DPP v Smith (No 3) - ACT Supreme Court

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Smith (No 3)
Citation:	[2024] ACTSC 300
Hearing Date:	30 July 2024
Decision Date:	2 September 2024
Reasons Date:	1 October 2024
Before:	Loukas-Karlsson J
Decision:	(1) Evidence of Incident 1 (bullet point 3, paragraph 1 of the prosecution case statement) and Incident 5 (bullet point 4, paragraph 1 of the prosecution case statement) is admissible as relationship or context evidence. (2) Evidence of Incident 2 (bullet point 6, paragraph 1 of the prosecution case statement), Incident 3 (bullet point 1, paragraph 1 of the prosecution case statement), Incident 4 (bullet point 2, paragraph 1 of the prosecution case statement) and Incident 6 (bullet point 5, paragraph 1 of the prosecution case statement) is not admissible as relationship or context evidence.
Catchwords:	CRIMINAL LAW– EVIDENCE – Relationship evidence – context evidence – Pre-trial application
Legislation Cited:	Crimes Act 1900 (ACT), ss 54(1), 60(1) Evidence (Miscellaneous Provisions)Act 1991 (ACT), s 74A Evidence Act 2011 (ACT), ss 55, 56, 101, 137, 192A
Cases Cited:	Allen v The Queen [2020] NSWCCA 173 Decision Restricted (No 4) [2024] ACTSC 35 Decision Restricted (No 5) [2024] ACTSC 196 Director of Public Prosecutions v Mastalerz [2024] ACTSC 30 DPP v Smith (No 2) [2024] ACTSC 95 Hughes v The Queen [2017] HCA 20; 263 CLR 338 L'Estrange v The Queen [2011] NSWCCA 89; 214 A Crim R 9 MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 R v Cornelissen; R v Sutton [2004] NSWCCA 449 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 R v Rajakaruna [2004] VSCA 114; 8 VR 340 Taylor v The Queen [2020] NSWCCA 355
Parties:	Director of Public Prosecutions Lachlan Smith ( Accused)
Representation:	Counsel M Howe ( DPP) J Purnell SC and K Bolas ( Accused)
	Solicitors ACT Director of Public Prosecutions Kim Bolas Legal Group ( Accused)
File Number:	SCC 106 and 107 of 2023

LOUKAS-KARLSSON J:

Introduction

1․ The accused, Mr Smith, who is the applicant in this matter, is seeking an order that “the evidence referred to at paragraph [1] of the Prosecution Case Statement be ruled inadmissible.” This advance ruling may be made at this stage in accordance with s 192A Evidence Act 2011 (ACT) (Evidence Act).

2․ The order is sought on the following grounds:

(a) That the evidence is not relevant; and

(b) The probative value of the evidence is outweighed by the danger of unfair prejudice.

3․ Mr Smith, is charged on indictment with the following:

(a) one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT); and

(b) one count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT).

4․ For clarity and convenience, I will refer to the applicant as the accused and the respondent as the prosecution.

5․ On 2 September 2024, I made orders referred to at [75]. At the time I indicated that reasons would be provided at a later date. Those reasons now follow.

The prosecution case and the background to this application

6․ The prosecution case is outlined below.

7․ The accused and complainant met in 2021. The complainant was 16 and the accused was 17 at the time. The complainant became pregnant approximately two months after the relationship began. The offences were alleged to have occurred on 4 December 2021, at a time, when the complainant was 34 weeks pregnant. At this time the accused was 18 years and 6 months of age.

8․ The allegations are that the accused touched the complainant’s vagina, thereby implying that the complainant had been unfaithful to him, then proceeded to grab the complainant by the arm and pull her to the floor. The accused then allegedly forced the complainant to perform fellatio on him, for approximately 30 minutes. The prosecution case is that the complainant was calling the accused “putrid” and “disgusting” and telling him she wanted to stop. It is alleged that the accused eventually ejaculated in the complainant’s mouth and that the complainant then vomited.

9․ The prosecution alleges that later in the morning, the accused and the complainant had an argument. The complainant called the accused’s mother asking for help. During this phone call, the complainant did not mention the alleged sexual offending. The prosecution case further states that at some point after the phone call the accused hit the complainant in the face with his shoe and was threatening to hurt the complainant throughout the morning.

10․ Police attended the home later that day. The complainant participated in a record of conversation with police inside the house while the accused was outside. The complainant denied anything physical had occurred. The complainant did not mention the alleged sexual offending from earlier that same day.

11․ On 10 December 2021, the complainant took part in an AVL meeting with police. This had been arranged by the Domestic Violence Crisis Service. The complainant told police she wanted to talk about an aspect of what occurred on 4 December 2021 that she had not earlier disclosed. The complainant then told police that the accused had abused her during their relationship, and this culminated in him putting his penis in her mouth without consent on 4 December 2021.

12․ On 25 January 2022, the complainant participated in an evidence in chief interview (EICI) with police. During the interview the complainant told police, inter alia, that during her 10-month relationship with the accused:

(a) In June 2021, the accused punched the complainant in the face causing her swelling and a cut.

(b) The accused would “bash” her a lot, including when she would refuse to engage sexually with him.

(c) On two or three occasions police attended the house as the complainant was screaming. The accused would then threaten to hurt the complainant and her unborn daughter if the complainant spoke to police. This “scared the absolute shit” out of her.

(d) During the relationship the complainant was constantly covered in bruises. These were often on parts of her body that weren’t normally visible.

(e) After the accused would hit the complainant, he would say that he was sorry and that he will never do it again.

(f) The complainant should have done something about the abuse sooner, but she was “way too scared.”

Pre-trial application

13․ On 9 April 2024, in DPP v Smith (No 2) [2024] ACTSC 95, I held that the prosecution was not permitted to adduce tendency evidence of Incidents 1 to 6 as outlined in the “Notice of Intention to Adduce Tendency Evidence” dated 3 July 2023. I also indicated at [79] that the question of context or background or relationship evidence was self-evidently not before me and a matter for the trial judge.

14․ The prosecution now intends to lead the same evidence that was previously considered by me in DPP v Smith (No 2) (on the question of tendency evidence) at the trial as relationship evidence.

15․ Counsel for the accused is seeking that the Court give a pre-trial ruling as to whether the prosecution may adduce the evidence referred to at paragraph [1] of the Prosecution Case Statement (Incidents 1 to 6) under the umbrella of relationship evidence.

16․ On 1 July 2024, the accused filed an Application in Proceeding with a supporting affidavit affirmed by Ms Bolas. The accused seeks orders excluding the evidence referred to at paragraph [1] of the Prosecution Case Statement. Relevantly, paragraph [1] of the Prosecution Case Statement states the following, along with my interpolations in brackets:

1․ The accused and [complainant]… met at the beginning of 2021 when the complainant was 16 and the accused was 17. The complainant became pregnant approximately two months into the relationship. Following that, the accused exhibited violent and controlling behaviour towards the complainant during the relationship including:

Locking the complainant in a room in his mother’s house for significant periods of time without a phone [I interpolate to note that this was referred to as Incident 3 in the tendency application].
Controlling what the complainant would eat [I interpolate to note that this was referred to as Incident 4 in the tendency application].
On 13 June 2021, assaulting the complainant occasioning actual bodily harm at the accused’s mother’s house. The complainant made representations that she was unsure whether the accused hit her with an open hand or closed hand but has confirmed it was a closed hand hit [I interpolate to note that this was referred to as Incident 1 in the tendency application].
On approximately three occasions when police were called because the complainant was screaming, the accused locked the front door of the home and begged the complainant not to say anything and threatened to return and hurt her unborn daughter and the complainant [I interpolate to note that this was referred to as Incident 5 in the tendency application].
Assaulting the complainant resulting in injuries to areas that would not be visible including bruises to her breasts, legs, shoulders and a bite mark to her arm [I interpolate to note that this was referred to as Incident 6 in the tendency application].
The accused assaulting the complainant if she did not agree to sexual intercourse [I interpolate to note that this was referred to as Incident 2 in the tendency application].

17․ In DPP v Smith (No 2) at [13], I outlined the specific material the prosecution intended to adduce. I note that in submissions for this application before me, the prosecution clarified that the tendency notice the subject of the application in DPP v Smith (No 2) contained an “egregious” typographical error on the part of the prosecution. That is, the notice referred to a number of Incidents (Incidents 2, 3, 4, 5) as referred to above as occurring “after January/February 2022” or around “March 2022.” Those dates therefore postdated the allegations on the indictment. The prosecution submitted in this matter that those dates were, in fact, incorrect, and that all of the incidents the subject of the tendency application, and now the application before me, preceded the allegations on the indictment. The prosecution further submitted that the accused was remanded in custody for the entire period between when the alleged offences occurred and when the complainant participated in the EICI. It was during this EICI that the complainant told police about the incidents now subject to this application.

18․ I agree with counsel for the prosecution that this was an egregious error on the part of the prosecution. It is important that it has now been rectified by the prosecution. Correct dates being put forward by the prosecution, is clearly an important matter in deciding such applications.

19․ Relevantly, the specific evidence the prosecution intends to adduce, and the related extracts from the EICI are as follows:

Incident	Substance of evidence	Evidence in support (Q/A references relate to EICI)
1	On 13 June 2021, assaulting the complainant occasioning actual bodily harm at the accused’s mother’s house. The complainant made representations that she was unsure whether the accused hit her with an open hand or closed hand but has confirmed it was a closed hand hit. I note that this was the subject of a charge of assault occasioning actual bodily harm to the complainant (CC2021/6249). The accused was convicted and sentenced for that charge on 2 February 2022 and was sentenced to six months imprisonment.	Police Statement of Facts – Annexure E to affidavit of Ms McKenzie Q/A 75 “… he hit me in someone else’s house while there was kids, and that’s how he got his first, um, DV charge from me. Um, because, obviously, I was sixteen and pregnant at the time. He was eighteen. So, um, I wasn’t just going to let that slide, especially not in – in front of other people, because – yeah.” The Court notes that Q/A 75 is evidence that relates to the specific incident in question. Q/A 83 “… he made me go and change my statement to say that I didn’t know whether it was an open-hand hit or a close-hand hit.” Q/A 85 “… I’m so sorry.” And, you know, like, just the normal, like, you know, emotional blackmailing shit that he would pull on me. And he’d be like, “I love you so much,” like, “I just want what’s best for me” – like, “Me, you, and our daughter. I just want to have that perfect little family that you always dreamed of.” Blah, blah, blah. And, like, yeah – and then, like, got – really got in my head. And I – obviously, like, I loved him and so I wanted him home. And, stupidly enough, I went and changed the statement. I didn’t lie in the statement. I just said that I didn’t know if it was a open-hand or close-hand hit, even though I’m very aware that it was a close-hand hit.” Q/A 100 “… When he first his [SIC] me, I did go to the hospital. And, um – because they thought my nose was broken and I had a big gash in my lip. So his last charge is actually assault causing (indistinct) bodily harm.” The Court notes concerning QA/83, 85 and 100, that Q/A 75 contains the directly relevant evidence. Q/A 83, 85 and 100 extend somewhat beyond the incident itself. I will discuss this later in the judgment at [69].
2	The accused assaulting the complainant if she did not agree to sexual intercourse.	Q/A 29 “… him by telling me, you know, that it’s my job to fulfil his needs and it’s my job to fulfil his pleasures, and that that’s what I’m there for, and that, you know, if I didn’t give it to him, that he’d go out and find it elsewhere. And a lot of the time when I would say no, he would become very abusive and manipulative, and just go on about that shit…” Q/A 90-91 “… And, like, yeah, he was just always very, like – um, I don’t know what the word is. Like, he’s a very big sex deviant. I think that’s the word. Um - - - Q91. Why do you say that? A Because it’s all he ever wanted. And if he didn’t get it, then I would get bashed.”
3	Locking the complainant in a room in the accused’s mother’s house for significant periods of time without a phone.	Q/A 35 “…And then we were together for about a month and a half or two months and then I fell pregnant. And when I fell pregnant, that’s when he started becoming very abusive. Um, always wigging out on me, thinking that I was, like, sleeping with other people. Like, he would leave me in – in his room at his mum’s house with no phone. He’d lock me in there, no phone. He would go out for hours. I’d have nothing to do. I’d just be sitting in there, by myself, too scared to even leave the room, because when he was home I couldn’t even go to the toilet by myself. He would always be there, like, watching me. I couldn’t go to the kitchen to get a drink by myself. And, um, he’d come home after being out, doing god knows what for seven fucking hours. He would come in and he would start going off his head, saying that I had people there – like, had boys there, and, like, that I was, yeah, sleeping around with other men when I was literally, like, locked in his room”
4	Controlling what the complainant would eat.	Q/A 111 “When I woke up, I ordered pizza because, again, I was thirty-four weeks pregnant and [accused] would always stop me from eating. And so there was no food in the house and – yeah, so I got pizza – which, I might just add in, I was not – I did – never even got to fucking eat. Q/A 197 “Um, I just went out to him and I was like, “There’s no fucking food here.” Like, “I’m starving.” Like, your – like, “Your daughter needs to eat.” Like, because he would never let me eat”
5	On approximately three occasions when police were called because the complainant was screaming, the accused locked the front door of the home and begged the complainant not to say anything and threatened to return and hurt her unborn daughter and the complainant.	Q/A 29 “… And then, at that point, I just screamed and screamed until the police came. And then, when the police got there, he was making me feel really, really bad about doing it and was like, “You’re doing this for no reason,” blah, blah, blah. And then I was like, “Well, no,” because I was genuine – because he would always threaten to hurt my baby. It was unborn at the time. And he’d always, yeah, threaten to kill her and kill me and stuff…” Q/A 81 “… And there was quite a few police appearances at the house for – for them coming for me screaming for help. And then he convinced them that nothing was happening” Q/A 92-97 Q92. So you said before that after you’d moved into the place in Palmerston about October, that there were instances where the police would be called - - - A Yeah. Q93. - - - because you’d be screaming. Tell me about that. A Um, there was a couple of times where the police, yeah, showed up because of my screaming. Not, like, my screaming at him. Like, my screaming for him to get out of my house and to leave me alone. And, like, every time the police would come, he would make me feel bad and he would – he would lock the front door and he would get on his knees to me and beg me and beg me and beg me not to say anything to them. And then he would threaten my daughter and myself, that if I said something, that he would hurt – come back and he would hurt us. And, yeah, that scared the absolute shit out of me. Q94. So how many times are we talking about? A Two or three times, I think. Q95. Who called the police? A My neighbours, I think. Q96. When the police were called, would they actually attend? A Yep. Q97. Where was [accused] at the time? A In the house.
6	Assaulting the complainant resulting in injuries to areas that would not be visible including bruises to her breasts, legs, shoulders and a bite mark to her arm.	Q/A 75 “… Only lived there right up until – so I – so when he first – so he would bash me, like, a lot in [accused mother]’s house…” Q/A 102 “… I was constantly covered in bruises. Like, my whole boobs were always, like, blue and black. And, like, all my legs – like, he would always do it in places where no-one would see. He’d do it on my shoulders. Like, I’ve got a bite mark on my arm from him and, like, you can see where the – he’s got his extra molar. And, yeah, like, it’s just really frustrating for me, because I didn’t have any evidence of him hitting me and stuff. But, actually, when we were living at [accused mother]’s, there was always – like, police don’t go to [accused mother]’s house anymore because she would call the police so many times and there was that many, like, reports of screaming matches in that house from them. Like, from him bashing me and shit. And, like, every time they’d come, [accused mother] and [accused] would be like, “Oh, everything’s fine,” and make me say that everything’s fine as well. And, um, yeah, I think (audio interference) but I was just always too scared.” Q/A 209 “… Which was obviously a very, um, continuous behaviour pattern of his that he would do every time. After he would hit me he would always hug me straight after…”

20․ The trial was set to commence on 30 September 2024 and that date was subsequently vacated due to another issue concerning the trial. A pre-trial hearing was set down for 2 September 2024 for the taking of further evidence and the cross examination of the complainant.

21․ Annexed to the affidavit of Ms Bolas is a copy of the evidence in chief interview with the complainant, the prosecution case statement and my earlier decision in DPP v Smith.

22․ On 26 July 2024, the prosecution filed an affidavit stating that the prosecution would seek to rely on the following documents for the purposes of the application:

(a) A transcript of a record of conversation between Constable Caitlyn Pititto-Underwood and the complainant on 4 December 2021;

(b) A copy of a statement of Acting Sergeant Brandon Thurgar dated 21 December 2021;

(d) A transcript of a record of conversation conducted with accused’s mother on 14 April 2022;

(e) A statement of facts tendered as part of sentence proceedings for CC 2021/6249.

Submissions

23․ I note in the context of this case, that the phrases “relationship evidence” and “context evidence,” have been used interchangeably, by counsel and by the court as the relevant context is the relationship.

24․ The prosecution properly submitted that leading evidence as relationship evidence is concerned with giving a tribunal of fact, a proper appreciation of the true nature of the relationship between the accused and the complainant. The prosecution further submitted that this is necessary, for the jury, to understand why the complainant behaved the way that she did both during and after the alleged offences. Therefore, the prosecution submitted, that the evidence is “concerned with the believability of the complainant’s response rather than with the tendency of the accused:” see DPP v Mastalerz [2024] ACTSC 30 (Mastalerz)at [50]. As a matter of law, this is indeed correct. That is, that the focus of tendency evidence is on the asserted tendency of the accused. Conversely, relationship evidence is focussed on the complainant’s response: see Mastalerz at [50].

25․ Relevantly, the prosecution submitted the evidence is relevant for 3 reasons:

(a) To understand why the complainant did not disclose the sexual offending to the accused’s mother and police on the day of the incident.

(b) To understand why the complainant submitted or acquiesced to the sexual intercourse.

26․ Counsel for the prosecution submitted that matters (a) and (b) are particularly critical in this case, as without the relationship evidence, the jury will be left in a position where the complainant’s response both during and after the alleged incident may seem unexpected or implausible.

27․ On the other hand, counsel for the accused properly submitted that s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) sets a comparatively low bar for admissibility and that the Court must then consider s 137 of the Evidence Act.

28․ Counsel for the accused submitted that Incident 1, an act that the accused pleaded guilty to and was convicted of and sentenced to 6 months imprisonment, is not critical to the jury’s understanding of the relationship between the complainant and the accused, in relation to the allegation of non-consensual fellatio. Further, counsel for the accused submitted that there is a real risk that the remaining five incidents have a capacity to distract and deflect the jury from their task of determining whether the two counts on the indictment are proven beyond reasonable doubt on the evidence. Counsel for the accused submitted that the six incidents do not assist the jury in understanding the allegations of 4 December 2021 on the indictment, which are of a sexual nature only.

Submissions on non-disclosure

29․ The prosecution submitted that in the hours after the alleged offending the complainant spoke to the accused’s mother on the telephone. The complainant also spoke later in the day to police after their attendance at the house.

30․ During the call with the accused’s mother the complainant said the accused was screaming and threatening her. The accused’s mother told the complainant to call the police if she was concerned. The complainant said she did not want to do this. The accused’s mother asked her if the accused had hit her. The complainant said he had not. There was no disclosure of any sexual offending committed by the accused. The accused was present with the complainant at the time of the call.

31․ Police attended the address at around 2:13pm. The complainant was observed to be emotionally distraught. The accused was observed to be aggressive and highly agitated. The accused was removed from the residence so that police could speak with the complainant inside. The accused continually attempted to re-enter the residence.

32․ Inside the residence, police conducted a record of conversation with the complainant. During the conversation the complainant stated that the accused and herself had engaged in a verbal argument during which the accused threatened to smash her face. The complainant did not disclose any sexual offending at this time.

33․ The prosecution submitted that it is not unreasonable to suggest there may be members of the community who find it implausible that, if the offending occurred as described by the complainant, that the complainant would not, when the opportunity presented itself, only hours after the alleged offending:

(a) Call the police as advised by the accused’s mother;

(b) Disclose the sexual assault to the accused’s mother;

34․ The prosecution further submitted there may be compelling reasons why the complainant did not disclose the sexual offending at those times. The prosecution submitted that the complainant, as stated in her EICI and separately when speaking to police 6 days after the incident, may have been scared. The prosecution further submitted that this contention can only be properly understood in light of both the history of physical and verbal abuse by the accused, a history that included threats to hurt the complainant and her unborn child if she spoke to the police.

35․ Further, the prosecution submitted that the complainant told police that she didn’t realise at the time the severity of the accused’s conduct. The prosecution noted that this explanation may seem curious given the complainant’s evidence that she told the accused a number of times that she did not consent to the fellatio. However, the prosecution submitted this type of response is not unusual for victims of abuse.

36․ Further, the prosecution submitted the complainant was concerned disclosure would jeopardise the future of her family. The prosecution noted that the complainant was 17 years old at the time of the alleged offending and 34 weeks pregnant with the accused’s child.

37․ It is relevant to note the decision of Baker J in Decision Restricted [2024] ACTSC 196 (Decision Restricted (No 5)), where the following was stated at [37] concerning the cumulation of matters which may affect a complainant’s decision making:

[I]t is important to recognise the multifaceted and cumulative nature of context evidence. Context evidence which, for example, is adduced to explain why a complainant did not complain at the time of an offence is not rendered inadmissible simply because the prosecution may be able to point to other reasons why the complainant did not complain. It should not be for the Court to determine which prior incident affected a complainant’s state of mind at a given point in time: Mastalerz at [69]. The jury, as the trier of fact, should be permitted to consider the cumulation of matters which may have been affected a complainant’s decision not to complain.

38․ The prosecution therefore submitted that some of the reasons for non-disclosure referred to above may be more intrinsically connected to a history of abuse and violence than other reasons. At the hearing, the prosecution accepted that Incident 3 (controlling what the complainant would eat) had “potentially less probative value” compared with the other incidents. However, the prosecution submitted it may be considered as part of the body of relationship evidence. Further, the prosecution submitted that Incident 5 (on approximately three occasions when police were called because the complainant was screaming, the accused locked the front door of the home and begged the complainant not to say anything and threatened to return and hurt her unborn daughter and the complainant) is highly probative because it has a direct connection to the facts of this matter involving police attending after an incident, non-disclosure and the complainant being threatened with violence. In my view, this submission concerning Incident 5 has some force. I discuss this further at [70] – [74].

Submissions concerning acquiescence

39․ The prosecution properly accepted this is not strictly an acquiescence case as there is direct evidence that speaks to the absence of consent (the complainant’s verbal remonstrations) and the accused’s knowledge as to the absence of consent (the use of force). However, the prosecution submitted there may be members of the community who would expect a victim to physically resist or protest in such a way as to make the act of fellatio a near impossibility. The prosecution noted that the complainant described the fellatio as proceeding for approximately 30 minutes. In submissions at the hearing, the prosecution stated that the jury may question how fellatio could continue to occur for some 30 minutes, absent consent or absent participation from the complainant. The complainant described “just having to suck it up and do it.”

40․ The prosecution submitted that in order to properly assess the state of mind of the complainant during any suggested submission or acquiescence to sexual activity the jury will require an understanding of the nature of her relationship with the accused.

Accused’s state of mind

41․ The prosecution submitted that the evidence is relevant in informing an inference that the accused knew the complainant’s participation in the fellatio was not an indication of free and voluntary consent, but rather, acquiescence or submission against a backdrop of violence and abuse perpetrated on the complainant by the accused. On this basis, the prosecution submitted that the probative value of the evidence is high.

Section 137 Evidence Act and unfair prejudice

42․ When considering the admissibility of such evidence, it is uncontroversial that certain matters may give rise to unfair prejudice including the following:

(a) Whether the number of incidents relied upon is likely to overwhelm the fact finder and distract from the principal task;

(b) Whether the relationship evidence involves conduct similar to the charged acts such that tendency reasoning may be engaged;

(c) Whether the prosecution fails to clearly identify the purpose of leading the evidence such that there is a real risk the jury will use the evidence for impermissible purposes: see L’Estrange v The Queen [2011] NSWCCA 89; 214 A Crim R 9 (L’Estrange) at [61].

43․ In relation to the matters outlined above, the prosecution made the following submissions.

44․ First, that the impugned evidence is “only” constituted by six incidents, that six is not a significant number and that relationship evidence of this kind will often involve multiple incidents. The prosecution submitted that the evidence in relation to these incidents is contained within the same EICI that outlines the alleged offending.

45․ Second, the prosecution submitted the relationship evidence does not concern other allegations of sexual assault. The prosecution submitted that this reduces the risk of unfair prejudice as a jury is unlikely to engage in tendency reasoning. The prosecution further submitted at the hearing that none of the evidence that is part of the relationship evidence is more serious than the acts on the indictment.

46․ Third, the prosecution submitted that the purpose has been identified for which the evidence is sought to be admitted and that therefore, this assists when considering whether an effective direction may be formulated for the jury. At the hearing, the prosecution further submitted that this is not a case where the jury will need to be directed that some evidence can be used as relationship evidence and other evidence can be used as tendency evidence, and conceded that there may be difficulties when directing a jury in cases where directions are sought for both tendency and relationship evidence.

47․ At this juncture, I note that in DPP v Smith, I found that the danger of unfair prejudice outweighed the probative value of the evidence as tendency evidence. As a consequence, the prosecution submitted that the matters that give rise to unfair prejudice will differ when considering the admissibility of relationship evidence as opposed to tendency evidence. The prosecution submitted that an example of this is the similarity, or dissimilarity, of the impugned evidence to that of the charged acts. In tendency applications, dissimilarities are a matter that may cause unfair prejudice. The prosecution submitted that for tendency evidence, six uncharged acts may be overwhelming when the charged acts are concerned with a single incident. It was further submitted, that a similar ratio, where relationship evidence is concerned, is “typical and often necessary.”

48․ Additionally, I note the prosecution properly accepted that there is material within the EICI that is not relevant, or alternatively, the probative value of such evidence is outweighed by the danger of unfair prejudice. The prosecution properly submitted that the complainant’s speculation concerning the accused’s proclivities is an obvious example. The prosecution submitted there are also a number of references in the EICI to infidelity and drug taking, some of which the prosecution accepted are superfluous. The prosecution noted that it is proposed to engage with the counsel for the accused concerning a sensible approach to redacting some of the material that falls into this category.

49․ While it was accepted by the prosecution that the relationship evidence sought to be admitted in this case may occasion some “unfair prejudice,” nevertheless, it was submitted that such prejudice is substantially outweighed by the probative value of the evidence.

50․ Conversely, counsel for the accused referred to my decision concerning tendency evidence in DPP v Smith and ultimately submitted that in that decision I was not persuaded that the probative value outweighed the danger of unfair prejudice under s 101 of the Evidence Act. It was further submitted that the same result would apply to Incidents 1 to 6 as context or relationship evidence. Regrettably, it must be stated, in the context of that submission, that the analysis to be undertaken, on this different question, by this Court, is not quite that simple.

51․ In my view, it is appropriate for this Court, in this regard, to analyse each piece of evidence sought to be adduced individually and not globally.

Consideration

Legislation and Legal principles

52․ Relevantly, s 74A of the EMP Act provides:

74A Evidence of family violence may be relevant evidence

(1) In a sexual offence proceeding, evidence of family violence may be relevant evidence in the proceeding if it provides context for a fact in issue in the proceeding.

Note For when relevant evidence is admissible in a proceeding, see the Evidence Act 2011, s 56.

(2) In considering whether evidence of family violence is relevant evidence, the court must take into account that—

(a) a single act may amount to family violence; and

(b) a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial.

(3) In this section:

evidence of family violence includes evidence of—

(a) in relation to a person—any of the following:

(i) the history of the relationship between the person and a family member, including family violence by—

(A) the family member towards the person; or

(B) the person towards the family member; or

(ii) the cumulative effect, including the psychological effect, of the family violence on the person or a family member;

(iii) any social, cultural or economic factors that impact on the person or a family member who has been affected by the family violence; and

(b) in relation to family violence generally—any of the following:

(i) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(ii) the cumulative effect, including the psychological effect of family violence on people who are, or have been, in a relationship affected by family violence;

(iii) the social, cultural or economic factors that impact on people who are, or have been, in a relationship affected by family violence.

family member—see the Family Violence Act 2016, section 9.

family violence—see the Family Violence Act 2016, section 8.

53․ Importantly, in the context of this Court deciding on the admissibility of relationship evidence, s 137 of the Evidence Act, as referred to earlier,provides the following mandatory consideration:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

(emphasis added)

54․ Recently, and of relevance in the discussion of legal principles in this case, Baker J in Decision Restricted (No 5), usefully summarised the principles relating to the admission of “relationship or context evidence” and in Mastalerz at [49] - [59]. Specifically in Decision Restricted (No 5), the following was stated at [21] – [22]:

[21] In summary, evidence may be relevant as relationship or context evidence where it explains why a complainant responded to the alleged offending in a way that, without the broader context, might seem unexpected or implausible. In some cases, context or relationship evidence may also be relevant to draw inferences about an accused’s state of mind, or “their reason for acting in a particular way towards the complainant”: Mastalerz at [51]. For example, relationship or context evidence may be relevant to explain a complainant’s submission to sexual intercourse in circumstances where the complainant fears that the accused will become violent if they refuse, or as informing an inference that an accused must have known a complainant was not consenting in light of past acts of violence: Mastalerz at [52] – [53] citing DS v R [2022] NSWCCA 55 at [120]; R v Fordham (1997) 98 A Crim R 359 at 369 – 370; R v Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 at [24] – 28], [72]; R v PAB [2006] QCA 212; [2008] 1 QdR 184 at [24] – [26]; R v Sadler [2008] VSCA 198; 20 VR 69; MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 at [6] – [8].
[22] The “cumulative effect” of family violence is explicitly recognised in s 74A of the EMP Act. This provision affirms the contemporary understanding of family violence, recognising that “a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial”: Mastalerz at [55]; sub-ss 74A(2)b) and 74A(3)(b)(ii) of the EMP Act. The provision was intended to ensure that factfinders can properly “evaluate the true nature of relationships between the parties and why the victim survivor reacted the way as they did”: Revised Explanatory Statement to the Sexual Assault Reform Legislation Amendment Bill 2022 (ACT) (“Explanatory Statement to the 2023 Amending Legislation”) at 12 [2].
(emphasis added)

55․ Thus, “relationship or context evidence” may be relevant in certain circumstances. It is relevant for example, as discussed above, in circumstances where the presentation of the evidence in a vacuum, without the broader context may render the complainant’s response to be incongruent or lacking in plausibility.

56․ On the other hand, of course, a criminal trial cannot examine every alleged incident in a relationship nor examine every aspect of the nature of the relationship in question. A jury trial is not a roving commission on everything that has happened or is alleged to have happened in a relationship. That is quite unrealistic within the parameters of a criminal trial. The overall nature of the relationship may be, of itself, a matter of dispute. There is a significant risk that this broader context of relationship evidence may form a substantial part of a trial and distract a jury from their primary duty of determining whether the actual charges themselves on the actual indictment before the jury are proven beyond a reasonable doubt. A line must be drawn at some proper point on that forensic continuum of relationship evidence.

57․ Importantly, in Mastalerz, Baker J underlined matters at [65] and [69] – [70] concerning where the line should properly be drawn in a criminal trial when considering relationship evidence:

[65]    It must be accepted that a criminal trial cannot examine every interaction in a relationship, which may span years, or decades. It may be difficult for an accused person to answer allegations of uncharged acts over long periods of time. There is also a risk that if a substantial duration of the trial is consumed by a consideration of the nature of the relationship (which itself may be contested), the jury may be distracted from their task of determining whether the charges have been proved beyond reasonable doubt. There will come a point in a criminal trial when the probative value of adducing evidence of additional past interactions between the accused and the complainant is not sufficient to outweigh these risks. However, great care needs to be taken in deciding where that line should be drawn.
…
[69]  …[R]esponsibility for ensuring that context evidence does not overwhelm the charged offences must first lie with the prosecution, who may ascertain which prior incidents of family violence are of the most importance to the issues in the trial (such as the complainant's state of mind), including by conferencing the complainant.
[70]  Of course, this does not absolve the Court from its responsibility to determine the admissibility of the evidence, and, where necessary to limit the complainant's history to “what is sufficient to enable the jury to set in its proper perspective and to understand the acts alleged to constitute a particular offence”: R v AN [2000] NSWCCA 372; 117 A Crim R 176 at [148], cited in MM at [57].
(emphasis added)

58․ Thus, the Court has a responsibility, where necessary in the exercise of the Court’s proper discretion, to limit the evidence to what is sufficient. Context or relationship evidence should not reach the point of overwhelming the trial of the specific offences on the indictment before the jury. It is therefore important to examine this question with reference to the timeline alleged in this case as set out below.

Timeline of allegations

Date	Description
Approximately January 2021	Accused and complainant met in 2021.
13 June 2021 INCIDENT 1 Q/A 75, 83, 85 and 100	On 13 June 2021, accused assaulted the complainant occasioning actual bodily harm at the accused’s mother’s house. The complainant made representations that she was unsure whether the accused hit her with an open hand or closed hand but has confirmed it was a closed hand hit. The accused was convicted and sentenced for that charge on 2 February 2022 and received six months imprisonment.
Unknown date in 2021 INCIDENT 2 Q/A 29 and 90-91	The accused assaulting the complainant if she did not agree to sexual intercourse. I note at this point that this evidence is of a general nature and in substance, in my view, approaches evidence of tendency. This will be further discussed at [65] – [68].
Unknown dates in 2021 INCIDENT 3 Q/A 35	Locking the complainant in a room in the accused’s mother’s house for significant periods of time without a phone.
Unknown dates in 2021 INCIDENT 4 Q/A 111 and 197	Controlling what the complainant would eat.
Unknown date in 2021 INCIDENT 5 Q/A 29, 81 and 92-97	On approximately three occasions when police were called because the complainant was screaming, the accused locked the front door of the home and begged the complainant not to say anything and threatened to return and hurt her unborn daughter and the complainant.
Unknown date in 2021 INCIDENT 6 Q/A 75, 102 and 209	Assaulting the complainant resulting in injuries to areas that would not be visible including bruises to her breasts, legs, shoulders and a bite mark to her arm.
4 December 2021	Offences on indictment alleged to have occurred: one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT); and one count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT). December 2021
10 December 2021	Complainant took part in AVL meeting with police
25 January 2022	Complainant participated in EICI interview

Conclusion

59․ Having considered the relevant law, the specific facts of this case, the timeline set out above and the submissions of both parties, I have reached the conclusion that Incident 1 and Incident 5 are admissible as relationship evidence for reasons set out below.

60․ On the other hand, I have reached the conclusion that Incidents 2, 3, 4 and 6 should not be admitted as relationship evidence.

61․ I have reached these conclusions for the following reasons.

Incidents 3 and 4

62․ The drafting of s 74A is clearly broadly cast. Thus, Incidents 3 and 4 concerning the locking in the room and the controlling of eating could be said to be relevant in the sense outlined in s 74A(1) set out earlier at [52]. The Evidence Act defines relevance in s 55 and relatedly refers to admissibility in s 56 as follows:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(4) In particular, evidence is not taken to be irrelevant only because it relates only to—

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(5) Evidence that is not relevant in the proceeding is not admissible.

(emphasis added)

63․ I am prepared to accept for the purposes of determining the question before me concerning Incidents 3 and 4, that the evidence is relevant in a broad sense. Nevertheless, the determination of admissibility cannot end there. I must consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice: s 137 Evidence Act.

64․ As referred to earlier in paragraphs [57] and [58], a judge must be astute to ensure a fair trial for every accused that comes before the courts. Therefore, a line must be drawn on the forensic continuum of relationship evidence in this case, to ensure that the complainant’s history of the relationship is properly confined to what is sufficient for the jury to understand, in proper context, the acts alleged on the indictment. The acts alleged on the indictment involve sexual allegations and a lack of consent. Therefore, in my view the line should be drawn to exclude Incidents 3 and 4, as the probative value of Incidents 3 and 4 is outweighed by the danger of unfair prejudice. Such evidence is apt to distract the jury from their primary task concerning the two alleged counts on the indictment.

Incidents 2 and 6

65․ Careful analysis of the evidence sought to be admitted, is required on the specific facts of each case and the issues in the trial itself: MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 (MM v The Queen). Concerning Incidents 2 and 6, the bald assertion that evidence is stated to be relationship or context evidence is, of itself, insufficient for a court to conclude that the evidence is relationship or context evidence. It is pertinent to note that where there is a difficulty in demonstrating a non-tendency purpose, there is a risk that a jury may use the evidence as tendency evidence: see L’Estrange per McCallum J (as her Honour then was), McClellan CJ at CL and Hulme J, agreeing.

66․ It is important to underline that relationship or context evidence should be as precisely defined as possible as to time, place and character: R v Cornelissen; R v Sutton [2004] NSWCCA 449 at [72]; R v Rajakaruna [2004] VSCA 114; 8 VR 340 at [179]–[180]; Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 at [80].

67․ Regrettably, concerning Incidents 2 and 6 this is not the case, as is demonstrated below; the evidence is of a very general nature, tending towards general, unspecified, tendency evidence.

Incident 2:
Q/A 29
“… him by telling me, you know, that it’s my job to fulfil his needs and it’s my job to fulfil his pleasures, and that that’s what I’m there for, and that, you know, if I didn’t give it to him, that he’d go out and find it elsewhere. And a lot of the time when I would say no, he would become very abusive and manipulative, and just go on about that shit…”
Q/A 90-91
“… And, like, yeah, he was just
always very, like – um, I don’t know what the word is. Like, he’s a very big sex deviant. I think that’s the word. Um - - -

Q91. Why do you say that?
A Because it’s all he ever wanted. And if he didn’t get it, then I would get bashed.”
Incident 6:
Q/A 75
“… Only lived there right up until – so I – so when he first – so he would bash me, like, a lot in [accused mother]’s house…”
Q/A 102
“… I was constantly covered in bruises. Like, my whole boobs were always, like, blue and black. And, like, all my legs – like, he would always do it in places where no-one would see. He’d do it on my shoulders. Like, I’ve got a bite mark on my arm from him and, like, you can see where the – he’s got his extra molar. And, yeah, like, it’s just really frustrating for me, because I didn’t have any evidence of him hitting me and stuff. But, actually, when we were living at [accused mother]’s, there was always – like, police don’t go to [accused mother]’s house anymore because she would call the police so many times and there was that many, like, reports of screaming matches in that house from them. Like, from him bashing me and shit. And, like, every time they’d come, [accused mother] and [accused] would be like, “Oh, everything’s fine,” and make me say that everything’s fine as well. And, um, yeah, I think (audio interference) but I was just always too scared.”
Q/A 209
“… Which was obviously a very, um, continuous behaviour pattern of his that he would do every time. After he would hit me he would always hug me straight after…”

Conclusion concerning Incidents 2, 3, 4 and 6

68․ In my view the probative value of evidence of Incidents 2, 3, 4 and 6 is outweighed by the danger of unfair prejudice. As discussed above, the evidence in this case concerning these Incidents is liable to be misused by the jury. This is through diverting the jury from the primary task concerning the two counts on the indictment and the danger of improper tendency reasoning: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [17],R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [73],Decision Restricted [2024] ACTSC 35 (Decision Restricted (No 4)) at [39] and Mastalerz at [42]. I note the relevant considerations are usefully summarised by Baker J in Decision Restricted (No 4) at [39].

Incidents 1 and 5

69․ In my view Incident 1, with reference to Q/A 75 (also referred to as bullet point 3, paragraph 1 of the Prosecution Case Statement), a proven matter, is relevant to the question of acquiescence or submission; that is, relevant to the complainant’s response to the sexual intercourse as alleged on the indictment. As to the specific evidence sought to be admitted, it is clear that Q/A 75 is directly relevant and probative. On the other hand, Q/A 83, Q/A 85 and Q/A 100 are not directly relevant as such. Q/A 100 goes to the thinking of the hospital staff. Q/A 83 and Q/A 85 raise the danger of unfair prejudice, in the sense of, introducing the spectre of a trial within a trial of alleged actions giving rise to the possibility of perverting the course of justice.

70․ Incident 5 is relevant and probative, in the context of the relationship, to the complainant’s lack of disclosure of the alleged sexual offending to the accused’s mother and police on the day of the alleged incident. Thus, together, Incidents 1 and 5 are relevant to “the believability of the complainant’s response rather than with the tendency of the accused:” see Mastalerz at [50]. That is, probative as to the issue of lack of disclosure and the complainant’s perceptions concerning the issue of acquiescence or submission. Thus, Incidents 1 and 5 are relevant and probative of the complainant’s response during and after the alleged offences.

71․ In my view, regarding Incidents 1 and 5, the probative value is not outweighed by the danger of unfair prejudice. Importantly on this question, in my view, suitable directions may be drafted and given by the trial judge to the jury, as to the specific and limited purpose for which the evidence is put before the jury as discussed above, in the context of the purpose of the evidence.

72․ As noted in Mastalerz at [57] the question of suitable directions should be considered on the question of admissibility, and in this case I have considered the viability of suitable directions in considering the s 137 question of probative value and the danger of unfair prejudice. I have taken into account in considering s 137, that jury directions are not an “unfailing panacea for all forms of prejudice”: see Taylor v The Queen [2020] NSWCCA 355 at [122]; Allen v The Queen [2020] NSWCCA 173 at [111] and [160]. Nevertheless, I have also taken into account that juries are to be properly directed as to the use of such evidence: see R v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [90]. In this case I have come to the conclusion, as discussed above, that suitable directions may be given by the trial judge as to the limited purpose for which the evidence is to be put before the jury.

73․ Therefore, whether the complainant’s response during and after the alleged offences was implausible falls to be considered by the jury, both in the proper context of admissible evidence and as properly directed by the trial judge: see Decision Restricted (No 5) at [21] – [22].

74․ The duty of judges to ensure a fair trial is at the core of criminal justice and criminal trials in Australia. I have concluded that the relationship evidence of Incidents 1 and 5 may be considered by the jury, so that there is appropriate relationship evidence and appropriate relationship evidence only, before the jury: see MM v The Queen at [113] per Jagot J. For a fair trial, the proper consideration by the jury of the counts on the indictment should not be undermined by the danger of unfair prejudice, and therefore Incidents 2, 3, 4 and 6 are not admissible.

Orders

75․ Therefore the following orders were made on 2 September 2024:

(1) Evidence of Incident 1 (bullet point 3, paragraph 1 of the prosecution case statement) and Incident 5 (bullet point 4, paragraph 1 of the prosecution case statement) is admissible as relationship or context evidence.

(2) Evidence of Incident 2 (bullet point 6, paragraph 1 of the prosecution case statement), Incident 3 (bullet point 1, paragraph 1 of the prosecution case statement), Incident 4 (bullet point 2, paragraph 1 of the prosecution case statement) and Incident 6 (bullet point 5, paragraph 1 of the prosecution case statement) is not admissible as relationship or context evidence.

I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date: 1 October 2024