Use of Other Acts Tendency, Coincidence, Relationship and Context Evidence

4.16 - Tendency, Coincidence, Relationship and Context1 4.16.7 – Bench Notes: Relationship Evidence

4.16 - Tendency, Coincidence, Relationship and Context______1 4.16.7 – Bench Notes: Relationship Evidence______1 Summary of Uniform Evidence Act Provisions______2 What is “Relationship Evidence”?______2 Admissibility of Relationship Evidence______3 Similar Types of Evidence______4 Determining Whether Evidence is “Relationship Evidence”______5 Directions About Relationship Evidence______5 Impermissible uses of relationship evidence______6 Standard of proof______6 Anti-Substitution Warning______7 Timing of the Charge______7

1 This document was last updated on 1 July 2013.

1 Summary of Uniform Evidence Act Provisions

 Section 56 requires relationship evidence to be relevant to the issues in the case in order to be admitted.

 Section 136 allows the court to limit the permissible uses of evidence if there is a danger that a particular use might be unfairly prejudicial to a party or might be misleading or confusing.

 Section 137 requires the court to refuse to admit relationship evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.

 Section 95 prohibits relationship evidence being used as tendency evidence or coincidence evidence unless it meets the requirements of ss97-101.

What is “Relationship Evidence”?

1. “Relationship Evidence” is evidence which demonstrates the nature of a relationship between two relevant people in a case (see, e.g., Atroushi v R [2001] NSWCCA 406; R v AN (2000) 117 A Crim R 176).

2. Relationship evidence is a type of circumstantial evidence which may be relevant for a variety of purposes. For example:

 It may set the scene for the offending and explain why a person may have acted in the manner alleged;

 It may be relevant in establishing the accused’s intention or motive for subsequent behaviour;

 It may provide evidence of an alleged victim’s state of mind; or

 It may rebut explanations for circumstantial evidence consistent with innocence (FPD v R [2008] NSWCCA 317; Wilson v R (1970) 123 CLR 334; R v Quach (2002) 137 A Crim R 345; R v Portelli (2004) 10 VR 259; R v Clark [2001] NSWCCA 494).

3. It has been held that relationship evidence may be relevant to prove:

 That a state of animosity existed between the accused and the deceased in a murder case. This may make it less likely that the accused acted in self-defence, or that his or her conduct was accidental or the result of provocation (Wilson v R (1970) 123 CLR 334; R v Conway (2000) 98 FCR 204; R v Anderson (2000) 1 VR 1; R v Mills (1985) 16 A Crim R 366; R v Lubik [2010] VSC 465).

 That the accused and the deceased in a murder case had a harmonious relationship. This may suggest that allegations of

2 violence are uncharacteristic and improbable (Wilson v R (1970) 123 CLR 334; R v Anderson (2000) 1 VR 1; R v Matthey [2007] VSC 398; R v Hissey (1973) 6 SASR 280; R v Lubik [2010] VSC 465).

 That the accused and a supplier in a drug offence case had substantial involvement in the drug trade, which may support an inference that the accused continued his or her involvement in that trade. The evidence may also support an inference that the accused’s acts on the occasion in question were for a guilty rather than an innocent purpose (Harriman v R (1989) 167 CLR 590; R v Quach (2002) 137 A Crim R 345).

 That an adult complainant in a sexual offence case hated or feared the accused. This may make it less likely that he or she would consent to sexual intercourse with the accused (R v Matthews (1990) 58 SASR 19).

Admissibility of Relationship Evidence

4. Relationship evidence is admissible if it is relevant. The evidence must be such that, if accepted, it could rationally affect the jury’s assessment of the probability of the existence of a fact in issue in the proceeding (Evidence Act 2008 ss55, 56).2

5. To be relevant, the evidence must relate to a relationship between people which is relevant to the case. Its relevance and probative value will commonly depend on whether it supports the conclusion that there was an ongoing relationship that existed at a time that was sufficiently proximate to the charged offences. See “What is ‘Relationship Evidence’” (above) for examples of evidence that might be relevant as “relationship evidence”.

6. It is not necessary to adduce evidence of multiple events in order to establish a relationship. The admissibility of events as relationship evidence depends on the facts and circumstances of the case and the inferences that are open on the evidence (Ellis v R [2010] VSCA 302).

7. Evidence of an ongoing relationship must not be too remote in time from the alleged offending to establish an ongoing relationship. The court must consider the particular circumstances in issue and the length of the delay between the last observed event and the alleged offending (R v Iuliano [1971] VR 412; R v Arnott, VSC, 23 April 1992; Dennis v Gojanovic (No 2) (2002) 130 A Crim R 179; R v Lubik [2010] VSC 465; R v Tsingopoulos [1964] VR 676; Ellis v R [2010] VSCA 302; R v Basten [2009] VSCA 157).

8. The court may also need to consider whether the circumstances of

2 Depending on the form of the evidence, it may also need to fall within an exception to the hearsay rule and the opinion rule, such as ss65, 66A and s78 (see R v Lubik [2010] VSC 465; R v Clark [2001] NSWCCA 494).

3 the particular relationship established are relevant to the circumstances of the alleged offending. For example, a relationship that is characterised by violence when one of the parties is intoxicated may not be relevant to a case where there is no evidence of intoxication (R v Lubik [2010] VSC 465).

9. The court must refuse to admit relationship evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused (Evidence Act 2008 s137).

10. The court may also exclude or limit the use of such evidence using the general discretions contained in Evidence Act 2008 ss135-136.

11. Evidence of prior convictions should generally not be admitted as relationship evidence. Due to the extreme prejudice attaching to such evidence, it is unlikely to be admissible on this basis even if it is indispensable to the prosecution case (Mokbel v R [2010] VSCA 354R).

12. In some cases, relationship evidence may be admissible for some charges and inadmissible for other charges. The judge must examine the relevance, probative value and prejudice separately for each charge to determine whether the evidence is relevant to a fact in issue (R v McNamara [2002] NSWCCA 248).

13. Where relationship evidence is not led to prove a tendency or a coincidence, it is not subject to the admissibility requirements in Evidence Act 2008 ss97, 98 or 101 (FDP v R [2008] NSWCCA 317; R v Quach [2002] NSWCCA 519). However, the evidence cannot be used to prove a tendency or a coincidence (Evidence Act 2008 s95. See also R v Hissey (1973) 6 SASR 280).

Similar Types of Evidence

14. “Relationship evidence” must be distinguished from “context evidence”. Unlike relationship evidence, context evidence merely helps the jury to understand evidence that may otherwise appear disjointed or implausible. Context evidence is not otherwise probative of the accused’s guilt (see, e.g., R v AH (1997) 42 NSWLR 702; R v Sadler [2008] VSCA 198. See Bench Notes: Context Evidence for further information).

15. In many cases, relationship evidence will also be context evidence, as it will assist the jury to assess the other evidence in the case in a realistic contextual framework (see O’Leary v R (1946) 73 CLR 566; R v Clark [2001] NSWCCA 494).

16. “Relationship evidence” must also be distinguished from:

 “Tendency evidence”: Evidence of a tendency a person has or had, from which the jury can infer a fact in issue (Evidence Act 2008 s97); and

4  “Coincidence evidence”: Evidence of two or more similar events that it is improbable occurred coincidentally, from which the jury can infer a fact in issue (Evidence Act 2008 s98).

17. See Bench Notes: Tendency Evidence and Bench Notes: Coincidence Evidence for further information concerning the admissibility and uses of tendency and coincidence evidence.

18. In many cases, “relationship evidence” will also give rise to an inference that the person had a particular tendency, or an inference that it is improbable that two or more events occurred coincidentally. Unless the evidence is admitted as “tendency evidence” or “coincidence evidence”, the judge should direct the jury that it may not use the evidence in this manner. See “Impermissible uses of relationship evidence” (below).

Determining Whether Evidence is “Relationship Evidence”

19. It is important for judges to determine whether the evidence is sought to be admitted and used as relationship evidence, context evidence, tendency evidence and/or coincidence evidence, and if so, how the evidence is relevant to the facts in issue. These determinations will affect the admissibility test to apply, the way the evidence may be used and the directions to be given.

20. As it can be difficult to differentiate between these types of evidence, at the start of the trial the judge should ask the prosecution to characterise the evidence in question and explain how it is alleged the evidence is relevant (see, e.g., HML & Ors v R (2008) 235 CLR 334 per Hayne J).

Directions About Relationship Evidence

21. The need for any directions about relationship evidence will depend on whether a direction is sought and whether, despite the absence of any request, a direction is necessary to avoid a substantial miscarriage of justice (Jury Directions Act 2013 ss11, 13, 14, 15). See Bench Notes: Directions Under Jury Directions Act 2013 for information on when directions are required.

22. Directions on relationship evidence must:

 Identify the evidence put forward as relationship evidence;

 Address the permissible uses of that evidence; and

 Address the impermissible uses of that evidence.

23. Depending on the nature of the case, the directions may also need to address the standard of proof (R v Shepherd (1990) 170 CLR 573; R v Barton [2004] NSWCCA 229; R v MM (2000) 112 A Crim R 519).

24. No particular form of words is required for the direction. It must be

5 tailored to the demands of the case, and must be clear, precise and directed (R v Grech [1997] 2 VR 609; HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).

25. Judges should avoid using the term “uncharged acts” when describing relationship evidence, as it may invite speculation about why no charges were laid (HML & Ors v R (2008) 235 CLR 334; R v McKenzie-McHarg [2008] VSCA 206).

26. It is not sufficient for the judge to simply say that relationship evidence provides the jury with evidence of a relationship. The judge must explain how the evidence is relevant to the facts in issue (R v Nieterink (1999) 76 SASR 56; Frawley v R (1993) 69 A Crim R 208; R v McNamara [2002] NSWCCA 248).

27. The relevance of relationship evidence will vary depending on the nature of the evidence and the issues in the case. See “What is ‘Relationship Evidence’?” above for examples of the way in which relationship evidence may be relevant to the facts in issue.

28. Where the evidence may be relevant to help the jury understand the context of the alleged offending, the judge should also explain this use of the evidence. See Context Evidence: Bench Notes for further information.

Impermissible uses of relationship evidence

29. The judge must direct the jury that the evidence has only been admitted for the limited purpose(s) identified, and may not be used for any other purpose (Evidence Act 2008 s95).

30. Where the evidence is not admissible as tendency evidence or coincidence evidence, but there is a risk that the jury will use the evidence to engage in tendency or coincidence reasoning, the judge should usually warn the jury not to do so (Evidence Act 2008 s95; Qualtieri v R [2006] NSWCCA 95; R v ATM [2000] NSWCCA 475).3

31. The judge must warn the jury not to reason that if the accused did something on another occasion, he or she must also have done so on the occasion which is the subject of the offence charged (R v Beserick (1993) 30 NSWLR 510; R v AH (1997) 42 NSLWR 702; R v Greenham [1999] NSWCCA 8).

Standard of proof

32. As relationship evidence must be considered with other evidence, it will only need to be proven beyond reasonable doubt if:

 It is or it may be an indispensable link in the chain of reasoning

3 See Tendency Evidence: Bench Notes and Coincidence Evidence: Bench Notes for information concerning the need for such a warning and the content of the warning.

6 leading to guilt; or

 It may be so important to the jury’s deliberations that, as a matter of prudence, they should not act on the evidence unless it is established beyond reasonable doubt (R v Shepherd (1990) 170 CLR 573; R v Barton [2004] NSWCCA 229; R v MM (2000) 112 A Crim R 519. See Bench Notes: Circumstantial Evidence).

Anti-Substitution Warning

33. The judge may need to warn the jury that they may not substitute the relationship evidence for evidence of the offending. The jury must convict the accused solely on the evidence of the offence charged (R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510; R v Vonarx [1999] 3 VR 618; R v ATM [2000] NSWCCA 475; R v Greenham [1999] NSWCCA 8. See also Bench Notes: Separate Consideration).

34. An “anti-substitution” warning instructs the jury that evidence of other conduct does not itself prove the offences charged. The accused can only be convicted of a charge if the jury is satisfied beyond reasonable doubt that the facts alleged in that charge occurred. It is impermissible to convict the accused on the basis that, although the conduct alleged has not been proven to the requisite standard, some other conduct alleged by the complainant occurred (R v Vonarx [1999] 3 VR 622; R v BJC (2005) 13 VR 407; R v Sadler [2008] VSCA 198).

35. The need for an anti-substitution direction depends on whether the direction is sought and whether, despite the absence of any request, the direction is necessary to avoid a substantial miscarriage of justice (Jury Directions Act 2013 ss11, 13, 14, 15). See Bench Notes: Directions Under Jury Directions Act 2013 for information on when directions are required.

Timing of the Charge

36. Short directions on the use of relationship evidence should be given at the time the evidence is led. Detailed directions may then be given in the final charge (see, e.g., R v Beserick (1993) 30 NSWLR 510; Qualtieri v R [2006] NSWCCA 95).