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This matter principally concerned the direction given to a jury at the summing up of a criminal trial as to the use of the relationship evidence admissible under s 103CB of the Evidence Act 1977. During the summing up to the jury, notwithstanding the Crown confirming at the commencement of the trial that the relationship evidence was being relied upon to give context to the events that constituted the charges, the trial judge directed the jury they could rely upon the uncharged acts of violence to establish propensity of the appellant. In a unanimous decision, Mullins P, with whom Bond JA and Crow J agreed, considered the nature of the direction to the jury in the context of the High Court decision of Roach and ultimately dismissed the appeal.
Mullins P and Bond JA and Crow J
21 November 2023
On 11 September 2023, the appellant was convicted after trial in the District Court before a jury of one count of choking in a domestic setting (Count 2) and one count of common assault (Count 3). Both counts 2 and 3 were domestic violence offences. The appellant was acquitted of one count of assault occasioning bodily harm (Count 1) and one count of choking in a domestic setting (Count 5). It was the same complainant for counts 1-3 and 5.
Ultimately, five incidents of abuse that were not charged on the indictment were relied on by the prosecutor as evidence of the relationship between the complainant and the appellant. These incidents were summarized from the complainant’s evidence as follows:
1.In mid-2016, the complainant shook the appellant awake and asked him to feed their baby which the appellant refused to do as he had football the next day. The complainant pulled the pillow from under the appellant’s head and the appellant then grabbed her by the shoulders and shoved her back and head into the mattress. This was referred to as the bed incident. .
2.In around June 2018 following an argument in which the appellant had told the complainant she was stacking the firewood incorrectly, the complainant stormed back into the house and, when she saw the appellant’s phone, she threw it into a paddock. The appellant grabbed the complainant and pushed her face into the sheep manure and told her to never throw or touch his phone again. This was referred to as the firewood incident. .
3.In August 2018, the appellant and the complainant were having an argument, when the appellant grabbed the complainant by the throat and banged her head against the wall. This was referred to as the grabbing the throat incident. .
4.There were occasions in 2019 in which the appellant urinated on the complainant’s legs. One of these occasions occurred when the complainant was showering and she could not get away. These were referred to as the urination incidents. .
5.In January 2020, the appellant pushed the complainant in the upper chest area, grabbed her by the sleeve of her dress and pulled her out of the house, locking her and the children outside. This was referred to as the removal from the house incident. .
After the opening, the trial judge inquired as to the purpose for which the relationship evidence was being tendered. The prosecutor confirmed that it was being tendered to give context to the events that constituted the charges as opposed to being tendered to prove a particular propensity. .
Then, at the conclusion of the prosecution case and in the absence of the jury, the trial judge raised the issue of the direction on the relationship evidence, referred to the decision of the High Court in Roach v The Queen (2011) 242 CLR 610 and the judgment of Holmes JA (with whom Keane JA and A Lyons J agreed) in R v Roach (2009) A Crim R 485, and suggested that submissions were required from both counsel on the proposition that where there is evidence of actual domestic violence, it almost always has a potential use to prove a propensity. The prosecutor conceded that some modified direction as to propensity might be required. However, at that time, defence counsel indicated they did not have a final position on a propensity direction. .
The appellant gave evidence on the four uncharged incidents and denied any acts of violence including grabbing the complainant by the throat. . Although he conceded that an argument took place during the woodchopping incident. The appellant also gave evidence of incidents during which he said that the complainant had pushed him or punched him or threw things at him. .
Before summing up, the trial judge read to counsel his proposed direction to cover the evidence that each of the complainant and the appellant was violent towards the other on occasions. . The appellant’s counsel specifically requested the trial judge when giving the direction to cover the categories of the evidence to which it applied without necessarily going into the details of that evidence. . In anticipation of the trial judge’s direction on the relationship evidence, the appellant’s trial counsel addressed the jury on propensity evidence specifically in relation to the allegations of choking, both charged and uncharged and reiterated to them that the trial judge would instruct them what they could and could not do with the propensity reasoning. .
The appellant appealed against his conviction on two grounds:
1.A miscarriage of justice occurred because the learned trial judge wrongly directed the jury that uncharged acts of domestic violence could be used as propensity evidence in proof of the appellant’s guilt of the charged offences where the Crown disavowed reliance on it for that purpose at the commencement of the trial;
2.Even if the evidence of uncharged acts could properly have been used as propensity evidence in proof of the appellant’s guilt of the charged offences, a miscarriage of justice occurred because the jury were wrongly and inadequately, directed about the way in which it might be used.
The impugned direction
Mullins P said that the impugned direction must be considered in the context of the whole summing up. The jury were instructed that it was for them to decide whether they accepted or rejected a witness’ evidence and given the usual general directions on factors that may assist in the assessment of a witness’ evidence. . The relevant parts of the summing up were as follows:
… but there are some specific directions that I need to give you as it relates to [the complainant’s] allegations that [the appellant] was violent toward her on other occasions. There is limited use you might make of that.
… The evidence of the other acts of violence alleged by [the complainant] has limited relevance. First, it might give context to the allegations that you are required to decide. That is, without hearing the full history or the relationship, the allegations you are to consider might seem to have occurred out of the blue, so to speak. Secondly, the Prosecution relied upon this evidence to show that [the appellant] has a propensity or tendency to commit acts of violence against [the complainant] in heated arguments or conflicts.
… If you are satisfied these other acts of violence alleged by [the complainant] occurred, or if they occurred but they do not show [the appellant] had a propensity or a tendency to commit an offence of the type alleged, you cannot use that evidence to assess whether [the appellant] is guilty of any of the four allegations you are to decide.
No redirection was sought by the appellant’s trial counsel in respect of the impugned direction. .
Mullins P found that notwithstanding the trial Prosecutor indicating at the commencement of the trial, they did not rely upon the relationship evidence for propensity by the conclusion of the trial the Prosecutor was relying on the relationship evidence for both context and propensity and the appellant’s trial counsel had conceded appropriately that a direction of the type that the trial judge proposed should be given to the jury. . Her Honour also noted the prosecution was not relying upon the propensity evidence to prove that the appellant was guilty of the charged offences in accordance with the rule in Pfennig v The Queen (1995) 182 CLR 461 at 481–483. .
The appellant was therefore unsuccessful on ground 1 in the terms in which it was framed. .
The focus of the submissions on the appeal was on ground 2 and whether the impugned direction was wrong or inadequate in the circumstances of the trial. . The impugned direction was based on the directions found in Ch 70 of the Supreme and District Courts Criminal Directions Benchbook which is based on Holmes JA’s reasons in Roach. As Mullins P explained, the purpose of Holmes’ JA’s observations in Roach was to “point out (at ) that, apart from giving context, evidence of that type “lay in demonstrating that the accused had a tendency or propensity to assault the complainant which was relevant in making it more likely that the charged assault had occurred”. .
The appellant argued that it was insufficient for the jury to be informed that the prosecution also relied on the evidence of the uncharged acts of violence to show the appellant had “a propensity or tendency to commit acts of violence against [the complainant] in heated arguments or conflicts” without explaining to the jury how they could use that propensity or tendency in deciding whether the appellant was guilty of the counts on the indictment. . Her Honour noted that where there are multiple uncharged acts of violence relied on to establish propensity of a defendant to commit offences of different types, a trial judge would usually assist the jury by identifying which of the uncharged acts, if accepted by the jury, would relate to which of the offences. Whilst there was no specific detail of the uncharged acts in relation to the respective counts, that occurred at the request of the appellant’s trial counsel for the trial judge to avoid detailing the evidence of the uncharged acts. .
Mullins P noted that an appropriate direction as to propensity and context was as follows:
(a)The evidence of the uncharged acts of violence had limited relevance to the jury’s task of deciding whether the prosecution had proved beyond reasonable doubt each of the four counts;
(b)The uncharged acts were relied on by the prosecution to give context to the incidents which were the subject of the four counts that the jury had to decide as, without hearing the full history of the relationship, the allegations which were the subject of the four counts might seem to have occurred “out of the blue”;
(c)The uncharged acts were also relied on by the prosecution to show that the appellant had a propensity or a tendency to commit acts of violence against the complainant in heated arguments or conflicts;
(d)It was for the jury to decide whether they were satisfied that any of the uncharged acts of violence occurred and, if it did, what the jury made of it, ie whether the jury relied on it solely to understand the context for the complainant’s evidence of the incident the subject of the relevant count or whether the jury also relied on it solely to understand the context for the complainant’s evidence of the incident the subject of the relevant count or whether the jury also relied on it for showing the propensity of the appellant to commit acts of violence against the complainant when they were having a heated argument;
(e)If the jury rejected the evidence of any of the uncharged acts, the jury must put that evidence aside;
(f)If the jury did not consider that any one or more of the uncharged acts of violence demonstrated the propensity of the appellant to commit acts of violence against the complainant when they were having a heated argument but merely showed him to be a poorly behaved partner or of poor character, that was an irrelevant consideration to the jury’s task and the jury must put the evidence of the uncharged act or acts aside;
(g)If the jury accepted that any of the uncharged acts showed the appellant’s propensity for violence against the complainant when they were arguing, the jury could use that propensity in assessing the complainant’s evidence on the relevant count, as that propensity for violence against the complainant may have made it more likely that the complainant’s evidence on that count was credible and reliable;
(h)Even if the jury were satisfied of that propensity of the appellant, the jury could not reach a verdict of guilty on the relevant count unless they were satisfied that the complainant’s evidence proved the elements of the relevant count beyond reasonable doubt.
In considering the direction that her Honour found that all the requirements for the direction dealing with relationship evidence as to context and propensity to commit acts of domestic violence against a domestic partner were expressly covered. . In relation to ground 2, Mullins P found that the impugned direction in the context of the whole summing up was neither wrong nor inadequate in the circumstances of the trial. .
In the result, Mullins P, with whom Bond JA and Crow J agreed, dismissed the appeal. , , .
K Mythen of Counsel