The Queen v LM [2017] NTSC 81

(b) to overcome a false impression that the event was an isolated one, or that the offence happened "out of the blue", where the acts are closely and inextricably mixed up with the history of the offence;

(c) to assess the credibility of a complainant's evidence; and

(d) to ensure that the jury is not required to decide issues in a vacuum, and to negative issues concerning lawfulness (such as the question of consent in relation to count 5).

[47] In order for context or relationship evidence to be relevant it must be shown that the evidence would make the complainant's version of the particular incident subject to the charge more capable of belief when seen in the context of that relationship. In a general sense, the evidence in relation to each charge provides essential background to the other charges, and avoids the jury having to decide the matter in an artificial and individualised context for each episode of alleged offending.

[48] So far as the application for severance in particular is concerned, the evidence to be led by the Crown to prove the offences charged in counts 1 to 4, if accepted, is manifestly relevant in the assessment of the evidence concerning count 5. It has the clear potential to inform the assessment of the credibility and coherence of the complainant's evidence. It also provides a history and context against which the jury may assess the complainant's evidence in relation to consent.

[49] The complainant's evidence, if accepted, will be that the accused dealt with her in a way that was sexually inappropriate during her childhood in circumstances where there was a particular relationship between them. That evidence might inform the jury's consideration about whether or not there was genuine consent in respect of the dealing said to constitute count 5; about why there might have been some delay in complaint and in detailing the entirety of the dealings when the complaint was initially made; and about whether this particular interaction came "out of the blue". These are purposes for which context and relationship evidence is routinely and properly received.

[50] The aunt's evidence concerning the accused's cultural authority is also relevant and admissible for context and relationship purposes for the same reasons. It is important in the jury's deliberations concerning the issue of consent, and generally important for context purposes.

[51] Conversely, evidence from the complainant to the effect that the accused asked her to tell the other young female that he wanted to have sex with her is not relevant and admissible for context or relationship purposes. It sheds no light on the question of consent and, without more, does not inform an assessment of the coherence and credibility of the complainant's evidence. That conclusion is subject to one qualification.

[52] That evidence might conceivably be seen as favourable to the defence case, and there may be forensic reasons why defence counsel might wish to have it before the jury. As matters presently stand, however, the defence has sought to have evidence of that request ruled inadmissible. Should that position change, and should the defence seek to elicit that evidence from either the complainant or the other young female during the course of cross-examination, it would be improper to do so in a manner which suggested that the complainant had withheld that detail during the course of her evidence-in-chief, or in a manner which suggested some inconsistency between what the complainant says she told the other young female and the evidence given by that other young female.

[53] For those reasons, the complainant's evidence in relation to each count is relevant and probative in the proceeding as context or relationship evidence concerning each other count because, if accepted, it could rationally affect, indirectly, various facts in issue. So far as the application for severance is concerned, that evidence will be germane in particular to the jury's assessment of the issue of consent arising in relation to count 5. The aunt's evidence is relevant and probative as context or relationship evidence concerning all the counts charged on the indictment.

[54] That leaves the question whether the probative value of that evidence as context or relationship evidence is outweighed by the danger of unfair prejudice to the defendant. On the respective positions adopted by the parties, that is largely the same question which presents under s 341 of the Criminal Code in determining whether the joint trial of count 5 with the other four counts would give rise to prejudice in the relevant sense.

[55] It may be observed at the outset that all five counts involve a single complainant, and the particular concerns that arise in cases involving multiple complainants where the evidence is not mutually admissible for propensity or tendency purposes do not arise here.

[56] The exercise of the discretion under s 341 of the Criminal Code will be guided by a number of considerations, including:[13]

• (a) the degree of interrelationship between the facts giving rise to the counts, and in particular whether the evidence is cross-admissible between counts for a legitimate purpose;

• (b) whether any potential prejudice may be allayed by proper directions to the jury; and

• (c) the impact on both the complainant and the accused of ordering multiple trials.

[57] For the reasons already discussed, the complainant's evidence in relation to counts 1 to 4, and her evidence generally in relation to her interactions with the accused when she was growing up, is relevant and probative as context and relationship evidence, including in relation to count 5.

1. The risk that the jury may be emotionally affected or may use the evidence improperly can also be accommodated by suitable directions.[14] As Gleeson CJ and Gummow J observed in Gilbert:[15]

The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

[59] The relevant directions in the present case would include that evidence in relation to one count cannot be used to engage in tendency reasoning in the proof of any other count; that the Crown case is based in essence on the evidence of a single witness, requiring particular scrutiny of that witness's evidence; and that the task is to be approached in a logical and rational manner unaffected by sympathy or emotion.

[60] The fact that the offences alleged in this case are sexual in nature, and include conduct when the complainant was a child, is not sufficient in itself to give rise to irremediable prejudice. Each of the offences has the potential to arouse strong emotions or excite revulsion in the jury. There is no suggestion by counsel for the accused that each count must properly be tried separately for that reason. This acknowledges implicitly that the potential for reaction of that kind on the part of the jury may be addressed by appropriate direction.

[61] The same considerations necessarily apply in relation to any charges involving child sexual abuse. On the modern approach, that is not a proper basis in and of itself to order the severance of the indictment.

[62] The particular prejudice said by the defence to arise in this case is of the nature discussed in R v Johnston.[16] In that matter, counts 1 to 7 on the indictment related to offences allegedly committed when the complainant was under the age of 16, and counts 8 and 9 related to offences allegedly committed after that time. It was the accused's defence to counts 1 to 7 that the conduct charged did not occur. It was the accused's defence to counts 8 and 9 that the sexual intercourse was consensual. The complainant in that case was the accused's niece.

[63] Counsel for the accused in the present case has indicated that the accused's defence will be put on the same basis. That is, the conduct charged in counts 1 to 4 did not occur, and the sexual intercourse charged in count 5 was consensual.

[64] In Johnston, severance was ordered on the basis that the accused's account of consensual sexual intercourse would prejudice the accused's defence of counts 1 to 7. The trial judge considered that members of the jury might be repelled by the accused's admission to having consensual sexual intercourse with a far younger blood relative, and there was a high risk the evidence would be misused.

[65] The same considerations and concerns do not necessarily arise in the present case. In Johnston, the accused had made an admission to police of consensual sexual intercourse during the course of a recorded interview, and that express admission was to be put before the jury. There is no such admission in the present case. In Johnston, the accused and the complainant were blood relatives. Although the evidence in the present case will be that the accused stood in the role of a "grandfather" to the complainant in the Aboriginal way, there is no blood relationship. Nor did the evidence from the complainant's aunt received during the course of the Basha inquiry disclose any strong and rigid taboo in the community concerning "wrong skin" relationships.

[66] Having regard to those matters, it cannot be said that there is a high risk in the present case that the jury will misuse the evidence concerning count 5 in its consideration of the offences charged in counts 1 to 4. The situation is one that commonly presents in sexual assault cases involving a young complainant and an older defendant.

[67] In Johnston, the court also held that evidence about the sexual offences said to have been committed by the accused when the complainant was a child would not cause prejudice to the accused's defence of the counts involving conduct when the complainant was a young adult. The evidence concerning counts 1 to 7 was held to be cross-admissible as context or relationship evidence concerning counts 8 and 9, in that it would serve to rebut the accused's assertion of consensual sexual intercourse after the complainant had turned 16. That is consistent with the conclusions drawn above in relation to the present case.

[68] For these reasons, it may be concluded that the probative value of the evidence concerning counts 1 to 4 as context or relationship evidence in the proof of the offence charged in count 5 is not outweighed by the danger of unfair prejudice to the accused. Nor would the reception of that evidence for context or relationship purposes be misleading or confusing, or cause or result in undue waste of time. For those same reasons, the joint trial of count 5 with the other four counts does not give rise to prejudice in the relevant sense.

[69] The rulings on the preliminary issues are:-

(a) The evidence identified in the Crown's tendency notice is inadmissible for tendency purposes.

(b) The complainant's evidence concerning counts 1 to 4 is admissible as context or relationship evidence in the determination of each other count, including count 5.

(c) The evidence of Margaret Lindsay in relation to the accused's cultural position and authority is admissible as context or relationship evidence concerning all the counts charged on the indictment.

(d) Evidence from the complainant and the other young female to the effect that the accused asked the complainant to tell the other young female that he wanted to have sex with her is inadmissible.

(e) The application to sever the indictment is dismissed.

1. [1] S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service, [EA.97.120]; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702.
2. [2] Odgers, op cit, [EA.97.120]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72].
3. [3] [2017] HCA 20.

[4] IMM v The Queen (2016) 257 CLR 300 at [62]-[64].

[5] IMM v The Queen (2016) 257 CLR 300 at [62].

**[6] First introduced in England by the Indictments Act, 1915, Schedule I, rule 3.

[7] Packett v The King [1937] HCA 53; (1937) 58 CLR 190 at 207; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 540-541.

[8] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at 9.

[9] R v PJMS [2011] NTSC 48 at [10].**

[10] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [12] per Gleeson CJ.

1. [11] R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 ; Conway v R [2000] FCA 461; (2000) 172 ALR 185; FDP v R [2008] NSWCCA 317; (2008) 74 NSWLR 645; R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356.
2. [12] See, for example, HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [6]- [7] per Gleeson CJ.

[13] R v KRA [1999] VSCA 157; [1999] 2 VR 708 at 715; R v Christou [1997] AC 117 at 129.

1. [14] See, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [22], [26], [29], [38].
2. [15] Gilbert v The Queen (2000) 201 CLR 414 at 420.

[16] [2016] NTSC 57.