The authorities relied on by the appellant
85 The first submission which the appellant advanced to this Court was put thus:
"The evidence was not direct evidence as was the case in the Wilson case (Wilson v The Queen) 1970 123 CLR 334) where the evidence of relationship was permitted but where the evidence consisted of a statement by the deceased to the accused and overheard by others to the effect that he threatened to kill her and why did he not get it over and done with. In that sense they were clearly statements of the deceased's state of mind at the time but that state of mind as it existed whether it be correct or incorrect was expressed to the accused.
Wilson was followed by Ratten 1972 AC 378 and later in 1989 by Walton (1989) 166 CLR 283 which in short could be said to be authorities for the proposition that the state of mind or belief can be received in evidence if such state of mind or belief is relevant. The state of mind of the deceased in this case is not relevant nor is it submitted is it evidence that would have been permitted to have been given by the deceased if the Appellant had been charged with for example a serious assault and that the deceased was available to give evidence. The evidence here is of course further removed from that factual matrix in that the evidence that was permitted was of an independent person, or third person, being told by the deceased certain things which were then repeated by that person in evidence their context and reliability can never be tested."
86 The appellant also relied on R v Frawley (1993) 69 A Crim R 208 for the proposition that statements by one party to a relationship about her state of mind which were not in the presence of or communicated to the other were inadmissible.
87 It is convenient to consider what was said in the authorities referred to by the appellant.
88 In Wilson v R (1970) 123 CLR 334 at 336-337 Barwick CJ summarised the facts thus:
"The applicant's wife died of gunshot wounds received by her whilst she was driving a tractor drawing a load of hay during the hours of day on a property in Victoria which the applicant was managing. The applicant had borrowed a shotgun from a neighbour, as he claimed in his evidence, for the purpose of shooting rabbits. On the day of his wife's death he had placed the rifle on the top of the load of hay. He claimed that he had set the safety catch on the gun by pushing it forward. In fact this action released the safety catch: but the applicant denied that he knew this. He claimed that he had not discharged the gun but that it had discharged accidentally, perhaps when a dog had jumped upon the load of hay. There were no eye witnesses present. The contest at the trial was as to whether the applicant, admittedly present at the time, had shot his wife in the back of the head or whether the gun placed on the load of hay had accidentally discharged at a time when it was pointing towards the back of her head, the jury having of course to be satisfied beyond reasonable doubt that the applicant had discharged the gun before they could convict."
89 Barwick CJ then said (at 337-340):
"It 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. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.
It was submitted on behalf of the applicant that evidence of the relationship of the parties was only admissible in so far as it furnished evidence of a motive which the applicant might possibly have had to have killed his wife. In support of this limited admissibility of such evidence, reference was made to R v Munn [[1930] NZLR 1017 at 1029]; Reg v Tsingopoulos [[1964] VR 676; R v Barbour [[1939] 1 DLR 65].
Before making a brief reference to these cases, I should observe that we are not concerned here with the reception of evidence of prior acts in order to establish systematic conduct or to negative accident, a matter with which the court was dealing in R v Bond [[1906] 2 KB 389]. None the less the sentence in the judgment of Kennedy J in that case from which I now quote whether or not so intended, is, as a statement of relevance, in my opinion, of universal validity and is not limited to any particular aspect of the relationship of which his Lordship spoke.
'The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.' [[1906] 2 KB at 401]
In this statement 'the conduct of the accused' of which the relationship of the parties may be explanatory will not necessarily be limited to the act charged, as in this case, the act of shooting, but will extend, in my opinion, to any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged. Here the question was whether the deceased fired the gun. If he did, no other question remained. The relations of the parties, in my opinion, may be relevant to that fact. In R v Barbour [[1939] 1 DLR 65 at 66] evidence of quarrels which were no more than 'transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing' and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings were ruled inadmissible. Sir Lyman Duff CJ said:
'If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which reasonably viewed cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.' [[1939] 1 DLR at 67]
If the words 'or to explain the acts charged', which are to be found in the latter part of this quotation were inserted as they may well have been intended to be, after the word 'motive' in the earlier part of the statement, I would respectfully agree with what the learned Chief Justice said: but otherwise I am unable to accept the limitation on the admissibility of the evidence which the learned Chief Justice's words if not so expanded would seem to imply. Here the question is not whether a motive or some particular intent can be found or assigned for or in connexion with a killing but of choosing between the competing views in point of fact of accidental discharge of the gun and its discharge by the act of the accused.
No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol 1, p 451, Halsbury's Laws of England, 3rd ed, vol 14, par 491, Phipson on Evidence p 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R v Ball [[1911] AC 47 at 68]; per Sir Lyman Duff [[1939] 1 DLR at 67]. It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R v Barbour [[1939] 1 DLR 65]. It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling was tendered and the time of the act charged, as was the case in Reg v Tsingopoulos [[1964] VR 676]. Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.
But it was also objected that, whilst evidence of statements of the applicant indicating his attitude to the deceased and statements of the deceased which could be regarded as likely to create animosity in the appellant towards her would have been admissible, evidence of statements by the deceased as to what she considered the appellant's attitude to her to have been were inadmissible. It may at once be conceded that, if the statement attributed to the deceased had not been part of the evidence of a quarrel of a significant kind, the statement of her opinion of the applicant's attitude or intention towards her would have been inadmissible. cf Reg v Bedingfield [(1879) 14 Cox CC 341]. But in this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached. It is impossible, in my opinion, to maintain the proposition that though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf. In my opinion, the evidence of what the deceased said in the course of these quarrels between herself and the applicant was admissible.
Then it is submitted that the evidentiary value of the evidence to which I have referred was relatively small and that the judge ought to have exercised his discretion to exclude the evidence because of the highly prejudicial effect that evidence of such statements by the deceased could have in the minds of the jury. It is quite true that the Crown had upon the other evidence it produced at the trial a strong case. But though there was a strong case, and evidence of other quarrels in which the statements to which objection is taken were part of the evidence of the continuity of the quarrelling and of the depths to which the relationship of the parties, as husband and wife, had sunk. Of course, the deceased's statements were most damaging to the applicant but they were not merely prejudicial. There was no reason, in my opinion, to deny the prosecutor the benefit of the evidence. In my opinion, neither of the statements ought to have been excluded in the exercise of a judicial discretion."
90 Menzies J (with whom McTiernan J and Walsh J agreed) said at 343-345:
"It was contended by counsel for the applicant that the evidence of what the wife said on these two occasions was not admissible because her words could not be regarded as providing a basis for a homicidal response by the applicant or as giving the applicant some motive for killing his wife. The contention that the evidence was admissible only if the words could reasonably be regarded as causally related to the wife's death in one or other of the ways stated was based upon a passage in the judgment of Kennedy J in R v Bond [[1906] 2 KB at 400-401], which followed a statement relating to the admissibility of evidence of prior criminal acts to prove the crime charged, and was as follows:
'Such prior acts formed, in point of historical and circumstantial connexion, inseparable parts of the transaction which the jury had to investigate. Within this same limitation, I think, come the cases of trials for murder and wounding with felonious intent, in which evidence is admissible to shew prior assaults by the prisoner upon the murdered or injured person or menaces uttered to him by the prisoner, or to shew conversely irritating behaviour by the deceased to the prisoner, as in Reg v Hagan [(1873) 12 Cox CC 357]. The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.'
In my opinion this statement affords no justification for the limitation for which counsel for the applicant has contended. The essential parts of his Lordship's statement is to be found in the words:
'The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial. [[1906] 2 KB at 401]
These words are fatal to the contention of counsel for the applicant and are not to be read down by the words which precede them.
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but 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 a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
The next submission that there had been a mistrial rests upon what was put as a wrong exercise by the learned presiding judge in failing to exclude the foregoing statements of the wife on the ground that their prejudicial effect was out of all proportion to their probative value. In the light of the other evidence I have found no reason to think his Honour was in error in admitting what, for the purpose of this argument, is conceded to be admissible evidence. His Honour carefully directed the jury upon the use that they could make of the evidence and warned them against treating the statements as evidence of the actual state of mind of the applicant."
91 R v Frawley (1993) 69 A Crim R 208 was a case in which the accused was convicted of murdering his de facto wife. There was evidence the admissibility of which was not challenged that there had been numerous arguments between the accused and the victim and that he had told a witness, Mrs Jeacle, that he hated the victim, and that he had decided to leave her. Gleeson CJ said that this evidence was "admissible because the nature of the relationship between the appellant and his wife was relevant" (at 218). He also said that the admissibility of evidence from Miss Mulqueen that she had heard loud quarrelling between the accused and the victim was not in issue. However, the reception of other evidence was complained about. Gleeson CJ said at 220-1:
"The challenged evidence was given by the deceased's daughter, Lisa Mulqueen. It took two forms.
First, Lisa Mulqueen said that, shortly after her mother's death, whilst cleaning the house at Umina, she found amongst her mother's personal effects a document in the nature of a diary note, in her mother's handwriting. The document was tendered in evidence. It is headed: 'Reasons for Ending Relationship with M'. The document listed, in some detail, what were regarded by the deceased as serious personal deficiencies on the part of the appellant. He was said to have acted cruelly towards the [deceased's] dog, to have been extremely jealous of the [deceased's] relationship with others, including males, to be uncivilised if guests came to the house, and to be a drain upon the deceased's finances. More significantly, the document recorded that the appellant was 'definitely unbalanced when drinking' that he was a 'potential threat' to the deceased, that he had a 'nasty side to him when drinking' that he engaged in 'crazy behaviour' and that he had a 'crazy look in his eyes'.
Lisa Mulqueen also gave evidence of a number of conversations, including telephone conversations, she had with her mother. In the course of those telephone conversations, the deceased made allegations of misconduct and violence on the part of the appellant. The appellant was said to have accused the deceased of being unfaithful. The deceased told her daughter on a number of occasions that she was afraid of the appellant, and that he had been physically violent towards her. The deceased said that the appellant was throwing her personal belongings around the house. She said that on one occasion he threw a bucket of water over her whilst she was in bed. On another occasion, after a violent quarrel, the deceased rang her daughter and said that 'she felt that she could see her brains splashed against the wall and that she was terribly frightened'."
92 Gleeson CJ summarised and quoted from the reasoning of Barwick CJ in Wilson v R. He said of Barwick CJ's reference to R v Bedingfield (1879) 14 Cox CC 431:
"That was a case in which it was held that the prosecution could not lead evidence of what was said by a woman who emerged from a room with her throat cut. Evidently the evidence was regarded as hearsay, but it was sought to be led on the basis that it came within an exception to the hearsay rule, either as a dying declaration or as part of the res gestae. Whether Bedingfield was correctly decided is not material to this case. Those grounds of admissibility were not available in Wilson or in the present case. It is not entirely clear whether Barwick CJ was saying that evidence of the kind referred to in the passage just quoted would be inadmissible as hearsay, or as opinion, or both. However, his Honour was making the point that the evidence that was called in Wilson was direct evidence of a quarrel. The witnesses gave direct evidence of their observations of the relationship between the accused and the deceased. No one suggested that the evidence could be used as proof of the correctness of the belief asserted by the deceased, ie, that her husband wanted to kill her. However, what was done and said between them, as deposed to by witnesses who saw and heard the acts and words, was evidence of a bitter relationship, and the existence of such a relationship was a fact relevant to a fact in issue at the trial.
As a matter of logic, a question arises as to why the fact that the wife's accusations against her husband were made in his presence should be essential to the admissibility of such evidence, bearing in mind that the evidence was not led to prove the truth of the accusations. Menzies J, with whom McTiernan and Walsh JJ agreed, said (at 344):
'Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her.'
In terms of the relevance of the evidence, it might be asked what the words 'in the course of a quarrel' add to the point being made in the last sentence of that passage. Yet, as was noted earlier, Barwick CJ treated that as the key to the admissibility of the evidence. Why might it not also speak eloquently of a bitter relationship between husband and wife that the wife should tell a third party, in the absence of her husband, that her husband wanted to kill her?"
93 He then referred to later authorities in the following way (219-220):
"Wilson was decided before Ratten [1972] AC 378 and Walton (1989) 166 CLR 283; 38 A Crim R 276. Those cases show that, in certain circumstances, evidence as to, or which reveals, a state of mind, or belief, or intention, may be received as original evidence if such state of mind, or belief, or intention is relevant. In Ratten the emotion of anxiety or fear revealed by a person who made a telephone call was regarded as a fact relevant to a fact in issue, and what the caller said was original evidence of the existence of that emotion.
The question of relationship evidence was considered in the Queensland case of Mills [1986] 1 Qd R 77; (1985) 16 A Crim R 366, where McPherson J said (at 85; 373):
'A 'relationship' between two persons is ordinarily capable of being established only by evidence of a series of acts between those persons …'
In Matthews (1990) 58 SASR 19 the Supreme Court of South Australia held inadmissible evidence of witnesses that a deceased person had told them she was in fear of the appellant. Those statements were not made in the presence of the appellant, but they were treated as original evidence of the state of mind of the deceased which threw light upon aspects of her relationship with him, which were in turn relevant to the charges of rape and murder. They went to the issue of consent, and to other factual issues that were of significance.
One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused's state of mind may well be relevant. It is less likely that evidence of the victim's state of mind will be relevant, although, as the authorities cited above show, it may be relevant, depending on the issues in the case. Again, evidence that one party says things derogatory of the other party, in the other party's absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label 'relationship evidence' and to seek to describe more accurately and more particularly the subject matter."
94 The precise nature of the controversy between the parties in R v Frawley on appeal is obscure. Gleeson CJ noted that at the trial the argument for reception of the evidence was that the fact that the deceased was writing and saying what she did about the accused was evidence that their relationship was bad, but not that what she said proved the truth of the matters recorded or proved that her opinions were well founded. Gleeson CJ recorded the proposition that it was common ground that so far as the statements were hearsay they were inadmissible. He also recorded a concession by senior counsel for the accused that the evidence had relevance and probative significance. Gleeson CJ's reasoning appeared to be directed to a destruction of that concession; since the Crown evidently did not attempt to fit the evidence into an exception to the hearsay rule, the accused's argument that the evidence was hearsay was beside the point.
95 Gleeson CJ (Carruthers J concurring) said (at 222-223):
"In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to 'relationship' but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue.
The handwritten note was direct evidence of some facts and hearsay as to other facts, many of which were obviously irrelevant. It was direct evidence of the fact that the deceased could write; it was hearsay evidence of the fact that the appellant was impolite to visitors. Neither of those two facts was relevant. There are, it seems to me, only three possibly relevant facts of which it was direct evidence, and it is necessary to consider the relevance of each of these in turn.
First, the note was direct evidence of the fact that the deceased had made a list of reasons for terminating her relationship with the appellant, from which it might be inferred that she was contemplating such a termination. There is, however, no evidence that she ever told that to the appellant. That fact, therefore, does not tend to prove that he intended to kill the deceased, or had a motive for doing so, or even (although this was not seriously in issue) that it was the appellant who killed the deceased.
Secondly, the note was direct evidence of the deceased's state of mind in various respects. Her annoyance at the appellant's treatment of her dog was an irrelevant state of mind. What, however, of her fear of the deceased and her apprehension of violence? The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.
Thirdly, the document was direct evidence of the fact that the deceased, in a private diary note, made statements severely critical of the appellant. There is no evidence that she communicated those statements to him. I am unable to see how this fact has probative significance in relation to an issue in the case.
Similar reasoning applies to the conversations between the deceased and Lisa Mulqueen. The second and third points apply equally.
The document, and the conversation, were, of course, hearsay evidence of some matters of clear relevance. But they were not tendered in evidence to prove those matters and it is common ground that, in so far as they were hearsay, they were inadmissible. They were only tendered on the basis that they were direct evidence of some fact relevant to a fact in issue. On analysis, however, once one examines with some particularity the precise facts concerning the relationship between the appellant and the deceased of which this material was direct evidence, it appears that those facts were not of probative significance.
For these reasons I consider the evidence was inadmissible."
96 The conclusion that the relevant facts were not of probative significance appears to be that the evidence lacked relevance, or at least that it lacked sufficient relevance to be received.
97 Sheller JA drew attention to three decided cases in which evidence of mental states was admitted (at 227-228):
"In Ratten [1972] AC 378 a telephonist gave evidence that the deceased victim of an alleged murder, while sobbing and in an hysterical state, said some three to five minutes before she was shot dead by the accused, 'Get me the police please'. Lord Wilberforce delivering the reasons of the Privy Council (at 387-388) said that this evidence was not hearsay evidence and was admissible as evidence of fact relevant to an issue, the fact being that the deceased woman at that time was in a state of emotion and fear. The issue was that raised by the appellant's account of the shooting that the gun discharged accidentally while he was cleaning it. Similarly an expression of fear and a wish not to see an accused has been held relevant and admissible to rebut an accused's claim that subsequent sexual intercourse with the deceased victim of an alleged murder was consensual: Matthews (1990) 58 SASR 19.
In Walton (1989) 166 CLR 283; 38 A Crim R 276, the majority of the High Court held a statement by a murder victim of her intentions to be admissible if relevant to a fact in issue. At 291-292; 281 Mason CJ said:
'In the present case, there was independent evidence from Miss Bragg that the applicant had told her that he had arranged to meet the deceased at the town centre at 7 pm on the night in question. It is the conjunction of this independent evidence of the making of the arrangement between the applicant and the deceased and the evidence of the deceased's intention to travel to the town centre to meet the applicant that provides a foundation for the inference that they went to the town centre and met there.'
Such evidence is nonetheless admissible because it contains assertions of fact. In their joint judgment (at 304; 290) Wilson, Dawson and Toohey JJ said:
'The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible'."
98 He then said (at 228):
"The deceased's statements in her handwritten note and to Lisa Mulqueen are no evidence of the appellant's attitude or feelings towards her nor of acts of violence or hostility to which he subjected her. They are not evidence of fear felt by her immediately before she was killed. They are not evidence of a mutual relationship but at best evidence of the deceased's feelings towards the appellant. They consist of her account of the appellant's behaviour to her as expressed as grounds for her feelings of fear but not linked to any admissible testimonial material. The only evidence of the appellant's attitude to the deceased or of violent behaviour by the appellant before the killing was found in Mrs Jeacle's account of arguments and of what the appellant had said to her and in Miss Mulqueen's account of loud shouting in the early hours of the morning when she was staying at Umina.
The deceased's statements were not admissible as evidence of the facts asserted. They were not made to or in the presence of the appellant. In my opinion the deceased's fear of the appellant expressed in her handwritten note and to her daughter was not relevant to any fact in issue. The deceased's state of mind was not relevant to the appellant's motive. It did not explain the events of the night of 6 May 1988. It did not help in identifying the appellant as the killer or in rebutting his defence of automatism. In my opinion the statements should not have been admitted into evidence."
Other relevant cases
99 There is a blessed vagueness in the expression "relationship evidence", and it is very widely used, but it is not a satisfactory expression. Accordingly there is force in Gleeson CJ's preference for considering whether the evidence was direct evidence of any fact relevant to a fact in issue. He concluded that it was not. While he did not regard it as necessary to show that the evidence was (like that of Mrs Jeacle and Miss Mulqueen to which objection was not taken, or like that in Wilson v R) evidence of conduct between the accused and the victim such as quarrels, he did consider that it had to be shown that the victim's reasons for terminating the relationship or criticisms of the accused had been communicated to the accused. And he considered that the victim's fear had to be shown to be well-founded on the basis of past events, which could not be done without a hearsay exception applying.
100 "Relationship" evidence is often tendered in areas that are remote from the present context, for example cases where the criminal acts charged against the accused formed part of a continuous course of conduct in the preceding hours (O'Leary v R (1946) 73 CLR 566) and cases where a sexual relationship is proved in relation to charges of sexual offences (see cases summarised by McHugh J in KRM v R (2001) 178 ALR 385 at [24]). These authorities cast little direct light on the present problem.
101 However, there are other authorities in the fields with which Wilson v R and R v Frawley were concerned which are useful. They have been usefully surveyed by Howie J in R v Toki (2000) 116 A Crim R 536 at [23]-[30], but some particular passages have specific relevance to the present problem. In R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 128-9 Maguire J held that evidence of uncharged assaults by a man accused of assaulting the victim was admissible:
"I think, indeed, the evidence of the other assaults was admissible and its reception would have caused no difficulty if the jury's attention had been directed to the real and only issue which it had to determine, namely, whether the November assault took place and whether, as a result of that assault, Rasmussen was caused actual bodily harm. In my opinion evidence was admissible as to the relationship between Rasmussen and the accused over the period of five or six months preceding November 1962. If, for instance, instead of assaulting Rasmussen on these earlier occasions the accused had been heard to express great hostility to or contempt for him, I think that evidence to that effect would have been admissible on the question of whether Rasmussen was assaulted by the accused in November. Furthermore, if actual threats to injure Rasmussen had been made from time to time, I consider that evidence of such threats would have been admissible. Such evidence would have been logically probative in relation to the issue which had to be submitted to the jury at the trial. If the earlier conduct of the accused went beyond expressing hostility or threats and amounted to actual physical violence towards Rasmussen, I cannot see that evidence of it would become inadmissible because it disclosed other offences on the part of the accused. Such evidence should be regarded not merely as evidence that the accused had committed other offences but as disclosing an atmosphere of hostility towards Rasmussen during the period of their relationship. This, I think, would be relevant and legally admissible; not for the purpose of showing that because the accused had committed other offences he was likely to have committed the one charged against him, but as part of the background of the relationship between the two men and as establishing (if accepted by the jury) an atmosphere which would render it less unlikely that the offence charged would have been committed in the circumstances which arose on the occasion of that assault, having regard to the past relationship of the principals.
To regard such evidence as inadmissible would be to insist that the incident in November 1962 be considered in isolation and in an atmosphere of unreality."
102 In R v Iuliano [1971] VR 412 at 416 Winneke CJ, Little and Gowans JJ said:
"It is not necessary that any particular incident related in evidence should, regarded singly, and of its own force, establish a relationship of enmity or distrust. It is sufficient if the incident related makes a contribution which is not insignificant or unsubstantial to a climate of antipathy. Of course, if the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death which could have any bearing on motive or intention. If it is not too remote, and its existence along with other incidents or circumstances related in evidence tends to establish a climate of the kind referred to, the evidence of the incident is relevant. We think that the act of a wife in publicly charging a husband to his face with having done something to cause serious physical injury to her, calculated as it is to provoke in him feelings of irritation, animosity or indignation, and made in the setting of a quarrel, or what may fairly be regarded as such, may be regarded as making a real contribution to an atmosphere or climate of enmity or distrust. It is a fact tending to prove a fact which is itself relevant, namely, a relationship between the two which is explanatory of the conduct of the accused."
103 In R v Hissey (1973) 6 SASR 280 at 288-289, Bray CJ, Hogarth and Mitchell JJ held admissible evidence that the accused, who was charged with the murder of a woman with whom he had been living, had used and threatened physical violence towards her.
"Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen [(1970) 123 CLR 334]. We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball [[1911] AC 47], per Lord Atkinson at p 68; Wilson v The Queen [(1970) 123 CLR 334], per Barwick CJ at p 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter."
104 In R v Heath [1991] 2 Qd R 182 at 204 Cooper J said:
"Relevantly for this appeal, evidence of relationship, if it goes to establish the probability or otherwise that the appellant committed the offence, is admissible and such evidence is not limited to cases where motive (however defined) is sought to be proved. ... Thus, evidence is admissible to show that the relationship between an accused and the deceased was a normal relationship of loving and caring as for example, between husband and wife or parent and child. Such evidence is admissible in order to found an inference that an accused had no motive for the crime (using the term in both its senses) or had a positive motive not to alter an existing relationship e.g. where the husband was the sole provider of the material welfare of an accused. The reception of such evidence is of long standing. … Such evidence is also admissible to assist the jury in its assessment of the proven facts against the background of such a normal relationship ….
Where there is evidence to show that a relationship is other than normal, then that evidence is relevant and admissible because it rebuts the drawing of any inference which otherwise might be drawn from an apparent normal relationship. It may also found a basis for the drawing of an inference of motive (however defined), and it completes the entire circumstances upon which the jury must determine a case which is entirely circumstantial ….
Evidence of relationship which does not tend to increase or decrease the probability that a fact in issue existed is not relevant and is admissible. … Thus, the evidence of relationship must be such that a relevant inference may logically and reasonably be drawn in respect of a fact in issue. Where evidence of relationship or conduct or acts between parties is remote in point of time to the acts charged, it is probable that such evidence will be inadmissible because it cannot logically or reasonably support a relevant inference …."
105 In R v Fulcher [1995] 2 Cr App R 251 at 258 the Court of Appeal (Kennedy LJ, Kay and Keene JJ) approved the following observation of Purchas LJ:
"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."
106 The Court of Appeal (Lord Bingham of Cornhill CJ, Tucker and Hallett JJ) expressed the same principle thus in R v Sawoniuk [2000] 2 Cr App R 220 at 234:
"Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed."
107 In R v Vollmer [1996] 1 VR 95 at 132 Southwell and McDonald JJ said:
"it is ordinarily relevant to the prosecution case in offences against the person such as murder, manslaughter, recklessly causing injury and false imprisonment, to establish the relationship between the accused and the victim, whether that goes to prove intent, to negative accident or to negative defences which may be raised thereafter, subject to the possible rejection of that evidence or parts thereof on the ground of prejudice."
108 In Gipp v R (1998) 194 CLR 106 at [181]-[182] Callinan J adopted a more cautious approach, at least in sexual cases:
"I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide 'part of the essential background' [B v The Queen (1992) 175 CLR 599 at 610, per Deane J] against which the other evidence is to be evaluated.
I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defendant that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."
See also Gaudron J at [11].
109 In Kailis v R (1999) 21 WAR 100 at [192], another sexual case, Ipp J said:
"These observations stress that relationship (or background) evidence is only admissible if it serves an appropriate forensic purpose; that is to say, it must have some specific relevance to the issues raised in the trial. It is not a special category of evidence that is admissible in every case."
That is true, though sexual cases may well raise different considerations from murder cases. In any event, this Court has held that the opinions of Gaudron J and Callinan J do not command a majority in the High Court and, in the face of competing authority in the High Court and this Court, should not be followed until they do: R v Fraser (NSWCCA, 10 August 1998, unreported, Mason P, Wood CJ at CL and Sperling J); R v MM (2000) 112 A Crim R 519 at [47] per Powell JA, Hulme and Dowd JJ concurring. See also KRM v R (2001) 178 ALR 385 at [31] per McHugh J.