Director of Public Prosecutions v Henderson (a pseudonym)

[2021] VCC 569

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

SEXUAL OFFENCES LIST

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
CONNOR DONALD HENDERSON (A PSEUDONYM)	Respondent

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2021
DATE OF RULING:	12 May 2021
CASE MAY BE CITED AS:	DPP v Henderson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 569

Ruling

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Subject:CRIMINAL

Catchwords:   Application to adduce evidence of ‘other misconduct’; whether probative value outweighs prejudice to the accused; whether appropriate jury directions could cure prejudice.

Legislation Cited:         Evidence Act 2008 (Vic) s 137; Jury Directions Act2015 (Vic) s 26(d)

Ruling:Application allowed in part – select lines set out in Appendix 1 permitted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A. Moore	Office of Public Prosecutions
For the Respondent	Mr J. Willee	Irwin and Irwin Law

HER HONOUR:

Summary

1Mr Henderson[1] is charged with rape, among other charges, the offence said to have occurred in the context of additional violence. The prosecutor seeks to lead evidence of previous violence and previous unwanted anal penetration in relation to the same witness to prove the case. The defence objects, and applies to exclude the evidence on the grounds that the danger of unfair prejudice against him outweighs the probative value of the evidence.

[1]A pseudonym.

Background

2Mr Henderson is charged on indictment with intentionally causing injury, making a threat to kill, two charges of conduct endangering life, two charges of common assault, two charges of rape, contravention of an intervention order, and false imprisonment.

3The allegations arise out of events that are said to have occurred on 15 February 2019. The complainant, Ms Wick,[2] was Mr Henderson’s former partner.

[2]A pseudonym.

4Broadly, it is not in dispute that Mr Henderson and Ms Wick spent time together on the evening of 14 February 2019 and into the morning of 15 February 2019. The two socialised in a number of venues in and around Sebastopol, near Ballarat. They went back to a home in nearby Delacombe. Here the accounts diverge. Ms Wick alleges Mr Henderson became violent and abusive soon after they returned home, and, having submitted her to a number of violent and degrading acts, sexually penetrated her on two occasions while she was not consenting.

5The prosecution case on the charges of rape was previously described by his Honour Judge Higham in the course of an application pursuant to s 342 of the Criminal Procedure Act2009:[3]

“The prosecution will assert that [Ms Wick] was not consenting to the acts of sexual penetration, which constitute the charges of rape on the indictment, and further, that she had submitted only through fear of further violence at the hands of the defendant. Those facts, that is of her submission through fear of further violence, were facts clearly known to the defendant at the time of the sexual penetration and thus the defendant could have had no reasonable belief in the complainant’s consent”.[4]

[3]        (Vic) (‘Criminal Procedure Act’).

[4] Transcript of revised Ruling dated 23 January 2020 p 44.

6The prosecution also alleges that Ms Wick was frightened that she was about to be subjected to anal sex and to further violence. The prosecution will say that this is the reason she appeared to submit to sex ‘in the normal way’.

The application

7The prosecution foreshadows the introduction of parts of the special hearing and the VARE[5] interview as ‘other misconduct evidence’ as defined by s 26(d) of the Jury Directions Act2015,[6] that is, as evidence to assist the jury to understand the context in which the offence is alleged to have been committed. That evidence relates to two subjects. First, evidence of previous anal sex between Ms Wick and Mr Henderson, and second, previous violence said to have been perpetrated by Mr Henderson against her.

[5] Ms Wick, though adult, has an acquired brain injury and was therefore cross examined under the ‘special hearing’ provisions.

[6] (Vic).

8The prosecutor submits that it is necessary to lead this evidence to assist the jury to make a proper assessment of the evidence going to Ms Wick’s consent, and Mr Henderson’s belief in consent on 15 February 2019.

9Mr Henderson opposes the use of evidence in this way, arguing that the danger of unfair prejudice to him outweighs the probative value of the evidence pursuant to s 137 of the Evidence Act2008.[7]

[7] (Vic).

10In essence, Mr Henderson argues that:

(a)   in the context of the way the case has been conducted to date, the accused has lost a proper opportunity to cross examine the complainant about the allegations of previous anal sex; and

(b)   that the inclusion of allegations of past violence and non-consensual anal sex compel the accused to fight, in essence, separate trials within this trial which ought to be confined to the allegations in relation to 15 February 2019; and

(c) in that context foreshadows an application pursuant to s 376 of the Criminal Procedure Act to re-cross-examine the complainant at a further special hearing if allegations of past violence and past non-consensual anal sex are to form part of this case.

Procedural history

11Before dealing with the immediate question, some procedural background is necessary.

12This case has an extended procedural history. Mr Henderson was committed for trial on 11 September 2019. The matter proceeded through circuit directions hearings and was the subject of pre-trial cross examination on 17 December 2019. The Summary of Prosecution Opening is dated 22 January 2020. The ground rules hearing was conducted on 23 January 2020 and a special hearing listed on 24 January 2020. That date was adjourned on the application of Mr Henderson’s lawyers who sought time to discuss resolution.

13I pause here to note that there was, at some stage in the past, a complaint that the accused had committed violence against Ms Wick at some time during 2017. Mr Henderson was charged; ultimately the charges were withdrawn on the day of the committal. The complainant had also made allegations of non-consensual anal penetration in a statement dated 22 April 2018. Charges relating to the violence were later pursued, and then withdrawn on the date of the committal on 28 August 2018. This part of the history was summarised by prosecuting counsel on 24 February 2020  in this way:

“[T]he  allegation in relation to past occasions of non-consensual anal penetration was made in the form of a complaint to the police in 2018 and, ultimately, the complainant decided not to proceed with it, effectively withdrew her allegation.”[8]

[8] Transcript dated 24 February 2020 5.8.

14Notwithstanding this, Ms Wick later made reference to her earlier experience of anal sex with the accused, which she says was unwanted. I pause to note that the accused’s position is that no such practice was engaged in with the complainant during their sexual relationship.

The application under section 342

15The accused filed a notice of application pursuant to s 342 of the Criminal Procedure Act dated 16 January 2020, which foreshadows an application to cross-examine on two limbs. First, the previous unwanted anal sex, and second, about consensual sexual activity said to have taken place, very close in time to the alleged rape on 15 February 2019.

16At the hearing on 23 January 2020 counsel for the accused withdrew the first half of the s 342 application, in relation to the application to cross-examine the complainant about the anal rape.[9] There is little said about the background of that decision, but the presiding judge says:

“The allegation of anal rape which is not - that's not being litigated by the prosecution.”

[9] Transcript dated 23 January 2020 4.23.

17To which counsel replies:

“No, and I've been since provided a statement in relation to that.  As I understand, that matter went to committal and at committal, the OPP withdrew the charge.  I've been provided ‑ ‑ ‑

HIS HONOUR:  Well that wasn't proceeded with.

COUNSEL:  No.”

18The application in relation to the remaining limb of the s 342 application (consensual sexual activity close in time to alleged events) was refused.[10] The parties foreshadowed a possible resolution of the case that day.

[10] Transcript of revised Ruling dated 23 January 2020.

19The attempts to resolve the case must have failed, because on 17 February 2020, the complainant was cross-examined at a special hearing. Ms Wick was not questioned about previous anal sex, but volunteered information on the subject in relation to a question from defence counsel. That answer forms part of the evidence the prosecution now seeks to adduce.

20Between the special hearing and  the date of the commencement of the trial in the circuit before Judge M Sexton, the accused had changed his counsel. New counsel briefed had formed the view that he wished to apply for the exclusion of the record of interview. That required the calling of witnesses on a voir dire and also meant that the trial could not begin and finish on that circuit.

The voir dire

21A voir dire was conducted on 25 February 2020,[11] 5 March 2021,[12] and 7 April 2021.[13] At the end of the final voir dire hearing, the accused applied for an adjournment in order to pursue an expert report on the subject of the accused’s autism spectrum disorder and its role in his conduct in the record of interview.

[11] Detective Sergeant Alanna McDonald and Detective Acting Sergeant Ray Martland.

[12] Detective Senior Constable Rachel Lynch.

[13] The Accused, Connor Henderson, and Pamela Henderson.

22On 17 February 2021, the Court convened, and Mr Moore, who appears for the prosecution, advised that (without conceding anything raised on the application) the prosecution would not lead the record of interview at trial, the corollary of which was that it was no longer necessary for the Court to rule on the accused’s application for the exclusion of the interview.

The ‘other misconduct’ evidence

23In a document dated 21 February 2021 the prosecution outlined the basis and extent to which it relies on allegations of past violence. The document refers to relevant evidence in the VARE and the special hearing,  six passages in all.[14]

[14]        VARE Q.40 “He can’t drink alcohol……really mean”; Q.47 “And then he went to flip me over and I was pertrified that he was gunna (rape me) anally again, cause he’s did that, he did that in the past. (The words ‘rape me would be edited out); Q.476 “I told mum first…he’s done it to me multiple times”;

Special Hearing 35.15 “But then I was starting to stay at mum and dad’s….getting worse”; 40.6 “When Connor’s around people….pure evil”; 64.14 “Last time he did that to me anally….or he would suffocate me again”.

24For the purposes of this ruling I have divided the six passages into two categories, the first being allegations of past violence, and the second being allegations of previous unwanted anal sex. I am using that descriptor because the prosecutor has expressly disavowed any reliance on a previous anal rape.

25I have reviewed those passages in the context of the whole of the transcript of the VARE, special hearing, and record of interview in particular.

The VARE

26On 19 February 2019, four days after the alleged offending, the complainant made a video statement to police. I understand that there are a number of agreed edits to that recorded evidence. In her evidence the complainant outlines a series of grave, terrifying and humiliating assaults on her prior to the sexual penetration the subject of the rape charges.

27She states that in relation to the sexual penetration :

“I was like, No, no, no, make love to me, make love to me, “ like that’s what I meant by just make love to me , “just make love to me baby,” like, just,  like I just – oh - o, - ,”[15]

[15] See VARE Q.413.

28She then goes on to say at Question 414:

“I – I don’t know. I just - I wanted him - I wanted him not to be - think of hurting me, you know what I mean, like I went – not - I didn’t want to aggravate him, didn’t want to- him to flick and then start strangling me again you know what I mean like so I was just like, do what you want like, you know what I mean, just don’t hurt me, like that’s what I was pretty much thinking, like..

…I didn’t want to get hurt again. I don’t know how what my thought process was but that’s pretty much it.”

29She then goes on to mention being raped “the other way”, which I understand to mean by anal penetration.

30There are other passages in the special hearing when the complainant refers to the range of reasons that she apparently submitted to the sexual conduct on this occasion. I understand the prosecution will say that s 36(2)(a) of the Crimes Act 1958[16] is engaged: the jury would be directed on whether Ms Wick’s submission was because of force, or fear of force.

[16] (Vic).

31At question and answer 401 in the VARE, Ms Wick speaks about being weak and there being nothing she could do to prevent him from having sex with her; if she said no that he would still “help himself” in any event.

32At question and answer 355 she says:

“I guess I just wanted - I just was wanting to let him do what he wanted to do because I didn’t want to upset him again, I didn’t want to get strangled again, I didn’t want to get hurt again so I let him help himself pretty much.”

33It is clear that on her account, Ms Wick submits to sexual penetration for a range of reasons in the context of having just been, according to her, violently assaulted and humiliated in a range of ways that, on the prosecution case, leave her with a range of injuries. Clearly, if her evidence is accepted, s 36(2)(a) will be engaged.

34In the special hearing, in answer to a question from defence counsel the complainant says:[17]

“No. I didn’t want him to have sex with me at all that’s, yeah, no. I didn’t even want him to have sex  I didn’t want to have sex. That wasn’t even thought. But if I – I thought if I didn’t let him have sex with me then he would hit me again or he would suffocate me again and that’s (indistinct) survive.”

[17] Special Hearing 64.23.

The test to be applied

35I now need to assess the probative value of the other misconduct evidence in the context of the trial that now exists.

36A related question is whether, given the history of the case, if the evidence is allowed to be led, the accused would apply pursuant to s 376 of the Criminal Procedure Act to re-cross-examine the complainant at a further special hearing. Specifically, what is foreshadowed is that the accused would seek to litigate the question of whether the complainant had in fact been violent to his client in the past, whether she had been subject to intervention orders made for his protection and whether she was dishonestly claiming that the two had previously engaged in anal sex in the past at all. Whatever the strategic wisdom of that approach, I accept that the special hearing, as it was then conducted, did not traverse these issues, or did not traverse them fully, on the understanding that the Crown did not seek to press them in this trial.

37It is not material how that misunderstanding came about. The reality is that the accused may have some basis for an application to re-cross-examine the complainant, if the Crown were to lead some of this evidence. Without conceding the application, Mr Moore fairly conceded during this hearing that a fair trial to the accused would be the touchstone. From this I understood that the prosecutor accepted that such an application was at least not without basis.

The violence

38I find that the allegations of previous violence carry with them the danger of unfair prejudice to the accused and this outweighs the probative value of this evidence.

39First, this evidence, if accepted, carries the danger that it may be used by a jury as tendency evidence. No tendency is being relied upon in this case.

40Second, the complainant gives detailed evidence of grave violence committed against her on the evening of the allegations.  If her evidence is accepted, then the jury already have evidence of violence, serious violence at that, very proximate in time to the alleged sexual penetration. That evidence gives important context to the complainant’s statements about why she appeared, perhaps, to submit to the penetration, and why the accused’s belief in consent, if in existence, would not be reasonable.  As I’ve already noted, Ms Wick gives a range of reasons for her apparent submission to sexual penetration. This is not a case where violence on some previous occasion alone has informed the complainant’s submission at the relevant time. If the jury accept her account of the violence committed against her before the sexual penetration, they will be well informed about why she may have responded in the way she did.

41If the complainant’s evidence is accepted about what happens in the home on 15 February 2019, what happened by way of previous violence will be of limited further assistance.

42If this evidence were to be led as context, the accused is essentially facing allegations that he had behaved violently on a previous occasion, or occasions.  The jury would likely, in my view, be tempted to apply tendency reasoning to prove the other violence.

43I have considered the directions that might be given to avoid the misapplication of this evidence (see in particular sections 27 and 29 of the Jury Directions Act2015.)[18]  I do not consider this would be sufficient to overcome the potential for unfair prejudice.

[18] (Vic).

44I therefore conclude the probative value of the evidence is not sufficient to outweigh the danger of unfair prejudice if this evidence of previous violence is to be led.

The anal penetration

45I have reviewed the current state of the evidence in the special hearing and VARE  in relation to the anal penetration. As I said previously, the prosecution does not wish to lead evidence of ‘anal rape’ on a previous occasion and has proposed edits accordingly.

46Consideration of the probative value of this evidence is more difficult. According to the complainant, it is clear that one of the reasons she submits to vaginal penetration, or appears to, is her concern about being anally penetrated, and that this concern arises in the context of previous unwanted anal penetration.

47The first difficulty is that I am not completely convinced that the Crown is in a position to lead evidence of anal penetration that is unwanted but short of anal rape without importing a previous allegation of non-consensual anal penetration. However, I have assumed that this is technically possible for the purposes of these reasons.

48Mr Henderson, through his counsel, asserts that he has never engaged in anal penetration with the complainant. He would apply, pursuant to s 376 of the Criminal Procedure Act to cross examine the complainant again on this subject. To some degree, it is tempting to anticipate that application in making this decision. To decide in favour of allowing the prosecutor to call this evidence is to significantly strengthen the accused’s position in the making of that application. However, I have put to one side those considerations. No application is currently before the Court.

49Again, the jury will be asked to make an assessment of this complainant’s state of mind, and the accused’s state of mind at the time penetration took place on 15 February 2019. If her evidence is accepted, the complainant has been punched, injured to her face and mouth, strangled, threatened with boiling water, told to “die slut”, strangled again until the blood vessels in her right eye burst (photos are available of this) and until she lost control of her bowels and bladder.  She is then pushed into a cold shower and then put on the bed by the accused. In that context, the allegation of previous unwanted anal penetration going to her consent or lack thereof is put into some perspective.  In a finely balanced assessment, I find  the danger of the probative value of this evidence is outweighed by the potential unfair prejudice that would flow to the accused from having to deal with an allegation within an allegation.

50Again, I have considered whether appropriate directions could cure such prejudice and find that the danger of unfair prejudice, even with directions, would persist.

51That said, I propose that the application should be allowed in part to include the part of the answer that is in bold in the extracted text in the appendix.

52With the exception then of those lines identified in bold in the appendix, the prosecution will not be permitted to lead the evidence set out in the remaining passages.

Appendix 1
Content of Prosecution’s proposed ‘other misconduct’ evidence

1. Evidence of previous violence

VARE
Q.40 “He can’t drink alcohol, like, sometimes he – he will just – he turns nasty, and it can be one drink or no drinks or 20 drinks, it would be any – like, anywhere.  He just – like something will snap in him and he will just – he turns into a mean – like, you don’t know who he is, a cruel man, like really mean”;

Q.476 “I told mum first, and then mum was telling dad, and then dad got upset and started, like, having a go at me because he’s just like – like, “Why did you go back?” you know what I mean, “because he’s – he’s done it to you multiple times,”

Special hearing:
P.35 L.15 “But then I was starting to stay at mum and dad’s , because there were more assaults happening.  It would get more frequent and more and more – I don’t know if there’s a word ‘serious’ does that make sense?  Or getting – like, he was getting more and more – I don’t know what the word is I’m trying to say, but getting worse”.

P.40 L.6 “When Connor’s around people, his drunk behaviour changes.  He’ll – he’ll be very confident, um, friendly.  How do you say it?  Like, he’s – he will put on – he will put on this person that’s not really who he is, and then as soon as you’re by yourself with him, he just turns evil, and every single time.  It’s like he fluctuates in a personality sort of thing.  I’m not sure.  He’ll just – in – in in public he’ll be nice and that, and then, yeah he just turns pure evil.

2. Evidence of previous anal penetration

VARE
Q.47 “And then he went to flip me over and I was petrified that he was gunna (rape me) anally again, cause he’s did that, he did that in the past.(The words ‘rape me’ would be edited out).

Special Hearing
P. 64 L.14 “Last time he did that to me he held me down and raped me anally.  I didn’t want that to happen again.  That’s why I said to him.  I did not want to have sex with him at all -,
[Ms Wick], I’ll ask the question again.  I’m not saying to you at this stage that you wanted the sex to happen again.  The question is, you told my client to make love to you because you didn’t want to have sex anally, is that right? ---- yes.

Not because you wanted him to make love to you? --- No.  I didn’t want him to have sex with me at all that’s, yeah, no.  I didn’t even want to have sex.  It wasn’t even a thought.  But if I-I thought if I didn’t let him have sex with me then he would hit me again or he would suffocate me again.