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ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 6 - 2012

No. SCC 335 of 2008

Judges: Penfold, Burns and Jagot JJ

Court of Appeal of the Australian Capital Territory

Date: 6 November 2012

IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2012

) No. SCC 335 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MM

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges: Penfold, Burns and Jagot JJ

Date: 6 November 2012

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The appellant’s conviction is set aside.

3. There is to be a new trial.

IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2012

) No. SCC 335 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MM

Appellant

AND: THE QUEEN

Respondent

Judges: Penfold, Burns and Jagot JJ

Date: 6 November 2012

Place: Canberra

REASONS FOR JUDGMENT

PENFOLD J:

The outcome of the appeal

1. I have read Jagot J’s judgment in draft, and I gratefully adopt her description of the facts and explanation of the issues. I agree with her Honour’s conclusions:

(a) that evidence was inappropriately admitted at the appellant’s trial;

(b) that the appellant was as a result of the admission of that evidence denied a fair trial; and

(c) that s 37O(3) of the Supreme Court Act 1933 (ACT), which permits the Court of Appeal to dismiss an appeal against conviction if it considers that “the point raised by the appeal might be decided in favour of the appellant; but [that] no substantial miscarriage of justice has actually occurred”, is not applicable in this case.

2. For those reasons, I agree that the appeal should be allowed, the conviction set aside, and a new trial ordered.

Reasons

3. Like Jagot J, I consider that a limited amount of the evidence challenged on appeal was admissible as relationship or context evidence. I also consider that much of the other evidence should not have been admitted.

4. The evidence referred to by her Honour at [114] below was clearly admissible.

5. The evidence specifically referred to by her Honour at [115] below should not have been admitted. The evidence was, in my view, irrelevant (given that its use for tendency reasoning was neither sought nor permissible). It was also highly prejudicial (“prejudicial” meaning, in this context, “unfairly prejudicial” in the sense of damaging the accused’s case in a way that is irrational or caused by an emotional reaction to the evidence). For the purposes of s 137 of the Evidence Act 1995 (Cth) (at the time of the trial still applicable in the ACT), I consider that the unfair prejudice arising from the evidence of the accused’s engagement in sexual activity of a particularly degrading nature outweighed any probative value of that particular evidence. In reaching that conclusion I note that the act of non-consensual intercourse charged was not alleged to have any specifically degrading features beyond such as are implicit in any act of non-consensual intercourse.

6. However, I consider that, as well as the evidence referred to at [114] below, some of the other evidence challenged by the appellant may also have been admissible, being evidence of some or all of the following matters, set out by Jagot J at [70] below: (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”. (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”. (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. ... (n) In August 2004 “[their son] … told [the appellant] to get out” and the appellant left home.

7. Some or all of the material quoted at [6] above seems to me to have been relevant to the broader context in which the complainant had permitted the accused to stay in her house overnight despite their separation, and had not either insisted that the accused leave her house after the incident or made an early complaint.

8. Much of that material would have been relevant for what it conveyed about the family dynamics, and particularly the appellant’s attitude to and relationship with their son, which in turn appeared to be directly relevant to the complainant’s reasons for acting as she did.

9. Some of the material quoted at [6] above would also, no doubt, have been prejudicial, but unlike the evidence of the accused’s tendency to impose degrading sexual activity on the complainant, or of the accused’s own unusual sexual interests, I do not consider that the material about the relationship between the accused, the complainant and their son would have been unfairly prejudicial, or sufficiently unfairly prejudicial, to require its exclusion under s 137 of the Evidence Act. Need for careful analysis of contested evidence

10. In JDK v The Queen; R v JDK (2009) 194 A Crim R 333; [2009] NSWCCA 76, quoted at length by Jagot J at [99] below, the New South Wales Court of Criminal Appeal (McClellan CJ at CL, with whom James and Adams JJ agreed) appears to have approved comments originally made in Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95 at [112] and summarised in DJV v The Queen (2008) 200 A Crim R 206; [2008] NSWCCA 272, where McClellan CJ at CL emphasised at [29] and [30]: the necessity for a trial court to ensure that it critically analyses attempts by the prosecution to tender evidence otherwise than as tendency evidence [and the] need for care in identifying the basis upon which the evidence is admitted, either tendency or context...

11. The need for critical analysis of evidence sought to be tendered, and any objections made to that tender, is vital where a trial court is dealing with a significant volume of evidence relating to multiple different aspects of the background circumstances or other matters.

12. On the appeal, both counsel sought to confine the argument before us to the single question of the admissibility of the challenged evidence as a whole. Counsel for the appellant argued that none of the material identified in the appellant’s submissions (quoted in full by both Burns and Jagot JJ at [30] and [70] respectively) should have been admitted, although in written submissions he conceded the possibility that some parts of the relationship evidence might have been held admissible and referred to a subset of the challenged evidence for which, he said, there was “no possible permissible use”. Counsel for the respondent maintained that all the evidence was admissible and that in any case it would have been too difficult to disentangle the various elements of the evidence and admit only some of it. For reasons mentioned below, my comments at [6] to [9] above must be read in the light of the absence of specifically relevant submissions by either counsel on appeal.

13. Before the trial judge, submissions were made on the same global basis as I have described above. While his Honour could have insisted on dealing with each element of the contested evidence separately, it is apparent that this would have come at some cost to the progress of the trial, especially given counsel’s approach. It seems to me that a trial judge deserves more help, especially from prosecuting counsel, to identify the real issues in a dispute of this sort and to address them in an efficient way, rather than being urged by both counsel to decide a complex multi-faceted question on a global basis and in reliance on generic submissions about the admissibility of “relationship evidence” and the difficulty of disentangling different elements of the evidence.

14. As I have already noted at [6] to [9] above, some of the complainant’s evidence of the dysfunctional nature of the relationship between her and the accused may well have been properly admissible (however difficult to “disentangle” from other evidence), and the admission of evidence of the matters set out at [6] above may have met concerns of the kind expressed by Burns J in his judgment.

15. On the other hand, I find it hard to accept that either counsel really believed that, for instance, evidence about the appellant’s fondness for incorporating vegetables in his sexual activities with his partner raised the same sort of questions of relevance, permissible ways of reasoning, and prejudice as, for instance, evidence of the accused’s attitude to his son and the impact of that on the accused’s relationship with the complainant. Nevertheless, neither counsel made any attempt to disaggregate and classify the challenged evidence in such a way as to enable a sensible consideration of the admissibility of different aspects of the challenged evidence by reference to the particular issues in the trial to which particular pieces of evidence might have been relevant. The Court, and the criminal justice system more generally, deserved better than that. I certify that the preceding fifteen (15) paragraphs numbered [1]–[15] are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

Associate: Rik Sutherland

Date:

IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2012

) No. SCC 335 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MM

Appellant

AND: THE QUEEN

Respondent

Judges: Penfold, Burns and Jagot JJ

Date: 6 November 2012

Place: Canberra

REASONS FOR JUDGMENT

BURNS J:

16. On 21 November 2011 the appellant, MM, was found guilty after a jury trial of one charge that between 1 May 2006 and 16 June 2006 he engaged in sexual intercourse with the complainant without her consent, knowing that she had not consented or being reckless as to whether she had consented. After a sentence hearing the learned trial judge recorded a conviction and sentenced the appellant to a term of imprisonment.

17. The appellant appeals from his conviction. He does not appeal from the sentence imposed. The single ground of appeal is that the trial judge erred in admitting “relationship evidence”. Evidence of the nature of that admitted at trial has been variously described as “relationship evidence” or “context evidence”. For convenience, in this judgment I will refer to it as context evidence. It is worthwhile noting that the appellant makes no complaint about the directions given to the jury by the trial judge.

18. I have had the benefit of reading, in draft, the judgments of Penfold and Jagot JJ. I regret that I am unable to agree with them on the outcome of this appeal. The Crown case

19. The Crown case rested largely on the evidence of the complainant. She testified that she first met the appellant when they were students at the University of New England in Armidale, in New South Wales, in 1997. They moved in together in 1998, and their son, C, was born in May 1998. They resided at a number of addresses in Armidale before moving to Canberra, in the Australian Capital Territory, in 2002. The complainant moved to Canberra to commence a doctorate at university. They separated in 2003, and the complainant and C continued to reside at a house in North Canberra in the Australian Capital Territory, while the appellant lived with his parents who also resided in Canberra. The complainant and the appellant recommenced cohabitation in about May 2004 before finally separating in August that year.

20. After that final separation the complainant and C lived with the appellant’s parents for about three months before they moved into a townhouse in Weston in the Australian Capital Territory. The townhouse had three bedrooms upstairs and living areas downstairs. The complainant and C occupied two of the bedrooms, with the third being used as a toy room. The appellant had care of C every second weekend, and the appellant’s mother cared for the child after school.

21. In 2006 the appellant was living with his parents. In late May or early June of that year the child was unwell, having been diagnosed with juvenile arthritis and sleep apnoea. He was suffering from bad headaches. On the particular day relevant to the charge the complainant attended the appellant’s parents’ house to collect the child, at which time the appellant asked the complainant, in front of C, whether she would like him to come over and help out with C. The complainant said C appeared very happy that the appellant was interested in being with him, and she was also pleased that the appellant appeared to be taking an interest in C. She agreed to allow him to come to her residence to assist with C.

22. At the complainant’s residence the appellant suggested that he stay the night to assist with C, saying that it would be fun for C. The complainant apparently agreed, and purchased take away food for the three of them. After dinner they both played with C. At about 7.30 pm C went to bed. The complainant read to C in his room while the appellant remained downstairs. When the complainant had put C to bed she took blankets and pillows downstairs for the appellant to sleep on the couch. At that time the appellant asked her if she wanted a back massage, which she declined. She testified that the appellant had in the past sometimes used the suggestion of a back massage “to get me to have sex with him”.

23. The complainant went back upstairs to her bedroom, closed the door and changed into her pyjamas. She then checked on C, before going to bed. She read for a while before sleeping. The next thing that she remembered was waking to find the appellant having sexual intercourse with her. At first she lay there as she “couldn’t believe what was happening, and I just wanted it not to be happening”. She then rolled onto her stomach to try to remove the appellant’s penis from her vagina. This was unsuccessful. They then struggled, with the appellant thrusting harder and faster. She told the appellant to get off her, and that he could not do this to her anymore. She succeeded in pushing the appellant off her. She told him to get out of her room, but he refused and said she was overreacting. Eventually he left her room, but did not leave the house.

24. After the appellant left her room the complainant lay awake and thought about telephoning the police. She decided not to as she was concerned about the complications that would arise, in particular with C being cared for by the appellant’s mother after school. She was also afraid the appellant would try to take the child away from her. She was in a very vulnerable position, as her income at that time consisted of a scholarship and she was estranged from her family. She decided not to call the police.

25. In the morning the complainant heard the appellant moving around downstairs. She went downstairs and said to him, “What you did to me last night was wrong”. He just looked at her blankly. He then left the house. At that time the complainant did not tell anyone what had happened because she was ashamed.

26. Some time later she saw a doctor at the University Health Service who diagnosed her with a sexually transmitted disease. She told the doctor that her son’s father had had sex with her while she was asleep.

27. It was not until October 2007 that the complainant complained to police. At that time she was involved in proceedings commenced by the appellant seeking custody of C.

28. The support for the complainant’s evidence was limited. There was evidence from a work colleague of the complainant, Anthony Herlt, that she had complained to him of the appellant abusing her, including hitting her. The defence case

29. The appellant testified that on the day in question the complainant came to his parents’ house as she normally did to pick up the child, who had stayed away from school that day as he was ill. The appellant suggested that he come to her residence to assist with C. She agreed. They drove in separate cars to the complainant’s address, and had dinner together. They then took C up to bed and read him a story. By that time it had been arranged that the appellant would stay the night, although he did not recall when that had happened. The appellant testified that he stayed with the child while he (the child) went to sleep, with the complainant going to her room. When he left the child’s room, he noticed the complainant in bed reading. He stood in the doorway of her bedroom and they had a conversation. He noticed a bottle of massage oil on her bedside table, so he asked her if she would like a massage. She agreed. The appellant testified that he frequently gave the complainant back massages in the course of their relationship, and that this occasionally led to sex. On this occasion he testified that it led to consensual sexual intercourse. He then went and slept downstairs. The impugned evidence

30. Prior to the jury being empanelled in the trial, counsel for the appellant sought to have certain evidence, described as relationship evidence, which the Crown intended to adduce, excluded from the trial. I prefer to refer to this evidence as context evidence. The trial judge rejected the application, and later provided written reasons for this decision. I will return to those reasons later. The evidence objected to concerned conduct allegedly engaged in by the appellant during the course of his relationship with the complainant. The complainant gave the following evidence (as accurately set out in the appellant’s written submissions) as context evidence during the trial: - 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”.

31. The appellant denied most of the allegations made by the complainant regarding their relationship, with the remainder being cast in the light of consensual activity. The trial judge’s ruling

32. In his written reasons the trial judge stated that the context evidence was not led to show that the appellant had a tendency to act in a particular way, but was admitted as “contextual evidence providing background information which may assist the jury to assess and evaluate other evidence in the trial in a proper and full context ...” at [13]. Beyond this general statement he did not venture. Directions in the course of the trial

33. Immediately prior to the Crown adducing the context evidence from the complainant, the learned trial judge gave the following direction to the jury: It is sometimes the case in trials involving sexual conduct that the prosecution seeks to lead evidence of certain behaviour of the accused, sometimes referred to as previous misconduct. The prosecution is entitled to bring evidence of these matters to give context to the evidence it will lead concerning the offence with which the accused is charged. In order for such alleged previous misconduct to be accepted by you as providing a context for you in which to understand the relationship between the accused and the complainant, you must be satisfied beyond reasonable doubt that those acts occurred. But just because you are so satisfied does not mean that you can rely on those matters in any way in determining the crucial issue in this trial – that is – whether the complainant consented to have sexual intercourse with the accused on the occasion referred to in the count. Later in my summing up of the evidence I will give you a specific direction about the limited use which can be made by you of evidence of alleged previous misbehaviour.

34. During his summing up, the trial judge gave the jury the following direction with regard to the context evidence: 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.

The appellant’s submissions

35. The appellant’s principal submission is that the evidence was, by reason of the factual matrix and the trial judge’s directions, only relevant to the charge against the appellant by tendency reasoning. His subsidiary submission is that even if some of the evidence was relevant other than as evidence of tendency, it should have been excluded under s 137 of the Evidence Act 1995 (Cth).

36. Based upon written submissions from the Crown prepared for the application to exclude the impugned evidence, and oral submissions in support of those written submissions, the appellant says the Crown identified to the trial judge the relevance of the impugned evidence as: (a) rendering more plausible the allegation regarding the alleged conduct of the appellant; (b) showing that the alleged act of non-consensual intercourse was not unusual or a “one-off” in the relationship; (c) explaining why the complainant acquiesced in the appellant staying overnight at her house; (d) explaining the complainant’s response to the sexual assault at the time it happened; (e) explaining the fact that the complainant “allowed” the appellant to stay the night at her house after the sexual assault; (f) explaining the lack of, or delay in, complaint by the complainant; and (g) in the case of Anthony Herlt’s evidence, to rebut any suggestion that the relationship evidence from the complainant was a recent invention.

37. In his submissions, the appellant focuses upon that portion of the trial judge’s direction to the jury in his summary where he says the impugned evidence is not to be used as evidence that the appellant had a tendency to act in a particular 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.

38. Thus, the appellant says, it was never suggested that the jury could use the evidence to explain why the complainant “allowed” the appellant to stay the night after the sexual assault or to explain the delay in complaint by the complainant. The appellant submits that the trial judge’s directions effectively precluded any such use of the evidence. Further, the appellant submits that the complainant gave reasons why she “allowed” the appellant to stay the night after the sexual assault, why she delayed making any complaint about the sexual assault, and why she agreed to the appellant staying overnight in the first place. This was not a case, the appellant says, where relationship evidence could explain what the complainant did, or did not do, at the time of the sexual assault. Accepting this to be the case, the appellant says that the evidence was only relevant to show a tendency to engage in sexually abusive behaviour towards the complainant, a use for which it was not admissible.

39. Alternatively, the appellant says that the evidence, if admissible, or the vast bulk of it, should have been excluded under s 137 of the Evidence Act on the basis that the danger of unfair prejudice accruing to the accused by its admission outweighed its probative value. The respondent’s submissions

40. The Crown submits that the context evidence was relevant in the present case as: i. it explained the circumstances of the offence charged – the appellant’s conduct on the night of the offence was not ‘out of the blue’ and therefore inexplicable; ii. it assisted the jury in contextualising the complainant’s pre-offence behaviour in allowing the appellant to stay the night at her premises; iii. the history of the relationship between the complainant and the appellant goes some way to explain why the complainant did not react on the night to the sexual assault in a way the jury might expect a complainant to react had it been a one off occurrence; iv. it contextualised the complainant’s post-offence behaviour in not raising her voice, physically defending herself, calling police and allowing the appellant to remain in the premises, all of which would be questions in the mind of the jury had the evidence of the offence been adduced in isolation; v. it explained the delay in a formal complaint to the police, an issue it was likely would be raised by the appellant at trial.

41. The respondent submitted that the evidence “provided the context of the relationship between the appellant and complainant as being a relationship characterised by control, domination and subjugation” of the complainant by the appellant. Context evidence – the relevant law

42. In HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 the High Court divided on the question whether evidence of unlawful acts other than those alleged on the indictment could be adduced so as to provide context to the offence charged. No clear ratio emerges from HML to the effect that such evidence is not admissible.

43. Subsequently, in DJV v The Queen (2008) 200 A Crim R 206; [2008] NSWCCA 272, the New South Wales Court of Criminal Appeal (McClellan CJ at CL, Hidden and Fullerton JJ) determined that the accepted position in that State is that evidence of relationship may be admitted unless excluded by virtue of s 135 or s 137 of the Evidence Act 1995 (NSW). In the absence of clear authority in the High Court prohibiting or restricting the reception of such evidence I consider that the same approach should be taken in the ACT. That accords with my understanding of the current practice of these courts, and I did not understand the appellant to suggest otherwise.

44. Where the Crown seeks to adduce context or relationship evidence, the evidence must be relevant to the issues before the jury: R v ATM [2000] NSWCCA 475 at [72]. The purpose for which the evidence is led must be clearly stated, because in many cases evidence which provides a context to a particular allegation may also be capable of establishing a tendency on the part of the accused to act in a particular way or have a particular state of mind. For example, evidence that a child has been sexually assaulted by a parent other than on the occasion the subject of a charge may explain (where relevant) why the child has not made an immediate complaint after the incident the subject of the charge. The same evidence may also be capable of showing that the accused has a tendency to sexually assault the complainant, or to be sexually attracted to the complainant. The purpose for which the evidence is tendered defines whether it is tendency evidence or relationship/context evidence.

45. The purpose for which such evidence is tendered is determined objectively, and it is sometimes necessary to look beyond the purpose as expressed by the Crown and consider the process of reasoning the jury will be asked to apply in using the evidence: RG v The Queen [2010] NSWCCA 173 at [34]. If the process is, in truth, a process involving proof of a tendency, then the evidence is tendency evidence and subject to the restrictions placed on such evidence by the Evidence Act 1995 (Cth) and, now, the Evidence Act 2011 (ACT). If the process of reasoning the jury is asked to apply in using the evidence does not involve tendency reasoning, and if the context sought to be proved is relevant to a matter in issue in the proceedings, and if the evidence is not excluded under s 135 or s 137 of the Evidence Act 1995 (Cth) or the Evidence Act 2011 (ACT), then it should be admitted as context evidence. Where such evidence is admitted, the jury should be carefully directed as to the confined use that may be made of the evidence, and that a process of tendency reasoning is impermissible: see generally Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95.

46. Commonly, context or relationship evidence is led to explain what otherwise may be inexplicable, or apparently unlikely, such as the failure of the complainant to protest the actions of the accused, or to make a complaint afterwards: Harriman v The Queen (1989) 167 CLR 590, per McHugh J. When used this way, such evidence may bolster the evidence of the complainant. In Qualtieri v The Queen, Howie J said at [119]: Both context evidence and tendency evidence can bolster the credibility of the complainant but they do so in different ways. Context evidence is relevant to the credibility of the complainant only in that his or her version of the particular incident which is the basis of the charge in the indictment may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused...

47. While many of the decisions on the use of context evidence refer to it as making explicable or credible what may otherwise appear to be inexplicable or incredible, particularly concerning the evidence of the complainant, I see nothing in any of the decisions that confines it to that use. I see no reason why such evidence, by providing a true context of the sexual relationship between the complainant and the appellant, cannot be used to bolster the complainant’s credibility with respect to a fact in issue, and, at the same time, make less credible the appellant’s evidence with respect to that fact. Conclusion

48. The appellant’s submission that the evidence should have been rejected as tendency evidence must be rejected. His argument is based on an unduly restricted reading of the trial judge’s direction to the jury, and on statements made by the Crown in submissions that were not before the jury. The direction by the trial judge that the jury could use the evidence “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”, and “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” did not preclude the jury using the evidence in any way that they saw as being relevant, provided that it was used as evidence of the context of the relationship of the appellant and the complainant and not as evidence of tendency. Considered as a whole, the trial judge’s direction correctly and adequately informed the jury that they could not use the evidence as evidence of tendency, and that they could only use it as evidence of the context of the relationship to the extent that it was relevant.

49. The trial judge did not attempt to tell the jury specifically how the context evidence would be relevant to their deliberations on the charge against the appellant, and in my view rightly so. Once it is determined that the evidence is capable of being relevant, and the jury have been told that it is only to be used as context evidence and that it may not be used as evidence of tendency, it is for the jury to determine what matters relevant to the trial may be elucidated by the evidence. The jury may have found the evidence useful in a way that was not embraced by the Crown in its submissions on appeal.

50. Like Jagot J, I have difficulty in accepting that much of the context evidence was relevant to those matters referred to by the Crown in its submissions on this appeal, and for the reasons that she gives in her judgment.

51. Having said that, I consider that all of the evidence was relevant and admissible. I would go so far as to say that a fair trial could not have occurred without its reception. The central issue in the trial was whether sexual intercourse between the appellant and the complainant was consensual. The jury was entitled to use the evidence to consider the likelihood of the complainant having consented to sexual intercourse with the appellant. The Crown case was that the complainant had been subjected to years of sexual abuse and degradation by the appellant before their final separation in 2004. Possessed of evidence of the history of that sexual abuse and degradation, her escape from that appalling situation in 2004 and her establishing a new life separate from the appellant (except for necessary contact because of the child, C) for two years prior to the alleged offence, a jury may consider it improbable in the extreme that the complainant succumbed to the appellant’s offer of a massage, and to the sexual intercourse that followed. The jury may well have reasoned that for the complainant sexual intercourse with the appellant was not pleasant, and evoked no feelings of affection or any pleasant memories.

52. If it were established that an accused in a sexual assault case had, over many years before the alleged offence, engaged in systematic sexual abuse of the complainant, who could doubt the relevance of that history in supporting the evidence of the complainant that she did not consent to intercourse on the occasion in question, and to contest the evidence of the accused that it was consensual? In this context, the term “sexual abuse” means sexual conduct repugnant to the complainant, and perpetrated upon her without her consent.

53. The chain of reasoning involved in the use of the evidence in this way is direct, and involves no intervention of a finding of any tendency on the part of the accused. As is common with evidence of this nature, it could be used in a chain of reasoning involving tendency reasoning, but that is not inevitable. To ask a jury to find that an accused has done certain acts is different to asking them to find that he or she has a tendency to perform those acts, or even that he performed those acts due to a tendency. To then ask a jury to determine that because the accused did those acts, a complainant may have strong negative feelings towards him and hence would be unlikely to consent to sexual intercourse with him similarly involves no requirement that the jury engage in tendency reasoning.

54. Without the context evidence in its entirety the case presented to the jury would have been completely different, and a travesty of the truth. The jury would have been told that the appellant and complainant had been in a marriage-like relationship from 1998 until 2004, and that children were born of that relationship. They would have been told of the apparently amicable arrangements that existed between the appellant, his family and the complainant following the breakdown of the relationship between the appellant and the complainant. How easy would it be for the jury to accept that in a moment of renewed intimacy consensual sexual intercourse had taken place between the estranged couple? This was precisely the case the appellant presented to the jury. On the Crown case the image thus presented to the jury was a lie, and the reality was such as to make such a suggestion untenable.

55. Accepting that the evidence was relevant to a matter in issue otherwise than as tendency evidence, the question arises whether it, or any of it, should have been excluded under s 137 of the Evidence Act 1995 (Cth). The appellant referred to a number of cases to support his submission that the evidence should have been excluded.

56. The appellant referred to the decision in David L’Estrange v The Queen [2011] NSWCCA 89 as support for the proposition that “the greater the difficulty in demonstrating that the evidence is relevant in a way that does not involve tendency or coincidence reasoning, the greater the risk that the jury will use it for tendency or coincidence reasoning”. Accepting that to be the case, there is no difficulty in identifying the relevance of the evidence in this case (other than as tendency or coincidence evidence): it was relevant to the central issue at the trial, being whether any act of sexual intercourse between the appellant and complainant was consensual.

57. The appellant also referred to the following passage from AN (2000) 117 A Crim R 176 (per Kirby J) at [48]: Further, some form of balance needs to be maintained between evidence relevant to the offence charged, and evidence introduced either as relationship evidence, or evidence of guilty passion (compare Hunt CJ at CL in Beserick at 522). In Bradley (1989) 41 A Crim R 297, Shepherdson J said this: (at 302) “It is in my view not necessary that in every case the whole history of sexual activity between an accused person and the complainant be admitted in evidence. In some cases a trial judge may have to take care to limit that 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. In other words, in some cases the ‘full story’ ... may have to be limited ... In a case such as the present where there are quite a large number of instances of carnal knowledge alleged against the appellant prior to the first of the acts of alleged indecent dealing the prejudice to an accused person may be so great that the sheer number and weight of those instances may well overbear the jury in its consideration of the evidence in each of the three charges and prevent the jury from considering that evidence impartially.”

58. The appellant noted that these observations were endorsed by Blanch AJ (Spigelman CJ and Simpson J agreeing) in McNamara (2002) 131 A Crim R 140; [2002] NSWCCA 248.

59. It is instructive to consider the circumstances of these cases. AN was a case where the accused was charged with a number of sexual offences against his step-daughter. The offences allegedly occurred when the complainant was aged between approximately nine years of age and approximately 16 years. The consent of the complainant was not a relevant factor with respect to any of the charges. The central issue was whether the events described by the complainant had occurred. Similarly, in Bradley v The Queen (1989) 41 A Crim R 297 the accused was charged with sexual offences against his 14 year old step-daughter. Consent was not an issue, and the relevant issue was whether the events described by the complainant had occurred. In my opinion, in order to place in context alleged sexual offences against a child, particularly one related to the accused, a full history of alleged sexual offending by the accused towards the child will not always be necessary. Usually such evidence will be led to make explicable what would otherwise seem inexplicable, such as why the accused would engage in that conduct on an isolated occasion, or why the complainant did not immediately complain. A limited number of examples of previous sexual misconduct by the accused towards the child complainant will usually be sufficient to paint the picture for the jury.

60. The facts in McNamara are somewhat different to those in AN and Bradley. In McNamara the complainant had been in a lengthy relationship with the accused, characterised by violence and abuse directed towards the complainant, but punctuated by periods of relative harmony. From time to time they separated, but then reconciled. Blanch AJ stated that there was a question before the jury whether the complainant consented to the act of intercourse charged. Bearing in mind the pattern of reconciliations between the parties after alleged episodes of violence by the accused, Blanch AJ said at [32]: In this case the evidence revealed the nature of the earlier relationship as one of violence and abuse of the complainant punctuated by periods of relative harmony. It was not a history that led to the conclusion that on this particular occasion the complainant did not consent to the act of intercourse ...

61. By inference, Blanch AJ accepted that evidence of the prior relationship between the parties could, in an appropriate case, lead to a conclusion that a complainant did not consent to a particular act of intercourse. In the present case the evidence is that there was one reconciliation between the complainant and the appellant before they finally separated in 2004. There is no pattern of reconciliation such as that established in McNamara, and which deprived the former history between the parties in that case of its probative value as evidence of lack of consent. The circumstances of the instant case demanded what Stable J described in R v Witham [1962] Qd R 49 as “the full story” be placed before the jury.

62. The context evidence led by the Crown was clearly prejudicial, but it was also highly cogent on the issue of whether the complainant consented to any act of intercourse. The effect of s 137 is not to exclude evidence because it is prejudicial. The section requires a balance to be taken between the prejudicial effect and the probative value of evidence. No matter how great the prejudicial effect of the evidence, the section does not mandate its exclusion if its probative value is greater. If s 137 does not mandate the exclusion of the evidence, the test for discretionary exclusion under s 135 cannot be met. The fact that the Crown did not embrace the relevance of the evidence to the issue of the consent of the complainant as a reason for its reception in their submissions to the trial judge is not relevant. The evidence was available for the jury to use in this way, and, properly understood, nothing the trial judge said in his directions to the jury precluded its use in that way. In my opinion the trial judge was correct to rule that the probative value of the evidence outweighed its prejudicial effect. Experienced trial counsel then did not complain about the trial judge’s directions as to how that evidence could be used.

63. I would dismiss the appeal. I certify that the preceding forty eight (48) paragraphs numbered [16]–[63] are a true copy of the Reasons for Judgment herein of his Honour Justice Burns.

Associate: James Middleton

Date:

IN THE SUPREME COURT OF THE ) No. ACTCA 6 - 2012

) No. SCC 335 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MM

Appellant

AND: THE QUEEN

Respondent

Judges: Penfold, Burns and Jagot JJ

Date: 6 November 2012

Place: Canberra

REASONS FOR JUDGMENT

JAGOT J:

Background to the appeal

64. The appellant was convicted of engaging in sexual intercourse without consent of the complainant between 1 May 2006 and 16 June 2006. The appellant has appealed against conviction on the grounds that the trial judge erred in admitting the whole or part of certain evidence said by the respondent to be “relationship evidence” on the basis that either, in truth, the evidence was relevant only to an alleged tendency of the appellant to act in a particular way or ways when the respondent disavowed the use of the evidence for that purpose or the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant.

65. It is first necessary to identify the context in which the disputed evidence was permitted by the trial judge to be adduced by the respondent.

66. The complainant and the appellant had been in a long-term relationship. They had a son together born in 1998 and thus aged 8 at the time of the offence charged. The complainant and appellant had separated in 2003, re-commenced their relationship in about May 2004 and finally separated again permanently in about August 2004, at which time the appellant moved out of the premises in which the complainant lived with her son. The arrangements between the complainant and the appellant in respect of their son included that the appellant’s grandmother would look after her grandson after school from where the complainant would collect him after work.

67. The complainant said that between the dates in question she collected her son from the appellant’s mother. The appellant was present as he was living with his parents at the time. The appellant asked if the complainant would like him to come over to help with their son and the complainant agreed. The complainant later agreed that the appellant could stay the night sleeping on a couch while the complainant slept upstairs in her bed. The complainant said she awoke during the night to find the appellant engaging in sexual intercourse with her without her consent. She told the appellant to get off and then pushed him off her and told him to leave the house, after which he left her room and spent the rest of the night on the couch. The appellant admitted sexual intercourse with the complainant but said it was with her consent after he gave her a massage.

68. The complainant said she did not immediately call the police because the situation was all so horrible and complicated, she was ashamed and humiliated, the appellant’s parents looked after her son after school and when he was sick, and she felt she had to be nice to the appellant or he would take it out on their son as the appellant always threatened to seek custody of their son if the complainant was not “good’ or “nice” enough to him and would take his anger with her out on their son. She first told a doctor about the incident on 27 June 2006 after she believed (as was the fact) that she had contracted a sexually transmitted disease. The doctor’s note said “ex-partner stayed overnight, attempted SI (no consent). Only contact for last four years”. She informed the police about the incident in October 2007 after the appellant had commenced proceedings for custody of their son and after she was advised that going to the police would not jeopardise the custody case. The disputed evidence

69. Despite the appellant’s objection the trial judge permitted the respondent to adduce evidence in chief from the complainant about her relationship with the appellant. The evidence was contested by the appellant and was the subject of cross-examination of the complainant but the complainant did not retract any of the evidence.

70. The disputed evidence was accurately summarised in the appellant’s submissions. Those submissions form the basis for the description of the disputed evidence which was as follows: (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”.

71. The respondent submitted to the trial judge that the disputed evidence was relevant as follows: (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.

72. The work colleague’s evidence was evidence from a colleague of the complainant that she had told him in early 2004 that she was in a relationship but it was “not a very good relationship”, “her partner was sometimes abusive to her when he was drunk” and was abusive “often physically. He would grab her – well, she mentioned once that he had grabbed her by the arms and hurt her”. Also, that her son was “showing some signs of being a little disturbed” and “the abusive…dysfunctional relationship between her and her partner may have contributed”. In August 2005 the work colleague noticed the complainant had a black eye. The complainant told the work colleague that her partner “had hit her”.

73. The respondent disavowed the use of any of the disputed evidence for a tendency purpose (that is, evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, used 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), as set out in s 97 and the Dictionary to the Evidence Act 2011 (ACT) (the Evidence Act). The respondent said: The evidence is not led to show the [appellant] had a tendency to act in a certain way and therefore is not subject to the test applicable to evidence led for a tendency purpose.

74. Consistent with this submission the trial judge did not consider the admissibility of the disputed evidence under ss 97 and 101 of the Evidence Act (specifically, the requirement in s 101(2) that tendency evidence about a defendant that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant).

75. Accordingly, the trial judge allowed the evidence to be adduced and gave the following direction to the jury in his summing up: 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. Appellant’s submissions

76. The appellant submitted that the disputed evidence could be relevant to the offence charged only by tendency reasoning. As the respondent had disavowed the use of the disputed evidence for that purpose the evidence was irrelevant and thus inadmissible under s 56 of the Evidence Act which contains the fundamental rule that only relevant evidence (that is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding) is admissible.

77. According to the submissions for the appellant there are some cases, this being one, where the mere assertion that the evidence shows “relationship”, “background” or “context” is insufficient. Rather, there must be a clear articulation of the way in which the evidence is relevant to show that it does not involve tendency reasoning (RG v The Queen [2010] NSWCCA 173 at [34]). Mere assurances from the prosecutor will not suffice (RWC v The Queen [2010] NSWCCA 332 at [130]).

78. These principles are engaged in the present case because there was nothing in what the appellant did or did not do after the incident which might be explained by the disputed evidence insofar as it disclosed the prior relationship between the complainant and the appellant and nor did the complainant suggest that it explained her conduct in any way.

79. On the respondent’s case this was an opportunistic sexual assault by the appellant on the complainant. Accordingly, there was also nothing for the disputed relationship evidence to explain about what the appellant was alleged to have done (not using tendency reasoning).

80. The appellant submitted that, properly analysed, relationship evidence in sexual assault cases is evidence bearing on the credibility of the complainant (WFS v The Queen [2011] VSCA 347 at [87]). There was nothing implausible in the complainant’s account of what occurred, namely, that the appellant took advantage of the fact that he had been permitted to stay the night on the couch after spending time with their son at the complainant’s home by having sex with the complainant while she slept in her bedroom. As the submissions for the appellant put it “it is impossible to understand how the relationship evidence made that allegation more plausible, unless the jury relied on an inferred tendency to have sex with her while she was asleep”.

81. As to the respondent’s submission that the evidence explained why the complainant had allowed the appellant to stay overnight and had not complained immediately, the appellant had two answers. First, the trial judge’s directions excluded that use as the directions identified that the evidence could be used only as background material to help understand the context in which it was alleged the appellant acted as he did in respect of the charges. Second, there was nothing implausible in the complainant’s explanation of why she acted as she did and the complainant herself did not suggest the disputed evidence explained her actions.

82. As to the suggestion that the work colleague’s evidence rebutted any inference that the disputed relationship evidence was recent invention, the logic of this argument depended on admission of the disputed evidence in the first place. If that evidence had not been admitted, there was no scope for any inference of recent invention. Moreover, corroboration increased the risk of impermissible reasoning by the jury and thus unfair prejudice (Leonard v The Queen (2006) 67 NSWLR 545 (reported as R v Leonard); [2006] NSWCCA 267 at [55]-[56]).

83. According to the submissions for the appellant this “was a classic case where the ‘relationship’” was only relevant to show a tendency to engage in sexually abusive behaviour to the complainant, a use for which it was not admissible”. Further, according to the appellant’s submissions, even if some of the disputed evidence had some permissible relevance, the danger of unfair prejudice was so great that no direction could protect the appellant and the evidence should have been excluded under s 137 of the Evidence Act. Some of the evidence was patently incapable of any permissible use and should not have been put to the jury.

84. The appellant’s submissions also noted some other propositions of importance as follows: (a) The greater the difficulty of demonstrating the relevance of the relationship evidence for a non-tendency purpose the more likely it is to be used by the jury for that impermissible purpose and thus the stronger the case for exclusion under s 137 (David L’Estrange v The Queen [2011] NSWCCA 89 at [60]-[64]. (b) The more specific the relationship evidence, the greater the amount, and the greater the similarity to the offence charged, the greater the potential prejudicial impact (R v Bartle (2003) 181 FLR 1; [2003] NSWCCA 329 at [553] and [603] and McNamara (2002) 131 A Crim R 140; [2002] NSWCCA 248 at [33] and [34]). (c) There is no requirement that it be assumed directions to a jury will be successful in removing a danger of unfair prejudice (R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 at [87] and [89]), particularly where the directions are intended to stop tendency reasoning (R v Dann [2000] NSWCCA 185 at [37] and Galvin v The Queen (2006) 161 A Crim R 449; [2006] NSWCCA 66 at [32]-[34]).

85. The appellant submitted that this was not a case for application of the proviso (Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 529). By reason of the admission of the highly prejudicial evidence the appellant lost a real chance of being found not guilty and the court could not be satisfied beyond reasonable doubt of the appellant’s guilt on the evidence properly admitted (Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [44], Decision Restricted [2011] NSWCCA 223 at [101]-[102] and ARS v The Queen [2011] NSWCCA 266 at [215]). Respondent’s submissions

86. The respondent submitted that evidence of uncharged acts and other conduct of the accused not the subject of the charge may be admissible as tendency evidence or as evidence of the relationship to place the events giving rise to the charge in their true context. If used for the latter purpose such evidence may be led as part of the essential background against which the evidence of the complainant and the accused will be evaluated (WFS v The Queen [2011] VSCA 347 at [38]). In the present case the respondent disavowed any reliance on the evidence as evidence of a tendency of the appellant to commit violent offences or sexual assault upon the complainant, and the trial judge reinforced this by directions to the jury. The trial judge’s directions, if anything, were unfavourable to the respondent as it was necessary for the relationship evidence to be proved beyond reasonable doubt. Nor was its relevance limited to the period leading up to the incident as the directions conveyed.

87. In R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123 evidence of violent conduct by the accused towards the complainant prior to the assault the subject of the charge was admitted not as propensity evidence but “because otherwise it was scarcely possible to present the case in an intelligible and real fashion” and to “insist that the incident … be considered in isolation and in an atmosphere of unreality” (at 129).

88. In Wilson v The Queen (1970) 123 CLR 334 evidence of the acrimonious relationship between the accused and the deceased, his spouse, was admitted as relevant in the trial of the accused for murder. At 337 Barwick CJ said “[i]t is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury”. At 344 Menzies J stressed that not all evidence of the relationship between the parties was admissible but only that from which a relevant inference may logically and reasonably be drawn. As he put it the evidence was admissible in that case, where the issue was whether the accused had deliberately shot his wife or the gun had discharged accidently, “to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and woman who were husband and wife”.

89. In Kaifoto aka Teaupa v The Queen [2006] NSWCCA 186 evidence of uncharged acts of sexual intercourse without consent were admitted to show the background of the relationship and to “prevent unreality in inviting a jury to consider a charged offence in deceptive isolation” (at [27] – [28]).

90. In Fordham (1997) 98 A Crim R 359 evidence of violence perpetrated by the accused on the complainant was admitted to give context to the complainant’s allegations of non-consensual sexual intercourse.

91. In Toki (2000) 116 A Crim R 536; [2000] NSWSC 999 evidence of threats and violence in the relationship between the accused and the deceased was not admitted as tendency evidence but was admitted as relationship evidence, Howie J stating at 540 “[w]here the accused and another person have been living together over a lengthy period of time before the occurrence of the acts which give rise to the charge before the court, the relationship between the parties will be admissible if it is relevant to the facts in issue in the trial”.

92. In Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12 relationship evidence was admitted so that the complainant “could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear ‘out of the blue’ to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant to meet a question which would normally arise in the minds of the jury” (at [42]).

93. The trial judge referred to the decisions in R v Sadler (2008) 20 VR 69; [2008] VSCA 198 and HGA v The Queen [2010] VSCA 114 in deciding to admit the disputed relationship evidence in this case. In R v Sadler evidence of previous acts of violence and sexual assault was admitted to make intelligible the complainant’s account of the charged acts and to show that the complainant was not purporting to describe an isolated event.

94. The respondent submitted that the case law illustrates “the tension between the principle that evidence of prior criminal conduct should not be led in a trial with the reality of relationships in which power and control imbalances are prevalent. These imbalances often manifest in sexual, physical and emotional abuse, which cannot be divorced from the circumstances surrounding the offence for which an accused is on trial” (HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 at [56]-[57]).

95. The respondent submitted that the relationship evidence was relevant in the present case for the following reasons: (a) it explained the circumstances of the offence charge – the appellant’s conduct on the night of the offence was not “out of the blue” and therefore inexplicable; (b) it assisted the jury in contextualising the complainant’s pre-offence behaviour in allowing the appellant to stay the night at her premises; (c) the history of the relationship between the complainant and the appellant goes some way to explain why the complainant did not react on the night to the sexual assault in a way the jury might expect a complainant to react had it been a one off occurrence; (d) it contextualised the complainant’s post-offence behaviour in not raising her voice, physically defending herself, calling police and allowing the appellant to remain in the premises, all of which would be questions in the mind of the jury had the evidence of the offence been adduced in isolation; and (e) it explained the delay in a formal complaint to the police, an issue it was likely would be raised by the appellant at trial.

96. According to the respondent: The evidence of other acts admitted by the trial judge was relevant and therefore properly admitted. The evidence provided the context of the relationship between the appellant and the complainant as being a relationship characterised by control, domination and subjugation by accused of the complainant and their son. To separate the conduct of both the accused and the complainant from the context of their relationship would be to present an artificial version of events. The evidence was relevant to explain the actions of the complainant both on the night in question, in the immediate aftermath of the offence, and her failure to make a complaint to the police until many months after the incident. Her concern for her son, both for his safety and his continued relationship with the appellant, guided her responses and her actions throughout the relationship and the evening of the sexual assault. The timing of the complaint, coming as it did after the commencement of the family law proceedings, could be anticipated by the prosecution to be a live issue at the trial. Without evidence of the nature of the previous relationship of the parties, the jury would be left with no other explanation for the delayed complaint. The jury were adequately directed by the trial judge as to the use to which they could put the evidence of uncharged acts, both during the course of the trial and in his summing up. As previously submitted, if anything, in advising the jury they needed to be satisfied beyond reasonable doubt as to the truthfulness of the relationship evidence, His Honour summed up in a way that was unduly favourable to the appellant. In all the circumstances there was no unfair prejudice to the appellant and the conviction should stand. Discussion

97. There is no doubt that in the present case that the respondent’s stated purpose was not to prove any tendency of the appellant but to establish a context or relationship between the appellant and the complainant said to be relevant to the facts in issue. The stated purpose of the respondent is not determinative. The “reality of what is sought to be achieved by the admission of the evidence” must be examined (RG v The Queen [2010] NSWCCA 173 at [34], RWC v The Queen [2010] NSWCCA 332 at [129]-[130]). That reality can be assessed only in light of the circumstances of the individual case. The entirety of those circumstances will determine whether the evidence can in truth be relevant to the facts in issue other than by way of tendency reasoning (which, as noted, was disavowed in the present case so that the requirements in ss 97 and 101 of the Evidence Act were not applied).

98. The requirement for relevance to the facts in issue in the individual case is fundamental as the terms of ss 55 and 56 of the Evidence Act make plain. Recognition of this requirement underpins the reasoning in the various decisions where evidence was relied on to establish a relationship rather than a tendency, both discussed above and otherwise. Accordingly, and for example, in Wilson v The Queen the principal fact in issue was whether the gun discharged accidentally or was deliberately fired by the accused. The relationship between the accused and the deceased, his wife, was relevant to the assessment of that fact. Similarly, in cases involving the sexual assault of children, the relationship between the accused and victim is often admitted as evidence of “guilty passion” on the part of the accused towards the victim making it more likely that the particular offence charged in fact occurred (as in RG v The Queen [2010] NSWCCA 173, RWC v The Queen [2010] NSWCCA 332 and WFS v The Queen [2011] VSCA 347, amongst many others).

99. In JDK v The Queen; R v JDK (2009) 194 A Crim R 333; [2009] NSWCCA 76, citing DJV v The Queen (2008) 200 A Crim R 206; [2008] NSWCCA 272 at [28]-[32], it was said at 348: 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 HML 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.

100. In RWC v The Queen at [122] the same reasoning informs the observation that: Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused (hence the term “relationship” evidence) or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint: see HML v R [2008] HCA 16 ; 235 CLR 334.

101. In WFS v The Queen at [87] the evidence of relationship was admissible because the court concluded that: …the evidence is relevant to the assessment of the credibility of the complainant in that her version of the particular incident, which is the basis of the charge in the indictment, may be more capable of belief when seen in the context of what the complainant says was her sexual relationship with the accused. It may explain, on the complainant’s version, why the accused and the complainant acted as they did in circumstances where, without the context of the relationship, those acts might be inexplicable.

102. The essential fact in issue in the present case was consent. The appellant admitted that sexual intercourse had occurred but alleged it was with consent and in different circumstances from those identified by the complainant (that is, after he had been invited to give her a massage). The complainant denied that she had given consent and alleged that the sexual assault commenced while she was asleep and continued until she managed to throw the appellant off her. The case thus turned on whether the jury believed the complainant or the appellant about the circumstances of the incident. Their respective credibility was thus directly relevant.

103. It is not difficult to understand that in some cases evidence of the relationship between the accused and the complainant may satisfy the test of relevance and thus be admissible for a non-tendency purpose. Such evidence has been admitted in many cases where, on the particular facts, the relationship evidence explains what might otherwise be inexplicable, implausible, merely surprising or, indeed, might otherwise raise any question in the minds of the jury about the conduct of the accused and/or the complainant. Ultimately, the test is as articulated in s 55(1) of the Evidence Act, namely, whether the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. In a case such as the present evidence of the relationship may, for example, simply make the complainant’s version of events “more capable of belief” than would be the case without the evidence (WFS v The Queen at [87]). This too would suffice to make the evidence relevant and, subject to exclusion under s 137 or otherwise, admissible. In other words, the explanatory capacity of the relationship evidence need not reach any threshold other than the capacity to rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. In the present case it is a given that this capacity must not result from tendency reasoning. It must result from some rational connection between the circumstances of the offence charged and the circumstances of the relationship about which the evidence is sought to be adduced.

104. Whether evidence is capable of rationally affecting the assessment of the probability of the existence of a fact in issue is not ultimately determined by the subjective characterisation of either the accused or the complainant. Accordingly, in the present case, the fact that the complainant did not herself refer to the disputed evidence concerning her prior relationship with the accused as relevant to her conduct leading up to, during and after the incident does not mean that the disputed evidence was incapable of rationally affecting the assessment of the probability of the existence of a fact in issue and thus was irrelevant and inadmissible. To the extent that the appellant’s submissions relied on this proposition they should not be accepted. If, however, a complainant does explain her or his conduct by reference to the prior relationship it may be the case that the required rational connection can be discerned more readily.

105. It is also convenient to note at this stage that to the extent that the appellant’s submissions depended on characterising the trial judge’s directions as excluding the use of the evidence for any purpose other than assessing the conduct of the appellant, the submission is rejected. Considered as a whole the directions enabled the jury to use the disputed evidence as relevant to the conduct of the appellant and the complainant, but not for any tendency purpose.

106. Where the evidence is not sought to be used for a tendency purpose, the fact that the evidence of the prior relationship is extensive does not relieve from the burden of determining whether each piece of the evidence is relevant on a non-tendency basis. Labelling evidence as “relationship” or “contextual” or “background” does not of itself establish relevance. Consideration of each piece of evidence, moreover, enables assessment of not only the capacity for it to be used permissibly for a non-tendency purpose but also the risk of the probative value of that evidence being outweighed by the danger of unfair prejudice to the defendant. A global assessment of evidence at a high level of generality as falling under the rubric of “relationship evidence” is unlikely to enable either task required by the Evidence Act to be discharged.

107. If this approach is taken the problems with the admission of many parts of the disputed evidence are exposed. The circumstances of the offence charged were that the appellant and the complainant had been separated for two years and had contact only in respect of their son who was looked after by the appellant’s parents after school. Because of their son the appellant came over to the complainant’s house and stayed the night on a couch downstairs. He opportunistically took advantage of the complainant being asleep in her bed upstairs to have sex with her and continued until he was thrown off and asked to leave the house by the complainant after which he returned to the couch. The complainant said nothing until she had to see a doctor about a sexually transmitted disease and did not contact police until after the appellant had commenced custody proceedings in respect of their son because the situation was all so horrible and complicated, she was ashamed and humiliated, the appellant’s parents looked after her son after school and when he was sick, and she felt she had to be nice to the appellant or he would take it out on their son as the appellant always threatened to seek custody of their son if the complainant was not “good’ or “nice” enough to him. After she received advice that telling the police would not harm the custody case she went to the police.

108. Putting aside impermissible tendency reasoning (impermissible because the evidence was not sought to be adduced as relevant to any tendency the appellant might have to engage in sexual acts with the complainant without her consent and which she found abusive, degrading and humiliating), this was not a case where showing that the relationship between the accused and the complainant was characterised by violence, domination and control was capable of rationally affecting the assessment of the probability of the existence of a fact in issue either directly or indirectly. Without reasoning involving the tendency of the appellant to act in a particular way neither the complainant’s nor the appellant’s version of events was rationally rendered in any way more or less believable by evidence showing the relationship to be one of violence, domination and control.

109. To explain this, it is necessary to recognise that the prejudicial effect of the evidence about the appellant’s sexual acts with the complainant is not the acts themselves but the fact that the complainant did not consent to any of the acts and, indeed, found them abusive, degrading and humiliating. Between consenting adults the acts themselves are immaterial. The sting of the evidence is that the appellant repeatedly forced the complainant into sexual acts without her consent and because she did not consent she considered the acts to be not “normal sex” and “degrading” which she was coerced into submitting to and had to endure. Once this is recognised it exposes that any form of reasoning to the effect that, by reason of the disputed evidence, it was unlikely or less likely the complainant would have consented to sex with the appellant after a massage on the occasion in question is itself tendency reasoning. It is tendency reasoning because the unpleasant, even gross, quality of the disputed evidence arises solely from the fact that the appellant engaged in the sexual acts described in the disputed evidence notwithstanding that complainant did not consent to the acts. In other words, whatever way it is presented, the analysis depends on reasoning that the appellant had performed sexual acts on the complainant without her consent in the past, because she did not consent she found the acts degrading, hence when the appellant engaged in a subsequent sexual act with her it was likely or more likely that she did not consent to that subsequent act. This is tendency reasoning because the relevant fact to the reasoning – the complainant’s presumed repulsion at the idea of sex with the appellant – depends on a tendency of the appellant to engage in sexual acts with her to which she did not consent and, by reason of the lack of consent, found repulsive.

110. The submission that the disputed evidence showed that the incident was not a one-off event and thus negated 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 during the long relationship between the appellant and the complainant also has difficulties. The current relationship between the appellant and the complainant was a relationship between separated parents who had not lived together in two years and had contact over their son who was frequently looked after by the appellant’s parents. The vast majority of the disputed evidence concerned the relationship between the appellant and the complainant when they were living together between 1997 and 2004 (only two of the numerous non-charged incidents said to constitute the relationship evidence related to the period after they separated). In the circumstances of the current relationship between the appellant and the complainant (that is, current at the time of the offence charged) it is difficult to accept that it would be in any way odd for only one offence to have occurred. Insofar as the complainant’s evidence is concerned this fact is not odd at all; the appellant was permitted to come to the complainant’s house and to stay over only because of their son and took advantage of the fact of being in the house to sexually assault the complainant when she was asleep and thus defenceless.

111. The submission that the disputed evidence contextualised the complainant’s acquiescence to the appellant coming over and staying the night because it showed the complainant was often unable to resist the appellant’s demands because of her continued attempts to deal with his aggression and violence is equally implausible. Her evidence about her acquiescence about these matters was not explained by the disputed evidence. It was explained by her detailed evidence that their son was being looked after by the appellant’s parents, that the appellant was there when the complainant picked the son up, that the appellant asked if the complainant would like him to come back and help with their son (who was sick) in front of their son, their son seemed happy that his father wanted to come over and while the complainant was reluctant she was pleased that the appellant was taking an interest in their son and thus agreed. As to the appellant staying the night on the couch, the complainant explained that the appellant was interacting with their son and the complainant got dinner from a takeaway shop nearby. They ate and watched TV. She cleaned up. They played with their son. They put their son to bed. She got some bedding so the appellant could sleep on a fold-out bed. He said he would sleep on the couch. He asked her if she wanted a massage and she refused. She went to bed in her room upstairs and fell asleep after reading a book. She was awoken later by the appellant having sex with her.

112. The submission that the disputed evidence contextualised the complainant’s response to the incident, including her delay in complaining, is also problematic. The complainant explained that her response was first to do nothing because she could not believe it was happening and did not want it to be happening. Then she rolled to try to get the appellant’s penis out of her vagina. Then she and the appellant started to struggle. During this she told the appellant to get off her and that he couldn’t do this to her anymore. Once she managed to get the appellant off her she accused him of having sex with her while she was asleep which he denied and told him to get out and to leave the house but the appellant would not. Eventually he left her room but not the house. She thought of calling the police but she thought of all the other complications and did not. The other complications were that the appellant’s mother cared for the son, the son liked his grandmother, the appellant always threatened to take custody of their son using his parent’s money when she was on a scholarship, and the appellant also tended to take things out on their son when he was angry at the complainant. The complainant went to the police after the appellant brought the custody proceedings because she then had nothing to lose. She had always had the threat of custody proceedings hanging over her but as the appellant had taken proceedings she had no reason not to report the incident once she had been advised it would not adversely affect her position in the custody case. Nothing in this evidence is rendered more believable by the disputed evidence. In particular, the respondent’s suggestion that the complainant’s statement that the appellant “couldn’t do this to her anymore” made the disputed evidence relevant is unpersuasive. The fact of permanent separation for two years adequately explained this statement.

113. Insofar as the work colleague’s evidence is concerned, as submitted for the appellant, the relevance of that evidence was solely to negate an inference of recent invention of the disputed evidence itself. But for the disputed evidence it had no relevance.

114. It is apparent that some evidence of the relationship between the appellant and the complainant was relevant. For example, it was relevant that the appellant and complainant had been in a relationship, had a son and that the son was in the complainant’s custody but was frequently looked after by, and had a good relationship with, the appellant’s mother. Because of the circumstances of her report to the police, it was relevant that the appellant had threatened in the past to take custody proceedings for the son and the complainant perceived he had done so as a weapon to ensure the complainant acted as the appellant wanted. For the same reason it was relevant also that the complainant perceived that when the appellant was angry with her he would take it out on their son, and as a way of achieving the complainant’s compliance. So much may be accepted. Without this evidence the jury would have been left with a false picture of the real circumstances between the appellant and complainant.

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.

116. Consideration of the circumstances of the offence charged and the bulk of the disputed evidence undermines the suggestion of relevance other than by impermissible tendency reasoning. As such, this evidence was incapable of rationally affecting any fact in issue and should not have been admitted. And as the submissions for the appellant said, even if some of this evidence had some possible relevance (which it did not) its probative value was so slight that it was outweighed by the danger of unfair prejudice to the appellant.

117. Insofar as the balance of the disputed evidence is concerned it consisted of evidence that while they were living together the appellant would have sex with the complainant when she was asleep and otherwise would violently rape the complainant. This evidence involved a high risk of tendency reasoning by the jury, particularly the evidence of the appellant’s conduct in having sex with the complainant while she was asleep which is very similar to the circumstances of the offence charged. Against this, the probative value of that evidence on a non-tendency basis must be assessed. Given the circumstances of the incident on both versions, it is difficult to see any real probative value of this evidence at all unless it is used for a tendency purpose. The evidence was also highly prejudicial to the appellant. Again, if relevant at all to the facts in issue the probative value of this evidence was also outweighed by the danger of unfair prejudice and the evidence should not have been admitted. The trial judge’s directions could not avert that danger in the circumstances.

118. As to the evidence of the two incidents after the appellant and complainant had permanently separated in 2004, the first (where the appellant wanted sex in payment for having helped the complainant move and put his penis into her vagina without her consent while they were sleeping on a mattress) is also very similar to the offence charged. If tendency reasoning is excluded the evidence has no or little probative value, yet was highly prejudicial. So too is the case with the evidence of the attempted rape and violence in August 2005.

119. In the present case there was nothing implausible, unlikely, surprising or odd about the competing versions of the incident. When tendency reasoning is put to one side, the complainant’s version of events was not made more believable in any way by the disputed evidence. It was made more believable by the evidence the complainant in fact gave without objection, as well as the evidence about her belief that the appellant would take out his anger on her on their son and she feared he would do so again (and that he would apply for custody) if she reported the incident. Accordingly, this was not a case where the jury would have been left with a “false picture” of the current relationship between the appellant and the complainant but for the admission of the disputed evidence (contrary to the situation in R v MBO [2011] QCA 280 at [65]). The picture of the relationship that existed between them from 1997 and 2004 would have been incomplete but not in any way that would make the disputed evidence of that relationship relevant to the offence charged.

120. For the reasons identified in the appellant’s submissions, the proviso is inapplicable. A plethora of highly prejudicial evidence was admitted which was either irrelevant or, at best, of such marginal probative value as to be outweighed by the danger of unfair prejudice to the appellant. Accordingly, it cannot be concluded that no substantial miscarriage of justice has occurred (s 37O(3)(b) of the Supreme Court Act 1933 (ACT)). The conviction should be set aside and the matter remitted for a new trial.

I certify that the preceding fifty seven (57) paragraphs numbered [64]–[120] are a true copy of the Reasons for Judgment herein of her Honour Justice Jagot.

Associate: Alexandra Stead

Date:

Counsel for the Appellant: Mr S J Odgers SC and Mr K Archer

Solicitor for the Appellant: Kamy Saeedi Lawyers

Counsel for the Respondent: Ms M Jones

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 6 August 2012

Date of judgment: 6 November 2012

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