R v P F D [2001] VSCA 198

[26]

I turn to ground 2, broadly described as the failure to exclude the evidence of physical assaults. As I have previously indicated, the Crown had alleged as count 1 on the presentment an offence of recklessly causing serious injury to the complainant. This offence comprised the physical assault of the complainant by the applicant in the early hours of the morning of 5 July 1998, but preceding the events constituting the rape alleged in count 2. At the first trial of the applicant (at the conclusion of which the jury had disagreed), his trial counsel had indicated that the applicant was prepared to plead guilty to count 1 but requested that the plea be taken and accepted in the absence of the jury. Thereafter counsel contended that the judge should exclude the evidence of the events comprising the physical assaults from the evidence to be led against the applicant in respect of the anal rape; and so contended on the basis that such evidence had little probative value but much prejudicial content and ought to be excluded in the exercise of the judge's discretion. This appeared to be the basis upon which the judge was asked to rule on the matter, although it seems to me that the admissibility of the evidence fell to be considered pursuant to s.398A of the Crimes Act 1958. Admissibility of evidence under that section is a question of law and it is for the judge to decide whether it is just to admit the evidence despite any prejudicial effect it might have on the accused. It is for the Crown to satisfy the judge that the evidence is admissible in contradistinction to the exercise of a "Christie[1] discretion". Little, I think, turns on the matter because of the view which I have formed of the probative value of the evidence. The judge declined to exclude the evidence and the first trial proceeded with the Crown leading in evidence the circumstances of the physical assaults perpetrated by the applicant upon the complainant preceding and leading up to the rape alleged in count 2. After the jury had disagreed, and the re-trial commenced, no further application to exclude that evidence was made - counsel no doubt accepting the ruling which had been made on the first trial. Counsel did, however, contend, during the course of the re-trial, that when such evidence was led, his Honour should give the jury a direction as to the purpose for which it was admitted and the permissible use which the jury could make of it.

[29]

For my own part I do not accept that the impugned evidence was irrelevant or lacking in probative value. Nor can I accept that his Honour was in error in failing to exclude it. The evidence of the physical assaults in the early hours of the morning of 5 July 1998, and preceding the offence of rape alleged in count 2, was, in my view, relevant to proof of the offence charged in that count. It is of course obvious that, when the judge was asked to exclude the evidence, he was not in a position to know what course the accused was going to take at the trial. Notwithstanding that the applicant gave no evidence at the first trial, the judge nevertheless remained in ignorance as to what course would be followed by the applicant at the re-trial, and more particularly what course would be followed in the event that this evidence was excluded. That, however, in my opinion, is of little consequence. The nature of the applicant's conduct, involving as it did the unpredictable aggression and hostility towards his wife, was not only evidence of the relationship which existed between them and, as such, logically probative of the events which the complainant said had thereafter occurred - namely, the act of anal and non-consensual penetration - but was also relevant to prove that the conduct was non-consensual and that the applicant was aware that that was so. In this respect, it is pertinent to note that, although it was the thrust of the defence case made through cross-examination that no act of sexual penetration had occurred, counsel did put to the complainant that acts of anal intercourse had not infrequently taken place between the parties and had in fact occurred some two days before the incident in question. Although these questions were asked for the purpose of specifically rebutting the significance of Dr O'Brien's evidence that she had found "recent" damage to the complainant's anal passage, they were nevertheless capable of raising in the jury's mind the suggestion that, even if they found the charged act had occurred, it was consensual. Indeed, the jury, after retiring, asked the judge to re-direct on the issue of consent.

[30]

It is not the law that relevant evidence is excluded simply because it demonstrates, or has the capacity to demonstrate, that the accused has committed other crimes or has engaged in discreditable conduct on other occasions, or indeed is evidence of conduct which tends to show that he has a propensity to engage in crimes of the type with which he is charged. Where the accused and the victim are in an ongoing relationship with each other, evidence of the nature of that relationship will frequently be relevant to the issues in dispute for the purposes of permitting logical inferences to be drawn bearing upon those issues (Wilson v. R.[3]; R. v. Anderson[4] and the cases there cited). The evidence in this case was led, not to show that the accused man had a propensity to commit acts of anal rape, but to prove, in the event that the jury found that intercourse had occurred, that it was non-consensual and that the applicant was aware that it was non-consensual. In other words it was led, in conformity with established principle, on the basis that it tended to establish matters relevant to the relationship between the applicant and the complainant (cf. S. v. R.[5]; R. v. Ritter[6]). No doubt, if the fact was that the relationship between the applicant and the complainant had at all times been a loving and caring one, evidence of that relationship could have been led by the applicant as evidence tending to prove the improbability of a rape of the type alleged in count 2 having occurred. In my opinion, it would have been contrary to common sense for the jury to have been asked to consider the charge of "anal rape" in a vacuum and without the assistance of knowing the relevant relationship existing between the applicant and the complainant on that night. This was the view which the judge took, and in my view he was correct to do so. It was, therefore, just to admit the evidence despite any prejudice it might have had on the applicant. I would, accordingly, reject ground 2.

[33]

I do not think it can be said that in the context of this case the trial judge was in error in refusing to discharge the jury having regard to the nature of the so-called offending material given in evidence by the complainant, or having regard to the manner in which that material was elicited. It is true that the case against the applicant was conducted on the basis that the only evidence of relationship between the applicant and complainant comprising physical aspects of abuse should be limited to the assaults which had been committed in the early hours of the morning of 5 July 1998, and that the answers given by the complainant to the questions asked in cross-examination might have raised, in the mind of the jury, a belief that there had been other acts of physical abuse during the course of the marriage. However, it seems to me that the answers given can scarcely be said to have been "non-responsive" when the applicant's trial counsel was inviting the complainant to say whether the events which occurred on the morning of 5 July 1998 were "the straw that broke the camel's back"; and to have done so in the context of putting the suggestion that the complainant had made up her mind at that stage that "one way or the other this man was going to be out of your life". Furthermore, it seems to me that the nature of the material elicited was of little consequence, having regard to the entire content of the evidence before the jury, from which they could clearly infer that the applicant was a person who imbibed to excess, became belligerent when drunk, and that arguments had not infrequently ensued between them. It seems to me to have been virtually inevitable that counsel, when cross-examining the complainant about matters relevant to their relationship, was going to extract material of similar kind. Mr Croucher, in his written submissions to this Court, contended that the question must be determined on the basis that it had been agreed that only the evidence of the physical assaults occurring on 5 July 1998 would be led and that, against that background, the answers of the complainant had occasioned a miscarriage of justice. He referred to authorities such as Maric v. R.[7] and Crofts v. R.[8] One merely has to look at the circumstances which arose in those cases to see how different they are from the circumstances which arose in this case.

[42]

In any event, it seems to me that what the judge did tell the jury was sufficient to meet the circumstances of the case before him. This was not a case like Gibb v. R. (supra) or R. v. Loguancio (supra), where the Crown had led evidence of uncharged acts of a non-specific kind similar in character to the acts with which the accused had been charged; and where, therefore, the risk of an impermissible reasoning process was high. In this case the evidence of physical abuse was extremely specific and confined, and of a nature unlikely to promote propensity reasoning, having regard to the discrete differences which existed between the uncharged and the charged conduct. The directions given by his Honour, to which I have earlier referred, were designed to convey and would, I think, have conveyed to the jury that they could not impermissibly reason towards guilt from the physical abuse which had occurred shortly before the alleged rape. His Honour was at pains to point out to the jury that the evidence of physical assault was quite separate from the charged act of anal rape and was not to be regarded by them as an ingredient of the crime of rape and should be used by them only for the purpose of providing a contextual setting in evaluating the states of mind of the applicant and the victim. In the circumstances of this case, those directions were, I think, sufficient to convey to the jury, and would have been understood by the jury as meaning, that they could not substitute the acts of physical assault for the act with which the applicant was charged. The effect of his Honour's direction, as it seems to me, was calculated to remove or set apart the earlier acts of violence from the jury's consideration of the act charged, save and except for the very limited purpose explained to them. Nor, for the reasons already adverted to, did the failure to give an express warning against "propensity reasoning" cause the trial to miscarry. There was nothing about the circumstances in this case which raised the prospect that the jury - in the face of the directions which were given - would impermissibly reason, from the physical assaults, that the applicant was the sort of person who would anally rape his wife. As I have said, the fact that no exception was taken to the charge indicates that counsel did not regard the directions as impacting upon the fair trial of the applicant. Furthermore, because the evidence of physical abuse was admitted as evidence of relationship and was discretely different from the charged conduct, I cannot agree that the judge was bound to tell the jury, at the time the evidence was led, of the purposes for which it could and could not be used. Such a course, so far as I am aware, is not a universal practice in this State. Much will depend upon the nature and extent of the evidence and its capacity to provoke impermissible propensity reasoning.

[45]

The circumstances in which this Court will receive and act upon evidence of events which have occurred subsequent to sentence are well established. They have been set out in such cases as R. v. Rostom[17] and R. v. Babic[18]. Those authorities make it clear that the suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is normally a matter for consideration by the Executive in the exercise of its prerogative of mercy and not by the appellate court. It is only permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence, but not then fully appreciated or understood. It seems to me that those criteria have not been met in this case. At the time of sentence the judge had before him a full report from Mr Bernard Healey, a forensic psychologist. Not only were the findings in that report similar to those which are expressed in the report of Dr Walton, but it is also clear from his Honour's sentencing remarks that he took full account of the applicant's psychological and depressive state emanating largely from his alcoholism. His Honour referred in detail to the report of Mr Healey, the contents of which he described as "very distressing", and noted that the applicant was being assessed in the psychiatric unit of the prison and placed on anti-depressant medication. It is clear that the applicant's depressive illness figured largely in the sentence which his Honour imposed for the rape, which in the circumstances is an extremely moderate one. There is nothing which I can see in Dr Walton's report which suggests that his Honour has not given full effect to, or has under-estimated, the extent of the applicant's psychological condition as it existed at the date of sentence and which appears to have continued. There is nothing to be found in his Honour's sentencing remarks which indicates that he regarded the applicant's depressive condition as one which would be likely to resolve itself within a short period of time or which would indicate that he has not taken full account of its potential future course. In those circumstances, this Court cannot accept into evidence the affidavit material which is now put before us for the purposes of showing that the sentence imposed below is excessive. There is nothing else about his Honour's sentencing of the applicant which would demonstrate to me that the

R v P F D [2001] VSCA 198 - VSCA 2001 case summary — Zoe

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Judgment (54 paragraphs)

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