The Queen v Lewis
[2021] NTSC 40
•6 May 2021
CITATION:The Queen v Lewis [2021] NTSC 40
PARTIES:THE QUEEN
v
LEWIS, Caleb Johnathan
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21901032
DELIVERED: 6 May 2021
HEARING DATE: 1 February 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97 and s 101 - Tendency evidence – Whether tendency evidence has significant probative value – whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused - Evidence admissible.
HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; R v Bauer (2018) 266 CLR 56; R v Lisoff [1999] NSWCCA 364; The Queen v AW [2018] NTSC 29; The Queen v Grant (2016) 262 A Crim R 348; The Queen v Page (No 1) [2021] NTSC 2, applied.
Ford (2009) 201 A Crim R 451; Gilbert v The Queen (2000) 201 CLR 414; R v Serratore (1999) 48 NSWLR 101; Roach v The Queen (2011) 242 CLR 610; The Queen v Dixon-Hargraves [2019] NTSC 29; The Queen v O’Brien [2017] NTSC 34; The Queen v Raye (2003) 138 A Crim R 355; TL v The Queen [2020] NSWCCA 265; Wilson v The Queen (1970) 123 CLR 334, referred to.
J D Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2019); S Odgers, Uniform Evidence Law (LawBook,14th ed, 2019).
Evidence (National Uniform Legislation) Act 2011 (NT) s 55, 97,
s 101, s 137.
REPRESENTATION:
Counsel:
Crown:Steven Ledek
Accused:Roisin McCarthy
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Bro2111
Number of pages: 23
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Lewis [2021] NTSC 40
No. 21901032
BETWEEN:
THE QUEEN
AND:
CALEB JOHNATHAN LEWIS
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 6 May 2021)
The issues raised in this matter are whether evidence of two prior charged assaults by the accused against the complainant should be admitted as either tendency evidence or as context (relationship) evidence in a trial of charges of aggravated assault and recklessly engaging in conduct giving rise to a danger of serious harm.
The accused is charged with two counts arising out of the same incident. The first is a count of unlawful assault of AK with the circumstances of aggravation that she suffered harm, that she is a female and he is a male and that she was unable to effectually defend herself due to her situation. The second is a count of recklessly engaging in conduct that gave rise to a danger of serious harm by stomping on her head.
The Crown’s case is that, on 16 August 2018, AK was drinking with family in Katherine. Later, they walked along the street in Katherine, and she was trailing behind her family. AK said the accused came up behind her and flipped her over on the road. She said they then talked on the footpath before he flipped her again on the footpath making her hit the ground hard, that he told her he was going to kill her and then stamped his foot on her head two or three times, grabbed her by her foot and dragged her along the footpath a few metres, kicked her in her back four or five times and punched her in the ribs four or five times.
At the time the issue the subject of this decision arose, the accused denied the conduct and said he was in Beswick at the time. The accused subsequently pleaded guilty to an amended charge.
Tendency evidence
The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘UEA’) of its intention to adduce tendency evidence.
The notice advises that the tendencies sought to be proved are the tendency of the accused:
(a)to hold a particular state of mind, namely:
(i) a violent disposition toward AK;
(ii) a preparedness to inflict or threaten violence against AK whether or not he is affected by alcohol;
(iii) a preparedness to inflict or threaten violence against AK whether or not there are other persons/family nearby;
(iv) a preparedness to inflict or threaten violence against AK for the purposes of control and punishment; and
(v) a preparedness to disregard court orders in place to protect AK, when they are in place; and
(b)to act in a particular way, namely:
(i)to behave violently towards AK;
(ii)to commit assaults against AK to exert control, dominion and punishment over her; and
(iii)to commit assaults against AK that cause her physical harm.
The Crown seeks to adduce evidence about conduct that is the subject of convictions of aggravated assault against AK and contravention of a domestic violence order relating to her, as follows:
Offence date
Offence
Summary of conduct
Evidence
2 August 2018
Aggravated assault with a weapon
Contravention of a domestic violence order
On 2 August 2018, the couple were together at House 114 of Beswick Community. The accused and the victim engaged in an argument over the potential use of the accused’s mobile phone by the victim.
The defendant became enraged and picked up a plastic chair which he threw at the victim with force. The bottom part of the leg of the chair struck the victim’s genitals and lower abdomen, causing her to fall to the ground in pain.
Members of the household were present at the time. The offending contravened a domestic violence protection order.
Certificate of proceedings and certified statement of facts
27 September 2017
Aggravated assault
On 27 September 2017, the victim attended the Beswick Social Club. Later in the day, the accused attended the location sometime to speak to the victim. The defendant had observed the victim’s ex-partner at the social club and accused the victim of seeing her ex-partner.
Just before midnight the same evening, the accused and victim made their way to House 126 Beswick Community, where the accused became angry and jealous. He began yelling and swearing at the victim which prompted her to make a call to Police. He pursued her around the house as she hid from him. The victim ran into the accused’s bedroom. The accused walked up to the victim and whilst standing over her, punched the victim twice to her mouth with his right fist causing the victim pain to her mouth and jaw and causing her lip to swell, split and bleed. The victim then covered her face with her hands and the accused punched her once to the top of her head causing her pain.
Members of the household were present at the time.
Certificate of proceedings and certified statement of facts
The tendency evidence is said to be relevant to the following facts in issue:
(a)whether on the date referred to in the indictment the accused unlawfully assaulted AK by stomping on her head, as well as kicking and punching her in the ribs;
(b)to rebut any alternative version of events proposed by the defendant as to how the victim’s injuries were caused;
(c)to rebut any defence proposition that AK consented to being assaulted; and
(d)to rebut any defence proposition that the accused’s conduct was justified as defensive conduct.
Given the defence case (that the accused was in Beswick at the time), there will not be any defence propositions to the effect referred to in subparagraphs (c) and (d) above. Further, the ‘alternative version of events’ referred to in subparagraph (b) must be to the effect that, if the accused was assaulted, someone other than the accused assaulted her. Essentially, the facts identified in subparagraphs (a) and (b) go to whether it was the accused who assaulted AK.
The defence objects to the evidence being adduced as tendency evidence.
Under s 97 of the UEA, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.
There is no issue about the adequacy of the notice, which was served months before the trial was due to start.
The second question under s 97 is whether the evidence has significant probative value in relation to the issues set out above at paragraph [5].
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen (2017) 263 CLR 338 (‘Hughes’) at [16]:
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)
And at [40], the High Court observed that:
…The test posed by s 97(1) is as stated in Ford (2009) 201 A Crim R 451 at [125]: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
Assessing the probative value of proposed tendency evidence is, generally speaking, therefore a two stage process. As the plurality said in Hughes at [41]:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The defence submitted that tendency evidence ‘is only likely to satisfy the threshold of significant probative value’ where the evidence strongly supports proof of a tendency and the tendency strongly supports the proof of the fact making up the offence charged. This submission was founded upon the observation of the High Court in the last sentence of the extract from Hughes set out in paragraph [16] above.
In that statement, the Court was not laying down a threshold of admissibility, or equating the requirement of ‘significant probative value’ in s 97 with ‘a high degree of probative value’ so as to invoke the circumstances covered by the words ‘strongly supports’. To so conclude would be inconsistent with their Honours’ observations at [16] of Hughes, that tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent, citing the observation of French CJ, and Kiefel, Bell and Keane JJ in IMM v The Queen (2016) 257 CLR 300 (‘IMM’) at [46] that Cross on Evidence suggests that a significant probative value is a probative value that is important or of consequence, and that ‘the evidence must be influential in the context of fact-finding’.
The critical question is whether the tendency evidence has significant probative value. I agree with the observation of Kelly J in The Queen v Page (No 1) [2021] NTSC 2 at [10] that ‘significance’ means something in between mere relevance and a substantial degree of relevance.
The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to have the state of mind and/or to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.[1] This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[2] This includes assessing the significance of the possibility of collusion or concoction which ‘should be left to an occasion when it is raised in a concrete factual setting’.[3]
The Crown says the proposed evidence establishes the tendency to a significant extent, and that the tendency makes the fact in issue more probable to a significant extent, essentially because a pattern of violent behaviour against a domestic partner is strongly predictive of ongoing violent behaviour and points to the unlikelihood of AK’s injuries having been caused by accident or by some random unidentified person.
The defence says that, because there are only two instances of violent conduct by the accused against AK, they do not establish the tendency to a significant extent.
The defence distinguishes the present case from that in The Queen v Dixon-Hargraves [2019] NTSC 29, which involved three charges of assault against the accused’s domestic partner in March-April 2018. The accused had two prior convictions of assault against that woman committed in early 2016. He also had four prior convictions of assault against a former domestic partner in 2011 and 2014. Kelly J found the evidence of these convictions admissible as tendency evidence proving a tendency of the accused to engage in violent behaviour towards his domestic partner, especially after consuming alcohol and/or when they had been arguing. In essence, the case involved the admissibility of evidence about six prior violent incidents across a seven year period, with two against the victim the subject of the charged offences in a two year period.
In The Queen v Grant (2016) 262 A Crim R 348 (‘Grant’), Grant CJ found evidence about prior convictions for violent assaults against the accused’s domestic partner admissible as tendency evidence. There were five such incidents across the two and a half year period before the charged offending, but the first four occurred in the initial period of six months (so two years before the charged offending) and the fifth occurred in the last period of six months before the charged offending.
In the present case, the relationship between the accused and AK lasted two and a half years, commencing in February 2016 and ending in August 2018. The prior incidents occurred in September 2017 and August 2018. The alleged offending also occurred in August 2018.
In my view, evidence of two instances of violent conduct against the particular domestic partner the subject of the alleged violent offending having occurred within a period of less than 11 months prior to the alleged offending will support, to a significant extent, the tendency of the accused to have a violent disposition towards, and to act violently towards, the particular domestic partner. Furthermore, those tendencies would, together with AK’s evidence that it was the accused who assaulted her, make it somewhat more likely that the accused committed the charged offences.
On each occasion the subject of the proposed tendency evidence and the alleged offending, the conduct in question took place in the context of a domestic relationship. It was directed to AK, it occurred when the accused was not intoxicated, it occurred when the accused became angry with the complainant, the accused physically assaulted the complainant in a manner to cause her physical injury, and other people were nearby at the time of the assaults. Those similarities support both the finding of the tendencies and the conclusion that the tendencies would make it more likely that the accused committed the offences.
The defence argued that the second prior offending and the alleged offending did not occur within the context of a relationship between AK and the accused because, at that stage, the relationship had ended. In my view, the end of the relationship (as perceived by one or both parties) does not deny the overarching context of the domestic relationship, whether that relationship was then ongoing or had recently ceased.
The Crown asserts that another similar feature across the prior offending conduct is the accused’s motive of asserting control or dominion over AK and punishing her when she did not accede to that control or dominion. In my view, the certified statements of agreed facts in both proceedings do not permit of such a finding and nor do the circumstances alleged by the Crown in the alleged offending. As to the first incident, those facts were that the accused and AK had an argument about AK wishing to use the accused’s mobile phone. As to the second incident, those facts were that the accused saw AK in a social context with her ex-partner and became angry and jealous. As to the alleged offending, there is no allegation of any argument between AK and the accused before he acted violently towards her. I do not consider that these bare facts establish, to a significant degree, a tendency on the part of the accused to have the state of mind of a preparedness to inflict or threaten violence against AK for the purposes of control and punishment, or to commit assaults against AK to exert control, dominion or punishment over her.
An essential fact in issue in this case is whether it was the accused who assaulted AK, as opposed to someone else. In Hughes, the majority observed at [39] that where the central fact in issue is the identity of the offender, the probative value of the proposed tendency evidence will almost certainly depend upon ‘close similarity’ between the conduct evidencing the tendency and the offence, whereas different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
The defence argues that this case is a situation falling within the majority’s observations in Hughes, requiring a ‘close similarity’ which is absent here. In response, the Crown says that this is not an identity case because AK will give direct evidence as to the accused being the person who she observed commit the offending. The defence says that her evidence about that may be unreliable. However, as set out in paragraph [20] above, save in the extreme situations where the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance, I must approach the issue on the basis that the jury will accept AK’s evidence. On that approach, this is not ‘an identity case’ in the sense referred to in Hughes,[4] so the ‘close similarity’ referred to in Hughes need not be established.[5] Nevertheless, the probative value of tendency evidence commonly depends upon the degree of similarities between the conduct said to give rise to the tendency and the conduct the subject of the alleged offending.[6]
The similarities of conduct and the circumstances in which it occurred are set out in paragraph [27] above.
It may be noted that the setting of the prior offences and the alleged offending are not similar. On both occasions, the prior offences took place within the domestic setting, when the accused and AK were at home. By contrast, the alleged offending occurred on a public street and apparently as a consequence of a chance encounter. Furthermore, save for the infliction of physical harm, there is very little about the conduct comprising the prior assaults and the alleged assault which is similar. The prior assaults involved, on one occasion, throwing a plastic chair, and on the other, two punches to the face and one to the top of the head. The alleged assault involved throwing AK to the ground, stomping on her head, a threat to kill her, dragging her by her foot, and multiple kicks and punches to the body whilst she lay prone on the ground. As compared to the prior assaults by the accused against AK, the conduct of the alleged assault is more prolonged, involves more blows and physical force, and was accompanied by a threat to kill. In addition, unlike the earlier conduct, it was not preceded by an argument between AK and the accused.
In Hughes, the majority of the High Court observed (at [64]):
The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
Here, the addition to the tendencies identified in the Crown’s notice of words such as ‘whether or not affected by alcohol’ and ‘whether or not there are other persons/family nearby’, do not create any greater particularity than if those words were not present. Further, as set out in paragraph [29] above, the evidence does not establish the tendencies relating to control, dominion and punishment. The consequence is that the proposed tendency evidence establishes that the accused has the tendencies to have a violent disposition towards AK and a preparedness to inflict physical violence upon her, and to act violently towards her, and commit assaults against her that cause her physical harm. Save for the identity of AK, those tendencies are relatively general in their scope and content.
The question to be considered where what is in issue is whether it was the accused who committed the alleged assault or some other person because the accused was elsewhere is, would the tendencies to have a violent disposition towards the complainant and a preparedness to inflict physical violence upon them, and to act violently towards them, and commit assaults against them that cause them physical harm make it significantly more likely that it was the accused who committed the charged offences?
The Crown argued for an affirmative answer because the accused was the only person who had ever assaulted AK, so of all the people who could possibly have assaulted her, his tendencies made it significantly more likely for the person who assaulted AK to be him. The defence pointed out that there was no evidence about whether AK had ever been assaulted by anyone else.
In addition, where the assault apparently occurred on a public street, late at night, upon a woman, who was possibly quite intoxicated and walking alone, I find it difficult to see how those relatively generalised tendencies can bear to a significant degree on the likelihood that AK was assaulted by the accused and not an unknown person. The prior offending conduct and circumstances and the alleged offending conduct and circumstances are not sufficiently similar to permit that conclusion.
While the tendency evidence would, in my view, make it somewhat more likely that it was the accused who committed the charged offences, on balance, I do not consider that it would do so to the required significant degree.
I am therefore not satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence does not have significant probative value.
That makes it unnecessary for me to consider whether the evidence satisfies the requirements of s 101 of the UEA. I address the question briefly in case I am found to be wrong about my conclusion under s 97.
In a criminal trial, such as this, tendency evidence is not admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[7] The notion of prejudice in this general context ‘… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.’[8] In other words, evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted.[9] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect. For example, the jury may be influenced to convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence and give it disproportionate weight, or may be distracted from the central issues in the trial, say, by an emotional or irrational response to the evidence.
The plurality in Hughes (at [17]) explained the kinds of potential prejudice that can arise in a criminal trial as follows:
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[10]
In this case, the defence asserted that there was a risk of the following kinds of prejudice:
(a)that the jury might be influenced by an irrational or emotional response to the evidence and be inclined to punish the accused for previously assaulting AK, rather than confining its attention to whether the prosecution has proved that it was the accused who assaulted AK;
(b)that the jury might give the evidence more weight than it deserves by thinking that someone with the accused’s tendency will yield to it whenever the opportunity arises, and the giving of inappropriate weight could occur here because the Crown relies almost entirely on the evidence of AK; and
(c)that the jury might engage in propensity reasoning from the tendency evidence depicting the accused’s bad character.
So far as the risk of propensity reasoning is concerned, the use of this kind of tendency evidence involves a kind of permissible propensity reasoning. As the plurality said in Hughes (at [16]):
The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.
The defence argued that there is a real risk that the jury would have an emotional response (essentially undue sympathy towards AK) to the evidence of the August 2018 incident because of the nature of the injuries, which were unusual, quite severe and have ongoing effects. It is said that there is a real risk that such emotional response might cause the jury to seek to punish the accused for that conduct rather than assessing, on the evidence, whether he committed the offences charged. In my view, the risk that the jury may be emotionally affected can be accommodated by suitable directions.[11]
However, I consider there to be a real risk of misuse of the tendency evidence by the jury by giving the evidence more weight than it deserves. Where the only other substantial evidence in support of the Crown’s case is to be given by AK, the jury may place too much reliance on the fact that the accused has the tendencies and may reason that the accused did act on them without properly allowing for the possibility that he did not. In my view, in these circumstances, the potential prejudice to the accused is virtually impossible to address by a direction to the jury that in using the evidence for tendency reasoning, they should not give it too much, or disproportionate, weight. It seems to me that the concept of not giving evidence too much weight would be a very difficult one for the jury to comprehend and follow.
Balanced against this, I consider the probative value of the evidence, if it has significant probative value, to be at the lower end of that scale. Ultimately, I consider that the probative value of the evidence is not substantially outweighed by the prejudicial effect it may have on the accused.
For the above reasons, the tendency evidence specified in the Crown’s notice may not be admitted as tendency evidence under s 97 of the UEA.
Relationship evidence
In the alternative, the Crown seeks leave to lead the evidence in the Crown’s notice as ‘relationship evidence’, presumably with evidence from AK about her relationship with the accused, including his treatment of and physical assaults upon her.
To be admissible, the evidence must be relevant within s 55 of the UEA and not excluded under s 137 of the UEA.
The defence objects to the evidence being adduced as relationship evidence. The defence submits that the evidence should be excluded pursuant to s 137 of the UEA.
The Crown submits that the evidence is relevant because it will ensure that the jury are not required to decide the issues in a vacuum, but rather will be able to decide the issues in the setting of a physically violent relationship. The Crown further submits the evidence is relevant because it will allow the Crown to meet a question that would otherwise naturally arise in the mind of the jury, namely: why would he suddenly do that out of the blue?
Relationship evidence used for the purposes identified by the Crown has been held to be admissible.[12] It has also been admitted to establish the identity of the offender.[13] In Grant, Grant CJ observed (at [77]) that:
In order for “relationship” evidence to be relevant it must be shown that the evidence would make the complainant’s version of the particular incident subject to the charge more capable of belief when seen in the context of that relationship.
In my view, the evidence identified in the Crown’s notice, and AK’s evidence about the existence, duration, nature and cessation of her relationship with the accused, and his treatment of her within it, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely whether it was the accused who assaulted AK. The context of the relationship would make AK’s version of the assault, particularly that it was the accused who assaulted her rather than an unknown and random person, more capable of belief.. It is also the case that without that evidence the jury would effectively be called upon to decide the case in a vacuum, and may be left with the false impression that the event was an isolated one that happened ‘out of the blue’. That renders it relevant within s 55.
The defence argues, in support of the proposition that the evidence has limited probative value, that the evidence of the two physical assaults against AK in the two and a half years of their relationship is more appropriately characterised as ‘transient flare-ups of anger or annoyance’ and not ongoing hostility or enmity within the relationship.[14] I disagree. Physical assaults are not part of the ordinary incidents of a domestic relationship, and the second of those assaults occurred in the same month as the alleged offending.
If relevance is established, ‘relationship evidence’ may still be excluded from criminal proceedings under s 137 of the UEA if its probative value is outweighed by the danger of unfair prejudice to the accused.
By s 137, the court must refuse to admit the evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The section has a different threshold to that of s 101, which requires that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The relationship evidence, as such, has a relatively high probative value because otherwise AK’s evidence would seem inexplicable or fanciful.[15] The evidence will bear upon AK’s version of the assault, and the assessment of the credibility of her evidence.[16]
Unlike the risk of unfair prejudice identified in paragraph [49] above, the relationship evidence is not to be used by the jury for tendency reasoning and hence the risk of disproportionate weight being attributed to the evidence, which could not be adequately addressed by a direction, does not arise. Rather, for the receipt of the evidence as relationship evidence, the jury would be directed that they must not use the relationship evidence to engage in propensity or tendency reasoning, and that it is only tendered to ensure that they had a true and proper context to understand what AK says happened on the relevant night, rather than thinking what she said was unlikely because it happened ‘out of the blue’. That, it seems to me, is a direction which would obviate any risk of unfair prejudice to the accused.[17]
The evidence in the tendency notice filed by the Crown is relevant within s 55 of the UEA. Its probative value is not outweighed by the danger of unfair prejudice to the accused within s 137 of the UEA. It may be admitted for the purpose of use as relationship evidence as described above.
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[1]IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].
[2]IMM at [38]-[39], [41], [58].
[3]IMM at [59].
[4] In Hughes, Gageler J (in dissent) described (at [95]) the typical case of historical sexual assault where the defendant was an adult and the complainant was a child at the time of the charged sexual assault; the complainant gives evidence that the sexual assault occurred in a setting in which there were no witnesses to the assault; the defendant was known to the complainant; there is no issue about identity; the defendant denies any wrong-doing; and whether the defendant committed the assault charged comes down to whether the complainant or the defendant is to be believed. That is similar to the situation in this case: the complainant, AK, has ‘identified’ the accused and there is no issue as to his identity, rather the issue is as to whether the complainant or the defendant is to be believed as to the commission of the offence.
[5]See TL v The Queen [2020] NSWCCA 265 at [206]-[207], where Hoeben CJ at CL (Adamson and Bellew JJ agreeing) observed that the requirement for ‘close similarity’ should arise when the tendency evidence is the only or predominant evidence that goes to identity. See also the observations at [210]-[219]. Given AK’s evidence, that is not the situation here.
[6] See S Odgers, Uniform Evidence Law (LawBook, 14th ed, 2019) 707; UEA s 97.
[7]The Queen v AW [2018] NTSC 29 at [30].
[8]HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[9]Grant at [61] per Grant CJ.
[10]R v Lisoff [1999] NSWCCA 364 at [60]; Grant at [61].
[11]See The Queen v O’Brien [2017] NTSC 34 (‘O’Brien’) at [42] per Grant CJ, citing Gilbert v The Queen (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J: ‘The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’
[12] See Wilson v The Queen (1970) 123 CLR 334 (‘Wilson’) at 344 per Menzies J (McTiernan and Walsh JJ agreeing); Roach v The Queen (2011) 242 CLR 610 (‘Roach’) at [42]-[44].
[13] See R v Serratore (1999) 48 NSWLR 101 at [21-[23] per Dunford J. This case was a murder case, but I see no relevant distinction from the present case.
[14] By reference to The Queen v Raye (2003) 138 A Crim R 355 at [19]; Wilson at 338 per Barwick CJ.
[15] See Roach [46].
[16]See, for example, O’Brien at [50] per Grant CJ.
[17] See Roach at [48]-[49].
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