P v Tasmania
[2009] TASSC 81
•11 September 2009
[2009] TASSC 81
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: P v Tasmania [2009] TASSC 81
PARTIES: P
v
STATE OF TASMANIA
FILE NO/S: CCA 395/2009
JUDGMENT
APPEALED FROM: Tasmania v RDP [2009] TASSC 72
DELIVERED ON: 11 September 2009
DELIVERED AT: Hobart
HEARING DATE: 10 August 2009
JUDGMENT OF: Slicer, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Evidence – Relevance – Particular cases – Relationship evidence – Rape – Evidence of prior uncharged rapes and violence – Admitted to place evidence of complainant in context.
Evidence Act 2001 (Tas), s55.
R v Etherington (1982) 32 SASR 230; Harriman v R (1989) 167 CLR 590; R v Wickham, unreported, Court of Criminal Appeal (NSW), 17 December 1991; R v Beserick (1993) 30 NSWLR 510; Fordham v R (1997) 98 A Crim R 359; Gipp v R (1998) 194 CLR 106; R v Toki (No 3) (2000) 116 A Crim R 536; R v AN (2000) 117 A Crim R 176; KRM v R (2001) 206 CLR 221; HML v R (2008) 235 CLR 334, referred to.
Aust Dig Criminal Law [2675]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Particular cases – Other matters – Relationship evidence – Rape – Evidence of prior uncharged rapes and violence – Danger of use by jury as evidence of character or tendency.
Evidence Act 2001 (Tas), s137.
Aust Dig Criminal Law [2682]
REPRESENTATION:
Counsel:
Appellant: T Jago, E Hughes
Respondent: M S Wilson
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 81
Number of paragraphs: 35
Serial No 81/2009
File No CCA 395/2009
P v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
BLOW J
TENNENT J
11 September 2009
Order of the Court
Appeal dismissed.
Serial No 81/2009
File No CCA 395/2009
P v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
11 September 2009
I have read in draft form the reasons for judgment of Blow J and agree with both his reasoning and conclusion. I would dismiss the appeal.
File No CCA 395/2009
P v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
11 September 2009
This is an appeal against a conviction for rape. The appellant was found guilty by a jury on a charge alleging he raped his former partner vaginally on 9 July 2006. The Crown led evidence from the complainant at the trial that, on earlier occasions, when she had not been interested in having sex with him, he had held her down, punched her, and verbally abused her. The Crown also led evidence from her that, on earlier occasions, he had had anal and vaginal intercourse with her without her consent. The Crown did not rely on that evidence as evidence of any sort of tendency on the part of the appellant, but relied on it as "relationship evidence" that could help the jury to evaluate evidence of what happened at the time of the alleged crime. The appellant contends that none of that relationship evidence was admissible, and that his conviction should therefore be quashed.
Although Crawford CJ was the trial judge, an objection to the admissibility of the relationship evidence was determined by Porter J. The appellant pleaded not guilty before Porter J on 4 December 2008. His Honour proceeded to conduct a voir dire for the purpose of determining the admissibility of the relationship evidence that the Crown wanted to lead. At the conclusion of the voir dire he reserved his decision. On 25 February 2009 he determined that the relationship evidence should be admitted. The trial before Crawford CJ commenced on 4 May 2009. Under the Criminal Code, s361A(2), the determination of Porter J had the same status for the purposes of the trial before Crawford CJ as if it had been made during that trial. It seems that, at the time of the voir dire before Porter J, it was expected by all concerned that, once Porter J determined the disputed questions of admissibility, the trial would proceed before another judge at a later sittings of the Court.
The appellant's grounds of appeal relate only to the determination of Porter J. The appellant contends that the relationship evidence was irrelevant. Alternatively, he contends that that evidence should have been excluded pursuant to the Evidence Act 2001, s137, on the basis that its probative value was outweighed by the danger of unfair prejudice to him.
The evidence as to the charged rape
The complainant and the appellant lived together from early 2005 until June 2006. On 9 July 2006 the complainant returned to their former home to collect some of her possessions. She was accompanied by her brother and one of her children. There was an arrangement for a friend of the appellant to be at the house, but for the appellant not to be there. Some belongings were loaded into a vehicle, and the two men left in that vehicle. The child remained at the house with the complainant. She went to the bathroom and found the appellant there.
Her evidence on the voir dire as to what happened after that can be summarised as follows:
· She sat on the bath and talked to the appellant.
· He picked her up and placed her on the floor.
· She asked him what he was doing, and said, "I don't want to do anything."
· She noticed a knife on the basin. She asked him, "What's that for?" The appellant replied that if she moved she would find out.
· He started to remove her right shoe and the right side of her trousers. She asked him what he was doing, and said she did not want to have sex.
· She kicked him to the arm.
· The appellant said, "Just come on, give me one last taste." She understood him to be referring to oral sex. The appellant proceeded to perform oral sex on her.
· She kicked him again.
· The appellant said, "I am going to give you an excuse to charge me with rape."
· The appellant grabbed her legs with his right hand, undid his fly, and started masturbating.
· She had her legs crossed. The appellant tried to uncross them. He said, "Uncross your legs or I'll stick it in your arse."
· She uncrossed her legs. She did that because she was scared that the appellant would have anal intercourse with her, and from past experience knew how much it hurt.
· The appellant inserted his penis into her vagina, and proceeded to ejaculation.
· After ejaculating he said, "I'm sorry, but thank you."
· Prior to penetration, the appellant said words to the effect of "Show me your tits." She lifted up her top because she was scared he might hurt her.
During her cross-examination on the voir dire, the complainant said the following things:
· When the appellant put his face to her vagina, and she kicked him, that caused him to move backwards. There was no doubt in her mind that she was making it abundantly clear to him that she was not consenting to what was happening.
·She used force to try to prevent him from engaging in the sexual acts that she described.
·She exposed her breasts after she had seen the knife, and after she had protested that she was not interested in a sexual act, but before the act of oral sex.
·She crossed her legs just after the oral sex.
·She also covered her vagina to prevent penetration.
·She continued to say that she did not wish to engage in sexual activity at that stage.
·She was resisting and fighting back when the appellant was trying to prise her legs apart.
Before Crawford CJ, the complainant gave a substantially similar account of the same events. She did not mention the act of oral intercourse, but did mention the appellant's comment about one last taste. She gave evidence of some of the other events occurring in a slightly different order, and of the appellant using slightly different words but, apart from the act of oral intercourse not being mentioned, there were no material differences between her evidence on the voir dire and her evidence-in-chief before Crawford CJ.
During her cross-examination before Crawford CJ, she was asked questions about her resistance to the appellant. She said that she had kicked him twice. She agreed that she was yelling out the whole time, calling and screaming for help. She said that she had not fought him in the same manner during their relationship because she was scared that he would retaliate, but agreed that, on this occasion, her fear of him had abated and she was prepared to fight him off.
The appellant was interviewed by the police about the alleged rape. He admitted having oral and vaginal intercourse with the complainant on the occasion in question, but said that she was consenting. A transcript of that interview was before Porter J on the voir dire. The appellant's case at trial was that he had had intercourse as alleged, but that it was consensual.
The relationship evidence
There were minor differences between the relationship evidence led from the complainant on the voir dire before Porter J and the evidence led from her on the trial before Crawford CJ. I do not think any of those differences are particularly significant. If a particular piece of evidence was held by Porter J to be admissible, but then not led, his determination in relation to that piece of evidence was inconsequential. I will therefore proceed by considering only the relationship evidence that was in fact led at the trial.
The Crown prosecutor led evidence from the complainant as to the duration of her sexual relationship with the appellant, and the addresses where they lived. She said that their sexual relationship "turned a bit sour" after one of her children was born. She said that, when she had a newborn baby, she did not want to have sex all the time, but that she would just end up having it anyway. She said that she communicated to the appellant that she did not want to have sex, that she did that before having sex, and that he did not really respond.
The prosecutor then led evidence from the complainant about violence, as follows:
"Apart from talking to him and telling him that you weren't interested, was there any other physical contact between the two of you on those occasions when you expressed that you weren't interested in having sex?…..Only violence.
So, can you tell us about the violence that occurred on occasions when you had expressed that you didn't want to have sex?…..He'd either hold me down or he punched me, you know, verbally abused me and yeah.
And so what happened – what did you do when he punched you or held you down or verbally abused you?…..Well, there was nothing I could do. You know, I couldn't fight back or anything."
Thereafter, the complainant was asked whether she recalled any particular incidents when she had sexual intercourse but did not want to. She said that she recalled a couple of occasions, involving vaginal sex and anal sex. She went into detail about an act of anal sex. Her evidence can be summarised as follows:
· One night, in bed, the appellant asked if she wanted to have sex. The complainant replied, "No, I've got my period." The appellant said, "Just let me play with your bum for a bit." The complainant replied, "Oh, yeah, all right then but just don't insert your penis."
· The appellant rubbed his penis around her bottom, and then thrust his penis into her bottom, and held her so that she could not move.
· The complainant screamed in pain and told him to stop. He would not stop. He continued to hold her. She blacked out. When she woke up, her head was "all flopped to the side like onto the mattress and the bed head".
· The complainant felt a burning sensation. She was bleeding. The bleeding continued for about a week.
· She did not go to a doctor because the appellant told her that she was not allowed to.
· That was the only time that she and the appellant had anal sex.
The complainant went on to give evidence about an act of non-consensual vaginal sex. She said the appellant was trying to talk her into it, and was kissing her neck. She said, "I kept saying to him that I didn't want to do it but I was just scared that he was going to hurt me so I had it anyway." She said she told the appellant after that occasion that she was "sick of being treated this way", and that she was going to tell his mother or his father, but that the appellant said they would not believe her because she was just a stupid little bitch. She said she did not tell anyone because she did not think they would believe her.
An edited recording of the appellant's police interview was tendered on the trial. In it, the appellant said he had once had anal sex with the complainant. However his description to the police was very different from the complainant's evidence. He told the police that he had been having vaginal sex with the complainant, that she moved, that his penis came out, and that by mistake he then inserted it into her anus. He said that the complainant started screaming, and that he withdrew, apologised, gave her a cuddle, and said that he did not mean it.
Relevance
The Evidence Act, s55(1), provides as follows:
"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."
The appellant had admitted to the police that he had vaginal sexual intercourse with the complainant at the time and place alleged. The two critical matters that the Crown had to prove beyond reasonable doubt, therefore, were (1) that the complainant did not consent to the appellant having intercourse with her; and (2) that the appellant did not have an honest and reasonable belief that the complainant was consenting.
The Crown contends that the relationship evidence was relevant because it was evidence which, if accepted, would enable the jury to assess the full significance of the evidence of the charged rape, in the following ways:
· It would help the jury to place in context and assess the evidence that the complainant exposed her breasts.
· It would help the jury to place in context and assess the evidence that the complainant uncrossed her legs and allowed the appellant access to her vagina.
· It would enable the jury to assess the full significance of the evidence that the appellant threatened to have anal intercourse with the complainant if she did not uncross her legs.
· It would enable the jury to assess the full significance of the evidence that the appellant said, "I am going to give you an excuse to charge me with rape."
Evidence of a history of sexual or physical violence may be relevant because it potentially explains why a non-consenting complainant behaved as if she were consenting to a sexual act, and/or why an alleged offender could not have believed that any apparent consent was real: R v Etherington (1982) 32 SASR 230 at 235; Harriman v R (1989) 167 CLR 590 at 631; R v Wickham, unreported, Court of Criminal Appeal (NSW), 17 December 1991; R v Beserick (1993) 30 NSWLR 510 at 515; Fordham v R (1997) 98 A Crim R 359 at 367; Gipp v R (1998) 194 CLR 106 at 130 – 131; R v Toki (No 3) (2000) 116 A Crim R 536 at 540; R v AN (2000) 117 A Crim R 176 at 181 – 182; KRM v R (2001) 206 CLR 221 at 230; HML v R (2008) 235 CLR 334 at 352, 478 – 479, 497 – 498.
In HML v R at 352, Gleeson CJ explained how evidence of past conduct can be relevant, as follows:
"[6] Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was fourteen years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour."
At the hearing of this appeal, counsel for the appellant accepted that evidence of uncharged acts by an accused person on earlier occasions can be relevant when it tends to explain apparent acquiescence, but submitted that that principle did not apply in this case because the complainant gave evidence of kicking and screaming which, if true, left no room for any possibility that the jury or the appellant might incorrectly have thought that she was consenting to sexual intercourse. She submitted that the relationship evidence added nothing, and should therefore have been excluded.
I disagree. Although the complainant certainly did not give evidence of totally passive acquiescence, she did give evidence to the effect that she exposed her breasts, uncrossed her legs, and allowed the appellant to have vaginal intercourse with her. It is likely that the jury might have regarded some or all of that conduct as possibly indicating consent. The relationship evidence, if accepted, could enable the jury to evaluate the evidence of that conduct, and could therefore rationally affect the assessment of the probability that (1) the complainant did not consent to the act of vaginal intercourse, and (2) the appellant did not honestly and reasonably believe she was consenting.
The reasons given by Porter J for holding the relationship evidence to be relevant were as follows:
"34In my judgment, the evidence of the complainant as to the relationship, with the exception of the evidence of general physical and verbal abuse unconnected with sexual activity … is admissible. In general terms, the whole of the evidence would permit the jury more readily to understand and assess the actions of both the complainant and the accused, and the meaning to the complainant of things said by the accused, during the course of events in the house at …
35First, the complainant's evidence that on previous occasions, after making it clear to the accused that she did not want to have sex, he secured her acquiescence by actual or threatened punches, is relevant to the jury's assessment of what occurred between the two persons. I include in this category, the evidence of the particular incident described. The whole of the complainant's evidence must be taken into account. Although she agreed that she had relented due to nagging and pestering, underlying the act of relenting was a fear of physical harm as had previously occurred.
36I think this category of evidence to be relevant for the following reasons. … the complainant said she exposed her breasts on demand from the accused, because of her fear of being physically hurt. More particularly, although it occurred after a more specific threat with which I will deal in a moment, it might be thought that the complainant was ultimately acquiescent immediately before penetration occurred. The evidence may serve to explain this. The evidence also puts in its proper context the accused's statement as to giving the complainant an excuse for charging him with rape. Although this might be capable of being understood in isolation, it is far more readily understood with an appreciation of the earlier incident after which the complainant said that she would complain of rape, but was told by the accused that she was 'a stupid little bitch' and that no one would believe her.
37Secondly, the evidence of the previous anal penetration is relevant to the jury's understanding of why it was that the complainant uncrossed her legs immediately prior to vaginal penetration. The accused had threatened to penetrate her anally. Without an understanding of the earlier incident and the high level of pain and discomfort which the complainant suffered as a consequence, an understanding of the complainant's actions would be quite incomplete. This evidence puts the threat in its proper context. I do not think it really matters whether the earlier incident of anal penetration by the accused was intentional, or accidental as he claimed to the police. The facts remain that it was very traumatic for the complainant, and that she was most fearful of it happening again."
I have omitted from the paragraphs just quoted a reference to the appellant's performing oral sex upon the complainant shortly before the act of vaginal intercourse, since no evidence was led at the trial that oral sex was actually performed.
I entirely agree with all that Porter J said in the paragraphs I have quoted. For the reasons stated by him, I consider that all the impugned relationship evidence was relevant.
Exclusion under s137
The Evidence Act, s137, reads as follows:
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
No doubt there was some risk that the jury would treat the evidence of prior anal and vaginal rapes, and of the appellant responding with violence when the complainant was not keen to have sex, as evidence of general bad character, or as evidence of a propensity for sexual abuse and/or sexually related violence. There was thus a danger of unfair prejudice. The critical question is whether the probative value of the relationship evidence outweighed that danger of unfair prejudice.
A very useful exposition as to the meaning of "unfair prejudice" appears in Report No 26 of the Australian Law Reform Commission, Vol 1, at par644:
"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."
With or without the impugned relationship evidence, this was a trial at which the jury had to see and hear the complainant describing an act of rape by the appellant. The evidence of that act alone was likely to arouse a sense of horror, and to provoke an instinct to punish. Additional evidence of earlier sexual abuse and sexually related violence was not likely to add much to any sense of horror or any instinctive desire to punish. It was certainly not likely to distract the jury from the need to consider the credibility of the complainant very carefully. There was no reason to fear that the relationship evidence might cause the jury to accept the complainant's evidence too readily. The more significant risk in this case was that the jury would proceed on an improper basis by reasoning that, if the past conduct of the appellant was as the complainant described, then he was a person of bad character, or a person with a tendency to sexually and/or physically abuse her, and was therefore more likely to have committed the crime of rape.
When such a risk of misusing evidence exists, it is the duty of the trial judge to give appropriate directions limiting the use that may be made of the evidence: BRS v R (1997) 191 CLR 278. The fact that such directions must be given, and the likelihood of the jury complying with them, are matters to be taken into account in assessing the danger of unfair prejudice. Porter J concluded that uncomplicated and appropriate directions to the jury as to the proper use of the relationship evidence could readily be drafted, and that the risk of the jury misusing the evidence would then be negligible. Crawford CJ directed the jury that it was not permissible to reason that the appellant was a violent person, and therefore more likely to be violent to the complainant on the occasion in question, or that he was the kind of person who was more likely to have committed a rape. He directed them that the only relevance of the evidence as to prior anal intercourse was that it would explain why the complainant would not want that to happen, and why she uncrossed her legs. He said the evidence of prior violence only had possible relevance because it could explain why the complainant was frightened of the appellant, and why she therefore exposed her breasts. In the light of the directions anticipated by Porter J and given by Crawford CJ, I do not think there was any substantial risk of the jury using the relationship evidence in a way that they had been told was impermissible.
In my view the probative value of the evidence was quite significant. The Crown case depended very largely on the credibility of the complainant in relation to the issue of consent, and on the jury's evaluation of her evidence concerning events immediately before and after the act of intercourse. The relationship evidence was very important because, if accepted, it would enable the jury to properly evaluate the most critical evidence in the case.
For these reasons, I think that Porter J was right to conclude that the probative value of the relationship evidence was not outweighed by the danger of unfair prejudice to the appellant.
Conclusion
I would dismiss the appeal.
File No CCA 395/2009
P v TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
11 September 2009
I have had the advantage of reading the reasons of Blow J. I agree with them and the conclusion he has reached. I would also dismiss the appeal.
8
1