Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Nature of discretion - Generally - Probative value - Assumption that inference favourable to Crown will be drawn.

Evidence Act 2001 (Tas), ss101(2), 137.

R v Sood [2007] NSWCCA 214; KMJ v Tasmania [2011] TASCCA 7, followed.

Judgment Number: [2012] TASSC 1

STATE OF TASMANIA v ANTHONY COLIN FINNEGAN (No 2)

1 This is my second determination pursuant to the Criminal Code, s361A, as to the admissibility of evidence in these proceedings. The accused has been indicted on a single count of wounding, and has pleaded not guilty. The charge alleges that on or about 11 February 2011 he unlawfully wounded the complainant - his then partner - by striking her to the face with a glass. The Crown wishes to lead evidence before the jury from the complainant as to the accused's conduct towards her on other occasions, before and after the alleged wounding. The accused objects to some, but not all, of that evidence. The evidence that is objected to has been led from the complainant on the voir dire.

2 The complainant also gave evidence on the voir dire about the alleged crime of wounding. That evidence was to the following effect. She and the accused were at home. She was preparing some food. She sent a text message to a man named Alex Chapman to see if he could bring her some tinned tomatoes. He phoned her back and asked what sort she wanted. She told him what sort she wanted, ended the telephone conversation, and commented to the accused, "Oh, isn't he a sweetheart?" The accused immediately struck her to the face with a glass. He then said something like, "Shit, what have I done?" They had a conversation about what they were going to say to explain her injuries. She was sitting on the couch, profusely bleeding. She said that they needed to call an ambulance, and said, "It's fine. We'll just say that I tripped on my thong while trying to get up to answer the landline, and I've tripped, and, in order to protect the baby, I've landed on the glass." Apparently the complainant was pregnant at the time.

3 The Crown wishes to lead evidence as to the accused's conduct towards the complainant on other occasions in order to establish that he was a jealous, bad tempered, and violent partner. There is evidence that the complainant obtained medical treatment for a laceration to her face and nose on the evening in question, but that she said she had injured herself by falling onto a glass and thus suffering her lacerations by accident. The Crown wishes to lead evidence of violence in the couple's relationship with a view to explaining why the complainant falsely stated that she had been injured by accident.

4 I have already determined that some evidence of violence is inadmissible. The accused was charged with a number of summary offences relating to his alleged conduct towards the complainant, and was acquitted of those charges when no evidence was offered. I held that the result of those acquittals was that evidence as to acts falling within the scope of the charges was not admissible.

5 The accused does not object to evidence being led as to the following matters:

•

On 20 August 2010, at the home of the accused and the complainant, the accused twisted the complainant's left thumb backwards and pulled it. As a result, a bone in the thumb was fractured. The accused was charged with assault under the Police Offences Act 1935 in relation to this incident. The complaint, after an amendment, alleged that he assaulted the complainant "by twisting her thumb causing it to break and striking her face". He pleaded guilty to that charge.

•

On 6 December 2010 a magistrate made a family violence order that required the accused not to directly or indirectly threaten, harass, abuse or assault the complainant.

•

On 27 May 2011, ie some months after the alleged wounding, the accused grabbed the complainant's hair, pulled it back, grabbed her ear, and twisted it.

•

On 28 May 2011 the accused grabbed the complainant's hair, pulled it back, and pushed her onto a bed base.

•

In relation to the incidents on 27 and 28 May, the accused was charged on two counts of breaching the family violence order, and, under the Police Offences Act, on two charges of assault. On 4 August 2011 he pleaded guilty to all those charges in the Magistrates Court.

6 The evidence which the Crown wishes to lead from the complainant, but which is objected to, comprises the following:

•

In the first week or two of the couple's relationship, in or about July 2010, at a Devonport hotel named Molly Malone's, the complainant was in a smoking area at the rear of the premises with some other people. The accused went inside, but first told some people there to keep an eye on her. A female friend of the complainant gave her a hug and a kiss. The accused swore at the friend and called her a lesbian. The accused came back out, saw that another man had his arm around the complainant, and "went off over that".

•

On occasions the complainant received phone calls from male friends in Melbourne and Tasmania. The accused asked her if she had had sexual relationships with them.

•

The accused did not allow the complainant to have visits at their home from men with whom she had previously been in relationships.

•

Two friends of the complainant, a married couple named Marissa and Adam, sometimes visited the house. On some such occasions Adam hugged the complainant. When he did that, the accused made comments to the complainant like, "He's sleazy. Why do you let him hug you?"

•

On occasions the complainant's daughter, who was about ten years old, stayed overnight at the house and slept with the complainant. The accused "would go ballistic" about the child sleeping with the complainant. He also told the complainant that he was jealous of the child.

•

The incident on 20 August 2010, which was the subject of the first assault charge to which the accused pleaded guilty, involved a number of violent acts by the accused that were not the subject of the charge. In addition to the charged acts, the accused got the complainant in a choke hold, and was choking her to the point where she was kicking her legs because she could not breathe. She frothed at the mouth and passed out.

•

On Thursday, 26 August 2010, the accused held an open pair of scissors and a knife to the complainant's throat. He had been drinking vodka, but the complainant and the accused's sister hid the bottle because they thought he had had enough vodka. He "went off crazy wanting the rest of his alcohol".

•

On the night of Friday, 27 August 2010 the complainant, the accused and some friends went to the hotel at Sheffield and then to a nightclub in Devonport. The complainant remembers that she and the accused had an argument, but does not remember what the argument was over. She remembers seeing stars. The next morning she saw herself in a mirror and noticed injuries. The accused told her in December 2010 that he had stomped on her face. She had no recollection of that. She believes he said that the stomping occurred in their bathroom.

•

On 11 February 2011, the day of the alleged wounding, before that wounding occurred, the complainant had an argument with the accused about money that was owed to his aunt. They had gone out to pay bills and do other things. In the course of the argument, the accused punched a fence with his hand, right in front of the complainant's face. On their way home that day, the accused saw a couple whom he knew, and yelled out something like, "Would you kick her guts in for me mate?"

•

On one occasion the complainant grabbed a stool and rammed it into the door of the complainant's refrigerator. On other occasions he punched that refrigerator. On several occasions the accused punched the door of the spare bedroom. As a result there were holes in it. These acts all occurred in the course of arguments with the complainant.

•

Early in the relationship, prior to 20 August 2010, there was an occasion when the accused dragged the complainant along a street, damaging three layers of clothing and causing severe grazing and scarring.

•

On one occasion, which the accused said was probably mid-way through their relationship, the accused bit the complainant's nose.

•

On occasions after the alleged wounding, the accused would pull the complainant's hair and she would drop to her knees. He would then make remarks like, "Why don't you get up and fight?" He would call her names at times like that, eg a maggot, a rat, a dog, a goose, or a cunt.

•

On 27 May 2011, after the assault when the accused pulled the complainant's hair and twisted her ear - one of the assaults that led to pleas of guilty in the Magistrates Court - the complainant said that she hated him and that he needed to leave her alone. She then got up and went into the spare bedroom. The accused followed her into that room and said something like, "Look what you've made me do, maggot. You're inside my head again."

•

On 28 May 2011, after the accused assaulted the complainant by grabbing her hair, pulling it back, and pushing her onto a bed base - another assault to which the accused later pleaded guilty in the Magistrates Court - the complainant got back up and resumed some packing. The accused then grabbed her by the throat, put her down on the bed base again, was choking her, was "eyeballing" her, said he was going to kill her, and gave her a quick jab with one of his elbows.

•

About a week before 28 May 2011, the complainant was sitting on a couch, and the accused repeatedly stomped on her lower legs. During the following days she was limping and her legs were black with bruising.

•

After those assaults, the accused smashed the complainant's mobile phone, on which she had photos depicting her injuries.

7 The Crown contends that each of these pieces of evidence is admissible on one or more of the following four bases:

•

As "relationship evidence", which enables the jury to assess the evidence as to the alleged crime of wounding in context.

•

As evidence of a motive, namely jealousy.

•

As evidence tending to explain the complainant's conduct in relation to the wounding, including her assertions that she was injured as the result of an accidental fall, and her delay in reporting what actually occurred.

•

As tendency evidence, admissible under the Evidence Act 2001, s101, showing that the accused had a tendency to be jealous of anyone who had a friendship or other relationship with the complainant and to be generally violent towards her.

8 Counsel for the accused submitted that each piece of the evidence in question is inadmissible, on at least one of the following bases:

•

Irrelevance.

•

Failure to satisfy the common law rule established by the High Court in Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, whereby propensity or similar fact evidence is not admissible if, viewed in the context of the prosecution case, there is a reasonable view of that evidence which is consistent with innocence.

•

The danger of unfair prejudice to the accused outweighing the probative value of the evidence: Evidence Act, s137.

•

The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: Evidence Act, s101(2).

1">9 Evidence is relevant when, if it were accepted, it "could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding": Evidence Act, s55(1). Evidence may be relevant on the basis that it assists in the evaluation of other evidence: HML v R [2008] HCA 16; (2008) 235 CLR 334, per Gleeson CJ at par[6]; Roach v R [2011] HCA 12; (2011) 242 CLR 610 per French CJ, Hayne, Crennan and Kiefel JJ at par[12].

10 In Roach the appellant had been charged with assaulting a woman with whom he had been in a sexual relationship for some years. The High Court held that evidence of earlier acts of violence by him towards the complainant was relevant and admissible under Queensland law. In the principal judgment, French CJ, Hayne, Crennan and Kiefel JJ said at par[45]:

"... the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant's account of the alleged offence and what was said by the appellant and the complainant in the course of it."

11 In this case, the evidence to which the objections relate, if accepted, was capable of showing that the relationship between the accused and the complainant was one involving jealousy and violence on the part of the accused, particularly sudden violence. In my view, every such piece of evidence would be likely to assist the jury in its evaluation of the evidence as to what occurred at the time of the alleged crime of wounding.

12 There is one piece of evidence whose relevance is not particularly strong, namely the evidence that, after the charged assault on 27 May 2011, the accused said to the complainant something like, "Look what you've made me do, maggot. You're inside my head again." However I think that even that piece of evidence meets the test of relevance in s55(1). It is evidence of hostility associated with violence, and is part of the evidence as to the accused losing his temper at the time of the incident on 27 May.

13 The evidence summarised in each of the first five dot points in par[6] above, if accepted, could be regarded by a jury as evidence of jealousy on the part of the accused. Those pieces of evidence, taken together with the complainant's evidence as to the accused striking her with the glass immediately after she referred to Mr Chapman as "a sweetheart", could lead a jury to infer that sexual jealousy was a motive for the accused to attack the complainant with the glass.

14 The complainant gave evidence on the voir dire that she did not contact the police about being wounded with the glass on 11 February because she was scared, because she still loved the accused, and because she "still wanted to protect him". It is likely that the jury will have to consider contentions that the complainant's wounds occurred as a result of an accidental fall; that she gave truthful accounts of an accidental fall to others at the time; and that months later she invented a story about the accused attacking her with the glass and wounding her with it. The evidence of other violence on the part of the accused prior to the wounding is relevant in that it tends to support the Crown's contention that the complainant feared the accused and therefore lied about what really happened. The evidence of violent acts over the course of the relationship, before and after the alleged wounding, is also relevant on the basis that, if accepted, it tends to show that the complainant tolerated violence on the part of the accused to the extent that she did not end the relationship, and often did not report assaults by him to the police.

15 The evidence in question is also relevant as tendency evidence since, if accepted, it could support findings that the accused had tendencies to be violent to the complainant, and to be jealous in relation to the complainant.

16 Much of the evidence in question relates to events that occurred after the date of the alleged wounding. There was nothing in the complainant's evidence to suggest that, so far as jealousy, bad temper, and violence were concerned, her relationship with the accused or his tendencies were significantly different after that date. That being so, I see no reason why the evidence post-dating the alleged crime as to jealousy, bad temper, violence, and tendencies to be jealous and violent should be regarded as irrelevant. It is evidence of the continuous nature of the relationship, and of continuing tendencies, and could also be regarded as supporting the Crown's case as to why the complainant did not complain earlier: R v GGT [2007] SASC 104; (2007) 97 SASR 315 at par[35]; R v VN [2006] VSCA 111; (2006) 15 VR 113 at pars[35] to [41].

17 Pfennig (above) established a common law rule as to the admissibility of similar fact evidence. That rule was explained by Mason CJ, Deane and Dawson JJ in that case at 481 - 482 in the following terms:

"... the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged."

18 However Pfennig was a case from South Australia and it concerned the common law rules of evidence, not the provisions of the uniform Evidence Act. The New South Wales Court of Appeal held in R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 that the rule stated in Pfennig had been superseded by the provisions of the Evidence Act 1995 (NSW). In Tasmania, the Court of Criminal Appeal has followed that case: L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381.

19 In Ellis, Spigelman CJ made observations at par[96] to the effect that, when the uniform Evidence Act applies, there may still be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighed its prejudicial effect unless the Pfennig test were satisfied. I will return to the question of whether this is such a case. The next step must be to consider the statutory provisions as to admissibility.

20 The Evidence Act, s137, provides as follows:

"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 defendant."

21 Section 137 applies to all types of evidence adduced by a prosecutor. A specific provision as to tendency evidence is made by s101(2), which provides as follows:

"Tendency evidence about a defendant ... adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

22 In assessing the probative value of the evidence in question, it must be assumed that the evidence will be accepted by the jury: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; KMJ v Tasmania [2011] TASCCA 7. It must also be assumed that the jury will draw from the evidence any available inference that is favourable to the Crown. I think I should explain why that is so.

23 "Probative value" is defined in the Evidence Act, s3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The word "could" in that definition is very important. Authorities binding on me establish that, in determining what effect the evidence could have, the evidence must be taken at its highest, so that "could" must be regarded as meaning "could, if the evidence were accepted, and if any available inference favourable to the Crown were drawn".

24 In R v Sood [2007] NSWCCA 214, the Crown alleged that a doctor had dishonestly obtained financial advantages by bulk-billing the Health Insurance Commission as well as charging her patients for the same services. Some incriminating documents had been found in waste bins at her rooms. The Crown contended that the jury should infer that the doctor had hidden the documents because of a consciousness of her guilt of the crimes alleged. However the doctor's case was that she had hidden the documents because they might incriminate her in a tax fraud, not fraudulent double billing. The Court of Criminal Appeal held that, in assessing the probative value of the evidence in question, the trial judge was required to take the evidence at its highest, by reference to the inference favourable to the Crown which the jury could draw. See the judgment of Latham J, with whom Ipp JA and Fullerton J agreed, at pars[26] to [40]. That case was followed and approved in this State by the Court of Criminal Appeal in KMJ v Tasmania (above). See the judgment of Evans J, with whom the other members of the Court agreed, at pars[24] to [34].

25 In accordance with those authorities, the probative value of the evidence objected to must be assessed on the basis that the jury would infer from it that the relationship between the accused and the complainant was one involving jealousy and violence on the part of the accused; and that, when the accused told other people at Molly Malone's Hotel to keep an eye on the complainant, he did so because of jealousy, not because of concern for her safety or wellbeing.

26 It is significant that, even if I decide to exclude all of the evidence that has been objected to, the jury will still have evidence of three assaults by the accused on the complainant - those that occurred on 20 August 2010, and 27 and 28 May 2011, as described in par[5] above. It has not been suggested that many of those assaults were motivated by jealousy.

27 Counsel for the accused relied on evidence given by the complainant under cross-examination as to many of the accused's assaults on her being precipitated by causes other than jealousy. She said that the incident on 20 August 2010 arose after she reneged on an agreement to relocate with the accused to another residence; that the accused's violence towards her refrigerator arose from her not being communicative; that some of the damage to the door of the spare bedroom resulted from arguments about money; that the assault on 27 May 2011 occurred after she became ill and was unable to do things for the accused; that the assault on 28 May 2011 resulted from an argument over money, her being sick, and her saying that she was going to her parents' place because it was warmer there; and that the assault when the accused repeatedly stomped on her legs occurred as a result of her not being communicative. The complainant attributed only two assaults to sexual jealousy. She said that one hair-pulling incident was associated with her hugging Adam or Marissa. She also said that the assault when she was dragged along a street occurred when she and the accused had been visiting a friend of his, the accused had gone outside, and she had sat on the knee of one of his mates.

28 The evidence objected to comprises evidence of jealousy and evidence of violence. The evidence of jealousy and the evidence of violence overlap only in respect of those two incidents. Nevertheless, there is a substantial body of evidence as to jealousy, and a substantial body of evidence as to violence - evidence of violence that is additional to the evidence of the three assaults that were dealt with on pleas of guilty in the Magistrates Court. That is to say, the probative value of the evidence lies in some of it being evidence of jealousy, and in some of it being evidence of violence that is additional to the evidence of violence whose admission is not disputed.

29 If all the evidence of jealousy and violence on the part of the accused is admitted, there is no doubt a danger of unfair prejudice to him. There is a risk that the evidence in question could appeal to the jurors' sympathies, arouse a sense of horror, and provoke an instinct to punish. There is a risk that the jury might proceed on an improper basis by reasoning that, if the conduct of the accused towards the complainant on other occasions was as described, he was a person of bad character, and was therefore more likely to have committed the crime of wounding. When such risks exist, it is the duty of the trial judge to give appropriate directions limiting the use that may be made of the evidence: BRS v R (1997) 191 CLR 278. The fact that such directions must be given, and the likelihood of the jury complying with them, are matters to be taken into account in assessing the danger of unfair prejudice.

30 In my view the danger of unfair prejudice to the accused is not great. Even if all the evidence of jealousy and violence is admitted, the jury is likely to be placed in a position where it will need carefully to consider evidence that the complainant told others that her lacerations had occurred by accident, evidence of a substantial delay before she told the police or anyone else that the accused had struck her with the glass, and evidence that her assertions about him striking her with the glass were first made at a time when there had been a recent series of assaults and she had decided to end the relationship. In my view a properly instructed jury, having heard all the evidence of jealousy and violence, is unlikely to be distracted from its duty of impartiality and its duty to give a true verdict in accordance with the evidence.

31 In my view the evidence of jealousy has substantial probative value. Without that evidence the jury might well take the view that the accused had not given any indication of jealousy on any other occasion. If the only evidence available for the jury as to violence on other occasions was the evidence of the three charged assaults, two of which shortly preceded the first report to the police of the accused wounding the complainant with the glass, that could result in the jury overestimating the likelihood of the complainant having fabricated the critical allegations. Having regard to that factor, and to the various bases on which the evidence of violence is relevant, I consider that all the evidence of violence also has substantial probative value.

32 In my view there is nothing about the facts of this case that make it one in which s101(2) or s137 requires the Pfennig test to be applied. In my view the probative value of all the evidence under consideration substantially outweighs the prejudicial effect and danger of unfair prejudice to the accused. There is nothing about the probative value or possible prejudicial effect of any particular piece or pieces of evidence that warrants a separate approach.

33 For these reasons I determine that all of the evidence led from the complainant on the voir dire as to the conduct of the accused is admissible.

34 However, it cannot be said that every piece of evidence led from the complainant on the voir dire is admissible. The evidence led from her included inadmissible evidence as to what she believed the accused was thinking at various times, and inadmissible evidence of an assumption by her as to what she and the accused had been arguing about before one assault.

35 I have made this determination at the request of counsel for both sides even though it is proposed that another judge will complete this case during a forthcoming Burnie circuit. The trial of the accused was deemed to begin when he was called upon to plead to the wounding charge before me: Criminal Code, s351(6). I will therefore abort this trial to enable a new trial to begin before another judge. By virtue of s361A(2)(b) this determination will have the same status at that new trial as it would have had upon a continuation of the trial commenced before me.