R v Ferguson [2015] NTSC 33

PARTIES:	THE QUEEN

	v

	FERGUSON, Danny

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	21343913

DELIVERED:	4 JUNE 2015

HEARING DATES:	1 JUNE 2015

JUDGMENT OF:	MILDREN AJ

CATCHWORDS:

EVIDENCE – Evidence (National Uniform Legislation) Act s 97 – Tendency evidence – Evidence relating to prior violent conduct – Evidence admissible for credibility purposes – Relevant to complainant’s and accused’s mental states

Criminal Code s 192
Evidence Act 1977 (Qld) s 132B
Evidence (National Uniform Legislation) Act s 55, 97, 100, 137

Gipps v The Queen (1998) 194 CLR 344; HML v The Queen (2008) 235 CLR 344; KRM v The Queen (2001) 206 CLR 221; Pfennig v The Queen (1995) 182 CLR 461; R v Colby [1999] NSWCCA 261; R v IMM (No 3) [2013] NTSC 45; Roach v The Queen [2011] HCA 12; The Queen v Ashley [2014] NTSC 15; WFS v The Queen [2011] VSCA 347; Wilson v The Queen (1970) 123 CLR 334; referred to.

REPRESENTATION:

Counsel:
	Plaintiff:	S Robson
	Defendant:	T Collins

Solicitors:
	Plaintiff:	Director of Public Prosecutions
	Defendant:	Central Australian Aboriginal Legal Aid Service Inc

Judgment category classification:	B
Judgment ID Number:	Mil15533
Number of pages:	11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

R v Ferguson [2015] NTSC 33
No. 21343913

	BETWEEN:

	THE QUEEN
	Plaintiff

	AND:

	DANNY FERGUSON
	Defendant

CORAM:	MILDREN AJ

REASONS FOR RULING

(Delivered 4 June 2015)

[1]	The accused is charged with two counts of having sexual intercourse without consent with RR at Finke in the Northern Territory on or about 2 October 2013.  He is also charged with one count of unlawful aggravated assault upon RR on the same occasion.  The accused has pleaded guilty to the aggravated assault and not guilty to the two sexual offences.
[2]	The Crown case is – in very broad outline – that RR first met the accused in Alice Springs in November 2012, and that shortly thereafter they began a de facto relationship.  In February 2013 the accused asked RR to live with him at the Finke Community to which she readily agreed.  The accused was employed by MacDonnell Shire Council.  He and RR lived in a small two-roomed corrugated iron shanty in the community.  The complainant had no relatives in the Finke community.  By contrast, the defendant’s immediate and extended family lived in Finke.  On the evening of Wednesday 2 October 2013, some time after the accused returned home from work, the accused and RR had consensual sexual intercourse.  Afterwards, when they were both lying on a bed, the accused indicated that he wanted to have sex again.  RR said “No, I am too tried.”  The accused became angry, grabbed RR by the hair, and threw her on the floor.  RR was lying face down.  In this position the accused stomped on RR’s head two or three times.  After this, RR stood up and the accused took off RR’s shorts.  The accused pushed RR onto a couch in the room and told RR to bend over.  The accused then punched and kicked her in the backside several times.  In order to get away, RR fled across to the bed into a far corner.  The accused demanded that she return to the couch and when she complied, he told her to bend over again which she did.  He then inserted a torch into RR’s anus causing her sharp pain.  He then told her to sit on the end of the bed and demanded that she perform fellatio on him, “or I will stab you scissors.”  When RR placed the accused’s penis in her mouth, the accused punched her once to the right ear.  The accused then accused her of having a relationship with another man, but RR said that she did not know this person.  Thereafter the accused continued to assault RR in various ways, including hitting her with a belt.  Eventually RR and the accused went outside and were lying on a trampoline when the accused grabbed her by the throat and squeezed it.  Eventually the accused fell asleep.  The accused woke about half an hour later at about 5 or 6 o’clock in the morning.  After the accused went to work, RR left the shanty and sought the assistance of the police.  The evidence of RR is that she complied with RR’s requests out of fear, and waited until he had left for work for the same reason before going to the police.
[3]	The Crown intends to lead evidence at the trial that soon after RR moved out into the Finke community the accused became angry with her and would bash her, and that this had occurred on many occasions.  She was not allowed to leave the shanty, and he threatened her if she went to the police or the clinic.  On occasions the accused would threaten to kill her.  Evidence will be lead of an assault by the accused using a speaker and threats to bash the complainant with a rock which was kept in the bedroom.  The Crown also intends to call evidence from other witnesses to the effect that they rarely saw RR the whole time that she was in the community.  The Crown submitted that the purpose of this evidence is to show a pattern of escalating violence against RR and controlling behaviour of the complainant who was largely kept confined to the shanty by the accused.  It was submitted that without this evidence, the jury would be faced with an alleged assault, admitted by the accused, but the sexual assaults denied.  Unless the jury could be told of the relationship between the accused and RR, the events of the night of 2 October would appear to be completely out of the blue and inexplicable, apparently having occurred in the context of an otherwise normal and non-violent relationship.  The jury would be left to wonder why the accused would go to the extreme of sexually assaulting the complainant if this were the first time he had ever used violence against her.  The Crown intends to submit that this was a violent and controlling relationship marked by frequent assaults on the complainant for no apparent reason, including deprivations of her freedom to leave the shanty and threats of harm should she report the violence.  It was also put that the evidence was relevant to both the complainant’s and the accused’s mental state on the night in question.
[4]	Mr Robson, counsel for the Crown, submitted that the evidence was relevant to RR’s credibility as well as the states of mind of the parties at the time.  He referred to Roach v The Queen and to Wilson v The Queen.
[5]	Counsel for the accused, Ms Collins, submitted that the evidence of the accused’s relationship was not admissible unless it satisfied the tests in Pfennig v The Queen.  In support of this argument I was referred to Gipps v The Queen and HML v The Queen.  Ms Collins distinguished Roach on the basis that the decision in that case turned on s 132B of the Evidence Act 1977 (Qld) and there is no similar provision in the Evidence (National Uniform Legislation) Act (NT) (the Act).  Ms Collins referred to the generality of the allegations of prior misconduct and submitted that it did not make the account given by the complainant more explicable, for example, by explaining why a complaint was not made immediately, because in fact such a complaint was in fact made.  It was submitted that the evidence was not relevant, but if I were to hold against this submission that I should exclude it pursuant to s 137 of the Act.
[6]	After hearing submissions, I ruled that the evidence was admissible and that it would be admitted at the trial.  I said that I would provide written reasons for this ruling at a later time.  Nothing has emerged during the trial for me to reconsider that ruling.  These are my reasons.
[7]	In order for the evidence to be admissible, it must be relevant in the sense that, if it were accepted, it could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.  Evidence is not to be taken to be irrelevant only because it relates only to the credibility of a witness.  The fact in issue in this case is whether or not sexual intercourse took place without the complainant’s consent.  Section 192(1) of the Criminal Code (NT) provides that “consent means free and voluntary agreement.”  Section 192(2)(a) and (b) provide that there is no consent if the person submits because of force, fear of force or because of fear of harm to herself; or because she is unlawfully detained. 
[8]	In this case, Mr Robson submitted that the proposed evidence is not being led as similar fact evidence or propensity/tendency evidence.  Plainly the evidence is not similar fact evidence.  It is not suggested that the accused had ever previously sexually assaulted the complainant.  “Tendency evidence” is defined by the dictionary to mean evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purpose referred to in that sub-section.  Section 97(1) refers to “evidence of the … conduct of a person, or a tendency that a person has or had, … to prove that a person has or had a tendency … to act in a particular way, or to have a particular state of mind ...”.  Tendency evidence is not admissible unless s 97(2) applies or the requirements of s 97(1)(a) and (b) are met, or in the case of s 97(1)(a) the requirements of that sub-section are dispensed with by the Court under s 97(2) and s 100(1).  Evidence which is led for a purpose other than as tendency evidence is not caught by these provisions if the Court considers that it is admissible for another legitimate purpose.  If it is admitted for another purpose, if may not thereby be used for the purpose of proving tendency.
[9]	In my opinion evidence by the complainant of the accused’s violence towards the complainant in the past, if tendered to show that the complainant’s account as to the accused’s conduct on the night in question is credible, is relevant and admissible for that purpose.  It would show that the violence towards the complainant did not come out of the blue even though the violence included in this case sexual violence, which had not previously occurred, and the level of violence was greater than had been experienced by the complainant in the past.  Moreover, the controlling behaviour of the accused, coupled with violence, is relevant to the question of whether the complainant consented to sexual intercourse, and whether the accused knew, or was reckless, about her lack of consent.  In those circumstances, the evidence is not tendency evidence nor is it propensity evidence, but rather goes to the states of mind of the complainant and the accused at the relevant time.  As is said in Odgers, “a history of sexual and physical violence may explain why the complainant appeared to consent to the offence charged.  It may explain why the defendant could not have believed that any apparent consent was real …  It will avoid the circumstances of the alleged offence being considered in isolation, where they may appear ‘inexplicable’ and be ‘misunderstood.’  It may tend to show their respective states of mind at the time.”  So much is implicit in the reasoning of the judgment of the plurality in Roach where reference was made to the common law as it existed prior to the introduction of s 132B of the Evidence Act 1977 (Qld).  In my opinion the argument that, in order to be admissible, the evidence needed to satisfy the Pfennig test is to be rejected, just as it was rejected by the High Court in Roach.  Moreover, it is not necessary that there be a history of sexual violence if the history logically is relevant to the issues.  In my opinion of history of physical violence and control falls into this category. 
[10]	HML v The Queen does not compel me to find that before this evidence is admissible, it must pass the Pfennig test.  That case was concerned with a different type of problem which frequently arises in sexual abuse cases involving children where it is often the case that the Crown will seek to lead evidence of uncharged acts to show a history of sexual abuse which precedes the matters complained of.  The High Court was divided on whether or not such evidence had to meet the Pfennig test.  Those favouring the Pfennig test were Gummow, Kirby, and Hayne JJ.  But it is important to note that Hayne J made it very clear that what he was directing his mind towards were cases where the absence of consent was not an element of the offence.  Gummow J agreed with Hayne J as did Kirby J.  Gleeson CJ confined the Pfennig test to cases where propensity evidence was used as circumstantial evidence to prove the offence charged.  Crennan J also held that the test had no application where the prosecutor disavows the use of the evidence as propensity evidence.  Heydon and Kiefel JJ did not decide whether it applied or not.  In my opinion, the evidence in this case which the Crown seeks to rely upon, although it does seek to prove uncharged acts, is not evidence of propensity or similar fact evidence, nor is it tendency evidence as defined in the Act, and nor should it be excluded because of the bolster rule.  The evidence is admissible in the same way as evidence of the previous relationship between the accused and his wife was admitted into evidence in Wilson v The Queen.  In that case, evidence of previous assaults on the accused’s wife was admitted to show his state of mind towards her was one of enmity and therefore relevant to prove an intent to kill or cause grievous harm and to rebut accident.
[11]	Ms Collins referred me to two decisions of Blokland J where her Honour admitted evidence of relationship.  The first, The Queen v Ashley was a murder trial where her Honour admitted evidence of the accused’s anger towards the deceased, with whom he had been in a domestic relationship, by the use of increasingly controlling behaviour and demonstrated frustration and antipathy towards her since separation and shortly before her death as relevant to motive, and therefore relevant to a fact in issue in terms of s 55 of the Act.  Her Honour did not refer to the Pfennig test, but applied the reasoning in Wilson. 
[12]	The second case, R v IMM (No 3) involved the admission of uncharged acts of prior sexual misconduct against a child in a case where the accused was charged with aggravated indecent dealing with a child and with sexual intercourse with a child under 16 years.  In both of these charges, consent was not in issue.  The evidence of misconduct was of a generalised nature. Blokland J held that the evidence was not admissible as evidence of sexual interest or sexual attraction because that would amount to tendency evidence.  However, it was admitted as context evidence as relevant to the credibility of the complainant as to why she acted as she did in the circumstances.  Her Honour did not consider whether or not the Pfennig test applied.  Neither decision supports Ms Collins’ submission.
[13]	Similarly, evidence that the accused confined the complainant to the house coupled with the violence used against her, is evidence relevant to the mental states of the parties on the night in question and therefore evidence going to the question of consent and knowledge of lack of consent, and is relevant to the complainant’s credibility. 
[14]	It may be said that the fact that the accused has pleaded guilty to the charge of assault makes this evidence redundant but the Crown is not to know how the accused will explain the assault on the complainant.  A single instance of an assault does not carry with it the full implications of a history of controlling behaviour arising from assaults and confinement to the home.
[15]	In my opinion, the evidence should not be excluded in the exercise of my discretion, despite the fact that the evidence lacks specificity as to times and occasions, and in many respects, details of the actual assaults perpetrated.  This is not an uncommon feature in cases of this kind, particularly in cases involving women living in remote communities where the community is related to the defendant and where the victim has no community support.  In circumstances such as these, it is difficult for the alleged victim to obtain support and to complain.  The evidence does not prove, nor is it a step in a process of reasoning that could lead to the conclusion that sexual activity of the kind alleged took place.  The particular acts amounting to sexual intercourse in this case are an allegation that the defendant inserted a torch into the complainant’s anus and forced her to perform fellatio on him in circumstances where the complainant’s behaviour in permitting these things to occur was not consensual.  The evidence is relevant, not as to whether these things occurred, but if they did, whether the complainant consented and whether the accused either knew she was not consenting or was reckless as to whether or not she consented.  Any prejudice to the accused can be ameliorated by my giving a suitable direction to the jury as to the limited purposes for which this evidence may be used.