R v EP (No 2)
[2019] ACTSC 156
•28 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EP (No 2) |
Citation: | [2019] ACTSC 156 |
Hearing Dates: | 10 and 12 December 2018; 11 February and 28 March 2019 |
DecisionDate: | 28 March 2019 |
ReasonsDate: | 17 June 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, indictment or presentment – severance of indictment – relationship evidence – whether relationship and context evidence cross-admissible – application refused |
Legislation Cited: | Crimes Act 1900 (ACT) ss 53, 60, 72E, 264 Criminal Code Act 1995 (Cth) s 474.17 |
Cases Cited: | De Jesus v The Queen (1986) 22 A Crim R 375 Gipp v The Queen [1998] HCA 21; 194 CLR 106 |
Parties: | The Queen (Crown) EP (Accused) |
Representation: | Counsel P Burgoyne-Scutts/ K Lee (Crown) P Edmonds (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Accused) | |
File Numbers: | SCC 197 of 2018; SCC 198 of 2018 |
LOUKAS-KARLSSON J
Introduction
EP (the accused) had, at the date of this application, pleaded not guilty to a number of offences on an indictment dated 29 August 2018. They are as follows:
(a)Count 1: That on 9 February 2018, he committed an act of indecency on the complainant without her consent, being reckless as to whether she was consenting, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act);
(b)Count 2: That on 9 February 2018 committed an act of indecency on the complainant without her consent, being reckless as to whether she was consenting, contrary to s 60(1) of the Crimes Act;
(c)Count 3: That on 9 February 2018, he unlawfully assaulted the complainant with intent to engage in sexual intercourse with her contrary to s 53(1) Crimes Act;
(d)Count 4: That on 9 February 2018, he committed an act of indecency on the complainant without her consent, being reckless as to whether she was consenting, contrary to s 60(1) of the Crimes Act;
(e)Count 5: That between 9 February 2018 and 24 February 2018, he made a threat to the complainant to distribute an intimate image of the complainant, intending the complainant to fear that the threat would be carried out, or being reckless whether or not the complainant would fear that the threat would be carried out, contrary to s 72E of the Crimes Act;
(f)Count 6: That between 9 February 2018 and 24 February 2018, he used a carriage serve in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (Criminal Code).
In an application before the commencement of the trial, the accused sought to sever Counts 5 and 6 on the indictment pursuant to s 264(2) of the Crimes Act.
On 28 March 2019, I refused the application for severance. What follows are my reasons for that decision.
Background
On the Friday preceding the commencement of this application hearing, the Crown filed and served an affidavit of a Ms Natasha Purvis, affirmed 7 December 2018. Ms Purvis’ affidavit conveyed representations made to her from the complainant that, in the days following the alleged conduct forming Counts 1 to 4, the accused had pressured the complainant into acquiescing to further sexual relations.
Following an adjournment in this application, an affidavit of Ms Burgoyne-Scutts, sworn 8 February 2019, was subsequently filed. Annexed to this affidavit was a witness statement from the complainant dated 19 December 2018 (annexure “PBS11”) in which the complainant makes representations regarding the accused’s conduct consistent with those contained in Ms Purvis’ affidavit. Also annexed to this affidavit was a voluminous collection of text messages between the accused and the complainant (annexure “PBS12”).The affidavit of Ms Purvis was ultimately not relied upon by the Crown in this application.
A key issue at the core of this application was whether there was evidence, including evidence contained in annexures PBS11 and PBS12, that could be considered to be “relationship” or “context” evidence within the meaning of the authorities, such that it would be cross-admissible in respect of the Counts 1 to 4 and Counts 5 and 6.
Legislation
Section 264(2) of the Crimes Act relevantly provides:
Orders for amendment of indictment, separate trial and postponement of trial
..
(2) If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment
Submissions
The accused’s submissions
By reference to the decision of R v Mack [2009] ACTSC 83; 4 ACTLR 55 (Mack), counsel for the accused submitted that, in the absence of a finding of cross-admissibility of evidence, there is an inevitable prejudice to the accused from hearing all six counts together and the accused need not establish some special degree of prejudice.
Nevertheless, it was submitted that without severance, a recognised prejudice would be occasioned to the accused given the sexual nature of the evidence that would be before the jury. In this respect, the accused referred to comments of Gibbs CJ in De Jesus v The Queen (1986) 22 A Crim R 375 at 378 where his Honour observed:
Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.
10. It was suggested by the accused that any direction to be given to the jury to ignore the evidence in support of Counts 5 and 6, which was described by counsel for the accused as “sexually explicit and…highly offensive” when considering Counts 1 to 4, would likely be ignored given the “highly prejudicial view the jury are likely to form towards the Applicant after hearing such evidence.” It was submitted this prejudice may also impact the credibility of the accused in circumstances where the first four counts will be “oath against oath”.
11. On the question of cross-admissibility, it was accepted by the accused that the key issue in this application was whether the evidence, including in respect of Counts 5 and 6, was cross-admissible as “relationship” or “context evidence”.
12. The accused submitted that evidence which merely concerns a relationship between accused and complainant is insufficient (see: Norman v R [2012] NSWCCA 230 at [33] (Norman)). Instead, it was submitted, to be admissible the evidence must be probative of some particular aspect of the relationship which explains why the complainant acted as they did (HML v The Queen [2008] HCA 16; 235 CLR 334 (HML)) or explain the conduct of the complainant where it would otherwise be inexplicable (Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463). See also Gipp v The Queen [1998] HCA 21; 194 CLR 106 (Gipp) at [168]–[169]; Norman at [29]-[36]). It was further noted relationship evidence has been used to disprove accident (Wilson v The Queen (1970) 123 CLR 334 (Wilson)).
13. In relation to the text messages contained in PBS12, counsel for the accused submitted that, if it was to be accepted the text messages were probative of why the complainant agreed to the sexual relations after 9 February 2018, “then that would be a telling point against severance...” However, counsel submitted that none of the messages go beyond merely establishing a pattern of offensive conduct, which is not in and of itself probative of the issue of the complainant’s conduct after 9 February 2018.
14. In this respect, counsel for the accused referred to decisions on relationship evidence, including KTR v R [2010] NSWCCA 271 (KTR) which involved uncharged acts of violence. Counsel sought to distinguish such cases by asserting that any threats in this case were “qualitatively different in nature” , not containing any suggestion of physical violence. Counsel for the accused drew the Court’s attention to a number of messages within PBS12 which, it was submitted, could fairly be described as “offensive”, “childish” and “pathetic”, but submitted that none were of a sufficient gravity to be probative, and therefore cross-admissible. Counsel for the accused further noted that of the messages in the days immediately prior to the sexual relations on 13 and 14 February in particular, “none of them could be fairly categorised as threatening”.
15. The accused submitted that it was not intended to be asserted that the accused and the complainant had a ‘perfect’ relationship and thus the evidence would not be used to show the “true relationship” between the parties (in the manner described by Kiefel J, as her Honour then was, in HML at [498]-[500]).
16. In addition, counsel for the accused submitted that an alleged threat to distribute images only occurred after the date of the consensual relations on 13 and 14 February 2018. Accordingly, that threat could not logically be probative of the state of mind before those dates.
17. On the question of delay in making a complaint, counsel noted that this would be an issue raised in cross-examination by the accused at trial. However, it was submitted that rather than the delay of six weeks for Counts 1 to 4 itself being relevant to credibility, it would be the absence of complaint in relation to Counts 1 to 4 when the complainant spoke to police regarding Counts 5 and 6. Accordingly, given complaint was made regarding Counts 5 and 6 before the complaint of Counts 1 to 4, it was submitted that any alleged fear held by the complainant of the accused does not explain the delay in a manner which would be probative.
18. Ultimately, it was submitted by the accused that the evidence in respect of the Counts 5 and 6 does nothing to explain the actions of the complainant in respect of Counts 1 to 4, nor vice versa. The accused accepted that a lack of cross-admissibility would not itself be sufficient for severance, but noted in this case severance was warranted given the aforementioned prejudicial nature of the evidence.
19. On the impact of any severance, the accused accepted the complainant, and perhaps police officers, would be required to give evidence more than once (written submissions, pg 6; T.11). However, as counsel submitted evidence for Counts 5 and 6 are not cross-admissible for the first four Counts, the complainant would not be required to give evidence about the same subject matter more than once. It was submitted that any inconvenience cannot be outweighed by the need for a fair trial.
The Crown’s submissions
20. The Crown submitted that evidence in relation to each Count is relevant in relation to all counts, as relationship evidence. The Crown accepted that the key issue was the question of cross-admissibility, and whether the text messages in PBS12 were probative of the explanation given by the complainant regarding the consensual sexual relations after 9 February 2018. The Crown noted that where evidence is cross-admissible, a separate trial should not be ordered (see: R v TJB [1998] 4 VR 621 at 626 (TJB); R v CHS [2006] VSCA 19; 159 A Crim R 560 (CHS)).
21. The Crown rejected the accused’s submission that there were no text messages within PBS12 that were sufficiently probative to be relationship or context evidence in this case and also rejected the submission that there would need to be some element of physical violence for them to be sufficiently probative. Rather, it was said to be sufficient that the messages evidenced a “sustained pressure” for the complainant to have sexual intercourse with the accused. It was important, the Crown submitted, to focus on the complainant’s perception of this material.
22. In pointing to the factors weighing for and against severance as outlined in Mack (at [32], [35], [40]-[41]), the Crown submitted that fairness considerations apply to both the accused and the Crown, and in this case, unfairness is occasioned to the Crown by forcing the relevant Counts to be considered without context.
23. In relation to the submission by counsel for the accused that the relevant threatening conduct post-dates the consensual sexual relations, the Crown submitted that the specific threats referred to (or any threats of physical violence) are not the only matters which could be probative as to why the complainant engaged in consensual sexual activity. In particular, the Crown submitted that threats were present before the dates of the consensual sexual activity. Specifically, it was submitted that a veiled threat was contained in the following message on 10 February 2018:
Hey I warned you not to go shooting your mouth off and clearly you have and it’s all … amusing isn’t it. Maybe you should have written Dan in the concrete as well…thanks you give me more motivation every day.
24. In addition, the Crown submitted, by reference to statements tendered by the Crown which allege the accused threatened the distribution intimate pictures of the accused, regard should be had to the following message from the accused to the complainant, also from 10 February 2018:
Probably wouldn’t get home too late in the morning you might want to collect some things off the front lawn before too many people see them
25. Also on 10 February 2018, the accused wrote to the complainant:
It’s on now babe. Your going to see the next level.
And subsequently on 11 February 2018, the accused wrote:
I’m done talking to you...I have given you everything I possibly can and you just want money for this and money for that. You’ve fucked my life completely up forever and I’m going to make you pay for that in so many ways your going to wonder when it’s ever going to stop.
26. The Crown also drew the Court’s attention to further examples it submitted evidenced threatening behaviour followed by acquiescence to sexual relations by the complainant.
27. The impact of these messages, according to the Crown, was evidenced in the statement of the complainant in PBS11, which asserted that she engaged in the subsequent sexual relations out of fear “his behaviour could escalate into violence” or that he would damage her reputation, including through the distribution of images of her.
28. The Crown observed that the purpose of relationship evidence is to provide the true and realistic context of certain actions, such they are properly intelligible to the jury and not viewed in a vacuum or from a perspective of unreality (see: KTR, R v Aroushi [2001] NSWCCA 406; Wilson; Gipp; WFS v R [2011] VSCA 347; 33 VR 406 (WFS); R v Garner [1964] NSWR 1131 (Garner); Teaupa v R [2006] NSWCCA 186; R v Toki [2000] NSWSC 999; 116 A Crim R 536; Roach v The Queen [2011] HCA 12; 242 CLR 610 (Roach); R v Sadler [2008] VSCA 198; 20 VR 69; MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 (MM)).
29. In the Crown’s submission, the requisite context provided by the relationship evidence in this case is: that it shows the accused was engaged in a course of conduct to the complainant throughout the relevant period, it gives context to the issue of consent in relation to Counts 1 to 4, it illustrates the states of the relationship between the accused and the complainant being relevant to all Counts, explanation of delay, and, in particular, it is relevant to the anticipated cross-examination of the complainant regarding the consensual relations after 9 February 2018 and therefore her credibility on Counts 1 to 4.
30. In addition, the Crown noted this alleged course of conduct of the accused is not only relevant to the question on consensual relations, but is part of the conduct forming Count 6 and is relevant to Count 5, noting the alleged implied threat referred to above.
31. In relation to the accused’s submission regarding prejudice arising from the sexual nature of the evidence, the Crown submitted that the threats to disseminate intimate images also carry sexual connotations, as of course do the first four counts. In addition, a jury would likely see threatening or menacing text messages from the accused in any event. Accordingly, if evidence is already to be before the jury, it was submitted the prejudicial effect is already present and a jury direction can appropriately ameliorate the prejudice.
32. In respect of the effect of any severance, the Crown submitted that the complainant would be required to give evidence on certain topics in both trials, for example, on the breakdown of the relationship between the complainant and the accused. In addition, police witnesses would have to give evidence more than once and two trial run separately would take up additional court time.
Consideration
33. Seminal to the consideration of this application for severance is a previous application by the accused to cross-examine the complainant. Leave was granted to the accused to cross-examine the complainant in relation to prior sexual experience: R v EP [2019] ACTSC 89. The subject of that cross-examination was the consensual sexual intercourse that occurred some days after the alleged non-consensual sexual activity on 9 February 2018.
34. The proposed cross-examination and the reason why the complainant agreed to intercourse on the subsequent occasion calls forth matters which are the subject of Counts 5 and 6. That is why Counts 1 to 4 cannot be severed from Counts 5 and 6. It is for this reason that the six counts are inextricably intertwined and therefore ultimately cross-admissible (TJB; CHS). Relevant threats existed in the days prior to the consensual sexual activity as outlined by the Crown in their submissions.
35. The cross-examination as to the subsequent consensual sexual intercourse cannot occur in a vacuum (KTR; WFS; Garner; MM; Roach). The trial would acquire a perspective of unreality were the application for severance granted. As indicated on 28 March 2019, when I refused the severance application, to sever the counts would render the trial artificial.
Conclusion
36. As a result of the above, on 28 March 2019 the application by the accused to sever the indictment was refused.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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