Norman v R [2012] NSWCCA 230;

SKA v R [2012] NSWCCA 205

Relationship evidence in sexual assault cases

 

There are still problems arising from the use of “context evidence” in sexual assault offences. In two recent cases errors have arisen because of a failure by the Crown or the trial judge to understand the different purposes for which “relationship evidence” can be admitted into evidence. The problem arises because the term “relationship evidence” can, at least, encompass three different types of evidence: (a) “context evidence” by making the complainant’s evidence more understandable by placing specific allegations in context; (b) circumstantial evidence of a relevant fact, for example the accused’s state of mind at a particular time; or (c) circumstantial evidence of a tendency to which s 97 of the Evidence Act (“the Act”) applies.

It is important to bear in mind that evidence that proves the relationship between two persons is not admissible unless the nature of the relationship is relevant in some way: R v ATM [2000] NSWCCA 475; DJV v R (2008) 200 A Crim R 206 at [29]; Qualtieri v R (2006) 171 A Crim R 463 at [112]. It will be relevant if it falls into one of the three categories above. Categories (a) and (b) are admissible under s 95 of the Act because neither relies upon tendency or coincidence reasoning. Evidence in these categories can be rejected under s 137 or 135 of the Act. Category (c) can be rejected under s 101.

Difficulties arise when the three categories are confused because of the use of the term “relationship evidence” without discrimination between the different purposes of the evidence and, therefore, what use the jury can make of it. In particular there is confusion because the categories are not distinct. Categories (a) and (b) can become blurred because both are relevant to provide context, or to explain why a party to a relationship acted as he or she did; see for example R v Toki (No 3) (2000) 116 A Crim R 536 and R v FDP (2008) 74 NSWLR 645. So too can categories (a) and (c).

The crucial distinction between category (a) and the other two categories of evidence is that in category (a) the evidence goes no further than explaining why the complainant acted as he or she did on the particular occasion or occasions giving rise to the charges as part of the complainant’s account of relevant events. The evidence is not admissible and cannot be used by the jury to prove anything about the conduct or mental state of the accused. The evidence is simply part of the complainant’s narrative of events surrounding the particular allegations. In the other categories, although the evidence may incidentally give context to the particular allegation, it goes further and explains why the accused may have acted as the prosecution alleges.

Category (b) is true “relationship evidence”. It is used to prove the conduct of both parties to the relationship and will usually rely upon evidence of witnesses other than the complainant or victim of the crime. It can prove animosity between the accused and the deceased in order to rebut accident: see Wilson v The Queen (1970) 123 CLR 334 or to prove the accused’s state of mind: R v Serratore [2001] NSWCCA 123 or to prove identification of the offender: R v Serratore (1999) 48 NSWLR 101. It can be used to prove that the relationship between two persons was not an innocent one but was based upon the supply of drugs, see Harriman v The Queen (1989) 167 CLR 590; R v Quach (2002) 137 A Crim R 345, R v Cornwell [2003] NSWSC 97; (2003) 75 NSWLR 82.

But category (b) evidence is only part of a wider class of relevant evidence which can be described as “background evidence”. This type of evidence is admissible under s 95 of the Act. It includes “transactional evidence” such as conduct during a massage before an alleged sexual assault: Jiang v R [2010] NSWCCA 277; evidence of the behaviour of the accused over a period of time which can identify the accused as the offender, O’Leary v The Queen (1946) 73 CLR 566, or prove the state of mind of the accused at a time close to the commission of the alleged offence, as in R v Adam (1999) 106 A Crim R 510 at [26]; R v Player [2000] NSWCCA 123 at [22]; R v Serratore [2001] NSWCCA 123; R v Mostyn (2004) 145 A Crim R 304 at [135]. It can also prove a system of work, as in R v Cittadini (2008) 189 A Crim R 492 at [26]–[27].

In all of these cases the evidence may give context or background to the conduct of a particular person or persons at a point of time relevant to a particular allegation, but it goes further than simply providing that context or background and is evidence admissible to prove that the allegation was true and, hence, the accused’s guilt.

In Norman v R [2012] NSWCCA 230 the problem arose because there was a failure to consider the relevance of the “relationship evidence”. The Crown led evidence of acts of violence committed by the accused against the complaint, his wife, as proving the relationship of the complainant and the accused on charges of sexual assault offences. But as has been noted “relationship evidence” is not admissible unless it is relevant. The Court of Criminal Appeal held that the evidence was not relevant because it provided no context to the allegations of sexual assault. The events were not part of the narrative necessary to make the allegations in the indictment explicable. The evidence did not help the jury understand the sexual assault allegations because they were independent acts separated from the sexual assault allegations by a substantial period of time. The effect of the evidence was to raise the accused’s propensity for violence yet it was not admissible on that basis nor tendered for that purpose. The error was a result of using the term “relationship evidence” without considering what relevance the evidence had to the specific allegations in the indictment.

Two points can be noted about Norman. First, it must be a very rare case indeed, if there could be any, where context evidence will be necessary, and, therefore admissible, in other than a case involving child sexual assault. This is because of the unusual nature of child sexual assault offences: the young age of the complainant and the on-going nature of the abuse. Evidence of relationship in non-child sexual assault cases would almost inevitably be admitted for some reason other than to prove context. R v Fordham (1997) 98 A Crim R 359 is an example where the evidence of violent conduct by the accused during the relationship with the complainant went to the lack of consent by the complainant. Secondly, it is, with respect, both unnecessary and possibly confusing, to refer to Wilson v The Queen and the term “relationship evidence” when dealing with context evidence. A reference to Wilson will suggest evidence in category (b).

Such confusion is apparent in SKA v R [2012] NSWCCA 205 where the judge, in directing the jury on what was “context evidence”, entered upon an explanation for the evidence in terms of it proving the nature of the relationship between the accused and the complainant. The judge directed the jury that it was evidence “to show that long before these offences were committed there was a relationship which was more than just an uncle niece relationship, it had a sexual connotation”. A majority of the Court found that this direction resulted in a miscarriage of justice because the trial judge had, in effect, confused “context evidence” in category (a) with “relationship evidence” falling in either category (b) or (c) above. That is, the jury were being directed that the evidence could be used for more than merely giving context to the particular allegations but as disclosing what the Crown was alleging to be the true nature of the relationship between the complainant and the accused. Thus it could be used as evidence going to the accused’s guilt.

A similar error occurred in JDK v R (2009) 194 A Crim R 333 where the trial judge directed the jury that they could use the “context evidence” to understand “the true relationship” between the accused and the complainant. This is redolent of the use of “relationship evidence” in category (b) of the Wilson type, where the jury are being asked to consider and take into account as proof of the charge the nature of the relationship between the accused and the victim.

It is suggested that such errors can be avoided by restricting the term “relationship evidence” to the Wilson type evidence in category (b) above, and describing category (a) evidence as “context evidence” or “narrative evidence”.

The relevant sections of the Criminal Trial Courts Bench Book will be re-issued in the new year to reflect this Special Bulletin.