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[2024] ACTSC 30
General information, not legal advice.
Supreme Court of the ACT
2024-02-19
Baker J
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Mastalerz Citation: [2024] ACTSC 30 Hearing Date: 11 December 2023 Decision Date: 19 February 2024 Before: Baker J Decision: See [107]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to admit tendency evidence of prior violence and coercion in relationship – cross-admissibility of evidence of charged incidents – evidence of 23 uncharged incidents – whether evidence of physical family violence is capable of having significant probative value in support of allegations of sexual assault – tendency to be violent to exert control not sufficiently probative in case of negated consent on the basis of recklessness as to consent – evidence not admissible as tendency evidence. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Relationship and context evidence – relevance of physical violence as forming a “pattern of behaviour” – whether evidence should be excluded on the basis of the volume of the prior allegations – evidence of incidents contained in complainant’s Evidence in Chief Interview admissible as relationship/context evidence under s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – not appropriate to make a ruling on incidents not currently the subject of an Evidence in Chief Interview. Legislation Cited: Crimes Act 1900 (ACT), ss 26, 54(1), 67, 116(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74A Evidence Act 2011 (ACT), pt 3.6, ss 56, 94, 94(4), 97, 101, 137 Family Violence Act 2016 (ACT), s 43 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Sexual Assault Reform Legislation Amendment Act 2023 (ACT) Cases Cited: ABR (a pseudonym) v R [2020] NSWCCA 33 BC v R [2015] NSWCCA 327 DPP v Ivanisevic [2023] ACTSC 34 DS v R [2022] NSWCCA 55 Festa v The Queen [2001] HCA 72; 208 CLR 593 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Harlen (a pseudonym) v The King [2023] VSCA 269 HML v The Queen [2008] HCA 16; 235 CLR 334 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Marshall v The King [2023] ACTCA 11 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 MM v The Queen [2012] ACTCA 44 Mol v R [2017] NSWCCA 76 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Restricted judgment [2024] ACTSC 25 R v ATM [2000] NSWCCA 475 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v BC (No 3) [2020] ACTCA 49 R v Chase (a pseudonym) [2018] NSWCCA 71 R v Fordham (1997) 98 A Crim R 359 R v M, BJ [2011] SASCFC 50; 220 A Crim R 92 R v PAB [2006] QCA 212; [2008] 1 QdR 184 R v Sadler [2008] VSCA 198; 20 VR 69 R v Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 Taylor v R [2020] NSWCCA 355 The Director of Public Prosecutions v DL [2018] ACTCA 61; 14 ACTLR 62 TL v The King [2022] HCA 35; 275 CLR 83 Texts Cited: Revised Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, 2017) R Weinstein, et al, Uniform Evidence Law in Australia (Lexis rd Nexis, 3 ed, 2020) Stephen Odgers, Uniform Evidence Law (Thompson Reuters, th 18 ed, 2023) Parties: Director of Public Prosecutions (Crown) Jayden Michael Mastalerz (Accused) Representation: Counsel S Saikal-Skea (DPP) J Cooper (Accused) Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Accused) File Number: SCC 146 of 2023 SCC 147 of 2023 BAKER J: Introduction
By way of indictment filed 21 July 2023, the accused, Jayden Michael Mastalerz, has been charged with the following 11 offences: (a) Count 1 (CAN2023/2291): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (b) Count 2 (CAN2023/2292): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (c) Count 3 (CAN2023/2293): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (d) Count 4 (CAN2023/1479): aggravated common assault, contrary to s 26 of the Crimes Act 1900 (ACT). (e) Count 5 (CAN2023/2294): aggravated minor property damage, contrary to s 116(3) of the Crimes Act 1900 (ACT). (f) Count 6 (CAN2023/2295): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (g) Count 7 (CAN2023/2296): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (h) Count 8 (CAN2023/2297): aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). (i) Count 9 (CAN2023/2298): contravene family violence order, contrary to s 43(1) of the Family Violence Act 2016 (ACT). (j) Count 10 (CAN2023/3891): contravene family violence order, contrary to s 43(1) of the Family Violence Act 2016 (ACT). (k) Count 11 (CAN2023/5561): contravene family violence order, contrary to s 43(1) of the Family Violence Act 2016 (ACT).
The accused is also charged with a transferred charge of contravening a family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT).
On 23 November 2023, the prosecution filed an application to adduce tendency evidence under pt 3.6 of the Evidence Act 2011 (ACT), relying on a Tendency Notice filed 23 November 2023. On 13 December 2023, following the hearing of this application, the prosecution filed an Amended Tendency Notice. The Amended Notice indicates that the prosecution seeks leave to adduce evidence from the complainant of a number of prior incidents which are said to demonstrate the following three tendencies: (1) The accused had a tendency to be violent towards the complainant to exert his control over her, (2) The accused had a tendency to disregard court orders which regulated contact between him and the complainant to exert his control over her, and (3) The accused had a tendency to ignore the complainant’s protests when she declined sexual intercourse, and became aggressive and/or have sexual intercourse with her anyway.
In the alternative, the prosecution seeks to adduce the evidence as relationship or context evidence.
For the following reasons, I have concluded that the evidence of incidents 1, 3, 4, 6, 8 – 13, 15, 16 and 19 is relevant and admissible as relationship or context evidence in support of counts 1 – 3 and 6 – 8 on the indictment.
I have determined that the evidence of those incidents must not be used in support of the first two tendencies particularised in the Amended Tendency Notice. The precise framing of the third tendency – and, consequently, whether the evidence of those incidents may be used in support of the third tendency – will be a matter for the trial judge, to be determined in light of any evidence given in any further EICI with the complainant.
Background
The prosecution case
The accused and the complainant were in an on-and-off relationship from April 2017 to December 2022. They have four children together. The prosecution alleges that the relationship has been marred by family violence perpetrated by the accused against the complainant.
On 6 February 2023, the accused was released from custody in New South Wales. At this time, there was a NSW Apprehended Domestic Violence Order (AVO) and an ACT Interim Family Violence Order (FVO) in place, each of which prohibited the accused from contacting the complainant. He was also subject to ACT bail conditions that precluded him from contacting the complainant or entering the ACT.
Despite these various orders, the accused called the complainant and told her that he had nowhere to go and that he had booked a bus to Canberra. The complainant informed her Domestic Violence Crisis Service case worker, her support worker from Barnados (a charity providing support to children and families), and a friend. The accused then arrived at the complainant’s home at about 9:45pm.
The prosecution alleges that after about 20 minutes, the accused told the complainant to have a shower with him. The complainant says that she did not want to have a shower with the accused, but that she was afraid, because when she had refused in the past, the accused grabbed her and dragged her into the bathroom.
The prosecution alleges that whilst in the shower, the accused forced her to fellate him (count 1) and that he engaged in vaginal intercourse with her without her consent (count 2).
Sometime after the shower, the accused and the complainant went to bed. At some point whilst they were in bed, the accused pulled the complainant towards him and started to have sex with her. During intercourse, the accused asked the complainant “if it felt okay”, and the complainant just agreed saying ‘its fine’. They continued to have sex until the accused ejaculated inside her. The prosecution alleges that this act of intercourse was also without the complainant’s consent (count 3).
The following day, the complainant had a phone call with her support worker which the accused listened to. The support worker suspected that the accused was present. Subsequently, the accused and the complainant went to Gungahlin together to shop and for the accused to attend Centrelink. Whilst they were in Gungahlin, the accused had an argument with the complainant about a male that the complainant had been speaking to whilst the accused was in custody. The prosecution alleges that the accused made threats to the complainant that he would harm her and the male.
At about 2:30pm, the accused and the complainant went to school to pick up one of their children. Whilst waiting at the school, the accused continued to question the complainant about her perceived infidelity. The prosecution alleges that, during this questioning, the accused punched the complainant in her right arm with a closed fist, causing bruising (count 4) and threw a toy that the complainant had bought for their daughter onto a retaining wall, causing it to break (count 5).
The evidence sought to be adduced by the prosecution
The prosecution intends to rely on each of the counts of sexual intercourse without consent on the indictment (counts 1 to 3 and 6 to 8) as tendency evidence (incidents 25 – 27 in the Amended Tendency Notice). In addition, the prosecution also relies on a further 23 separate uncharged acts as tendency evidence. In the alternative, the prosecution submits that the evidence of these incidents is admissible as relationship or context evidence.
As outlined in the Amended Tendency Notice, the incidents sought to be adduced by the prosecution (both the charged and uncharged acts) are as follows:
Incidents said to prove tendency (1) The accused had a tendency to be violent towards the complainant to exert his control over her Particulars of date/time Incident /place/ witnesses Incident The complainant picked something up and brushed the side 2017 1 of the accused’s head with it. The accused backhanded the complainant across the mouth. Bay Waters, NSW The complainant (EICI) Incident The accused said the complainant was being lazy, so he 2017 or 2018 3 threw a bike wheel at her head which missed and made a hole in the wall. Batehaven, NSW The complainant (EICI) Incident During a fight the complainant threw a vase at the accused. On or about 15 May 2018 4 The accused punched her in the jaw causing her nose to start bleeding, and she bled on their first daughter. The Northgate, Queensland complainant tried to call the police but the accused took her phone and smashed it. The complainant (EICI) The complainant then walked to an Aboriginal medical centre and had her injuries (a cut on her wrist) assessed. The complainant also spoke to police. Incident The accused and the complainant had an argument at 18 November 2018 5 Moruya Airport. Police attended. As a result of police attendance the accused and complainant left to different Bateman’s Bay, NSW locations. The complainant (Police The accused contacted police again later and requested notes) assistance in removing his property from the complainant’s location. Police attended and the accused argued with the complainant about some of the property. The accused punched a cupboard door twice causing it to split, then punched the bedroom window, smashing it and causing the glass to shatter. Following this incident police applied for an Interim FVO against the accused to protect the complainant and her property. Incident While the complainant was vacuuming, the accused punched Approximately 2018 6 her in the side of the head and knocked her out. The complainant’s ear was swollen. Bay Waters, NSW Police attended and the complainant yelled at them for being The complainant (EICI) ‘useless’. The accused was intoxicated by alcohol. Incident The complainant had reduced foetal movements for 24 hours Goulburn, NSW 8 and wanted to get checked. The accused would not allow her to go and get checked. They had an argument after doing the The complainant (EICI) shopping, he threw her phone and it went through the wall, the complainant threw a can at him and then he pushed her bottom, took their first daughter, and drove away. The complainant called an ambulance and went to the hospital to get the baby checked. Incident The accused’s grandmother had just passed away. The While the complainant 9 complainant was pregnant and tired due to already caring for was pregnant with her her first two children. The accused did not like that the third child complainant was being “lazy”. While getting into bed he purposely kicked her and dug his toenail into her leg causing Goulburn, NSW a permanent scar. The complainant told people the accused had used a knife, but he had used his own toenail. The complainant (EICI) Incident The accused found out the complainant was messaging Shellharbour, NSW 10 another male, so he got a broom handle and put it to her neck and pushed her against the wall and choked her. The complainant (EICI) Incident The accused punched the complainant in the arm while she While Liam was a 11 was nursing their first son, who was a newborn at the time, newborn because she was refusing to talk to him. Shellharbour, NSW The complainant (EICI) Incident The accused became angry because the complainant had Shellharbour, NSW 12 been talking to another male. They had a fight about it. The accused was driving, he stopped the car, punched the The complainant (EICI) window of the complainant’s white Captiva, and threw a burger and hot chocolate on her causing a small burn to her chest. They had just been at Hungry Jack’s for lunch. The children were in the back of the car. Incident The accused and the complainant were in the car going Shellharbour or Nowra, 13 through a car wash. The accused was angry about the NSW complainant talking to another male. He threw a cheeseburger at the complainant and it hit her on the side of The complainant (EICI) the face. It was hard enough that it felt like a hit. Incident The accused and the complainant were having an argument 6 February 2021 14 at home while the complainant was unloading the shopping. The accused picked up their second daughter with one arm Goulburn, NSW and placed her on the lounge. The complainant said the accused had been too violent and rough with their second The complainant (Police daughter. She threw a can at him, which missed and landed notes) on the lounge. The accused threw the complainant’s phone against the wall and smashed the screen. The accused pushed the complainant to the ground, landing on her back. The complainant was 30 weeks pregnant and felt immediate pain to her lower back and stomach. Incident The complainant was cooking the accused dinner. She took a 16 October 2021 15 pie out of the oven. The complainant sat down for dinner while talking to someone on the iPad. The accused threw the Barling’s Beach, NSW hot pie at her causing burns. He then broke a dinner plate over her head. The complainant (EICI) Earlier on, the complainant chased the accused down the driveway with a knife because she could no longer handle it. Police attended. An AVO was subsequently taken out that prevented the accused and complainant from living together. Incident While the AVO was in place, the complainant went to live in a 9 May 2022, about 16 refuge. She was pregnant at the time. The accused attended 3.30pm the refuge and went through her phone. He saw that the complainant had said something about him to his aunty. He Bateman’s Bay, NSW threw a phone against a wall and kicked their first daughter’s toy pram, almost hitting their daughter. The complainant (EICI) The accused held his hand up to the complainant as if he was going to “backhand” her. He said, “Move the fuck out of my way before I kill you.” He was about 1 metre away from the complainant. The accused left, slamming the glass sliding door. The complainant spoke with police and the accused was charged with breaching the AVO. Incidents said to prove tendency (2) The accused had a tendency to disregard court orders which regulated contact between him and the complainant to exert his control over her Particulars of date/time Incident /place/ witnesses Incident The accused called the complainant and spoke to her four 13 May 2022 and 14 May 17 times for several minutes. The complainant subsequently 2022 reported the breach to police. The complainant (Police notes) Incident The accused called the complainant multiple times in one day 24 and 25 June 2022 18 in breach of an AVO. He called her the following day and she answered. The complainant informed the accused she had Queanbeyan and Moruya, informed police of his conduct. The accused attended NSW Moruya Police Station himself and was charged. The complainant (Police notes) Incident The accused messaged the complainant numerous times Approximately 26 19 over the course of a week in breach of an AVO. The September 2022 – 4 messages included constant messages about self-harm and October 2022 pictures of the accused with superficial cuts to his stomach and arms. Canberra, ACT The complainant also had dozens of missed calls from The complainant (EICI) private numbers and the accused’s number. The accused had also threatened to come to their house and burn the house down with the complainant and the children inside. Incident The complainant attempted to harm herself and subsequently 25 March 2022 1 21 attended hospital. The accused called the complainant about 20 times while she was in hospital, asking her to leave. The Moruya, NSW medical staff requested police attendance. The contact was in breach of an AVO. The complainant (Police notes) Incident The accused contacted the complainant in breach of an AVO. 2 and 3 May 2022 22 On one day he called the complainant 51 times between the hours of 11.51am and 8.28pm. Bateman’s Bay, NSW The second day the complainant continuously attempted to The complainant (Police call the complainant from 5.36am until 4.49pm, for a total of notes) 21 calls. The complainant reported the matter to police.
1 Incident 20 was not pressed by the prosecution. Incident The accused rang the complainant from a private number 11 November 2022 23 while an AVO was in place. When she answered the accused said, “Who are you with?” The complainant said, “Nobody”. Canberra, ACT The accused said, “Okay good, see you soon.” The complainant immediately hung up and notified police. The complainant (Police notes) Incident The accused contacted the complainant in breach of an AVO. 14 December 2022 24 He contacted her through Snapchat video calls 16 times, through phone calls 48 times, and through text messages 28 Bateman’s Bay, NSW times, in one day. The complainant reported the matter to police. The complainant (Police notes) Incidents said to prove tendency (3) The accused had a tendency to ignore the complainant’s protests when she declined sexual intercourse, and became aggressive and/or have sexual intercourse with her anyway Particulars of date/time Incident /place/ witnesses Incident The accused returned home intoxicated and tried to get the Approximately 12.58am, 2 2 complainant to have sex with him. The complainant refused December 2017 due to being 8 months pregnant and not up to it. The accused became verbally aggressive and threatened to Bateman’s Bay, NSW “bash” the complainant. The complainant was scared and thought the accused was going to assault her. She grabbed The complainant (Police the accused around the neck and pushed him up against the notes) wall. The accused became more aggressive and pushed the complainant’s shoulder. The complainant threw an X-box console at the accused, striking him in the head. The accused went outside on the street and ran screaming down the street. Incident The accused wanted the complainant to perform oral sex on 5 weeks after their second 7 him, she refused. The accused choked the complainant until child was born was born she was almost unconscious. South Coast, NSW The accused then penetrated the complainant’s vagina and anus while the complainant cried and screamed. The complainant (EICI) The complainant had said she did not want to have sex with him because she was still bleeding from giving birth 5 weeks earlier. Their first daughter was present in the room throughout. Incident At 3.10pm on Monday 6 February 2023 the accused was Approximately 10.05pm, 6 25 released from Long Bay Correctional Centre in NSW. At February 2023 around 9.45pm, the accused attended the complainant’s (Counts house in Canberra. The complainant was scared, but acted Canberra 1 and 2) as if everything was alright. The complainant After about 20 minutes, the accused told the complainant to have a shower with him. The accused got undressed and got in the shower, and the complainant joined him shortly after. They hugged. The accused tapped her on the shoulder. The accused pushed her down onto her knees and made her perform oral sex on him. Eventually the complainant told the accused that she didn’t want to do it anymore and stopped. Once she stopped, the accused sat on the ground with his back to the wall and his legs straight out in front of him. He told the complainant he wanted to put his mouth on her vagina, but she refused. The accused continued to say this, and then told her to sit down on his penis. He made her kneel down with her back to his face and sit down, so that his penis entered her vagina for somewhere between two seconds and a minute, but it caused too much pain in her stomach, so she got up. Incident At around 11pm on 6 February 2023 the complainant got into Approximately 11pm, 6 26 bed with the accused. At some point whilst in bed, the February 2023 complainant turned her back to the accused and lay on her Count 3 side. The accused pulled her towards him, and they started Canberra having sex. She got on top of him, and his penis went into her vagina. This caused the complainant a lot of pain in her The complainant stomach. Whilst having sex, the accused kept asking her if it felt okay, and the complainant just agreed saying ‘its fine’. They continued to have sex until the accused ejaculated inside her. It lasted around 5 minutes Incident Shortly after 3.10pm on 7 February 2023, the accused and Shortly after 3.10pm, 7 27 the complainant returned home from picking their daughter February 2023 up from school. The complainant lay down in bed. Counts 6 Canberra – 8 The accused entered the bedroom with a bottle of lubricant. The complainant told him that she didn’t feel like doing that The complainant now, she was too sore, and just wanted to rest. The accused replied, ‘I’ve been stuck in jail because of you, so you owe me’. He removed her skirt and underwear. He then inserted his penis into her vagina. This caused an instant tear and caused her to yell out. The complainant was moaning in pain and kept asking the accused to stop because the pain was too much, however he continued. Eventually the complainant pulled away from the accused. The accused became frustrated and said, ‘well this is why we bought this anyway’, referring to the lubricant. The accused grabbed the lubricant and stated, ‘I don’t like the way you feel, I can’t feel it that much anymore’. The accused told her to turn around, so she got on her hands and knees. Suddenly without warning the accused inserted his penis into her anus. This caused the complainant to scream out as the pain was unbearable. Whilst the accused was penetrating her anus, he grabbed the nozzle to the vacuum and attempted to insert this into the complainant’s vagina, but the complainant said no and threw it across the room. The complainant asked the accused to stop. The accused eventually took his penis out, and said ‘oh, you’re bleeding quite a bit’. He then inserted his penis back into the complainant’s vagina, until he ejaculated inside her. Their first daughter came in and out of the room during the intercourse.
The accused concedes that evidence of the sexual assault allegations in the indictment (counts 1, 2, 3, 6, 7 and 8; incidents 25 – 27 in the Amended Tendency Notice) and incident 7 in the Amended Tendency Notice are admissible as tendency evidence under ss 97 and 101 of the Evidence Act.
The accused also concedes that incidents 2, 7 and counts 1 – 8 on the indictment are admissible as context evidence. In particular, he accepts that the evidence is relevant to explain the complainant’s fear of the appellant, and, that this fear is relevant to whether she consented to each of the acts of sexual intercourse alleged in the indictment.
The accused objects to the admission of the remainder of the evidence of the uncharged acts, either as tendency or as relationship evidence. In summary, he contends that the uncharged acts are not admissible as tendency evidence because (i) the evidence relates to the complainant’s state of mind; and (ii) the evidence is “too general” to satisfy ss 97 or 101 of the Evidence Act. He further submits that the evidence must be excluded under s 101 and/or s 137 because the evidence creates an unfair risk of prejudice – in particular, as a result of the volume of the allegations made.
Legislation
Tendency evidence
Section 97 of the Evidence Act relevantly provides as follows: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless— (a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
In criminal proceedings, s 101 of the Evidence Act additionally provides that: 101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution … (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. Relationship/ context evidence
Section 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) provides as follows: 74A Evidence of family violence may be relevant evidence (1) In a sexual offence proceeding, evidence of family violence may be relevant evidence in the proceeding if it provides context for a fact in issue in the proceeding. Note For when relevant evidence is admissible in a proceeding, see the Evidence Act 2011, s 56. (2) In considering whether evidence of family violence is relevant evidence, the court must take into account that— (a) a single act may amount to family violence; and (b) a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial. (3) In this section: evidence of family violence includes evidence of— (a) in relation to a person—any of the following: (i) the history of the relationship between the person and a family member, including family violence by— (A) the family member towards the person; or (B) the person towards the family member; or (C) the family member or the person in relation to any other family member; (ii) the cumulative effect, including the psychological effect, of the family violence on the person or a family member; (iii) any social, cultural or economic factors that impact on the person or a family member who has been affected by the family violence; and (b) in relation to family violence generally—any of the following: (i) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser; (ii) the cumulative effect, including the psychological effect of family violence on people who are, or have been, in a relationship affected by family violence; (iii) the social, cultural or economic factors that impact on people who are, or have been, in a relationship affected by family violence. family member—see the Family Violence Act 2016, section 9. family violence—see the Family Violence Act 2016, section 8.
Tendency evidence Tendency reasoning
In Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124], Simpson J explained the relevance of tendency evidence as follows: Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.
Tendency reasoning is a particular form of inferential or deductive reasoning that operates in two stages. Where the tribunal of fact is satisfied that a person acted in a specified way, or had a specified state of mind, on a particular occasion or occasions, the tribunal of fact may first draw an inference that the person has or had a tendency to act in a particular way or to have a particular state of mind. The tribunal of fact may then use this tendency in its determination of whether the person acted in the particular way, or had the particular state of mind, alleged by the prosecution on the occasion in question.
Historically, the common law approached tendency (or propensity) evidence with considerable caution, and strictly governed the circumstances in which tendency reasoning could be employed by the tribunal of fact, particularly in criminal proceedings: see, for example, Pfennig v the Queen [1995] HCA 7; 182 CLR 461. In contrast, the Evidence Act, particularly following the amendments made following the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”), takes a less wary approach. Under the current Evidence Act, there is a greater appreciation of the probative value of tendency evidence, and less concern about the potential prejudicial effect of such evidence.
The legislative intent to depart from prior common law restrictions is highlighted by s 94(4) of the Evidence Act (a provision enacted following the recommendation of the Royal Commission), which states: To remove any doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this part to tendency evidence or coincidence evidence about a defendant.
Nonetheless, even following the post-Royal Commission amendments, the circumstances in which the tribunal of fact is permitted to employ tendency reasoning remain constrained. In a criminal trial, the tribunal of fact is only permitted to employ tendency reasoning where the evidence has “significant probative value” (s 97) and the probative value of the evidence “outweighs” its prejudicial effect (s 101). The operation of each of these two provisions is outlined below.
The assessment of the probative value of tendency evidence
Reflecting the two separate inferences that are employed in tendency reasoning (first, an inference that an accused had a tendency; and second, the inference from that tendency that the accused acted in a particular way or had a particular state of mind), the assessment of whether evidence has significant probative value “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. … 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. Hughes v The Queen [2017] HCA 20; 263 CLR 338 at 356 [41].
Matters which may be relevant to the assessment of the probative value of tendency evidence sought to be adduced by the prosecution in a criminal trial include, but are not limited to: (a) the number of incidents establishing the tendency: Hughes at 371 [91]; (b) the temporal distance between the tendency incidents and the alleged acts: McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [30] – [32]; TL v The King [2022] HCA 35; 275 CLR 83 at 98 [37] (see further at [39] below); (c) Any similarity in conduct and circumstances between the tendency incidents and the alleged acts, and among the tendency incidents: TL at 95 [29] (see further at [37] below); (d) Whether the tendency alleged is unusual: Hughes at 393 [155]; (e) The specificity (or generality) of the tendency alleged: TL at 95 [29]; Hughes at 363 [64] (see further at [38] below); (f) Whether tendency evidence involves a single complainant, or more than one complainant: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at 82 [48], 83 [50] and 88 [60] (see further at [38] below); (g) The nature of the tendency alleged (including whether “logic and human experience” suggest that the tendency is such as to be probative of the facts in issue: Hughes at 356 [40]); (h) The extent to which the tendency as particularised will assist in determining the fact(s) in issue: TL at 95 [29]; (i) The issue that the tendency evidence is sought to establish (for example, whether the tendency is adduced to support a witness’ credibility or to establish identity; whether the evidence is adduced to explain or contradict tendency evidence adduced by another party; and/or whether the tendency evidence is adduced to demonstrate a critical fact in the prosecution case): Hughes at 355 [39], but see TL at 96 [30] – [31]); and (j) The other evidence to be presented: s 97(1)(b) of the Evidence Act.
As to item (c) above, it is important to recognise that whilst similarity between the charged acts and the tendency evidence may be relevant to the probative value of the tendency evidence, it is not necessary for tendency evidence to have similarity with the charged acts in order to have significant probative value: TL at 95 [29]; Hughes at 355 [39]. Much will turn on the character of tendency that is particularised. For example, in Hughes a tendency to “engage opportunistically with underage girls despite a high risk of detection” did not depend on similarity in the acts alleged, because the probative value of the evidence was in the “tendency to act on the sexual attraction, despite the evident danger”: Hughes at 362 – 363 [56], [62] – [63].
Assessment of the prejudicial effect of tendency evidence
As outlined above, s 101 of the Evidence Act prohibits tendency evidence about a defendant from being used unless the probative value of the evidence outweighs the danger of unfair prejudice.
Evidence may be unfairly prejudicial if it is liable to be misused by the jury in some way; be given more weight than it deserves; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Hughes at 349 [17]; Bauer at 93 [73]; Marshall v The King [2023] ACTCA 11 at [53]; and R v BC (No 3) [2020] ACTCA 49 at [40]. “Unfair prejudice” is not limited to the possible impact of the evidence on the jury’s reasoning. It is “apt to encompass some aspects of a fair trial”: The Director of Public Prosecutions v DL [2018] ACTCA 61; 14 ACTLR 62 at [30]; R v Chase (a pseudonym) [2018] NSWCCA 71 at [33].
However, the prejudice must be “unfair”. “Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted”, nor is there unfair prejudice in “the inculpatory consequence of its proper use”: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91] and Festa v The Queen [2001] HCA 72; 208 CLR 593 at 603 [22].
As the majority of the High Court observed in Hughes at [17], the admission of tendency evidence 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.
When assessing the prejudicial effect of tendency evidence, the warnings and directions that may be given to the jury must also be taken into account: see ABR (a pseudonym) v R [2020] NSWCCA 33 at [37]; Mol v R [2017] NSWCCA 76 at [36]; BC v R [2015] NSWCCA 327 at [110]; Bauer at 94 [74]; R v BC (No 3) at [37].
As originally enacted, s 101 required that the probative value “substantially” outweigh the danger of unfair prejudice. The word “substantially” was removed by the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) (2020 Amending Legislation). This amendment has reduced the “hurdle” the prosecution must overcome to secure the admission of tendency evidence: Taylor at [122], per Bell P (in dissent, but not on this issue), citing R Weinstein, et al, Uniform Evidence Law in Australia (Lexis rd Nexis, 3 ed, 2020) at 528 – 531.
Context/relationship evidence Assessment of the probative value of context or relationship evidence
Even where evidence is inadmissible for tendency purposes, evidence may be admissible if it is relevant as context or relationship evidence.
The reasoning process for context or relationship evidence is different to tendency reasoning. For example, evidence may be relevant as context or relationship evidence because it explains why the complainant did not respond to the alleged offending in a way that the jury might have expected if they were unaware of the broader context of the relationship. The use of evidence in this way does not engage tendency reasoning. It is concerned with the believability of the complainant’s response, rather than with the tendency of the accused.
Similarly, context or relationship evidence may also be relevant to a consideration of the accused’s state of mind without engaging tendency reasoning. For example, it may be necessary for the tribunal of fact to hear broader evidence of the relationship between an accused and the complainant in order for the tribunal of fact to draw accurate inferences about an accused’s state of mind, or their reason for acting in a particular way towards the complainant. Again, the use of evidence in this matter does not engage tendency reasoning. It is not reasoning which involves the tendency of an accused to have a particular state of mind or to act in a particular way.
Evidence of other acts of an accused can be particularly important in trials involving sexual assault and domestic violence allegations. For example, in DS v R [2022] NSWCCA 55 at [120], Fullerton J accepted that evidence of past violence that the offender had inflicted upon the complainant was relevant to explain the complainant’s fear of having further violence inflicted on her if she did not submit to sexual intercourse. Her Honour further held that the same body of evidence was also available as informing the accused’s knowledge that he knew that the complainant was not consenting on the occasions alleged on the indictment. See similarly R v Fordham (1997) 98 A Crim R 359 at 369 – 370; R v Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 at [24] – 28], [72]; R v PAB [2006] QCA 212; [2008] 1 QdR 184 at [24] – [26]; R v Sadler [2008] VSCA 198; 20 VR 69.
Similarly, in MM v The Queen [2012] ACTCA 44; 232 A Crim R 303, a majority of the ACT Court of Appeal held that evidence of the family dynamics between the complainant and the accused – including of physical and verbal violence perpetrated on or in the presence of their son, and of sexual violence perpetuated in the presence of their son – was admissible as context evidence in a trial concerning an allegation of sexual assault without consent due to its “direct [relevance] to the complainant’s reasons for acting as she did”: MM at [6] – [8], per Penfold J, Burns J agreeing as to the admissibility of this 2 evidence.
2 However, the appeal was allowed on the basis of a determination by a majority of the Court that other, more prejudicial evidence, concerning “degrading” acts that had been performed by the appellant was unfairly prejudicial: MM at [9] and [109].
The relevance of context evidence in sexual assault cases involving allegations of domestic violence is now expressly recognised in the Australian Capital Territory by s 74A of the EMP Act, which was introduced into the EMP Act by the Sexual Assault Reform Legislation Amendment Act 2023 (ACT). Section 74A is an affirmation of contemporary understandings of family violence and its connection to sexual offending. The Revised Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) (Explanatory Statement to the 2023 Amending Legislation) explained that s 74A was prompted by evidence indicating that a “significant percentage of victim survivors of sexual assault also experience domestic and personal violence”. Bearing this connection in mind, the provision is intended to: … assist the factfinder to better evaluate the true nature of relationships between the parties and why the victim survivor reacted the way as they did, which is vital to counter any misunderstandings of why someone acted in a particular way in response to sexual violence. (Explanatory Statement to the 2023 Amending Legislation at 12 [2])
Importantly, s 74A contains an explicit recognition of the “cumulative effect” of family violence, and specifically that “a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial” (sub-ss 74A(2)b), 74A(3)(b)(iii)).
Section 74A is not intended to render admissible evidence that would not have been admissible as context or relationship evidence at common law. Accordingly, relationship evidence which is not capable of providing context to the allegations will not be admissible: Explanatory Statement to the 2023 Amending Legislation at 5, citing R v ATM [2000] NSWCCA 475. Further, where the prejudicial effect of relationship or context evidence outweighs its probative value in a criminal trial, the evidence must be excluded under s 137 of the Evidence Act: Explanatory Statement to the 2023 Amendment Legislation at 5.
Where evidence is admitted as context or relationship evidence, but is not admissible as tendency evidence, careful directions will be required to ensure that the evidence is not used by the jury for the impermissible tendency purpose. Any difficulty in formulating effective directions must be considered when determining whether the evidence should be excluded under s 137.
Assessment of the prejudicial effect of context or relationship evidence
Section 137 of the Evidence Act provides that, in a criminal proceeding, the court “must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.
Following the amendments to s 101, the text of ss 101 and 137 now align. The considerations outlined at [41] – [48] above which are relevant to the assessment of prejudice under s 101 will be equally relevant under s 137.
Determination
Relationship or context evidence
The accused’s counsel accepted that the uncharged incidents are relevant as context or relationship evidence. This concession was correctly made.
In the present case, there are various aspects of the complainant’s behaviour which, if considered in isolation, may be considered by the jury to be highly implausible. By providing insight into the nature of the relationship, the uncharged acts, if accepted, are capable of assisting the jury to understand why the complainant acted as she did. In particular, they may assist the jury to understand why the complainant permitted the accused to return to her in breach of the AVO and the FVO; why she did not express surprise or resistance when the accused demanded that she fellate him and forced her to engage in sexual intercourse with him (in respect of counts 1 and 2); her behaviour in apparently acquiescing to sexual intercourse in respect of count 3; and why she did not immediately complain to her social worker and to police when she had the opportunity to do so.
The uncharged acts are also relevant to the accused’s state of mind at the time of each of the charged acts. If the jury accepts that the uncharged acts occurred, it is open to them to reason that the accused’s knowledge of his own prior acts of violence towards the complainant is relevant to his understanding of whether the complainant was consenting in respect of the acts of sexual intercourse alleged on the indictment (particularly count 3).
Although the accused’s counsel accepted that the uncharged acts were relevant, the accused’s counsel submitted that the evidence of those acts should be excluded under s 137 of the Evidence Act because there is already “enough” context evidence that will be admitted in the trial. He submitted that: … if this case didn't have prior sexual assault allegations or violence involving choking and violent penetrative sex … then the relationship evidence would have more significance. … But there is a process of marginal return for increasing cost.
It must be accepted that a criminal trial cannot examine every interaction in a relationship, which may span years, or decades. It may be difficult for an accused person to answer allegations of uncharged acts over long periods of time. There is also a risk that if a substantial duration of the trial is consumed by a consideration of the nature of the relationship (which itself may be contested), the jury may be distracted from their task of determining whether the charges have been proved beyond reasonable doubt. There will come a point in a criminal trial when the probative value of adducing evidence of additional past interactions between the accused and the complainant is not sufficient to outweigh these risks. However, great care needs to be taken in deciding where that line should be drawn.
Counsel for the accused submitted that the line should be drawn in the present case between context evidence of a sexual and non-sexual nature. In particular, he contended that because the context evidence is relevant to the issue of whether the complainant consented, incidents of a non-sexual nature which do not directly raise questions of consent should not be admitted.
Tendency evidence
As outlined above, the admission of the uncharged acts as relationship or context evidence does not wholly determine how the evidence may be used: s 94 of the Evidence Act. The evidence can only be used for tendency reasoning if the evidence has significant probative value, and its probative value as tendency evidence outweighs its potential the prejudicial effect: ss 97 and 101 of the Evidence Act.
In the present case, the prosecution seeks to rely on the uncharged acts to demonstrate the following three tendencies: (i) The accused had a tendency to be violent towards the complainant to exert his control over her, (ii) The accused had a tendency to disregard court orders which regulated contact between him and the complainant to exert his control over her, and (iii) The accused had a tendency to ignore the complainant’s protests when she declined sexual intercourse, and become aggressive and/or have sexual intercourse with her anyway.
It is convenient to separately address each of these tendencies.
The first tendency: to be violent towards the complainant to exert his control over her
The accused contended that the first tendency did not have significant probative value because it was too broadly expressed. I do not accept this contention.
It has been accepted that evidence that an accused had a tendency to inflict violence on an intimate partner may have significant probative value in assessing similar allegations of domestic violence, whether against that partner or another partner: see for example, DPP v Ivanisevic [2023] ACTSC 34 at [18]; see also Taylor at [145], per Beech Jones J (with whom Walton J agreed, Bell P dissenting). It has also been accepted that evidence of a tendency to engage in violence against an intimate partner “as a means of control” may have significant probative value in respect of an allegation of sexual violence that is alleged to have been inflicted as a “means of control”: Harlen (a pseudonym) v The King [2023] VSCA 269 at [74].
I do not accept that a tendency that encompasses both physical and sexual violence is, for that reason alone, lacking in probative value. A tendency of an accused to exert control over a particular complainant via physical violence may be strongly probative of an allegation that the accused attempted to exert control over that complainant via sexual violence.
However, this conclusion does not determine the probative value of the tendency evidence that is sought to be adduced in this case. As outlined above, the Court must consider two questions when considering the probative value of a tendency of this nature: (1) Does the evidence that is sought to be adduced, either by itself, or considered with other evidence, strongly support proof of the tendency? (2) Does the tendency strongly support proof of a fact that makes up the offence charged?
There are difficulties that arise in respect of both questions in the present case.
As to the first, whilst each of the uncharged incidents involve the infliction of physical harm upon or towards the complainant, there is insufficient contextual information in respect of a number of the incidents (for example, incidents 1, 4, 5 and 6) to draw an inference as to why the appellant acted as he did, and in particular, for the jury to draw an inference that he inflicted violence so as “to assert control”.
More fundamentally however, whilst it may be accepted that a tendency to be violent towards the complainant to exert control over her may be strongly probative of the allegations in counts 6 – 8 (and, to a lesser extent, counts 1 and 2), the same cannot be said for count 3.
Specifically, the prosecution case in respect of counts 6 – 8 is that the complainant refused consent, and that the accused replied ‘I’ve been stuck in jail because of you, so you owe me’. It is alleged that the accused then forcefully inserted his penis into the complainant’s vagina and penis, whilst ignoring her screams of pain. The connection between evidence of prior violence to exert control and those counts is readily apparent. A tendency on the part of the accused to be violent to the complainant so as to exert control (or to obtain his will through violence) is strongly probative of the facts in issue in respect of these counts.
The second tendency: The accused had a tendency to disregard court orders which regulated contact between him and the complainant to exert his control over her
The third tendency: The accused had a tendency to ignore the complainant’s protests when she declined sexual intercourse, and become aggressive and/or have sexual intercourse with her anyway
The incidents relied on by the prosecution in support of this tendency are limited to the counts on the indictment, incident 2 and incident 7. Incident 2 is not currently the subject of any evidence in the EICI. For the reasons outlined above, I consider that any decision concerning the admissibility of incident 2 for tendency purposes should be made when the evidence of this incident is contained in a further EICI.
The accused does not dispute that incident 7 and the counts on the indictment are cross-admissible for tendency purposes. The precise formulation of the tendency (and, accordingly, whether the evidence of incident 2 is admissible in support of the tendency as framed) should await the obtaining of further evidence concerning count 2 in any EICI.
Conclusion
For the reasons outlined above, I have concluded that the evidence of incidents 1, 3, 4, 6, 8 – 13, 15, 16 and 19 is relevant as relationship or context evidence in support of counts 1 – 3 and 6 – 8 on the indictment, and that, on the information presently available, that evidence should not be excluded under s 137 of the Evidence Act.
I have determined that the evidence of those incidents must not be used in support of the first two tendencies particularised in the Amended Tendency Notice. The precise framing of the third tendency must await any further EICI participated in by the complainant.
I note that the accused did not object to the admissibility of evidence of incident 7 and each of the counts on the indictment (incidents 25 – 27) as tendency evidence.
Careful directions will need to be formulated which direct the jury as to which incidents may be the subject of tendency reasoning, and which incidents are admitted solely for the purpose of providing context to the allegations. On a pre-trial application of this nature, it is not the function of this Court to draft the specific directions that will be given to the jury: Restricted judgment [2024] ACTSC 25 at [7]. It is sufficient to record that I am satisfied that comprehensible directions can be given, which explain that evidence relating to the uncharged acts of physical violence is admitted as relationship or context evidence and cannot be used for tendency purposes, whereas evidence relating to the occasions of sexual intercourse without consent may be used as tendency evidence.
Incidents 2, 5, 14, 17, 18, 21, 22, 23 and 24 are not currently the subject of evidence in an EICI. Consequently, I do not consider that it is appropriate for me to rule on the admissibility of evidence relating to those incidents at this stage.
Orders
I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 19 February 2024
DPP
Mastalerz [2024] ACTSC 30
Incidents 2, 5, 14, 17, 18, 21, 22, 23 and 24 are not currently the subject of evidence in an EICI. I do not consider that it is appropriate for me to rule on the admissibility of evidence of those incidents at this stage.
I note that the accused does not object to the admissibility of evidence of incident 7 and each of the counts on the indictment (incidents 25 – 27) as tendency evidence.
The complainant, the accused and their daughter then returned home. Her support worker observed them entering their address. Her support worker returned shortly after and, as no one was outside and the blinds were drawn, contacted the complainant. The complainant met her support worker at the gate (which was unusual). Her support worker observed the accused at the front door.
Once at home, the complainant lay down on the bed, because she was exhausted. The accused then lay down on the bed as well. The prosecution alleges that the complainant told the accused that she did not want to have sexual intercourse. The accused replied, “I’ve been stuck in jail because of you, so you owe me”. He then forced his penis into her vagina (count 6). The complainant was moaning in pain and begged the accused to stop. He continued to penetrate her again. The accused then penetrated the complainant’s anus with his penis (count 7). The complainant had tears running down her face from the pain. The accused eventually took his penis out and said, “oh you’re bleeding quite a bit”. He then inserted his penis back inside her vagina (count 8).
At around 5:30pm, police attended the complainant’s house to do a welfare check on the complainant in response to a request from her support worker, who had informed police that she had observed the accused at the complainant’s house and the complainant was acting “totally out of the ordinary”. The complainant told police that the accused was not there, but gave them permission to search the house. Police located the accused hiding in a wardrobe. He was placed under arrest for breaching the FVO. The complainant then participated in an-evidence-in-chief interview (EICI), in which she reported the assault at the school, but did not disclose the sexual assaults. The complainant first disclosed the sexual assaults to her support worker the following day.
The prosecution alleges that on 11, 13 and 14 February 2023, the accused called the complainant from custody on a number of occasions, in breach of the Family Violence Order (count 9). On 7 March 2023, the accused sent the complainant a Valentine’s Day card, which was also in breach of the FVO (count 10). Between 19 May 2023 and 30 May 2023, the accused called the complainant via a friend on 34 occasions. These calls were also in breach of the FVO (count 11).
Even where relationship or context evidence is admissible under s 74A of the EMP Act, such evidence may still be excluded under s 137 of the Evidence Act, which provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Principles
As noted at (e) above, particularity in the object of a tendency is also relevant to the assessment of the probative value of the evidence sought to be used for tendency purposes. In a unanimous decision in Bauer, the High Court held that a complainant’s evidence of an accused’s uncharged acts (including acts demonstrating a sexual interest) in relation to them may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant, provided that the two are “not too far separated in point of time”: Bauer at 82 [48], 83 [50] and 88 [60]. This is because “where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents”: Bauer at 88 [60]. See similarly TL at 98 [37] (“the tendency to deliberately and violently inflict serious physical harm on the victim concerned acts directed to a single person”).
As noted at (j) above, it is important to bear in mind that an assessment of the strength of a particular piece of tendency evidence is not to be assessed in isolation. Section 97(1)(b) of the Evidence Act requires the Court to consider whether the evidence may have significant probative value “having regard to other evidence presented or to be presented”. This is particularly important when considering the temporal distance between the tendency acts (item (b) above). Specifically, tendency evidence which concerns an alleged act that is remote in time from the act(s) which are the subject of the charges may have probative value when considered together with other tendency evidence which occurred at a time that is proximate to the offending. Alternatively, tendency evidence may still have significant probative value despite a lengthy gap in time if the tendency will only manifest in specified circumstances and those circumstances have not arisen in the intervening period: Taylor v R [2020] NSWCCA 355 at [146], per Beech Jones J; cf McPhillamy at [26].
Finally, in assessing the probative value of the evidence, the Court must take the evidence “at its highest” and assume that the evidence will be accepted by the tribunal of fact: TL at 95 [28]; IMM v The Queen [2016] HCA 14; 257 CLR 300 at 312 [39] and 315 [52]. Other than in exceptional cases, such as where the evidence is “incredible, fanciful or preposterous”, considerations of credibility or reliability should not be taken into account when determining the admission of evidence for tendency purposes: IMM at 312 [39].
The amendment was enacted in response to the Royal Commission’s recommendations, which drew upon evidence – including from a study commissioned by the Royal Commission, various other studies, real-world data and case law – which suggested that earlier concerns about the risks of juries engaging in impermissible reasoning when tendency evidence is admitted had been overstated: Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, 2017), pts III – VI, at 607 – 628, 640 – 641.
The 2020 Amending Legislation also replaced the reference in s 101 to “prejudicial effect” to “unfair prejudice”. This aspect of the amendment was not intended to result in any change of the operation of the provision: Stephen Odgers, Uniform Evidence Law th (Thompson Reuters, 18 ed, 2023) at [101.183].
I do not agree. As s 74A of the EMP Act recognises, physical violence, even violence which, considered alone, may seem minor or trivial, may nonetheless “form part of a pattern of behaviour”, the cumulative effect of which is to shed a very different light on allegations of sexual offending.
In the present case, some of the incidents sought to be adduced by the prosecution may, when considered in isolation, seem minor. For example, as the prosecutor acknowledged, incident 13, where the accused is alleged to have thrown a cheeseburger at the complainant, may appear insignificant when considered alone. However, the relentlessness of the accused’s behaviour towards the complainant may be an important aspect of the complainant’s experience of the relationship, which in turn may be essential to an understanding of the complainant’s state of mind, and why the complainant responded as she did.
It would be difficult for the Court to ‘edit’ the complainant’s account by determining that she may give evidence of some, but not all of the prior incidents of violence that are recorded in the complainant’s EICI. How can the Court determine which prior incidents affected a complainant’s state of mind at a given point in time? The throwing of food may have particular salience for one complainant, whereas for another, the throwing of a phone may have had more significance. For this reason, responsibility for ensuring that context evidence does not overwhelm the charged offences must first lie with the prosecution, who may ascertain which prior incidents of family violence are of the most importance to the issues in the trial (such as the complainant’s state of mind), including by conferencing the complainant.
Of course, this does not absolve the Court from its responsibility to determine the admissibility of the evidence, and, where necessary to limit the complainant’s 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”: R v AN [2000] NSWCCA 372; 117 A Crim R 176 at [148], cited in MM at [57].
In the present case, there is evidence of 22 uncharged acts which are objected to by the accused. Of those, nine are currently not the subject of evidence in an EICI. Evidence concerning those incidents (incidents 2, 5, 14, 17, 18, 21, 22, 23 and 24) is currently contained in New South Wales Police records. In circumstances where a potentially significant form of prejudice is the added time that will be taken by adducing evidence of these incidents, I do not consider that it is appropriate for me to rule on the admissibility of those incidents at present. It is sufficient for me to record that, on the information presently available, those incidents have the capacity to assist the jury in its determination of the facts in issue. Whether or not those incidents should be excluded under s 137 of the Evidence Act should be addressed once the complainant has participated in any further EICI.
Evidence of the remaining 12 uncharged acts that are the subject of challenge (incidents 1, 3, 4, 6, 8 – 13, 15, 16 and 19) are contained in an EICI which was conducted for the purpose of adducing information from the complainant concerning the relationship between the complainant and the accused. That recording is approximately two and a half hours in duration.
Two and a half hours of relationship evidence is quite long for relationship evidence in a trial concerning allegations of sexual offending that occurred over a two day period. There will also be cross-examination concerning these incidents. As I do not know whether the accused admits that any of these acts occurred, whether he denies that they occurred, or whether he contends that the acts occurred in different circumstances, it is not possible for me to estimate the likely duration of that cross-examination.
However, in the circumstances of this particular trial, where the relationship evidence is critical to the jury’s understanding of the complainant’s behaviour before, during and after the alleged offences, the probative value of the evidence is very high. Careful directions may be given by the trial judge which will emphasise the jury’s task, and the purpose for which the evidence of uncharged acts has been admitted. With the benefit of these directions, the volume of the evidence will not be such as to distract the jury from their task of determining whether the counts on the indictment are proved beyond reasonable doubt.
In addition to the volume of the material, the accused’s counsel also pointed to the following specific prejudices that arose in relation to individual incidents: (i) Incident 1 (backhanding the complainant across the mouth): involves a lower degree of violence and is remote in time. Incident 2 provides a similar starting point. (ii) Incident 3 (throwing a bike wheel at the complainant): there is no context connecting this event to circumstances relating to consent; (iii) Incident 4 (punching the complainant): this incident is the subject of an outstanding charge in Queensland. Requiring the accused to answer this charge is contrary to the right to silence; (iv) Incident 6 (punching the complainant whilst vacuuming): there is no context connecting this event to circumstances relating to consent. The incident also alleges intoxication. The complainant has little memory of the event; (v) Incident 8 (throwing the complainant’s phone and pushing her whilst the complainant was pregnant): this offending is less serious and the reference to the complainant’s unborn child is emotive and creates unfair prejudice; (vi) Incident 9 (kicking the complainant and digging his nail into her): this offending is less serious; (vii) Incident 10 (choking the complainant with a broom handle): there are no counts of choking on the indictment, and there is a risk that the jury will reason that a person who is prepared to choke a person may be more willing to sexually assault the person; (viii) Incident 11 (punching the complainant in the arm whilst she was nursing a baby): the assault is less serious, and the reference to the baby is unduly emotive; (ix) Incident 12 (throwing a hot chocolate and a burger at the complainant and punching the window of the complainant’s car): this is a less serious assault, and there are no circumstances that relate to consent. (x) Incident 13 (throwing a cheeseburger at the complainant): this is a less serious assault, and there are no circumstances that relate to consent. (xi) Incident 15 (throwing a hot pie at the complainant): there is no direct connection with consent. (xii) Incident 16 (throwing a phone, and threatening assault): this involves less serious violence, and the facts are remote from consent.
Whilst incident 1 is remote in time, it is the first incident of violence which the complainant recalls. The length of time that the complainant says she experienced family violence is highly relevant to an understanding of the relationship between her and the accused – which is in turn, relevant to consent.
For the reasons outlined above, I reject the accused’s submission that evidence of certain of these incidents (incidents 3, 6, 8, 9, 11, 12, 13, 15 and 16) should be rejected on the basis that the incidents involve less serious conduct, or “facts that are removed from consent”. Section 74A emphasises that less serious family violence conduct may be highly relevant in assisting a jury to understand the context of sexual assault allegations.
Nor do I accept the accused’s submission that incident 10, which involves more serious conduct than the other uncharged acts, should be excluded on that basis. The incident is not more serious than the allegations on the indictment. To permit the prosecution to only adduce evidence of minor incidents, and not the more serious incident of choking, would present a misleading picture of the relationship between the accused and the complainant. I will consider the admissibility of the evidence for tendency purposes below. Where evidence is not adduced for tendency purposes, strong directions may be given to the jury to guard against impermissible reasoning.
I do not accept that the references to the complainant’s child renders the evidence unfairly prejudicial (incidents 8 and 11). The state of the complainant (as pregnant, nursing a baby) is an important aspect of how the violence would have been experienced by the complainant.
I also do not accept that the complainant’s lack of complete recall in respect of incident 6 renders this evidence unduly prejudicial. The complainant’s lack of recall may be the subject of cross-examination.
This leaves incident 4, which is the subject of an outstanding charge in Queensland. The accused contended that evidence relating to this incident should be excluded because requiring the accused to answer this charge would be contrary to his right to silence in the Queensland proceedings. However, as the prosecutor observed, in DL at [41], the Court of Appeal held that prejudice to an accused in other proceedings does not fall within the meaning of “prejudicial effect” in s 101 of the Evidence Act. The Court’s reasoning in DL applies equally to the consideration of prejudice under s 137. As I am bound by the decision in DL, it follows that I must not take into account this aspect of the prejudice identified by the accused.
In contrast, the Crown Case Statement in respect of count 3 indicates that the complainant’s evidence is that: At some point whilst in bed, the complainant turned her back to the accused and lay on her side. The accused pulled her towards him and they started having sex. She got on top of him and his penis went into her vagina. This caused the complainant a lot of pain in her stomach. Whilst having sex, the accused kept asking her if it felt okay and the complainant just agreed saying ‘its fine’. They continued to have sex until the accused ejaculated inside her. It lasted around 5 minutes.
There is no indication in the Crown Case Statement that the evidence to be adduced in support of count 3 will indicate that the accused was acting with an intent “to assert control”. In respect of count 3, those additional words add nothing to the tendency alleged, and may positively detract from the facts in issue.
In respect of count 3, the prosecution has indicated that it will contend that although the accused asked the complainant “if it felt ok”, he was, or should have been, aware that the complainant did not consent, particularly because of his own knowledge of the violence that he had previously inflicted on the complainant when she had refused to comply with his will: see s 67(4) of the Crimes Act. As outlined above, the evidence of the uncharged acts may be relevant to the jury’s consideration of the accused’s state of mind as context evidence. Such reasoning does not involve tendency reasoning.
However, it is difficult to see how the tendency particularised could be strongly probative of such a case of negated consent on the basis of recklessness as to consent. Whilst all sexual offending can be characterised as violent conduct (R v M, BJ [2011] SASCFC 50; 220 A Crim R 92 at [22]), the nature of violence involving a case of consent that is negated on the basis of recklessness is of a very different character to the nature of violence by engaging in sexual intercourse while knowing that the complainant does not consent to that intercourse. Accordingly, the uncharged acts do not have significant probative value in respect of count 3.
I have determined above that evidence of incidents 1, 3, 4, 6, 8 – 13, 15, 16 and 19 are relevant as relationship or context evidence in support of counts 1 – 3 and 6 – 8 on the indictment. The accused has also properly accepted that each of the counts on the indictment (incidents 25, 26 and 27), as well as incident 7 (which involves non-consensual sexual offending), are cross-admissible as tendency evidence. To add to this a further direction that the jury may use the uncharged acts as tendency evidence in support of counts 6 – 8 (and possibly counts 1 and 2), but not count 3, would inevitably cause confusion. It would be difficult to formulate a jury direction that could be understood by lawyers experienced in tendency law, much less by the laypersons constituting the jury.
In these circumstances, the probative value of the use of the uncharged acts in support of this tendency is outweighed by the danger of unfair prejudice.