Henderson (a pseudonym) v The Queen
[2017] VSCA 237
•6 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0120
| MARTIN HENDERSON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym.
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| JUDGES: | BEACH, FERGUSON and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 August 2017 |
| DATE OF JUDGMENT: | 6 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 237 |
| JUDGMENT APPEALED FROM: | [2017] VCC 755 [2017] VCC 756 |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Rulings before trial as to admissibility – Applicant charged with offences of violence against complainant – Evidence of previous misconduct against complainant – Tendency evidence – Tendency notice – Specificity of tendency – Whether tendency evidence has significant probative value – Evidence of relationship and context – Whether evidence admissible as relationship or context evidence – Leave to appeal granted – Appeal allowed – Evidence Act 2008, ss 97, 101, 135 and 137.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F Gerry QC with Mr M Page | Mr Greg Thomas Barrister & Solicitor |
| For the Crown | Mr G Slim | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
FERGUSON JA
COGHLAN JA:
The applicant is facing trial in the County Court on one charge of common law assault, one charge of making a threat to kill, two charges of rape, one charge of intentionally causing injury and one charge of recklessly causing injury. The charge of recklessly causing injury is an alternative to the charge of intentionally causing injury. All charges relate to conduct which is alleged to have occurred on 5 June 2015, involving the one complainant.
Prior to the alleged offending, the complainant had been in a relationship with the applicant for some years. The relationship commenced in approximately 2010. From time to time there were breaks in the relationship. On the complainant’s evidence, the relationship involved episodes of violence perpetrated on her by the applicant at various times.
On 19 August 2014, some months prior to the events giving rise to the present charges, the complainant gave a 22-page statement to police in which she made a number of allegations of violence and sexual misconduct against the applicant (‘the 22-page statement’). In the statement, the complainant alleged that very soon after the relationship with the applicant commenced, the applicant committed acts of violence upon her, made various threats to kill her or her family members, and engaged in sexual activity with her in circumstances of violence or threats of violence.
The 22-page statement also contained detailed allegations of violent conduct by the applicant against the complainant and threats to kill made by the applicant on 11 August 2014, when the applicant and the complainant were in Williamstown (‘the Williamstown incident’). The significance of the Williamstown incident is that, unlike most of the conduct alleged against the applicant in the 22-page statement, there were witnesses to significant parts of the conduct comprising the Williamstown incident.[2]
[2]Cf IMM v The Queen (2016) 257 CLR 300, 318 [62] (‘IMM’).
On the first day of trial of the current offences, the prosecutor advised the judge that the prosecution would seek leave to adduce various acts of misconduct as set out in the 22-page statement on the grounds that such evidence was integral to the commission of the offences on 5 June 2015. The prosecutor submitted that the acts of misconduct described in the 22-page statement provided a realistic context to the charged acts and painted the nature of the relationship between the parties. The prosecutor contended that the alleged earlier acts of misconduct by the applicant explained the fact that the current charges did not arise ‘out of the blue’, and made intelligible acts that would otherwise seem ‘utterly bizarre and motiveless’. The prosecutor also contended that the evidence of earlier misconduct in the 22-page statement had the capacity to explain why the complainant simply yielded to the acts allegedly committed against her by the applicant on 5 June 2015.
At trial, the applicant opposed the prosecutor’s application, submitting that the evidence in the 22-page statement was not relevant to the current charges. The applicant also submitted that the evidence should be excluded, in any event, because its probative value (if any) was outweighed by the risk of unfair prejudice. The applicant contended that no direction by the trial judge could overcome such prejudice.
On 2 March 2017, the judge ruled on the prosecutor’s application.[3] In her ruling, the judge ruled admissible a number of facts, including various paragraphs in the 22 page statement as context evidence and evidence of the relationship between the applicant and the complainant.
[3]DPP v [Henderson] [2017] VCC 755 (‘Ruling No 1’).
The applicant sought leave to appeal from the judge’s ruling. On 5 May 2017, that application for leave to appeal came on for hearing in this Court. During the course of the hearing, the Crown changed its position about the portions of the 22-page statement that the Crown wished to rely upon. Additionally, the Crown advised the Court that it intended to give a tendency notice pursuant to s 97 of the Evidence Act 2008 in relation to matters contained in the 22-page statement. As a result of the Crown’s change of position, the Court ruled that it was premature to consider the trial judge’s ruling, and the application for leave to appeal was refused without any determination of the merits of the application.[4]
[4]Henderson (a pseudonym) v The Queen (Unreported, Court of Appeal, Redlich, Tate and Santamaria JJA, 8 May 2017).
On 25 May 2017, the Crown filed and served a tendency notice on the applicant. The tendency notice stated that evidence would be adduced of particular conduct described in the 22-page statement to prove the tendency of the applicant to act in a particular way, namely:
Mistreat and abuse the complainant verbally and physically and putting her in fear by engaging in:
(a)verbal threats of violence towards the complainant during the course of the relationship;
(b)physical violence toward the complainant during the course of the relationship;
(c)use of a cigarette lighter and/or a cigarette to burn the complainant in the genital region, accompanied by sexual activity;
(d)threats and/or physical violence accompanied by sexual activity;
(e)use of ice accompanied by violence.
The Crown’s application to rely upon material in the 22-page statement as tendency evidence was heard by the trial judge on 5, 6 and 7 June 2017. On 8 June 2017, the judge ruled that the Crown could, with one exception, lead tendency evidence in accordance with the tendency notice.[5] As part of the same ruling, the judge also permitted the Crown to adduce some evidence previously excluded as both relationship and context evidence.[6]
[5]DPP v [Henderson] [2017] VCC 756 (‘Ruling No 2’).
[6]Ruling No 2 [92].
Following the delivery of Ruling No 2, the judge certified pursuant to s 295(3) of the Criminal Procedure Act 2009 that both rulings concerned the admissibility of evidence that if ruled inadmissible would eliminate or substantially weaken the prosecution case.[7] Pursuant to the judge’s certification, the applicant now seeks leave to appeal against both of the judge’s rulings. In summary, the applicant contends that the judge was wrong in ruling that the Crown would be permitted to lead evidence from the 22-page statement as context evidence, relationship evidence or tendency evidence, and wrong not to exclude the evidence that the Crown seeks to lead pursuant to s 135 or s 137 of the Evidence Act 2008.
[7]For completeness, we note that the judge had previously certified in the same terms about Ruling No 1 following the delivery of that ruling on 2 March 2017.
The Crown case in respect of the 5 June 2015 charges
The Crown case in respect of the 5 June 2015 charges is as follows. At the time of the alleged offending on 5 June 2015, the complainant and the applicant had been in an ‘on and off’ relationship for approximately five years. During the relationship, there were occasions when the applicant was violent towards the complainant.
In August 2014, the complainant told police that the applicant had committed violent acts against her. As a result, a statement was taken from the complainant (the 22-page statement), a brief of evidence that contained the 22-page statement was prepared, and 18 charges were laid against the applicant.
On 27 January 2015, the 18 charges laid against the applicant came on for a committal hearing. The complainant did not attend court, and the matter was adjourned to 17 February 2015. On 17 February, the complainant again did not attend court. As a consequence of the complainant’s failures to attend court, the majority of the charges the applicant was then facing were withdrawn, and the applicant then pleaded guilty to one charge of recklessly causing injury to the complainant and one charge of conduct endangering serious injury. The charges to which the applicant pleaded guilty arose out of the Williamstown incident. Following a plea, the applicant was sentenced to a 15-month term of imprisonment, six months of which was suspended. At the time of sentencing, the applicant had served 191 days by way of presentence detention.
On 10 May 2015, the applicant was released from custody having served the term of imprisonment imposed in respect of the charges relating to the Williamstown incident.
On 5 June 2015, the complainant was staying at a friend’s house in Maidstone. The applicant turned up at the premises with a box of cask wine, and the applicant, the complainant and the friend started to drink. After they had been drinking for some time, the applicant verbally abused the complainant. He brought up the topic of her going to the police earlier, and then struck her in the face with the brief of evidence which he had retained in his possession (charge 1 — common law assault).
The Crown case is that the applicant then smoked a substance from a pipe, believed by the complainant to be methamphetamine (ice). The applicant then said words to the following effect to the complainant: ‘If you go to the police again, I will kill you’ (charge 2 — threat to kill).
The complainant was sitting on a chair in the lounge room. The Crown case is that the applicant then pulled the complainant’s pants down, put a condom on and put his penis into her vagina. The complainant did not want the applicant to have sex with the her and she told him not to do so (charge 3 — rape). In a statement made on 6 June 2015 (‘the June 2015 statement’) the complainant said that as the applicant was putting the condom on, she ‘begged him not to’ and said ‘Please don’t do this’.
While the applicant was having non-consensual sex with the complainant, he lit a cigarette which he then put against the complainant’s skin. The summary of the prosecution opening[8] describes the lit cigarette as being placed against the complainant’s upper inner thigh, whereas in the June 2015 statement the complainant states that the applicant ‘touched the cigarette on both sides of the lips of [her] vagina’. Charges 4 and 5 relate to this incident. Charge 4 is a charge alleging that the applicant caused injury to the complainant and that he intended to cause her injury (charge 4 — intentionally causing injury). Charge 5 is an alternative charge, alleging that the applicant injured the complainant with the cigarette and was aware that he would probably injure her when he did so (charge 5 — recklessly causing injury).
[8]Served pursuant to s 182 of the Criminal Procedure Act 2009.
The applicant eventually took off the condom, put it in a plastic bag and left the premises with it. Later, he came back to the premises, again brought up the topic of the complainant going to the police in the past, and slapped the complainant’s face with his hand a number of times. As the complainant put it in the June 2015 statement, ‘He was still going on about the brief and how I made a statement last year and how he got nine months because of me’.
After this exchange, and after a further period of time, the applicant approached the complainant, grabbed her by the hips and forced her to turn over. The applicant then pulled down the complainant’s pants. The complainant said words along the lines of ‘Please don’t’. The applicant then forced his penis into the complainant’s anus. This was done without lubrication and while the complainant asked him to stop. The Crown case is that the applicant ejaculated into a towel which he then put into a shopping bag. The applicant then took the bag out the front door before returning empty handed.
Later that evening, the complainant was examined by a forensic medical registrar employed by the Victorian Institute of Forensic Medicine. The medical examination disclosed:
·a small patch of red petechial bruising to the right side of the neck;
·an irregular blue/brown bruise to the right knee;
·two small circular blue/brown bruises to the right thigh;
·multiple small irregular dark scars around the groin and inner buttocks;
·a small circular blue/brown bruise to the inside of the left knee;
·one small irregular scar with some surrounding redness and a small blistered section visible at the inner upper right thigh; and
·two extensive areas of abrasion to the anus at the 12 o’clock and 6 o’clock positions.
The Crown case is that medical evidence that it will call at trial will show that the scars around the groin and inner upper thigh could represent scars from burns, abrasions or open wounds, and are of varying ages with respect to the healing and progression of scar development. The separate scar with the redness and blister on the upper inner thigh is in keeping with a burn from a cigarette or cigar or lighter or any other object that has been heated enough to cause damage. The abrasions to the anus were caused by friction, and were unlikely to have been due to physiological processes. They were most likely caused by an object or body part penetrating the complainant’s anus.
Skin swabs taken from the skin of the complainant’s breasts were analysed to see if any DNA was present. DNA was located from the swabs of the complainant’s breasts. Expert opinion is to the effect that it is 100 billion times more likely that the applicant contributed DNA to that sample than that he did not.
The defence response
In his response to the summary of the prosecution opening,[9] the applicant admits that he was in a relationship with the complainant, but says that the relationship ended a year before the current charges. The applicant admits to being present at the premises in Maidstone when the complainant arrived, but says that he left the next morning. The applicant admits he was present outside the premises on the morning of 5 June 2015, and that he later dropped the complainant at a housing service. The applicant denies bringing a cask of wine, denies smoking ice, denies striking the complainant with the rolled up brief, denies threatening to kill the complainant, denies raping the complainant and denies burning the complainant with a cigarette.
[9]Served pursuant to s 183 of the Criminal Procedure Act 2009.
From the material filed by the applicant, it is apparent that his case is that none of the acts alleged occurred. There is no case that any act occurred but that it occurred with the complainant’s consent.
The 22-page statement
The 22-page statement contains 71 numbered paragraphs. In her rulings, the judge admitted material in paragraphs 4–7, 15, 17, 21–22, 25–26, 28, 34–39, 46–49, 51, 61–62, 64–65 and 67–69 (‘the admitted paragraphs’). Having regard to the judge’s rulings, it is only the material in the admitted paragraphs that is relevant in the present application.
The admitted paragraphs were, of course, written for a different purpose from the purpose of using them in the trial of the present charges. As a result, there are statements in the admitted paragraphs that one would not expect to have any relevance in the current trial. Detail and minutiae that may have been relevant to the charges laid in August 2014 will not have the same (if any) relevance in the present case. Moreover, the admitted paragraphs contained descriptions of the complainant’s feelings and perceptions which would not be admissible in any trial on ordinary principles. One of the difficulties for the trial judge in dealing with the Crown’s applications, and for this Court in the present application, is the unfocussed and generalised way in which issues have been treated, caused by the failure by the Crown to identify with precision (and more usefully in another document written for the specific purpose of this trial) the actual evidence that the Crown contends is specifically admissible for the purposes of the present trial.
We do not propose to set out all of the detail in all of the admitted paragraphs. It is not for this Court to conduct a line by line analysis of what might or might not be admissible in accordance with the ordinary rules of evidence before one comes to issues of context, relationship and tendency.
The 22-page statement contains two paragraphs in which reference is made to the complainant being burnt by the applicant. In paragraph 6, there is a description of circumstances that the prosecution contends occurred in 2010 where the applicant is alleged to have burnt the complainant with a cigarette. As the complainant described it in paragraph 6:
I was wearing pants. He pulled down the top of them and burnt me with a cigarette. It was soft at first. ‘So tell me how you’re leaving?’ I didn’t say anything. Basically from that day it just continued. ‘No-one will want you if it’s ugly’. ‘No-one will want you no-one will want to have sex with you if it’s ugly’. … He likes to burn slowly as well. It’s not a two-second thing, he will do it lightly for hours and he will start again after I think he has stopped. If I begged him ‘that I would do anything’ he would be set off. I have been burnt from my pubic area down onto my outer lips and thighs. [The applicant] would burn an area then keep going back to that area for the next few days so that the healing process was slow.
In paragraph 35 of the 22-page statement, the complainant described an episode that occurred on 7 August 2014:
[The applicant] has sex with me, penis to vagina. I didn’t resist because I didn’t want to make him more aggressive. After sex I was having a shower ‘cause that’s what he wanted me to do. He had one too and was getting dressed. … The door was open and [the applicant] pulled me (I was naked and wet and he was dressed) and he was holding the lighter. It was quite hot already and then he just placed it against the skin on my pubic area causing immense pain (he has also burnt me with cigarettes and his ice spoon).
The 22-page statement contains a description of many examples of acts of violence and threats perpetrated by the applicant upon the complainant. In order to gain an understanding of what the statement conveys and the way the Crown wishes to rely on the admitted paragraphs, it is sufficient for us to set out those parts of the statement which describe an episode that is alleged to have occurred in the early hours of 11 August 2014. The episode is referred to in paragraphs 61, 62, 64 and 65 of the 22-page statement. As set out in the tendency notice, the prosecution relies on these paragraphs to establish that on 11 August 2014 the applicant:
(1) made threats to the complainant of burning her house, burning her mother’s house, killing the complainant and killing the complainant’s family; and
(2) penetrated the complainant’s vagina with his fingers and penis, while threatening her.
In paragraphs 61, 62, 64 and 65, the complainant stated:
I thought I heard things during the night but then at about 4.15am I woke up and looked at my phone. There was tapping on my bedroom window. My heart sank instantly because I knew who it would be. Every time he is around there are problems. I went outside and it was [the applicant]. We sat there and started talking and having a cigarette. He was very hot and cold. One minute he was saying ‘If things would just work out between us’ and then next thing he was really verbally abusive. It’s always so sudden that it catches you off guard. While we were sitting on the porch he started lighting things on fire. He lit a towel that had been sitting on top of the bird cage and also lit the door mat saying ‘if we don’t back together I’ll burn the house down’. He wanted me to leave my family and move with him. He also said ‘if you say anything to the police I’ll burn the house down’. He said, ‘Not only will I kill you but your dog mothers house will be burnt down too’. ‘Nothings gonna stop me from going up there and killin your dog brother’.
[The applicant] is aware that my brother has legitimate guns in the house and he was saying ‘you can watch them fucken die you mole, I’ll shoot all them fucken dogs’. I begged and pleaded and cried for him to stop putting things on fire. I felt in fear that if I didn’t do what he said he would actually set the house on fire. He was very calm during this time, even when he was saying the threats. It scared me more that he was so calm. As he said these threatening things [the applicant] moved close to me inserted one or two fingers inside my vagina. I don’t know why he does this but he knows it scares me and it is his way of controlling me when he threatens me. He has done this from pretty much the first time he threatened me. [The applicant] is rough when he does this. If I can stay still it doesn’t hurt so much but if I fight him in any way he will grab me by the hair or the throat till I submit. It makes me feel embarrassed, sick and quite dirty.
…
I knew that we were going to have sex. I have known [the applicant] for so long now that he just gives me a look and I know. He said, ‘We’re going inside to fuck and you’re not saying anything about it I don’t care what you say’. We went inside and I lay down on the bed. I didn’t resist him even though I didn’t want to have sex with him. I felt defeated. I didn’t want to upset him and have him hurt my family. I said ‘You know I don’t want to’ I had pyjamas on and undies. The pyjama top is pink with a cow on it. The pyjama pants are white and pink striped and my undies were an orange colour full brief. I didn’t have a bra on. [The applicant] was wearing grey runners with purple shoe laces. He was wearing jeans with different zips on them and writing on them. Some parts were faded and other parts not faded. He had a blue jumper on. It was plain blue. He had a lighter blue hooded jacket on with writing on it. I can’t remember what it said or what colour the writing was. The writing was on the arm, I think only one side, the right side. He had a t-shirt on. I can’t remember what colour.
[The applicant] already had an erection and he told me to turn over. He was slowly opening his jeans so I could see he had an erection. His penis was sitting upright out of his undies, I rolled over onto my stomach. I knew what he wanted. Then he pulled me pyjamas down a little bit and inserted his penis into my vagina. He moved his penis in and out of my vagina for a minute maybe a minute and a half and then he came quite quickly. He didn’t use a condom. He never uses protection with me. He said that wearing a condom controls him and he won’t be controlled. [The applicant] likes to pull hair while he is having sex and he likes to hear when I’m in pain as it gets him off quicker. He pulled my hair on this day. In a way it was like I wanted him to hurt me because then I knew that he was almost done. He was saying the same things he said outside about burning the house down. He seemed to come quite quickly after saying horrible things. It was like he was getting off on saying it. He said the same things as outside about ‘If you don’t like your dog family I will kill you’ and ‘if you don’t be with me I am going to kill you’. I didn’t want to have sex with him I felt like I had to.
The Crown relies upon these paragraphs, not only as evidence of context and relationship, but also as proof of the applicant’s alleged tendency to mistreat and abuse the complainant verbally and physically, and put her in fear, by engaging in threats and/or physical violence accompanied by sexual activity (paragraph (d) of the tendency described beneath Table A in the tendency notice). Other episodes are described in the 22-page statement in a similar level of detail in support of each of the paragraphs of the applicant’s alleged tendency set out in the tendency notice.
The judge’s rulings
In Ruling No 1, the judge ruled admissible:
(a) the fact that the complainant had previously made a 22-page police statement alleging prior acts of violence;
(b) the fact that the applicant was charged with 18 charges arising from the 22-page statement;
(c) the fact that the applicant was sentenced to a term of imprisonment partly as a result;
(d) the fact that the statement was included in a hand-up brief;
(e) the fact that the applicant was in possession of the hand-up brief at the time of the alleged offending;
(f) the fact that the hand-up brief was used as a weapon;
(g) evidence of the relationship between the parties; and
(h) context evidence.[10]
[10]Ruling No 1 [95]–[102].
From exchanges between the judge and counsel, it appears that the references in Ruling No 1 to relationship evidence and context evidence being admissible were references to material in the admitted paragraphs being admitted as relationship and context evidence. However, in Ruling No 1, those parts of the admitted paragraphs that contained evidence of sexual violence were excluded.[11]
[11]See nn 3 and 4 added by the judge to Ruling No 1 after her Honour reviewed that ruling.
In Ruling No 2, the judge ruled that the Crown could lead tendency evidence in accordance with the tendency notice. On her revision of Ruling No 2, however, the judge excluded from that evidence allegations made by the complainant of rape with a weapon. The judge did not permit that evidence to be used for tendency purposes, but ruled that it could be used for context and relationship purposes.[12] Ruling No 2 also revised Ruling No 1 by permitting evidence of the existence of a violent sexual relationship (previously excluded in Ruling No 1) to be admissible.[13]
[12]Ruling No 2 [78] and n 16 to Ruling No 2 (added after her Honour’s revision of Ruling No 2).
[13]Ibid.
It appears from Ruling No 2 that all of the ‘tendency evidence’ admitted from the 22-page statement was held by the judge to be admissible as tendency evidence in respect of all of the charges the applicant is currently facing.
The proposed grounds of appeal
In respect of Ruling No 1, the applicant advanced four proposed grounds of appeal:
(1)The judge erred in finding that the evidence sought to be led was relevant and admissible as ‘context evidence’.
(2)The judge erred in ruling that the evidence sought to be led was relevant and admissible as ‘relationship evidence’.
(3)The judge erred in failing to exclude the evidence sought to be led pursuant to s 135 of the Evidence Act 2008.
(4)The judge erred in failing to exclude the evidence to be led pursuant to s 137 of the Evidence Act 2008.
In respect of Ruling No 2, the applicant advanced two proposed grounds of appeal:
(1)The judge erred in finding that the evidence sought to be led had significant probative value, having regard to:
(a)the generality of the tendency sought to be proved;
(b)the lack of similarity of common features between the charged conduct and the uncharged acts;
(c)the failure to consider the test in s 97 of the Evidence Act;
(d)the lack of any singular feature in the evidence sought to be led;
(e)the fact that the evidence sought to be led comes almost entirely from one complainant.
(2)The judge erred in finding the probative value of the evidence sought to be led substantially outweighed the prejudicial effect of the evidence.
The applicant’s contentions
The applicant commenced his submissions by attacking the Crown’s position, and the judge’s ruling, on the issue of tendency. First, the applicant submitted that the tendency alleged by the Crown was too broad to enable any piece of evidence to be assessed as possessing significant probative value as required by s 97 of the Evidence Act. Specifically, the applicant observed that the tendency alleged by the Crown was a broad tendency to behave violently at times during the relationship between the complainant and the applicant, in a range of different ways and situations. Complaint was made by the applicant that the Crown has not sought to identify which acts are admissible in proof of which charges, but has instead taken the position (now supported by Ruling No 2) that all of the admitted acts in the admitted paragraphs are admissible on all charges. As an example, the applicant pointed to the fact that the allegation that he punched and slapped the complainant in 2010 during the course of the relationship has, by Ruling No 2, been ruled to be significantly probative, and admissible as tendency evidence, on the issue of whether he anally raped her in 2015 after the relationship between them was over.
Secondly, the applicant submitted that, while the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue,[14] to be admitted as tendency evidence the evidence must ‘possess a singular or remarkable feature or aspect that takes it from having simple relevance to having significant probative value’. The applicant submitted that this feature was absent in the present case.
[14]Hughes v The Queen [2017] HCA 20 (‘Hughes’); Bauer (a pseudonym) [No 2]v The Queen [2017] VSCA 176 [61] (‘Bauer [No 2]’).
Thirdly, the applicant submitted that the evidence relied upon as tendency evidence did not have significant probative value because it came almost entirely from the one complainant. In support of the submission that the evidence did not have significant probative value for this reason, the applicant relied upon IMM, where the plurality said:
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.[15]
[15]IMM (2016) 257 CLR 300, 318 [62].
Fourthly, the applicant submitted that if the evidence was found to have sufficient probative value to satisfy s 97, it should have been excluded under s 101(2) because its probative value did not substantially outweigh any prejudicial effect it may have on the applicant. The applicant contended that the prejudice in the present case was the risk that the jury might misuse the evidence in a manner unfair to the applicant. The applicant submitted that the sheer volume of material sought to be led as tendency evidence risked overwhelming the jury and distracting them from considering the charged acts. He also submitted that, given the volume of material, there was a ‘clear danger’ that the tendency evidence would be given disproportionate weight.
Turning to the issue of relationship and context evidence, the applicant submitted that if the evidence relied upon by the Crown was not admissible as tendency evidence, then neither should it be admitted under the guise of relationship or context evidence. The applicant contended that if the statute was not satisfied on the issue of tendency then the Crown should not be able to ‘get around the statute’ by relying on relationship or context.
Next, in respect of context and relationship evidence, the applicant submitted that it was neither necessary nor desirable for the Crown to lead all of the detail in the admitted paragraphs of the 22-page statement in order that the jury might understand the relationship between the complainant and the applicant, and the context in which the alleged offending is said to have occurred. Specifically, it was submitted that references in the admitted paragraphs to the complainant being injected with ice or raped with an object were not properly admissible as context or relationship evidence. The applicant accepted, however, that under the heading of context and relationship, some broad evidence might be given. In his summary of contentions, the applicant put it as follows:
[T]he most the prosecution could lead would be evidence that, prior to the current alleged offences, the accused engaged in conduct which caused injury to the complainant, and resulted in police involvement and the accused being punished in the Magistrates’ Court.
Under this general description, the applicant accepted that there could be ‘some evidence’ of the Williamstown incident.
Finally, the applicant submitted that the judge erred in failing to exclude the evidence in the admitted paragraphs pursuant to s 135 and/or s 137 of the Evidence Act. The applicant submitted that the risk of unfair prejudice outweighed the probative value of the evidence. He contended that unfair prejudice arose in the following ways:
·the large number of uncharged acts will overwhelm the jury and despite any direction, the uncharged acts will lead a jury to reason ‘well if he is that kind of person he must have done this’;
·the uncharged acts will be misused as propensity evidence; and
·particular aspects of the uncharged acts … [including involving the use of weapons] …, which do not resemble the charges here, are of such a disturbing character that they will excite an emotional response from the jury.
Moreover, allowing the jury to be told of the applicant’s sentence of imprisonment was ‘tantamount to leading evidence of a prior conviction’. The applicant submitted, in reliance upon Mokbel v The Queen,[16] that the prejudice attaching to proof of a prior conviction is of such an overwhelming character as to require exclusion under s 137.
[16][2010] VSCA 354 [33] (‘Mokbel’).
The Crown’s contentions
In its submissions, the Crown supported the reasoning of the judge in Ruling No 1 and Ruling No 2. The Crown contended that the evidence in the admitted paragraphs ‘disclose[d] a tendency by the accused to engage in physical and verbal violence upon the complainant to punish, control and dominate her, calculated to exact by fear, her compliance with and submission to his wishes (both sexual and otherwise)’. The Crown submitted that the tendency it alleged was manifested by:
·frequent slapping and punching of the complainant (especially to her face and head area);
·verbal intimidation (threats of violence and death to the complainant and/or her family);
·intimidation and violence upon the complainant (frequently accompanied by sexual activity);
·the use of ice, accompanied by anger, aggression and physical violence;
·burning the complainant in the genital area, accompanied by sexual activity;
·frequent physical and verbal violence occurring in the context of reporting the applicant to police, or of the complainant indicating a wish to leave the company of the applicant or the relationship; and
·a pattern of changeable ‘hot and cold’ conduct by the applicant towards the complainant.
All of these manifestations were submitted to be ‘similar to and reflected in’ the charges on the current indictment. The Crown submitted that the cumulation of these features and the particularity with which they have been described by the complainant is ‘significantly probative of the tendency relied upon’.
The Crown submitted that the ‘voluminous, cogent and specific evidence’ of the relevant tendency in this case, which was ‘ultimately re-enacted and manifested’ in the current charges, gave the evidence in the admitted paragraphs the necessary significant probative value.
As to the lack of independent evidence and the significance of that issue as referred to in IMM, the Crown submitted that the volume, detail and specificity of the complainant’s evidence constituted the ‘special features’ described by the plurality in IMM,[17] giving the complainant’s account the necessary significant probative value. Moreover, it was submitted by the Crown that, in any event, the tendency evidence in the present case was not entirely unsupported: the Williamstown incident having been witnessed, and there being external evidence supporting the proposition that the applicant’s inner upper thigh area had been the subject of burning or abrasion injuries in the past.[18]
[17](2016) 257 CLR 300, 318 [62].
[18]As to the relevance of independent support for part of a complainant’s evidence, see Aung Thu v The Queen [2017] VSCA 28 (‘Aung Thu’).
In respect of s 101 of the Evidence Act, the Crown submitted that the tendency evidence relied upon ‘compellingly and cogently makes the happening of the subject events, as a matter of logic and human experience, significantly more likely’. Accordingly, the Crown submitted, there was no occasion to exclude the evidence pursuant to s 101. Moreover, any potential prejudice or misuse would be addressed by ‘careful judicial directions’ as adverted to by the judge in Ruling No 2.
In support of the admission of the impugned evidence as context and relationship evidence, the Crown submitted that without this evidence the jury would not be able to make sense of the events of 5 June 2015. The jury might think it surprising that such events occurred ‘out of the blue’ and may thus not accept the complainant’s evidence.
Additionally, the Crown submitted that the allegations in the admitted paragraphs were not so remote in time as to be insufficiently probative. In support of that submission, the Crown noted:
·the relationship (with some breaks) lasted approximately four to five years;
·the uncharged acts of threats and violence were regular and a continuing course of conduct that graphically defined the whole relationship, and the ‘terms upon which the parties lived’.
Therefore, ‘the whole of the proposed evidence is of substantial probative value, and indeed, gains much of its cogency from the length of the relationship, and the resulting volume and detail’.
In relation to ss 135 and 137 of the Evidence Act, the Crown submitted that there was no unfair prejudice; alternatively, careful judicial directions could address such unfair prejudice as there might be.
Analysis
It is convenient to commence our analysis, as the parties commenced their submissions, with the issue of tendency.
Tendency evidence
The principles governing the issue of tendency have recently been discussed by the High Court in the decision in IMM, and again in the later decision in Hughes. In Bauer, this Court[19] drew the following propositions from the reasons of the majority in Hughes:
[19]Priest, Kyrou and Kaye JJA.
· first, the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove;
· secondly, the particularity of the tendency, and its capacity to affect the rational assessment of whether the prosecution case is proved, will depend upon a consideration of the circumstances of the case;
· thirdly, the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue;
· fourthly, although there are dangers in focusing on labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’, nonetheless conduct of the kind embraced by those labels may have significant probative value;
· fifthly, however, significant probative value may be demonstrated in other ways;
· sixthly, tendency evidence is likely to possess a high degree of probative value where the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and the tendency strongly supports the proof of a fact that makes up the offence charged; and
· seventhly, in the circumstances of that case, it was the appellant’s attraction to underage girls and his willingness brazenly to act on it with a disinhibited disregard of the evident risks of discovery when committing the offence in question, that imbued the evidence with significant probative value.[20]
[20]Bauer [No 2] [2017] VSCA 176 [61].
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.
From time to time during the course of argument, counsel for the Crown appeared to be inviting the Court to rule on the present application in a way that would permit the leading of tendency evidence at trial on a more limited basis than that ordered by the judge, if the Court was of the view that the current tendency notice (and ruling by the judge) was impermissibly wide. Thus it was submitted that if a narrower or more specific tendency than that asserted in the tendency notice was identified (for example, a tendency to burn the complainant in the area of her inner upper thigh associated with sexual activity) and if evidence of that tendency was properly only admissible in respect of a specific charge (rather than all charges) this Court should uphold the judge’s tendency ruling on that limited basis — noting that the judge could give directions to the jury as to this more limited use and reliance upon tendency evidence.
It is not for this Court to redraft the Crown’s tendency notice or to formulate some more limited basis upon which a tendency notice might be drawn and tendency evidence admitted. That said, we should say something more about the complainant’s allegations that the applicant burnt her inner upper thigh area during the course of their relationship between 2010 and 2014, as much was made by the Crown in its submissions as to the significance and singularity of that alleged conduct.
It may be that the Crown could formulate a tendency notice in relation to the complainant’s allegations of being burnt on occasions before 5 June 2015. Evidence from the complainant about such prior occasions has the capacity to be relevant in respect of at least charges 4 and 5 (intentionally causing injury, and the alternative charge of recklessly causing injury), and possibly also charge 3 (the rape alleged to have been committed at the time the complainant says the applicant touched the cigarette on both sides of the lips of her vagina). Much may depend upon the extent to which the complainant’s evidence of being burnt on prior occasions receives independent support.[21] That question may in turn be determined by reference to the precise nature of the medical evidence that the Crown is able to call in respect of any earlier alleged injuries involving the complainant’s upper inner thigh area.
[21]Cf IMM (2016) 257 CLR 300, 318 [62].
Evidence relevant to the charges
Before turning to the issues of relationship and context, it is necessary to say something about evidence that is admissible, not merely as context or relationship evidence, but as evidence directly relevant to facts in issue in relation to the charges the applicant is currently facing.
The Crown case on charge 1 is that the applicant assaulted the complainant with his copy of the police brief, which contained the applicant’s 22-page statement. Those facts are all directly relevant to charge 1. Specifically, the fact that there was a brief of evidence, the fact that it contained the applicant’s 22-page statement and the fact that this was the weapon used by the applicant to assault the complainant is relevant and can be proved in the prosecution of charge 1. Resort to the concepts of relationship evidence or context evidence for the admission of this evidence is unnecessary.
On the other hand, the fact that there were 18 charges that arose from the 22-page statement is not a fact that is relevant to the charges that the applicant is currently facing. Whether there were 6, 12, 18, 24 or some other number of charges could not rationally affect (directly or indirectly) the assessment of the probability of the existence of any fact in issue in the current charges.[22]
[22]Cf s 55(1) of the Evidence Act 2008.
Similarly to the resolution of the question of the admissibility of the existence of the 22-page statement, the brief of evidence and its use as the weapon in charge 1, the fact that the applicant received a sentence that required him to serve a term of imprisonment of nine months following the Williamstown incident is also relevant. The complainant’s evidence is that the applicant blamed her for having to serve nine months because she went to the police in relation to the Williamstown incident. The Crown case is that this was the applicant’s motive for his offending on 5 June 2015. The applicant’s motive for the offences he is alleged to have committed against the complainant on 5 June 2015 is, of course, directly relevant.[23]
[23]De Gruchy v The Queen (2002) 211 CLR 85, 92–93 [28]; R v Cummins (2004) 10 VR 15, 23 [25].
The applicant’s reliance on Mokbel as being authority compelling the exclusion of the evidence of his conviction under s 137 is misplaced. Mokbel was a very different case in which the fact of the earlier conviction sought to be relied upon by the Crown in the subsequent trial was neither directly relevant nor a matter that was essential to the Crown case.[24] While the prejudicial effect of the complainant’s evidence that the applicant, during the course of his offending, said that ‘he got nine months because of me’ cannot be doubted, the risk of unfair prejudice does not outweigh the high probative value of that evidence — explaining as it does the reason why the applicant is alleged to have offended against the complainant.
[24]Mokbel [2010] VSCA 354 [30].
Relationship and context evidence
Evidence of relationship or context can only be admissible if it meets the test of relevance in s 55 of the Evidence Act. While context and relationship evidence may be relevant, it may also, however, be only minimally probative, and may indeed be highly prejudicial. As such, while it may be necessary to admit such evidence in order to properly explain evidence that is more directly relevant to a fact in issue, care undoubtedly needs to be taken in cases where such evidence discloses unlawful or disreputable conduct by an accused on other occasions.[25]
[25]The current state of the law regarding context evidence was helpfully summarised by Redlich, Weinberg and McLeish JJA in DPP v Martin (a pseudonym) [2016] VSCA 219 [81]–[107].
The applicant accepts that some context and relationship evidence must be given to explain the events alleged to have occurred on 5 June 2015. As the applicant would have it, all that needs to be said is that there was an episode in Williamstown in August 2014 which involved the applicant causing injury to the complainant and resulted in the applicant being punished in the Magistrates’ Court. As the Crown, however, would have it, all of the minutiae and detail contained in the admitted paragraphs could and should be led so as to explain the events of 5 June 2015. Neither parties’ submission can be accepted.
The applicant’s position would result in evidence that is directly relevant being ruled inadmissible, while the Crown’s position would likely result in the trial being overwhelmed with evidence of discreditable and unlawful conduct alleged to have been committed by the applicant on other occasions over a 4-5 year period prior to June 2015. It cannot be necessary to lead detailed evidence of every discreditable act committed by the applicant over a 4-5 year period so as to establish the relevant relationship between the applicant and the context in which offending alleged to have occurred during the course of one day, happened. The Crown’s reliance upon a 22-page statement written for another purpose and in respect of charges, many of which were not pursued, bespeaks a scattergun approach, that is to be deprecated, rather than one that pays appropriate attention to the relevance of particular facts that are necessary to establish the present charges.
In our view, the requirements of context dictate a limited amount of evidence about the relationship between the applicant and the complainant and the context in which the offending is alleged to have occurred. The Crown should be permitted to lead evidence that the complainant and the applicant were previously in an on-again off-again sexual relationship in which the applicant was on occasions physically violent and verbally abusive towards the complainant; the events of the Williamstown incident (about which evidence may be given) occurred in the context of that relationship; the Williamstown incident led to the complainant giving a 22-page statement to police; a brief of evidence containing the statement was prepared and a copy was given to the applicant; the applicant was prosecuted, and ultimately sentenced to a term of imprisonment of nine months in relation to the Williamstown episode.
Conclusion
It follows that the application for leave to appeal must be granted, the appeal allowed and the judge’s rulings set aside. The issue of what evidence may be led as relationship evidence and context evidence will be remitted to the trial judge to be redetermined in accordance with these reasons. It will be a matter for the Crown, after taking into account what we have said earlier in these reasons, to determine whether to serve some more limited tendency notice.
In the course of argument, counsel for the Crown sought to persuade us that, whatever view we took in respect of the issue of tendency, the Crown should be permitted to lead evidence of prior occasions when the complainant alleges the applicant burnt her in the upper inner thigh area as context and relationship evidence. It may be that the Crown will ultimately persuade the trial judge that some such evidence is admissible as tendency evidence. We very much doubt, however, that if this evidence is not admissible as tendency evidence, it could ever be admitted as relationship or context evidence. Such a course, to use the words of senior counsel for the applicant, would appear to be an attempt to avoid the legislative requirements of ss 97 and 101(2) of the Evidence Act.
Specifically, if the burning episodes are not admissible as tendency then it is difficult to see how it would be necessary to admit them, in addition to the relationship and context evidence that we have held to be admissible, in order to establish the relationship between the parties or to give context to the alleged offending. If the prior burning episodes do not have the significant probative value required by s 97, it seems to us that ss 135 and 137 would require the exclusion of the evidence of the complainant’s allegations of prior burning by the applicant.
Orders
The application for leave to appeal will be granted, the appeal will be allowed, the rulings made by the judge on 2 March 2017 and 8 June 2017 will be set aside, and the matter will be remitted to the County Court for further hearing and determination in accordance with these reasons.
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