R v MM

Background 3On 10 August 2011, the respondent was charged with one count of carnal knowledge of a child in 1973 or 1974, in contravention of s 71 of the Crimes Act. The child was the respondent's sister. She was aged between 10 and 11 at the time of that offence. The respondent was aged 17 or 18. The respondent pleaded guilty to that offence in the Local Court on 11 May 2012. 4The respondent was also charged with one count of sexual intercourse without consent, in contravention of s 61D of the Crimes Act, and with an alternative count of incest, in contravention of s 78A of the Crimes Act. At the time of that alleged offending (between September and December 1981), the complainant was aged either 18 or 19, her birthday being in October. 5Section 61D of the Crimes Act provided that a person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude, the maximum term of imprisonment varying according to whether the other person is under the age of 16 years. Under s 78A of the Crimes Act, so far as this case is concerned, a male who has carnal knowledge of his sister was liable to penal servitude for seven years. 6The respondent was arraigned on 7 April 2014 in the District Court in respect of both offences and entered pleas of not guilty. 7On 2 April 2014, the Director of Public Prosecutions gave notice to the respondent's solicitors that the prosecution intended to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995 (NSW) in proof of both charges (the Tendency Notice). The Tendency Notice stated that the respondent was the person whose tendency was the subject of the evidence intended to be adduced and that the tendency sought to be proved was the respondent's tendency to have a particular state of mind, namely a sexual interest in the complainant, and to act in a particular way, namely to have sexual intercourse with her. 8On 7 April 2014, the respondent was arraigned before Neilson DCJ and entered pleas of not guilty to both charges. On the application of the Crown, his Honour was asked to determine the admissibility of the evidence identified in the Tendency Notice, and other evidence going to proof of the respondent's continued sexual interest in and sexual misconduct towards the complainant before the case was opened to the jury. He rejected the tender of the evidence in its entirety. 9The Crown appeals from that ruling, under s 5F(3A) of the Criminal Appeal Act. 10In the Crown's amended notice of appeal, which was filed in Court at the commencement of the hearing of the appeal without objection, the following grounds, as understood in the context of the submissions filed by the parties, are relied on:

• His Honour erred in finding that evidence of the respondent's sexual mistreatment of the complainant other than on the occasion charged on the indictment was not admissible as context evidence because it made no relevant contribution to the context of the events charged as Counts 1 and 2 on the indictment.
• His Honour erred in excluding the evidence as tendency evidence.
• His Honour erred in excluding evidence of the respondent's admissions to carnal knowledge of the complainant.
• His Honour erred in excluding the respondent's general admissions in a lawfully intercepted telephone communication and his ERISP. 11The Crown seeks orders vacating the rulings made on 8 April 2014 and orders that:
• The evidence of the complainant of any sexual acts that did not relate to a count on the indictment is admissible as context evidence.
• The tendency evidence sought to be led is admissible.
• The respondent's plea of guilty to the offence under s 71 is admissible as an admission that he had sexual intercourse with the complainant when she was aged 10.
• The respondent's general admissions in a recorded telephone conversation with the complainant of 25 July 2011 and his interview of 9 August 2011 are admissible.

The Evidence Sought to be Tendered by the Crown 12The Tendency Notice identified the tendency evidence intended to be adduced by the Crown as consisting of the following:

• Parts of four statements made by the complainant to police in early January 2011, detailing sexual activity between the respondent and the complainant during the period from 1973 to 1976.
• Transcript of a lawfully intercepted telephone conversation between the complainant and the respondent on 25 July 2011, during which the respondent admitted to having had unwanted sexual contact with her when she was "a kid", to "get his rocks off".
• A statement dated 25 November 2011 by a woman who had at relevant times been living with the respondent as his partner in which she reports that he had told her that there had been "incest between him and [the complainant]" but that he did not rape her.
• Transcript of an electronically recorded interview of the respondent on 9 August 2011, in which he made various admissions when the police informed him that the complainant alleged that he had sexually assaulted her from 1973 through to 1980. The respondent said that he was exposed to magazines with a sexual content and that "everything was about sex at the time. It was the 60s and 70s". The respondent said that he regretted having made "sexual advances" to the complainant. The respondent agreed that he had had penile vaginal intercourse with the complainant and digitally penetrated her. He said that he did not know when that had occurred or how many times it had occurred. He agreed that the complainant was somewhere between 11 and 13 at the time.
• Evidence that the respondent pleaded guilty in the Local Court to the offence under s 71.

13In the event that the evidence was not admitted as tendency evidence, the Crown sought its admission as context evidence. The Crown also submitted that certain aspects of the evidence constituted general admissions, not of the offences charged, but in respect of earlier sexual activity between the complainant and the respondent. That was not pressed by the Crown on the hearing of the appeal and it is therefore unnecessary to deal with the admission of the evidence on that basis. 14We are satisfied that the evidence was admissible as both tendency evidence and context evidence. In order to make clear the reasons for so finding, it is necessary to describe in a summary way the evidence that it was anticipated the complainant would give as outlined in her four statements.

The Complainant's Evidence in Summary 15During 1971, the complainant moved with her family to a house on the outskirts of Sydney, where she lived until 1983. When she was aged 8 or 9 and the respondent was aged 15, he would pinch her nipple through her clothes while they were swimming in the family swimming pool. When the complainant was aged 10 or 11 in 1973 or 1974, the respondent, who was then aged 17 or 18, would drive her to dance classes at which time he began putting his hand on her crotch, which later progressed to digital penetration of her vagina. On occasions the respondent would stop the car and rub his penis on the complainant's vagina. The complainant cried and asked him to stop. She said that that occurred five or six times and on those occasions the respondent would ejaculate into a tissue. 16The respondent also penetrated the complainant's vagina with his penis in the car for one to three minutes and the respondent would ejaculate into a tissue. The complainant told the respondent to stop. One of those occasions was the subject of the charge under s 71 to which the respondent pleaded guilty. 17In March 1975, the older brother of the complainant and the respondent was killed in a car accident. The complainant commenced high school at the beginning of 1975. On occasions when the respondent would drive her to school, he would pull over and attempt to have intercourse with her. The complainant took to wearing jeans under her school uniform and would tell the respondent that she had her period to deter him from assaulting her. On those occasions, the respondent would try to make the complainant masturbate him or touch him by grabbing her by the wrist and moving her hand towards his crotch. 18Towards the middle of 1975, the complainant told the respondent that she was going to tell their parents what he had been doing to her. He persuaded her not to because it would mean that their parents would lose another son. The complainant said that she loved her parents deeply and did not want them to suffer, so she did not tell them about the respondent's conduct towards her. 19In 1976, after she had turned 14, the complainant began a relationship and convinced her parents to let her boyfriend move in with the family. She said that she did so as an "effective way" of keeping the respondent away from her. The sexual and indecent assaults ceased for a time. 20Also in 1976, the respondent moved out of the family home to live with his girlfriend. However, they moved back to the family home in 1977, where they lived until 1978, when they separated. At about that time the complainant's then boyfriend also moved out, with the result that the complainant and the respondent again shared the family home with their parents. 21In about 1979, the respondent began driving the complainant to her TAFE course, which she attended two evenings a week. The respondent took her on his motorcycle and would put his hand on her knee while they drove. The complainant would then "smack or punch his hand hard". The respondent would also drive the complainant to the city on weekends. On those occasions, he would also try to sexually touch the complainant but she resisted. 22At some time in 1979, the respondent moved away from the family home with a woman with whom he had a child the following year. (It was to this woman that the respondent later admitted "incest" with the complainant.) Also in 1979, the complainant started a relationship with another man who moved into the family home. In December 1980, the complainant gave birth to her first child. In mid-1981, that relationship broke up and the father of the child moved out. At about that time, the respondent and his partner built a house on a vacant block of land adjacent to the family home, in which they resided. 23At that time, the respondent was working as a carpenter. Between September and December 1981, he would regularly come into the complainant's bedroom at about 5.00 am before he started work. The complainant would often wake to find the respondent in bed with her. She objected and told him to get out. However, she did not scream or shout, because she did not want to upset her parents and did not want them to separate. The complainant says that penile vaginal intercourse occurred four or five times and on these occasions the respondent would ejaculate into a tissue. 24The complainant said that she began locking the doors and windows of the house to prevent the respondent coming in, but her mother left the laundry door unlocked at night so that the respondent could come in to have his breakfast without waking his partner and his children. The complainant then put a lock on her bedroom door to prevent the respondent from getting into her bedroom. 25In 1981, the complainant's parents left the family home and moved to northern New South Wales, leaving the complainant in the family home with her child. At night she would lock the windows and doors and have her child sleep with her to deter the respondent. When the respondent would knock on her window, she would shout at him to go away. There was no other episode of sexual offending alleged after that time.

The Evidence as Context Evidence 26For reasons that are not clear, his Honour first considered the admissibility of the evidence as context evidence. He referred to the authorities dealing with the admission of relationship or context evidence, including, in particular, DJV v R [2008] NSWCCA 272; 200 A Crim R 106 where this Court emphasised that in order to determine the probative value of evidence tendered for that purpose, it is necessary to consider whether other evidence in the trial, and the issues to which that evidence gives rise, makes it relevant to prove the "true context" in which the alleged offending occurred including, where a sexual assault is alleged, a lack of immediate complaint or resistance. 27After noting that the complainant in this case could explain her lack of complaint when the respondent sexually assaulted her in 1981 and her lack of resistance on those occasions by her fear of family breakdown, the primary judge concluded that the evidence made "no relevant contribution to the context of the event charged in the indictment". No other reasoning was given for rejecting the evidence as context evidence. That approach both failed to address the interrelated bases upon which the Crown contended that the evidence was relevant and failed entirely to appreciate its significance to the issues likely to be raised at trial, including the complainant's credibility. 28Evidence of the relationship between a complainant and an accused, including evidence of other uncharged sexual acts, may be admitted to place charged offences in context and, in that way, to assist jurors to understand a complainant's evidence where it might otherwise seem difficult to comprehend. It also may be admitted to explain what might otherwise seem to a jury to be an inexplicable, or fanciful, or single isolated incident. The probative value of context evidence may be substantial if, without it, the jury would be left with an unrealistic and entirely misleading picture of an apparently isolated assault (KJS v R [2014] NSWCCA 27 at [38]). 29If a complainant is not permitted to place in a meaningful context the incidents about which complaint is made, and where s/he expresses no surprise or protest, or makes no immediate complaint when sexually or indecently assaulted, that conduct may be more understandable if the assaults are a common occurrence or the continuation and culmination of a consistent course of conduct over a period of years (see, eg, HML v R [2008] HCA 16; 235 CLR 334 at [2]-[11]; KJS at [32]-[41]). 30In addition, the evidence might provide some explanation for the failure of a complainant to make immediate complaint. Without evidence of what in some cases is a slow process of habituating a complainant to unwanted sexual activity, the jury might well find it incredible that after an assault constituted by non-consensual sexual intercourse, no complaint is made (KJS at [32]-[34]). 31Where evidence is not tendered as tendency evidence but is limited to providing the context in which the offending is said to have occurred (not, as it happens, in this case where the same evidence is tendered as tendency evidence), it is necessary to consider whether any issue has been raised, or is likely to be raised in the trial that makes the evidence relevant. This is necessary both to determine its admissibility and to enable an informed assessment of its probative value and any potential unfair prejudice under s 137 of the Evidence Act (DJV at [36]). Where there is a grave risk of the jury reasoning from context evidence to guilt of the accused in relation to the offences charged despite judicial direction that such reasoning is impermissible, s 137 of the Evidence Act may be invoked and the tender of the evidence rejected (DJV at [37]). 32In this case, the evidence, when tendered as context evidence, was said to be relevant to the following issues that were likely to be raised in the respondent's trial:

• Lack of surprise on the part of the complainant when she found the respondent in her bedroom in 1981.
• Lack of resistance to the sexual intercourse that followed.
• The reasons for the complainant's lack of immediate complaint.
• The possibility that the jury might gain the false impression that the sexual assault occurred "out of the blue".
• The complainant's evidence about her lack of consent and the respondent's knowledge of her lack of consent. 33His Honour either did not consider these issues at all or gave inadequate consideration to them. On that basis alone, the error contended for by the Crown in his Honour's rejection of the evidence as context evidence is made out.

The Evidence as Tendency Evidence 34His Honour then considered the admissibility of the evidence as tendency evidence. He noted that the tendency alleged was a tendency of the respondent to have a sexual interest in the complainant and to behave in a particular way with her, namely, to have sexual intercourse with her. His Honour accepted that the complainant's evidence of the penetrative sexual assaults she had been subjected to as a child and young adolescent established that tendency and that the respondent had the state of mind attributed to him. He was also satisfied that the evidence had significant probative value. Thus, the primary judge was purporting to apply s 97(1)(b) of the Evidence Act. That section provides that evidence of a tendency that a person has or had is not admissible to prove that the person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 35His Honour then considered s 101(2) of the Evidence Act, which operates as a further precondition to admissibility by providing, in this case, that tendency evidence about the respondent cannot be used against him unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on him. 36His Honour expressed the view that if the evidence were admitted, the jury would be led to concentrate on the respondent's past sexual misconduct towards the complainant, rather than the facts in issue in the trial, which we take to mean, so far as concerned the s 61D offence, whether sexual intercourse occurred and, if it did, whether it was consensual and, so far as concerns the s 78 offence, whether the respondent had sexual intercourse with the complainant, consent being no defence to that charge. 37His Honour then observed that this trial was: "...one of those cases where no matter how carefully or strongly one crafted directions there is always a possibility that at least one juror would not adhere to those directions and would be mesmerised by the extent of the accused's past offending conduct". 38His Honour appears to have considered that the prejudice attaching to the admission of the evidence existed because of the possibility that a juror may disregard the directions on the limited use to which the tendency evidence could be put in considering whether the Crown had proved the guilt of the respondent. His Honour provided no explanation as to what cases he was referring to and why it was that this case was one such case and why, in his view, sufficiently clear and emphatic directions would not address the risk of a juror refusing to abide by judicial direction. 39His Honour then identified certain facts that he considered attenuated the significance of the probative value of the evidence:

• In the period from 1975/76 to 1981, the complainant went from being 13 or 14 years old to being 19 years old.
• During that period, the complainant had two sexual relationships with young men and had a child.
• The complainant and the respondent were becoming increasingly mature.
• What his Honour described as a "vast difference" between conduct when the respondent was aged between 17 and 20, and conduct when he was aged 26. 40His Honour gave no reasoned explanation, or any proper analysis, as to why these facts, either in isolation or combination, diminished the probative value of the evidence that he had earlier held to be significant under s 97. 41He also said that the gap between 1975/1976 and 1981 and the fact that there was little sexual activity, and no sexual intercourse, between the respondent and the complainant during that period, "must be borne in mind". He provided no explanation as to why this was relevant to an assessment of the probative value of the evidence or why, in the circumstances of this case, the temporal gap was not adequately explained by the fact that the complainant was at that time in a relationship and a young mother and that the respondent had his own sexual partners. 42His Honour concluded that the prejudicial effect of the evidence was not substantially outweighed by its probative value under s 101(2), and rejected the tender of the evidence as tendency evidence. 43The prejudicial effect to which s 101(2) is directed must be understood as substantially the same as that to be considered under s 137 (Sokolowskyj v R [2014] NSWCCA 55 at [47]). It is not sufficient that the evidence is harmful to the interests of a defendant because it tends to establish the Crown case. That will be inevitable. Rather, the prejudice must be the risk of harm to the interests of the accused in a way that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way, such as provoking some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves (R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [56]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116]). 44In our view, the tendency evidence was highly probative, being critical to a jury's understanding of the events in 1981 of which the charges on the indictment are representative. Without evidence that the respondent had sexually assaulted the complainant since she was a young child, interrupted only in her late adolescence when they had other sexual partners living in the same house, it would inevitably appear surprising to a jury that the respondent would, in effect "out of the blue", enter his sister's bedroom and attempt to have intercourse with her while she was asleep. In the same way, the complainant's apparent lack of surprise at his conduct would likely be a significant issue in the jury's assessment of the complainant's evidence which, without evidence of his persistent sexual mistreatment of her over many years, would invite an uninformed assessment of her credibility. 45The complainant's consistent attempts to resist the respondent's sexual mistreatment of her since she was a child and continuing into her adolescence was clearly relevant to the jury's assessment of her lack of consent to sexual intercourse as an adult and the respondent's full appreciation of her lack of consent. 46Without the Crown being permitted to lead evidence of the earlier assaults, the complainant's evidence that instead of telling her parents in 1981 that her brother had intercourse with her, she tried to handle the situation by locking the doors and windows of the family home and later installing a lock on her bedroom door and having her small son sleep with her, in effect that she attempted to handle the situation on her own as she had done since she was 10 or 11 years old, could not be readily appreciated. Finally, were the complainant not permitted to give evidence that when she told the respondent in 1975 that she would tell her parents about his sexual mistreatment of her he used the fact of their brother's death and the terrible effect that that disclosure would have on the family in order to pressure her into silence, her failure to complain in 1981, namely, her fear of causing a family breakdown at that time, would not be able to be properly assessed. 47Other aspects of the evidence, being the telephone conversation between the respondent and the complainant, the statement by the respondent's partner, the record of interview and the guilty plea, contain admissions by the respondent that would make it clear to a jury that the 1981 conduct was not an isolated incident that came out of the blue but was the culmination of years of unwanted sexual conduct by the respondent towards the complainant. Without the evidence of the relationship between the complainant and the respondent over a number of years, the jury would have an entirely distorted and artificial understanding of the events of 1981. 48The balancing task required by s 101(2) and s 137 involves the judge identifying the type of prejudicial effect to which the evidence might give rise and explaining why the probative value does or does not substantially outweigh that prejudicial effect (R v Ford at [64]). That balancing exercise requires the judge to consider the ameliorating effect of any directions that may be available and necessary to reduce any prejudicial effect (DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [104]). There is a fundamental assumption underpinning jury trials that jurors will act in accordance with directions, and directions against propensity reasoning are regarded as effective to ameliorate the potentially prejudicial effect of evidence of other misconduct (Gilbert v R [2000] HCA 15; 201 CLR 414 at [31]-[32]; R v Ford at [139]-[140]). 49While the respondent accepts that the primary judge correctly concluded that the evidence had significant probative value, he contends that the issue on this appeal is whether his Honour erred in determining that the probative value of the evidence did not substantially outweigh its prejudicial effect. The respondent contends that his Honour understood the nature of the exercise and took into account matters that were relevant to its determination. 50The respondent contends that the fact that he admitted certain aspects of the respondent's prior conduct relied upon as tendency evidence was not determinative. He submits that the probative value of the evidence depended upon its capacity to affect the determination of the facts in issue, rather than questions of credibility and reliability or weight. Further, he says, the fact that aspects of the respondent's conduct were admitted by him did not necessarily deprive the evidence of its prejudicial effect (citing Sokolowskyj v R). 51The respondent contends that the evidence that he had sexual intercourse with his sister would inevitably have a prejudicial effect. In particular, he says, evidence that he did so when she was a child may have a prejudicial effect of a differing nature and degree and was patently liable to provoke an emotional response on the part of the jury. He contends that the prejudicial effect of such evidence was capable of diverting the jury from a proper analysis of the evidence relating to the counts on the indictment, thereby potentially denying him the benefit of any reasonable doubt. He contends that the primary judge sufficiently identified that possible prejudicial effect of the evidence for the purposes of the necessary determination. 52Clearly enough, the evidence, including admissions on the part of the respondent, reveal the tendency asserted in the Tendency Notice and found by his Honour to be established, which is, in turn, highly probative of the question whether the respondent had sexual intercourse with the complainant in 1981 as alleged in the indictment. It is particularly cogent in circumstances where the only time when the respondent was not regularly assaulting the complainant was when he was not living at the home, or when she had a boyfriend living there. 53We are satisfied that the evidence has significant probative value in relation to the charges in the indictment and that there is nothing about the evidence that renders its potential for unfair prejudice incapable of amelioration by judicial direction. We do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent. 54The respondent submitted, and the Crown accepted, that the basis for appellate review of a determination pursuant to s 101(2) of the Evidence Act must be an error of one the kinds identified in House v R [1936] HCA 40; 55 CLR 499 (see R v Ford at [108]-[110]; DAO at [24], [104], [170]). It is evident from the above discussion that we are satisfied that the primary judge failed to have regard to two relevant considerations, namely, the directions that may have been available to reduce any potential prejudice to the respondent and the reasons for the gap in the respondent's offending between 1975/1976 and 1981 and that he applied no reasoned analysis to the other aspects of the evidence (set out in [39] above) which attenuated the significance of the evidence. For those reasons, we are satisfied that his discretion miscarried.

Conclusion 55It follows from the above that appeal should be upheld. The primary judge was clearly in error in rejecting the evidence as context evidence and as tendency evidence. We consider that:

• The evidence of the complainant of any sexual acts that did not relate to a count on the indictment is admissible as context evidence;
• The tendency evidence sought to be led is admissible;
• The respondent's plea of guilty to the offence under s 71 is admissible as an admission that he had sexual intercourse with the complainant when she was aged 10; and
• The respondent's general admissions in the recorded telephone conversation with the complainant of 25 July 2011 and his interview of 9 August 2011 are admissible. The orders of the Court should therefore be as follows: (1)The appeal be allowed. (2)The decision of Neilson DCJ on 8 April 2014 to reject the evidence sought to be admitted be set aside. (3)The matter of admissibility of evidence be remitted to the District Court for determination in accordance with these reasons. 56During oral argument and in his judgment, his Honour made additional remarks that have recently been the subject of complaint by the Attorney-General to the Judicial Commission. In those circumstances, we consider it appropriate that a different judge preside at the trial.

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