R v Cowling
[2018] ACTSC 188
•24 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cowling |
Citation: | [2018] ACTSC 188 |
Hearing Date: | 24 May 2018 |
DecisionDate: | 24 May 2018 |
Before: | Burns J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – Pre-Trial Application – relationship evidence – context evidence – whether the material is relevant – whether the material should be excluded under s 137 of the Evidence Act 2011 (ACT) – credibility – whether the probative value is outweighed by potential prejudicial effect |
Legislation Cited: | Evidence Act 2011 (ACT) ss 137, 192A |
Parties: | The Queen (Crown) Andrew Cowling (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Ms K Musgrove (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Accused) | |
File Numbers: | SCC 159 of 2017; SCC 160 of 2017 |
Burns J:
I have before me an application lodged on behalf of the Crown and dated 19 April 2018. The application seeks orders pursuant to s 192A of the Evidence Act 2011 (ACT), that the Crown be able to adduce evidence of a number of listed matters, as relationship evidence in the trial of the accused. The accused is currently awaiting trial with respect to eight counts on an indictment dated 25 July 2017. Two of those counts refer to an incident which is alleged to have occurred on 1 November 2016. The remainder of the counts are said to relate to an incident or incidents which are alleged to have occurred on 21 and 22 March 2017.
The common feature in relation to all of the charges, is that the complainant is a former girlfriend of the accused, by the name of BE. There is no doubt of course, that the Crown is entitled to lead at the trial of the accused, evidence which is directly relevant to each of the charges. The material however, which the Crown now seeks to lead, is not material which directly relates to any of the charges on the indictment. The material, which the Crown seeks to lead is identified in the application in two different ways.
Firstly, paragraph (a) of the material, delineated in the application, refers to evidence from the complainant that by the ‘middle’ of her relationship with the accused, the accused would engage in acts of violence against her on an almost daily basis, including dragging her into the bathroom, pinning her against the walls, ripping things out of her hand and not allowing her to leave his unit to return to her address.
The remaining material, which is identified as paragraphs (b), (c), (d) and (e) of the application, is identified by reference to paragraph numbers in a statement made by BE to the police on 23 June 2017.
The present application is opposed by Ms Musgrove, on behalf of the accused, on the basis firstly, that the material is irrelevant or in the alternative, secondly, that it should be excluded by exercise of my discretion under s 137 of the Evidence Act 2011 (ACT) (Evidence Act), which provides that in criminal proceedings, the Court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. As I understand it, no admissions have been made by the accused. As such, the Crown must proceed to prepare and present its case on the basis that everything is in issue.
It is clear that to a very great extent, the Crown’s case depends upon the evidence of BE, and as such her credibility will be a very significant issue raised in the course of the trial. The purpose for which the Crown seeks to lead the material which I have identified as context evidence, is to explain things that without explanation, may appear inexplicable and implausible to a jury and which may reflect in the mind of the jury upon the credibility upon the complainant.
Material from complainant
The first material which I have referred to, is that of the complainant, that by the middle of her relationship with the accused, he would engage in acts of violence against her on an almost daily basis.
Material of this nature, is in my opinion relevant, because it provides a context against which the jury could judge the plausibility of the actions of the complainant. In particular, there are instances of delay in terms of complaint by the complainant. There are also instances of the complainant having lied to others about how she sustained certain injuries. That is of course on the Crown case. Evidence that the complainant had been throughout at least part of the relationship leading up to these events, subject to regular violence at the hands of the accused, may assist the jury in understanding why it is the complainant acted in the way in which she says that she did, and in particular, it may support her credibility when she says that she did not make complaints or leave the relationship or lied, because of the fact that she was afraid of the accused.
In my opinion, that material is relevant. There is always a possible or potential danger that a jury confronted with such material may misuse it. So, that for example, they may see it as evidence of bad character, or they may see it as some form of tendency evidence, that is that the accused has a tendency to be violent towards the complainant. However, that can be dealt with in my opinion, through clear directions to the jury about the restricted way in which they can use that material, so that I am not satisfied that the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused.
Material in BE’s statement
I now consider the material in the statement of BE, which the Crown proposes to lead.
Paragraphs 9-13 of statement
The first tranche of material is found essentially at paragraphs 9 to 13 of that statement, and refers to an incident that took place in June 2016, when the accused is said to have taken BE to a Chinese restaurant and there was an argument and BE left. There was subsequently a phone call, however it appears to me that there is no real relevance to that material in the sense that it could not in my opinion, rationally assist the jury in determining any fact in issue in the case, and that includes the credibility of the complainant or indeed why she may have acted in particular ways at a later time.
Certainly, even if there were some peripheral relevance to that material, I am satisfied that it should be excluded under s 137 of the Evidence Act.
Paragraphs 15-24 of statement
The next tranche of material is located between paragraphs 15 and 24. This relates to an incident which is alleged to have occurred between 28 June 2016 and 1 September 2016, where the complainant said that she left her mobile phone in the accused’s car after he dropped her at her mother’s house. There was then a subsequent agreement that the phone would be dropped back to the complainant’s house the following day. It is alleged that at about 1.30 am the following morning, the accused entered the house of the complainant, went to her bedroom, woke her, and choked her and said that if she ever cheated on him, that he would kill her.
I am satisfied that this material is relevant in the same way as the other material which I have already permitted the Crown to lead is relevant. I am further satisfied that its probative value exceeds any prejudicial or potential prejudicial effect, bearing in mind the fact that the jury will clearly be given directions as to the way in which that material may be used.
Paragraph 26 of statement
The third section of the statement that the Crown proposes to lead is found at paragraph 26. This refers to behaviour on the part of the accused, which the complainant believes was attempting to manipulate her. In my opinion, that material does not have any significant probative value, even if it were to be peripherally relevant to the proceedings, I would exclude it under s 137 of the Evidence Act.
The final two sentences of that paragraph however, in my opinion, fall within a different category. In those sentences, the complainant says that she told the accused, “All I want you to do is to treat me better”, and that he would reply, “I will try to, I will change”. That is capable in my opinion, of assisting the jury in understanding why the complainant remained in the relationship with the accused.
Paragraphs 27-29 of statement
The final tranche of material that the Crown seeks to rely upon, is found in paragraphs 27, 28 and 29 of the statement. Paragraph 27 refers to an allegation that the accused started to get possessive when the complainant wanted to spend time with her family and the accused would want to see her every day.
In my opinion, that is not relevant to any fact in issue, but even if it were, in my opinion its probative value is not exceeded by the potential prejudicial effect and I would not allow the material in paragraph 27. Similarly, the first part of paragraph 28 in my opinion, should be excluded down to and including the sentence, “We are hurting our family’s [sic], you need help”.
The material that comes after that, which commences “On a [sic] numerous occasions, I threatened to leave Andrew” and continues to the end of paragraph 29, falls within a different category, because the material thereafter would help the jury to understand why the complainant may not have left the relationship with the accused and may also assist the jury in understanding why she did not make a complaint in relation to certain things that she alleged that the accused did to her.
With respect to much of the material, Ms Musgrove submitted that there was a risk that the jury would misuse that evidence as being tendency evidence. As I indicated earlier, there is always a potential risk of that occurring, but there is no reason to believe that a jury would not be able to understand clear directions given about limitations on the use to which this material can be put and would not apply those directions. I am satisfied that that material has significant probative value which outweighs the potential prejudicial effect for the accused.
Orders
The orders will therefore be as follows:
(a)Evidence from the complainant that by the ‘middle’ of her relationship with the accused, he would engage in acts of violence against her on an almost daily basis, including dragging her into the bathroom, pinning her against walls, ripping things out of her hand, and not allowing her to leave his unit to return to her address, will be able to be adduced;
(b)The events described at paragraphs 9 to 13 of BE’s statement of 23 June 2017 will not able to be adduced;
(c)The events described at paragraphs 15 to 24 of BE’s statement of 23 June 2017 will able to be adduced;
(d)The matters described at paragraph 26 of BE’s statement of 23 June 2017 will not able to be adduced, except for final two sentences of paragraph 26, which will be able to be adduced;
(e)The matters described at paragraphs 27 to 29 of BE’s statement dated 23 June 2017 will not able to be adduced up to and including “we are hurting our family’s [sic], you need help”. Material which comes after that, beginning at and including “on a numerous occasions” will be able to be adduced.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 14 August 2018 |
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