The State of Western Australia v NBW
[2014] WADC 132
•26 SEPTEMBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NBW [2014] WADC 132
CORAM: STAUDE DCJ
HEARD: 11 SEPTEMBER 2014
DELIVERED : 26 SEPTEMBER 2014
FILE NO/S: IND 1418 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
NBW
Catchwords:
Evidence - Relationship evidence - Sexual penetration without consent - Evidence of similar acts during previous relationship - Whether probative force clearly transcends prejudicial effect
Criminal law - Relationship evidence - Sexual penetration without consent - Evidence of similar acts during previous relationship - Whether probative force clearly transcends prejudicial effect
Legislation:
Nil
Result:
Objection dismissed
Relationship evidence allowed
Representation:
Counsel:
State of Western Australia : Mr L D O'Connor
Accused: Mr S M Brennan
Solicitors:
State of Western Australia : State Director of Public Prosecutions
Accused: Brennan & Co
Case(s) referred to in judgment(s):
Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67
Eastough v The Queen (Unreported, WASCA, Library No 980108, 12 March 1998)
Ferris v The State of Western Australia [2009] WASCA 54
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
KMB v The State of Western Australia [2010] WASCA 212
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
PIM v The State of Western Australia [2009] WASCA 131
R v Etherington (1982) 32 SASR 230
R v Grech [1997] VR 609
Tully v the Queen [2006] HCA 56; (2006) 81 ALJR 391
STAUDE DCJ:
Introduction
The accused is charged on indictment with one count of aggravated sexual penetration without consent which is alleged to have been committed on 29 January 2011. An evidential issue is raised for determination before trial pursuant to s 98 of the Criminal Procedure Act 2004.
The complainant was in a relationship with the accused from 1998 to 2007. There are two children from that relationship. The State intends to adduce evidence of prior occasions of non-consensual sex as relationship evidence admissible at common law to show the background and context of the alleged offence. The State accepts that the evidence is admissible 'only where the probative force of the evidence clearly transcends its merely prejudicial effect': Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 609 (Brennan J); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 300.
The defence objects to the evidence on the grounds that its prejudicial effect exceeds its probative value.
Both sides dealt with the issue by reference to common law: see Ferris v The State of Western Australia [2009] WASCA 54 [64] (Martin CJ). Accordingly, neither side adverted to the test of admissibility provided in s 31A of the Evidence Act 1906.
There are other issues of admissibility taken by the defence: see Outline of Submissions dated 1 August 2014, pars 20 – 24. The parties informed the court that it was not necessary to determine these at this time.
The prosecution case
As at the date of the alleged offence the complainant and the accused had been separated for about three years and four months. The complainant and the accused had taken the children to a public swimming pool for an outing and had then gone to the home of the accused to enable the children to shower before going to Ikea. The alleged offence occurred in the bedroom of the accused whilst the children were showering.
It is the State's case that the accused went into his bedroom and called the complainant who was in the lounge room. The complainant went into the bedroom. The accused asked the complainant if she wanted to have a shower. The complainant declined. The accused then approached her, grabbed her upper arms and pushed her on to the bed holding her down with his torso. He removed his shorts and underpants and partially removed the complainant's pants. He then moved her bikini bottoms to the side and penetrated her vagina with his penis.
The evidence in question
The complainant reported the incident to the police on 10 April 2013. The accused was charged and committed for trial. The trial of the indictment was listed for four days from 12 May 2014.
On 8 May 2014 the trial dates were vacated by reason of late disclosure by the State of additional material in the form of an account by the complainant of a history of acts of sexual penetration without consent over the course of the relationship between 1998 and 2007.
The prosecution subsequently disclosed a further statement by the complainant dated 17 June 2014, the fourth statement of the complainant in the prosecution brief. The statement runs to 112 paragraphs (34 pages). At par 53 of the fourth statement the complainant says:
As to paragraphs 35 – 37 of statement 1, when Neil grabbed me he had a hand on each of my arms. He was facing me but not directly in front of me. When he first grabbed me I thought, 'What are you doing?' I didn't say anything. I knew what was going to happen. I landed on my back on the bed on the corner closest to the door. I tried to get off the bed. I started scrambling around. I was trying to use my legs and feet to try to move out from under him.
At par 76 the complainant states:
In paragraph 53 of the statement I say, 'I knew what was going to happen'. He used to do the same thing when we were together.
The complainant then goes on in pars 77 to 80 to describe certain sexual conduct by the accused during the course of their relationship.
Paraphrasing, the complainant says that during the relationship and particularly in the last year the accused often had sexual intercourse with her regardless of her wishes and would hold her down using his torso. She said that this occurred about once a week for about a year prior to the end of the relationship, less regularly before that.
She said she fought him each time without success. He was heavier than her and quite fit. She stated that what she alleged he did on the occasion of the alleged offence was no different from what he had done before. She stated that if they had still been together in a relationship at that time she would not have thought anything of it because what he did was the same as he had done when they were together, meaning that 'he would call me into the room and then grab me and throw me onto the bed and go for it'.
The State intends to adduce this evidence as relationship evidence admissible at common law to show the background and context of the alleged offence. The defence objects to the evidence on the grounds that its prejudicial effect exceeds its probative value.
Submissions
The defence has indicated that the issue with respect to the charge is whether there was any sexual penetration at all, not whether there was consent or mistake as to consent. The defence submits that the evidence cannot have any probative effect in relation to that issue.
It is also submitted by the defence that the evidence is of incidents that occurred many years before the date of the alleged offence and that those incidents were not complained of for 6 to 16 years, by reference to the period of the relationship and the date of the complainant's statement. These features of the evidence are said to go to the question of probative value.
The defence points to the high number of occasions of unwanted sex indicated by the complainant's evidence and the generality of her description of them as rendering the evidence improbable and of little probative weight compared with the obvious prejudicial effect of the evidence.
The defence, in support of its submission that the evidence is unduly prejudicial, cites Eastough v The Queen (Unreported, WASCA, Library No 980108, 12 March 1998) as an example of a case in which evidence of uncharged acts over a period of time, said to demonstrate a guilty passion towards a child, was held to be inadmissible because the probative value was exceeded by its merely prejudicial effect. This was because, as Kennedy J found, the evidence was too vague. The complainant in that case mentioned, in addition to the acts complained of, 'things of a sexual nature' that were done 'too many times [for her] to even keep count'.
The defence also sought to draw support for the objection by referring to the obiter remarks of Callinan J in Tully v the Queen [2006] HCA 56; (2006) 81 ALJR 391, where his Honour observed that evidence of uncharged acts should not be allowed unless they constituted 'indispensable links in a chain of reasoning towards an inference of guilt'. His Honour referred in that regard to 'non‑specific prejudicial evidence': [136] to [140].
At [145] to [146] Callinan J went on to observe:
Nothing that has been said in the cases before Gipp and since it, nor any criticism or otherwise of it, serves therefore to allay my very serious concerns about the reception, over objection, of non-specific, potentially prejudicial 'relationship' or 'contextual' or 'background' evidence. Further, the practical reality is that in a case such as this one, in which there are multiple recurrent counts of the same offence or similar offences over a considerable period, any justification for the leading of 'relationship', 'contextual' or 'background' evidence will not be well founded. The position may, for example, be different if there is only one or a small number of offences charged and:
'a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue'.
R v GAE (2000) 1 VR 198 at 206 [22], cited in Heydon, Cross on Evidence, 7th Aust ed (2004) at 649 [21050].
It is important, in my opinion, that both parties and trial judges pay close attention to any attempt to tender evidence of uncharged acts. If it truly is, as I think it was in Gipp and may have been, if anything, here, propensity evidence, and it is tendered without adverting to its true character as such, the prosecution may obtain the benefit of its prejudicial effect without the disadvantage of the strictures that apply to evidence of that kind.
Notwithstanding the strong similarities between the charged act and the previous alleged acts which are not charged, the prosecution argues that the evidence is admissible, not as proof of propensity, but as circumstantial evidence which:
(a)explains the complainant's reaction to what she says occurred and her delay in making a complaint;
(b)affords a context in which the complainant's evidence can be evaluated;
(c)suggests 'how and why' the alleged offence was committed; and
(d)makes her account more believable, as in isolation the incident complained of may be seen to be unlikely.
The State submits that the evidence shows that the accused sought to control the complainant in a sexual way and had little regard for her wishes. Moreover, it serves to explain why she did not make an earlier complaint than she did.
The prosecution relies on the common law as the basis of admissibility and does not seek to use the evidence to prove propensity. Accordingly, the State submits that the jury would be directed that the evidence is admitted solely to show the relationship between the accused and the complainant, not as proof that the act complained of was committed: the jury should not reason that because the accused had acted before in a similar manner he was the kind of person who was likely to have done so on the occasion charged. The State suggests a propensity warning in the terms authorised by Pidgeon J in Eastough v The Queen, following R v Grech [1997] VR 609.
The State argues that the evidence is specific and has a proper and limited purpose in supporting the prosecution case. R v Etherington (1982) 32 SASR 230 is cited as an opposite example of such evidence being admitted to explain why the complainant in that case continued to submit to the accused and why he was able to commit the charged act.
Principles
In KMB v The State of Western Australia [2010] WASCA 212 [46] to [49]. Buss JA explained relationship evidence at common law as follows:
The term 'relationship evidence' refers to evidence relating to the accused and the complainant which will often be admissible because it tends to prove how or why the conduct the subject of the pending criminal proceedings arose, or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged. See Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 630 (McHugh J). Evidence of the relationship between the accused and the complainant may be admissible for the purpose of proving the accused's guilty passion, intention or propensity, or the accused's opportunity or motive to commit the offence alleged against him. See Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [182] (Callinan J)
In R v Best [1998] 4 VR 603, Callaway JA (Phillips CJ & Buchanan JA agreeing) said:
The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive (606).
Propensity evidence may be directly relevant to a fact in issue (this is usually the case with similar fact evidence) or it may be indirectly relevant to a fact in issue (this is usually the case with relationship evidence).
At common law, propensity evidence is admissible only if it is sufficiently highly probative of a fact in issue as to outweigh the prejudice it might cause to the accused. It is inadmissible if there is a reasonable view of the evidence which, when the propensity evidence is considered with other relevant evidence, is inconsistent with the accused's guilt. See Pfennig (481 - 483) (Mason CJ, Deane & Dawson JJ); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson & Gaudron JJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [9], [54] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
It is helpful also to note what Anderson J held in Cook v The Queen [2000] WASCA 78; (2000) 22 WAR 67 [66] - [68]:
I use the expression 'relationship evidence' only for convenience, recognising that in sexual cases it is an incomplete description of evidence of sexual molestation extraneous to the offences charged. As cases such as Gipp v The Queen (1998) 72 ALJR 1012 show, this kind of evidence is often called similar fact evidence, propensity evidence, guilty passion evidence, tendency evidence and background evidence: see especially per Kirby J at 1040 - 1041. See also R v S (1998) 103 A Crim R 101 per Thomas JA at 110.
The rule which excludes evidence showing nothing more than that the accused has a criminal disposition is fundamental: Thompson v Rex [1918] AC 221; R v Sims [1946] 1 KB 531; Markby v The Queen (1978) 140 CLR 108 at 116. Many cases have now laid it down, however, that if propensity or dispositional evidence has a function which goes beyond proof of mere bad disposition, it may be admitted. This is the basis on which relationship evidence is admitted. The evidence is regarded as actually probative of the disputed conduct. The particular way in which such evidence may be probative depends on the facts of the particular case. Of the very general relationship evidence in Gipp, McHugh and Hayne JJ said at 1026:
'It was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed "unreal and unintelligible". Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described … Neither on this or any other occasion did the complainant tell her mother what had happened. Knowing that this was not the first time that the complainant and the appellant had engaged in sexual activity helps to explain the complainant's apparent lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and her matter of fact recounting of the incident. The regularity with which incidents such as this occurred also helps to explain her failure to mention the incident to her mother and the appellant's confidence - manifested by the omission of any threat or inducement - that the complainant would regard the incident as nothing unusual.'
…
The relationship evidence in this case was, therefore, plainly admissible and it is not now contended on behalf of the applicant that it ought not to have been admitted. But because the evidence was prejudicial and admitted for a limited purpose, it was necessary that the jury be instructed how to use it. The principle is clear and has been stated many times in many cases, some of the more recent of which are R v Grech [1997] 2 VR 609; R v J (No 2) [1998] 3 VR 602; R v Dolan (1992) 58 SASR 501; R v Kemp [1997] 1 Qd R 383; R v W [1998] 2 Qd R 531; Kailis v The Queen (1999) 21 WAR 100; R v S (supra); Gipp v The Queen (supra); BRS v The Queen (1997) 191 CLR 275.
What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused.
See also PIMv The State of Western Australia [2009] WASCA 131 [237] (Buss J).
Application
Applying the principles established by the authorities to which I have referred, the relationship evidence is relevant and therefore prima facie admissible in the prosecution case. It supports the complainant's evidence in the ways that the State contends. Because of its nature, however, it should not be admitted unless its probative value is greater than its prejudicial effect. The evidence warrants special scrutiny because, despite the limited purpose for which it is to be adduced, the jury may treat it as evidence of a propensity to act in the manner alleged in the indictment.
In my view the features of the evidence to which the defence points as diminishing its weight do not displace the objective capacity of the evidence to affect the jury's evaluation of the complainant's evidence. On its face the complainant's evidence affords a meaningful context for the alleged offence. It provides an explanation for her not reporting earlier incidents, as well as her delay in complaining of the alleged offence. This observation, of course, does not bear in any way on the challenge to the evidence that is likely to be made at trial.
The incident complained of is properly to be considered, not in isolation, but against the background of a sexual relationship of significant length which had concluded as such, but which had resulted in ongoing contact through shared parenting arrangements.
The prejudicial effect of the evidence is that it may be used by the jury to reason improperly that if the accused acted badly towards the complainant during the course of the relationship he must be guilty of the offence charged. Such prejudice is not undue. It is commonly dealt with in sexual offence cases. The prejudicial effect of the evidence is not such that it cannot be appropriately guarded against by suitable directions to the jury in the terms authorised in Cook at [68].
The objection is dismissed.
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