Director of Public Prosecutions v Timosevski
[2024] ACTSC 35
•22 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Franklin (No 4) |
Citation: | [2024] ACTSC 35 |
Hearing Date: | 14 February 2024, 21 February 2024 |
Decision Date: | 22 February 2024 |
Reasons Date: | 23 February 2024 |
Before: | Baker J |
Decision: | (1) Evidence of incident 1 and incident 2 as particularised in the Tendency Notice filed on 9 October 2023 are admissible as evidence that the accused had a tendency to act in a particular way, namely that the accused, when angry with the complainant, had a tendency to digitally penetrate the complainant’s vagina and anus without consent, to demean and dominate her. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to admit tendency evidence of two incidents involving sexual assaults – cross-admissibility of evidence of charged incidents – where contemporaneous evidence of first incident varied significantly from later evidence – requirement to take evidence at its highest – evidence cross-admissible as tendency evidence. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 27(3)(a), 28(2)(a), 34, 54(1) Criminal Procedure Act 1986 (NSW), s 161A Evidence Act 2011 (ACT) ss 55, 94(5), 97, 101, s 192A |
Cases Cited: | Aravena v R [2015] NSWCCA 288; 91 NSWLR 258 De Silva v The Queen [2019] HCA 48; 268 CLR 57 Director of Public Prosecutions v Roder (a pseudonym) [2023] VSCA 262 DPP v Mastalerz [2024] ACTSC 30 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 JS v R [2022] NSWCCA 145 Liberato v The Queen [1985] HCA 66; 159 CLR 507 Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 Marshall v The King [2023] ACTCA 11 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Parkinson v Alexander [2017] ACTSC 201 R v Adams [2015] NSWSC 1960 R v BC (No 3) [2020] ACTCA 49 R v CX [2016] ACTSC 106 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Murray (1987) 11 NSWLR 12 R v NO [2017] ACTSC 421 R v Stephens [2021] ACTSC 308 Sharman (a pseudonym) v The King [2023] VSCA 56 Taylor v R [2020] NSWCCA 355 The Director of Public Prosecutions v DL [2018] ACTCA 61; 14 ACTLR 62 TL v The King [2022] HCA 35; 275 CLR 83 |
Texts Cited: | Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 18th ed, 2023), p 740 [EA.94.150] |
Parties: | Director of Public Prosecutions ( Crown) Patrick Franklin ( Accused) |
Representation: | Counsel S Saikal-Skea ( Crown) K Ginges ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 214 of 2022 SCC 215 of 2022 SCC 310 of 2023 |
BAKER J:
Introduction
1․The accused, Patrick Franklin, has been charged with the following nine offences in an indictment dated 18 January 2024:
(a)Count 1 (CC2022/4895): choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT).
(b)Count 2 (CC2022/7508): choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT).
(c)Count 3 (CC2022/4896): choke render insensible, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT).
(d)Count 4 (CC2022/4898): forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT).
(e)Count 5 (CC2022/4899): choke render insensible, contrary to s 27(3)(a) of the Crimes Act 1900 (ACT).
(f)Count 6 (CC2022/4900): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(g)Count 7 (CC2022/7513): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(h)Count 8 (CC2023/9300): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
(i)Count 9 (CC2023/9301): sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).
2․Counts 1 to 7 relate to an incident that occurred on 18 May 2022. Counts 8 and 9 relate to an incident that occurred on 2 November 2019.
3․On 9 October 2023, the prosecution filed an application to adduce tendency evidence under pt 3.6 of the Evidence Act 2011 (ACT), relying on a Tendency Notice also dated 9 October 2023. In this notice, the prosecution seeks to adduce evidence of the 2019 incident (described as “incident 1”) and the 2022 incident (described as “incident 2”) in support of the following alleged tendency:
The accused, when angry, had a tendency to digitally penetrate the complainant’s vagina and anus without consent, to demean and dominate her.
4․The accused contends that the evidence of the two incidents does not satisfy ss 97 and 101 of the Evidence Act.
5․The prosecution accepts that if the evidence set out in the Tendency Notice is not cross-admissible, the indictment will need to be severed, so that each incident will be the subject of a separate trial.
6․The application is before me to determine the admissibility of the evidence under s 192A of the Evidence Act.
Background
The 2019 incident
7․On the evening of 1 November 2019, the accused and the complainant (who were living together, and in a relationship of sorts), went out to celebrate the accused’s birthday with friends. They returned home in the early hours of 2 November 2019. The prosecution alleges that shortly after they returned home, there was an altercation between the complainant and the accused, and that the complainant was sexually assaulted during that altercation (counts 8 and 9, also incident 1 in the tendency notice).
8․Around 2:00am that morning, police were called to the house, following a call from a neighbour who had heard a female say “why did you rape me?”. When police arrived, they saw the complainant, who was walking down the street near the accused’s house. When police pulled up and asked after the complainant’s welfare, the complainant disclosed that she had been “raped”.
9․The notes of the police’s subsequent conversation with the complainant record that the complainant told police that she had been out for the accused’s birthday, and that she had returned with him in a taxi. She said that the accused had elbowed her in the face in the taxi. She said that she and the accused “had a bong” when they returned, and that she told the accused that he was being a ‘dog cunt’.
10․Police notes then record the following:
-He dragged her by hair
-Pushed her into his room
-Kicked his flat screen, started kicking TV
-Grabbed hair, knee on forehead, then put two fingers in ‘pussy’
-Was punched when got out of taxi
-He ripped teal G-string off
-Dragged through house (marks on back)
-Had knife on her which she handed to me on arrival, stated grabbed it for protection
-Neighbour screamed let her go
-He let her hair go, she started running
-She was screaming don’t rape me
11․The complainant was vomiting. The notes state that the complainant was highly emotional and was crying while she told police what had happened.
12․The police called the ACT Ambulance Service. The Ambulance Service arrived shortly thereafter and took the complainant to hospital. Ambulance records stated:
Pt states she was physically and sexually assaulted. Claims punched in the face, choked (states incontinent) and digitally penetrated vaginally and anally. States she has pain in anus.
13․Hospital records indicate that the complainant disclosed that she had been physically and sexually assaulted “incl choking with assoc incontinence”. The Emergency Department notes record that the complainant said that she had been “punched on her face and held around her neck”. She also recorded being digitally penetrated in the “vagina and anus/ back passage”.
14․When police attended the hospital, they again spoke to the complainant. The notes from this attendance record:
At this time she stated she had fingers stuck up her ‘arsehole’ as well and became upset
15․She also complained of “significant strangulation”. ACT Ambulance Service members informed the police that the complainant had had “quite a bit” to drink. The complainant was “emotional and quite erratic”. She took off her skirt, top and bra and threw them across the room. Police observed that the complainant had red marks around her neck and marks on her left arm.
16․Nursing notes from 4:35am that morning (from a Forensic and Medical Sexual Assault Care nurse) record the following:
Currently not fit for examination. Needs to be medically cleared. Doctors need to check throat for strangulation.
1.55am disturbance at [redacted]. Neighbour reported. “Why did you rape me”? Saw her walking along. Disturbance at house. [illegible] place – blood on face/hands. She said “I’ve been rape”. City – Patrick Thomson. Friend that she resides with. Excluded from Civic. Elbowed in face in taxi. Taxi taken to [redacted]. Punched her in the face. Dragged by hair. Kicked the TV. Kneed her in the head. Fingers in vagina. Ripped G-string. Grabbed knife. Knife in police car. Neighbour told them to stop. Told Ambulance that she has been strangled. Since being at TCH anal penetration. Outer clothing contaminated. She replaced her undies at some point. Her injuries corroborated her story.
3:06am arrest time. 3:06am crime scene declared. Spoke with [complainant] in regards to the allegation.
[Complainant] stated that she was digitally penetrated anally and vaginally. Fist in her vagina. Claimed that she had got the blood nose from falling over whilst intoxicated. Showed police the marks on left side of her neck – red mark middle to left side. Some blue coloured bruising. Right arm bruising/forearm. Bruising in the shape of a bite mark. No skin breakage. Scrapes on back – mid right side.
17․Further hospital notes taken by an ED Registrar on 2 November 2019 state that the complainant was:
… allegedly punched on her face and held around her neck and raped by having fingers x 3 penetrated into vagina and anus/back passage.
18․Nursing progress notes from 3:55am state:
3:55: 24yo female …. allegedly physically and sexually assaulted by ex partner? Pt reports that she was digitally penetrated in vagina and anus …
19․At 4:55am, the nursing progress notes record that “it was Patrick, her best friend, who assaulted her”. Nursing notes taken at 5:30am also record that the complainant reported being digitally raped in the anus by the accused. At this time, she was described as “calm and interactive”.
20․The accused was cautioned, arrested and remanded in custody shortly after 3am. At 7:15am, the accused was “unarrested” and transported back to his home, where he participated in a record of interview.
21․In that interview, the accused told police that he and the complainant had returned home from the city. The accused reported they had been dropped close to home by a cab driver. The accused carried the complainant in his arms because the complainant had had too much to drink. He stated that “from the weight shifting, my hand got stuck into her vagina and in her arse”. He further stated that his “hand slipped up” and he “didn’t mean to do that”. The accused explained to police “so my hand, unfortunately – that’s where she said my fingers would have penetrated her”. He said that the complainant told him, “that’s uncomfortable, that’s uncomfortable. Please stop”. The complainant and accused then had an argument during which the complainant accused him of raping her.
22․The accused said that an “altercation” then ensued; the complainant pushed the accused, which he responded to by first pushing her away, then holding her in a “bear-hug”, which caused both the complainant and the accused to fall into the television. The accused said that the complainant then pulled off her underwear, yelled at him, and then walked out.
23․The complainant subsequently declined to be interviewed in respect of these events. The complainant’s clothing was seized at the time, but after she declined to be interviewed, it was not examined. The clothing was later disposed of. Forensic samples that were taken from the accused at the time were also disposed of without examination.
24․However, following a further incident of alleged violence and sexual assault in 2022 (which is detailed below), the complainant agreed to give an Evidence in Chief Interview (EICI) with members of the police Sexual and Child Abuse Team (SACAT) concerning the 2019 incident. In that interview, the complainant provided the following account:
(a)The accused and the complainant had been living together for approximately one year. On 2 November 2019, the complainant went out with the accused and his friends to Civic to celebrate his birthday. After a few hours, the complainant, the accused, and approximately four other women and three other men got a maxi-cab back to the accused’s house. The men gave money to the women for the taxi. One of the other women and the complainant flashed their breasts at the taxi driver in exchange for a free fare.
(b)Upon returning to the accused’s house, the complainant gave the money for the taxi back to the accused. The complainant and her friend told him they had “flashed” their breasts at the driver for a free fare. The accused got “extremely angry”, grabbing the complainant by the “scruff of the neck” and pulling her backwards into his bedroom, causing her to fall backwards into the TV cabinet. The complainant explained to police the damage caused to the TV and wall was as a result of her falling into the TV and pushing it into the wall when she attempted to kick the accused’s hands off her.
(c)The accused grabbed the complainant’s head on either side and began kissing her face, touching her breasts and legs. She told him to cut it out. She then started kissing him back. The accused then “put both his two fingers in [her] vagina”, at which point she left the bedroom.
(d)On further questioning by the police about what occurred in the bedroom, the complainant reported the accused “helped [her] up” and put “his hand on [her face] because he always did it” to console her. The complainant said this made her feel sick. The accused reportedly apologised (for pushing her). The complainant told the accused she wasn’t trying to ruin his birthday. The accused called her a “whore”, telling the complainant she ruined his birthday. The accused began kissing her face, then touching the complainant’s breasts and rubbing his hands down her leg. The complainant repeatedly told him to stop. The accused put “two fingers into [her] panties” and started “rubbing around”. The complainant told him to “get the fuck off” and walked out of the room. The accused followed her out, yelling at everyone to get out, which they did.
(e)In further questioning, the complainant reported that when the accused put his fingers in her panties, she grabbed his hand and said “Fucking don’t … We’ll have sex later”. She told him “Let’s not do this right now. You’ve got a whole fucking house full of friends. Let’s stop”. She told police the accused “put his fingers straight on – I don’t know if he was trying to get inside. But he was – just started rubbing”. She explained “he wasn’t trying to do anything amazing. He was just – started rubbing furiously”. The complainant said he was rubbing the inside of one of her vagina flaps – “he wasn’t hitting anything important. But he was trying”. She also stated she “could feel his nails scratching the inside of [her] vagina … he was hurting me”. The complainant reported that she told the accused to stop.
(f)The complainant pushed the accused away. The complainant thought she might have bitten the accused, but was certain she scratched him with her fingernails.
(g)The accused headed to the back shed and the complainant left the house until she heard police sirens and saw a police car arrive. She spoke with the police and saw them arrest the accused. The complainant said that the accused yelled “I’m gonna fucking kill you, you cunt” as he was placed back into the police wagon. The complainant reported she did not provide a statement to the police because she was fearful of the accused.
25․As can be seen from the above, whilst the overall complaint was broadly the same (in particular, that an argument had arisen following the taxi ride home), there were some important differences between the complainant’s accounts contained in the contemporaneous notes and her EICI. In particular:
(a)The contemporaneous notes record that the complainant disclosed that the accused had digitally penetrated her anus as well as her vagina. No mention is made of anal penetration in the EICI.
(b)The EICI refers to kissing having immediately preceded the digital penetration, and the accused having made an effort to console the complainant. No mention is made of kissing in the contemporaneous accounts, which only record the inflicting of violence.
(c)In the contemporaneous accounts, the complainant disclosed that the accused had elbowed her in the face in the taxi, punched her, dragged her by the hair, kneed her in the head, and choked her, whereas the EICI contains no reference to these acts. She further reported that the accused had his fist in the complainant’s vagina, which is not mentioned in the EICI.
2022 incident
26․At some point after the 2019 incident, the complainant and the accused stopped living together. However, they remained in contact until the 2022 incident.
27․The complainant participated in an EICI on 19 May 2022, and provided the below account of that incident.
(a)On 18 May 2022 at around 2:00pm, the complainant was drinking wine at home alone. At around 4pm, she received a call from the accused inviting her to come to his house to watch TV. Sometime after 7pm that evening, the accused drove to the complainant’s house and picked her up in his car, driving her to his place. The complainant said that the accused consumed cocaine and alcohol whilst they watched a TV series in his lounge room.
(b)Sometime after 9:00pm, the complainant told the accused he reminded her of a character from the television series they were watching, because he was “a bit of a cockhead too”. The accused then got “really angry” and began to yell at the complainant, calling her “a pussy cunt”. The accused then grabbed the complainant by the hair and tried to pull her off the couch, causing a chunk of hair to be ripped from her scalp. The accused then grabbed her by the shirt and throat, breaking the necklaces she was wearing, and threw her over a knee-height table in front of the couch. The accused positioned himself behind the complainant and put her in a chokehold, applying pressure to her throat and neck. He then placed himself on top of the complainant with his knees on her arms and choked her. She told him she wanted to leave, and he released her.
(c)As the complainant moved towards her bag, the accused took hold of her by the hood of her jacket and slung her to the ground. He then grabbed a pillow and put it over her face. He used his knees to apply pressure to the pillow over her face whilst punching the complainant in the head and face through the pillow. At some point she lost consciousness.
(d)When the complainant regained consciousness, she was lying on the accused’s bedroom floor. Her clothes were wet as she had urinated herself. She felt dizzy and sick and vomited. She then ran for the door, but was stopped by the accused. The accused “dragged [her] back by [her legs” then pushed her into the corner of the wall. He grabbed her throat and applied pressure, causing the complainant to be unable to breathe. The accused was repeatedly “choking [her] really hard and then letting go”. The complainant lost consciousness for a second time.
(e)The accused carried the complainant to the car and told her to take off her pants, socks and underwear as they were wet. The complainant states “when [she] was fully aware of where [she was], [she] was in the boot”. The complainant vomited whilst in the boot. She said that the accused had taken off her pants and undies and was putting his own underwear on her. The accused “traced … the lips of [her] vagina”, then “penetrated her [vagina] digitally” with two fingers. He then removed his fingers from her vagina and inserted a finger into her anus. This made the complainant scream, at which point the accused threw her underwear and pants at her and closed the boot. The accused then reopened the boot and told the complainant to get into the car. He began driving and stopped at a point on the Glenloch Interchange. He pulled the complainant out of the boot by her hair, throwing her on the side of the road.
(f)The complainant walked along the Glenloch Interchange towards the city for a while, until she was picked up by a passerby and driven to the City Police Station where she told police what had happened.
28․The complainant provided contemporaneous accounts to police, as well as medical staff. There were some differences between the EICI and these accounts, for example:
(a)The complainant told Constable Waller and Constable Cox at the City Police Station that the accused “put his whole fist” and put a “pasta thing with a circle in it” up her vagina, which was not stated in the EICI;
(b)The complainant told Constable Waller and Constable Cox that the accused ran her over twice, hitting the backs of her shoes; and
(c)The complainant told the passerby who drove her to the City Police Station that she was tied up, which she did not report in the EICI.
The indictment
29․The prosecution first charged the accused with alleged offences arising from the 2022 incident (that is, counts 1 – 7). After commencing those proceedings, the prosecution became aware of the 2019 incident, and issued the Tendency Notice referred to at [3] above.
30․After the complainant provided her EICI in respect of the 2019 incident, the accused was additionally charged with alleged offences arising from that incident (counts 8 and 9). Once the charges for those offences were committed to this Court, the prosecution filed an amended indictment which contains counts relating to both incidents.
Principles
31․Tendency evidence that is sought to be adduced by the prosecution in a criminal trial is only admissible if it is relevant to the facts in issue (s 55 of the Evidence Act); the evidence has significant probative value (s 97 of the Evidence Act); the probative value of the evidence outweighs the danger of unfair prejudice to the defendant (s 101 of the EvidenceAct) and reasonable notice is provided by the prosecution (s 97(1)(a) of the Evidence Act).
32․In the present case, the accused did not contend that the evidence was not relevant. Adequate notice of the intention to adduce tendency evidence has been given by the prosecution. The issues in contention concern the remaining two requirements: (1) whether the evidence has significant probative value and (2) whether the probative value of the evidence outweighs the danger of unfair prejudice.
The assessment of the probative value of tendency evidence
33․The assessment of the probative value of tendency evidence involves an assessment of the following two matters:
(a)The extent to which the evidence supports the tendency alleged; and
(b)The extent to which the tendency alleged is probative of the fact(s) in issue in the proceeding.
See Hughesv The Queen [2017] HCA 20; 263 CLR 338 at [41].
34․As I outlined in DPP v Mastalerz [2024] ACTSC 30 at [36], matters which may be relevant to the assessment of the probative value of tendency evidence sought to be adduced by the prosecution in a criminal trial include (but are not limited to) the following:
(a)the number of incidents establishing the tendency: Hughes at 371 [91];
(b)the temporal distance between the tendency incidents and the alleged acts: McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [30] – [32]; TL v The King [2022] HCA 35; 275 CLR 83 at 98 [37];
(c)Any similarity in conduct and circumstances between the tendency incidents and the alleged acts, and among the tendency incidents: TL at 95 [29];
(d)Whether the tendency alleged is unusual: Hughes at 393 [155];
(e)The specificity (or generality) of the tendency alleged: TL at 95 [29]; Hughes at 363 [64];
(f)Whether tendency evidence involves a single complainant, or more than one complainant: The Queen v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at 82 [48], 83 [50] and 88 [60];
(g)The nature of the tendency alleged (including whether “logic and human experience” suggest that the tendency is such as to be probative of the facts in issue): Hughes at 356 [40]);
(h)The extent to which the tendency as particularised will assist in determining the fact(s) in issue: TL at 95 [29];
(i)The issue that the tendency evidence is sought to establish (for example, whether the tendency is adduced to support a witness’ credibility or to establish identity; whether the evidence is adduced to explain or contradict tendency evidence adduced by another party; and/or whether the tendency evidence is adduced to demonstrate a critical fact in the prosecution case): Hughes at 355 [39], but see TL at 96 [30] – [31]; and
(j)The other evidence to be presented: s 97(1)(b) of the Evidence Act.
35․Importantly, the Court is not to consider issues of credibility or reliability when assessing the probative value of the evidence. Rather, as the High Court held in TL at 95 [28]:
Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury.
See also IMM v The Queen [2016] HCA 14; 257 CLR 300 at 312 [39] and 315 [52] and Bauer at [69].
36․Further, s 94(5) of the Evidence Act provides that in determining the probative value of tendency evidence under ss 97(1)(b) and 101(2), “it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination”. This provision removes even the limited exception (of evidence that could not be accepted by a rational jury) that had previously been left open on the authorities: Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 18th ed, 2023), p 740 [EA.94.150].
37․Accordingly, where the evidence relating to a tendency incident from “different sources differs substantially”, in assessing the evidence at its highest, it may be “necessary to reconstruct from the different pieces of the evidence what a jury might accept at its highest so far as the Crown case is concerned”: R v NO [2017] ACTSC 421 at [27].
The assessment of the danger of unfair prejudice
38․As noted above, tendency evidence about the defendant is precluded from being used against the defendant unless its probative value outweighs the danger of unfair prejudice: s 101 of the Evidence Act.
39․“Unfair prejudice” may arise if the evidence is “liable to be misused by the jury in some way; divert the jury from its task; be evaluated by the jury through some illegitimate form of reasoning; or be used in a way which is irrational or illogical”: Mastalerz at [42], citing Hughes at 349 [17]; Bauer at 93 [73]; Marshall v The King [2023] ACTCA 11 at [53]; and R v BC (No 3) [2020] ACTCA 49 at [40]. Unfair prejudice is not limited to the effect of the evidence on the jury’s reasoning, but may also “encompass some aspects of a fair trial”: The Director of Public Prosecutions v DL [2018] ACTCA 61; 14 ACTLR 62 at [40], cited in Mastalerz at [42]. Evidence will not be unfairly prejudicial merely because its admission increases the likelihood that the defendant will be convicted. Nonetheless, the admission of tendency evidence may give rise to prejudice in numerous ways: Mastalerz at [44], citing Hughes at 349 [17]. In assessing the danger of unfair prejudice, the warnings and directions that may be given to the jury must also be taken into consideration: Mastalerz at [45].
The importance of the tendency notice
40․The assessment of the probative value and the danger of unfair prejudice must concern the tendency particularised by the prosecution in its tendency notice. Reformulation of a tendency by the Court, absent formal amendment of the tendency notice, “should not be condoned”: TL at 97 [33]. See also Sharman (a pseudonym) v The King [2023] VSCA 56 at [53] and [57] and Parkinson v Alexander [2017] ACTSC 201 at [45] – [47].
Determination
Does the tendency evidence have significant probative value?
41․In his written submissions, Mr Ginges, who appeared for the accused, first contended that the present is one of those “rare” cases alluded to in decisions such as IMM and TL, where the tendency evidence is so lacking in credibility or reliability that a jury could not rationally accept it.
42․In his oral submissions, Mr Ginges developed a somewhat more nuanced argument. This more nuanced argument was that the evidence sought to be adduced in relation to the 2019 incident – even taken at its highest – could not support the tendency particularised. In particular, he contended that there is simply no evidence that the accused’s intent when engaging in digital vaginal and/or anal penetration was to “demean and dominate [the complainant]”. He submitted that the account given by the EICI suggests that the accused’s conduct in digitally penetrating her was sexually motivated, and that the contemporaneous police notes were too devoid of detail for an inference as to the accused’s intent to be established.
43․As to the first contention, s 94(5) prohibits the Court considering the possibility that the evidence may be the result of “concoction or contamination”. In any event, I do not accept that the evidence of the 2019 incident is so lacking in credibility that the jury could not accept the evidence. Whilst there are differences between the complainant’s account in the EICI and the police notes and hospital records, on the information presently before me, it would be open to the jury to accept the contemporaneous account given by the complainant where there are inconsistencies between the EICI and the contemporaneous accounts. There is nothing incredible or fanciful in the complainant’s contemporaneous account.
44․Mr Ginges’ more nuanced contention has caused me greater concern. Whilst the evidence clearly indicates an intent to demean and dominate in respect of the 2022 offending, the evidence of such an intent in respect of the 2019 offending is more difficult to discern.
45․Nonetheless, in accordance with the High Court’s decision in TL, IMM and Bauer (cited at [35] above), it is necessary for me to consider the evidence in the prosecution case at its highest. As the prosecutor noted, the contemporaneous police notes record that the complainant told police immediately after the assault that the accused had punched her when they got out of the taxi, grabbed her by the hair and dragged her through the house, pushed her into his room and “then” digitally penetrated her in the vagina. Taken at its highest, an inference could be drawn from this sequence of events that the accused was acting with an intent to dominate and demean the complainant.
46․Although the complainant did not mention anal penetration in her first account to police, she immediately disclosed the anal penetration to ambulance officers, health services and to police when they attended the hospital. Taken at its highest, it would be open to the jury to conclude that the anal penetration occurred at the same time as the vaginal penetration.
47․In short, I am satisfied that, if the complainant’s contemporaneous accounts are accepted by the jury, the 2019 incident is capable of supporting a tendency on the part of the accused “when angry, … to digitally penetrate the complainant’s vagina and anus without consent, to demean and dominate her”. There is no dispute that the evidence of the 2022 incident supports of the tendency alleged.
48․Turning to the assessment of the probative value of the tendency evidence, there are only two tendency incidents relied on by the prosecution (namely, the cross-admissible counts on the indictment). Whilst a single incident provides a “weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct”, tendency evidence consisting of a single incident may nonetheless have significant probative value: Aravena v R [2015] NSWCCA 288; 91 NSWLR 258 at [89]; R v NO at [37].
49․The period of time between the two charged incidents (two and a half years) is a relatively long period. However, as Beech-Jones J observed in Taylor v R [2020] NSWCCA 355 at [145], that period “must be considered in the context of the precise tendency that was alleged and the other evidence in the trial”. In particular, as Beech Jones J observed in Taylor, a longer duration between tendency incidents will be of particular concern where an accused had many opportunities to act on the tendency alleged during the intervening period, but did not do so: Taylor at [144] – [148], with reference to McPhillamy at [26] and [30]. A longer gap between incidents will be of less concern where an accused’s opportunities to act on that tendency were limited: Taylor at [145].
50․The evidence presently before me indicates that, at the time of the 2019 incident, the complainant was living with the accused and they would “on occasion” have consensual sexual intercourse. The complainant described herself as “dating” the accused. However, she said that the relationship was not “Facebook official… people didn’t know we were dating”, although people knew they were “seeing each other”. It is not clear from the evidence before me when the relationship commenced.
51․By the time of the 2022 incident, the complainant was no longer living with the accused, and they were no longer in a relationship (in her EICI, the complainant said that she last had consensual sexual intercourse with the accused in 2019). There is no evidence before me as to when the complainant and the accused stopped living together. In these circumstances, I consider that the gap in time is a matter that somewhat lessens the probative value of the evidence. However, given the change in their relationship during this time, this effect is considerably less than if they had remained in a relationship throughout this intervening period.
52․Most significantly however, the tendency particularised is very specific – it is directed to specific conduct (a tendency to digitally penetrate the complainant’s vagina and anus), the accused’s state of mind (“when angry”) and his motive for engaging in the conduct alleged (“to demean and dominate”). Further, the tendency relates to a single complainant. As I observed in Mastalerz at [36] and [38], a tendency that is framed with reference to a single complainant will have greater probative value than a tendency which is framed to apply to more than one complainant.
53․In view of the above, I consider that, taken at its highest, the tendency evidence provides significant support for the tendency alleged.
54․I also consider that the tendency particularised is significantly probative of the facts in issue in respect of counts 6 and 7 and counts 8 and 9 on the indictment. This is not a case such as Mastalerz, where the prosecution sought to establish the relevant mens rea on the basis of recklessness as to lack of consent rather than knowledge of lack of consent; cf Mastalerz at [96]. A tendency on the part of the accused to digitally penetrate this complainant when angry, so as to demean and dominate her, is of significant probative value in considering whether the accused digitally penetrated the complainant without her consent, and knowing her to be not consenting, on the occasion alleged.
55․In all of the circumstances, I am satisfied that the tendency evidence has significant probative value.
Is there a danger of unfair prejudice?
56․Mr Ginges submitted that even if the evidence has significant probative value, it must be excluded under s 101 of the Evidence Act because the danger of unfair prejudice outweighs the probative value of the evidence. Mr Ginges identified the potential prejudice as including the following:
(a)The confusion which may arise in the minds of the jury as a result of the giving of tendency direction in a case which also requires a Liberato direction, a Murray direction and an Edwards direction;
(b)The confusion that may arise in the minds of the jury as a result of directions to the jury that they must accept that the complainant has been honest and reliable in her account;
(c)The confusion that may arise in the minds of the jury in respect of the standard of proof to be applied with respect to the tendency evidence and the counts on the indictment, particularly where the tendency relies on an additional matter (the intent to demean and dominate) which is not an element of the offences;
(d)The risk that the jury may apply any “discreditable findings” they make against the accused when determining whether counts 1 – 5 occurred;
(e)The risk that the jury will engage in tendency reasoning in respect of other conduct during the 2019 and 2022 incidents, which is not asserted to be tendency evidence but nonetheless displays similarities (for example, that the accused pulled the complainant by her hair, forced the complainant into her bedroom, confined the complainant in his bedroom and that he strangled the complainant);
(f)The prejudice that may arise as a result of the loss of evidence in connection with the 2019 incident (in particular, the destruction of the complainant’s clothing);
(g)The risk that the jury may “punish” the accused for the 2022 offending when considering the 2019 offending; and
(h)The fact that the tendency relied on in support of the 2019 incident is not contained in an EICI, but relies on inferences to be drawn by combining various records and notes.
57․As to (a) and (b), it is not the function of the Court on a preliminary application of this nature to draft the directions that will be given in any summing up: Mastalerz at [105]. However, it is necessary to consider whether directions can be formulated that can be comprehended by the jury.
58․It cannot be doubted that the task of instructing a jury in a sexual assault trial is difficult. It is not uncommon for a trial judge to be required to craft directions which correctly lead the jury through complex reasoning in areas including the use that can be made of evidence of consciousness of guilt (Edwards v The Queen [1993] HCA 63; 178 CLR 193), the use that can be made of an accused’s record of interview (Liberato v The Queen [1985] HCA 66; 159 CLR 507 at 515; De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [12]), and the approach to be taken by the jury when the complainant’s evidence is the sole account (R v Murray (1987) 11 NSWLR 12 at 19). The additional challenge to the trial judge that results from the need to also instruct the jury as to the approach to take to tendency evidence does not amount to unfair prejudice.
59․As to (c), the prosecution accepted that it would be appropriate for the jury to be instructed that they must be satisfied beyond reasonable doubt that the tendency acts were committed before any tendency reasoning could be employed; see similarly R v Stephens [2021] ACTSC 308 at [26]; Director of Public Prosecutions v Roder (a pseudonym) [2023] VSCA 262 at [28]; cf 161A of the Criminal Procedure Act 1986 (NSW) considered in JS v R [2022] NSWCCA 145 at [45] – [49]. Mr Ginges properly accepted that such a direction would ameliorate the potential for the directions to confuse the jury as to the proper standard of proof to be applied.
60․The prosecutor was not in a position to advise the Court whether a similar concession would be made in respect of the additional feature of intent in the tendency as particularised (that is, the intent to demean or dominate), which is not an element of the offences. However, if the trial judge were satisfied that there was a real prospect that the jury would be misled or confused by the introduction of a different standard of proof in respect of this intent, it would be open to the judge to also direct the jury that this intent must be proved beyond reasonable doubt.
61․The submission in (d) is unclear and was not developed in oral argument. The jury will be instructed that must carefully consider each element of each offence charged.
62․As to (e), it is not the case that a jury must disregard any similarities in an accused’s conduct that are not the subject of the tendency notice. A jury may consider similarities in the circumstances in which the conduct occurs when assessing the probative value of the evidence. The commonality in the account of choking in both incidents may fall into a different category. However, the jury will be warned that they can only employ tendency reasoning in respect of the tendency particularised by the prosecution.
63․As to (f), evidence of the presence or absence of the accused’s DNA on the clothing would seem to add little to the case in circumstances where the accused and the complainant were in a relationship at the time of the 2019 incident. In any event, any such prejudice could be dealt with by a Mahmood direction: Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 at 406 [27].
64․The risk identified in (g) is common in cases where tendency evidence is admitted. A standard tendency direction will warn the jury against that risk. Whilst the gravity of the offending in the 2022 incident is higher than that involved in the 2019 incident, the nature of the offending in the two incidents is not of a different character.
65․As to (h), just as credibility and reliability issues must not be taken into account by the Court in assessing the probative value of the evidence in s 97, the Court must also assume credibility and reliability under s 101: s 94(5) of the Evidence Act; R v Adams [2015] NSWSC 1960 at [108], [152] – [155]; R v CX [2016] ACTSC 106 at [31]. The fact that the tendency evidence in respect of the 2019 incident is to be drawn from more than one source does not reduce the probative value of that evidence.
66․It is to be borne in mind that the amendment to s 101 (specifically, the removal of the requirement for probative value of the evidence to “substantially” outweigh the danger of unfair prejudice) reflected the intention of the legislature to lower the “hurdle” the prosecution must overcome to secure the admission of tendency evidence.
67․For the reasons I have outlined above, the probative value of the evidence is very high. I am satisfied that it outweighs the danger of unfair prejudice to the defendant.
A further comment
68․During the course of the hearing, I raised with the parties whether a more simply-expressed tendency would be capable of satisfying ss 97 and 101 of the Evidence Act. Mr Ginges strongly opposed the Court considering the admissibility of any tendency other than the tendency that had been particularised in the Tendency Notice. Bearing in mind the authorities referred to at [40] above, I have not considered this issue further. However, this ruling should not be read to preclude the prosecution giving further consideration as to whether a more simply-expressed tendency could satisfy the statutory requirements for the admission of tendency evidence. Of course, any further reformulation of the tendency by the prosecution would need to be the subject of a further tendency notice and a further ruling by this Court.
Orders
69․For the above reasons, the following order is made:
(1)Evidence of incident 1 and incident 2 as particularised in the Tendency Notice filed on 9 October 2023 are admissible as evidence that the accused had a tendency to act in a particular way, namely that the accused, when angry with the complainant, had a tendency to digitally penetrate the complainant’s vagina and anus without consent, to demean and dominate her.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McKay Date: 18 June 2025 |
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