Tasmania v R D P
[2009] TASSC 72
•25 February 2009
[2009] TASSC 72
CITATION: Tasmania v R D P [2009] TASSC 72
PARTIES: TASMANIA (STATE OF)
v
R D P
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 50/2007
DELIVERED ON: 25 February 2009
DELIVERED AT: Hobart
HEARING DATE: 4 December 2008
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – For particular purpose – Sexual offences – Relationship evidence – Evidence of previous non-consensual sexual acts and physical coercion – Relevance – Whether probative value outweighed by prejudicial effect.
Evidence Act 2001 (Tas), ss55, 137.
AN v R (2000) 117 A Crim R 176; Fordham v R (1997) 98 A Crim R 359; R v Toki(No 3) (2000) 116 A Crim R 536, applied.
Aust Dig Criminal Law [2788]
REPRESENTATION:
Counsel:
Crown: M S Wilson
Accused: E G Hughes
Solicitors:
Crown: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2009] TASSC 72
Number of paragraphs: 49
Serial No 72/2009
File No 50/2007
TASMANIA v R D P
REASONS FOR JUDGMENT PORTER J
25 February 2009
The issues
The accused has pleaded not guilty to one count of rape, the relevant particulars of which are that on or about 9 July 2006 he had vaginal sexual intercourse with "XY" ("the complainant") without her consent. For a period of about 14 months ending in June 2006, the accused and the complainant had been in a relationship, and lived together at various addresses, the last being in George Town.
The Crown has indicated that at the trial of the accused, it proposes to lead from the complainant, "relationship evidence"; that is, evidence of the nature of the relationship between the two persons, and evidence of two particular instances of sexual conduct, which evidence is said to be relevant to the facts in issue in the trial. This is a determination under the Criminal Code, s351A, of the admissibility of that evidence. The Crown has disavowed reliance on the evidence as tendency evidence within the meaning of the Evidence Act 2001 ("the Act"), s97. The questions are whether the evidence is relevant under the Act, s55, and if so, whether it must be excluded pursuant to s137.
On the hearing, the complainant gave evidence and was cross-examined. Additionally, I received evidence of a police interview of the accused on 10 July 2006. During the hearing, a further issue arose for determination. This was the admissibility of evidence directly and indirectly referring to a family violence order to which the accused was subject at the time of the alleged offence, and which had been taken out by Tasmania Police shortly beforehand, no doubt pursuant to the Family Violence Act 2004, s14. The same issues exist as to that evidence.
The complainant's evidence
The complainant has two children; a girl and a boy. The father of the girl is her ex-partner but there is doubt about the paternity of the boy. The accused is possibly the father. The complainant said that in the beginning her relationship with the accused was fine, but things turned sour towards the end. After that point she said that they used to argue all the time and the accused would verbally and physically abuse her. She described the verbal abuse in the following terms: "Just telling me that I'm scum and that no one will believe me if I told them what was happening and putting me down". In terms of physical abuse, she said that sometimes he would punch her and "… he'd hold me down and swear at me and stuff like that."
After the nature of the relationship changed, she said that sometimes they would have sex even though she did not want to. She let the accused know that by telling him that in so many words, "… or by trying to get him off me by pushing him or whatever means was necessary". She said that nothing happened when she did that and the accused would have sex with her. She said that sometimes on such occasions he would threaten to punch her and, at times, actually punch her to the face or the arm.
Evidence was given of one particular incident which occurred in December 2005. This was described in the following terms:
"Okay and what happened on that occasion?.....We went to bed and [the accused] said that he wanted to have sex but I didn't want to because I had to get up to the kids in the morning, I was wearing my Jim Beam pyjamas, I'm not sure how they come off but he tried to coerce me by kissing my neck and stuff and I was telling him I didn't want to have it but I just give into him because I knew that if I didn't I'd probably be harmed.
Okay so when you say you knew that you'd probably be harmed, what sort of harm were you thinking of at that time?.....Physical abuse.
And what were you having reference to when you thought he might harm you?.....Just previous experiences.
And which sort of previous experiences did you have in your mind when you gave in to him on that occasion?…..Just the physical abuse. Like, how he used to punch me in the stomach.
… On that occasion at George Town when – was the vaginal sexual intercourse?…..Yes, it was.
And did you speak to [the accused] about whether or not you had consented to that after he'd completed the act of sexual intercourse?…..Yes, I did.
And what happened on that occasion?…..He just shrugged it off and said no-one would believe me because I'm just a stupid little bitch.
And can you remember what it was you'd said to him?…..That'd I'd tell his mum or the police.
And did you tell him what you'd tell his mum or the police?…..Yes, that he raped me and he's assaulted me and I wanted to get out.
And what did you believe when he said to you that no-one would believe you and you're a stupid little bitch?…..I believed him.
All right. Were there other occasions during your relationship when [the accused] had vaginal sexual intercourse with you but you didn't want to?…..There were occasions but none that I can recall at the moment."
In cross-examination about this incident, the complainant agreed that she had had an argument earlier in the evening with the accused, and that she then further argued with the accused when he wanted to have sex with her. She agreed that he tried to "get her in the mood". In answer to the proposition that she agreed to have sexual intercourse on that occasion because of him nagging and pestering her, she said: "Yeah, I give in" [sic]. The following exchange then occurred:
"You gave in to the nagging and pestering?…..Yeah.
Okay. It was just that in your evidence-in-chief, you described there may have been a specific threat or a use of force, so, that's not the case on this occasion?…..No.
No. So this occasion is not a situation of him threatening to strike you or threatening to hold you down or anything like that, it was just that he pestered and nagged and pestered and nagged and you just gave into him?.....Yes."
As to the general nature of the relationship, the complainant agreed that sometimes in response to the accused's violence towards her, she would slap or strike him and sometimes kick him. She agreed that the overwhelming majority of sexual acts between the two were consensual.
The complainant went on to give evidence of an incident which had occurred earlier, in January 2005. It was described in the following terms:
"We went to bed one night and [the accused] wanted to have sex but I said no. So he said 'just let me play with your bum for a bit'.
I'll just stop you for a minute. Was there any particular reason why you didn't want to have sex on that night?.....I was tired, and I had my period.
Sorry, I interrupted you, so he wanted to have sex, you had your period and didn't, and wanted happened next?.....He asked to play with my bum for a bit, and I said 'yep, but don't put it in there'.
And what were you referring to when you said 'don't put it in there'?.....Don't put his penis in there.
Okay, so what did he do after you said that?.....He just played around for a bit.
Sorry, I don't mean to interrupt you but what do you mean by 'played around for a bit'?.....Just, he was rubbing his penis around my bum and when he got aroused, he just thrust it in there and held me in place with his arms so I couldn't move.
What happened when he did thrust his penis into your bottom?.....It hurt. I must have blacked out because I don't remember much but, like, waking up and feeling like a real bad burning, and so I went to the toilet. I was bleeding for about a week afterwards.
Okay, can you describe what it felt like, apart from the pain, or the burning?.....It felt like my stomach was going to fall out."
The complainant said that she screamed out in pain when penetration occurred, that the accused ejaculated and that he was holding onto her during this time. She thought she might have blacked out. She said that she was on her side when he penetrated her and when she "came to", her head was stuck in between the mattress and the bed head, with her body still on the side. She said that it was very painful when she went to the toilet for about a week afterwards, and that she had spoken to the accused about going to the doctor, but he had said that she was "not allowed to".
In cross-examination as to this incident, the complainant agreed that penetration "was not associated with any comment or threat or any verbal expression". She said that she was lying on her side with the accused lying behind, facing her. At the time of penetration, the accused was holding her two arms with his so that she could not move them. She was held until the accused ejaculated, at which time he released her. She agreed that the accused apologised after she had made it clear to him that he had hurt her as a result of what he had done.
The evidence of the offence
The complainant's evidence was that just after her relationship with the accused ended, she moved to her grandfather's house. Also living in that house were her brother, her two children and her ex-partner. She described an incident in which she and the former partner were in bed "just ready to go to sleep and [the accused] walked in and jumped to conclusions. I left the room and I heard raised voices. I didn't really hear what was said. But my brother called the police and when the police arrived they issued him with a family violence order".
Shortly after this incident, she went to the address in George Town to pick up the rest of her belongings. She did not have a key and had made arrangements with a friend of the accused (with whom he was staying) to get access to the house on 9 July. She said that she told the friend ("TH") that she wanted him there with the keys so that she could be let in, but that she did not want the accused there. When she went to the house, her understanding was that the accused was "not supposed to be there". She drove to George Town with her brother and her 10 month old son and met TH at the house. Some belongings were loaded into a van and the two adult males left. She said that she went back inside to check if she had left anything and to go to the toilet. She had her son with her. As she was coming out of the toilet, she went to the bathroom to wash her hands and found the accused standing in the bathroom. She told him that he was not supposed to be there and brushed past him in order to wash her hands.
As related in evidence-in-chief, the order of events is a little unclear, but the essential features of what then happened are as follows:
· The child had gone into the kitchen leaving the complainant and the accused in the bathroom. She sat on the edge of the bath while the accused spoke to her about the end of the relationship. He approached her saying he wanted to talk, but then lifted her up and put her on the bathroom floor. She asked the accused what he was doing and told him that she did not want to do anything.
· At that point she looked up and saw that there was a knife on the hand basin which she had not seen before. She asked the accused what the knife was for. He replied that if she moved she would find out.
· The accused then removed her right shoe and the right leg of her trousers. The complainant asked him what he was doing and told him that she did not want to have sex. She kicked him in the arm. The accused then put his face close to her vagina and performed oral sex. She kicked him in the leg. The accused then said "I'm going to give you an excuse to charge me with rape" and grabbed her legs. He then undid his fly and started to masturbate.
· At this point the complainant had her legs crossed but the accused tried to uncross them. She had her hands between her legs. She was screaming out for help. At about this time, as a result of a demand from the accused, she lifted up her top to expose her breasts. She did that because she was scared that he might hurt her.
· The accused then said "Uncross your legs or I'll stick it in your arse". Not surprisingly the complainant took that to mean that he intended to penetrate her anus with his penis. She thought that he would do it, and was scared that he would, because given her past experience with him, she knew how much it had hurt her. She uncrossed her legs, at which time the accused penetrated her vagina with his penis.
· After about four or five thrusts the accused ejaculated. He then said "I'm sorry but thank you." The child was in the room at that time. There was discussion about the accused doing what he had done in front of the child. The accused said that "He's got to learn some time". The complainant dressed and went to the lounge room with the child, taking the knife with her.
In cross-examination, the complainant was firstly taken to the incident at her grandfather's home. She agreed that it was her brother who called the police in relation to the accused's presence, and that it was as a result of the police attendance that the accused was made the subject of "a police family violence order" relating to her. In relation to the organisation to go to the George Town house, the complainant denied that she took the child as part of an arrangement for the accused to see him. She said she was surprised to see the accused there. As to the alleged offence, the complainant said that she first noticed the knife after the accused had removed her trousers. She said that she had exposed her breasts before the oral sex, but after she had told the accused she did not want to have sex with him. She agreed that she was yelling or shouting out for help and that this was "pretty much" constantly throughout the course of the incident.
She agreed that she kicked him once and then kicked out at him again when he put his face to her vagina. The complainant said that it was being made "abundantly clear" to the accused that she was not consenting to what was happening, and that she was using force to try and prevent him from engaging in sexual acts with her. She said that the accused was holding her legs with his right hand whilst masturbating, and then told her to uncross her legs, at which time he was trying to prise them apart. She resisted and fought back. She said that she uncrossed her legs "Because he said he was going to stick it in my arse and I didn't want that."
She agreed that she took possession of the knife afterwards and kept it with her when they went into the lounge room. She also agreed that she later went outside and had an argument with the accused in the driveway, during the course of which she punched him once in the head.
The police interview
The accused was asked about the circumstances leading to the making of the police family violence order ("the order"). He said he went to where the complainant was living, at her request. He had a knife with him. He walked into the house and in a bedroom found the complainant and her ex-partner naked. There were verbal exchanges. Essentially, he asked the complainant what was going on. He admitted that at one point he intended to stab the male person, but a child appeared. He threw the knife on the bed, shortly after which the police arrived.
The accused was asked about the events which led to him being at the house at George Town on 9 July 2006, and was taken through, in some detail, the events which occurred in the bathroom. It would appear that the starting point is a text message from TH to the complainant suggesting that she should come down the next day to get her belongings. The accused said the complainant then telephoned him in response to that message. The details of that telephone conversation were neither sought nor provided. There were further text messages between the complainant and TH the next day, firstly saying that she had a vehicle and would go that day, and then a later message advising that she was on her way.
The accused was asked "In that message to [T], did she ask that you not be present at the house". He answered "No. She wanted me there to see little fellow" [sic]. The accused went on to say that this was not in the message, but he knew that was the complainant's state of mind because when TH and the complainant's brother were about to remove her broken down car, TH gave the complainant the option of whether she would stay there with the accused or just leave the child with him. According to the accused she said "You go. I'll stay here with [N] and [the accused]". The accused later confirmed that TH had asked the complainant whether she wanted to stay or go with them, and that she had said she would stay with the accused and the child. He was asked why he thought TH asked the complainant that question, and he answered "Cause he knows all about the order and we're not suppose to be seen together anyway … unless it's in contact with the little, little fellow. That's the only reason we're allowed contact each other" [sic].
As indicated, after the complainant's belongings had been loaded into a van, the two adult males were involved in towing away the complainant's vehicle, leaving the accused, the complainant and the child alone in the house. The accused said that they were sitting on the kitchen bench talking. He asked if it was alright to give her a kiss and a cuddle to which she said, "Yep, that's okay". His answer continued:
"So we did that and then we, I picked her up, like she wrapped her arms around me, her legs around me waist, walked through all the room [sic] and she was giving me kisses in the rooms, went to the bathroom. Was in there for a bit and she's still kissing me some more and she started lifting her top up, for myself I thought yeah this is alright. Started kissing her chest area, ended up between her legs, yeah she had her pants off by then and then yeah the sexual intercourse happened after that."
He said that they were both involved in taking her clothes off. He agreed that oral sex occurred, and that sexual intercourse took place. He was asked whether she initiated sex, or he did. He answered "I'm not sure what she thinks or what she thought". The next questions and answers are as follows:
"Q Alright. Did you feel like she wanted to have sexual intercourse with you.
AAt the time, yes otherwise she wouldn't have, she would have jobbed me before hand … she would have let me have it before I even got to her pants.
QAt any point did she try and stop you taking her jeans or pants off.
ANo.
QDid she try and cross her legs or prevent you penetrating.
ANo."
The accused was asked questions about previous incidents of sexual intercourse. He denied having "ever forcibly had sex with [her] in the past, raped her". The interview continues:
"Q Definitely not.
ANo, maybe once when we was both pissed but that I can't remember.
ARight
QHave you every had sex with her at times which has been forceful sex or sex where you're sort of unsure whether it's clear she wants that or not.
AProbably once. That was after a … party. I was wrecked. I didn't know what I was doing at the time, cause the next day she said something about it. I apologised to her because I didn't know what I was doing. That's as far as, that's only once I know."
The questioning later returned to this incident. The accused said he could not remember anything about it; "whether I did do it at the time or I didn't". He thought the incident was in April on the complainant's birthday and he knew that they had had sex that day, but effectively rejected that he had no real recollection of the actual events. He confirmed that the next day the complainant had gone "off at him", again saying that he had raped her again.
The accused was told that the complainant had indicated that in the past he had raped her. He was asked whether that rang a bell with him. He said that there was "only one that I could think of that she could pass as pretty much rape was we was both intending to have sex, we were both having sex at the time" [sic]. He went on to describe that he and the complainant were having sex with her on her hands and knees. He described consensual sex which the complainant was enjoying. He said that the complainant "moved the wrong way" and he accidentally penetrated her anus. He said that she "started screaming her head off" so he stopped and apologised. He said he gave her a cuddle and said that he did not mean it. "She didn't believe me but at that time we was arguing flat out every day".
The categories of evidence
I will leave to one side for the moment the issue of the police family violence order. As I noted at the outset, the evidence the subject of this determination is evidence said to be admissible to prove aspects of the nature of the relationship between the complainant and the accused, such evidence being relevant to the facts in issue at the trial. As can be seen, the complainant's evidence relates to general physical abuse, to physical violence used to coerce her into sexual intercourse, associated with which is one incident of non-consensual vaginal intercourse in December 2005 (the physical abuse in the sexual context not being involved on that occasion, but being relevant to the complainant's state of mind), and lastly, to the act of anal intercourse in January 2005.
The principles to be applied
In AN v R (2000) 117 A Crim R 176, Kirby J at 181 – 182 said:
"[36] Evidence is admissible to prove the relationship between the complainant and the accused, where an understanding of that relationship is important to the determination of guilt. Such evidence serves two purposes. The first is to explain what happened, and why it happened. The second is to furnish the context within which the allegations against the accused may be examined.
[37] Let me deal with each of these purposes in somewhat more detail. The first justification for the reception of relationship evidence is that it furnishes an explanation for the conduct of the accused. …
…
[40] In the context of sexual offences, McHugh J made the following comment in Harriman [(1989) 167 CLR 590] at 631; …:
'Likewise in sexual cases, evidence of previous acts of misconduct by the accused in relation to the complainant will usually be admissible because it tends to prove why or how on the occasion in question the offence occurred in the circumstances alleged. In Etherington (1982) 32 SASR 230, evidence of previous acts of sexual intercourse and indecent assault by the accused on the complainant was rightly admitted because it served "to explain why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged" (Etherington at 235)'."
His Honour went on to consider whether there were limits to the admissibility of such evidence. It was noted that in terms of proximity in time, it was valid to inquire whether the events were too remote from the events which were the subject of the charge. His Honour later turned to further questions, as follows:
"[48] 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 [(1993) 30 NSWLR 510] 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.'
[49] Finally, the generality of evidence concerning relationship, on one view, may render it inadmissible. In Gipp [(1998) 194 CLR 106] Gaudron J said this (at 112-113; 303):
'General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as "similar fact" or "propensity" evidence. And in this case, there was no feature of the kind present in Ball ([1911] AC 47; (1910) 6 Cr App R, 31) that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible.'
[50] Callinan J was of a similar view (at 168-169; 349-351). However, McHugh and Hayne JJ saw such evidence as unexceptional, often reflecting choices made by the advocate appearing for the accused."
Earlier, in Fordham v R (1997) 98 A Crim R 359, and of particular relevance to this case, Howie AJ said at 367:
"Of course in many cases the fact that an accused was on occasions physically violent to a particular complainant may have little or no relevance to the issue of whether the complainant consented to a particular act of intercourse or whether the accused knew she was not consenting. But in this particular case the alleged history of physical violence by the appellant toward the complainant was an integral part of their relationship and indispensable to a proper consideration of the atmosphere in which the particular acts of intercourse alleged in the indictment took place. 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."
Lastly, I note the observation of Howie J in R v Toki(No 3) (2000) 116 A Crim R 536 at 540 [24]:
"[24] Evidence of the relationship between the accused and another person can be admissible in order to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time: Wilson v R [(1970) 123 CLR 344] at 399. The evidence is admitted not simply because it describes the relationship of the parties, but because statements or acts of the parties occurring within the relationship are relevant to the issues before the jury."
To be relevant and admissible under the Act, evidence must be such that "if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding"; s55(1). The ways in which evidence such as this may be relevant, and so admissible, is set out in the above authorities.
The absence of consent is an ingredient of the crime of rape. "Consent" is defined in the Code, s2A, as (unless the contrary intention appears), "free agreement". Section 2A(2) sets out, without limiting the meaning of free agreement, a number of factual scenarios in which a person will not be said to have freely agreed to an act. They include not saying or doing anything to communicate consent, agreeing or submitting because of a reasonable fear of force, and agreeing or submitting because of a threat of any kind against the person or another person; s2A(2)(a), (b) and (c). Additionally, counsel for the accused foreshadowed raising in this trial, the defence of mistake of fact under s14 of the Code.
The admissibility of the relationship evidence under s55
Counsel for the accused submitted that the circumstances of the alleged offence spoke for themselves, and that no background or relationship evidence was required to explain the context in which the offence occurred or the behaviour of the complainant. It was said that standing alone, the complainant's evidence as to the incident clearly showed that she was not a willing participant and did not consent to the act of intercourse. She was loudly protesting and, at least for a time, physically resisting him by kicking and struggling. This was not a case, it was said, of mere acquiescence due to previous physical violence, and the threat to penetrate the complainant anally did not require evidence of the previous incident for a jury to properly understand that such a threat may be sufficient to cause compliance. In relation to the earlier act of alleged non-consensual vaginal intercourse, counsel submitted that the effect of the complainant's evidence was that she had relented due to the accused's "nagging and pestering", and that as there was no evidence of violence or threat of violence associated with this incident, such evidence was irrelevant to the issues in the rape trial.
In my judgment, the evidence of the complainant as to the relationship, with the exception of the evidence of general physical and verbal abuse unconnected with sexual activity (as referred to in par4 above) is admissible. In general terms, the whole of the evidence would permit the jury more readily to understand and assess the actions of both the complainant and the accused, and the meaning to the complainant of things said by the accused, during the course of events in the house at George Town.
First, the complainant's evidence that on previous occasions, after making it clear to the accused that she did not want to have sex, he secured her acquiescence by actual or threatened punches, is relevant to the jury's assessment of what occurred between the two persons. I include in this category, the evidence of the particular incident described. The whole of the complainant's evidence must be taken into account. Although she agreed that she had relented due to nagging and pestering, underlying the act of relenting was a fear of physical harm as had previously occurred.
I think this category of evidence to be relevant for the following reasons. The complainant may be said to have been somewhat compliant in relation to the oral sex, although after a brief time it would seem she did kick the accused in the leg. Shortly before this, the complainant said she exposed her breasts on demand from the accused, because of her fear of being physically hurt. More particularly, although it occurred after a more specific threat with which I will deal in a moment, it might be thought that the complainant was ultimately acquiescent immediately before penetration occurred. The evidence may serve to explain this. The evidence also puts in its proper context the accused's statement as to giving the complainant an excuse for charging him with rape. Although this might be capable of being understood in isolation, it is far more readily understood with an appreciation of the earlier incident after which the complainant said that she would complain of rape, but was told by the accused that she was "a stupid little bitch" and that no one would believe her.
Secondly, the evidence of the previous anal penetration is relevant to the jury's understanding of why it was that the complainant uncrossed her legs immediately prior to vaginal penetration. The accused had threatened to penetrate her anally. Without an understanding of the earlier incident and the high level of pain and discomfort which the complainant suffered as a consequence, an understanding of the complainant's actions would be quite incomplete. This evidence puts the threat in its proper context. I do not think it really matters whether the earlier incident of anal penetration by the accused was intentional, or accidental as he claimed to the police. The facts remain that it was very traumatic for the complainant, and that she was most fearful of it happening again.
Exclusion under s137
Under this section, the court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to an accused. In my judgment the evidence has not insignificant probative value as to the issues of consent, and whether the accused was mistaken as to the complainant's consent. Counsel for the accused submitted that the evidence was clearly prejudicial in that there is a real likelihood of its misuse as evidence of bad character, and a propensity or tendency to behave in a certain way. Generally, it was said, the evidence was "very prejudicial".
As Howie J pointed out in Toki's case (above) at 547 [78]:
"There is always a risk that, when such evidence as the Crown seeks to adduce in this case is placed before the jury, it may be misused by them either to raise the general disposition of the accused to acts of violence or to lead them on an improper line of reasoning to find the accused guilty of the offence charged. The risk of such misuse will in some cases be enough to require that the evidence be rejected where its relevance or weight is not great in light of the issues before the jury. Generally the likelihood of misuse will be curtailed, if not eliminated, by appropriate directions to the jury."
I do not regard the probative value of the relevant evidence as slight. As to the balancing exercise, it must be noted that the type of prejudice referred to in the section is "unfair" prejudice, and not prejudice in the sense of making the Crown case more likely, or having a detrimental effect on the accused's defence; Papakosmas v R (1999) 196 CLR 297 at 325 [91], Toki (above) at 548 [79]. Evidence would have an unfair prejudicial effect if it created an unacceptable risk that the jury would be distracted from its task, and may use the evidence to make a decision on an improper basis, or on a basis logically unconnected with the issues; W v R (2006) 16 Tas R 1 at 43 [124]. Consideration also needs to be given as to what prejudice might be caused by the accused's explanation for the evidence; R v Cook [2004] NSWCCA 52 at [37]. In this respect, I have regard to the explanations set out in the police interview to which I have earlier referred.
In relation to the possible use of the evidence as evidence of bad character and propensity, no doubt the judge having conduct of the trial will comply with the obligation to give appropriate directions; BRS v R (1997) 192 CLR 275. Uncomplicated and appropriate directions to the jury as to the proper use of the evidence could be readily drafted. In that event, I think the risk of misuse of the evidence by the jury is negligible. In my judgment, taking all matters into account, there is no warrant to refuse to admit the evidence pursuant to s137.
The evidence of the police family violence order
The arguments as to the admissibility of this evidence were put on a limited basis. That may be understandable given the rather oblique way in which the issue arose. Counsel for the Crown submitted that evidence of the general circumstances surrounding the making of the order was admissible as being necessary to give context to the statement by the complainant to the accused when she found him in the bathroom in the house at George Town; viz, "You're not supposed to be here". Counsel for the accused submitted that such evidence could be explained by the complainant's statement to the accused's brother that she did not want the accused at the house. Evidence of the order, it was said, was not needed to explain the comment.
Were the evidence to be confined to that issue, I would be inclined to accept the submission made on behalf of the accused. Even if the evidence were confined to a very brief reference to the incident and the fact that the order was taken out by a police officer, as distinct from any of the persons involved, I would be disposed to think that its probative value was minimal at best, and outweighed by what I would see to be unfair prejudice.
However, it seems to me that the evidence is relevant on a broader basis. Plainly enough, there is a dispute between the complainant and the accused as to her attitude to him being at the George Town house. From the Crown papers with which I was supplied, it can be reasonably anticipated that TH will give evidence at the trial concerning events at the George Town house. Part of his evidence relates to the arrangements made to go there. It can be fairly anticipated that he will say that the complainant asked him to take the accused to the George Town house so that she could remove some belongings. This is of course directly contrary to the complainant's evidence.
To return to the Act s55, for evidence to be relevant, it must (paraphrasing generally) relate to a fact in issue in the proceeding. I have already referred to the ingredients of the offence charged and defences raised. In relation to those ultimate issues, there will "often be many issues about facts relevant to facts in issue", which are themselves facts in issue within the meaning of s55; Smith v R (2001) 207 CLR 650 at 654 [7]. "Any fact upon which the prosecution relies to establish the offence charged is a fact in issue, even where it is not disputed by the accused"; R v Fletcher (2005) 156 A Crim R 308 per Simpson J at 319 [49].
In his interview with the police, the accused specifically maintained that the complainant fully reciprocated his advances and that the sex was consensual. The fact of whether or not the complainant wanted the accused to be at the house may be relevant to an assessment of the issues of her consent to the act of sexual intercourse, and of mistake of fact. The existence of the order may in turn be relevant to the question of whether the complainant told TH that she wanted the accused there ,or asked for him to be there. The existence of the order might be a relevant factor in the jury's consideration of what it was that she said to TH, both in making the arrangements to be at the house, and at the house.
I could not say that this evidence has a high level of probative value, but on the other hand I would not describe it as of little weight. In order to minimise its prejudicial effect, the evidence would have to be limited to a fair description of the incident (not unlike that given by the complainant in this hearing), and the simple fact of the order having been taken out by a police officer. The record of the interview would also have to be suitably edited to remove the detail of the incident, although other references to the order could of course remain. Here again, appropriate directions could, in my view, be drafted as to the use to which this evidence can be properly put. I would admit the evidence in the form and on the basis I have outlined.
Having said that, however, it may be that given the way in which the issue arose and the scope of the arguments that were put as to the admissibility of the evidence, this may be a matter which, at an appropriate time, should be further canvassed with the judge who has the conduct of the trial.
Determination
I would therefore rule in accordance with these reasons.
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