The King v Hennessy
[2023] NTSC 67
•1 August 2023
CITATION:The King v Hennessy [2023] NTSC 67
PARTIES:THE KING
v
HENNESSY, Beau
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22217421 & 22217415
DELIVERED: 1 August 2023
HEARING DATES: 31 May 2023
JUDGMENT OF: Blokland J
CATCHWORDS:
EVIDENCE – Tendency evidence – multiple complainants – tendency to commit acts of physical violence against domestic partners – tendency to have sexual intercourse with domestic partners without consent – significant probative value – as tendency evidence which is cross-admissible between complainants – EVIDENCE – alleged tendencies two and four admitted – if jury rely on allegations which form the basis of the tendency are charged acts – must be proven beyond reasonable doubt – repetitive allegations – overlap of particulars of alleged tendencies –danger of unfair prejudice when tendency drawn from charged acts only – tendency evidence drawn from allegations made by same complainant not admissible – alleged tendencies one and three not permitted.
EVIDENCE – other misconduct – uncharged acts admissible with appropriate directions as context evidence
CRIMINAL PROCEDURE – whether presumption of joint indictment and trial discharged given time elapsed between charges – no severance of the indictment where strong connection between charges and evidence – presumption of joint indictment and trial not discharged.
Criminal Code ss 188(1), 188(2), 192(3), 341A
Evidence (National Uniform Legislation)Act 2011 (NT) ss 94(5), 97(1), 101(2), 137, 138.Dempsey v The Queen [2019] VSCA 224; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Sutton v The Queen (1984) 152 CLR 528, referred to.
REPRESENTATION:
Counsel:
Accused:M Thomas
Prosecution: D Mandie
Solicitors:
Accused:Darwin Family Law
Prosecution: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Blo2310
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Hennessy [2023] NTSC 67
No. 22217421, 22217415
BETWEEN:
THE KING
Appellant
AND:
BEAU HENNESSY
Respondent
CORAM: BLOKLAND J
RULING ON APPLICATION TO ADMIT TENDENCY EVIDENCE
(Delivered 1 August 2023)
The accused is to stand trial on seven counts on indictment. The essential particulars are as follows;
Count 1: Between 11 July and 31 July 2014, sexual intercourse without consent contrary to s 192(3) of the Criminal Code.
(File 22217421. Complainant: DS)
Count 2: Between 11 July 2014 and 16 Feb 2015, assault with circumstances of aggravation, contrary to s 188(1) and (2)(a),(b) & (d) of the Criminal Code.
(File 22217421. Complainant: DS)
Count 3: Om 22 May 2015, assault with circumstances of aggravation, contrary to s 188(1) and (2)(a),(b), & (d) of the Criminal Code.File 22217421. Complainant: DS)
Count 4: On 20 September 2016, assault with circumstances of aggravation, contrary to s 188(1) and (2)(a),(b),(d) and (m) of the Criminal Code.
(File 22217421. Complainant: DS)
Count 5:On 21 September 2019, sexual intercourse without consent, contrary to s 192(3) of the Criminal Code.
(File 22217415. Complainant: MC)
Count 6: On 2 January 2022, sexual intercourse without consent, contrary to s 192(3) of the Criminal Code.
(File 22217415. Complainant: MC)
Count 7: On 2 January 2022, sexual intercourse without consent, contrary to s 192(3) of the Criminal Code.
(File 2217415. Complainant: MC).
In brief, the Crown case is as follows:
The accused and DS, the complainant for counts 1-4, were in a domestic relationship from May 2013 to September 2016. During that time, the conduct forming the basis of those counts and other uncharged misconduct took place.
DS became pregnant with their son, K in November 2013. During that time the accused became controlling and jealous toward DS, controlling her use of her mobile phone and abusing her if she stayed out too long.
In July 2014, around two weeks after the birth of K, the accused commenced offending conduct which formed the basis of the charges.
Count 1, a charge of sexual intercourse without consent involved the accused pestering DS for sexual intercourse. This conduct took place over her protests, given she had recently given birth and had related injuries. This was despite a prior agreement to be gentle and to stop when she said it was enough. Nevertheless, he continued to sexually penetrate her aggressively, despite her crying and saying ‘enough’.
After the birth of K, the Crown alleges the physical abuse escalated from play fighting to incidents of aggravated assault against DS.
The first of these occasions (Count 2) is alleged to have taken place after 11 July 2014. The accused choked DS using a pistol grip to her neck, forcing her onto the ground (with K in her arms), then stood over her yelling accusations about cheating on him. He yelled abuse at her. The accused’s mother, IH, came running over after this incident and took the child from DS. She told DS to pull her head in. In 2020, DS disclosed this incident to MC, the complainant in counts 5-7.
On 22 May 2015, following an argument in which the accused told DS to stay home as he would be attending a festival alone, the accused ‘choked her out’ a second time, grabbing DS again by her neck and holding her. He told her she was staying home (Count 3). In 2020, DS disclosed this incident to MC.
The Crown relies on the following conduct as ‘other misconduct’. This behaviour does not form the basis of any of the charges. One night between July and September 2016, the accused tried to gain entry to DS’s bedroom via a fly wire screen after DS had locked him out, warning him to sleep outside. Despite those accusations, the accused subsequently gained access and stood over DS in bed, insulting her. DS then punched him to the chin. The accused grabbed her by the throat, choking her out, forcing her down to the ground and continued to scream abuse while standing over her. DS partially disclosed this incident to MC in 2020.
The accused and DS lived in a home formed from a shipping container. On 20 September 2016, following an argument, the accused stormed out of their home with DS following. He used all of his force to slam DS into the shipping container door, between the door and a pole where she was trapped, at least five times. Count 4 covers this offending. DS left the relationship on this date. DS originally disclosed this offending to police following this incident on 20 September 2016. She further disclosed this last incident covered by Count 4 to her friend, Sarah.
The accused met MC shortly after the end of the relationship with DS. The accused and MC commenced a relationship from around November 2017.
Following a car accident on 13 February 2019 in which the accused was injured, he moved in to live with MC and her two sons while he recovered. The Crown alleges the accused would demand that MC massage him every day and became jealous and controlling of her social activities, verbally abusive and accused her of cheating. He also started demanding sex from MC, stating it was her duty as his girlfriend. He would lose his temper if she did not comply.
In late 2019 and early 2020, when staying with MC, the accused grew more physically violent. The incidents would start with ‘play fighting’, hurting and bruising MC and verbally abusing her.
The offending forming the basis of counts 5-7 took place while the accused and MC were still in a relationship and residing together on 21 September 2019 and later when the accused was living with MC and her sons, on 2 January 2022.
In relation to Count 5, it is alleged that on 21 September 2019, the day of a housewarming celebration in Woodroffe, the accused asked MC for sexual intercourse but she refused, saying she was exhausted and not in the mood. He then said: ‘the least you can do is give me head’. When MC said no, he became angry, saying she owed him head or sex because he had helped her all day. He then grew angry, yelling abuse and MC relented in fear. The accused spread her legs apart, lubricated her vagina with his saliva and had sexual intercourse with MC without her consent.
The alleged facts and circumstances which comprise Count 6 are that on 2 January 2022, the accused asked MC to suck his dick and she refused. He pulled at her towel she was wearing and forcefully placed her onto the bed. He forced her arms above her head, grabbing her wrists tightly and pinning her arms. After some struggle, he then had sexual intercourse (penile/oral) with MC which caused her to choke.
Count 7 is alleged to have occurred on the same occasion as the events giving rise to count 6 when he pushed MC’s legs apart with his hands and had sexual intercourse with her again without her consent (penile/vaginal). MC disclosed this and the earlier incident to her mother, Marianne.
The tendency sought to be proved
The Court has the benefit of a detailed Amended Tendency Notice (‘Tendency Notice’). I will not detail all of the elements of the evidence sought to be relied on to prove the alleged tendencies. Summaries of the evidence relied on appear in the Tendency Notice. A reasonable picture of the foundational evidence which may be alleged as supporting a particular tendency can be drawn from the above brief summary of the Crown case.
The Crown seeks to rely on the suggested tendency evidence as being admissible in relation to the counts involving each single complainant and/or cross admissible as between counts involving both complainants.
After reviewing the available and helpful material before the Court, for the following reasons, the Crown should be permitted to attempt to prove tendency two and tendency four and if the jury accept the tendency proven, the jury may rely on tendency reasoning.
Suggested tendency two would allow the evidence to be used to show the accused ‘act[ed] in a particular way, namely to commit acts of physical violence against females with whom the accused is in a relationship and with whom he resides, using physical strength and force’.[1]
Suggested tendency four, seeks to show the accused ‘act[ed] in a particular way, namely to have sexual intercourse with females with whom the accused is in a relationship and with whom he resides, despite the fact that the other person does not consent to the sexual activity, in the following manner and circumstances;
(i) by first persisting in asking for sexual activity, despite the other person’s refusal; and/or
(ii) following an argument and while the accused is in a state of rage and/or
(iii) by employing verbal or physical aggression, intimidation, and/or force; and/or
(iv) by expressing or acting on a belief he was entitled to sexual intercourse with the other person, with whom he was in a relationship. [2]
The Crown contends those tendencies (and the tendencies which will not be permitted and are discussed below) are relevant to facts in issue on the various counts. Counsel for the Crown submitted this was particularly relevant to whether DC and MC freely and voluntarily consented to sexual intercourse; whether the accused knew or was reckless as to consent with either complainant, or gave no thought as to whether they were consenting. Further, it is relevant to whether he committed the alleged acts of violence against DS which form the basis of the counts of assault with circumstances of aggravation.
Counsel for the accused points out that the four tendencies alleged are essentially based on the same facts which would lead the jury to confusion between facts required to be proven to establish the charges and the facts required for proof of any of the tendencies alleged. There is also repetition of the allegations as between alleged tendency one and two and between alleged tendency three and four. Counsel for the accused expressed concern about the prejudicial effect of the repetitive way the evidence may be used. Further, it was argued that if the jury need only be told that to prove the tendency, it simply needed to accept the existence of the tendency, without such a finding beyond reasonable doubt, the accused could be convicted by a lesser standard of proof than proof beyond reasonable doubt.
Counsel for the accused submitted attention needed to be given to whether the accused could receive a fair trial in the face of two trials being heard together which relate to the two complainants proceeding on the same indictment, with little or no independent evidence and with four tendencies to be dealt with.
Counsel for the accused raised the danger of unfair prejudice under s 101(2) of the Evidence (National Uniform Legislation)Act 2011 (NT), ‘the EUA’, particularly given the overlap of the particulars of the alleged tendencies. Further, it was submitted the Court should exercise the discretion to exclude prejudicial evidence in criminal proceedings in s 138 of EUA.
Consideration of the issues
Tendency evidence is governed principally by s 97(1) of the EUA. Such evidence is presumptively inadmissible to prove a tendency to act in a particular way, or to have a particular state of mind unless the evidence will, either by itself or having regard to other evidence adduced or to be adduced ‘have significant probative value’ (s 97(1)(b)). Tendency evidence cannot be used against a defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant (s 101(2)).
When assessing the probative value of the evidence, it is not open to the Court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination (s 94(5)).
The proposed second and fourth tendencies as discussed, readily possess the required quality ‘significant probative value’. The proposed tendencies plainly have the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent or, make it more likely, to a significant extent, the facts that make up the elements of the offences charged.[3] The evidence is clearly important in proof of the charges.
In making the assessment of whether the evidence has significant probative value, the Court is to assess the extent to which the evidence proves the alleged tendency and the extent to which the alleged tendency makes the facts in issue more likely.[4] The evidence proposed in alleged tendencies two and four clearly fulfil this criteria. If an accused is shown to have a tendency to act in a very particular controlling or threatening or violent way as alleged in particular relationships, that is important evidence. The conduct forming the basis of the charges is denied. Here, the evidence is confined to two relationships. How the accused acted in one of those relationships is relevant circumstantially to how he acted, in accordance with the particulars in the Tendency Notice, in the other relationship.
When making this assessment it is permissible to have regard to the evidence alone and in the context of the other evidence.[5] The reliability and credibility of the evidence must not be assessed and must be taken at its highest.[6] There is no issue here of the identity of the accused which would necessitate features of similarity and specificity to be scrutinised for other reasons more relevant to identification cases.
Tendency evidence is a form of circumstantial evidence. When the Crown relies on that evidence, it seeks to establish that a person has or had a tendency to act in a particular way or had a particular state of mind. If the tendency is proved it provides a foundation for an inference of guilt of the conduct alleged in the charge the jury is considering.
The four proposed tendencies include both tendencies which if accepted, may be cross-admissible in relation to both complainants as well as multiple instances of offending supportive of a tendency of the accused demonstrating certain conduct towards each individual complainant. While the first form of tendency evidence should be allowed, it is the latter form of tendency evidence which should not be permitted in this case.
As above, I have indicated that alleged tendencies two and four readily meet the description ‘significant probative value’. There is a natural and logical link between the proposed evidence of the two complainants so as to allow cross admissibility on the basis of the accused’s conduct demonstrated towards each of them. That conduct, with respect to particular counts against one of the complainants, is sufficient to form the basis of a tendency to act in a particular way towards other women with whom he has an intimate relationship, including the other complainant. The proposed evidence in support of the tendencies possesses significant similarity, in terms of levels of control and violence within an intimate relationship, although such similarity is not required. In this particular case, while ‘continuum’ of conduct may be putting the evidence of tendency too high, the alleged conduct does come close to a continuing form of conduct which heightens the probative value of the proposed evidence.
In the circumstances, the proposed tendency evidence to be led for tendencies two and four is of significant probative value such that when weighed against any prejudicial effect, and after consideration of s 101(2) of the EUA, the evidence should be admitted. There is no further consideration here which would enliven the discretion under s 137 of the EUA.
In terms of the burden of proof, to rely on the evidence underpinning the charges in proof of the tendency, the jury must be instructed that to use the evidence as tendency evidence for cross admissibility purposes, it must be satisfied beyond reasonable doubt as to the proof of the conduct which constitutes the tendency. If the jury are to rely on any charged conduct to prove the tendency, that conduct, or elements of the charge must be proven beyond reasonable doubt. Counsel for the Crown drew my attention to Dempsey v The Queen[7] which I agree is instructive in this case, which deals with tendency in this way and has influenced my approach here.
As above, there are two proposed tendencies which I would not permit as those alleged tendencies rely almost solely on proof of very charges from which the tendency is derived. Tendency one is a tendency ‘to act in a particular way, namely to commit acts of physical violence against DS’.[8] Tendency three is a tendency to ‘act in a particular way, namely to have sexual intercourse with MC without her consent, in the following manner and circumstances;
(i)by first persisting in asking for sexual activity despite MC’s refusal; and/or
(ii)following an argument in which the accused is in a state of rage; and/or
(iii)by employing verbal or physical aggression, intimidation and/or force; and/or
(iv)by expressing or acting in a belief he was entitled to sexual intercourse with MC, with whom he was in a relationship.’
An allegation cannot prove itself. There must be a foundation otherwise there may be a reversal of the onus of proof. As Brennan J said in Sutton v The Queen,[9] this is ‘a cannon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact.’
If in the prosecution of each complainant’s case, when the allegations to form the basis of the charge come from that same complainant to prove the tendency and prove that same charge, there is nothing of probative value in the alleged tendency. That is, unless or until one of the charges is proven beyond reasonable doubt from which an inference can be drawn. The establishment of the tendency cannot start from an assumption that unproven evidence as a whole gives rise to the tendency. This employs dangerously circular reasoning. If I am wrong by reasoning this way with respect the probative value, then the tendency evidence produced from such circular reasoning will be excluded under s 101(2) of the EUA, its probative value is so slight it does not outweigh the prejudicial effect of the evidence.
The prosecution may seek to prove tendencies 2 and 4 by proving the conduct which constitutes a relevant count or counts beyond reasonable doubt, noting that does not mean every count needs to be proven to prove the tendency. Whether the conduct constituting one or more counts is sufficient to be proven to establish the tendency will be a matter for the jury. Such evidence is cross-admissible with respect to the other complainant.
Uncharged acts and other misconduct
There are instances of other misconduct alleged which are mentioned in the outline of the Crown case. Some of the misconduct could potentially form the basis of charges. Other conduct, although not necessarily criminal in that sense, does throw light on the terms of the relationship between each complainant and the accused.
In this case, it is appropriate to deal with this evidence, whether ‘uncharged acts’ or other misconduct as context evidence from which the jury may gain an understanding of the terms of the relationships or, to answer questions the jury may have about how different people who have given evidence have acted or reacted to the circumstances. This is not meant to be a limiting consideration. That evidentiary material may be relevant in a number of ways which is not yet foreseeable without knowing the full extent of the evidence.
It will be necessary for the jury to hear that body of evidence which encapsulates other conduct in order to obtain an appreciation of all of the circumstances. It could be misleading and potentially undermining of the rulings given in relation to tendency to allow the evidence of other misconduct to contribute to the establishment of the tendency evidence.
The context evidence is not impermissibly prejudicial but it is appreciated appropriate directions will be required as to its use.
Severance
An application was made to sever the trial as between the counts relating to each complainant.[10] Counsel for the accused submitted the presumption of joint trials for sexual offences could be rebutted. This was said to be on the basis of the considerable temporal gap between the offending periods relating to both complainants. Further, that the offences alleged against DS are largely not sexual offending, although one count is a count of sexual offending. Additionally it was said there is a risk of the jury conflating the allegations in circumstances where there is a significant difference between the two.
There will not be severance of the indictment. The presumption in s 341A of the Criminal Code has not been rebutted. The offending period relevant to DS finished in 2016. The offending against MC commenced in 2019. The relationship with MC commenced in 2017. This does not represent a significant temporal gap in cases of this kind. The evidence on one view exhibits a form of continuing misconduct between the two relationships, although it is appreciated there was a gap in offending. In the context of sexual offending, this is not a significant period of time.
That the offending against DS comprises one offence of sexual offending rather than multiple counts as with MC is barely relevant to this question. Further, it is unlikely the allegations from the two complainants will be conflated. In any event, directions will assist in such circumstances to guard against any apprehension of conflating the testimony of the two complainants.
Even without resort to the presumption in s 341A of the Criminal Code, this is an appropriate matter for the two sets of counts involving two different complainants to be included on the one indictment and be tried together given the admission of tendency evidence and cross admissibility of that evidence.
Rulings
1.The Crown may seek to prove tendency two and tendency four as set out in the Tendency Notice but not tendencies one and three. As the Crown relies on charged acts to support the tendency, any element relied on must be proven beyond reasonable doubt before it has the capacity to contribute to proof of the tendency.
2.If the Crown prove a particular tendency in respect of charges coming from one complainant, such evidence is cross admissible in part proof of the counts relating to the other complainant, assuming they jury accept the evidence of a relevant tendency.
In practical terms, depending on how the evidence unfolds, if the jury is satisfied of proof of any of the charges beyond reasonable doubt with respect to DS, and is satisfied on that basis of a permitted tendency, that reasoning may be used towards proof of the charges relating to MC. Similarly, if the jury are satisfied beyond reasonable doubt of any charges relating to MC and is satisfied on that basis of either permitted tendency, that reasoning may be used towards proof of the charges relating to DS.
3.Evidence of other misconduct is admissible as context evidence.
4.The application to sever the counts on the indictment and to conduct two separate trials is dismissed.
5.These reasons are to be forwarded to counsel.
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[1]Tendency Notice, p 2.
[2]Tendency Notice, p 2.
[3]Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [40], [81], [86], [215]; IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [46] and [103].
[4]Hughes v The Queen at [41].
[5]Hughes v The Queen at [40].
[6]IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300.
[7][2019] VSCA 224.
[8]Amended Notice: Tendency Evidence p 2.
[9][1984] HCA 5; 152 CLR 528 at 532.
[10]Outline of written Counsel submission re tendency notice at [10].
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