Director of Public Prosecutions v Franklin (No 5)
[2024] ACTSC 196
•24 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Franklin (No 5) |
Citation: | [2024] ACTSC 196 |
Hearing Date: | 14 February 2024, 8 April 2024 |
Decision Date: | 24 June 2024 |
Before: | Baker J |
Decision: | (1) The prosecution is permitted to adduce the evidence of the further 2019 incident as relationship or context evidence. |
Catchwords: | CRIMINAL LAW – Application to adduce prior evidence of family violence in respect of family violence and sexual violence offending – s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – consideration of relationship and context evidence – application granted |
Legislation Cited: | Crimes Act 1900 (ACT), ss 27(3)(a), 28(2)(a), 34, 54(1) Criminal Code Act 1995 (Cth), s 474(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74A Evidence Act 2011 (ACT), ss 56, 137 |
Cases Cited: | DPP v Mastalerz [2024] ACTSC 30 DS v The Queen [2022] NSWCCA 55 DPP v Franklin (No 4) [2024] ACTSC 35 Marshall v The King [2023] ACTCA 11 MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 R v BC (No 3) [2020] ACTCA 49 R v Fordham (1997) 98 A Crim R 359 R v PAB [2006] QCA 212; 1 Qd R 184 R v Sadler [2008] VSCA 198; 20 VR 69 R v Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 |
Texts Cited: | Revised Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) |
Parties: | Director of Public Prosecutions ( Crown) Patrick Franklin ( Accused) |
Representation: | Counsel S Jerome ( Crown) K Ginges ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 214 of 2022 SCC 215 of 2022 SCC 310 of 2023 |
BAKER J:
Introduction
The accused, Patrick Franklin, has been charged with the following nine offences in an indictment dated 18 January 2024:
(a)Count 1 (CC2022/4895): choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT).
(b)Count 2 (CC2022/7508): choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT).
(c)Count 3 (CC2022/4896): choke render insensible, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT).
(d)Count 4 (CC2022/4898): forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT).
(e)Count 5 (CC2022/4899): choke render insensible, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT).
(f)Count 6 (CC2022/4900): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(g)Count 7 (CC2022/7513): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(h)Count 8 (CC2023/9300): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(i)Count 9 (CC2023/9301): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
Counts 1 to 7 relate to an incident that is alleged to have occurred on 18 May 2022. Counts 8 and 9 relate to an incident that is alleged to have occurred on 2 November 2019.
On 14 March 2024, the prosecution filed an application to adduce evidence of further incidents of family violence perpetrated by the accused against the complainant under s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). This application is granted for the following reasons.
Background
The factual background to the proceedings is set out in DPP v Franklin (No 4) [2024] ACTSC 35 at [7] – [30].
In brief, the prosecution alleges that on the evening of 1 November 2019, the accused and the complainant (who were living together, and in a relationship “of sorts”), went out to celebrate the accused’s birthday with friends. They returned home in the early hours of 2 November 2019. The prosecution alleges that shortly after they returned home, there was an altercation between the complainant and the accused, and that, during that altercation, the complainant was sexually assaulted by digital penetration of her vagina and/or anus.
The prosecution further alleges that in 2022, the complainant attended the accused’s house. They had an altercation in which the accused assaulted, repeatedly choked, and suffocated her. The complainant lost consciousness twice. The accused put the complainant in the boot of her car and sexually assaulted her by penetrating her vagina and anus. He drove to the Glenloch Interchange, where he pulled the complainant out of the car by her hair and left her on the road.
On 9 October 2023, the prosecution filed an application to adduce tendency evidence of the 2019 allegations (described as “incident 1”) and the 2022 allegations (described as “incident 2”), in support of the following alleged tendency:
The accused, when angry, had a tendency to digitally penetrate the complainant’s vagina and anus without consent, to demean and dominate her.
On 23 February 2024, I ruled that this evidence was admissible as tendency evidence: Franklin (No 4) at [69].
The family violence evidence
By way of application filed 14 March 2024, the prosecution seeks to adduce evidence of harassment, including harassing texts, calls, and evidence that the accused poured petrol over the complainant’s belongings, which are alleged to have occurred between 17 January 2019 and 23 January 2019 (“the further 2019 incident”). (The application initially also sought to adduce evidence of an altercation that occurred on 10 March 2020, but this application is no longer pressed.)
The further 2019 incident
Evidence of the further 2019 incident is contained in a statement of the complainant dated 23 January 2019 and an AFP Statement of Facts.
Statement by the complainant
In her statement to police, the complainant says that she began living with the accused in mid-October 2018. At this time, their relationship was purely platonic. On 17 January 2019, the complainant had an argument with the accused after the accused demanded money from her, which the complainant said that she did not didn’t owe. Following this argument, the complainant decided to move out.
Over the next six days, the complainant was harassed by the accused by telephone and by text. There is evidence that the complainant received 64 calls, 14 voicemails and 122 text messages from the accused in this period.
On the night of 17 January 2019, the complainant left the accused’s house and went to stay with a friend. The complainant states that at about 8:39pm on 22 January 2019, the accused dropped her belongings at her friend’s address. The complainant did not see the accused at this time. However, she later received a text from the accused saying “you couldn’t even come say hello”. At approximately 8:30am the next morning, the complainant’s friend returned home after dropping her partner off at work and noticed the smell of oil or petrol. The complainant and her friend identified the smell as coming from her belongings, including her baby bag and a number of other items. The complainant reported that these items were wet.
At 10:55am the same day, the accused sent the complainant a message stating “you want to play games do ya well go out and smell your stuff may be a bit ruff [sic] bitch”. The complainant stated this made her “feel worried, scared and disappointed”. The complainant also reported feeling concerned by the accused’s threats that he would get her daughter taken off her, as well as for the safety of her friend and her friend’s daughter, as the accused knew where they lived.
AFP Statement of Facts
The AFP Statement of Facts records that the complainant contacted police on 23 January 2019 to report she had been “receiving excessive and aggressive text messages, calls and voicemails” from the accused since moving out of his house.
Whilst the complainant was giving her statement, police observed the accused called the complainant approximately 30 times, in addition to sending texts. Police listened to a number of the voice mails and read the majority of the messages from the accused. Examples of the messages included:
“you fucking gay bitch cunt I fucking hate you cunt I actually would love to hear your dead”;
“I hope he bashes you … fucking whore mother die your daughter will be better off living without you or a crack head dad”; and
“with your crack head ex-partner I hope he kills you and your daughter go die in a hole you gutter rat”.
The accused was later charged with using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). He pleaded guilty to, and was convicted of, this offence.
Principles
Section 74A of the EMP Act provides as follows:
74AEvidence of family violence may be relevant evidence
(1)In a sexual offence proceeding, evidence of family violence may be relevant evidence in the proceeding if it provides context for a fact in issue in the proceeding.
Note For when relevant evidence is admissible in a proceeding, see the Evidence Act 2011, s 56.
(2)In considering whether evidence of family violence is relevant evidence, the court must take into account that—
(a)a single act may amount to family violence; and
(b)a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial.
(3)In this section:
evidence of family violence includes evidence of—
(a)in relation to a person—any of the following:
(i) the history of the relationship between the person and a family member, including family violence by—
(A)the family member towards the person; or
(B)the person towards the family member; or
(C)the family member or the person in relation to any other family member;
(ii) the cumulative effect, including the psychological effect, of the family violence on the person or a family member;
(iii) any social, cultural or economic factors that impact on the person or a family member who has been affected by the family violence; and
(b)in relation to family violence generally—any of the following:
(i) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(ii) the cumulative effect, including the psychological effect of family violence on people who are, or have been, in a relationship affected by family violence;
(iii) the social, cultural or economic factors that impact on people who are, or have been, in a relationship affected by family violence.
family member—see the Family Violence Act 2016, section 9.
family violence—see the Family Violence Act 2016, section 8.
Even where relationship or context evidence is admissible under s 74A of the EMP Act, such evidence may still be excluded under s 137 of the Evidence Act, which provides:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
I recently summarised the principles relating to the admission of relationship or context in DPP v Mastalerz [2024] ACTSC 30 at [49] – [59].
In summary, evidence may be relevant as relationship or context evidence where it explains why a complainant responded to the alleged offending in a way that, without the broader context, might seem unexpected or implausible. In some cases, context or relationship evidence may also be relevant to draw inferences about an accused’s state of mind, or “their reason for acting in a particular way towards the complainant”: Mastalerz at [51]. For example, relationship or context evidence may be relevant to explain a complainant’s submission to sexual intercourse in circumstances where the complainant fears that the accused will become violent if they refuse, or as informing an inference that an accused must have known a complainant was not consenting in light of past acts of violence: Mastalerz at [52] – [53] citing DS v R [2022] NSWCCA 55 at [120]; R v Fordham (1997) 98 A Crim R 359 at 369 – 370; R v Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 at [24] – [28], [72]; R v PAB [2006] QCA 212; [2008] 1 Qd R 184 at [24] – [26]; R v Sadler [2008] VSCA 198; 20 VR 69; MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 at [6] – [8].
The “cumulative effect” of family violence is explicitly recognised in s 74A of the EMP Act. This provision affirms the contemporary understanding of family violence, recognising that “a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial”: Mastalerz at [55]; sub-ss 74A(2)b) and 74A(3)(b)(ii) of the EMP Act. The provision was intended to ensure that factfinders can properly “evaluate the true nature of relationships between the parties and why the victim survivor reacted the way as they did”: Revised Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) (“Explanatory Statement to the 2023 Amending Legislation”) at 12 [2].
However, the admissibility of relationship or context evidence does not only depend on the probative value of the evidence. Where the prejudicial effect of relationship or context evidence outweighs its probative value in a criminal trial, the evidence must be excluded under s 137 of the Evidence Act: Explanatory Statement to the 2023 Amendment Legislation at 5.
Evidence may be unfairly prejudicial if it is “liable to be misused by the jury in some way; divert the jury from its task; be evaluated by the jury through some illegitimate form of reasoning; or be used in a way which is irrational or illogical”: Franklin (No 4) at [39], citing Mastalerz at [42]; Hughes at 349 [17]; Bauer at 93 [73]; Marshall v The King [2023] ACTCA 11 at [53]; and R v BC (No 3) [2020] ACTCA 49 at [40]. Unfair prejudice will not arise simply because the evidence supports the prosecution case or inculpates an accused.
The admission of relationship or context evidence, like tendency evidence, may occasion prejudice in various ways: Franklin (No 4) at [39]; Mastalerz at [44], citing Hughes at 349 [17]. In particular, where context evidence is not admissible as tendency evidence, there may be a risk that the jury will use the evidence for the impermissible tendency purpose: Mastalerz at [57]. The warnings and directions that may be given to the jury to ameliorate this prejudice must be taken into consideration when assessing whether the evidence should be excluded under s 137: Mastalerz at [57].
Submissions
The prosecution submissions
The prosecution seeks to lead evidence of one occasion of prior family violence concerning an incident in January 2019 as context or relationship evidence under s 74A of the EMP Act. This incident is summarised above at [12] – [17].
In written submissions, the prosecution contended that the 2019 incident (including the events as set out in the schedule of facts and the complainant’s statement) is relevant to the following facts which will be in issue in the trial:
(a)The true nature of the relationship between the complainant and accused;
(b)The complainant’s reaction towards the accused during and post offending;
(c)Consent;
(d)Knowledge or recklessness as to consent;
(e)Mistaken belief; and
(f)Accident.
In oral submissions, the prosecutor refined this submission. She contended that evidence of the 2019 incident is particularly relevant to explaining the complainant’s reaction towards the accused after the offending. Specifically, she noted that in November 2019, it was the neighbour, rather than the complainant, who contacted police. Further, the prosecutor observed, in her 2023 evidence-in-chief interview, the complainant stated that one of the reasons she did not make a formal complaint to police in 2019 was that the accused was in the house when police came. The complainant said “Pat’s sitting right behind me. He’s going to fucking kill me if I say anything that’s wrong”. The prosecutor submitted that the complainant did not make a complaint at the time because she was fearful of the accused, and that this contention could only be understood in light of the whole history of threatening and abusive text messages which had previously been sent by the accused.
The prosecution contended that the context evidence was also relevant to the alleged 2022 offending. The prosecution noted that the complainant reported she was fearful and thought she was going to die throughout her account. The prosecution further submitted that the further 2019 evidence is relevant to show the factfinder the “whole nature of the relationship” between the complainant and the accused.
The prosecution submitted that the danger of unfair prejudice arising from the potential use of the evidence for tendency purposes can be mitigated by careful judicial directions as to the precise uses to which the evidence can be put, and that the fact the accused behaved in the way he has on prior occasions is not unfairly prejudicial.
The accused’s submissions
Counsel for the accused accepted that the further 2019 incident is relevant to a fact in issue – that is, why the complainant did not immediately report the November 2019 incident to police. However, he submitted that admitting the context evidence would give rise to unfair prejudice under s 137, which could not be ameliorated by way of directions. He contended that the jury would give greater weight to the evidence than the limited purpose for which it is admitted would allow and that there was a risk that the jury would engage in impermissible tendency reasoning (especially as there is separate tendency evidence for the jury to consider).
Further, the accused’s counsel submitted that “the contexts are so disparate” between the January 2019 incident, when the complainant and the accused were housemates, and the November 2019 incident, when they were having casual sexual relations, that the admission of the evidence would result in “manifest prejudice” to the accused.
The accused’s counsel contended that the evidence has very little probative value. He noted that plausible reasons for the complainant not reporting to the police at that time included that she was living with the accused at the time of the incident and didn’t want to move out. In this context, he submitted that abusive messages from ten months prior would do little to explain why the complainant did not report the incident. He noted that the complainant’s evidence of the 2019 incident, the accused stated “I’m going to fucking kill you”, and the complainant then asked the police “I live here. Do I have to leave now?” The accused’s counsel submitted that the complainant’s decision not to report the incident, and her statement that “nothing happened”, can be explained by the accused’s threats to kill her immediately preceding this. In relation to the 2022 incident, the accused’s counsel contended that there is significant prior evidence of alleged violence leading up to the complainant’s statement that she thought she would die, and the threats made in 2019 were unnecessary to understand the complainant’s reaction.
The accused’s counsel further contended that the charged offences will not appear as “out of the blue”, as there are already two separate incidents which will be admitted into evidence before the jury, which may be used to assess the nature of the relationship between the accused and the complainant.
Determination
As the accused’s counsel properly accepted, the context evidence is relevant. It has particular force in explaining why the complainant did not make a complaint of the 2019 offending at the time that it occurred.
I do not accept the accused’s submission that the probative value of the evidence is limited. In particular, I do not accept that the fact that there are two charged incidents renders the further context evidence of limited probative value. The whole point of s 74A is to recognise that it is often the cumulation of a number of incidents of family violence which gives this form of context evidence its probative force. (In so finding, I recognise that there may be a question as to whether the complainant was strictly a “family member” of the accused in 2019 within the meaning of s 74A. In my view, nothing turns on this, as the accused and the complainant were living in the same household, and became sexual partners relatively soon after the events in question.)
Nor is the probative value of the context or relationship evidence markedly reduced by the existence of evidence of other matters which may explain why the complainant did not make an immediate complaint concerning the 2019 alleged offending. Again, it is important to recognise the multifaceted and cumulative nature of context evidence. Context evidence which, for example, is adduced to explain why a complainant did not complain at the time of an offence is not rendered inadmissible simply because the prosecution may be able to point to other reasons why the complainant did not complain. It should not be for the Court to determine which prior incident affected a complainant’s state of mind at a given point in time: Mastalerz at [69]. The jury, as the trier of fact, should be permitted to consider the cumulation of matters which may have been affected a complainant’s decision not to complain.
Finally, I do not accept that the change in the nature of the relationship between the accused and the complainant lessens the probative force of the complaint evidence. The transition from housemates to sexual partners was not so abrupt as to alter how the complainant could be expected to respond in the face of prior threats of violence.
I have taken into account the risk of unfair use of the evidence by the jury. Careful instructions will be required, so as to make clear to the jury that the context evidence cannot be used for tendency purposes. These directions will need to carefully distinguish the evidence which may be deployed as tendency reasoning, and that which may not. The need for care in these directions does not constitute unfair prejudice. It is not uncommon in trials of this nature for both context and tendency evidence to be admitted and for directions to effectively delineate between the two. The giving of careful directions will mitigate the risk of unfair prejudice.
In all of the circumstances, the probative value of the context evidence is not outweighed by the danger of unfair prejudice. It follows that the prosecution’s application for admission of relationship or context evidence should be allowed.
Orders
For the above reasons the following order is made:
(1)The prosecution is permitted to adduce the evidence of the further 2019 incident as relationship or context evidence.
| I certify that the preceding forty one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McKay Date: 18 June 2025 |
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