Director of Public Prosecutions v Hilsdon (Ruling No 1)
[2021] VCC 901
•6 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-20-01464
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CAMERON HILSDON | Accused |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2021, 11 and 25 June 2021 | |
DATE OF RULING: | 6 July 2021 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hilsdon (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 901 | |
RULING
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Subject:CRIMINAL LAW – EVIDENCE
Catchwords: Evidence Act 2008 (Vic) – tendency evidence sought to be led by the Prosecution
Legislation Cited: Evidence Act 2008 (Vic), s97; Criminal Procedure Act 2009; Crimes Act 1958, s20, s75A; Family Violence Protection Act 2008, s96(1), s123A(2); Evidence Act 1995 (NSW), s101(2)
Cases Cited:Page v The Queen [2015] VSCA 357; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; McPhillamy v The Queen (2018) 92 ALJR 1045; Velkoski v The Queen (2014) 45 VR 680; Taylor v R [2020] NSWCCA 355; Henderson (a pseudonym) v The Queen [2017] VSCA 237
Ruling: Application by Prosecution granted to rely on the identified evidence as “tendency” evidence in the proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C J Duckett | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M Sturges | Chester Metcalfe & Co |
HIS HONOUR:
1This Ruling is in respect of an application by the Prosecution to rely on what is submitted to be “tendency” evidence within the meaning of s97 of the Evidence Act 2008 (Vic) (“the Act”). Those acting for the Accused dispute that the Prosecution has satisfied the statutory requirements to be able to rely on the purported “tendency” evidence.
Background
2The Accused in this matter is presently forty-six years old and was aged forty-five at the time of the alleged offending. The complainant was forty years of age at the time of the alleged offending.
3The Accused and the complainant had been in an intimate relationship since July 2016.
The Indictment
4By way of Indictment No 1.10612248, the Accused has been charged as follows:
Charge 1
The Director of Public Prosecutions charges that Cameron Hilsdon, at Wensleydale in Victoria on 5 March 2020 without lawful excuse made to Cathy Wallace (a pseudonym) a threat to kill Cathy Wallace intending that Cathy Wallace would fear that the threat would be carried out or being reckless as to whether or not Cathy Wallace would fear that the said threat would be carried out.
The charge of make threat to kill is contrary to s20 of the Crimes Act 1958.
Charge 2
The Director of Public Prosecutions charges that Cameron Hilsdon at Wensleydale in Victoria on 5 March 2020 robbed Cathy Wallace of certain property, namely a gold opal ring, and at the time had with him an offensive weapon, namely an axe.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958.
Charge 3
The Director of Public Prosecutions charges that Cameron Hilsdon at Wensleydale in Victoria on 5 March 2020, having been served with a Family Violence Intervention Order or had an explanation of the Order given to him in accordance with s96(1) of the Family Violence Protection Act 2008, contravened that Order knowing that his conduct would probably cause apprehension or fear in the protected person for her own safety.
Particulars
(i) The Family Violence Intervention Order was issued at the Geelong Magistrates’ Court on 3 December 2019.
(ii) The Order was served on Cameron Hilsdon by Senior Constable Goullet on 7 December 2019.
(iii) The protected people under that Order are Cathy Wallace and Roxanne Wallace (a pseudonym).
(iv) The conduct contravening the Order was committing family violence against Cathy Wallace by assaulting and threatening to kill Cathy Wallace while armed with an axe at Wensleydale in Victoria on 5 March 2020.
Such offence being contravention of order intending to cause harm or fear for safety contrary to s123A(2) of the Family Violence Protection Act 2008.
The elements of the Charges
5The elements of Charge 1 are:
One – The Accused made a threat to kill.
Two –The Accused either intended the complainant to fear that the threat would be carried out, or knew that the complainant would probably fear that it would be carried out.
Three –The Accused acted without lawful justification or excuse.
In relation to Charge 2:
One – The Accused committed theft.
Two – That, immediately before or at the time of the theft, the Accused either:
·used force on a person; or
·put a person in fear, or sought to put a person in fear, that force was going to be used on him/her [or another person] then and there.
Three – The Accused acted in that way in order to commit the theft.
Four –The Accused had a firearm/imitation firearm/offence weapon/ explosive/an imitation explosive with him/her at the time of the theft.
In relation to Charge 3:
One – The Accused has been served with a Family Violence Safety Notice.
Two – The Accused received the explanation prescribed under s34; and
Three – The Accused contravened.
6Counsel for the Accused confirmed that the essential fact in issue was whether the Accused committed the acts as alleged.
The Prosecution Opening
7I refer to the Prosecution Opening dated 29 January 2021 and in particular, to paragraphs 8 to 15 of that document which details the alleged offending. It states:
“8. On 5th March 2020, the Complainant and Accused had both used ‘Ice’ but ran out and the Accused started ‘binge drinking’ and arguing with the Complainant despite her trying to calm him down. Due to running out of ‘Ice’, the Accused took some strong pain medication instead which was ‘setting him off’.
9. At approximately 5.30pm, the Accused and the Complainant went for a walk. On returning to the campsite the Accused began behaving aggressively again telling the Complainant that he ‘didn’t think they should be together’ and that the Complainant was a ‘crack whore’. This ‘fired up’ the Complainant but she ‘pulled her head in’ and only stood up to him ‘a bit’.
10. When the Complainant did this the Accused told her to ‘shut up’ and not to ‘fucking talk to him like that as she knows how wild it gets him’. Despite the complainant telling the Accused to ‘be quiet’ so they could ‘have some time out’, the argument escalated with the Accused telling the Complainant, ‘I’ll cut your fucking head off and you won’t be fucking walking out of here. You’ll be buried here’ (Charge 1 – Threat to kill).
11. As the Accused said this, he grabbed an axe and started walking towards the Complainant who got out of her chair and started to run. The Accused told the Complainant ‘I’m going to fucking kill you, I will’ (Part of Charge 1 – Threat to kill). The Accused caught up with the Complainant and threw her into the ferns while pushing the handle of the axe across her upper chest (Charge 3 – Contravention of family violence intervention order with intention to cause harm/fear).
12. While the Accused did this, the Complainant tried to defend herself by clawing the Accused’s face telling him ‘Please get off. Please stop.’
13. The Accused then told the Complainant to give his mother’s opal ring back that the Complainant wore on her ring finger having been given it by the Accused’s mother. The Accused then ripped the ring off the Complainants finger as she told him ‘Take it’ (Charge 2 – Armed robbery).
14. The Accused then got off the Complainant and told her to ‘sit down and shut up’ but the complainant told the Accused that she had ‘had enough of this and was done’. The Complainant then picked up her belongings and walked away from the Nissan Patrol and into the bush.
15. As she walked the Complainant saw a sign for ‘Hammonds Track’ and started yelling out ‘Help someone can you get me out of here’.”
The Defence response
8I also refer to the Defence Response dated 17 February 2021 to the Prosecution Opening and in particular, to the matters listed under the heading “Matters in Dispute”. The matters in dispute are said to be:
“8. The Accused denies binge drinking on 5 March 2020.
9. The Accused denies making any threat to kill or assault the Complainant on 5 March 2020 (Charge 1 – Threat to kill).
10. The Accused denies chasing the Complainant into the bush.
11. The Accused denies assaulting the Complainant by throwing her into the ferns or with an axe (Summary charge – Common law assault, Charge 3 – Contravention of intervention order).
12. The Accused denies demanding that the Complainant return an opal ring while in possession of the axe (Charge 2 – Armed robbery).”
The “Tendency” Notice relied on by the Prosecution
9The Prosecution has filed a Tendency Notice (“The Notice”) which states, among other things:
“1. Pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) the Prosecution gives notice that it intends to adduce evidence which will establish the tendency of the Accused to act in a particular way.
2. The Prosecution seek to rely upon the tendency of the Accused to:
2.1. Act in a particular way, namely;
(a)to act in an aggressive way and commit acts of violence against an intimate partner, being the complainant, … [Cathy Wallace]
3. The evidence relied upon to establish the tendency set out in Table A, below.
4. The issues in the case to which Tendency Reasoning applies are:
4.1. Did the acts constituting the alleged offence (‘the relevant act’) occur.
5. The tendency set out at paragraph 2 is relied upon in support of charges 1, 2 and 3 as making more likely the facts founding those charges.”
[emphasis added].
10As I have emphasised, the tendency sought to be relied on by the Prosecution is that the tendency of the Accused is to:
“… act in an aggressive way or commit acts of violence against an intimate partner, being the complainant, … [Cathy Wallace].”
11Furthermore, it is asserted that the fact in issue to which such tendency reasoning applies is:
“Did the acts constituting the alleged offence (‘the relevant act’) occur.”
12Such tendency is sought to be relied upon in support of Charges 1, 2 and 3 on the Indictment.
13The Notice contains Table A that sets out the evidence that the Prosecution initially sought to lead of prior conduct of the accused – namely, instances of domestic violence incidents that are recorded on LEAP and/or the Accused’s criminal history that involved Cathy Wallace.
14Subsequently, Counsel for the Prosecution informed the Court that the Prosecution would only seek to rely on the following instances of prior domestic violence on the part of the Accused, as “tendency” evidence:
(a) domestic violence occurring on 26 September 2016 as recorded by LEAP extract 160342030 involving the informant Lister, which was heard at the Magistrates’ Court on 17 January 2017;
(b) domestic violence occurring on 30 October 2016 as recorded in LEAP extract 160398309;
(c) domestic violence occurring in the period from 8 to 9 November 2016 as recorded in LEAP extract 160398309 involving the informant Washbourne, which was heard at the Magistrates’ Court on 17 January 2017;
(d) domestic violence occurring on 29 and 30 September 2018 as recorded in LEAP extract 180333901 involving the informant Ditcham, which was heard at the Magistrates’ Court on 25 January 2019.
15Each of the matters involving informants occurred in circumstances where the Accused was charged with certain domestic violence offences and pleaded guilty to the Court summary of those offences, in a Magistrates’ Court.
16I refer to the statement of the informant Lister in relation to the offending on 26 September 2016 – it states (irrelevant matters omitted), that:
“On the 26th of September 2016, at about 9.30pm, the AFM [the complainant] was in bed at her home address when the accused who was staying there on invite of the AFM … came into her bedroom angry blaming her for the lack of drugs within the house. The accused while yelling at the AFM poured out the remains of the bong water on her, and as a result the AFM jumped out of bed and a fight followed between both parties. The fight spilled out into the hallway where the accused pushed the AFM onto the ground and rammed her head into the floor face down several times then released her. The AFM then got up and retrieved a pillow and blanket and went out and layed (sic) on the couch to sleep. While on the couch the accused took hold of the AFM her by the throat and choked her. The AFM got up and fled the house and called the police.
As a result of the assault the victim [the complainant] had a swollen and sore forehead, a swollen nose, and scratches on her neck.”
17I also refer to the statement made by the informant Washbourne, wherein he states:
“On the 8th November 2016 at lunchtime the accused and the victim [the complainant] left there (sic) house at 36 regent Street, Belmont and went to a friends’ house. They argued about when to leave and the accused punched the victim two or three times on the right side of her face causing bruising to her eye and chin.
…
They returned home in the car which belongs to the accused and at the corner of the street the accused dragged the victim [the complainant] out of his car by her arms and threw her on to road causing fear and grazes to her arm and knee.
…
The victim [the complainant] sat in the road for a while before returning home and going to bed. When she was asleep the accused woke her up and threatened her saying ‘I am going to kill you’ and ‘I’m going to chop your head off’. He then pinned her to the bed.
…
The next morning on Wednesday the 9th November 2016 the victim [the complainant] was still in bed when the accused used a pillow to try to smother her holding it over her face for a few seconds while she struggled to push him off.”
18I refer to the statement made by the informant Ditcham in respect of offending on 28 and 29 September 2018. In his statement, Ditcham states (with some parts redacted because of their lack of relevance):
“On Saturday the 29th of September 2018 victim … [WALLACE] was at the accused’s Torquay address watching the AFL Grand Final. Both parties had been drinking alcohol and were moderately affected.
After the game had finished, the accused and … [WALLACE] engaged in an argument over financial rent issues. The accused approached … [WALLACE] whilst she was sitting on the couch and grabbed her around her throat with two hands and squeezed tightly.
… [WALLACE] demanded to be let go so the accused did but he told her to sleep outside in his car. After a while the accused went outside and told … [WALLACE] to come inside and sleep on the couch, which she did. The following morning, the accused and … [WALLACE] began arguing again, this time the accused grabbed … [WALLACE] by the hair and ripped her from the couch with one hand and punched her to the face with, the other hand. The punch connected with the left eye of … [WALLACE] and caused instant pain, bruising and swelling. … [WALLACE] fell to the floor and attempted to protect herself by curling up in a ball.
The accused responded by kicking … [WALLACE] to the body multiple times causing more pain, bruising and swelling. The accused then dragged … [WALLACE] across the floor by her hair. … [WALLACE] eventually freed herself from the accused’s grip and ran out the front door.
… [WALLACE] was walking along the Torquay Highway a short time later when an ambulance pulled alongside her to check on her welfare. The ambulance members observed … [WALLACE] injuries and conveyed her to Geelong Hospital for observation and treatment for multiple bruises to her face and body.”
19Counsel for the Prosecution referred to the Victorian Court of Appeal decision of Luke Page (a pseudonym) v The Queen[1] which involved an interlocutory appeal concerning the admissibility of evidence as coincidence evidence and/or tendency evidence. Whereas the prosecution had sought to rely on evidence of particular conduct by the applicant as both coincidence evidence and tendency evidence, the trial judge had concluded that the evidence was admissible as coincidence evidence, and did not rule on whether it was admissible as tendency evidence.
[1] [2015] VSCA 357
20The Court of Appeal held that her Honour’s conclusion was reasonably open but also concluded that it would have been reasonably open to the judge to admit the evidence as tendency evidence.
21The applicant was facing trial on four charges of committing an indecent act with a child under sixteen and two charges of sexual penetration of a child under sixteen.
22In November 2013, the applicant had pleaded guilty to six charges of committing an indecent act with a child under sixteen and those charges related to four complainants, each of whom was a granddaughter of the applicant. An issue arose after the prosecution made application to the trial judge to lead evidence of the applicant’s pleas of guilty to charges relating to two of the earlier four complainants in 2013. Counsel for the applicant had submitted that prejudice would flow from the admission of this evidence as it would disclose prior convictions for sexual offending against female children.
23The Court of Appeal, consisting of Maxwell P, Redlich JA and Beale AJA, stated, at paragraphs [73]-[77]:
“Reference to prior convictions in criminal trials is scrupulously avoided, to prevent juries engaging in impermissible propensity reasoning.
The present case is, however, quite different, because of the basis on which the evidence is made admissible. The applicant has admitted to sexual offending against young girls, and to having done so in circumstances which give the evidence of that offending significant probative value in relation to the charges he now faces. Indeed, the fact that the conduct is admitted, rather than merely alleged, means that the evidence will go before the jury unchallenged and is likely, therefore, to carry greater weight than if it were contested.
As is always the case, the judge will be required to give clear directions about how the evidence can be used, and how it may not be used. The giving of appropriate directions, and the required propensity warning, is necessary to ensure that this evidence is treated appropriately, and is not given weight which it does not deserve or otherwise used impermissibly.
As became clear during argument, the parties do not intend to mention the fact of the applicant’s conviction. The evidence of the admitted conduct can simply be led as such, though the fact that it is not challenged will not be lost on the jury.
Accordingly, in our view, s 101 is no bar to the admission of this evidence.”
24The last piece of evidence that the Prosecution seek to rely on did not involve the Accused being charged and pleading guilty at a Magistrates’ Court, and consequently, is different to the types of evidence which have been referred to above. The Prosecution rely on a statement made by the complainant dated 10 June 2021. That statement reads:
“My name is … [Cathy Wallace] and my address is known to police. Detective Acting Sergeant Brendan O’MAHONEY has requested me to make this statement in clarification of a letter that was provided by Bethany Community Support workers dated 8 June 2021.
I have read the letter that details my case notes and have refreshed my memory of the incident. To the best of my recollection the following occurred;
On the morning of the 29th October 2016 I was at home at 36 Regent Street Belmont. I think Cameron and I were arguing in the morning I think he was drinking during the day as he did that most days. I went out for a while I can’t recall exactly how long. He was getting aggressive and antsy so I thought I would give him some space.
When I got back to the house he started accusing me of having an affair. He was aggressive he was saying words to the effect of ‘You’re a slut and a whore’. I remember him becoming physical he threw me across the lounge room, he was hitting me and I can’t remember if he was head butting me. After he threw me across the lounge he smashed a drinking glass on my head. This caused some cuts and bruises but I didn’t go to hospital. I managed to get out of the house for a while as I was hoping he would calm down.
When I returned to the house roughly an hour later he was still angry. He was yelling at me threatening to kill me and feed me to the fish. When he went outside I was hiding in the house I think in my son’s room. He went out to the car and brought in an axe it was a normal size axe I remember it was a Stihl brand that he bought for my daughter. I think it had orange or white colouring on it. Which I though[t] was weird as she was only seven years old at the tim[e]. My kids weren’t present I think they were with family at the time.
When he brought the axe in, I hid in my son’s room, he was walking up and down the hall saying he was going to chop me up and kill me and feed me to the fish. I was trying to stay out of his way and keep an eye on him. He kept walking in and out from the hall and the kitchen. When he was in the kitchen, I could see him sharpening the axe with a sharpening stone he was mumbling to himself and continued making threats towards me. It felt like ages I was waiting for an opportunity to leave the house without him seeing me. If I had to estimate I would say that it was about half an hour. Eventually I left by the front door and went directly to KFC where I called DHS or safe steps.”
[sic]
25When this matter was first mentioned on 27 May 2021, it was indicated that a statement would be obtained from the complainant in relation to a prior episode of domestic violence on or about 29 October 2016. Both parties agreed that the matter should be adjourned and that the complainant be in attendance on the adjourned date in order to give evidence before the commencement of the trial of the Accused. Accordingly, the Court agreed to such procedure and ordered that there be evidence given by the complainant in respect of this episode of domestic violence, in part because both parties sought such a course of action, but also because the Court considered it would be appropriate to have the evidence of the complainant in respect of this episode, given the circumstances as to how her proposed statement of evidence came about.
26On 11 June 2021, the complainant was examined and cross-examined in relation to this issue. When being examined, the complainant gave the following evidence:
· The complainant was referred to a statement made by her on 24 May 2021 which consisted of two paragraphs containing about four lines, and that statement was in relation to an email that she had received from the complainant which contained various plea summaries in order that she could read them.
· The complainant agreed that although she could not recall the exact date of the incidents referred to, she accepted they were all true and correct and the summaries were consistent with what she reported to the police.
· The complainant confirmed that the statement made by her dated 24 May 2021 was true and correct.[2]
· The informant contacted her on 10 June 2021 to make a fuller statement and that a police officer had attended and taken another formal statement from her. Such further statement consisted of three pages but the text only of her proposed evidence is only a page and a half.
· The statement was done over the telephone with the informant the day before, after which the complainant was sent a typed copy which the complainant took to a police station to have signed and witnessed. On reading the typed copy, the complainant did note that there was a small error which was in the last sentence of paragraph 3 where it originally said “I was getting aggressive …” when it should have been “he was getting aggressive …”.
· Subject to that change, the complainant accepted that the contents of her statement dated 10 June 2021 were correct.[3]
[2]Such statement was admitted into evidence for the purpose of that hearing and marked as exhibit 1
[3]The statement dated 10 June 2021 was admitted for the purpose of that hearing and marked as exhibit 2
27Under cross-examination, the following evidence was given:
· The complainant agreed that she made an original statement to police on 5 March 2020 at the Torquay Police Station and that she remembered making that statement.
· When she made that statement, she accepted that various police officers spoke to her and took that statement from her, during which time she spoke about her relationship with the Accused. It involved discussions about the issues arising from her relationship with the Accused.
· She confirmed that in her statement, she advised police officers that the Accused had been to jail three times due to family violence and that over the period of time that she had been in a relationship with the Accused, violence had been a part of that relationship.
· On 11 June 2021, the complainant was then referred to the statement more recently made by her on 24 May 2021 (exhibit 1 for the purposes of that hearing) and the complainant confirmed that she had been contacted by the informant on 12 May 2021 when she believed that she received an email from him. Such email from the informant was annexed to the statement dated 24 May 2021.
· The email sent by the informant on 12 May 2021 read:
“Good Evening … [Cathy],
As discussed could you please read through the attached incidents reported to police.
Could you please tell me if you recall these incidents and if yes are they an accurate summary of what occurred?
… .”
The complainant accepted that that is what she received.
· She does not remember whether she had any phone call from the informant but she may have received one at first from the informant. In particular, the following evidence was given:
Q: “Did he tell you why he needed this particular statement?---
A:Just for further evidence with, um, with the trial that’s going ahead because there was evidence in there where a weapon was used so he wanted to bring that in into this trial.
Q:Okay. So he told you about what it was he was going to send you before he sent it to you?---
A:Yes.
Q:Told you that the prosecution or that he, as part of the prosecution, had an interest in getting some information from you about a particular incident involving a weapon?---
A:That’s correct.
Q:Did he tell you what sort of weapon it was he was interested in getting the information from you about?---
A:Yes.
Q:What weapon was that?---
A:Axe, an axe.
Q:So he told you what he required before he sent you that email?---
A:Yes.
Q:Now, he sent the email to you and the email contains three incidents?---
A:Yeah, that’s right.
Q:And you’ve read over those particular incidents attached to the email?---
A:Yes, I have.
Q:And then from that point have you phoned Mr O’Mahoney [the informant] and spoken with him or have you replied to him by email?---
A:Um, I’m not sure. I might have done both, I think.
Q:Okay. Do you remember when you called him?---
A:I can’t remember.
Q:Do you remember how many times you may have spoken or did that you spoke with Mr O’Mahoney on the phone?---
A:Probably maybe a dozen times.
Q:In the process of making---?---
A:Or less, maybe four to five times.
Q:So there’s a fair discrepancy between a dozen and four to five?---
A:Yep. I’m not sure.
Q:Okay. But you’ve spoken to him on a number of occasions in the process of making your statement?---
A:Yes.
Q:More than four or five but less than 12?---
A:Yep.
Q:And then on top of that correspondence there was the email correspondence?---
A:That’s right.
Q:And in those phone calls you had with Mr O’Mahoney what sort of matters were you discussing?---
A:Just about the case, about the evidence.
Q:Okay?---
A:My statements.”[4]
[4]T13, L20 – T14, L29
· Although there were three episodes of violence in the email sent by the informant to the complainant, she agreed it was only the one with the weapon that was going to be used by the police.
28There was some evidence from the complainant wherein she refers to “Bethany”, which I believe was appreciated by both parties to be some type of domestic violence refuge where the complainant attended after the domestic violence described by her in the statement dated 10 June 2021.
29Indeed, in the statement dated 10 June 2021, the complainant makes reference to the Bethany Community Support Group in Geelong. The complainant also describes being provided with a letter from Bethany Community Group dated 8 June 2021, which refreshed her memory of the circumstances leading to her attendance at that organisation on 29 October 2016.
30The complainant was also cross-examined about her recent statement dated 10 June 2021, which she signed the day before the preliminary hearing. In particular, the following evidence was given:
· She was contacted to make this supplementary statement on 10 June 2021 at approximately 1.00pm.
· She was contacted by the informant, who telephoned her, asking whether she could get information from “a Rachael”, who was part of the Bethany organisation, in order to jog her memory as to what actually happened and for that to be the subject of her further statement of what occurred on that day, leading to her going to Bethany. The complainant did not actually contact Bethany herself but Bethany did ring her in order to obtain her consent to give information recorded by them to the informant.
· In particular, the following evidence was given:
Q:“Okay. So the chronology of events are that you first spoke with someone from the Office of Public Prosecutions about obtaining material from Bethany?---
A:Yep, that’s correct.”
HIS HONOUR:
Q:“Sorry, and Bethany being who?”
MR STURGES:
A:“Bethany being the sorry, Your Honour, Bethany is a community support organisation in Hamlyn Heights in Geelong and they offer specialist women’s and children’s care in the context of family violence.”
HIS HONOUR:
“Right.”
MR STURGES:
Q:“Sorry, Your Honour, I should have. And that’s the sort of support, Ms … [Wallace], that you are obtaining from Bethany; is that right?
A:Yeah, that’s correct.
Q:So do you recall when you spoke with someone from the Office of Public Prosecutions?---
A:Um, what day was it, Thursday or Friday, I think I had a Zoom a Zoom meeting with them, this week, Thursday.
Q:Last week, potentially?---
A:Is it last week yeah, it could have been last week, Monday sorry.
Q:And you raised the likelihood that Bethany would be in possession of material that might be relevant to this particular incident involving the axe?---
A:That’s correct.
Q:And you did you say to them that you were willing to go and try to obtain that information?---
A:They said they would, um, they would do that for me.
Q:Okay. And then you were contacted by Brendan O’Mahoney?---
A:Yes, I think I was contacted by him first, um, through email to … say that he was in contact with Bethany to get that information together and then they rang me and asked for consent for the information to be sent to him.
Q:Do you recall when they phoned you?---
A:About three days ago.
Q:And then you gave that authority or that consent?---
A:Yes, I did.
Q:And then yesterday you were contacted by the informant about making another statement?---
A:That’s correct.
Q:And he spoke to you on the phone and that’s how he took the information from you, by phone?---
A:That’s correct, yep.
Q:But he forwarded you a document from Bethany, Specialist Women’s and Children’s Services, before that process started?---
A:Yes.
Q:And that document, dated 8 June 2021, have you got that document there with you today?---
A:Yes, I do. Yes, I do.”[5]
[5]T25, L22 – T26, L30
31The complainant was cross-examined about that particular document from Bethany. In particular, the following evidence ensued:
· The letter from the Bethany Specialist Women’s and Children’s Services was received by the complainant by email on 10 June 2021. The following evidence ensued:
Q:“So prior to reading this document, you had no real recollection of that particular incident, did you?---
A:I remember having the conversation with Rachael from Bethany about it, but that was it, until I reread over the notes which jogged my memory of that day, what actually happened.
Q:Yes.”
HIS HONOUR:
Q:“The date or did it jog your memory as to the precise date or did it jog your memory about the circumstances of what happened on that day?---
A:The circumstances of what happened.
Q:I see, yes.”
MR STURGES:
Q:“So prior to receiving this document from Bethany, you had no real recollection of what actually occurred on that particular occasion?---
A:No, only that conversation I had with her. I don’t remember it was back in 2016, that’s all I remember, and just having that conversation about the axe with her, um, yeah. Until further information has come through, that’s when I’ve remembered what actually occurred that day.
A:Okay.”
HIS HONOUR:
Q:“I’m just I’m still not just quite clear about this. If someone had asked you yesterday before this had ever before the informant had contacted you and someone said, ‘Have you ever been attacked or threatened to be attacked by an axe?’, would you say, ‘Yes, I have once but don’t remember the circumstances’ or you just didn’t remember that at all?---
A:No, I remembered it, of course I do.
Q:Yes, exactly?---
A:A lot of violence happened in that house.
Q:I’m not suggesting you wouldn’t. I’m just a little bit?---
A:No.
Q:It’s just the detail and the date which was when you’re talking about the circumstances, what are you meaning when you weren’t recalling the circumstances; that’s what I’m asking?---
A:Well, because it was only a short um, statement that that was put on there that there was he chased me with the axe in the house.
Q:Yes?---
A:And then I remembered I remembered that.
Q:Yes?---
A:And having that conversation with Rachael. I don’t know. What you want me to say I don’t know.
Q:That’s okay?---
A:Yep.”
MR STURGES:
Q:“And so, Ms … [Wallace], prior to reading that particular narrative that you were provided on 12 May 2021, you had no real recollection of the circumstances of that particular incident with the axe, did you?---
A:Not until it was brought to my attention. I try and not think about past things like that, yep.
Q:Thank you?---
A:I blocked a lot of it out, numbed it out.”[6]
[6]T27, L30 – T29, L24
32The complainant was asked some questions about the actual incident itself and gave evidence:
· That she was using drugs – and methylamphetamine – in October 2016 and also alcohol. Although she had no precise idea, she thought probably three points a day, four at home.
· The complainant was asked to sketch out a diagram of the unit where she and the Accused were living at the time of this event. Such diagram was ultimately tendered and marked as exhibit “A”.
33The complainant was also cross-examined about various assertions she made in her statement dated 10 June 2021 – exhibit 2 – and in particular, she described that on leaving the premises when she felt it was safe to do so, she contacted DHS (the Department of Human Services), who gave her the number for “Safe Steps”, who she contacted, who in turn referred her to “Bethany”, and in particular, to Rachael. She agreed that she did not contact the police about this particular incident at that time and had no recall of the person she initially spoke to at DHS.
34The complainant believed that it was most probably the first time she had approached Safe Steps and Bethany. She does recall speaking to Rachael and part of that conversation disclosed what injuries she had received earlier in the day from the accused.
35Under re-examination, the complainant was queried about which incident she advised the informant initially that the date was wrong, that rather than 2019 it should be 2016. The change of date incident was the incident in question where she fled the house and ended up at Bethany for the night.
Principles of law regarding “tendency” evidence
36Section 97 of the Act states:
“(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2)Subsection (1)(a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100; or
(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.”
37Before “tendency” evidence can be relied on, the Prosecution must satisfy several statutory tests:
(a) First, it must satisfy the test of relevance pursuant to s56 of the Act. Section 56 states:
“(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.”
It is to be noted that s55 of the Act states:
“(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.”
(b) Secondly, it must establish whether, pursuant to s97(1) of the Act, that such evidence has “significant probative value”. The Dictionary contained in the Act defines “probative value” to mean:
“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
There is no definition of “significant probative value” in the Dictionary.
(c) Thirdly, s101(2) is also relevant. Such subsection states:
“(2) Tendency evidence about an accused … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.”
(d) Sections 135 and 137 of the Act are also potentially applicable.
38I refer to the High Court decision of Hughes v R,[7] wherein Gageler J (in dissent as to the result of the majority judgment did not address this issue) observed as to the problem to which the tendency rule is directed:
“… Tendency evidence – be it of character or reputation or of conduct other than an occasion in issue in a proceeding – is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to ‘postdict’ the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.”[8]
[7](2017) 263 CLR 338 (“Hughes”)
[8]See Hughes (op cit) at paragraph [70]
39Together with Hughes,[9] there have been three other decisions of the High Court concerning “tendency” evidence over the last few years. Those other cases are:
(i) IMM v The Queen;[10]
(ii) The Queen v Bauer (a pseudonym);[11] and
(iii) McPhillamy v The Queen.[12]
[9]Op cit
[10](2016) 257 CLR 300 (“IMM”)
[11](2018) 266 CLR 56 (“Bauer”)
[12](2018) 92 ALJR 1045 (“McPhillamy”)
40Such cases largely establish the relevant principles of law to be considered when dealing with “tendency” evidence.
41I again refer to the High Court decision of Hughes wherein the accused in that matter was charged with eleven counts of sexual offences committed against five underage girls. The prosecution sought to adduce at the trial of each count, evidence of each complainant and a number of other witnesses, to prove tendencies identified as “having a sexual interest in female children under sixteen years of age” and using “his social and familial relationships … to attain access to female children under sixteen years of age so he could engage in sexual activities with them”.[13] The notice particularised different forms of sexual conduct with underage girls, one of which was conduct the occurrence of which was within the vicinity of another adult.
[13]See Hughes (op cit) at paragraph [3]
42The trial judge held that the “tendency” evidence was admissible, with the exception and the evidence of some workplace tendency witnesses were not admissible in support of counts 1 to 10. However, the evidence of the workplace tendency witnesses was admissible for count 11 because the offence occurred at the appellant’s workplace and involved him exposing his penis to the complainant, who was aged twelve to thirteen years.
43The High Court included two grounds of appeal – the first ground was, was there an error in the conclusion that the “tendency” evidence possessed “significant probative value” and the second ground was that there was an error in the rejection of the approach adopted in Velkoski v The Queen,[14] to the assessment of whether the “tendency” evidence possessed “significant probative value”.
[14](2014) 45 VR 680, a decision of the Victorian Court of Appeal
44Ultimately, the majority in Hughes[15] held that the approach in Velkoski[16] was an unduly restrictive approach to the admission of “tendency” evidence and that the “tendency” evidence adduced at the appellant’s trial had significant probative value in relation to the proof of each count on the indictment. The appeal was dismissed. In particular, I refer to certain parts of the majority judgment in Hughes:
[15]Op cit
[16]Op cit
(a) The majority stated, at paragraph [16]:
“The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. [Reference was made to IMM (op cit)]. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.”
[Footnotes omitted and emphasis added].
(b) At paragraph [41] of Hughes,[17] the majority stated:
[17]Op cit
“The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. … summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”
[emphasis added].
(c) The majority also gave some indication as to the content of s101(2) of the Act. It stated, at paragraphs [17] and [18]:
“In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused. … .”
[emphasis added].
45I refer to the High Court case of IMM[18] in which the appellant was appealing convictions for two counts of indecent dealings with a child and one count of sexual intercourse with a child under the age of sixteen years. There was a single complainant who was the young daughter of the appellant’s stepdaughter. “Tendency” evidence was given by the complainant of a separate incident during which the appellant ran his hand up the complainant’s leg.
[18]Op cit
46The High Court held, by a 4:3 majority, that the trial judge, when assessing the “probative value” of evidence under the Act, must presume that the evidence “is accepted” and therefore credible and reliable.[19] More particularly, I refer to the High Court case of Bauer,[20] which also involved a single complainant, wherein the Court stated unanimously that unless the risk of contamination, concoction or collusion was so great that it would not be open to the jury to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. In particular, the Court stated:
“… Under the Evidence Act, provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.”[21]
[19]See IMM (op cit) at paragraph [50]
[20]Op cit
[21]See Bauer (op cit) at paragraph [70]
47It is also of some assistance to refer to the High Court decision of McPhillamy,[22] the Court consisting of Kiefel CJ, Bell, Keane and Nettle JJ. In that proceeding, the appellant had been convicted in the District Court of New South Wales on an indictment that charged him with six counts of sexual offences against “A”, a single complainant. The offences were alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996 in a public toilet at a church. “A” was an eleven-year-old altar boy under the supervision of the appellant and acolyte.
[22]Op cit
48“A” gave evidence that, on a Saturday night before Mass, the appellant had followed him into the toilet and masturbated in front of him and had also encouraged “A” to masturbate, and he had briefly touched “A”‘s penis as he demonstrated how to masturbate. The appellant had ejaculated. The remaining offences occurred a few weeks later on a Saturday night before Mass, when the appellant again followed “A” into the toilet, where he masturbated in front of him, encouraged “A” to masturbate, and commenced to manually stimulate “A”‘s penis. The appellant then said he would show “A” something even better and he performed oral sex on “A”.
49“B” and “C” each gave evidence that he was a boarder at a college in 1985 and that each had turned thirteen in that year. At the time, the appellant was an assistant housemaster at the college and “B” said that on an occasion when he was homesick and upset, he had gone to the appellant’s bedroom, where the appellant cuddled him and progressed to him rubbing “B”‘s genitals. On a second occasion, the appellant approached “B” as “B” stood naked by his locker after showering, and the appellant “grabbed both [his] arse cheeks and tried to, you know, separate them so to speak”. This did not last long.
50“C” gave evidence of an occasion when he, too, had been homesick and upset and had visited the appellant in the appellant’s room. The appellant massaged “C”‘s shoulders and back, and the massage progressed to the groin area and in the course of it, the appellant touched “C”‘s genitals. On a subsequent occasion, the appellant massaged “C”, during which time “C” fell asleep and woke to find the appellant kneeling behind him and his head near “C”‘s groin and “C” felt a sensation of wetness around his penis.
51Before his trial at the District Court, the prosecution served written notice on the appellant of his intention to adduce “tendency” evidence from “B” and “C”. The appellant objected to the admission of such evidence, but ultimately the District Court judge ruled that such “tendency” evidence was admissible.
52At the New South Wales Court of Criminal Appeal, the majority (Harrison and R A Hulme JJ) concluded that the “tendency” evidence strongly supported the prosecution case. Ultimately, the High Court upheld the appeal on the basis that the evidence of “B” and “C” was not admissible on the basis that the purported “tendency” evidence did not meet the threshold requirement of s97(1)(b) of the Act.
53In particular, the High Court stated, at paragraphs [26]-[27] and [30]-[31]:
“26.As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence [citation omitted]. The tendency may be to have a particular state of mind or to act in a particular way. A mature man’s sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of ‘B’ and ‘C’ was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
27.Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to ‘B’’s and ‘C’’s evidence of events that occurred in 1985. As Meagher JA noted [the dissenting judge in the New South Wales Court of Criminal Appeal], there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against ‘A’.
28. …
29. …
30.… It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with ‘B’ and ‘C’ is relevant to proof that he committed the offences alleged by ‘A’, but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
31.Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together [reference was made to the earlier decisions of Hughes (op cit) and Bauer (op cit)]. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over ‘A’, an altar boy, when the two were at the Cathedral for services in 1995‑1996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with ‘A’’s account that the appellant followed him into a public toilet and molested him.”
[emphasis added].
54In this matter, Counsel for the Accused submitted that the “tendency” identified by the Prosecution was too “general”. In particular, he referred to the Victorian Court of Appeal decision of Martin Henderson (a pseudonym) v The Queen,[23] wherein the Court (consisting of Beach, Ferguson and Coghlan, JJA) stated, at paragraph [56] and following, that:
“In the present case, the Crown seeks to prove a tendency in general terms for the applicant to engage in physical and verbal violence towards the complainant. In defining the tendency, the Crown appears to have taken the various acts of violence and abuse described in the admitted paragraphs and then arrived at a form of words which covers those acts and the acts for which the applicant is now facing trial. This has produced an alleged tendency that is, on any view, expressed in wide terms.
Unfortunately, in its criminal jurisdiction, this Court sees far too many cases involving violent abusive relationships the characteristics of which include serious physical assaults, sexual assaults, threats and abuse by one partner (overwhelmingly a man) of the other (again, overwhelmingly, a woman). The tendency asserted by the Crown in the present case (with one possible exception, to which we will make reference below) appears to be no more or less than what might be described as the tendency of the abusers in those relationships to engage in similarly abusive behaviour towards their partners or former partners.
In our view, the judge was, with respect, wrong when she determined that the various acts in the admitted paragraphs were all admissible as tendency evidence in respect of all charges. It is trite that the case against the applicant on each charge falls to be determined by reference only to the evidence admissible on that charge. If the Crown is to rely upon tendency evidence in this case, it will need to define more specifically the tendency which it asserts, in order to then relate that tendency to a particular charge. While there may be cases where one could aggregate different discrete acts into a more general tendency to act in a particular way (or related group of ways), for the purpose of leading tendency evidence in respect of discrete and different offending, this is not such a case. We are unable to see how the fact that the applicant might have punched or slapped the complainant in 2010 (even if such slapping and punching was ongoing) could be significantly probative on the issue of whether the applicant anally raped the complainant in 2015. Moreover, in the present case, nothing in the surrounding circumstances alleged in respect of those events alleged by the complainant to have been committed by the applicant appears to us to justify the engagement of tendency reasoning.
For these reasons alone, the judge’s decision to admit as tendency evidence the material in the admitted paragraphs in accordance with the Crown’s tendency notice must be set aside.”[24]
[23][2017] VSCA 237
[24]Henderson (op cit) at paragraphs [56]-[59]
55Furthermore, it was submitted on behalf of the Accused that in the event that the Court was satisfied that the evidence sought to be relied on by the Prosecution had “significant probative value”, then s101(2) was also relevant, and that any probative value of the evidence did not substantially outweigh the prejudicial effect it may have on the accused.
56In particular, in relation to the evidence to the allegation by the complainant set out in her statement dated 10 June 2021, Counsel for the Accused submitted the following:
(a) He noted that the complainant had no recall of the incident until she had spoken to a police officer in May of 2021. However, through further discussion, Counsel for the Accused fairly accepted that the complainant did have some memory of the incident and, in particular, recalling in general terms the incident which involved an axe;
(b) The content of the complainant’s recollection was changing each time that she attempted to recall the episode and through various conversations with police officers leading up to her statement on 10 June 2021;
(c) Counsel for the Accused described the process of obtaining that statement to be “unorthodox”. By this, Counsel meant that normally a complainant would probably be spoken to and asked about an incident and being given an opportunity to make a statement whereas in the circumstances of this matter, she was provided with materials – in particular, from the domestic violence organisation – prior to making her statement and indeed, discussing with police generally about the seriousness of an allegation involving an axe.
57In particular, Counsel for the accused stated:
“And she sought the services that were available to her. But the unorthodox or the strange manner in which this statement however is obtained is that this information, hearsay information, contemporaneous notes is obtained by the informant and then provided to the complainant to jog her in memory and then she makes the statement. And it’s not a situation where the statement she makes is built upon the first time statement she makes. The first statement she makes is completely lacking in detail and adopts an outline or a summary that is entirely different to the subsequent statement she makes.”
HIS HONOUR:
“Yes. But, as you say, when she goes to ‑ the organisation or DHS and then goes on to the other organisation, whatever she says there it’s clearly a ‑ it’s a pretty ‑ she’s giving details of what happened a relatively short time ago, isn’t she, at that stage and that’s what’s been recorded.”
MR STURGES:
“And usually the process, in my respectful submission, Your Honour, would be that the police get a statement from the complainant where she says, ‘On such and such occasion in October I was worried for my safety due to the accused being in possession of an axe. I called such and such and then I went there and I received that support’.”
HIS HONOUR:
“Yes.”
MR STURGES:
“And then they go and obtain the notes from that particular agency to corroborate the version of events that she’s put forward. This is the complete opposite in process. She had no recollection of this incident until the police asked her about it, showing her the detail contained within the LEAP narrative and then, when she wasn’t able to provide further detail beyond ‑ ‑ ‑“
HIS HONOUR:
“So went back to the, you know what.”
MR STURGES:
“And then gave.”
HIS HONOUR:
“Well, I suppose in that sense it is but.”
MR STURGES:
“It’s, in effect, a contamination.”
HIS HONOUR:
“I suppose what I’m getting at is this that the reality probably is that if the statement if it’s sorry, well, it’s not a statement. If the allegations made by the complainant to DHS and more particularly what’s the organisation, I keep forgetting?”
MS DUCKETT:
“Bethany.”
MR STURGES:
“It’s Bethany or Safe Steps.”
HIS HONOUR:
“Yes. It just seems to me, I would have thought that’s going to be far safer than someone who’s talking about, some years later to a policeman and where in the normal course of events she decides at that time, ‘I’m going to go to the police and complain about this’, so she goes to the police and when they ask her ‘I’m not too sure about things’, and whereas you’ve got here you’ve got a source which is pretty well right on the right on the day, a contemporaneous source, where there is a record. But I understand that point though. It is well, it is around the other way in some ways but, and whether it’s as bad as you make out, I’m not so sure.”
MR STURGES:
“Well, in my submission, Your Honour, it’s a form of contamination of the evidence. The statement wouldn’t exist without being provided the contemporaneous notes, she simply wouldn’t have recalled it.”
HIS HONOUR:
“Yes.”
MR STURGES:
“And, in my submission, Your Honour, that those matters go to the prejudicial nature of the evidence against the accused and what weight significant probative value of the weight that should be afforded that particular piece of evidence.
Thank you, Your Honour.”[25]
[25]T50, L15 – T52, L23
58In response, Counsel for the Prosecution submitted that the probative weight that can be attached to his evidence is “very high”. Counsel for the Prosecution described it not as hearsay but in reality, complaint evidence which could not be more contemporaneous.
59In particular, Counsel for the Prosecution stated:
“Literally from that day from ‑ two separate workers have taken notes in relation to conversations that they’ve had with this complainant. Five years later she’s asked to turn her mind to it, against what we’re all aware because we’ve seen the criminal history, we’ve seen the LEAP extracts so far ‑ one can only say is an absolutely tragic and horrendous history of domestic violence, containing many incidents on a regular basis that resulted in police interventions, various bodies’ interventions, child protection interventions, DHHS interventions, gaol time ‑ it’s just been going on and on. For this complainant to have been ‑ taken those steps that day and to have articulated to Bethany ‑ and that has now been preserved in notes what she said ‑ it’s complaint evidence ‑ it’s as simple as that. It doesn’t fall under the prohibitions that hearsay ordinarily has attached to it and it’s reliable.”[26]
[26]T52, L31 – T53, L16
Conclusion
60In determining this matter, it is necessary to make a division between the types of evidence sought to be relied on by the Prosecution as “tendency” evidence.
61The first type of evidence are those three incidents where the LEAP material is available which establishes that prior to the subject offending, the Accused has been charged on three separate occasions with what may be called domestic violence offending involving the complainant and in circumstances where he pleaded guilty to the offending outlined in the relevant statements of each informant. As pointed out by the President of the Court of Appeal in Page,[27] there would appear to be no basis for that evidence being challenged as to the occurrence of these events.
[27]Op cit
62The other evidence relied on by the Prosecution in relation to “tendency” is the incident in October 2016 wherein it is alleged that the Accused had an axe and threatened, amongst other things, to kill the complainant with the axe. I consider that the complainant had some memory of this event but without doubt, details were added to her memory by the supply of the records kept by the domestic violence agency which she attended on the day of the alleged offending. In this way, such alleged offending is in distinction to the other offending relied on by the Prosecution because the Accused has not been charged with that offending and, accordingly, has not handed in a plea. I do not consider such evidence to be contaminated.
63There is no issue that the Prosecution has the onus in establishing that any evidence it seeks to rely on in support of “tendency” evidence is admissible. The tendency identified by the Prosecution in the Notice relates to a fact in issue – or element of the offences, in that it applies to whether:
“Did the axe constituting the alleged offence (the relevant act) occur.”
64Of course, in allowing such evidence to be admitted would require a very clear direction to the jury as to what uses such evidence can be made of and perhaps more particularly, giving a very strong warning as to uses of such evidence which are inappropriate. Furthermore, in relation to the evidence based on the LEAP material, the Prosecution could lead no evidence of the accused being convicted of any earlier offences or indeed, sentenced in any way. As was pointed out in Page,[28] given that the accused did plead guilty to the earlier offences, limits any argument about the occurrence of such events.
[28]Op cit
65Of course, in allowing such evidence to be admitted, a very clear direction to the jury as to how that evidence can be made use of and, of course, as the parties already appreciate, there would be no record of course to the plaintiff being convicted of any earlier offences or indeed sentence in any way. The relevance of the LEAP matter is that the Accused plead guilty to the relevant offences which, as I have already recorded, limits any argument about the occurrence of such events.
66I do refer to a recent decision of the New South Wales Criminal Court of Appeal – Taylor v R,[29] which has some similarities with the subject matter.
[29][2020] NSWCCA 355
67In that matter, the applicant was charged on indictment with a number of domestic violence offences against the complainant with whom he had previously been in an on-again off-again relationship. Following a trial in the District Court of New South Wales, a jury found the applicant not guilty on three of the counts but guilty on six of the counts relating to conduct in March 2018.
68In support of counts 1 to 10, the Crown relied upon tendency evidence, being a statement of agreed facts signed by the applicant in 2010, which was used for the purpose of sentencing the applicant in relation to a charge of recklessly causing grievous bodily harm to his ex-wife in 2008. The statement of agreed facts included a statement that there had been a history of domestic violence throughout the marriage, detailed circumstances where the applicant was verbally aggressive and intimidating towards his ex-wife, detailed a violent assault where the applicant struck his ex-wife and fractured three of her ribs, and described a detain for advantage count against his ex-wife.
69One of the issues raised on appeal was whether the evidence in relation to the 2008 conduct ought to have been admitted as tendency evidence. By a majority, Beach-Jones J and Walton J agreeing, dismissed the appeal whereas Bell P, in a dissenting judgment, held that the tendency evidence relied on was not of “significant probative value”. This was because, amongst other things, the conduct that the tendency evidence established occurred in very different circumstances to the conduct the subject of the charges, there was a significant passage of time between the offence the subject of the tendency evidence and the matters charges and the relative generality with which the tendency was formulated did not “strongly support” a proof of a fact that made up the offence charged.
70Furthermore, Bell J consider that even if the tendency evidence could be described as “probative”, its probative value did not substantially outweigh its prejudicial effect, as required under s101(2) of the Evidence Act 1995 (NSW).
71The tendency identified in the trial judge’s summing up was that the applicant had a tendency “to be physically violent towards women with whom he is in an intimate relationship”, although as noted by Beach-Jones J, the trial judge also referred to a tendency “to be threatening and physically violent towards women with whom he had an intimate relationship”.
72In respect of the subject proceeding, the following matters must be borne in mind:
(a) The subject offending is said to have occurred on 5 March 2020. The evidence sought to be relied on by the Prosecution as “tendency” evidence involves offending on 26 September 2016; 8 and 9 November 2016; 30 October 2016 (based on the statement dated 10 June 2021); and on 29 and 30 September 2018;
The tendency evidence sought to be relied on has reasonable proximity to the subject offending and can be compared to the High Court decision in McPhillamy v The Queen[30] where the evidence sought to be relied on as tendency evidence occurred nearly ten years prior to the alleged subject offending, with no evidence in between the date of the evidence sought to be relied on as tendency and the subject offending;
(b) It is also to be noted that the offending which occurred on 26 September 2016 involved, in part, the Accused taking hold of the complainant by the throat and choking her; the offending on 8 November 2016 involved, amongst other things, the Accused threatening her by saying he was going to kill her and chop her head off when he had her pinned to the bed; the offending on or about 28 or 29 September 2018 involved, in part, the Accused grabbing the complainant around her throat with two hands and squeezing tightly, and the incident on 29 October 2016 (as set out in the statement of the complainant dated 10 June 2021) alleges, in part, that the accused was going to chop up the complainant and feed her to the fish, during which time he was holding an axe.
[30]Op cit
73Such offending is clearly evidence of the Accused acting in an aggressive way and committing acts of violence against the complainant but also has a consistent theme of performing acts of violence which involve actions and words consistent with threatening to kill.
74I will allow the Prosecution to rely on the evidence as sought.
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