Regina v McNamara

[2002] NSWCCA 248

Reported Decision: (2002) 131 A Crim R 140

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v McNAMARA [2002] NSWCCA 248
FILE NUMBER(S):	CCA 60571/2001
HEARING DATE(S):	17 June, 2002
JUDGMENT DATE:	21 June 2002
PARTIES :	Regina Noel McNamara
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 2; Blanch AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/1157
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	G E Smith (Crown) G Bashir (appellant)
SOLICITORS:	S E O'Connor (Crown) M D Rumore (appellant)
CATCHWORDS:	Criminal law - sexual intercourse without consent - relationship evidence - distress - warnings
LEGISLATION CITED:	Crimes Act, 1900 s60, s61I, s90A Evidence Act, 1995 s135, s137
CASES CITED:	R v Fordham CCA (NSW) unreported 2 December, 1997 The Queen v Preston CCA (NSW) unreported 9 April, 1997 Attwood v The Queen (1960) 102 CLR 353 Perry v The Queen (1982) 150 CLR 580 Makin v Attorney-General (NSW) (1894) AC 57 R v AN (2000) 117 A Crim R 176 Regina v Ryan CCA (NSW) unreported 15 April, 1994 Regina v Talbot CCA (NSW) unreported 29 March, 1979 R v Murray (1987) 11 NSWLR 12
DECISION:	Appeal allowed. Quash convictions and sentences on both counts. New trial ordered.

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60571/2001

SPIGELMAN CJ
SIMPSON J
BLANCH AJ

21 June, 2002

REGINA v Noel McNAMARA

Judgment

1 SPIGELMAN CJ: I agree with the reasons of Blanch AJ and the orders proposed.

2 SIMPSON J: I agree with Blanch AJ.

3 BLANCH AJ: This is an appeal against convictions at Penrith District Court where on 15 May, 2000 the appellant stood trial on three charges:

Count 1: that between 6 March, 1999 and 11 March, 1999 at Tregear he detained Raylene Gordon with intent to hold her for his advantage, contrary to s90A of the Crimes Act .

Count 2: that he assaulted Raylene Gordon between 30 March, 1999 and 2 April, 1999 contrary to s60 of the Crimes Act .

Count 3: that on 5 April, 1999 he had sexual intercourse with Raylene Gordon without her consent knowing she was not consenting contrary to s61I of the Crimes Act .

On 30 May, 2000 the jury returned a verdict of not guilty on the first count and verdicts of guilty on counts 2 and 3.

4 The complainant gave evidence that she and the appellant had grown up together as children and formed a relationship in 1991. They started living together and had two children born in 1994 and 1998. The complainant gave evidence of a relationship of violence and in particular about three prior incidents. The first such incident was in April, 1996 when she said she was punched to the face, she informed the police and the appellant was charged and placed on a 12 month bond. She continued to live with the appellant but in a second incident he assaulted her again in October, 1997 when she said he beat her with a pick handle from about 11 o’clock at night until the next morning. She described the injuries she suffered as cuts to the eyebrows, cuts to her hands, fractures to her leg and arm, bruising and cuts to the back of her head. She said the appellant was charged with maliciously inflicting grievous bodily harm and sentenced to one year’s imprisonment with a nine months non-parole period.

5 After this the complainant moved to live with the appellant’s mother and she lived there from October, 1998 until the appellant was released from gaol on 5 December, 1998. On his release the appellant went to his mother’s house to live for a couple of weeks but then moved in with another woman.

6 The complainant described a third incident of violence on 13 January, 1999 when the appellant punched her and threatened her and told her not to call the police. He said “I’ll rabbit you” and he also said “I’m not scared to break your bones. I’m not scared to go to gaol again. Instead of doing 9 months I’ll do 20 years.” He also threatened that if his mother called the police, the complainant “would be dead before the police got there”. At this stage they were living apart.

7 The charges in the indictment arise following the 5 March, 1999 when the appellant and the complainant together took the two children to Manly. They returned to the appellant’s mother’s place and she stayed there with the appellant on the night of Friday, 5 March and Saturday, 6 March. When she was packing up to go home on Sunday, she said the appellant told her she had to stay and if she left it would be without her son. Her evidence was he said “If you try and take Jake, I’ll kill you.” She said she stayed because she was afraid and she was under constant supervision although it transpired that on the next Thursday she and the appellant’s mother went to the bank without the appellant and she did not try to escape. This was the evidence supporting the first count of which the appellant was acquitted.

8 Three weeks later the complainant was still living at the home of the appellant’s mother and on Wednesday, 31 March she and the appellant decided to drive to her flat in Kingswood to pack up her belongings. The appellant instead drove her to Whalan Reserve and interrogated her about past lovers and he then began to assault her. She said “He sat on my chest, he beat me, he punched my chest. Then he grabbed, he throated me. Then he pushed me, he ran my head into the ground, more than twenty times at least. Pulling my hair, I was bald on both sides of my head. He kicked me, he kneed me both front and back.”

9 She remained living at the appellant’s mother’s house and she said that on 5 April, 1999 at that house the appellant beat her and asked her for sex. She said she refused but the appellant rolled her onto her side and had sexual intercourse with her.

10 She said “I told him point blank ‘No I don’t what to have sex with you. I don’t want to sleep with you’ “ and when asked why didn’t she struggle her answer was “Because I knew better, I knew not to.” She left the house in the early hours of 6 April, 1999 and she went to the home of a friend who lived nearby and rang the police and was taken to the hospital.

11 In support of the evidence relating to prior assaults, Sergeant Killen, a police prosecutor from Bankstown, was called. His evidence was that the appellant entered a plea of guilty to a charge of assault occasioning actual bodily harm at Bankstown Local Court. Amended facts were tendered to the Court and the appellant was given a good behaviour bond for twelve months. The statement of agreed facts given to Bankstown Local Court was tendered as Exhibit B before the jury.

12 Bruno Skuodas, a solicitor with the Office of the DPP, was called to give evidence that he prosecuted the appellant at Parramatta Local Court on 6 March, 1998 of a charge of maliciously inflict grievous bodily harm on the complainant. The appellant pleaded guilty and was sentenced to twelve months imprisonment with a nine months non-parole period and the statement of facts which was tendered to Parramatta Local Court was tendered before the jury as Exhibit C.

13 In addition to the police evidence of arrest, the friend of the complainant to whom she fled gave evidence that on 6 April, 1999 she found the complainant hiding behind her back gate at 6.30 a.m. She said the complainant was upset and crying and she showed the witness bruising and places where hair was missing. She complained of having been sexually assaulted.

The remainder of the prosecution case consisted of the evidence of Dr. Tang who examined the complainant on 6 April. He noted bruising and semen was detected on genital swabs he took.

14 A substantial question raised in this case is whether or not evidence of the prior conduct of the appellant, his convictions and his sentence were admissible in evidence before the jury and the further question arises as to whether or not a miscarriage has occurred because of the admission of that material and the directions given to the jury about the use of that material.

15 It is clear evidence of the relationship between parties can be admissible in cases such as this: R v Fordham CCA (NSW) unreported 2 December, 1997, is a case which illustrates this point. There the complainant with intellectual disabilities said she was brutalised by the accused over a period of two years. Howie AJ, as he then was, said the Crown’s case was that the accused had overborne the complainant’s will by repeated acts of physical violence so that she complied with his demands through fear. What was asserted there was a course of continuous physical and sexual abuse. His Honour said at page 6 “The complainant’s evidence of the appellant’s physical violence toward her from the time he commenced to live in her home gave context to her allegations of non-consensual sexual intercourse. Without that evidence the jury would have been left without a full appreciation of the complainant’s allegations.” His Honour said at page 7 “The evidence of the assaults and injuries inflicted on the complainant were relevant to the jury’s determination on both the issue of consent and the appellant’s knowledge of lack of consent in respect of each of the acts of intercourse charged in the indictment.” He went on to say “In this case, where the complainant was alleging that physical violence by the appellant upon her was an integral part of their relationship during which the offences alleged in the indictment took place, the evidence of the assaults and injuries … was relevant …”

16 In The Queen v Preston CCA (NSW) unreported 9 April, 1997, evidence was admitted from a complainant that she believed the accused had assaulted people and shot someone on the basis that it was relevant to explain why she did not call out for assistance in that case.

17 On the other hand the introduction of the prior conduct and convictions of the appellant had the potential to introduce significant prejudice into this case. In Attwood v The Queen (1960) 102 CLR 353 at 359 the Court said:

“’Bad character’ may be regarded as the contrary of good character. But as a separate and independent fact or matter it can be proved on a criminal trial only in answer to evidence adduced of the accused’s good character. It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. ‘The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably to injustice in the other ninety nine’ ”, the last statement being a quotation from Willes J. in Regina v Rowton (1865) Le & Ca 520.

18 In this case the Crown did not lead evidence of three prior incidents of assault as tendency evidence and it was not suggested that section 97 of the Evidence Act was relevant. Of course, there could be a fine distinction between what is tendency evidence on the one hand and what is evidence going to establish the real nature of the relationship on the other.

19 The trial judge did give directions to the jury about this matter. At the very commencement of the trial, the judge told the jury the Crown intended to lead evidence of earlier events and he explained it was material they were entitled to use in a “very limited way”. He went on to say “…that as a matter of common sense it plainly could well relate to a question of consent, to the charge of sexual intercourse without consent – it may well relate to that. It may well relate, and it’s up to you to decide whether you accept it and use it as you see fit but you may take the view that some of the material may bear on the question of detention under the kidnapping count. He warned the jury that because of evidence he served time in gaol “It would be a grave injustice to him to say that he is a bad person, he’s the sort of person who is likely to do this, any of these three events charged. That would be completely wrong. And by the same token you must not substitute this earlier than March ‘99 evidence for the direct evidence that will be given in support of these three counts.”

20 When the statement of facts for the hearing of 6 March was tendered, his Honour told the jury “… you can’t substitute any of this material for the evidence in this case as to what happened on the charges of rape and kidnapping and assault. It’s only before as relevant, if you think it’s relevant, as to the state of mind of the accused and the state of mind of Raylene Gordon at the time these events in March and April ’99 were going on.”

21 On 29 May, shortly after commencing his summing up his Honour said “… those incidents are not before you for the purpose of indicating that he is necessarily a man of bad character and therefore likely to do these events charged. That would be a grave mistake if you approached it that way. It is only before you in two ways; one, the Crown suggests that you would use it as indicative of her state of mind that she knew that if she did not obey/submit, that she would be in for broken bones and a thorough hiding and the like, so that goes to her state of mind as to why she, the Crown urges, why she tolerated this sort of behaviour and continued on with the relationship, and continued on in the mother’s place after 7 March.

And also, it comes in if you want to apply it this way, it is entirely a matter for you as to how you deal with the evidence, but you could regard it as relevant to the state of mind of the accused. As I understand the Crown case is that she would argue that he was well aware of the previous course of the relationship involving substantial violence and he, if you accept that, he relied on her subservience as it were, putting up with it, taking it. But that is the only basis on which that character type evidence of previous matters comes in.”

22 The following day the trial judge resumed his directions and as to these three previous incidents said to the jury “I told you that you could not use those events to say he was a man of bad character and therefore likely to do these things again. Those events only come in firstly as relevant to her state of mind. She says, in effect ‘Well you’ve got to do what he says, otherwise you get a hiding.’ “ He went on to say “… so it comes in as relevant to her state of mind and also as to his, particularly as to the, I suppose the charge of kidnapping and the charge of rape, …”. The judge then went on to invite the jury to contrast what each party had said about the previous incidents in resolving credit issues.

23 Insofar as these directions were concerned, it might have been better if the judge had not used the expression “necessarily a man of bad character” and it might have been better not to have used the expression “… it is entirely a matter for you as to how you deal with the evidence …” or “use it as you see fit.”

24 His Honour used the expression that this material was relevant “particularly” to the kidnapping and rape charge. It was, in fact, not relevant at all to the charge of assault and the failure of the trial judge to identify with precision on which counts the evidence could be considered made it even more confusing for the jury when he said “The way to deal with all the material in the case is to, as it were, put it in the one melting pot and at the end of the day you look at each of these three charges separately …”. These directions taken together were, in fact, a misdirection as to the evidence available on the charge of assault and must lead to a serious concern the jury did not know exactly how to apply the relationship evidence on the other two counts. When relationship evidence is admitted, it is necessary for very precise directions to be given on the use to which it can be put. Originally, of course, the evidence was tendered in this case on the kidnapping charge as well. That is no longer relevant because of the acquittal but care was needed in instructing the jury as to the use of this material on the sexual assault charge, particularly in circumstances where the appellant did not raise consent as a defence but rather denied the particular act of intercourse had occurred.

25 There is no doubt this material was highly prejudicial to the appellant. The jury knew from the evidence of the complainant about the assaults in April, 1996 and in October, 1997. This evidence was not only given by the complainant but the Court appearance for the April, 1996 assault was the subject matter of evidence by the police prosecutor who had prosecuted it and the statement of facts tendered at that hearing was tendered before the jury. The jury knew the appellant had been convicted and placed on a good behaviour bond.

26 Insofar as the assault in October, 1997 is concerned, the jury not only had the evidence of the complainant but they also had the evidence of the solicitor from the Office of the DPP who prosecuted the case and they had tendered before them the statement of facts which was tendered before the Magistrates’ Court. They knew the appellant was convicted and they knew he was sent to gaol for twelve months with a nine months non-parole period.

27 In this case the evidence of the complainant was that she had been subjected to violence over a considerable period of time. The complainant gave evidence that after the assault in April, 1996 she remained living with the appellant. They continued to live together until October, 1997 when the complainant said she was assaulted with a pick handle and that led to the arrest of the appellant and his being sent to gaol. Apparently while the appellant was in gaol, the complainant visited him on a regular basis. The gaol visitors book was tendered as Exhibit 2 illustrating frequent visits to the appellant by the complainant. The complainant accepted she visited him virtually every week. She said she did so because he needed to see his children and that he fooled her. She said that he convinced her the children needed a family with a mother and father and that after his release from gaol, they had a reconciliation. She said that he broke his promise when he came out of gaol and that is why she left him again and went to live in her own premises.

28 The history detailed by the complainant is one of a turbulent relationship involving violence. It is one where she became reconciled to the appellant on a number of occasions. She asserts the reconciliations were because of the children but whatever the reasons there appear to have been a number of reconciliations after episodes of violence where it can be assumed normal relationships resumed. Notwithstanding the appellant denied the act occurred, there was still a question for the jury in respect of count 3 as to whether she consented or not to an act of intercourse charged in that count on that day.

29 Undoubtedly, a significant amount of prejudice to the appellant occurred as a result of the introduction of material relating to the history of the relationship. Before considering that prejudice and whether a discretion should have been exercised to exclude the evidence under s135 or s137 of the Evidence Act, it is necessary to consider the admissibility of the material because, if the material were inadmissible, the question of its exclusion on any discretionary basis does not arise. The material was tendered not as tendency evidence. It was tendered as contextual evidence. It was tendered to demonstrate the context of the kidnapping charge, which was the first charge, and the act of sexual intercourse, which was the subject matter of the third charge, and it was tendered to show that although the complainant submitted to sexual intercourse, she did not do so willingly and the appellant knew there was no consent.

30 What the material disclosed, however, was that the relationship had been one where the complainant had willingly resumed a normal physical relationship with the appellant on a number of occasions, most recently after he had been released from custody. Her explanation that she had done so for the sake of the children and trusting his promises to reform, did not detract from the reality of her consent. This is quite a different situation from that described in R v Fordham (supra) where what was alleged was a continuous course of behaviour towards the complainant who was never consenting and therefore was not consenting to the act charged.

31 The allegation of the complainant that she had been kidnapped and forcibly held by the appellant for some weeks before the act of intercourse was undoubtedly part of the context. However, the jury acquitted the appellant of this charge of kidnapping no doubt because the evidence was that the complainant had gone shopping with the appellant’s mother during this time.

32 That squarely raises the question as to whether or not the earlier history between the parties was admissible as relationship evidence in this case. Gibb CJ in Perry v The Queen (1982) 150 CLR 580 reviewed the law as illuminated since Makin v Attorney-General (N.S.W.) (1894) AC 57 where it was said evidence of prior criminal acts could not be led unless it is relevant to an issue such as accident or another defence. The basis of exclusion, it was said, is not because the evidence is irrelevant but because it is unfairly prejudicial. Gibb CJ went on to say that the first thing to determine was the admissibility of the evidence and, in the context of a case dealing with similar fact evidence, noted:

“It is true that in deciding whether the evidence is admissible, questions of degree arise and that the judgment to be made is to some extent discretionary. It was said in Harris v Director of Public Prosecutions (1952) AC, at p 710, that evidence of similar facts, to be admissible, must have “a really material bearing” on the issues to be decided. The judgments in Reg. v Boardman show that there are degrees of relevance, and I respectfully agree with the statement of Lord Wilberforce that the evidence to be admissible must have “a strong degree of probative force”: Reg. v Boardman (1955) AC, at p 444; see also at pp 439, 452-453, 456”.

In this case the evidence revealed the nature of the earlier relationship as one of violence and abuse of the complainant punctuated by periods of relative harmony. It was not a history that led to the conclusion that on this particular occasion the complainant did not consent to the act of intercourse and the appellant knew she did not consent. The question of consent in this case was one to be answered on the basis of the complainant’s evidence about the events leading up to the day in question and her account of what happened.

33 It may be some of the material relating to the past relationship was admissible on one or more of the charges and in respect of specific issues. It was necessary, however, to identify that the evidence had a strong probative force as referred to in Perry v The Queen (supra) by Gibb CJ. It was also necessary to evaluate what evidence would be unfairly prejudicial in the terms of s135 of the Evidence Act and what evidence there was where the probative value was outweighed by the danger of unfair prejudice in accordance with s137 of the Evidence Act. Careful attention needed to be given to what, if any, relationship evidence was to be admitted. In my view, it is clear that the accumulation of the evidence of the two Court appearances of the appellant in relation to assaults in April, 1996 and October, 1997, the tendering of the statements of facts from those Court cases, the fact of the convictions, the calling of the prosecutors to testify and the evidence of the punishments imposed at those hearings were in combination matters which did not pass the test of admissibility. It was also a body of evidence which could not survive a proper application of either s135 or s137 of the Evidence Act. The question does not arise for this Court to determine as to what individual pieces of evidence in that accumulation of evidence might be admitted on a trial of a charge of sexual intercourse without consent. What is clear is that all of that material in an unedited form was inadmissible. In R v AN (2000) 117 A Crim R 176 Greg James J said:

“Further, some form of balance needs to be maintained between evidence relevant to the offence charged, and evidence introduced either as relationship evidence, or evidence of guilty passion (compare Hunt CJ at CL in Beserick at 522; 429). In Bradley (1989) 41 A Crim R 297, Shepherdson J said this (at 302):
“It is in my view not necessary that in every case the whole history of sexual activity between an accused person and the complainant be admitted in evidence. In some cases a trial judge may have to take care to limit that history to what is sufficient to enable the jury to set in its proper perspective and to understand the acts alleged to constitute a particular offence. In other words, in some cases the ‘full story’ … may have to be limited … In a case such as the present where there are quite a large number of instances of carnal knowledge alleged against the appellant prior to the first of the acts of alleged indecent dealing the prejudice to an accused person may be so great that the sheer number and weight of those instances may well overbear the jury in its consideration of the evidence in each of the three charges and prevent the jury from considering that evidence impartially.” “

34 The amount of prejudice engendered during the course of this trial by the introduction of this evidence was so overwhelming as to lead to a miscarriage of justice. Not only was all of that material presented during the trial but it was re-presented in summarised form in the summing-up. As a result of this material being tendered in the trial, a substantial amount of the cross-examination of both the complainant and the appellant related to that material. At the end of the day, the trial was significantly about the relationship between the parties prior to the date of the counts in the indictment. In my view, nothing the judge could say could eradicate such prejudice.

35 Although it has not been raised as a ground of appeal in this case, I note that the trial judge told the jury in relation to the complaint made to Lois Buttriss who lived 12 houses away “But if you accept that that complaint was made in that context of a weeping, upset person with a baby in the arms then you are entitled to have regard to it on the issue of whether or not you are satisfied beyond reasonable doubt there was a rape of the complainant.” No warning was given to the jury about the use of evidence of distress. In Regina v Ryan CCA (NSW) unreported 15 April, 1994, Mahoney JA with whom Gleeson CJ and Wood J agreed, said:

“If the facts of a case are such that the only reason why a woman would be apt to exhibit distress of sexual assault, ie, if other reasons for exhibiting distress such as physical assault, apprehension or the like did not exist, then the inference of sexual assault would be open. But if the evidence was such that there were another or other things present equally apt to produce such distress, then the inference that the distress was produced by sexual assault would not be open. I do not mean by this that the mere existence of other possible causes of distress negatives, without more, the possibility of such an inference. Given other possible causes of the distress, the question would remain whether in the circumstances the conclusion could be drawn that sexual assault was sufficiently more likely to be the cause of the distress. If that be so, then the mere existence of other possible causes of the distress would not mean that the inference was not open.
If it be concluded that the inference is open, it remains for the jury to determine whether, in the circumstances, the inference should be drawn. This will be affected by, amongst other things, the jury’s view of what are the circumstances in which sexual assault leads to distress of the relevant kind and whether the circumstances in the instant case are such. These are matters in which the jury must act upon its own experience of life. No doubt because of the uncertainties involved, it has been said to be proper that a jury be warned of, in effect, the uncertainties. This, I think, is at least in part the basis of cases such as R v Flannery (1969) VR 586 at 591 and R v Terrence Talbot (Court of Criminal Appeal, 29 March, 1979, unreported). Where sufficient doubt exists, the judge may fail in his duty to instruct the jury as to fact-finding if he does not draw to their attention the difficulties involved.”

See also Regina v Talbot, CCA (NSW) 29 March, 1979 unreported.

36 In this case there was a long history of problems in the relationship between the complainant and the appellant. Those problems included allegations of violence made by the complainant and arguments about custody of the children and access visits. It included arguments about relationships with other people and there was cross-examination about the fact that the complainant had told lies in support of applications for apprehended violence orders and assertions by her she had done so only at the instigation of the appellant. I believe in the circumstances of this case a warning to the jury was necessary about the evidence of distress if it was suggested it could be used in determining (in the words of the trial judge) there had been a “rape”.

37 If the appellant is to be placed on trial again, I should also note that in this case the trial judge identified for the jury the fact that the Crown case depended essentially on the evidence of one witness. Having done that, he did not go on to advise the jury in the customary terms recognised in R v Murray (1987) 11 NSWLR 12 that the evidence of that one witness “must be scrutinized with great care”. I believe that should have been done.

38 I would allow the appeal, quash the convictions and sentences on both counts and order a new trial.