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[2009] VSCA 157
Court of Appeal (Vic)
2009-06-26
MAXWELL P, BUCHANAN and WEINBERG JJA
Original judgment source is linked above.
the applicant to be imprisoned for a term of five years and six months and would fix a minimum term of three years and six months before he is to be eligible for parole.
38 I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan JA. I agree with his Honour, for the reasons there set out, that the application for leave to appeal against conviction should be dismissed. I also agree that the appeal by the Director of Public Prosecutions against the sentence imposed should be allowed, and the respondent to that appeal re-sentenced as his Honour proposes.
39 I wish to say something briefly about each of grounds 2, 3 and 4 in support of the application for leave to appeal against conviction.
40 In my opinion, evidence regarding the complainant having previously obtained an intervention order against the applicant was both relevant and admissible. Its probative value was significant, and by no means outweighed by any potential prejudicial consequences.
41 The evidence bore directly upon the relationship between the applicant and the complainant, and in particular, the likelihood that she had consented to sexual intercourse with him. 'Relationship evidence', as it is sometimes described, is of course admissible if relevant.[4] Such evidence should not be confused with similar fact, or propensity evidence.
42 The matter is helpfully canvassed in JRS Forbes, Similar Facts.[5] The learned author points out that in such cases, it is not the accused's disposition towards people in general which is being considered, but rather his or her relationship with or towards one particular person. That relationship may be one of mutual attraction,
43 A survey of the authorities demonstrates that where relationship evidence is sought to be led, no high degree of similarity between the prior conduct and the subject act need be shown.[6] Indeed, it has been suggested that 'relationship evidence' can be assimilated, in this regard, to evidence of motive.[7] In that sense, as I have previously noted, relationship evidence has long been regarded as quite different to propensity evidence.[8]
44 Of course, the admissibility of this evidence will depend, initially at least, upon whether it passes the threshold test of relevance. An isolated quarrel of a minor nature that occurred long before the commission of the offence charged may have little or no probative value.[9] On the other hand, depending upon the particular circumstances, a dispute which culminates in a formal court process such as the obtaining of an intervention order, may throw considerable light upon an issue such as whether consent has been negated. It is also perhaps worth noting that sometimes even retrospectant evidence has been admitted where it throws light upon the incident in question.[10]
45 Relationship evidence has, historically, been led in connection with offences such as rape.[11] Typically, that evidence has been led on behalf of the accused who seeks to support a defence of consent by proving prior acts of intimacy.[12] It is not, however, confined to such cases. There are instances where it has been held that the complainant may answer a defence of consent by giving evidence that far from harbouring any desire for the accused, she loathes him, and has previously complained about his having molested her.[13]
46 Of course, a common use of this type of evidence is to show a pre-existing attitude of hostility or aggression on the part of the accused towards the victim of a murder or assault.[14]
47 As regards the non-responsive answer given by the complainant regarding the threat to kill, I consider this to have been of little import in the particular circumstances of this case. In any event, that evidence would, in my opinion, have been admissible as bearing upon the issue of consent, had the Crown chosen to lead it.
48 It follows that there was no need for a propensity direction to have been given in this case. No such direction was sought at trial, and there was little risk of the jury reasoning impermissibly without it.
[2] (1970) 123 CLR 324, 339.
[4] The term 'relationship evidence' has been decried with a preference being expressed for 'direct evidence'. See generally R v Frawley (1993) 69 A Crim R 208, 222-3 (Gleeson CJ) and R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, 566 (Heydon JA)
[6] Wilson v R [1970] HCA 17; (1970) 123 CLR 334, 338 (Barwick CJ), 344 (Menzies J) and R v PFD [2001] VSCA 198; (2001) 124 A Crim R 418, 426.
[7] R v Ball [1911] AC 57, 68.
[8] R v Bond [1906] 2 KB 389, 401 (Kennedy J).
[9] R v Tsingopoulos[1964] VicRp 86; [1964] VR 676 and R v Iuliano [1971] VicRp 50; [1971] VR 412, 416.
[10] R v Herbert [1916] VicLawRp 45; [1916] VLR 343. See also Wales v Wales [1900] P 63 (a case where subsequent acts of adultery were held to be relevant when considering whether the alleged act took place).
[11] See R v Lloyd [1836] EngR 931; (1836) 173 ER 141; R v Holmes (1871) 12 Cox CC 137; R v Fitzgibbon [1885] VicLawRp 50; (1885) 11 VLR 232 and R v Horne (1903) 6 WALR 9.
[12] R v Fitzgibbon [1885] VicLawRp 50; (1885) 11 VLR 232.
[13] Garrett v R [1977] HCA 67; (1977) 139 CLR 437, 444 (Barwick CJ).
[14] Wilson v R (1970) 123 CR 334 and R v Hissey (1973) 6 SASR 280.