R v Basham (Ruling No 3)
[2022] VSC 109
•7 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0229
| THE QUEEN | Crown |
| v | |
| ADRIAN JAMES BASHAM | Accused |
---
JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2022 |
DATE OF RULING: | 7 March 2022 |
CASE MAY BE CITED AS: | R v Basham (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 109 |
---
CRIMINAL LAW - Accused charged with murder – Deceased was the estranged wife of the accused – Accused charged with rape of deceased and facing committal hearing at time of death – Crown argue pending rape charges as motive to kill.
EVIDENCE – Accused made alleged admission to rape in joint counselling session – Whether it is reasonably open to find that the accused made the admission – Whether danger of unfair prejudice outweighs probative effect of the alleged admission – Evidence excluded – Evidence Act 2008 (Vic), ss 81, 88, 137.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Rogers SC with Mr L Cameron | Office of Public Prosecutions |
| For the Accused | Mr A Halphen with Ms A Beech | Slades & Parsons Criminal Lawyers |
HER HONOUR:
The accused is charged with the murder of his estranged wife on 23 July 2018.[1]
[1]The Crown allegations are summarised elsewhere and are not here repeated.
The jury will hear evidence of the relationship between the accused and deceased, both at the time of her death and in the years prior. They first separated in about January 2017, there was then a brief reconciliation before they separated again (and permanently) at Easter 2017.
Subsequent to that separation the deceased obtained a Family Violence Intervention Order (‘FVIO’) to which the accused was the respondent. She also swore two police statements in July 2017 that detailed allegations of rape during the marriage. The accused was charged with rape in August 2017. He was facing a contested committal hearing with respect to those charges on 30 July 2018.
The jury will hear of the fact of the rape charges and the committal date. By agreement between the Crown and defence, the jury will also hear a description of the conduct of each of the three rape charges as well as the fact that the deceased spoke to others – family members, friends, police and health professionals - about rape in the marriage and the dates on which she did so.
The Crown seeks to lead evidence from Terence Melvin of an alleged admission by the accused to ‘the first rape’ made during a counselling session on 21 April 2017. It is contended that the admission is of high probative value as it increases the strength of the accused’s motive to kill the deceased a week prior to the committal hearing.
The defence objects to the admission of the evidence on four bases. First, that it is not relevant. Second, that if relevant it does not fall within the exception to the hearsay rule in s 81 of the Evidence Act 2008 (Vic) (‘EA’). Third, that if relevant it ought to be excluded pursuant to s 137 and/or s 135 of the EA. Fourth, that the admission should be excluded by s 90 of the EA.
The evidence
From the agreed facts the jury will hear the ‘first rape’ described in the following terms as a representation made by the deceased to police.
On an occasion in 2014 the accused locked the door of the pantry from the inside and undid [the deceased’s] jeans. She said something like ‘what are you doing? The kids are out there. No.’ but the accused pulled down her underwear and put his penis into her vagina. He had sex with her for a minute or two before ejaculating insider her vagina. The accused then unlocked the pantry and left.
By agreement the jury will also hear that:
The deceased made complaints of rape to four health professionals – namely Sharon Churchill, Donna Zander, Nicole Stanes and Terence Melvin – between 9 February 2017 and 7 February 2018.
Terence Melvin is a psychologist in private practice. In January 2017 the accused was referred by a general practitioner (‘GP’) to him with respect to anxiety. His first appointment was on 23 February. Unexpectedly to Mr Melvin, the deceased attended with the accused on that date. After discussion it was agreed that Mr Melvin would provide couples counselling. He then saw each of the accused and deceased alone before again seeing them together.
During her solo appointment on 9 March 2017 the deceased disclosed some matters relating to the nature of the relationship and stated that she was fearful of leaving it. Sexual issues were not discussed.
Pursuant to the initial referral, there were then three sessions with Mr Melvin jointly attended by the deceased and accused, the last being on 5 April 2017. Mr Melvin then sought a further referral from the GP to continue the counselling. While that was pending the deceased telephoned him on 19 April 2017 to state that she had decided to separate from the accused and was fearful of the accused. She also said that during the marriage the accused had forced her to have sex on a number of occasions.
The counselling session scheduled for 21 April 2017, when the alleged admission was made, was intended for the accused alone but the accused and deceased attended jointly. It is necessary to set out the evidence of Mr Melvin in some detail.
Mr Melvin first made a police statement on 20 December 2017. It is short (and presumably obtained in relation to the then pending rape charges). The last paragraph is in the following terms.
3.In our last session (21/04/17) which [the deceased] attended unexpectedly, the sexual assault allegation was raised. [The accused] agreed that there had been times when he had forced [the deceased] to have sex with him. This acknowledgment was done in a context in which he blamed [the deceased] or felt justified in his behaviour.
Following the death of the deceased, Mr Melvin made a far more detailed police statement on 14 September 2018. When describing the appointment on 21 April 2017, Mr Melvin stated:
16.During this session, [the deceased] described an incident during the relationship. This took place at the family home in Phillip Island, but [the deceased] did not detail the date. [The deceased] said that [the accused] had pushed her into a cupboard and forced her to have sex with him. [The deceased] said this in the context of reminding [the accused] about that incident. I asked [the accused], ‘Adrian, did you do this? Is this what happened?’ [The accused] said ‘yes’.
17.I then said, ‘Adrian, do you realise that this amounts to sexual assault?’ I can’t recall if I said ‘sexual assault’ or ‘rape’, but it was one of those. I told [the accused] that behaviour was unacceptable, and he started to justify his behaviour by saying that it was [the deceased’s] fault for not being clear and communicating with him. [The deceased] began to become visibly distressed and said something along the lines of ‘This is what you always do’ to [the accused], referring to his blaming her and justifying his own behaviour.
18.At that point, [the deceased] had a panic attack and left the room. I followed [the deceased] out to a small courtyard where [the deceased] sat down. [The accused] remained in the room. [The deceased] was having difficulty breathing and was really quite distressed. I spoke to her about breathing, told her to focus on me and listen to my voice, using common techniques I would use to help her to regain her composure.
Mr Melvin made notes of his counselling sessions. Those of 21 April 2017 are in the following terms.
S arrived for session – unexpectantly. (sic)
A distressed by S decision to separate. – despair.
• Continues to justify and blame S for the consequences of separating.
Little insight into the impact of his behaviour.
Disclosure of rape – justifies.
• Little capacity for reflection & self-awareness
•Presents as very reasonable/calm – but implied threat?/put down?/manipulative?
S – panic attack – feels relentless attack from A
Blames her and justifies himself
Recommended – started negotiations re parenting plan
A – to move out of house and let S retain
A – two weeks away
At the committal hearing of the accused on 23 October 2019, Mr Melvin was questioned as to the alleged admission.
He was asked his understanding of the purpose of his first police statement. He said:
[The deceased] had brought allegations of rape in the marriage … And the police had approached me and I made a statement to the effect that in one of our sessions [the accused] had admitted that this had taken place.
He was asked about his notes of 21 April 2017. He said:
… [the Deceased] then raised the issue of that incident of rape where he pushed her into a cupboard and assaulted her … the actual description of the incident is not in the notes. It’s what I remember she told me.
The questioning proceeded as follows:
So we’re then dealing with a disclosure of rape? ---- Yes.
And it’s got ‘justifies’. Can I take it, or tell the court, if you would, what that means. Was there a disclosure of rape at that time in that session? --- It was.
It was. By? --- [The deceased].
By [the deceased]? --- Yes.
So at that time she particularises, you say, in that note disclosure of rape, a particular occasion? --- Yes.
What do you say that was again? --- [The accused] forced her into – I remember quite distinctly it seemed very odd, that he forced her into a cupboard.
Yes? --- Where he sexually assaulted her.
According to her? --- Yes.
Then you got ‘justifies’. What does that mean? --- Um, what [the accused] then did, what I had observed him doing in previous sessions was then to turn it around and justify his behaviour by either blaming [the deceased], and one example would be that she wasn’t very communicative.
Yes? --- Um, or he would, um, tend to kind of minimise what was happening.
And that’s what you - - - ? --- That’s what I mean by - - -
They’re the two aspects of that - - - ? --- Yes.
- - - which comes under the limb of ‘justifies’? --- That’s correct.
And you didn’t make any notes of that. That was just your opinion about that? --- Um, it’s – well, it’s an opinion based on what I observed him doing.
Not what was said? --- Um, well what was - - -
Can I withdraw that. Did he say anything in relation to that matter? --- Well, why he did it, he went on to say to [the deceased], ‘You don’t give me clear messages’, and things like that.
He said those words? --- Yes.
You can remember exactly what he said? --- Yes.
Can you tell the court what exactly he said? --- Um, [the accused] said something like, ‘you don’t communicate well. You don’t give me clear messages. I don’t understand what’s happening’.
And that’s in relation to that specific issue of the disclosure of the rape in the cupboard? --- Yes, but it’s also reflective of similar responses to [the accused] – by [the accused] to [the deceased].
Over other sessions? --- Yes.
But specifically with this one - - - ? --- Yes.
- - - that’s what was said, according to you? --- Yes.
Yes? --- Yes.
And you then particularise, in your professional opinion, little capacity for reflection? --- Yes.
And self-awareness? --- Yes.
‘Presents’, is it, ‘on very reasonable’? --- Presents as very reasonable, calm, but implied threat, put down and manipulative.
They’re all question marks? --- Yes.
By you? --- yes, they were notes that I was forming in my head about what was – what his general approach was.
You were putting that there to sort of trigger in your mind whether those things may or may not be in play. Would you agree with that? --- Well, it comes out of 10 years of experience of observing perpetrators of family violence and that’s the general pattern that I see.
You never witnessed any family violence, did you? --- No.
All this is based on what you have been told by [the deceased]? – Of course.
After some other questions, the exchange continued.
… back to the note. ‘S panic attack’? --- Yes.
I can’t read that – ‘feels’? --- Um - - -
‘Feels relet’ - - - ? ---‘Relentlessly attacked from [the accused]’.
Yes. ‘Blames’? --- ‘He blames her and justifies himself’.
And then recommended? --- Yes. Well, [the deceased] had a panic attack at that point because of [the accused’s] behaviour in the session.
Yes? --- She had to leave the room. I went out with her and sat with her while she regained her composure.
Yes?--- And then she came back into the room and I decided to end the session at that point.
Yes? --- I recommended that [the accused] think about – well, prior to that I had asked him did this happen, and that’s where he acknowledged that this had happened, that he had attacked her, [the deceased].
He had what? --- He had attacked Samantha.
Where? --- In the cupboard.
You say he acknowledged that? --- He did.
Where is that in the notes? --- Um, disclosure of rape and justified it. I actually haven’t written that down.
There’s no note about it, is there? --- No. It’s just the disclosure of rape.
Yes, and then you say in your statement, ‘[The accused] agreed that there had been times when he had forced [the deceased] to have sex with him’. Do you see that in your statement? --- I do.
The first one? --- Yes.
That’s not in your notes either, is it? –-- No, not – [the accused] had not acknowledged anything other than that one incident.
And that was, as I understand your evidence, done on the basis of context of communication. Isn’t that what you were talking about beforehand? He had said to you this issue of – I withdraw that so we get to the chase of it. The disclosure of rape note was raised and you say that that transposes itself into [the deceased] saying something happened in the cupboard. Correct? --- Yes.
Then you have a note saying ‘justify’. Yes? --- Yes.
And that’s [the accused] talking to you, commenting and saying that it was a communication issue, and that was the evidence that you gave in relation to that, wasn’t it? --- But [the deceased] - - -
That was the evidence you gave in relation to that, though?
Following an objection by the prosecutor, Mr Melvin answered:
When [the deceased] disclosed the rape, um, I then asked [the accused], ‘[name], did this happen?’
Yes? --- He said yes. I said, ‘[name], this amounts to sexual assault’.
Yes? --- He then started to justify the behaviour in terms of claiming it was an issue of communication, that [the deceased] wasn’t clear with him about what she wanted or what didn’t she want.
And you didn’t make any notes of that? --- No.
So he was saying it was a communication issue? --- Yes.
Is there an admission?
Legal Considerations
The term ‘admission’ is defined in the Dictionary of the EA as follows:
Admission means a previous representation that is –
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person’s interests in the outcome of the proceeding.
‘Representation’ is defined to include:
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c)a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated.
‘Previous representation’ is also a defined term and means:
A representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Section 88 of the EA requires the Court, for the purpose of determining whether evidence of an admission is admissible, to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
By virtue of s 81 of the EA, the hearsay rule and the opinion rule do not apply to evidence of an admission or to evidence of a previous representation (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission.
Defence submissions
The primary submission of the defence is that the evidence is not relevant because, upon proper analysis, it is not an admission.
First, it is argued that the evidence is ambiguous and unclear. From the totality of Mr Melvin’s evidence it is not clear what the accused was saying when he answered Mr Melvin’s question as his affirmative response needs to be considered in the context of the ‘justification’ he gave subsequent to that response. Further, Mr Melvin cannot recall the precise words spoken. That means that he has paraphrased the conversation and infused that paraphrase with his own interpretation and opinion about what the accused meant.
Second, the ‘justification’ amounts to a statement of reasonable belief in consent. That being so, there was a denial of rape rather than an admission to it.
It is submitted that, at its highest, the evidence reveals an acceptance by the accused of sexual activity taking place.
Crown submissions
The Crown submits that any representation adduced by the prosecution and capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence would constitute an admission.[2] And, that an admission may be made by the adoption of a representation made by another. The Crown submits further that the term ‘admission’ has been interpreted broadly.
[2]Referring to R v JGW [1999] NSWCCA 116 at [39]-[41] per Wood CJ at CL.
It is argued that the accused’s representation, being the words recalled by Mr Melvin (including under cross-examination at the committal) amount to more than participation in an act of sex. Rather, the evidence is of an express representation, being acceptance by the accused that he had attacked the deceased in the cupboard (pantry) and sexually assaulted her.
Analysis
In my view, despite the defence’s argument of ambiguity and lack of clarity in the evidence of Mr Melvin, it is ‘reasonably open’ to find that the accused made the admission of sexual assault. That there is an alternative interpretation of the words does not change that finding. Mr Melvin’s evidence is that he asked the accused whether the incident described by the deceased, namely being forced into a cupboard and forced to have sex, happened. The accused gave an affirmative response. That the accused then sought to ‘justify’ (to use Mr Melvin’s word) that act by speaking about it as a communication issue is capable of being construed as raising an issue of consent but it is also capable of describing a process, observed by Mr Melvin on other occasions, of the accused deflecting responsibility.
In other words, more than one interpretation may be reasonably open. Section 88 of the EA does not require a finding that a particular person made the admission to be the only reasonably open finding. It is concerned with the admissibility of an alleged admission if it is reasonably open on the evidence that such an admission was made. If it is reasonably open, it becomes a question for the trier of fact to determine whether the admission was made or not.
I note that the defence made a further submission that if the evidence constitutes an admission, it could be either an admission to rape or an admission only that the accused knew that the deceased considered the incident in the pantry to be rape. If the latter was the extent of the admission, then the defence would not press its arguments pursuant to ss 137 and 135 of the EA, but would press the s 90 argument.
As I have determined that it is reasonably open to find that the accused made an admission of rape, I turn to consider s 137 of the EA.
Probative Value and Prejudicial Effect – s 137 EA
Crown submissions
The Crown submits that the admission carries strong probative force. Both the admission itself and the accused’s knowledge that he had made the admission made the case against him in relation to all the alleged rapes and, particularly, ‘the first rape’ more powerful. In turn, that gave him a considerably stronger motive to kill the deceased a week before the committal hearing.
In relation to the unfair prejudice identified by the defence, that is that the jury will place too much store in the admission, be overborne by the subject matter or use the admission to reason impermissibly that the accused is ‘the kind of person’ to commit murder, the Crown submits that all such potentially prejudicial matters are curable by judicial direction. Further, as the jury will know the substance of the allegation of the first rape, they are unlikely to be overborne by the subject matter of the admission.
The Crown submits that the balancing of probative value and unfair prejudice to the accused mandated by s 137 should not result in the exclusion of the evidence.
Defence submissions
The defence submitted that in order for the admission to have the strong probative force argued for by the Crown, the jury would first need to be directed on the elements of rape because they would need to determine that the evidence was, in fact an admission to rape and not a statement that there had been sexual activity accompanied by a belief in consent.[3] That would introduce a degree of unnecessary complexity but, more unfairly, would focus the jury’s attention on an uncharged act. In order for the jury to assess the defence argument that the evidence did not constitute an admission because the rape never took place, they would need to canvass the strength of the rape allegation itself against all of the reasons why the defence would argue that the rape never occurred. In essence, it would involve a trial within a trial.
[3]I note that at the time of the first rape alleged, the fault element for rape was the accused’s awareness that the deceased was not consenting or might not be consenting or not giving any thought to whether the deceased was consenting or might not be consenting.
Further, the defence submitted that such a course would require a myriad of judicial directions, including a form of Burns[4] direction, a s 32 Jury Directions Act 2015 (Vic) (‘JDA’) unreliability warning – both as to the hearsay nature of the evidence and that the alleged admission was made in the context of couples counselling when the accused and deceased were deciding whether to separate or not and a s 29 JDA anti-tendency warning. Those directions would come in addition to directions as to the elements of rape and consent and awareness of consent.
[4]Burns v R (1975) 132 CLR 258.
The defence submitted that these directions would not reduce the prejudice to an acceptable level and would, in any event, concentrate focus on an issue extraneous to the true task of the jury in the trial.
Analysis
I accept the Crown submission that the imputed motive to kill the deceased a week before the committal hearing of the rape charges is strengthened if the jury accepted that the accused had made an admission to the first rape and that he knew that the person to whom he had made that admission had made a police statement to that effect.
However, in my view that probative value is outweighed by the prejudicial effect of the evidence. In so finding I note that the probative value of the fact of the pending committal hearing and the timing of the deceased’s death remains very high.
The jury would have to consider whether they accepted that the alleged admission had been made. That is, they would need to be directed that the accused meant to admit that he had raped the deceased in the pantry and that that admission was true. Further, they would need to be directed about a significant amount of matters that may cause that evidence to be unreliable. Those matters obviously include the overlay of Mr Melvin’s interpretation of what the accused said and the environment in which the alleged admission was made. A man who did not wish to separate from his wife and who was in a counselling environment might speak in a manner particular to those circumstances.
This would focus attention not simply on the substance of the allegation of the first rape, but require the jury to weigh and assess the strength of that allegation. In effect, all of the necessary legal directions would invite the jury to adjudicate a charge of rape within the murder trial. On the single count indictment, that occasions unfair prejudice both by the amount of time it would occupy and by unduly highlighting one particular uncharged act. Further, for the evidence to have the probative value contended by the Crown, the jury would need to find that the alleged admission was a truthful admission to the first rape. That is, they would necessarily have to believe the accused to be a rapist of his wife. That finding, in the context of the evidence as a whole, makes the danger of impermissible reasoning so strong as to be, in my view, not sufficiently preventable by judicial direction.
Conclusion
The evidence of the alleged admission to Mr Melvin will be excluded pursuant to s 137 of the EA.
It follows that I need not consider the arguments with respect to ss 135 and 90 of the EA.
0