R v KBB

The appellant raised two grounds of appeal against his conviction of strangulation (a domestic violence offence). Only the second ground is the subject of this note. The appellant argued the pre-trial ruling to admit evidence of past domestic violence acts by him against the complainant was erroneous at law. The Court of Appeal dismissed that ground, finding the pre-trial judge had not erred. As the High Court made clear in Roach v The Queen, the rule in Pfennig does not apply to evidence deemed relevant under ss 130 and 132B Evidence Act 1977. Such relevant evidence will only be inadmissible pursuant to common law exceptions, such as the unfairness discretion of s 130. The evidence need not also satisfy the common law test for propensity evidence.

McMurdo and Flanagan JJA and Freeburn J

23 December 2022

Background

The appellant was convicted by a jury of strangulation in a domestic setting of his then partner (‘the complainant’). [1]. He was acquitted of two other domestic violence offences. [1].

The appellant and complainant had argued, with the appellant demanding access to her phone and alleging she had been unfaithful to him. [4]-[5]. The complainant slapped the appellant’s face. [6]. He responded by grabbing the complainant by the throat and hair, putting her in a headlock such that she couldn’t breathe. [6]. The appellant threw her onto the bed and covered her mouth and nose with his hand. [7]. The appellant desisted, but the argument continued as the complainant tried to leave. [8]. He again grabbed her throat and threw his drink in her face before hitting her on the head with the glass – causing her to become unconscious. [8]. When she awoke she called her mother, who assisted her to leave. [8], [16].

Amongst his grounds of appeal, the appellant argued a pre-trial ruling to admit evidence of prior domestic violence by the appellant was erroneous. [2], [28]. The pre-trial judge had considered the evidence relevant to the appellant’s propensity to commit domestic violence in the relationship, including choking and demanding to see the complainant’s phone. [30]. The evidence was therefore admitted pursuant to s 132B Evidence Act 1977. [31]. That provision sets out that, in respect of prescribed offences:

“Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.”

Consequently, the evidence of prior domestic violence was led during the trial. The complainant gave evidence of four uncharged acts of domestic violence which occurred around 6 months prior. [10]. In the first incident, the complainant alleged he had bitten her shoulder, punched her jaw and later strangled her after she refused his demands to inspect her phone. [10].

The second incident, some weeks later, consisted of the appellant accusing the complainant of sleeping with another man and demanding to see her phone. [11]. The complainant complied, but the appellant accused her of deleting material from her phone, which he smashed, and threw a plate at her face. [11].

During the third incident, the appellant smashed the complainant’s phone while intoxicated and they later fought after he showed her a video of himself having sex with another woman. [12]. The appellant strangled the complainant when she became angry at the footage. [12].

Finally, during the fourth incident, the appellant accused the complainant of being pregnant to someone else before throwing a sandwich at her and strangling her. [13].

The appellant argues the admission of that evidence was erroneous.

Decision of the Court of Appeal

The Court of Appeal dismissed the appeal against conviction. [39]-[41].

The Court referred to Roach v The Queen (2011) 242 CLR 610, in which the High Court held “the rule in Pfennig v the Queen could not be imported into ss 130 and 132B, and that the rule had no application to evidence which satisfied the test of relevance.” [33]. The relevance of prior domestic violence may be relevant for a myriad of other reasons, such as the accused’s state of mind, evaluation of the complainant’s evidence, or possible defences. [33].

The Court of Appeal emphasised Roach is “binding authority for the displacement of ”the common law rule of admissibility by sections 130 and 132B. [36]. The Court of Appeal explained:

“the common law rule which determines the admissibility of similar fact evidence is one which, subject to certain exceptions, requires the exclusion of evidence not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused, or in other words, that it is likely to be misused by a jury.” [36].

Once the evidence is found to be relevant, it is admissible (per s 132B), unless the discretion should be exercised to exclude it on the ground of unfairness per se 130. [36]. Ordinarily, the question of unfairness is resolved by reference to the common law – that is, whether the potential prejudice outweighed the probative value of the evidence. [36].

Here, as there was no argument for the exclusion of evidence under s 130, the pre-trial judge’s ruling was not in error. [37]. Similarly, there was no argument on appeal that counsel having not sought exclusion of the evidence under s 130 and the subsequent admission of the evidence resulted in a miscarriage of justice. [37].

The evidence need not satisfy the common law test for admissibility as propensity evidence. [38].

A Hughes of Counsel