R v Curtis (No 1) - [2009] SASC 356

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v CURTIS (No 1)
[2009] SASC 356
Reasons for Ruling of The Honourable Justice Gray
23 November 2009
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Defendant charged with murder - defendant objected to leading of evidence from two witnesses who were to give evidence about relationship of accused and deceased - whether evidence of relationship relevant and admissible.
Held: objection overruled - evidence of relationship relevant, probative and admissible - evidence provided context as to nature of relationship between accused and deceased at time proximate to events in question in trial - probative value of evidence greater than prejudicial effect.
Wilson v R (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Clark (2001) 123 A Crim R 506; R v Collie (2005) 91 SASR 339, considered.

R v CURTIS (No 1)
[2009] SASC 356
Criminal
GRAY J.

During the course of the Crown case objection was taken to the leading of evidence from two witnesses who it was said would give evidence about the relationship of the defendant, Leon Curtis and the deceased, Rebecca Hogan. Having heard submissions of counsel, I overruled the objection. I now provide reasons for my ruling.
The Impugned Evidence
In the present proceeding, the Director proposed to lead evidence from two witnesses, Ms Dingaman and Ms Kenny, as to observations they made of Ms Hogan and the defendant some time before the night on which Ms Hogan died. The declarations provided by the Director suggested that the incident occurred some weeks before Ms Hogan’s death.
The declaration of Ms Dingaman and Ms Kenny disclosed that several weeks before the death of Ms Hogan there was an incident at Mintabie between the defendant and Ms Hogan. Both recounted that the defendant was aggressive toward Ms Hogan. The defendant demanded that Ms Hogan go with him. It was said that he was plainly angry. As appears from both declarations, the defendant threatened Ms Hogan. Ms Dingaman’s account refers to the defendant threatening Ms Hogan with a rock.
Relevant Legal Principles
It is well established that relationship evidence may be admissible in various circumstances. The evidence may be relevant for one or other of a number of purposes. These include establishing intention or motive, rebutting defences such as provocation and self-defence or simply providing the context of the relationship between a victim and the defendant.
In Wilson,[1] Barwick CJ explained the admissibility of relationship as follows:
It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. …It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. … Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.
Menzies J, with whom McTiernan and Walsh JJ agreed, observed:[2]
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence--which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue--to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
[1] Wilson v R (1970) 123 CLR 334 at 339.
[2] Wilson v R (1970) 123 CLR 334 at 344.
In Hissey,[3] Bray CJ, Hogarth and Mitchell JJ explained the distinction between admitting relationship evidence to shed light on the nature of the relationship between the defendant and the victim, rather than utilising that evidence to demonstrate a tendency towards violence by the defendant:
The learned trial Judge said to the jury: "You may well feel it unnecessary to consider any of that evidence in detail and I say that for two reasons. First of all, that the accused admits that during his association with Mrs. Hall he has from time to time used violence towards her; and the other, that the only proper purpose of putting before you any evidence, whether from Mr. Hall or Mrs. Seys, or from police officers as to what the accused said to them on the matter, is to show what relationship existed between the accused and Mrs. Hall at the time in question; that is on and about the 19th January this year".
Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v. The Queen). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R. v. Ball, per Lord Atkinson at p. 68; Wilson v. The Queen, per Barwick C.J. at p. 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.
[footnotes omitted].
[3] R v Hissey (1973) 6 SASR 280 at 289.
The following remarks of Heydon JA in Clark[4] illustrate the various reasons for and situations in which, relationship evidence may be relevant and admissible:
An issue thus arose whether the dealings and mutual attitudes of the appellant and the deceased were generally cordial or tense and violent. Though the evidence was not tendered by the Crown to prove motive or a particular intent, it had relevance independent of those issues. The relevance of the evidence arose in three ways.
First, to exclude all evidence of tension and violence but leave in only evidence of cordiality would be misleading. The evidence was relevant because it prevented the issues from being considered in a "vacuum" (Wilson at 344 per Menzies J). It avoided the jury having "quite an artificial picture": Peake (1996) 67 SASR 297 at 300 per Millhouse J (Williams J concurring). It enabled presentation of the case "in an intelligible and real fashion": Garner at 123 per Sugerman J. The evidence was "the key to an assessment of the relationship between the [accused] and the [victim] and, as such, constituted part of the essential background against which the ... [accused's] evidence ... necessarily fell to be evaluated": B at 610.
Secondly, the jury's task was to assess what happened on the drive which the appellant admitted from the start he had taken with the deceased. He went on it at a time when he had an opportunity to kill her. He went on it, according to him, for the purpose of discussing a matter of some distress and difficulty, namely the attempt to get the deceased to leave the house occupied by the appellant's mother. The issue was whether the drive ended in him killing her. It was material to consider whether the past dealings and mutual attitudes of the parties were such as to create a reasonable doubt in the appellant's favour or whether they were such as to increase the probability that a killing resulted.
The relationship was capable of casting light on whether the appellant killed the deceased, and, if he killed the deceased, what his mental state was: Hissey (1973) 6 SASR 280 at 289. The existence of a bad relationship increased the chance of a relaxation of normal inhibitions against killing. It thereby offered a potential explanation for any criminal conduct by the appellant. It established "an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of [the accused's drive with the victim], having regard to the past relationship of the principals": Garner at 129 per Maguire J.
As a motive, the Crown relied on the appellant's exasperation with the deceased because of his resentment over trouble caused to him by her failure to carry out postal deliveries properly, which caused complaints to be made to him even though he was not responsible for them, and frustration at the deceased's failure to leave the house of his mother, whom she was upsetting, whose friends had ceased to call in order to avoid meeting the deceased, and whose health, according to medical opinion, was being adversely affected. The deceased was frequently affected by alcohol and was disruptive, in the perception of the appellant. Even though the relationship evidence was not tendered as going directly to motive, an evaluation of the motive issue and an evaluation of the probabilities in relation to whether the appellant killed the deceased, after a sudden quarrel or otherwise, would be carried out less realistically if there were an exclusion of all evidence of the bad terms existing between the appellant and the deceased. Evidence of a hostile relationship would enable the jury to draw adverse inferences from the circumstantial evidence pointing to the appellant's guilt; evidence of a good relationship, foreshadowed by the appellant in his records of interview and actually given in the witness box, would cause them to hesitate in doing so.
Thirdly, the Crown was entitled to predict that the appellant would raise a particular version of his dealings with and attitudes to the deceased, and was entitled to endeavour to deal with it in its own case.
Thus the evidence was also relevant because it contradicted the appellant's own version of the relationship given to the police and thus amounted to an "anticipation of possible defences": Garner at 123 per Sugerman J. Similarly, in Plomp (1963) 110 CLR 234 at 251 the High Court accepted the admissibility of evidence that despite a statement by a husband that "he and his wife were `very happily married', [he] was not on good terms with her and that he had on one occasion at least treated her with violence".
[4] R v Clark (2001) 123 A Crim R 506 at [135] – [140].
More recently in Collie,[5] evidence of violence in the relationship between the victim and the defendant was found to be relevant, probative and admissible despite its prejudicial effect. Duggan J with whom Doyle CJ and Vanstone JJ agreed, observed:
The relevance of evidence to establish the nature of the relationship between the accused and the deceased in similar circumstances is well established: Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; Plomp v The Queen (1963) 110 CLR 234; R v Frawley (1993) 69 ACrimR 208 and R v Vollmer [1996] 1 VR 95 at 132.
[5] R v Collie (2005) 91 SASR 339 at [57]-[58].
Counsel’s Submissions
It was submitted by the Director that the evidence of Ms Dingaman and Ms Kenny was clear evidence of the nature of the relationship between the defendant and Ms Hogan at a time proximate to the events in question in the trial. It was pointed out that having regard to the trial thus far, it must be the defence case that although the defendant was present at the time of the incident resulting in Ms Hogan’s death, he was not responsible for any act with respect to that death. It was contended that having regard to the progress of the trial, it must further be the defence case that there was a reasonable possibility that the defendant would not act violently towards his wife. It was argued that the jury might doubt that a man would act as brutally and aggressively toward his wife to inflict the number and types of injuries sustained by Ms Hogan, unless they were assisted by evidence of the greater context of their relationship. It was argued that the proposed evidence from Ms Dingaman and Ms Kenny provided that greater context.
The Director submitted that the evidence of the relationship between the defendant and Ms Hogan was relevant and probative in regards to three issues. It was contended that the evidence was relevant to the issue of identity and responsibility, that is, who was involved in the attack on Ms Hogan on the night that she died. It was then submitted that it was relevant to the question of motive or intent. It was said that in this respect the evidence could assist the jury to overcome what might be a natural resistance on their part to conclude that a man would kill his wife “out of the blue”, unexpectedly or without warning in the brutal circumstances evident in the trial. Finally it was said that the authorities establish that evidence of relationship and in particular, of prior poor relationship, can assist to resolve whether what occurred was the result of a sudden and temporary loss of self-control or whether it was indicative of the general nature of the relationship at the time.
The Director acknowledged that the reception of the evidence would carry a risk of propensity reasoning. However, it was said that the probative value of the evidence substantially outweighed any prejudicial effect and that a propensity warning given to the jury would address and mitigate that effect.
Counsel for the defendant submitted that Ms Kenny’s declaration was too vague and too general to be probative. It was said that the proposed declaration of Ms Kenny did not reveal any specific act of violence by the defendant toward Ms Hogan. It was claimed that Ms Kenny’s evidence did not assert any specific conduct on the part of the defendant that could be linked to the alleged conduct on the night that Ms Hogan died. It was contended that Ms Kenny’s evidence consisted substantially of opinions without sound evidential basis.
With respect to the declaration of Ms Dingaman, it was submitted that it was no more than propensity evidence and simply did not fall within the classification of relationship evidence. It was again contended that Ms Dingaman’s recollections of the incident were vague and unspecific and founded in opinion rather than fact.
Counsel for the defendant further contended that to introduce the evidence at a late stage in the prosecution case would cause irreparable prejudice to the defence. It was said that the “very act of dropping the evidence into the middle of the trial” would cause prejudice equal to the propensity reasoning that would follow from admission of the evidence. It was said that the lateness of the provision of the declarations militated against the receipt of the material.
Finally, it was contended that the declarations only evidenced one earlier incident and that that was insufficient to allow any conclusion to be reached about the relationship between the defendant and Ms Hogan.
Consideration
The jury were entitled to understand the events in question in the trial in the light of the relationship between the defendant and Ms Hogan. The evidence went beyond suggesting that the defendant had a tendency to use violence against Ms Hogan. The evidence provided the context of the nature of the relationship between the defendant and Ms Hogan at the time of her death. The relationship between the defendant and Ms Hogan constituted part of the essential background against which Ms Hogan’s death occurred. The evidence of Ms Kenny and Ms Dingaman operated to avoid the evidence in relation to the night on which Ms Hogan died being considered in a vacuum. The proposed evidence, if accepted, was relevant and probative with respect to the issues identified by the Director.
In the above circumstances I reached the conclusion that the proposed evidence was relevant, probative and admissible. In my view its probative value was such that it should be admitted. The risk of propensity reasoning could be guarded against by an appropriate direction to the jury.