inflict serious injury.
[5] A pseudonym.
6 I will return to the facts in the course of my ruling.
Prosecution Application
7 The Prosecution make application to lead tendency evidence in relation to each charged offence. That tendency evidence is said to come from each complainant and in addition, two women (Monica Garcia[6] and Brenda Jackson[7]) who made allegations of violence against the accused, to which he pleaded guilty. The prosecution say that evidence of each complainant and Garcia and Jackson is admissible as tendency vis a vis each other complainant.
[6] A pseudonym.
[7] A pseudonym.
Defence Response
8 The Defence Response outlines the facts in issue. In summary;
· Where there are rape allegations, the accused says any sexual activity was consensual. He denies any anal rape.
· Where there are allegations of physical violence, he denies those events, but says if satisfied they occurred the jury cannot be satisfied he had the requisite intention to cause injury.
· Where there are allegations of threats, the accused denies making any threat, or having any intention to cause an apprehension of fear.
· Further, in relation to each of the 4 complainants the Defence response states that the credibility and reliability will be in issue.
9 The Defence object to the admissibility of the evidence as evidence of tendency. They also submit that the trial on the matters of Coughlan and Sutcliffe should be separate from the trial on the matters of Crane and Dukes.
Statutory Framework and case law
10 S.97 of the Evidence Act 2008 relevantly provides that evidence of tendency is not admissible unless notice has been given, and the court thinks that the evidence will, either by itself or having regard to other evidence, have significant probative value.
11 The key condition for admission of evidence as tendency evidence is the court’s Assessment that the evidence, taken by itself or taken with other evidence to be adduced, has significant probative value.[8]
[8]McPhillamy v The Queen (2018) 92 ALJR 1045 at 1048 at para 16.
12 The High Court has considered tendency evidence on a number of occasions in recent times and in particular in Hughes v The Queen[9] where the High Court considered tendency in a case concerning multiple complaints.
[9]Hughes v The Queen (2017) 92 ALJR 52.
13 In Hughes the High Court stated that an assessment of whether the evidence has significant probative value in relation to each charge involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency and second, the extent to which the tendency makes the facts making up the charged offence under consideration more likely.[10]
[10] Ibid at para 41.
14 When conducting this assessment, the High Court in Hughes confirmed that there is likely to be a high degree of probative value where there is strong support for both the first and second considerations.[11]
[11] Ibid at para 41.
15 Where there are multiple complainants in a sexual offence matter, probability reasoning which underpins tendency evidence dictates that for evidence of sexual offending against one complainant to be significantly probative of sexual offending against another complainant, there must ordinarily be some common feature which links the two together.[12]
[12]R v Bauer (2018) 92 ALJR 846 at para 58.
16 If the evidence meets the threshold test of significant probative value I must then consider the further restriction contained in section 101 of the Evidence Act before the evidence could be adduced. That section provides that tendency evidence cannot be adduced unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
17 Essentially, tendency reasoning involves a form of steppingstone or sequential reasoning by way of an intermediate step towards a conclusion of guilt. It uses a finding that the accused had a particular tendency to find that he acted in a similar way on other occasions. This may make it more probable that he acted in a similar way on the charged occasions. It is based on an assumption that people act in conformity with their habits, or repeatedly act in similar ways.[13]
[13] Simplification of Jury Directions Project, A Report to Jury Directions Advisory Group, ‘the Weinberg Report’
(August 2012), 196 at para 4.41.
18 The tendency to act in a particular way must have a feature about it which is common with the charge under consideration, so the proof of the tendency increases the probability that the accused has committed the offence on the charged occasion.[14]
[14]Bauer op cit at paragraph 58.
19 In R vBauer, the High Court was considering the issue in a case concerning sexual allegations made by a single complainant however they made the following comments with regard to multiple complainant sexual offending:
If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.[15]
[15] Ibid at paragraph 59.
20 The trial judge’s assessment pursuant to s.97 therefore centres upon what each allegation has the capacity to prove and any nexus it may have with the features of the charged conduct under consideration. In making the assessment I am required to take the evidence at its highest. I must assume the evidence is reliable and credible. I must also make that assessment while considering other evidence in the case.
21 Each complainant in this trial makes allegations of rape, therefore this is a multiple complainant sexual offence trial. However it is more than that given the charges of intentionally causing injury, assaults, and threats to kill or inflict serious injury. There is no reason in my view not to apply the tests set out by the High Court in a case such as this where there are multiple complainants alleging violence as opposed to sexual offending. There was no argument to the contrary by defence counsel.
The prosecution notice
22 Turning to the prosecution notice. By way of background, the original indictment filed against Mr Avalos contained allegations by nine complainants. In December 2019 prosecution elected to file over three new indictments, labelled A, B and C, each one containing charges relating to 3 complainants. Tendency notices were filed in relation to each indictment.
23 At the commencement of this trial the prosecution filed a notice of discontinuance in relation to charges pertaining to two complainants on indictment A. The remaining complainant on indictment A, Adelle Coughlan, was joined into a new indictment called B.1. As a consequence, an amended tendency notice (“the notice”) in relation to indictment B.1 was also filed and served. No issue is taken by defence with the timing of that notice.
24 Initially the tendency alleged in the notice alleged tendency by way of a state of mind as well as conduct. During argument the prosecution sought to amend the notice by deleting the reference to state of mind and relying only on conduct alleged. Defence do not object to that course.
25 The tendency therefore under my consideration and which is alleged by the Crown in the notice is as follows:
The prosecution seek to rely upon the tendency of the accused to act in a particular way namely;
while forming or during intimate relationships with Adelle Coughlan, Tracy Sutcliffe, Jodie Crane, Sonia Dukes, Monica Garcia and Brenda Jackson he frequently was extremely violent towards them without provocation by
a) use of physical force to the head region and
b) use of physical force to other parts of the body, including with weapons.
26 The evidence relied upon to establish the tendency is then set out in table A.
27 The notice then outlines the issues in the case to which tendency reasoning applies. They are said to be as follows:
A. Whether, the credibility of each complainant regarding the accused’s alleged violent offending is enhanced having regard to the accounts of the other complainants;
B. Whether, in relation to the charges of rape, having regard to the accused’s use of violence, the complainant consented to the sexual penetration;
C. Whether, in relation to the charges of rape, having regard to the accused’s use of violence, the accused knew that the complainant was not consenting to the sexual penetration, was aware that the complainant might not be consenting or failed to give any thought to whether or not the complainant was consenting;
D. Whether, in relation to charges of intentionally causing injury, having regard to the accused use of violence, the accused intended to cause injury;
E. Whether, in relation to the charges of common assault, having regard to the accused use of violence the accused intended to apply force to the body of the complainant;
F. Whether, in relation to a charge of threat to kill, with regard to the accused’s use of violence, the accused intended the complainant fear that the threat be carried out or knew that the complainant will probably fear that the threat will be carried out; and
G. Whether, in relation to the charge of threat to inflict serious injury, with regard to the accused’s use of violence, the accused intended the complainant to fear that the threat would be carried out or was reckless as to whether the complainant would fear that the threat would be carried out.
28 The tendency set out is relied upon in support of each of the charged acts, making more likely the events founding those charges. To use the old language the prosecution contend that the evidence of each complainant as to the tendency is cross admissible vis-à-vis each other complainant.
29 The defence submitted that the tendency to act in a particular way alleged involves the following features, and that when assessing whether the acts alleged support the tendency, I should consider whether the evidence displays these features, and also the evidence of Ms Garcia and Ms Jackson. I accept that approach, as did the prosecution in response.
To what extent does the evidence support the tendency alleged?
30 Firstly the Prosecution rely on the fact that the accused was either forming or in an intimate relationship with the particular complainant. In other words, one of the common features of the evidence is that these allegations occur in the setting of an intimate partner relationship.
31 In his most recent Defence response dated 13 February 2020, the accused by way of that response
“ … denies that he was in an intimate sexual relationship with each of the complainants or commencing an intimate relationship with them at the time that the offences were allegedly committed. The nature of the association between the accused and each of the complainants differed.”
32 I note that the defence response, dated 13 February 2020, was in response to the new indictment B.1. A similar paragraph, as I’ve just outlined, does not appear in any of the previous defence responses.
33 Turning to my assessment of that feature of the evidence to determine whether it supports the tendency alleged.
34 Adelle Coughlan describes meeting the accused in Footscray. She and the accused started talking and he was telling her how pretty she was. He invited her to a party, and they stayed at another person’s house that night. The next morning they kissed and he invited her to his mother’s house and his bungalow. That night she alleges he rapes her. She alleges rape on the second night in the bungalow. Thereafter they are together for approximately one month.
35 They reside in the bungalow or at his friend’s. They also visited the friend on occasions where they did not stay there. Ms Coughlan accompanied the accused on outings. They spent time with his mother, including having meals with her. The accused expressed jealousy when she looked at other men. She describes the pattern of their days spent together. Ms Coughlan made her complaint of rape to a refuge worker. She says “I told the lady about being raped by Dilan at the start of our relationship.” She says “I was trapped in this relationship.” When she took out an intervention order she described the accused as her partner. The fact she describes wanting to and trying to leave the relationship, the defence say is inconsistent with the prosecution case that they were in a relationship. I disagree. The accused admits by his Defence response that during their time together they had sexual activity.
36 On my assessment taking the evidence of Ms Coughlan at its highest, the alleged events occurred while forming or during an intimate relationship.
37 Ms Sutcliffe describes meeting the accused in Sunshine among a group of people who would drink alcohol at a bus stop. She knew the accused as a friend for approximately 6 weeks before offering him a place to stay. He remained living with her for approximately 9 months. She describes herself being ‘involved’ with the accused. She accompanied him on outings. They spent time with his mother. The accused expressed jealousy when she looked at other men. She describes the pattern of their days spent together. She told a worker Poppie[16] that ‘I was in a violent relationship.’ The accused admits by his Defence response that during their time together they had sexual activity.
[16] A pseudonym.
38 On my assessment, taking the evidence of at its highest, the alleged events occurred while forming and during an intimate relationship with Ms Sutcliffe.
39 Jodie Crane describes meeting the accused at a cafe in Footscray. She stayed with him at his bungalow for 3 days before they went together to her house. On the first night at her house he expressed his jealousy over her ex-partner. ‘He said he was falling for me and getting attached to me.’ He asked her to sleep with him that night. She then alleges the accused assaulted and raped her. She reported the assault to police and the accused was arrested. He was soon after imprisoned on an unrelated matter for 11 days. But after release on both occasions he then lived again with Ms Crane between her house and his mother’s bungalow. He and Ms Crane then moved together to a caravan in Korong Vale and lived there for several weeks. She says ‘Dilan continued to make me sleep with him’. He admits in his defence response that he and Ms Crane had sexual activity.
40 On my assessment of her evidence at its highest, the alleged events occurred while forming and during an intimate relationship
41 Sonia Cindy Dukes states ‘I have been in a relationship with a male person by the name of Dilan Avalos. He is 36 years of age. We were together for four months and during that time we were living at [omitted] in Wychitella.’
42 She had known the accused for 12 months via her then-partner Gordon. After the relationship with Ms Crane ended, Ms Dukes describes the accused moving from the caravan into the house. She says after 2 weeks ‘He started to be a sleazy prick’, however also describes him ‘trying to be a gentleman, helping me with the kids and doing anything I needed help with’. She then ended her relationship with Gordon. She then describes kissing the accused sometimes. On an occasion where she alleges rape, she says the accused said to her ‘You are going to have my kid.’ She says she later required an abortion in relation to a pregnancy with him.
43 She describes the trip to South Australia which involved weeks of living together and with her children, in various tents, cottages and cabins. She describes the accused accusing her of looking at other men including an occasion at a petrol station when he said to another person, ‘What are you doing looking at my fucken misses mate?’ The accused in his defence response admits residing with her in various locations and admits sexual activity with her.
44 On my assessment of her evidence, the alleged events occurred while forming and during an intimate relationship.
45 Monica Garcia refers to herself being ‘in a relationship’ with the accused for 4 or 5 months. She says she and the accused did not live together, but that he would stay over from time to time. The Prosecution summary read at the plea states ‘The accused and the victim, Garcia, were in an intimate relationship.’ I accept the Prosecution submission that the accused, having accepted the summary, accepted that description. It matters not that it was one of a number of summaries read on that day.
46 Similarly, Mr Avalos pleaded guilty to offences committed against Brenda Jackson and accepted the “Agreed Summary of Prosecution Opening” which included the fact that the victim reported the assault by ‘her boyfriend.’
47 In relation to both of those women, my assessment is that they were forming or in intimate relationships with the accused.
48 I find therefore that the evidence of each complainant, taken at its highest, is that each allegation occurs in the context of forming or when in an intimate relationship with him.
49 The next aspect of the tendency is said to be that the accused ‘he was frequently extremely violent towards each of those women’. That is, to each woman he was frequently extremely violent.
50 The defence challenged the use of the word ‘frequently’. They say it is vague and likely to be confusing.
51 ‘Frequently’ is a commonly used word, easily understood. It will be a matter for the jury to determine whether each complainant says the violence was frequent.
52 In making my own assessment to determine whether this aspect of the tendency alleged is borne out by the evidence, I note the following:
53 The 7 charges relating to Adelle Coughlan span one month. That in itself suggests the alleged violence occurred frequently. The tendency notice also relies on uncharged acts, which she describes as occurring almost daily.
54 The 6 charges relating to Tracy Sutcliffe allegedly occur within an eight month period. However, the tendency notice refers to uncharged acts, including that he would assault her almost daily, and specifically that on at least six separate occasions, the accused strangled her to the point of unconsciousness.
55 The four charges in relation to Jodie Crane relate to a period of two months. Uncharged acts include additional allegations of violence on other occasions.
56 The four charges in relation to Cindy Dukes relate to a timeframe of three and a half months. In addition, there are a number of uncharged acts relied on which are said to have occurred in addition to the charged events and to have occurred regularly.
57 In relation to Brenda Jackson, the accused pleaded guilty to a rolled up charge which covered a period of 15 days. As the prosecution summary makes clear, the accused admitted assaulting Ms Jackson almost daily during that period of time.
58 In my view there is no foundation on which to challenge the fact that the events alleged by each of the 4 complainants and Ms Jackson are said to have occurred frequently.
59 In relation to Ms Garcia the accused pleaded guilty to recklessly causing injury in relation to her. That charge related to a single event in the context of a relationship said to last four to five months. It does not bear the hallmark of ‘frequent’ violence. I will return to her in due course.
60 Next, the defence take issue with the tendency alleged as one of ‘extreme violence without provocation by use of physical force to the head region and physical force to other parts of the body including with weapons’.
61 The submission is that the term ‘extreme violence’ is without definition, and therefore likely to be misunderstood and/or misapplied by the jury. In my view that is also a word which is able to be understood and applied by jurors. The dictionary definition is simply ‘reaching a high or the highest degree, very great.’ Other synonyms include ‘severe’, ‘great’, ‘extraordinary’, ‘intense’, ‘major’.
62 While there was some acceptance that, for example, use of the hammer involved ‘higher’ violence, no concession was made by senior counsel for the defence that any one event, or combination of alleged events in a single incident could be said to constitute extreme violence.
63 That included events which involved allegations by one complainant on a single occasion of being punched, grabbed by the hair, dragged, tied up with a belt, covering of the mouth, and being head butted to the back of the head. That included events alleged by another complainant on a single occasion which included being choked to the point of unconsciousness, then coming to and being thrown against a wall before being grabbed again by the throat, making a threat to stab her, kill her and her cat, and then stabbing the complainant in the arm.
64 Further, objection was taken to the effect, that in the context of domestic violence, there is nothing extreme about the allegations here.
65 There is no merit in any submission made as to the use in the notice of the term ‘extreme violence’. Consideration of the events alleged, and which are outlined in table A of the tendency notice, demonstrate that these are allegations of serious and extreme behaviour. The two short examples I have referred to bear that out. It is not to the point that some are less extreme than others. Many of these allegations go beyond what might be described as common to intimate partner violence - some incidents of and by themselves are extreme.
66 I accept the prosecution’s submission that in part the extreme nature of the violence alleged is that it is repetitive and enduring. In my view, that does includes allegations of threats, some in themselves extreme, and as was pointed out, threat to kill is included in Schedule 1 to the Sentencing Act 1991 as a serious violent offence.
67 The fact that on some occasions a threat was accompanied by the use of a weapon, and on other occasions not, does not detract from the descriptor ‘extreme violence’.
68 A number of the complainants refer to the accused’s frequent possession of and display of weapons in a manner designed to be intimidating. As His Honour Justice Bell said in KJM v The Queen[17] when he was considering a notice in not dissimilar terms to the present one, ‘the core feature of all of the occasions is the accused’s extreme and violent reaction to her partner and threatening to use a weapon during a domestic argument.’ There are similarities in that case to this
[17]KJM v The Queen (No 2) [2011] VSCA 268 Appendix A at paragraph 23.
69 The defence take issue with the contention in the notice that the violence was unprovoked. That argument does not sit with the defence response in which all violence is denied. Where reference in the defence response is made to requisite intention, that is in relation to intention to cause injury, or cause fear. So again, the issue is whether those events occurred, and if so, not that they were provoked or that the accused acted in self-defence. The use of the word provoked was not said to be in the legal sense. It is a matter for the jury to assess that aspect also.
70 However, and again referring to Justice Bell in KJM, ‘what is alleged as a tendency is a tendency to behave in a threatening and aggressive way towards domestic partners in arguments. It would show’ in that case, ‘that she has a tendency to lose control and react in an extreme way involving the use of weapons.’[18] In KJM, those factors were said to be relevant to the claim of self-defence. Here they are more general.
[18]KJM op cit appendix A at paragraph 30.
Conclusion
71 In consideration of the first step outlined in Hughes, that is, whether the evidence supports the tendency, I come back to the consideration of the evidence of each complainant, including Ms Jackson.
72 On my view, on examination of the matters outlined in Table A in relation to the charged acts (or events preceding the charged sexual acts) and the uncharged acts, the evidence of each complainant and the evidence of Ms Jackson has capacity to support the tendency alleged, and in my view, to provide strong support in establishing that the accused had the tendency described.
73 In relation to the evidence of Ms Garcia, in my view it does not support the tendency alleged, given the features of it are quite different. It is a one off occasion during a four to five month period. The violence, though serious, was not in the ‘extreme’ nature of the charged allegations here. There is no allegation of use or threatened use of weapons. I note the charge to which he pleaded guilty was recklessly cause injury rather than intentionally, and I note that in terms of the temporal connection it is the start and predates these allegations.
74 In my view, the evidence of Ms Garcia has a different complexion to the descriptions given by the other women. I do not believe that evidence reaches the threshold as supporting the proof of the particular tendency alleged, and I do not propose to admit it in this trial.
To what extent does the tendency make more likely the facts making up the charged offence?
75 Turning to the second question, to what extent does the tendency make the facts making up the charged offence under consideration more likely.
76 In a multi-complainant case, probability reasoning dictates that for evidence of one complainant to be significantly probative of offending against another complainant, there must ordinarily be some feature which links the two together, some common feature.
77 The tendency alleged here is not a sexual interest or to sexually offend. It is necessary to say something of the sexual allegations made here to understand the relationship they have to the tendency alleged, and by that I’m referring to the rape charges.
78 Each of the four complainants on the indictment makes allegation/s of rape. The circumstances of those allegations are broadly similar, namely on each occasion physical violence precedes sexual penetration, either immediately or close in time.
79 In relation to charges 1 and 2 (Coughlan), the description is of being slapped to the face, picked up by the throat, which was squeezed, punched to the face and then held on the bed.
80 In relation to charge 3 (Coughlan), the description involves being punched to the face, grabbed by the hair, dragged to the bed, tied with a belt around the wrists, then being held down.
81 In relation to charge 10 (Sutcliffe), the allegation is of being pushed to the couch, and punched in the face numerous times.
82 Charge 11 (Sutcliffe) is said to be preceded by a lengthy physical assault involving multiple hits to the face and upper body before being grabbed by the hair and dragged to the bed.
83 Charge 14 (Crane) involves allegations of a threat of serious violence to a third person, then being grabbed by the throat and choked to unconsciousness, having a knife held to her throat and threatening to kill her, before stabbing her in the arm.
84 The lead up to Charges 17 and 18 (Dukes) involves allegations that the accused grabbed the complainant by the hair, that she was thrown across the room, kneed in the chest, and that while her clothes were removed the accused held a knife.
85 The Defence Response in relation to each complainant states the following matters are denied: (a) that the complainant was anything but a willing participant in the sexual activity that took place, and further denied (b) that the accused was violent toward the complainant. I note again the credibility and reliability of the complainant is said to be in issue. Therefore, whether any sexual penetration was preceded by acts of violence will be critical to those issues.
86 The prosecution submit, and I accept, that submission by a complainant because of force, fear of force, or harm is directly relevant to the assessment of the existence of consent and of the accused’s reasonable belief in consent.
87 The prosecution case is that tendency reasoning can be relied on by the jury to reason that acts of violence, including those preceding a sexual act, did occur, namely, by enhancement of the credibility of each complainant having regard to the accounts of each other complainant and Ms Jackson. That is, the tendency for violence makes more likely the violent acts charged, including those preceding the rapes.
88 This in turn would have a bearing on the facts in issue surrounding the rape charges. That is, on the issue of consent, having regard to the accused’s use of violence, whether the complainant gave free agreement to sexual penetration. And, on the issue of the accused’s state of mind as to consent, that his use of violence would be relevant to a claim that he did not know that the complainant was not consenting, or might not be consenting, or that he failed to give any thought to whether or not she was consenting.
89 So my assessment of the evidence for the purpose of answering the second question - to what extent does the tendency make the facts making up the charged offence under consideration more likely - in relation to the rape allegations is on that basis. To answer the defence’s the rhetorical question, ‘how can an allegation of physical violence by, for example, slapping one woman on one occasion, go to the likelihood of non-consensual sexual penetration occurring with a different complainant on a separate occasion?’ That is how.
90 So although there was a concession by the Prosecution that in some cases, whether one complainant consented cannot be said to be probative of whether another complainant consented (or equally to the issue of the accused’s state of mind)[19] - the situation here is different.
[19]Phillips v The Queen (2006) 225 CLR 303 at paragraphs 46-50.
91 That is what the Court in Jacobs v The Queen[20] allowed for: the possibility that there may be some cases where evidence might be cross-admissible in proof of an accused’s state of mind. ‘The modus operandi similarities will often be highly relevant to prove… disputed conduct relevant to consent’, and by that I take the court to be referring to both the state of mind of the complainant and the accused.
[20]Jacobs (a pseudonym) v The Queen [2017] VSCA 309 at paragraphs 38 – 48.
Common feature/s
92 So turning now then to look at whether there are links or common features with respect to these complainants, as the High Court in both Hughes and Bauer, where there are multiple complainants I must look to the common features, or links before I could conclude that proof of a tendency makes more likely the charged events.
93 Firstly, in my view there is a temporal link or connection between these alleged events, running as they do between 2010 and January 2015.
94 The common features here are several -
95 First, the nature of relationship between the parties, as I’ve outlined.
96 Second, the manner in which the accused met a number of the women, who were suffering some vulnerability, for example homelessness, and offered help.
97 Third, the location of a number of the events was in the bungalow at the rear of the accused’s mother’s premises, in the residence of the complainant or in jointly occupied premises, including where the accused was staying with Ms Crane during the trip to South Australia.
98 Fourth, the violence was often prompted by an allegation that the complainant was looking at or somehow interacting with or involved another man. Often those allegations of infidelity occurred on public transport, for example Ms Coughlan on the bus, Ms Coughlan on the train, Ms Coughlan on the bus, Ms Sutcliffe on the train or tram, Ms Sutcliffe on the train, Ms Sutcliffe laughing with the man at the bus stop.
99 Fifth, the violence was sometimes prompted by a refusal to have sex.
100 Sixth, two complainants allege anal rape, and Ms Dukes says the accused told her he had anally raped her while she was unconscious.
101 Seventh, the, violence often involved physical force to the head region by way of slapping, striking to face, or punching commonly to the side of the head and to the eyes, and often resulting in black eyes.
102 Eighth, the violence often involved grabbing of the hair and being pulled by the hair.
103 Ninth, the violence often involved choking, sometimes to the point of unconsciousness.
104 Tenth, it also involved numerous assaults to the body including punching to the stomach, kicking to the ribs, kicking to the legs;
105 Eleventh, the accused was almost always in possession of weapons. A number of complainants describe him always carrying a knife on his belt or having a knife by the bed, carrying a screwdriver, and playing with or revealing them in an intimidating manner;
106 Twelfth, in the context of being commonly in possession of a knife or a screwdriver, he made threats to use those weapons. Ms Coughlan describes the threat to slit her throat. Ms Sutcliffe says he held a knife against her neck and threatened to kill her with it. Ms Crane says he held it to her throat and threatened to kill her, to kill her cat, and to stab her. Ms Dukes says he held a knife to her stomach. He also threatened to cut the tattoo of her partner’s name out of her back. She describes the accused threatening to stab her in the neck with the screwdriver. She says he threatened to stab her in front of the police. He threatened to ‘carve her up’ after stabbing the knife into the ground in front of her. He chased her with a knife and threatened to kill her with it. The nature of other threats included a threat of having others commit sexual violence against Ms Dukes and her mother;
107 Thirteenth, allegations of the actual use of weapons have common features. They include use of a knife to stab Ms Sutcliffe on two occasions, using the claw hammer to strike Ms Sutcliffe in the leg, using the screwdriver to smash the shower screen while she was naked and showering, holding a knife to the throat of Ms Crane, stabbing her in the arm; stabbing her in the hip, using a saucepan as a weapon to hit Ms Dukes, stabbing her in the thigh with a knife, using a baton to hit[21] Ms Jackson.
[21] Should be ‘poke’.
108 Next, the frequency of the violence is another common feature, including the fact that several complainants describe it as almost daily.
109 Next, the extreme nature of the violence is another common feature, as is the unprovoked nature of the violence.
110 I take into account the other evidence in the case. In doing so I note there are other common features described by the complainants surrounding their relationships with the accused and surrounding the allegations. Some of those common features are as follows.
111 That violence often occurred when the accused was drunk or drug affected, that it was often accompanied by derogatory language and verbal abuse towards the complainant and thirdly that there are other allegations of controlling behaviour such as taking money, taking a complainant’s medication, not permitting a complainant to seek medical attention, isolating the complainant from family and friends.
112 The defence submit that the purported tendency Is not capable of affecting the probability of the facts in issue. They submit that the tendency does not enhance the credibility of each complainant, as the accused’s violent offending varies widely. As higher courts have opined, where there are common features, differences in account do not detract from the common features.
113 There are in my view, clear links or common features as I have just outlined.
114 Proof of the tendency and the common features which link the allegations of one complainant to those of each other complainant, is capable in my view of affecting the jury’s assessment of the likelihood that the accused committed the offences against each other complainant. In my view, it is strongly so and likely to affect that assessment of the facts in issue to a significant extent.
115 I want to turn specifically to the offending against Ms Jackson.
116 The accused pleaded guilty to an offence and was convicted. It is accepted that that conviction would not ordinarily be before the jury. However, the circumstances of that offence that is, the common features with the complainants on the indictment, to which I have referred, mean the evidence of Ms Jackson is strongly probative of the tendency alleged, and strongly capable of making more likely the existence of a fact in issue in this trial for each particular charge. Where the accused’s defence response is that he was never violent to any of the current complainants, the fact of his admission by his plea to that violent offending against Ms Jackson in similar fashion to another woman who was his intimate partner, in a time frame which is temporal, makes that evidence significantly probative. I will return to the consideration of prejudicial effect.
117 In summary however, in answering the two questions in Hughes, in my view the evidence outlined in Table A is strongly supportive of the existence of the tendency alleged, and taken by itself and with other evidence, it strongly supports proof of facts in issue in each charged offence. Therefore, the evidence has significant probative value.
Section 101
118 Turn to consideration of s.101, I will not repeat its terms. Tendency evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
119 The High Court in Hughes outlined a number of ways tendency may cause a prejudicial effect[22].
[22]Hughes op cit at paragraph 17
120 Here the prosecution accept the tendency evidence is inherently prejudicial. That is so because of the serious nature of and repetitive nature of the allegations.
121 The risks here include overwhelming the jury with the nature and breadth of allegations. The prosecution has taken steps to limit the number of charges on each indictment and the amount of material which the jury would be required to hear, firstly by separating the complainants into separate indictments, and secondly as recently as last week by withdrawing several charges. The number of charged acts on indictment B.1 is 20. The number of uncharged acts is said to be 24, but it is artificial as a result of frequent nature of those allegations. There is a likelihood here of emotional response to that material.
122 Will it swamp the jury? Will it detract them from consideration of the facts in issue in relation to each individual charge? Those are matters I must consider in determining the prejudicial effect against the accused.
123 Juries are asked to undertake complex tasks every day. That task often involves multiple charges on a single indictment. It commonly involves a multitude of uncharged acts.
124 In child sexual offence cases, for example, it is not uncommon for a complainant to allege that an accused repeatedly and regularly offended against her or him and for that to result in a raft of individual charges. It is not uncommon for those charges to be against a setting of a multitude of uncharged acts. Simple examples which are common are, ‘He came into my room every night and touched me.’ Or, ‘Any time mum was out he would start touching me.’ It is not uncommon for those events to have occurred over a number of years.
125 The nature of child sexual offences is usually such as to have the capacity for an emotional response for a jury, or to cause repulsion.
126 Juries however, follow directions with respect to how they undertake their task of determining whether the prosecution has proven the facts in issues in relation to each offence. They are repeatedly told to put aside any emotional reaction. They are told of the limitations of tendency evidence, specifically that it is only part of the prosecution case.
127 I accept it is a high number of charges here, accompanied by a breadth of uncharged acts. Having said that, I do note some of the relationships were of very short duration and so the allegations are, to an extent, contained.
128 Specifically in relation to the evidence of Ms Jackson, the prejudicial effect of that evidence is that the jury will be aware that the accused was convicted of another offence. The power of that evidence in terms of its probative value is that the accused, by his plea of guilty, admitted the offending - offending against an intimate partner which was unprovoked, frequent, and extreme, including to the head and the body at times with a weapon. He has therefore admitted behaviour which reflects precisely the tendency alleged. Given the strength of that evidence, in my view it is not outweighed by any prejudicial effect against the accused.
129 Given the strength of the tendency evidence more generally in relation to the complainants, having taken into account those considerations of the risks I have just outlined in the fact that juries do commonly deal with risks, ultimately, in my view, the probative value of the tenancy evidence is not outweighed by any prejudicial effect against the accused.
130 If I am wrong in that conclusion, however I have considered whether Directions can address the issue of prejudice. In my view they can. As I said, the jury will be given directions in relation to each charge with respect to the elements of which they need to be satisfied, they will be told, and often repeatedly, that their decision is an intellectual exercise and that they should put aside any emotion or other consideration.
131 They will be directed as to the use of ‘other misconduct’ - uncharged acts as well as broader misconduct such as potentially controlling behaviours.
132 They will be directed as to the way they can and cannot use the tendency evidence - if they accept it - of one complainant vis a vis each other.
133 They will be given and anti-propensity direction and a non-substitution direction.
134 In my view, those directions can address the prejudicial effect of the evidence.
Conclusion
135 In all the circumstances, I find the tendency admissible pursuant to s.97 and not excluded under s.101.
136 And I so rule.
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