173 CLR 592
KJS v R [2014] NSWCCA 27
Papakosmas v The Queen (1999) 196 CLR 297
Source
Original judgment source is linked above.
Catchwords
109 A Crim R 580
Glennon v R [1992] HCA 16173 CLR 592
KJS v R [2014] NSWCCA 27
Papakosmas v The Queen (1999) 196 CLR 297
Judgment (6 paragraphs)
[1]
Judgment
The Crown seeks to adduce context evidence of other acts of misconduct by the accused in addition to the 7 counts on the indictment, which allegedly occurred during an 8 year period, 2009 - 2017.
The context evidence sought to be adduced is:
1. Evidence from the complainant that the accused subjected her to ongoing sexual abuse to place the charged offences in context; and
2. Evidence from the complainant that the accused was aggressive and controlling in the family home.
The context evidence relating to aggressive and controlling behaviour is not contested by counsel for the accused, Ms O'Reilly.
[2]
Section 55
Section 55 of the Evidence Act 1995 ('the Act') provides that:
55 Relevant Evidence
(1) The evidence that is relevant in a proceeding 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.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to--
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
The Crown submits that the context evidence puts the alleged offences in context as they demonstrate a pattern of abuse and explain the complainant's reactions and her failure to complain. The complainant alleges that she was regularly sexually abused by the accused during the 8 year period, on a least a weekly or fortnightly basis, and sometimes on a daily basis.
With respect to count 1 (an occasion where the accused invited the complainant to watch pornography with him as he provided commentary), without the evidence that the accused had the complainant watch pornography on subsequent occasions, the Crown submits that it may be impossible for the jury to assess whether the accused intended to make it easier to procure the child for unlawful sexual activity, or whether he giving the complainant impromptu sexual education on a single occasion.
With respect to count 2, the Crown submits that without the context evidence, the jury will be left to consider the plausibility of the accused committing the alleged offence of penetrating the complainant's vagina with a vibrator, as a one-off incident, which might appear "artificial and implausible" in isolation.
With respect to counts 3-7, the Crown submits that without the context evidence of the routine nature of the sexual abuse, it might seem to the jury that acts of such serious sexual assaults occurred only sporadically. For counts 5-7, the frequency of the abuse is said to be necessary to explain the complainant's failure to resist, protest, or call out as it demonstrates that the complainant had effectively become habituated to the sexual abuse. Further, the Crown submits that the evidence is relevant to show why the complainant did not disclose the alleged offences and is relevant to the jury's assessment of the complainant's level of fear of the accused.
Furthermore, Mr McMaster on behalf of the Crown says that the evidence puts the complainant's lack of detailed memory in context as it demonstrates some of the sexual abuse she was subjected to by the accused when she was a child. Finally, without the evidence of the ongoing nature of the sexual abuse, the jury would be left, he submits, with the false impression that there is a gap of approximately 3 years between counts 2 and 3.
Ms O'Reilly does not dispute the relevance of the context evidence. Rather she says that the probative value is greatly outweighed by the danger of unfair prejudice to the accused.
[3]
Sections 135 and 137 of the Evidence Act
Section 137 of the Act provides that:
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Section 135 states that:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might--
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
'Unfair prejudice' in the context of s 137 means a real risk that the evidence will be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (at 325 [91]). There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational emotional or illogical response or by giving the evidence more weight that it truly deserves: BJS v R (2013) NSWCCA 123 at [51].
Although there are textual differences between the expressions 'prejudicial effect' in s101, 'unfairly prejudicial' in s135 and 'unfair prejudice' in s137 of the Act, each conveys a similar idea of harm to the interests of an accused person by reason of a risk that the jury will use the evidence improperly in some unfair way: The Queen v Dennis Bauer (a Pseudonym) [2018] HCA 40 at 866-867
Ms O'Reilly submits that due to the volume of the material, the frequency with which it is said to have occurred and the length of time over which it occurred, there is a real risk that the jury will misuse the evidence. The proposed evidence is that events occurred sometimes on a daily basis. Ms O'Reilly submits that the jury will have to "wade through" these occurrences, which will distract them from the 7 charges and their essential elements. Finally, Ms O'Reilly submits that the context material may be used wrongly, either as tendency evidence or to elicit an emotional response. She submits that these prejudices cannot be cured by judicial direction.
In applying s 137 of the Act, I am required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused.
In KJS v R [2014] NSWCCA 27, Hoeben CJ at CL identified a number of ways in which context evidence was relevant (at [34]). The basis identified in that case which are pertinent here include:
1. To demonstrate a process of habituating the complainant to physical contact with the appellant;
2. That the charged acts could be seen as the continuation and culmination of a consistent course of conduct over a period of years, rather than as an isolated attack;
3. To provide some explanation for the failure of the complainant to resist the appellant, to cry out for help or to otherwise express surprise at what, viewed in isolation, is an almost unbelievable anomaly in the father/daughter relationship; and
4. To provide some explanation for the failure of the complainant to complain.
In that case, his Honour noted the importance of the jury being "in a position to assess the evidence of the charged incidents against the broader background of the developing nature of the sexual acts": at [36].
His Honour went on to observe at [38]:
"Were the evidence to have been excluded, the jury would have been left with an unrealistic and entirely misleading picture of two apparently unconnected sexual assaults, separated in time by some three or so years, which occurred in startling isolation."
In my view, the principles set out in KJS are relevant here, as the context evidence provides a necessary background for the jury to understand the narrative of the charged events.
In DJV v R [2008] NSWCCA 272, McClellan CJ at CL with whom Hidden and Fullerton JJ agreed, held that:
"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."[28]
I find that the evidence proposed to be led by the Crown as context evidence has significant probative value concerning the principal facts in issue in the proceedings, being whether the accused engaged in the alleged sexual conduct with his step daughter. Without the context evidence there is a real risk that the Crown's case may appear artificial or inexplicable as the charges may seem implausible in isolation. In my opinion, evidence of the frequency of the abuse is necessary to explain the complainant's failure to resist, protest, or call out as it demonstrates that the complainant had effectively become accustomed to the sexual abuse. Without the context evidence, in my view, the jury would be left with a false impression of events.
While the context evidence carries with it some risk, in my opinion those risks are capable of being addressed by appropriate direction, both at the time the evidence is given, and during summing up. It is a well-established tenet of the criminal justice system, that juries understand and comply with the direction of trial judges: see for example Gilbert v R [2000] HCA 15; 109 A Crim R 580 at [31] and Glennon v R [1992] HCA 16; 173 CLR 592 at [603] . In my view, the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
[4]
Section 293 of the Criminal Procedure Act 1986 (CPA)
It is submitted by the Crown that this evidence falls within the exception under s 293(4) of the CPA as the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged sexual offence, being a relationship between the accused person and the complainant. Furthermore, he submitted that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant may suffer as a result of its admission. Ms O'Reilly submits that if I allow the context to be adduced, it follows necessarily that the Crown should be permitted to lead it, notwithstanding the prohibition contained in section 293 of the CPA.
[5]
Conclusion
I allow the Crown to adduce the context evidence. I note the Crown's concessions relating to the evidence concerning the accused's controlling and aggressive behaviours.
[6]
Amendments
24 December 2020 - Trial and sentence concluded.
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Decision last updated: 24 December 2020