MM v R [2012] ACTCA 44

MM v R [2012] ACTCA 44 - ACTCA 2013 case summary — Zoe

[83]

- After the complainant became pregnant with their son C in 1997, the appellant "was always drunk. He didn't go to class. He didn't do his work. All he cared about was drinking and playing pool"

- Prior to C's birth, the appellant would put his fingers in her vagina while she was asleep and sometimes "he would be masturbating next to me while he did this". He "also started having sex with me while I was asleep".

- After C's birth, the appellant would yell and scream about the complainant and C having "disrupted his life". Sometimes "it would be because he was drunk but sometimes he just was angry anyway".

- Within a couple of weeks of C's birth the appellant "forced" the complainant to have sex by threatening to hurt C by holding him out in his arms and saying that "he would drop him if I didn't have sex".

- They moved to Claude Street in early 1998 and the appellant became insistent on having anal sex, using sex toys, vegetables, "Impulse deodorant cans", trying to put his fist into the complainant's vagina, sucking the complainant's breasts; pull her nipples. He "would have sex with me at the same time he was using an object on me". The complainant did not consent to any of this sexual behaviour.

- When they moved to Taylor Street, "there was more of the sex while I was asleep and that's where he first did the violent rapes". He would hold her down while she was struggling to get him off her.

- When they moved to Bundarra Road in Armidale in late 1999 or early 2000, on one occasion the appellant wore the complainant's bikini bottoms. He told her he had been wearing them "all day". C was present and the appellant had an erection.

- The appellant would have sex with the complainant while she was breastfeeding C. He continued to have sex with her while she was sleeping. He did not seem to care that he would wake up C.

- At Bundarra Road, he was violent, "he would throw things, he would punch the walls, punch the doors. He would push me, push me into things. Occasionally, he'd hit me. He hurt C. He's come home in drunken rages and he ... slammed [C's] head in the screen door".

- The complainant became pregnant again after non-consensual sex with the appellant.

- When they moved to Rivett in Canberra in October 2002, the appellant used "lots of verbal abuse ... how worthless I was, how worthless C was; we just weren't good enough. C was inadequate, he was a wimp. I was a bitch. We were ruining [MM]'s life, we were holding him back. It was pretty much every day".

- After the appellant moved back in May 2004 (having left in July 2003) "nothing had changed" in terms of violence. There was no "normal sex", "it would involve objects or mirrors or there was degrading ... he had nipple clamps". He would use a vibrator "vaginally and anally on me while he was having sex with me". He waxed her vagina despite her indicating she did not want him to do it, he said he "didn't care".

- The appellant "would make me spread my legs as wide as possible and he would make me spread my vaginal lips as wide as possible or he would and he would just sit and look or use a torch to look".

- In August 2004 "C ... told [MM] to get out" and the appellant left home.

- After they separated, he helped her move house (in 2004) and "wanted sex in payment for helping me move". He placed his penis in her vagina but she told him no and rolled over.

- In August 2005 the appellant tried to get into bed with the complainant but she resisted and he "called me a bitch ... a fucking cunt and he punched me ... in the eye". She had a "very obvious bruised eye". She told "everyone I fell out of bed" except for Tony Hurlt (sic), a work colleague, who she told "what had happened".

[89]

During the trial you heard evidence about certain conduct allegedly engaged in by the accused towards the complainant and their son. That evidence was led by the prosecution to provide a background to the relationship between the accused and the complainant and to give you a fuller picture or context concerning that relationship. It may enable you to assess the circumstances of the conduct that led up to the events which are the subject of the charge and for that specific purpose only. That is because it would be unrealistic to present the count in a sterile environment divorced from the underlying relationship that existed between the parties.

That evidence is not to be used by you to show the accused had a tendency to act in a certain way but only as background material to help you understand the context in which it is alleged by the prosecution that the accused acted, as it says he did, in respect of the charge he now faces.

The alleged prior conduct may be considered by you to be an integral part of the history leading up to the events the subject of the charge, as part of the continuing relations between the complainant and the accused. You may only take into account that evidence if you are satisfied beyond reasonable doubt that it has occurred.

That evidence does not directly relate to the charge brought against the accused. Ordinarily you would not hear such evidence for that very reason. But here it is before you because if you accept it as truthful it will give you background information which may assist you to assess other evidence in the trial. That is because it may enable you to consider the complainant's evidence directly relevant to the matters the subject of the charge in a proper and full context. That is the only reason it is before you. It is not there for you to use to form any prejudice against the accused.

You must not, if you are satisfied that the accused engaged in other behaviour towards the complainant and their son, reason that he is the sort of person that would commit the offence with which he has been charged. You must be satisfied beyond reasonable doubt on the count before you, based upon the evidence relating to that count. You, of course, must not reason that if you are not satisfied beyond reasonable doubt that the accused is guilty of the count before you then that he is guilty of other matters of which evidence has been given so you will then be minded to find him guilty of this charge. That is not of course open to you.

[140]

(a) After the complainant became pregnant with their son in 1997, the appellant "was always drunk. He didn't go to class. He didn't do his work. All he cared about was drinking and playing pool".

(b) Prior to their son's birth, the appellant would put his fingers in her vagina while she was asleep and sometimes "he would be masturbating next to me while he did this". He "also started having sex with me while I was asleep".

(c) After their son's birth, the appellant would yell and scream about the complainant and their son having "disrupted his life". Sometimes "it would be because he was drunk but sometimes he just was angry anyway".

(d) Within a couple of weeks of their son's birth the appellant "forced" the complainant to have sex by threatening to hurt their son by holding him out in his arms and saying that "he would drop him if I didn't have sex".

(e) They moved in early 1998 and the appellant became insistent on having anal sex, using sex toys, vegetables, "Impulse deodorant cans", trying to put his fist into the complainant's vagina, sucking the complainant's breasts and would pull her nipples. He "would have sex with me at the same time he was using an object on me". The complainant did not consent to any of this sexual behaviour.

(f) When they moved again, "there was more of the sex while I was asleep and that's where he first did the violent rapes". He would hold her down while she was struggling to get him off her.

(g) When they moved again in late 1999 or early 2000, on one occasion the appellant wore the complainant's bikini bottoms. He told her he had been wearing them "all day". Their son was present and the appellant had an erection.

(h) The appellant would have sex with the complainant while she was breastfeeding their son. He continued to have sex with her while she was sleeping. He did not seem to care that he would wake up their son.

(i) At one place, he was violent, "he would throw things, he would punch the walls, punch the doors. He would push me, push me into things. Occasionally, he'd hit me. He hurt [our son]. He's come home in drunken rages and he ... slammed [our son's] head in the screen door".

(j) The complainant became pregnant again after non-consensual sex with the appellant.

(k) When they moved in October 2002, the appellant used "lots of verbal abuse ... how worthless I was, how worthless [their son] was; we just weren't good enough. [Their son] was inadequate, he was a wimp. I was a bitch. We were ruining [the appellant's] life, we were holding him back. It was pretty much every day".

(l) After the appellant moved back in May 2004 (having left in July 2003) "nothing had changed" in terms of violence. There was no "normal sex", "it would involve objects or mirrors or there was degrading ... he had nipple clamps". He would use a vibrator "vaginally and anally on me while he was having sex with me". He waxed her vagina despite her indicating she did not want him to do it, he said he "didn't care".

(m) The appellant "would make me spread my legs as side as possible and he would make me spread my vaginal lips as wide as possible or he would and he would just sit and look or use a torch to look".

(n) In August 2004 "[their son] ... told [the appellant] to get out" and the appellant left home.

(o) After they separated, he helped her move house (in 2004) and "wanted sex in payment for helping me move". He placed his penis in her vagina but she told him no and rolled over.

(p) In August 2005 the appellant tried to get into bed with the complainant but she resisted and he "called me a bitch ... a fucking cunt and he punched me ... in the eye". She had a "very obvious bruised eye". She told "everyone I fell out of bed" except for a work colleague, who she told "what had happened".

[142]

(a) To show that the relationship between the appellant and the complainant was characterised by violence and domination and control by the appellant over the complainant. Without such evidence the alleged conduct will be viewed in a vacuum and may seem less believable and the jury will be deprived of information which sets out the true context of the event;

(b) To show that the incident was not a one-off and therefore not more inherently unlikely to have occurred than a true 'one-off' incident. The evidence will show that the appellant was accustomed to having non-consensual sex with the complainant. This if accepted could rationally affect the jury's determination of whether the appellant would have done so on the day in question because it may operate to negate an inference that it would be odd for only the one offence to have occurred given there was doubtless opportunity for other offences to have occurred given the long relationship between the appellant and the complainant.

(c) To contextualise the complainant's acquiescence before the incident to the appellant coming to and staying at her house overnight, the evidence showing that the complainant was often unable to resist the appellant's demands because of her continued attempts to deal with his aggression and violence. (This acquiescence being an issue the jury will likely consider regardless of how the appellant conducts his defence). Without the evidence of the relationship the jury may infer that the acquiescence makes it more likely that the complainant consented.

(d) To contextualise the fact that the complainant 'allowed' the appellant to stay the night at the house after the alleged incident and did not react in a way a jury might perhaps have expected her to if the events had occurred for the first time;

(e) To contextualise the complainant's delay in reporting the offence, which was motivated by fear of the appellant and fear of consequences being visited upon their son, this fear not being explicable without consideration of the nature of the relationship. Delay in complaining being an issue the jury will consider regardless of how the appellant conducts his defence.

(f) To negate, in the case of the work colleague's evidence, an inference that the complainant's complaint of physical violence is a recent invention tailored in light of these proceedings. While this may or may not be suggested by the defence the jury is not confined in their evaluation of the evidence to inferences or suggestions put by the defence.

[148]

And the last special direction I need to give you is one relating to what is called previous alleged misconduct, sometimes referred to by some legal people more in the past than in the present as uncharged acts. But let's concentrate on calling it previous alleged misconduct. I have to be careful about this direction so forgive the minimal eye contact with you.

During the trial you heard evidence about certain conduct allegedly engaged in by the accused towards the complainant and their son. That evidence was led by the prosecution to provide a background to the relationship between the accused and the complainant and to give you a fuller picture or context regarding that relationship. It may enable you to assess the circumstances of the conduct that led up to the events which are the subject of the charge and for that specific purpose only. That is because it would be unrealistic to present the count in a sterile environment, divorced from the underlying relationship that existed between the parties.

That evidence is not, and I repeat, not to be used by you to show that the accused had a tendency to act in a certain way, but only as background material to help you understand the context in which it is alleged by the prosecution that the accused acted and as it says he did in respect of the charge he now faces.

The alleged prior conduct may be considered by you to be an integral part of the history leading up to the events that are subject of the charge as part of the continuing relations between the complainant and the accused. You may only take into account that evidence if you are satisfied beyond reasonable doubt that it occurred.

That evidence does not directly relate to the charge brought against the accused. Ordinarily you would not hear such evidence for that very reason. But here it is before you because if you accept it as truthful it will give you background information which may assist you to assess other evidence in the trial. That is because it may enable you to consider the complainant's evidence directly relevant to the matters that are subject of the charge in a proper and full context. That is the only reason it is before you. It is not there for you to use to form any prejudice against the accused.

You must not, if you are satisfied that the accused engaged in other behaviour towards the complainant and their son, reason that he is the sort of person that would commit the offence with which he's been charged. You must be satisfied beyond reasonable doubt on the count before you based on evidence relating to that count and that count alone.

You, of course, must not reason that if you are not satisfied beyond reasonable doubt that the accused is guilty of the account before you, then that he is guilty of other matters of which evidence has been given, so you'll then be minded to find him guilty of this charge. In other words, you might think, "Well he may not have done this but he probably has done other things so we'll make him guilty of this." That's just not a course open to you. You can't do that.

[181]

Whatever be the position under the common law, the accepted position in New South Wales is that evidence of "relationship" may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act: Qualtieri [v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95]; R v AH (1997) 42 NSWLR 702; R v Fraser (unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the "context" in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the "context" in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. In most cases relevance will be occasioned by an apparent lack of complaint by a complainant whose will has been overborne from a young age or who has feared the consequences of making a complaint about a family member. Fear of not being believed or family breakdown may explain a lack of complaint when a charged act occurs. If the evidence is admitted the dangers of its misuse are significant and the judge's directions to the jury must be clear so that the jurors understand the limited purpose for which they may consider that evidence.

In Qualteri at [112] this Court emphasised the necessity for a trial court to ensure that it critically analyses attempts by the prosecution to tender evidence otherwise than as tendency evidence. It must again be emphasised that it is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context.

The need for care in identifying the basis upon which the evidence is admitted, either tendency or context, must be emphasised. In HML, Gummow, Kirby, Hayne and Keifel JJ state (see Hayne J at [247]) that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt (see also Howie J in Toki [2000] NSWSC 999 ; (2000) 116 A Crim R 536; R v Hagerty [2004] NSWCCA 89 ; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78 ; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely consistent in their reasoning (see Kirby J at [61] and Keifel J at [505]-[506]) and was decided having regard to the common law. However, unless after full argument of the issue this Court or the High Court says otherwise, this Court should accept that in sexual assault cases the appropriate standard of proof of tendency evidence is beyond reasonable doubt.

Context evidence does not require a direction that it be proved beyond reasonable doubt. Where the evidence is of similar sexual misconduct but the jury are told it has only been admitted to explain aspects of the relationship and they may not use the evidence to reason toward guilt, the expectation that they will understand and remain faithful to the direction may not be on firm ground: see Kirby J in HML at [57]. To be told that the accused did the same thing on a number of other occasions but that you cannot use that evidence to reason that he did it on a particular occasion is contrary to ordinary human experience (see the discussion by Debelle J in R v M, RB [2007] SASC 207 ; (2007) 172 A Crim R 73 at [63] ff). The jury must be left in no doubt that they cannot follow that line of reasoning. The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted.

[199]

115. Evidence about the actual relationship between the appellant and the complainant at the time of and leading up to the offence is one thing. By reason of such evidence the jury would know that, according to the complainant, she reluctantly acquiesced to the appellant coming over only in the interests of their son and in the context of a relationship in which the appellant routinely threatened the complainant with proceedings for custody of their son and otherwise would take out his issues with her on their son which she would try to avoid. The disputed evidence is another thing altogether. How, it might be asked, was it relevant to any fact in issue that the appellant was always drunk and only interested in drink and playing pool between 1997 and 2004? Leaving aside impermissible tendency reasoning about the appellant's tendency to perform sexual acts on the complainant without her consent which, by reason of her lack of consent, she found degrading and it may be inferred repulsive, how was it relevant that before their son's birth the appellant would put his fingers into the complainant's vagina while she was asleep and masturbate while lying next to her in bed? How was it relevant that while they were living together the appellant insisted on anal sex with the complainant and placed objects in her vagina while having anal sex with her? Similarly, how was it relevant that while they were living together the appellant wore the complaint's bikini bottoms all day and had an erection in them in front of their son, or that the appellant insisting on having sex with the complainant while she was breastfeeding their son? So too, what was the relevance of the fact that when they lived together after their first separation the appellant still insisted on degrading sex, including anal sex, placing objects in the appellant's vagina, using mirrors and nipple clamps and waxing her vagina? The only relevance is relevance by way of tendency reasoning which is impermissible.

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