Relationship, context, tendency and coincidence evidence

Some cases that have considered relationship, context, tendency and coincidence evidence in the context of domestic and family violence include:

  • Queen v Pamkal [2019] NTSC 80 (15 October 2019) – Northern Territory Supreme Court
    Evidence’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Sexual and reproductive violence’ – ‘Tendency purposes

    Relationship evidence:

    "[4] Defence counsel has conceded that the evidence of past assaults is relevant for this "relationship" or "context" purpose but contends that it should be excluded under Evidence (National Uniform Legislation) Act 2011 (NT) ("UEA") s 137 because its probative value is outweighed by the danger of unfair prejudice to the defendant. The unfair prejudice identified is that the jury may be emotionally repelled by the horrific details of the violence the accused committed against the complainant in the past and so be diverted from a rational consideration of the issues in the case. At the very least, counsel submitted, if evidence of past violent conduct by the accused against the complainant is let in, it should be by way of agreed facts that simply refer to past assaults and do not reveal the details. I disagree with that. That would not be to explain the nature of the relationship but to conceal it. He did what he did. It was the things he did to her that caused her to fear the consequences of displeasing him by refusing his demand for sex.

    [5] Nor do I agree that the evidence should be excluded under UEA s 137. Its probative value – in conjunction with other evidence in the case (ie her evidence that he demanded sex and threatened her if she did not comply and her evidence in the interview with police that ever since she met him he threatened her, "Oh you gotta do this, do that … otherwise I’ll get bashed") is high. It explains something that may otherwise be inexplicable – namely why she would physically comply with his demands even though she told him she didn’t want to have sex.

    [6] In my view it is also high on the issue of whether he knew she was not consenting or was reckless about that fact. Given his history of controlling violence towards her he would have been aware that she would be likely to give in to his threats to avoid being bashed.

    [7] The jury will be warned against rank propensity reasoning and I consider the risk that they will engage in it is not high. As to the risk that they will be emotionally repelled by the accused and diverted from their task of rationally considering the facts, I agree that there is such a risk. The jury will also be warned against that sort of approach both in the opening (before they hear this evidence) and in the summing up (after they have heard it) and in my experience jurors tend to take such warnings seriously. I agree that there is no guarantee that such a warning will be 100% effective with all jurors. However, I do not think that the risk that the jurors may misuse the evidence in this way outweighs the probative value of the evidence which I consider to be high.

    [8] The evidence of prior assaults (and the assault the subject of count 2) will be admitted as relationship evidence."

    Tendency evidence:

    " [18] The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. In my view the evidence does support proof of a tendency in the accused to engage in violent behaviour towards his domestic partner, especially after consuming alcohol, for the purpose of controlling her behaviour and/or punishing her for perceived failings – in fact for displeasing him.

    [19] The next question for consideration is whether, if the jury accepts that the accused had this tendency (or tendencies) that "strongly supports proof of a fact that makes up the offence charged". In my view it does, for the same reason that its probative value as relationship evidence is high. It explains what might otherwise be inexplicable and strongly supports proof of a fact in issue – namely whether the complainant consented to have sex with the accused and also, to perhaps a slightly lesser extent, proof that he knew of or was reckless as to her lack of consent.

    [20] I am therefore satisfied that the threshold test in UEA s 97 has been met. The evidence sought to be adduced as tendency evidence does in conjunction with other evidence which will be adduced have significant probative value."

    "[24] In this case, the potential prejudice identified by the defence is a possibility that the jury may engage in rank propensity reasoning and the possibility that the jury may be so emotionally repelled by the accused’s conduct that they are diverted from their function of rationally considering the evidence against him and become motivated by a desire to punish him for his past conduct.

    [25] While I concede that there is a potential for the jury to be misled in both of these respects, I consider that this can largely be mitigated by appropriate warnings. Further, I consider the probative value of the evidence to be high and that its probative value does substantially outweigh the risk of prejudice. The use of this kind of tendency evidence of course involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[6]

    The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.

    [26] Defence counsel submitted, relying on McPhillamy v The Queen,[7] that the tendency sought to be proved is not specific and that the more general the tendency, the greater should be the caution with which it is approached. The more general the alleged tendency, the more its probative value is decreased and its potential prejudice increased. When the tendency is nothing more than a tendency to engage in violence, the only use that could be made of the evidence is to all intents and purposes rank tendency reasoning.

    [27] While there is force on that submission in general terms, it is necessary in each case to look at the precise tendency alleged to be established by the evidence and to assess what probative value that has on the particular issues in the case. For the reasons outlined above, in my view, this particular evidence strongly supports proof of the alleged tendency and the existence of the alleged tendency is highly probative of the issue of whether the complainant consented to sexual intercourse and whether the accused knew of or was reckless as to that lack of consent."

  • Roach v The Queen [2011] HCA 12 (4 May 2011) – High Court of Australia (appeal from Queensland Court of Appeal)
    Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Probative value’ – ‘Propensity evidence’ – ‘Relationship evidence

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against conviction.

    Facts: Mr Roach was convicted of assault occasioning bodily harm of his female partner. At trial, Howell DCJ admitted evidence of previous (uncharged) assaults that Mr Roach committed on the complainant during their relationship. The relevant Queensland provision—s 132B of the Evidence Act 1977—applies to proceedings for assault occasioning bodily harm and provides that ‘[r]elevant 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’. However, s 130 of the Evidence Act 1977 gives the judge power to exclude otherwise admissible evidence if it is deemed unfair to the accused to admit.

    Issue/s: Whether the trial judge should have applied the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and whether ‘viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence’. Only if there is no reasonable view, can the evidence be admissible because its probative value outweighs its prejudicial effect on the accused.

    The appellant argued that in considering whether to admit evidence under s 132B, the trial judge ought not to admit that evidence if there was a reasonable view of that evidence consistent with innocence (‘the rule in Pfennig’). The appellant argued that the rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. (see Roach v The Queen [2010] HCATrans288 (5 November 2010)).

    Decision and Reasoning: The appeal was dismissed. French CJ, Hayne, Crennan and Kiefel JJ of the High Court held firstly that s 132B has a ‘potentially wide operation’. Section 132B contemplates evidence of other acts of domestic violence throughout the relationship being admitted. The section could also be used to admit similar fact evidence to prove the accused’s propensity to commit similar crimes. The Court found it could also be used to admit other types of evidence including evidence of a person’s state of mind, evidence of the circumstances of the crime or to provide context to the history the relationship. It could also be used as evidence in a provocation or self-defence case, or where the offender is a victim of domestic violence. (See at [30]-[31]). The Court then held that the Pfennig test has no application to the common law residual discretion enshrined in s 130. As such, the test of admissibility under s 132B is whether the evidence is relevant, which is subject to the exercise of the discretion preserved in s 130.

    The purpose of admitting the evidence here was not to show a propensity of the accused (re the rule in Pfennig); rather, the evidence:

    ‘was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ at [42].

    The High Court noted the permissible ambit of ‘relationship evidence’, and the need for clear directions for juries about the use of such evidence and the purpose for which it is tendered:

    [45] In the present case 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. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant's conduct in relation to the alleged offence intelligible and not out of the blue.

    [47] The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.

    [48] The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant's evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led "for a very specific purpose" and that they must be "very, very careful in relation to the limited use that [they] may make of such evidence." He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but "to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006."
  • Norman v The Queen [2012] NSWCCA 230 (9 November 2012) – New South Wales Court of Criminal Appeal
    Evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Rape x 3.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: During the course of the complainant’s 13 year marriage to the appellant, the complainant and the appellant had anal intercourse five times but only twice with her consent. At trial, the Crown sought to tender evidence of non-sexual domestic violence (see [22]). They argued that the evidence was not being admitted as evidence indicating a propensity on the part of the appellant which rendered it more likely that he had committed the crimes with which he was charged (therefore ss 97 and 101 of the Evidence Act and the test in Pfennig v R [1995] HCA 7; 182 CLR 461 did not apply). The trial judge accepted this argument and ruled that evidence of non-sexual domestic violence could be admitted for the purpose of showing the relationship between the appellant and the complainant. The appellant was found guilty.

    Issue/s: One of the grounds of appeal was that 'relationship' evidence should not have been admitted.

    Decision and Reasoning: The appeal was dismissed. MacFarlane J noted the relevant law, stating that: ‘As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9 at [146] - [149])’.

    Relationship evidence may be relevant if it assists in the evaluation of other evidence such as that of a complainant. His Honour continued at [26]: ‘In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context’.

    However, the Courts have emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG v R [2010] NSWCCA 173 at [36] - [37]) (at [29]).

    Here, MacFarlane J held that evidence of two isolated incidents of non-sexual domestic violence was irrelevant and should have been excluded. While the Crown submitted that the evidence was relevant to demonstrate ‘the nature of the relationship,’ MacFarlane J noted:

    ‘[C]onsistently with the approach taken by this Court in Qualtieri and DJV, it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed’.

    The evidence was also not relevant to demonstrate why the alleged sexual assaults were not reported earlier, and nor could it be said that the evidence would have assisted the jury, in any permissible way, in evaluating the complainant’s evidence (see [32]-[34]).

    Therefore, His Honour concluded at [35]-[36]:

    ‘[E]vidence of the two isolated incidents of non-sexual domestic violence was not necessary to place the sexual assaults within a meaningful context… [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent. Whilst the trial judge directed the jury not to reason in that way, there was unfairness to the appellant in the evidence being before the jury when it was not relevant on any basis’.

    Despite this, on the facts, there was no substantial miscarriage of justice. The Crown case against the appellant was so overwhelming there was no significant possibility that a jury would have acquitted the appellant (See [38]).
  • Pasoski v The Queen [2014] NSWCCA 309 (15 December 2014) – New South Wales Court of Criminal Appeal
    Admissibility’ – ‘Assault occasioning actual bodily harm’ – ‘Context evidence’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Sexual assault’ – ‘Tendency evidence

    Charges: Assault occasioning bodily harm x 2, sexual assault x 5.

    Appeal type: Application for leave to appeal against conviction and sentence.

    Facts: The applicant and complainant lived together with their daughters and were in a relationship since 2003. In November 2010, the applicant physically assaulted the complainant in their home on two occasions, by kicking her in the legs, and slapping her face, causing her to fall (see [13]). The sexual assault charges were alleged to have occurred on one night, where the applicant had vaginal penile intercourse five times without her consent (see [13]).

    At a voir dire during trial, the applicant’s trial counsel successfully objected to the admission of other evidence of previous penile vaginal penetration without consent (see [27]). That evidence was not admitted because the trial judge found that the ‘evidence is more in the nature of tendency evidence than contextual evidence’ (see [31]). However, evidence of the applicant’s controlling behaviour was admitted, and was relied upon at trial (see [12]).

    In summing up, the trial judge gave directions as to the use of the evidence of controlling behaviour, stating that ‘the Crown relies upon this evidence only for one purpose… to put the complainant's allegations concerning the offences in November 2010 into a realistic context’ (see [42]). Her Honour also stated: ‘if that evidence was not there, you would be asking yourselves, well, why would the accused throw his weight around in this horrible manner with the complainant completely out of the blue, when they had been in an apparently normal relationship for the previous six years?’ (see [42]).

    Issues: Two of the grounds of appeal concerned ‘context evidence’ (see [6], [44]):

    1. ‘A miscarriage of justice was occasioned by the admission of the so-called context evidence’ because it was not relevant and was prejudicial, and
    2. The trial judge erred by failing to identify the precise issues to which the evidence was directed.

    Decision and Reasoning: Leave to appeal was refused on both the ‘context evidence’ grounds.

    In relation to the first ground, Meagher JA referred to the use of context evidence as being admissible if it is used to ‘remove implausibility that might attach to a complainant’s account of what otherwise would be seen as isolated incidents’ (see [24]). His Honour referred to HML v The Queen [2008] HCA 16; 235 CLR 334 [6] to observe that ‘by doing so, it bears upon the assessment of the probability of the existence of facts directly in issue (Evidence Act 1995 (NSW), s 55) … Similar observations were made in Roach v The Queen [2011] HCA 12; 242 CLR 610 at [42] and BBH v The Queen [2012] HCA 9; 245 CLR 499 at [146]-[150].’

    Meagher JA held that the evidence was properly admitted (see [45]). His Honour found that from the conduct of the trial, ‘it was apparent that the Crown was relying upon it only as showing that the relationship was an unhappy one from the complainant's perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question’ (see [33]). Furthermore, the fact that trial counsel had not objected to the evidence at the voir dire, despite having objected to the evidence of the other sexual assaults on the grounds that it might invite propensity reasoning, indicated that ‘the parties and the Court were conscious that evidence tendered to explain the context in which the alleged offences occurred might, depending on its content, be relied on or used for a tendency purpose’ (see [30]).

    In relation to the second ground, regarding the directions given by the trial judge to the jury, Meagher JA held that the directions did not give rise to a real risk that the jury might employ propensity reasoning, and thus did not occasion a miscarriage of justice (see [49]). His Honour found that the direction regarding the applicant ‘throwing his weight around’ did verge on an invitation to the jury to employ propensity reasoning (see [47]). However, his Honour held that, assessed in context, the other directions made clear to the jury that the evidence of controlling behaviour was not being relied upon to suggest a ‘propensity of the applicant physically or sexually to impose his will on the complainant’ (see [48]).

    The other issues concerned two failures of the trial judge. First, the trial judge failed to properly comply with s 55F(2)(b) of the Jury Act 1977 (NSW), and therefore two counts of sexual assault were quashed (see [8]-[11]). Second, the trial judge erred in taking into account as an aggravating factor in sentencing that the offences were committed in the complainant's home: EK v R [2010] NSWCCA 199; 79 NSWLR 740 at [79] (see [54]). Accordingly, the aggregate sentence of imprisonment was reduced from five years and six months with a non-parole period of two years and nine months to four years and eleven months with a non-parole period of two years and five and a half months.
  • R v Grant [2016] NTSC 54 (31 October 2016) – Northern Territory Supreme Court
    Relationship evidence’ – ‘Tendency evidence’ – ‘Unlawfully causing harm’ – ‘Unlawfully causing serious harm

    Charge/s: Unlawfully causing serious harm or unlawfully causing harm.

    Hearing: Voir dire hearing.

    Facts: The accused was charged with the offence of unlawfully causing serious harm to his female partner, the complainant, or, in the alternative, unlawfully causing harm to the complainant. The Crown sought the admission of tendency evidence related to the following fact in issue: whether the accused applied physical violence to the complainant in the early morning of 26 January 2016 and/or caused injuries to the complainant. The tendency sought to be proved was the tendency of the accused:

    1. To act in a particular way, namely engaging in verbal abuse and physically violent behaviour towards the complainant; and/or
    2. To have a particular state of mind, namely a violent and controlling disposition towards the complainant which he sometimes acted upon when he had been consuming alcohol.

    If the evidence (detailed at [5]) was not admissible as tendency evidence, the Crown sought to have it admitted as relationship evidence.

    Decision and Reasoning: The rulings on the voir dire hearing were –

    1. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible in the trial as tendency evidence (see [61]-[72]).

      In order to be admitted for tendency purposes, the evidence had to satisfy the requirements in ss 97 and 101 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). Two questions arose in determining the admissibility of the evidence: (1) did the evidence have significant probative value? The relevant test is whether ‘the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in question’: CEG v The Queen [2012] VSCA 55 (see [30]-[60]); (2) did the probative value of that evidence substantially outweigh any prejudicial effect it may have on the accused? As per the Court, ‘[t]he test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of unfair prejudice by reason of the admission of the evidence’ R v Lisoff [1999] NSWCCA 364.

    2. Evidence of incidents on 25 May 2013, 7-8 June 2013, 12 July 2013, 10 December 2013 and 18 June 2015 were admissible as ‘relationship’ or ‘context evidence’ (see [73]-[82]).

      Evidence may also be admitted for non-tendency purposes. One example of non-tendency purpose is ‘relationship’ or ‘context’ evidence that is not relied on for a tendency inference. The High Court in HML v The Queen is authority for the proposition that evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including the following purposes (see [75]):

      1. as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]–[156]);
      2. as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged (at [425], [431]);
      3. to overcome a false impression that the event was an isolated one, that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence (at [500], [513]);
      4. to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and
      5. as negativing issues raised such as accident or mistake (at [430]).

      Although HML was a case involving sexual offences, relationship evidence may also be admissible in cases involving violence, including assault-type offences (see examples at [76]).

      The admissibility of relationship evidence is governed by the general test of relevance in s 55 of the ENULA and the directions and obligations contained in Part 3.11 (especially ss 135 and 137). The Crown contended that the evidence was relevant and admissible as relationship or context evidence because it was necessary to:

      1. Avoid the circumstances of the alleged offence appearing inexplicable or being misunderstood in isolation; see Roach v The Queen [2011] HCA 12 at [45]
      2. Negative the defence case of self-inflicted injury; R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 at [15], [22]-[45]; Bryant v The Queen [2011] NSWCCA 26 at [92]; McDonald v The Queen [2014] VSCA 80 at [28]- [29]
      3. Show the state of mind of the accused at the time of the alleged offence. R v Atroushi [2001] NSWCCA 406 at [33], [45], [47]; Boney v The Queen [2008] NSWCCA 165 at [29]
      The relationship evidence here was both relevant ([79]-[80]) and not excluded (its probative value was neither outweighed by the danger of unfair prejudice to the accused nor substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused) ([81]-[82]).
  • Tasmania v Finnegan (No 2) [2012] TASSC 1 (19 January 2012) – Tasmanian Supreme Court
    Admissibility’ – ‘Evidence - relationship’ – ‘Evidence - tendency’ – ‘Motive’ – ‘Physical violence and harm’ – ‘Probative value’ – ‘Unlawful wounding

    Charge: Unlawful wounding

    Proceeding: Ruling as to the admissibility of evidence

    Facts: The accused was charged with unlawfully wounding the complainant (his partner) by striking her to the face with a glass. He pleaded not guilty. The Crown sought to lead evidence from the complainant given on a voir dire about the accused’s conduct towards her on other occasions, both before and after the alleged wounding. The accused objected to the admission of some of the evidence ([6]).

    Issues: Whether some of the evidence given by the complainant should be ruled inadmissible on at least one of the following bases:

    1. Irrelevance;
    2. Failure to satisfy the common law rule established in Pfennig v R 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 that is consistent with innocence;
    3. The danger of unfair prejudice to the accused outweighing the probative value of the evidence: s 137 Evidence Act 2001 (Tas); or
    4. The probative value of the tendency evidence not substantially outweighing any prejudicial effect that it may have on the accused: s 101(2) Evidence Act 2001 (Tas)

    Decision and Reasoning: The appeal was dismissed. The evidence led from the complainant as to the conduct of the accused was admissible. It was relevant on a number of bases: as ‘relationship evidence’, enabling the jury to assess the evidence as to what occurred at the time of the alleged wounding; as evidence of motive (jealousy); as evidence explaining why the complainant asserted she was injured because of a fall and why there was delay in her reporting what occurred; and as tendency evidence, showing that the accused had a tendency to be jealous of anyone who had a friendship/relationship with the complainant and to be generally violent towards her ([11]-[15]).

    Further, the probative value of all the evidence under consideration substantially outweighed the prejudicial effect and danger of unfair prejudice to the accused. In this regard, Blow J noted at [30]-[31]:

    ‘In my view the danger of unfair prejudice to the accused is not great… [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.

    ‘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’.

    Here, there was nothing about the facts that made it one where s101(2) or s137 [Evidence Act 2001 (Tas)] required the Pfennig test to be applied (at [32]).

    Note: this decision has been overtaken by legislative changes effective 12 December 2017. See section 13B Family Violence Act 2004.

  • Benson v The Queen [2014] VSCA 51 (28 March 2014) – Victorian Court of Appeal
    Exposing children’ – ‘Miscarriage of justice’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Rape.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The male appellant and the female complainant had been in a relationship for 13 years. The complainant alleged that in April 2011 the appellant hit her after she refused to have sex with him. She described this as the ‘last straw’ and told the appellant she was leaving him. They remained living in the same house. One month later, the intoxicated appellant forced her into bed and penetrated her with his penis. Their son saw the incident and called the police.

    At trial, the Crown sought to admit evidence of physical assaults by the appellant against the complainant that occurred between 1999 and 2003 (none of these assaults happened after the complainant refused to have intercourse with the appellant). The Crown argued that this evidence explained the context in which the alleged rape occurred, and was relevant to whether the complainant had freely agreed to have intercourse with the appellant and whether the appellant was aware that the complainant was not consenting or might not be consenting on the night of the alleged offence. The trial judge took account of the highly prejudicial nature of the evidence but considered that it was both relevant to and probative of the facts in issue and should be admitted for the limited purpose described in her ruling (see [19]-[23]).

    Issue/s: The trial judge erred in admitting evidence of past conduct by the appellant because the evidence was not relevant.

    Decision and Reasoning: The appeal was allowed. Neave JA held (Bongiorno and Coghlan JJA agreeing) that the evidence was inadmissible. Bongiorno and Coghlan JJA also held that there was a miscarriage of justice (Neave JA in dissent). Neave JA first considered whether the ‘relationship evidence’ (evidence of physical assaults) was relevant. Her Honour stated generally at [29]:

    ‘Evidence of the relationship between an accused and the alleged victim of an offence may be relevant and admissible for the purpose of placing the event which is the subject matter of the offence in context, where such evidence may assist the jury to evaluate the conduct of the complainant and the applicant on the occasion which gave rise to the charge. Where the evidence is of criminal or other disreputable acts committed by the accused, so that there is a danger that the jury will treat it as evidence that the accused has a propensity to commit acts of the kind charged, the judge must warn the jury of the limited purpose for which the evidence can be used. In particular the jury must be told that the relationship evidence cannot be regarded as a substitute for the evidence that the accused committed the charged acts, or for the purpose of showing that the accused is ‘the kind of person’ likely to have committed that offence (R v Grech (1997) 2 VR 609)’.

    Neave JA went on to consider the circumstances in which relationship evidence may be relevant. At [31], Her Honour noted that relationship evidence of prior violence by the accused towards the complainant may be admissible in sexual offence cases ‘because it assists the jury to evaluate whether the complainant had freely agreed to sexual activity on the occasion to which the charge relates, or whether the accused knew that the complainant had not consented or might not have consented to having sex on that occasion’: see, for example, R v Loguancio [2000] VSCA 33; (2000) 1 VR 235, 23 (Callaway JA).

    At [33], Her Honour noted that relationship evidence of prior acts of violence by the accused ‘may also be admissible where a person is charged with homicide or an offence arising out of the infliction of injury on a victim, because such evidence is relevant in evaluating the accused person’s claim that he or she had an amicable relationship with the victim, or that he or she acted in self-defence’: see, for example, Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 and R v Mala (Unreported, Court of Appeal, Brooking, Ormiston, Batt JJA, 27 November 1997).

    In this case, the appellant correctly conceded that evidence of the April 2011 assault when she refused to have sexual intercourse with him only a month before the alleged rape was relevant in assessing the likelihood that she had in fact voluntarily agreed to have intercourse with him or he believed that she had done so (see [35]). However, Neave JA held at [36]-[37] that:

    ‘[D]espite the appalling nature of the earlier assaults, I consider that the evidence of those assaults was not sufficiently relevant to the nature of the relationship which existed at the time of the alleged rape to the admission of that evidence. There was a lengthy time lapse between the earlier assaults and the alleged rape. Of itself, that time lapse might not have made the evidence irrelevant…’

    ‘However in this case there was not only a significant time delay between the alleged rape and the earlier assaults, but the complainant remained with the applicant despite the assaults and bore him children after those assaults had occurred. It may be that she did not leave him earlier because she was afraid of him, but there was no evidence that he had assaulted her because she refused to have sex with him, prior to April 2011’.

    Bongiorno and Neave JJA agreed with the reasons set out by Neave JA as to why the evidence was inadmissible. However, they also held that there was a substantial miscarriage of justice as a conviction in this case was not inevitable: see Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469. Neave JA in dissent at [52]-[61].
  • Lewis (a pseudonym) v The Queen [2018] VSCA 40 (27 February 2018) – Victorian Court of Appeal
    Admissibility of evidence’ – ‘Hearsay rule’ – ‘Interlocutory appeal’ – ‘Physical violence and harm’ – ‘Tendency evidence

    Charges: Aggravated burglary x 1; Intentionally cause injury x 2; Recklessly cause injury x 2; Intentionally damage property x 1; Extortion with a threat to kill x 1; False imprisonment x 1; Making threat to kill x 1; Contravening family violence intervention order x 1; Attempt to pervert the course of justice x 2.

    Case type: Application for leave to appeal against interlocutory decisions.

    Facts: The charges related to an incident of violence committed by the applicant against the aggrieved, his partner. The aggrieved was to be the central witness for the prosecution ([5]-[7]). The aggrieved invoked s 18 Evidence Act 2008 (Vic), which provides that a person can avoid giving evidence against their partner if there is a sufficient likelihood that harm would be caused to the person ([9]-[11]). The prosecution then gave notice under s 65 Evidence Act 2008 that they would rely on statements that the aggrieved had made to the police as tendency evidence as an exception to the hearsay rule ([16]).

    Issues: The applicant appealed against 3 main interlocutory decisions made by the judge. First, admitting the statements the aggrieved made to the police. Second, refusing to certify the appeal, which is a precondition to appeal against an interlocutory decision under s 295(3) of the Criminal Procedure Act 2009 (Vic). Third, refusing to sever the proceedings for each of the applicant’s charges.

    Decision and Reasoning: The Court dismissed all grounds of the appeal. On the first ground, it was reasonably open for the judge to admit the evidence as an exception to the hearsay rule. The applicant argued that admitting the evidence might lead to prejudice because the aggrieved could not be cross-examined (since she had invoked the protection against giving evidence against a de facto partner) ([58]). The Court held that there were sufficient protections available to ensure a fair trial, including directions against giving too much weight to untested statements ([59]). Accordingly, in relation to the second ground, it was reasonably open for the judge to refuse to certify ([64]). On the third ground, the Court held that many charges stemmed from the same factual basis, so there was no basis to sever the charges ([68]).

    The Court observed that the applicant did not seek to challenge the judge’s ruling that the tendency evidence satisfies the requirements of ss 97 and 101, ‘presumably’ because ‘he regards a submission of that kind as foredoomed to fail, based upon the recent decision of the High Court in Hughes v The Queen[2017] HCA 20 (14 June 2017). [72] The Court stated at [73] that:

    It is, however, worthy of note that the general evidence of the history of domestic violence, which forms the basis of the tendency notice, may not have quite the probative force in relation to the allegation of the threat to kill and extortion, as it does in relation to the other charges brought against the applicant.

    The Court concluded by cautioning trial judges about the use of tendency evidence: ‘[if the tendency] evidence were led, the judge would have to give a careful direction as to how it could be used and, more importantly, how it could not be used’ ([75]).

  • DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017) – Victorian Supreme Court
    Admissibility’ – ‘Relationship evidence

    Charges: Murder.

    Case type: Pre-trial hearing.

    Facts: The defendant and deceased had been in a relationship, and had two children ([3]). They separated acrimoniously in 2010 ([3]). The defendant was accused of murdering the deceased. The prosecution wished to lead evidence relating to the relationship between the accused and deceased ([4]) in order to establish that the accused’s enmity and hatred towards the deceased was the motive for the murder ([5]). The evidence included: threats made by the defendant; relationship evidence; the fact that the accused had an intervention order taken out against him by the deceased; and the accused’s actions in relation to a pornographic video allegedly depicting the deceased.

    Issues: Whether the ‘relationship evidence’ should be admitted.

    Decision and Reasoning: Justice Bell set out the relevant principles in relation to the Court’s mandatory duty to exclude evidence where the probative value is outweighed by the danger of unfair prejudice to the accused (see [33]-[36]). In this context, evidence of a poor relationship between the accused and deceased has been admitted where that evidence may be relevant to whether the accused killed the deceased and whether the accused had a motive to do so ([37]).


    The deceased’s statements about her fear of the accused (for example, that if something happened to her, it would be because of the accused) were not admissible. In deciding the admissibility of a victim’s fear of the accused perpetrator, the issue is ‘whether the evidence of the deceased’s fear of the accused was relevant to the probability of the existence of a fact in issue, usually whether the accused had a motive for killing, and actually did kill, the deceased’ ([57]). However, the statements were merely evidence of her subjective state of mind, not the accused’s ([70]). Further, the content and volume of evidence would be highly prejudicial to the accused ([71]).

    By contrast, evidence of threats made by the accused to kill the deceased and her family were admissible, because it was relevant to the accused’s state of mind towards the deceased ([76]).

    Relationship evidence

    Evidence of the defendant’s feelings of hatred and enmity towards the deceased was admissible ([42]-[43]). However, most the evidence of the state of their marriage before 2010 was not relevant ([41], [51]). Bell J held that the jury should be told generally that the marriage was unhappy ([85]-[87]), but not the precise details of the aggressive behaviour of the accused ([88]).

    Intervention order

    Evidence of the intervention order was admissible as a feature of the relationship leading up to the death of the deceased ([91]). There was a danger of unfair prejudice to the accused, but that could be mitigated by proper instruction ([92]).

    Pornographic video

    The accused had alleged that the deceased had participated in a pornographic video, and had shown his colleagues and the deceased’s family ([94]). Evidence of the video and the accused’s actions were admissible to demonstrate the extremely negative attitude of the accused towards the deceased ([96]).

  • R v De Beyer [2017] NSWSC 752 (13 June 2017) – New South Wales Supreme Court
    Children's evidence’ – ‘Murder’ – ‘Relationship evidence

    Charges: Murder x 1.

    Case type: Judgement on the admissibility of relationship evidence.

    Facts: The accused and deceased were married. The accused was on trial for her murder. It was the Crown case that the accused had stabbed his wife. He gave evidence that she stabbed herself. The prosecution case was circumstantial ([1]).

    Issues: Whether evidence of the accused and deceased’s relationship was admissible ([2]).

    Decision and Reasoning:

    Evidence that was admitted without objection:
    • Eyewitness evidence from the accused and deceased’s son and daughter, including witnessing the accused punching and kicking the deceased, throwing things at the deceased and threatening to kill her ([3], [17]).
    • Statements made to the police by one child, the deceased and police officers after police attendance at a violent incident ([9]-[10], [15]).
    • Parts of recordings made by the deceased of arguments between her and the deceased ([13], [25]).
    Evidence that was objected to, and admitted:
    • A conversation between the deceased and her sister, including statements that the accused would not let the deceased out of the house or have a phone “because he was scared she would call the police”, and that she would not leave him “because if he found her he would kill her” [23]. The statements were objected to on the basis that they were representations of the accused state of mind ([23]). The Court held that they were expressions of fear, and were admissible as an exception to the hearsay rule ([24]).
    • Notes and diary entries made by the deceased, which included assertions of fact about episodes of abuse, and statements about the deceased’s state of mind about the relationship ([31]). Only general statements of fact were admitted, because they were not hearsay evidence ([30]).
    Evidence that was not admitted:
    • Statements made by the deceased to her daughter that the accused attempted to drown her. The daughter only recollected these statements once she was shown the deceased’s diary. The daughter’s recollection did not appear to be firm. Therefore, Hidden AJ held that evidence was not highly probable to be reliable ([20]-[22]-[22]).