Director of Public Prosecutions v Lodding (No 4)
[2025] ACTSC 47
•18 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lodding (No 4) |
Citation: | [2025] ACTSC 47 |
Hearing Date: | 18 December 2024 |
Decision Date: | 18 December 2024 |
Reasons Date: | 21 February 2025 |
Before: | Loukas-Karlsson J |
Decision: | See [56] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application - application to edit Evidence in Chief Interview – context evidence |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence Act 2011 (ACT), ss 55, 135, 137 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 51(3)(b), 52(2) |
Cases Cited: | CA v The Queen [2017] NSWCCA 324 DPP v Lodding (No 3) [2025] ACTSC 46 DPP v Mastalerz [2024] ACTSC 30 DPP v Murphy [2023] ACTSC 4 DPP v Smith (No 3) [2024] ACTSC 300 Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 Hughes v The Queen [2017] HCA 20; 263 CLR 338 KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603 L'Estrange v The Queen [2011] NSWCCA 89; 214 A Crim R 9 MM v The Queen [2012] ACTCA 44; 232 A Crim R 303; Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 R v ATM [2000] NSWCCA 475 R v Harker [2004] NSWCCA 427 R v Passmore [2021] NSWCCA 201;110 NSWLR 292 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 |
Texts cited: | Australian Law Reform Commission, Uniform Evidence Law (Report No 102, 2005) Judicial Commission of New South Wales, Criminal Trial Courts Bench Book |
Parties: | Director of Public Prosecutions ( Respondent) Christopher Adam Lodding ( Applicant) |
Representation: | Counsel K Raffan ( DPP) R Court ( Applicant) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Applicant) | |
File Number: | SCC 37 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․The accused, Mr Lodding, who is the applicant in this matter, sought orders to edit the Evidence-in-Chief Interviews (EICI) of the complainant in this matter, the complainant’s mother (the mother) and the complainant’s friend, pursuant to ss 51(3)(b) and 52(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).
2․Mr Lodding is charged on indictment with one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The allegation is of digital penetration.
3․On 1 November 2024, I was provided by the parties with a table outlining the objections in relation to each of three EICIs[1] and I made a number of orders that are discussed in DPP v Lodding (No 3) [2025] ACTSC 46.
[1] Exhibit 5.
4․On 18 December 2024, I made the following further orders in respect of the EICIs of the mother and the complainant’s friend:
1)Evidence of A113 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 2 in the table of objections for the EICI of [the mother] (Exhibit 5) is not admissible. Reasons are reserved.
2)Evidence of QA731-734 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 8 in the table of objections for the EICI of [the mother] (Exhibit 5) is not admissible. Reasons are reserved.
3)Evidence of A48 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 1 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible. Reasons are reserved.
4)Evidence of QA157-177 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 7 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible. Reasons are reserved.
5)The prosecution no longer objects to the defence’s application to edit A481 of the EICI of [the mother]. Evidence of A481 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 7 in the table of objections for the EICI of [the mother] (Exhibit 5), is not admitted on that basis.
6)The prosecution no longer objects to the defence’s application to edit QA326 – 327 of the EICI of [the complainant’s friend]. Evidence of QA326-327 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 8 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admitted on that basis.
5․The reasons for the above orders on 18 December 2024 now follow.
The Application
6․As stated above, the accused sought orders to edit the EICIs of the complainant, the complainant’s mother and the complainant’s friend, pursuant to the EMPA.
Relevant legislation and legal principles
7․Relevant legislation and legal principles are discussed in DPP v Lodding (No 3) [2025] ACTSC 46 from [10] to [25] as follows.
Context evidence and s 137 of the Evidence Act
8․Relevantly, in deciding on the admissibility of context evidence, s 137 of the Evidence Act 2011 (ACT) (Evidence Act), provides that a court must refuse to admit evidence where the probative value of prosecution evidence is outweighed “by the danger of unfair prejudice.”
9․Section 137 states, in full, as follows:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
(Emphasis added.)
10․It is axiomatic that where the prosecution seeks to adduce context or relationship evidence, the evidence must be relevant: see MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 (MM) at [103] per Jagot J. Further, the purpose of adducing the evidence must be clearly and precisely articulated by the prosecution – this is for two reasons. First, context evidence must be distinguished from tendency evidence which carries a different evidential purpose. Second, the purpose stated by the prosecution may be professedly narrow but the evidence may be used for tendency reasoning by a jury.
11․As observed by Burns J in MM at [44] – [45] the purpose of the evidence must be clearly stated by the prosecution and the purpose must be determined objectively by the judge. It may be necessary to look beyond the prosecution stated purpose and consider whether the evidence is tendency evidence:
[44]Where the Crown seeks to adduce context or relationship evidence, the evidence must be relevant to the issues before the jury: R v ATM [2000] NSWCCA 475 at [72]. The purpose for which the evidence is led must be clearly stated, because in many cases evidence which provides a context to a particular allegation may also be capable of establishing a tendency on the part of the accused to act in a particular way or have a particular state of mind. For example, evidence that a child has been sexually assaulted by a parent other than on the occasion the subject of a charge may explain (where relevant) why the child has not made an immediate complaint after the incident the subject of the charge. The same evidence may also be capable of showing that the accused has a tendency to sexually assault the complainant, or to be sexually attracted to the complainant. The purpose for which the evidence is tendered defines whether it is tendency evidence or relationship/context evidence.
[45]The purpose for which such evidence is tendered is determined objectively, and it is sometimes necessary to look beyond the purpose as expressed by the Crown and consider the process of reasoning the jury will be asked to apply in using the evidence: RG v The Queen [2010] NSWCCA 173 at [34]. If the process is, in truth, a process involving proof of a tendency, then the evidence is tendency evidence and subject to the restrictions placed on such evidence by the Evidence Act 1995 (Cth) and, now, the Evidence Act 2011 (ACT). If the process of reasoning the jury is asked to apply in using the evidence does not involve tendency reasoning, and if the context sought to be proved is relevant to a matter in issue in the proceedings, and if the evidence is not excluded under s 135 or s 137 of the Evidence Act 1995 (Cth) or the Evidence Act 2011 (ACT), then it should be admitted as context evidence. Where such evidence is admitted, the jury should be carefully directed as to the confined use that may be made of the evidence, and that a process of tendency reasoning is impermissible: see generally Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95.
(Emphasis added.)
12․Thus, the purpose of adducing the evidence must be clearly and precisely articulated by the prosecution so as to distinguish from a tendency purpose and tendency reasoning.
13․In KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603 (KJS v The Queen), the Court discussed the admissibility of context evidence about other sexual acts occurring before and between the counts on the indictment at [34]:
[34] The relevance and purposes for which the Crown sought to lead this evidence are clear:
(i)To demonstrate that there was a process of habituating ISS to physical contact with the appellant so that such contact seemed unremarkable.
(ii)To place count 1 in its proper context so that rather than appearing to be an extraordinary assault which had suddenly occurred, it could be seen as a result of a course of conduct in which sexual touching had been established between the appellant and ISS as a normal activity and had progressed to a more serious form of indecent touching.
(iii)To provide a proper basis for the jury to make an assessment of the description by ISS of count 1 and more particularly her failure to resist the appellant, to cry out for help or to otherwise express surprise at what was, viewed in isolation, an almost unbelievable anomaly in the father/daughter relationship.
(iv)To place count 2 in its proper context so that, rather than appearing to be another isolated and quite extraordinary sexual attack upon ISS, the offence was seen as the continuation and culmination of a consistent course of conduct over a period of years.
(v)To provide some explanation for the failure of ISS to complain about her father's conduct. Without the evidence of what could readily be considered as a slow process of habituating ISS to sexual activity, the jury might well have found it incredible that after the occurrence of count 1 (and later count 2), ISS made no complaint.
The distinction as between context evidence and tendency evidence
14․The distinction as between tendency and context evidence was usefully discussed by Baker J in DPP v Mastalerz [2024] ACTSC 30 (Mastalerz), at [50] – [51]. An important distinction noted there is as between context evidence that is relevant to the believability of the complainant’s account as opposed to tendency evidence which is concerned with the tendency of the accused.
[50]The reasoning process for context or relationship evidence is different to tendency reasoning. For example, evidence may be relevant as context or relationship evidence because it explains why the complainant did not respond to the alleged offending in a way that the jury might have expected if they were unaware of the broader context of the relationship. The use of evidence in this way does not engage tendency reasoning. It is concerned with the believability of the complainant's response, rather than with the tendency of the accused.
[51]Similarly, context or relationship evidence may also be relevant to a consideration of the accused's state of mind without engaging tendency reasoning. For example, it may be necessary for the tribunal of fact to hear broader evidence of the relationship between an accused and the complainant in order for the tribunal of fact to draw accurate inferences about an accused's state of mind, or their reason for acting in a particular way towards the complainant. Again, the use of evidence in this matter does not engage tendency reasoning. It is not reasoning which involves the tendency of an accused to have a particular state of mind or to act in a particular way.
(Emphasis added.)
15․In R v ATM [2000] NSWCCA 475, Howie J at [74] – [76] (Sully and Whealy JJ agreeing) made two important points. First it was underlined that admissibility is dependent on the purpose of the evidence and second, it was underlined that directions concerning impermissible use would be appropriate:
[74] Further, the admissibility of the evidence of relationship will depend upon the purpose for which it is admitted. As was made clear in R v A.H. (1997) 42 NSWLR 702 at 708-709, the evidence can be relevant in two different ways: (a) as evidence relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates; and (b) as evidence of tendency on the part of the accused to act in a particular way toward the complainant, sometimes described as evidence of guilty passion.
[75] It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was place before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28].
[76] Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H, above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v R.N.S. [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as “guilty passion” or “sexual interest”.
(Emphasis added.)
16․In KJS v The Queen, at [41] it was underlined that it is a well-established tenet of criminal justice principles that juries comply with judicial directions.
17․In CA v The Queen [2017] NSWCCA 324 at [83], the Court affirmed the importance of judicial direction concerning context evidence that may be capable of being relevant as tendency evidence:
[83]There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieri v R extracted above at [68]).
(Emphasis added.)
18․Generally, in L'Estrange v The Queen [2011] NSWCCA 89; 214 A Crim R 9 (L’Estrange), the NSW Court of Criminal Appeal at [60] – [64] underlined that courts must bear in mind that the disavowal by the prosecution of a tendency evidence purpose does not remove the risk that the jury may use the evidence in that way.
19․Nevertheless, as I stated in DPP v Murphy [2023] ACTSC 4 at [64], jury directions are not a legal panacea in all cases: see also Taylor vThe Queen [2020] NSWCCA 355 at [122]. It depends on the specific case. Most, but not all danger of unfair prejudice, can be overcome by judicial direction. It cannot safely be assumed that judicial direction would necessarily be successful in all cases. Further, as I noted at [51] of Murphy, the dangers of unfair prejudice include that the jury may be influenced to convict as punishment for conduct other than that charged: see R v Harker [2004] NSWCCA 427. A jury may overestimate the probative value of the evidence: see ALRC 102 [3.18]. Juries may be distracted from the central issues in the trial: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [17].
20․Appropriate jury directions may go a substantial way to ameliorating the danger of unfair prejudice. I note in this vein the Court of Appeal has referred to “modern life” being “confronting” and juries being “robust”: Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11 at [125]; see also Murphy at [58].
21․Nevertheless, a court must assess the danger of unfair prejudice taking into account potential directions without adopting a general forensic assumption or view that such jury directions will of necessity be a panacea in all cases; see Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 at [52]–[57]; see also Murphy at [59].
22․Finally, I underline that the Victorian Court of Appeal in Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652 at [28]-[30], reinforced, that where the jury directions would be “quite complicated and potentially confusing” unfair prejudice may not be outweighed by the probative value of the evidence; see also Murphy at [59].
23․It is well established but nevertheless bears repeating: the duty of judges to ensure a fair trial is at the core of criminal justice and criminal jury trials in Australia: see DPP v Smith (No 3) [2024] ACTSC 300 at [74].
Application to edit A113 of the mother’s EICI
24․On 18 December 2024, I made an order that evidence of A113 of the EICI of the mother, as referred to in the applicant’s submissions (MFI 5) and at No 2 in the table of objections for the EICI of the mother (Exhibit 5) is not admissible: see DPP v Lodding (No 3) [2025] ACTSC 46.
25․A113 contains evidence from the mother of an allegation that the accused would stare at the complainant and make comments as to similarities between the mother and the complainant. The relevant evidence follows:
Q113.Mm
ALike, it was just, like - I don't know. And he'd - he'd just - just stare at her sometimes, like, and I'd just be like, you know, 'What are you – what are you staring at?' And he's like, 'She looks so much like you.' Like, 'She's like a younger version of you,' sort of thing.
26․Counsel for the accused submitted there is no ‘presumption’ of admissibility under s 55 of the Evidence Act and that the Evidence Act refers to s 55 as an ‘inclusionary rule.’ Counsel for the accused correctly submitted that relevant evidence is that which, if accepted could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding.
27․Counsel for the accused submitted that, even when viewed in the context of the rest of the prosecution case, the benign allegation that the accused was ‘staring’ or looking at the complainant and commenting how much she looks like her mother, does not rationally affect (directly or indirectly) the likelihood that the accused introduced his finger into the complainant’s vagina on 5 January 2022. There is force, in my view, to this submission.
28․Counsel for the accused further submitted that the evidence is not tied to any specific time, so it is unknown whether the accused is alleged to have said this to the complainant before or after 5 January 2022. This is also a submission, in my view, of some significance.
29․Counsel for the accused referred to the prior application by the prosecution to adduce tendency evidence, which was rejected by the Court on 24 July 2024. Counsel for the accused noted the prosecution has chosen not to file a further amended Tendency Notice asserting that the accused had a sexual interest in the complainant and a willingness to act upon it, and rather is asserting the evidence is relevant as context evidence.
30․In contradistinction to the accused’s submissions, the prosecution submitted that the mother’s evidence corroborates the complainant’s friend’s evidence at QA157 - QA176 of the complainant’s friend’s EICI, making it relevant and probative.
31․Further, the prosecution submitted that the evidence is admissible as context evidence. The prosecution submitted that evidence of staring at the complainant places the alleged offending in context. In addition, the prosecution relied on MM at [44]-[47] and Mastalerz at [50]-[51].
32․In written submissions, the prosecution submitted that the evidence is context evidence and is relevant as to the consideration of the accused’s state of mind and corroborates the evidence of the complainant’s friend. The prosecution further submitted it is evidence which may allow the tribunal of fact to draw inferences from the act of “staring”, so as to give insight as to why the accused acted in a particular way towards the complainant during the same period.
33․The prosecution made submissions concerning the discussion of the risk the jury may use the evidence as tendency evidence, and referred to would be straightforward curing of such risk with appropriate directions to the jury: see R v Passmore [2021] NSWCCA 201; 110 NSWLR 292 where Payne JA stated at [81]:
[81] The fact that context evidence is capable of being tendency evidence is not, in itself, fatal to its admissibility as context evidence. The CDPP cited CA v R [2017] NSWCCA 324 for this proposition where N Adams J (with whom Beazley ACJ and Walton J agreed) said:
“[82] ‘Tendency evidence’ is defined in the Dictionary to the Evidence Act as meaning ‘evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection’ [emphasis added]. That is, it is defined by the purpose for which it is tendered: L'Estrange v R [2011] NSWCCA 89 at [59]. The Crown did not seek to have the evidence adduced for a tendency purpose, thus the fact that it was capable of constituting both tendency evidence and context evidence does not mean that it was wrongly admitted.
[83] There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieri v R extracted above at [68]).”
(Emphasis added.)
34․As to the appropriate direction to be given, the prosecution relied heavily on Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 at [80] where McClellan CJ at CL stated (Howie and Latham JJ agreeing):
To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be —
· Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
· If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher [2005] NSWCCA 338). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH at 709.
· If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [2000] NSWCCA 475 at [72]). In relation to crimes of a sexual nature, particularly involving children, it may be anticipated that lack of complaint or surprise by the complainant may be an issue at the trial. If it is, it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
· If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.
35․That is indeed the case. That is, that context evidence which is capable of serving the purpose of tendency evidence does not necessarily of itself lead to the conclusion that the evidence is inadmissible. Nevertheless, the converse is not true. Merely because evidence can be both context evidence and tendency evidence does not mean it is automatically admissible because there is the possibility of a jury direction as the prosecution appears to suggest in their submissions.
36․Further, in this vein the prosecution referred to the Supreme Court of NSW Criminal Trial Court Bench Book which contains suggested standard jury directions concerning context evidence at [4-215].
Determination
37․I determined that this evidence was not admissible for the following reasons.
38․The evidence of “just stare at her sometimes” and “she looks so much like you” and “younger version of you” is, to put it simply, not highly probative, in my view. There is a danger of unfair prejudice in the sense of a jury wrongly attributing excessive and unwarranted weight to such observations as “staring” and comments on similarity. It must be emphasised that the prosecution’s reliance on the “would be” panacea and purported unerring safety valve of a forensically sanitising judicial direction is misplaced. As stated in Taylor v The Queen [2020] NSWCCA 355 at [122]; see also DPP v Murphy [2023] ACTSC 4, judicial direction is not an unfailing panacea for the danger of unfair prejudice. Judges must ensure a fair trial. A fair trial is not only concerned with jury directions, but also concerned with exclusion of evidence where a jury direction cannot be said to be an unfair prejudice panacea for the evidence in question.
Application to edit QA731 - QA734 of the mother’s EICI
39․As stated above, on 18 December 2024 I made an order that evidence of QA731 - QA734 of the EICI of [the complainant’s mother], as referred to in the applicant’s submissions (MFI 5) and at No 8 in the table of objections for the EICI of [the complainant’s mother] (Exhibit 5) is not admissible.
40․QA731 - QA734 contains evidence from the mother that she had never seen the accused throw up or dry retch in the whole 15 years the mother had known the accused. The evidence is as follows:
Q731. Okay. Thanks for that. Right. And just in terms of [the accused], had you ever seen him throw up before?
A No.
Q732. No.
A Never in the whole 15 years I've ever known him.
Q733 Had you ever known him to dry retch?
A No.
Q734 So at no stage have you ever seen him - - -
A Never.
Consideration
41․Counsel for the accused submitted this evidence is irrelevant. I agree. I do not consider that evidence of frequency of vomiting is of great forensic relevance.
42․Counsel for the accused submitted that the mother asserts that she had never before seen the accused throw up “in the fifteen years [she’d] ever known him”. However, counsel for the accused submitted that the mother’s own interview makes plain that while they first came to know each other 15 or more years ago, they separated following her separation from her then partner (see QA20 of her interview) and didn’t reunite until after April 2021. Accordingly, as at 5 January 2022, the mother had only known the accused most recently for approximately 8 or 9 months.
43․The prosecution submitted the evidence is relevant as it could rationally affect the assessment of the probability of the existence of a fact in issue, namely, as to whether the alleged incident occurred in the circumstances that it did; that is, while the accused was next to the complainant in the bedroom ostensibly “throwing up.” I am not persuaded that the evidence is relevant.
44․The prosecution submitted that the prosecution case is that the accused attempted to mask his advances on the complainant by pretending to “throw up” in the bucket that was in the room and referred to the evidence of the complainant at A483 and QA725.
45․The prosecution submitted the relevance of the evidence as to whether the mother had previously seen the accused throw up before 5 January 2022 goes to not only the plausibility of the accused actually having thrown up and his tolerance for alcohol, but to the fact that this was an unusual incident making it more likely that it was remembered.
Conclusion to consideration
46․I determined that this evidence was not admissible for the following reasons.
47․I was not persuaded that the evidence was relevant. The experience of a person as to the frequency of vomiting of another person is not of any great forensic relevance in this case. Further, this is not a matter, in my view, that deserved the time taken to bring this question of evidence to the Court to determine.
Application to edit A48 and QA157 – QA177 of the complainant’s friend’s EICI
48․As stated above, on 18 December 2024 I made orders that:
(a)Evidence of A48 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 1 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible.
(b)Evidence of QA 157-177 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 7 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible.
49․A48 and QA157 – QA177 contains the friend’s evidence that the accused would touch the complainant and do anything the complainant asked the accused to do.
50․The following bolded passage of A48 was objected to:
Yeah, he would say some things, but I wasn’t sure if he was, like, in a jokingly sense, because I know some people that say things and mean it in a jokingly sense, but I didn’t know him well enough to know what his humour was like. Like, once he took me and [complainant] to this, like – I don’t know – it was, like, a field thing in the middle of nowhere. And it was, like, an abandoned place. Um, and we all went there. And then in the car, he said, like, ‘Oh, if the police pull us over, I’ll say you guys are my girlfriends.’ And would just, like, say stuff like that, basically. Um, I know he had, like – [complainant] has, like (laughs) really bad, like, feet. I know it’s going to sound weird, but she has – like, her feet peel. Um, and she got this stuff from her mum for her birthday to help with that, and, um, he would constantly, like, ask to do it for her and stuff. And, like – like, he was always, like, touching [complainant]. And he, like, had a thing for [complainant] – like, would do anything [complainant] wanted. Like, he didn’t like [complainant’s mother]. Like, this is after they had broken up. Like, he didn’t like [complainant’s mother]. He didn’t like me being there because I was constantly with [complainant]. Um, but, yeah, anything [complainant] wanted, he would basically do.
(Emphasis added by the Court.)
51․QA157 – QA177 states:
Q157. Yep.
A I don’t know. He used to say, like, odd things to [complainant] a lot, like, about, like, how she was like a younger version of her mum, and how pretty she was, and all this stuff.
Q158. Did you directly see that happen, or did you hear it?
A Yes, yes.
Q159. Yep, okay. Can you remember any specific incidences where he’d said things like that to [complainant]?
A Um, no, not really.
Q160. Yep.
A Yeah, no. Whenever he would say those things, what was your thoughts? Um, I reckon [complainant] looks like her mum, so I didn’t think anything about that one.
Q161. Yep.
A Um, um, I thought it was a bit odd that he would, like, say she was pretty and stuff, but, no, I didn’t really think much about it, because that was, like, to [complainant]. Yeah.
Q162. Yep. Describe why you thought that was odd.
A Because he’s, like – I don’t know how old he is – like, 40, or whatever - - -
Q163. Yep.
A - - - year-old man, and she was, like, a 16-year-old girl.
Q164. Yep.
A That is a bit odd. Yeah.
Q165. Okay. All right. And then you’ve said that he would – with [complainant], she’s got some bad feet or something?
A Yeah, yeah.
Q166. And he would constantly ask to do it for her.
A Yeah.
Q167. Tell us about that.
A Um, he would, like, ask to, like, do her feet and stuff, and he would, like, rub her feet. And sometimes he would, like, slowly go up her leg. Like, me and [complainant] used to talk about that one a lot. Like, slowly, like, go up her leg. Um, there was a couple of times, like, she would wear tights while he was doing her feet, and then he would ask her to get changed into shorts, um, for him to do it. Um, yeah, that was - - -
Q168. Did you see any of these times?
A Ah, yes.
Q169. Okay. Okay. So describe the way he would slowly go up her leg.
A Like, he would, like – I don’t know – whatever the cream was - - -
Q170. Yep.
A - - - he would start on [complainant]’s feet and then, I guess, like, just, like, slowly make his way up her leg.
Q171. Yep.
A Yeah.
Q172. Okay. All right. Okay. And you said that you and [complainant] spoke about it a lot?
A Um, yeah, afterwards, me and [complainant], when we left, um, she told me about what he had done. Um, and then we discussed, like, a lot of what had happened, and, like, what she saw and how she felt about things, and what I saw.
Mm-hmm. Okay. All right. Do you have any questions about the foot?
BURTON: (Indistinct)
DAVIDSON: Okay.
Q173. So you made a comment that he was always touching her and doing anything that [complainant] wanted.
A Mm-hmm.
Q174. Tell us a bit about that.
A I don’t know. That was really weird. Me and [complainant] knew that. Like, [complainant] used to say, like, [accused] would do anything for her, and he would. Like, he was, like, weirdly, like, obsessed, I guess, in a way, like, with her – like, would do – like, if we went – woke up and were like, ‘Oh, hey, can you drop us off here?’ he’d be like, ‘Yeah.’ Or if we were like, ‘Hey,’ like, ‘can you’ – like, if [complainant] was like, ‘Hey, we want Macca’s. Can you buy us Macca’s?’ he’d be like, ‘Yeah.’ Like, I guess he was just – he would do anything [complainant] really asked, in a way.
Q175. And describe how he was always touching her.
A Um, like, he would, like, touch her hair or, like – for example, when he was doing her foot stuff, he would offer to, like, scratch her back or massage her back a lot. Or if we were, like, eating dinner and he had, like, finished or something, he would, like, massage her, like, shoulders and stuff and stands behind her. Just, like, little things like that.
Q176. Mm-hmm. Okay. When those things would happen, did you have any thoughts around it?
A Um, no, not at the time. No. like, I didn’t really think anything about it then. But now I do, after [complainant] told me what happened.
Q177. Mm-hmm.
A But then, no, I didn’t think much about it, because I was – I didn’t know him personally. I didn’t know their relationship that well, so – yeah.
Okay. All right. Leigh, do you have any questions about that?
BURTON: No, thanks.
52․Counsel for the accused submitted that the evidence could only be relevant to the question of the accused’s state of mind, and specifically, whether he had a sexual interest in the complainant: L’Estrange.
53․The prosecution submitted the evidence is relevant as context evidence regarding the nature of the relationship between the accused and the complainant, including the physical interactions they had as part of their relationship, during the period in which the offending took place. Without that context, the prosecution submitted it may seem inexplicable that the complainant was initially comfortable being in a room with the accused by herself while sick and vulnerable: see Qualiteri.
Determination
54․I determined that this evidence was not admissible for the following reasons.
55․In my view, this evidence is evidence that is not highly probative of context as such and is barely relevant. The evidence does not assist in any real way in the determination of the issues in this case. The evidence that the accused, “would do anything [complainant] wanted” (A48) and that “he would do anything [complainant] really asked, in a way” (Q174) and “[complainant] looks like her mum” (QA160) is not of any significant forensic weight in the determination of the issues in this case. Additionally, such evidence as this has the danger of tending to distract the jury from the core issues in this case.
Orders
56․For the above reasons the following orders were made:
(1)Evidence of A113 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 2 in the table of objections for the EICI of [the mother] (Exhibit 5) is not admissible.
(2)Evidence of QA731-734 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 8 in the table of objections for the EICI of [the mother] (Exhibit 5) is not admissible.
(3)Evidence of A48 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 1 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible.
(4)Evidence of QA157-177 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 7 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admissible.
(5)The prosecution no longer objects to the defence’s application to edit A481 of the EICI of [the mother]. Evidence of A481 of the EICI of [the mother], as referred to in the applicant’s submissions (MFI 5) and at No 7 in the table of objections for the EICI of [the mother] (Exhibit 5), is not admitted on that basis.
(6)The prosecution no longer objects to the defence’s application to edit QA326 – 327 of the EICI of [the complainant’s friend]. Evidence of QA326-327 of the EICI of [the complainant’s friend], as referred to in the applicant’s submissions (MFI 5) and at No 8 in the table of objections for the EICI of [the complainant’s friend] (Exhibit 5), is not admitted on that basis.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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