THE EVIDENCE OF MS BEECHING-MARSHALL
29In providing some helpful preliminary submissions on Friday, Mr Dennis submitted that the evidence of Ms Beeching-Marshall lacked significant probative value for the following reasons:
(i)It lacks contemporaneity with events surrounding the murder.
(ii)The use of pornography featuring Asian women as a sexual stimulant does not lead to an inference that the accused had a sexual interest in Asian women upon which he would necessarily act. Mr Dennis said "there is not a relevant similarity inasmuch as we're talking about pornography as opposed to sexual activity itself".
(iii)The tendency evidence is not sufficiently similar to the events alleged in the murder and, in particular, there is no suggestion that the victim and the accused were using "speed" or similar type drugs in the time leading up to the killing.
30When the argument resumed on Monday, Mr Dennis relied on written submission in which it was contended that the evidence lacked significant probative value because (i) the alleged activity was "only a limited part of a broader range of sexual behaviour" and (ii) the witness herself is not a person of Asian background and had been in a relationship with the accused for a period of around 10 years.
31There is authority to support the proposition that a substantial effluxion of time between the events subject of the tendency (or coincidence) evidence and the subject offence may diminish the probative value of the evidence: see R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 at [42] (Barr J). However, two things can be observed in the present case. First, the effluxion of time is not great. In R v Watkins there was an effluxion of time of around 14 or 15 years. Here, the effluxion of time is not completely clear but it is nothing of that magnitude. The accused said that his last sexual encounter with his ex-partner was around twelve months before the murder. Second, the evidence of Ms Beeching-Marshall concerns events that occurred after the accused began to suffer from sexual dysfunction. In the context of the issues between the parties and the accused's assertion that he did not have sexual urges, that fact is more significant than the precise length of time between the events relied on as tendency evidence and the alleged offence.
32As to the submission that the use of pornography depicting Asian women is a different thing to actually engaging in sexual activity with Asian women, I note the observations of James J (with whom McClellan AJA and Grove J agreed) in R v MM [2004] NSWCCA 364:
"60 ... It would appear to me that his Honour held that evidence that the respondent collected and viewed child pornography and fantasised about sexual acts with children, regarded as evidence of a tendency the respondent had, was simply irrelevant, that is to say it was not evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of whether the respondent had committed any of the offences alleged by the Crown or, differently expressed, was not evidence that, if it were accepted, could establish any relevant tendency to act in a particular way.
61. I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act, in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it."
33In PGM v The Queen [2006] NSWCCA 310, the trial Judge excluded evidence of child pornography because the multitude of images that the Crown sought to adduce, and the nature of those images, would be "so prejudicial" that the trial would miscarry. It was not excluded because it lacked probative value.
34Further, in R v PWD [2010] NSWCCA 209 Beazley JA (with whom Buddin J and Barr AJ agreed) said at [79]:
"The authorities are clear that for evidence to be admissible under s 97 there does not have to be a striking similarities or even closely similar behaviour."
35Plainly, as was held in R v Harker [2004] NSWCCA 427, the evidence must "transcend the mere fact" that the respondent was having inappropriate sexual conduct with another person. See also R v Milton [2004] NSWCCA 195 at [31].
36As to the fact that there is no evidence that the victim and the accused were using "speed" on this occasion, that is not a matter upon which the Crown relies in pressing the admissibility of the tendency evidence. It is the suggestion of a sexual interest in Asian women that is at the core of the Crown's notice, not the use of drugs. It might also be observed that the accused and the complainant were using large quantities of alcohol, and possibly prescription drugs in the time leading up to the killing -although there is a qualitative difference between those drugs and amphetamine. The lack of striking similarity between the tendency evidence and the behaviour in the hours before the murder does not deprive the evidence of its probative value as evidence of the tendency that the prosecution seeks to prove: R v PWD (supra).
37I have reached the conclusion that the evidence of Ms Beeching-Marshall has significant probative value. The accused's sexual interest in Asian women (if accepted) has a significant capacity rationally to affect an assessment of the probability that the accused attempted to, or did, have some sexual contact with the deceased. That in turn, would affect an assessment of the likelihood that the accused (not somebody else) murdered her. The probative value of the evidence is considered by reference to the things that the accused puts in issue including whether it is reasonably possible that a person other than the accused (and specifically Mr Martin) committed the crime and his assertion that he has little or no interest in sex as a result of his sexual dysfunction.
38I do not understand how the fact that the activity is a limited part of the accused's sexual behaviour diminishes the probative value of the relevant aspect of his sexual interests. Nor do I accept that the fact that the accused was involved in a relationship with a non-Asian person means, as a matter of logic or common experience, that the accused does not have a sexual interest in women of Asian appearance.
39Turning to s 101, and whether the probative value of the evidence substantially outweighs any prejudicial affect that it may have on the accused, I accept that the evidence has some capacity to cause prejudice to the accused. This is because of the reference to taking of illegal drugs. However, that reference is not part of the tendency that the Crown seeks to establish. In the absence of the reference to illegal drug use, I am unable to discern any relevant prejudice in the evidence. If the evidence of drug use is not led, there is little or no prospect that the jury will misuse the evidence. The jury will be directed as to the proper use it can make of the evidence, namely as part of the circumstantial case that the Crown will rely upon to establish that it the accused, and not some other person, who killed the victim.
40When I raised the question of omitting the reference to the drug use from the evidence, Mr Dennis submitted that he did not think that the evidence could be severed. I am unable to agree with this submission. Plainly, if the accused seeks to introduce the evidence of speed use or if he would prefer the Crown to lead the evidence of speed use, that is a forensic choice open to him. However, I do not accept that the use of speed is so intrinsically connected to the central features of the tendency evidence of Ms Beeching-Marshall that it is, in effect, either all or nothing. I indicate that if it were "all or nothing" I would allow all of the evidence and provide the jury with directions in relation to the limited use that could be made of the use of amphetamines and caution them against using it to draw adverse inferences against the accused.
41The accused submits that "the use of pornography may lead to an assessment of bad character and/or moral condemnation in the minds of some jurors". I very much doubt that this is so. I do not think that the use of adult pornography is generally regarded in the community as a matter that would lead to a conclusion that a person is one of bad character. There is no suggestion that the use of pornography was other than consensual and it is certainly not pornography that might lead to criminal sanction. In any event, that is a matter that can be overcome by direction.
42The final matter said to give rise to possible prejudice to the accused concerns the use of the term "Asian". It is said that this is a "broad" term and Mr Dennis observes that Asia includes many developing and under-developed nations. It is submitted the accused's use of pornography depicting women from that region "might be considered [by the jury] to be particularly exploitative behaviour". While I appreciate the ingenuity of this submission, I am not sure that the fact that the pornography in question is described as "Asian" porn distinguishes it from most pornography in this respect. There is nothing in the bare descriptions of the material that gives rise to an inference that the participants were exploited or came from under-developed economies.
43In assessing the possible prejudicial effect of the material, it is important to observe that there is no attempt by the prosecution to have the pornographic videos played to the jury or even to provide graphic descriptions of what is depicted in them.
44For those reasons my ruling is that the evidence of Ms Beeching-Marshall is admissible. I would have made this ruling provisional upon the reference to illegal drug use being omitted. To be clear, I would have ruled that the reference to the accused and his ex-partner using "speed" is inadmissible. It is not relevant to the tendency that the prosecution seeks to establish. However, I accept that counsel for the accused may make, or may already have made, a forensic decision that there is some advantage in having the use of amphetamine adduced.
45Of course, the record should be clear that this forensic choice has been forced upon him by my ruling, over his objection, that the evidence is admissible: cf Stanoevski v The Queen [2001] HCA 4; 202 CLR 115 at [48] (Gaudron, Kirby and Callinan JJ).