25 There is no doubt this material was highly prejudicial to the appellant. The jury knew from the evidence of the complainant about the assaults in April, 1996 and in October, 1997. This evidence was not only given by the complainant but the Court appearance for the April, 1996 assault was the subject matter of evidence by the police prosecutor who had prosecuted it and the statement of facts tendered at that hearing was tendered before the jury. The jury knew the appellant had been convicted and placed on a good behaviour bond.
26 Insofar as the assault in October, 1997 is concerned, the jury not only had the evidence of the complainant but they also had the evidence of the solicitor from the Office of the DPP who prosecuted the case and they had tendered before them the statement of facts which was tendered before the Magistrates' Court. They knew the appellant was convicted and they knew he was sent to gaol for twelve months with a nine months non-parole period.
27 In this case the evidence of the complainant was that she had been subjected to violence over a considerable period of time. The complainant gave evidence that after the assault in April, 1996 she remained living with the appellant. They continued to live together until October, 1997 when the complainant said she was assaulted with a pick handle and that led to the arrest of the appellant and his being sent to gaol. Apparently while the appellant was in gaol, the complainant visited him on a regular basis. The gaol visitors book was tendered as Exhibit 2 illustrating frequent visits to the appellant by the complainant. The complainant accepted she visited him virtually every week. She said she did so because he needed to see his children and that he fooled her. She said that he convinced her the children needed a family with a mother and father and that after his release from gaol, they had a reconciliation. She said that he broke his promise when he came out of gaol and that is why she left him again and went to live in her own premises.
28 The history detailed by the complainant is one of a turbulent relationship involving violence. It is one where she became reconciled to the appellant on a number of occasions. She asserts the reconciliations were because of the children but whatever the reasons there appear to have been a number of reconciliations after episodes of violence where it can be assumed normal relationships resumed. Notwithstanding the appellant denied the act occurred, there was still a question for the jury in respect of count 3 as to whether she consented or not to an act of intercourse charged in that count on that day.
29 Undoubtedly, a significant amount of prejudice to the appellant occurred as a result of the introduction of material relating to the history of the relationship. Before considering that prejudice and whether a discretion should have been exercised to exclude the evidence under s135 or s137 of the Evidence Act, it is necessary to consider the admissibility of the material because, if the material were inadmissible, the question of its exclusion on any discretionary basis does not arise. The material was tendered not as tendency evidence. It was tendered as contextual evidence. It was tendered to demonstrate the context of the kidnapping charge, which was the first charge, and the act of sexual intercourse, which was the subject matter of the third charge, and it was tendered to show that although the complainant submitted to sexual intercourse, she did not do so willingly and the appellant knew there was no consent.
30 What the material disclosed, however, was that the relationship had been one where the complainant had willingly resumed a normal physical relationship with the appellant on a number of occasions, most recently after he had been released from custody. Her explanation that she had done so for the sake of the children and trusting his promises to reform, did not detract from the reality of her consent. This is quite a different situation from that described in R v Fordham (supra) where what was alleged was a continuous course of behaviour towards the complainant who was never consenting and therefore was not consenting to the act charged.
31 The allegation of the complainant that she had been kidnapped and forcibly held by the appellant for some weeks before the act of intercourse was undoubtedly part of the context. However, the jury acquitted the appellant of this charge of kidnapping no doubt because the evidence was that the complainant had gone shopping with the appellant's mother during this time.
32 That squarely raises the question as to whether or not the earlier history between the parties was admissible as relationship evidence in this case. Gibb CJ in Perry v The Queen (1982) 150 CLR 580 reviewed the law as illuminated since Makin v Attorney-General (N.S.W.) (1894) AC 57 where it was said evidence of prior criminal acts could not be led unless it is relevant to an issue such as accident or another defence. The basis of exclusion, it was said, is not because the evidence is irrelevant but because it is unfairly prejudicial. Gibb CJ went on to say that the first thing to determine was the admissibility of the evidence and, in the context of a case dealing with similar fact evidence, noted:
"It is true that in deciding whether the evidence is admissible, questions of degree arise and that the judgment to be made is to some extent discretionary. It was said in Harris v Director of Public Prosecutions (1952) AC, at p 710, that evidence of similar facts, to be admissible, must have "a really material bearing" on the issues to be decided. The judgments in Reg. v Boardman show that there are degrees of relevance, and I respectfully agree with the statement of Lord Wilberforce that the evidence to be admissible must have "a strong degree of probative force": Reg. v Boardman (1955) AC, at p 444; see also at pp 439, 452-453, 456".