Roach v The Queen [2011] HCA 12 4 May 2011 B41/2010
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
M J Byrne QC with H C Fong and C W Heaton for the appellant (instructed by Legal Aid Queensland)
A W Moynihan SC with A D Anderson for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Roach v The Queen
Criminal law – Evidence – Propensity evidence – Admissibility and relevance – Where appellant charged with assault occasioning bodily harm – Where trial judge admitted evidence of other assaults by appellant upon complainant during their relationship pursuant to s 132B of Evidence Act 1977 (Q) ("Act") making admissible relevant evidence of history of domestic relationship – Where s 130 of Act preserved trial judge's discretion to exclude evidence where admission would be unfair to accused – Whether rule in Pfennig v The Queen (1995) 182 CLR 461 to be applied in determining admissibility under s 132B or exercising discretion under s 130 – If evidence admitted, whether jury ought to have been directed they could not rely upon evidence unless satisfied of its truth beyond reasonable doubt.
Words and phrases – "domestic violence", "prejudicial", "probative", "propensity", "relationship evidence", "unfairness".
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ. The appellant was convicted by a jury of one count of assault occasioning bodily harm[1], following a trial in the District Court of Queensland. The appellant and the complainant had been in a sexual relationship for some two and a half years prior to the alleged assault, although the relationship was intermittent. For part of that period the appellant was the complainant's carer. The complainant suffered from a number of conditions, including cirrhosis of the liver, drug dependence and depression.
[1]Criminal Code (Q), Ch 30, s 339.
The appellant and the complainant were also somewhat itinerant. At the time of the alleged offence, April 2006, the complainant lived alone in a unit in the suburb of New Farm in Brisbane. The appellant was visiting her when the alleged offence occurred.
The circumstances of the offence, as given in evidence by the complainant and summarised by Holmes JA in the Court of Appeal, were as follows[2]:
"At 12.45 am on the morning of 13 April, the appellant telephoned the complainant and asked if he could visit her. She agreed, and he arrived very promptly. When she admitted him, he went straight to the refrigerator to get himself a drink. She remonstrated with him, saying that he ought not to help himself before he was invited to do so. The appellant, on the complainant's account, reacted angrily, punching her face and arms with a closed fist and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Roach v The Queen [2011] HCA 12
Case
[2011] HCA 12
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by the appellant, Roach, against his conviction for assault occasioning bodily harm. The central dispute revolved around the admissibility of evidence detailing a history of assaults by the appellant upon the complainant during their relationship. This evidence was admitted at trial pursuant to section 132B of the *Evidence Act 1977* (Qld), which makes relevant evidence of the history of a domestic relationship admissible in criminal proceedings. The High Court of Australia was required to determine whether the rule established in *Pfennig v The Queen* was applicable to the admissibility of evidence under section 132B, or to the exercise of the trial judge's discretion under section 130 of the *Evidence Act 1977* (Qld) to exclude unfairly prejudicial evidence.
The High Court considered the operation of sections 132B and 130 of the *Evidence Act 1977* (Qld). Section 132B provides for the admissibility of relevant evidence of the history of a domestic relationship in certain criminal proceedings, including assault occasioning bodily harm. Section 130 preserves the court's general discretion to exclude evidence if its admission would be unfair to the accused. The appellant argued that the *Pfennig* rule, which sets a high threshold for the admissibility of propensity evidence, should have been applied.
The Court reasoned that section 132B of the *Evidence Act 1977* (Qld) governs the admissibility of evidence of domestic violence, and that the sole criterion for admissibility under this section is relevance. Therefore, the stringent test for propensity evidence established in *Pfennig* was not applicable to the initial determination of admissibility under section 132B. The Court affirmed that while the evidence admitted was indeed propensity evidence, its admissibility was secured by section 132B, which specifically permits such evidence in the context of domestic relationships. The Court also considered the discretion under section 130, but found no error in its exercise by the trial judge. The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
On appeal to this Court the appellant advanced the same arguments.The Evidence Act 1977 provisions Although the appellant's submissions in this Court focussed upon the decision in Pfennig, the correct starting point is the provisions of the Evidence Act 1977 which govern the admissibility of evidence of the kind here in question and provide for a discretion to exclude it. Section 132B of the Evidence Act 1977 is entitled "Evidence of domestic violence". It provides:"(1)This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 30.(2)Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding."The offence of assault occasioning bodily harm appears in Ch 30 of the Criminal Code and s 132B of the Evidence Act 1977 therefore applies to a proceeding for that offence. The section has no application to sexual offences against children or to rape and other sexual assaults. These offences are dealt with in, respectively, Chs 22 and 32 of the Criminal Code. Section 132B was inserted by s 122 of the Criminal Law Amendment Act 1997 (Q) on the motion of the Shadow Attorney-General, who spoke of concerns that the criminal justice system had unfairly discriminated against women[5]. The example he gave was of a case involving a woman killing her husband and the rejection of her plea of provocation at trial[6], despite a lengthy history of violence on the part of her husband towards her. In the debate which followed, the Attorney-General questioned the need for the provision, on the basis that the courts had already accepted that evidence of the kind to which it was directed was admissible if relevant[7]. It is of some interest to observe that the Attorney-General referred[8], in this regard, to the decision in Wilson v The Queen[9], to which reference will be made later in these reasons.[5]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 25 March 1997 at 824.[6]Corrected on appeal: The Queen v R (1981) 28 SASR 321.[7]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1997 at 868-869.[8]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1997 at 868-869.[9](1970) 123 CLR 334; [1970] HCA 17. Section 132A was inserted at the same time as s 132B. It deals expressly with similar fact evidence, requiring that when such evidence has particular probative value it must not be ruled inadmissible on the ground that it may be the result of collusion. The section was no doubt introduced as a response to Hoch v The Queen[10]. It does not assume particular relevance on this appeal.[10](1988) 165 CLR 292; [1988] HCA 50. Although the words of s 132B suggest that it alone governs the admissibility of evidence of the kind with which this appeal is concerned, s 130 contains reference to the power of a trial judge to exclude evidence in criminal proceedings. That section provides:"Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."Relevance, admissibility and exclusionary rules
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ
HEYDON J
The evidence which was led consequent upon the ruling was as follows. Shortly after the commencement of the relationship between the complainant and the appellant, in early 2004, the appellant became angry with the complainant. He reached into his pocket and threw a handful of "silver" at her, hitting her on the forehead and causing her to bleed. In the months following that incident, the appellant would frequently punch the complainant causing bruises or marks. As those injuries were nearly healed, the appellant would repeat his assaults. At a point about nine months into the relationship the appellant caused the first injury to the complainant's arm. The appellant and the complainant were then living together. The complainant had returned to their home after undertaking an errand for the appellant to obtain some money from an acquaintance. The appellant was intoxicated. On this occasion the appellant punched the complainant in the face many times and then hit her in the back and she fell to the floor, injuring her left arm. She required surgery, including reconstruction of her shoulder, as a consequence of these injuries. The complainant said that in 2005 the appellant assaulted her many times, by punching her in the face and in the arms. She said that "if [the appellant] had more than that one too many Chardonnays, I always copped a flogging."The decision of the Court of Appeal In the Court of Appeal it was not disputed by the appellant that the evidence in question qualified as part of the history of the relationship between the complainant and the appellant. The Court did not accept the appellant's submission that the rule in Pfennig applied to the admissibility of the evidence. Holmes JA, with whom Keane JA and A Lyons J agreed, held that the sole test for the admissibility of such evidence under s 132B is relevance and the Pfennig test has no application[22]. It followed, in her Honour's view, that the trial judge had not been required to apply that test, nor to have regard to the judgments in HML v The Queen[23] dealing with the application of the test.[22]R v Roach [2009] QCA 360 at [14].[23]R v Roach [2009] QCA 360 at [14]. Although rejecting the test for the admissibility of propensity evidence propounded in Pfennig as unnecessary to evidence falling within s 132B, Holmes JA characterised the evidence in question as propensity evidence and held it to be relevant on that basis. Her Honour rejected the characterisation of the evidence as "relationship" evidence. It was, in her Honour's view, in reality propensity evidence, but admissible as such under s 132B[24]. Her Honour said[25]:"In seeking to have the evidence admitted, the Crown spoke in terms of needing it to provide context for the incident and to ensure that the jury was not considering the complainant's account in a vacuum. Although it disclaimed any reliance on propensity, in reality, the way in which it sought to give that context and to fill that vacuum was by adducing evidence of the appellant's disposition to aggression against the complainant. The bland references to 'context' or 'relationship' evidence were not incorrect, but they offered nothing to explain how the evidence was probative; they failed to acknowledge the propensity reasoning underlying the proposed use of the evidence."[24]R v Roach [2009] QCA 360 at [19]-[23].[25]R v Roach [2009] QCA 360 at [19].
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ,
HEYDON J