Limits Upon the Admissibility of Relationship Evidence
44 Are there limits to the admissibility of such evidence? A number of limitations have been rejected. Barwick CJ, in Wilson (supra, at 339), rejected the suggestion that evidence of relationship is limited to evidence which establishes motive. Nor, in the context of sexual offences, can the prosecution be confined to offences of the same type. Hunt CJ at CL in Beserick (supra) said this: (at 527)
"As Stable J said in R v Witham ((1989) Qld R 49, at 77), such a restriction would be 'quite unreal'. Different types of sexual activity are, as that judge said, 'all part of the same passion, the same sex urge'. When the other sexual activity has preceded that which is the subject of the charge, evidence of it will often be important in many cases to show how the nature of the accused's guilty passion grew from minor transgressions, which the victim was initially reluctant to accept, to grave infringements of the law which, though not welcomed by the victim, were ultimately accepted without further express protest."
45 Is proximity a requirement? Is it valid to enquire whether the events, which the Crown seeks to introduce, are too remote from the events which are the subject of the charge? A distinction needs to be made between events before and after the incident charged. It is hard to see how events after the offence can provide a context, although it is possible (if they are sufficiently proximate) that they may (cf Hunt CJ at CL in Beserick (supra) at 525). The relationship after the offence may, nonetheless, with the aid of the presumption of continuance, and if reasonably close in point of time, provide an explanation for certain conduct (cf R v Fordham 90 A Crim R 359, per Howie AJ).
46 Dealing with events before the offence, time, as such, appears not to be a limitation upon the reception of relationship evidence. The test is logic, and the capacity of the event to explain the conduct charged. Thus, McHugh J in Harriman v The Queen (supra) said this: (at 630)
"In Reg v Garner ((1963) 81 WN (Pt1) (NSW) 120) on a charge of assault occasioning actual bodily harm, evidence of 'a long course of cruelty and continued ill-treatment' (p 122) by the accused to the complainant was rightly admitted because it showed the 'atmosphere of hostility' (p 129) which existed and made more probable than not that the assault in question had occurred."
47 However, the remoteness of conduct from the offence charged is important to the exercise of discretions under s135, s136 and s137 of the Evidence Act, 1995. Hunt CJ at CL in Beserick (supra), said this: (at 521/522)
"As the authorities which I have cited show, remoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity."
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 (cf Hunt CJ at CL in Beserick (supra) at 522). In R v 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."
49 Finally, the generality of evidence concerning relationship, on one view, may render it inadmissible. In Gipp v The Queen (supra) Gaudron J said this: (at 112/113)
"General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as 'similar fact' or 'propensity' evidence. And in this case, there was no feature of the kind present in R v Ball ([1911] AC 47) that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible."
50 Callinan J was of a similar view (at 168/169). However, McHugh and Hayne JJ saw such evidence as unexceptional, often reflecting choices made by the advocate appearing for the accused. They said this: (at 132)
"The evidence tendered was general in its nature and, as the above passage, makes clear, was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence 'as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances ' ( R v Bond [1906] 2 KB 389 at 400; see Wilson v The Queen (1970) 123 CLR 334 at 338, 343). Counsel might have objected to the generality of the evidence and insisted that the complainant should recite in detail, so far as she could, the times, places and manner of these sexual interferences. But he preferred - what seems to us to have been the better forensic choice - that the evidence of the sexual history should be given shortly and without prejudicial detail."
51 Kirby J, on this aspect, did not express a concluded view (cf 73 ALJ 432 at 440-441). Powell JA, in R v MM [2000] NSWCCA 78, provided the following comment upon this decision: (at para 46)
"Although in the course of their separate Judgments in Gipp v R (1998) 194 CLR 106 Gaudron J at 111-113 and Callinan J at 168-169 expressed the view that general evidence of sexual abuse on occasions other than those charged is, in the absence of conduct on the part of the defence which raises an issue to which prior abuse is relevant, not admissible unless it has a special probative value which renders it admissible as propensity evidence, that view does not appear yet to command a majority in the High Court."
52 Here, the only evidence which seems to me arguably inadmissible, is the evidence relating to touching in the bath, and games. The evidence is not simply general. It is ambiguous, and arguably, not sexual. The remaining evidence, including that which may suggest more frequent intercourse, appears to me to be admissible. It tends to prove how or why the conduct, which is the subject of the charges, arose. It makes it more probable that such conduct occurred (cf McHugh J in Harriman (supra) at 630).