In the matter of an application by Brunoro [2009] ACTSC 125 (25 September 2009)

Last Updated: 26 October 2009

IN THE MATTER OF AN APPLICATION BY EMILE GILES BRUNORO
[2009] ACTSC 125 (25 September 2009)

EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – where evidence led as relationship evidence not tendency evidence – where evidence suggests prior illegal acts by the accused – whether relevant – if relevant, whether more prejudicial than probative – operation of ss 135 and 137 Evidence Act 1995 (Cth) – meaning of “prejudice” – must cause unacceptable damage to the accused’s case.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of relationship between complainant and accused – relationship one of animosity – whether relevant – operation of s 55 Evidence Act 1995 (Cth) – existence of animosity admitted as relevant – source of animosity excluded as irrelevant.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of earlier threat to complainant’s grandfather – whether relevant – irrelevant if tendered as relationship evidence – evidence excluded.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of earlier threat by accused to complainant – evidence led as relationship evidence not tendency evidence – evidence relevant to the state of relationship between complainant and accused shortly before alleged assault – relevant to possible defence of self-defence or accident – evidence admitted – jury direction might be required.

Evidence Act 1995 (Cth), ss 137, 135, 55, 100

DJV v R [2008] NSWCCA 272
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v Hinton [2000] ACTSC 31; (2000) 155 FLR 139
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334

Australian Law Reform Commission, Evidence (Interim) (ALRC 26, Vol 1, 1985)
Odgers S, Uniform Evidence Law (8th ed, Lawbook Co, 2009)

No. SCC 64 of 2008

Judge: Penfold J
Supreme Court of the ACT
Date: 25 September 2009

IN THE SUPREME COURT OF THE )
) No. SCC 64 of 2008
AUSTRALIAN CAPITAL TERRITORY )

In the matter of an application by

EMILE GILES BRUNORO

REASONS FOR JUDGMENT

Judge: Penfold J
Date: 25 September 2009
Place: Canberra

Introduction

1. Emile Brunoro was charged with one count of common assault committed on 2 August 2007, the complainant being Mr Brunoro’s nephew Justin Nebelung. He pleaded not guilty, and a trial was scheduled.
2. The issues likely to arise in the trial appeared to be straightforward. If the assault alleged by the complainant took place at all, then it was committed by the accused. The issues were whether the complainant was assaulted at all, and if so, whether there was any defence to the charge.

Application for the exclusion of evidence

3. On the day before the trial was scheduled to begin, the accused applied for the exclusion of certain evidence, being evidence that the Crown proposed to lead in the trial relating to conduct of the accused other than the conduct alleged to constitute the offence charged. Following argument, I made orders excluding some of the evidence and refusing to exclude other evidence. Written reasons were to be provided. These are my reasons.
4. In the event the trial produced a hung jury, and the publication of the reasons was delayed while the Director of Public Prosecutions (DPP) considered whether to continue with the prosecution. A mention date in August 2009 was listed for the DPP to advise me of its intentions. In June 2009 the DPP filed a notice declining to proceed further in the prosecution, but neither this notice nor the vacation of the mention date was brought to my attention. This is why the reasons are only now being published.

The evidence in question

5. Counsel for the DPP provided a document setting out a statement by the complainant, and identified parts of that statement as the evidence that the DPP proposed to tender. Apart from evidence of the assault charged, to which there is no objection, the evidence concerned can be divided into three classes.

The history of the relationship

6. The first batch of material included detailed information about of the history of the relationship between the complainant and the accused over the couple of years before the alleged assault. This evidence related in particular to a dispute between the complainant and the accused, and other members of their extended family, about dispositions under the will of a person who was the accused’s mother and the complainant’s grandmother (the grandmother), and about dealings with property owned by the accused’s father, who is also the complainant’s grandfather (the grandfather). The complainant’s statement setting out his proposed evidence included a variety of allegations about the accused’s conduct in relation to these issues which, if established, might indicate illegal activity by the accused and would certainly show the accused in a bad light in terms of his sobriety, his honesty, and his sense of family loyalty.

Earlier threat or assault on grandfather

7. Another batch of material was evidence of a threat made to, or possibly an assault on, the grandfather by the accused some 13 months before the assault charged.

Earlier threat to complainant

8. The final batch of material was evidence of threats made to the complainant by the accused before the assault charged (although there will be conflicting evidence about whether the threats were made a few days or a few weeks before the assault charged).

What is the purpose of tendering the evidence?

9. Counsel for the DPP expressly disclaimed any intention to lead any of the evidence as tendency evidence. He submitted that the evidence was relevant to the relationship between the accused and the complainant, and to the context in which the alleged assault took place.

The nature of the Court’s inquiry

10. On behalf of the accused, counsel argued as follows:
(a) if the evidence concerned is not being led as tendency evidence, it is not relevant to the assault charged; and
(b) if the evidence is relevant to the assault charged, it should be excluded under s 137 of the Evidence Act 1995 (Cth) on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused.
11. In support of her argument that the evidence was not relevant but, if relevant, should be excluded as unfairly prejudicial, counsel for the accused relied on the case of DJV v R [2008] NSWCCA 272 (DJV). That case involved charges of sexual intercourse and an act of indecency allegedly committed on the accused’s daughter who was at the time under 16 years of age, and evidence of other “sexual misconduct”, the admissibility of which was in dispute. I need not go into the details of the disputed evidence in that case, but I mention the nature of the case in order to note that cases involving complaints of sexual assaults, especially complaints made by children, may raise particular complexities that will not necessarily be relevant in other cases. As McClellan CJ at CL said in DJV at [10]:

This case again raises the difficulties in relation to evidence of other allegedly criminal acts or inappropriate conduct by a person accused of a criminal offence. The problem usually arises in relation to allegations of sexual assault although it can create difficulties in other cases.

12. As well, the evidence whose admissibility is challenged by Mr Brunoro is, in significant respects, evidence of conduct that is different from the conduct charged.
13. Possibly for all those reasons, I have not found DJV helpful in deciding whether the evidence in question in this case is relevant. What is helpful, however, is an outline given by McClellan CJ at CL of the steps to be undertaken by a court in considering the admission or exclusion of evidence “which may suggest prior illegal acts by the accused”. McClellan CJ at CL draws most of this outline from his decision in Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 (Qualtieri), to which he adds one significant annotation. He begins, at [17], by quoting from Qualtieri:

Although the circumstances of the particular trial may require some modification the relevant steps will generally be -

• Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
• If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act ... .
• If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant ... . If [the evidence] is [relevant], it will nevertheless fall upon the trial judge to determine whether the proffered evidence should be admitted having regard to s 135 and s 137 [of the Evidence Act]. Because the evidence will inevitably be prejudicial, great care must be exercised at this point in the trial.
• If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told ... that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused ... . The jury must be told that they cannot use the evidence as tendency evidence. [references omitted]

14. McLelland CJ then points out, at [18], that he:

would make one change to the summary [quoted above]. In the third dot point it would have been more appropriate to refer to “whether there is an issue in the trial” allowing for the possibility of an issue not yet “raised” emerging at a later point in the trial process.

15. Applying these principles in the circumstances of this case, the steps in the court’s inquiry would seem to involve the following questions:
(a) What is the evidence to be tendered?
(b) What is the purpose of the tender?
(c) If the purpose of the tender is only to provide context to the charges, is there an issue in the trial which makes that evidence relevant?
(d) If the evidence is relevant, should it be admitted having regard to ss 135 and 137 of the Evidence Act?
(e) If the evidence is admitted, what if any directions must be given to the jury?

Is there an issue in the trial which makes that evidence relevant?

16. McLelland CJ’s annotation of his Qualtieri summary to add a recognition that this question might need to be answered before a specific issue has been raised is particularly relevant in the context of a pre-trial application. In this context, it is necessary to make more assumptions, and to allow for a broader range of possibilities, than would be necessary if the admissibility question arose after the trial had begun to take shape.
17. Counsel for the DPP submitted that evidence of the relationship between the accused and the complainant, and of the context of the assault, could be relevant to an issue in the trial if the accused gave a different version of the interaction between himself and the complainant. This would be especially the case if the accused, for instance, accepted the truth of some or all of the complainant’s evidence but asserted either that he was acting in self-defence or that what had happened was an accident.
18. It is appropriate to consider separately in relation to each batch of material whether there is an issue that might arise in the trial that would make the evidence relevant.

Evidence of long-term relationship and family property dispute

19. General evidence of a prior poor relationship between the accused and the complainant may well be relevant to issues arising in the trial. However, I cannot see that evidence of the complainant’s view of the origins of that poor relationship and the details of the underlying dispute is relevant. If animosity is established between the complainant and the accused, this may explain an assault involving the two men, but the specific sources of that animosity do not seem to be a useful predictor of whether an assault was likely to take place and, if it did, which man would be the offender and which the victim. That is, evidence of the sources of the animosity (as distinct from the existence of the animosity) could not “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue” in this trial (Evidence Act, s 55).

Evidence of the threat or assault relating to the complainant’s grandfather

20. This evidence is irrelevant to the offence charged on the basis on which the Crown proposes to tender it, specifically as relationship or context evidence rather than tendency evidence. The alleged threat or assault was committed more than a year before the assault charge, and was committed against the grandfather rather than the complainant, although the complainant says he was present. The incident may have some value in explaining the poor relationship between the accused and the complainant, but will not thereby be admissible if a detailed explanation of the source of that poor relationship is generally inadmissible in the trial.

Evidence of the threat to the complainant before the alleged assault charged

21. This evidence is relevant to the state (rather than the causes) of the relationship between the accused and the complainant shortly before the alleged assault, and to the way in which the undisputed tensions between the two men were played out. In particular, evidence of a threat made a few days before the alleged assault, and the circumstances in which that threat was made, could be relevant in the trial if the accused admits using violence towards the complainant but asserts his action was an accident or was done in self-defence.

If the evidence is relevant, should it be admitted?

Evidence of long-term relationship and family property dispute

22. Even if the relationship evidence constituted by details of the dispute could be seen as peripherally relevant, I consider that the evidence should be excluded. There are several reasons for excluding detailed evidence about the dispute and the relationship generally.

Evidence Act, s 135 (undue waste of time)

23. First, I find that the probative value of such evidence (which is at best low) would be substantially outweighed by the danger that the evidence might cause or result in undue waste of time as mentioned in s 135(c) of the Evidence Act. This is partly because if the complainant’s view of the details of the dispute was put in evidence by the prosecution, the defence could legitimately expect to call evidence of the details of the dispute from the perspective of the accused. In the nature of this dispute, that could involve calling as witnesses numerous other family members, and possibly others such as lawyers acting in the civil dispute. This would prolong the trial well beyond the time reasonably required to determine the real issues in the criminal matter. It would be highly likely that what has been scheduled as a two-day trial would blow out into a week or even longer.

Evidence Act, s 137 (unfair prejudice)

24. It is useful to refer to the Australian Law Reform Commission’s explanation of the “prejudice” that is described in the Evidence Act as “unfair prejudice”. This explanation is set out in Australian Law Reform Commission, Evidence (Interim) (ALRC 26, Vol 1, 1985) at [957] and quoted in Odgers S, Uniform Evidence Law (8th ed, Lawbook Co, 2009) at page 696.

There is some uncertainty over the meaning of “prejudice”. But, clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.

25. I note in particular the express reminder that to show unfair prejudice arising from particular evidence, it will be necessary to establish unacceptable damage to the accused’s case arising because the evidence provokes some “irrational, emotional response” or is given more weight than it should have. Evidence is not prejudicial just because it tends to establish the accused’s guilt.
26. The evidence proposed to be called by the prosecution about the long-term relationship between the accused and the complainant and the family property dispute, in particular the accused’s conduct in relation to the grandmother’s estate, would expose the accused to unfair prejudice that would far outweigh any probative value of such evidence about the ongoing dispute. The unfair prejudice would result from the tendency of the evidence to convey the impression that the accused, as well as drinking to excess, may have committed fraudulent acts in his role as the holder of his mother’s power of attorney or as a beneficiary in the estate.
27. The prejudicial value of that evidence might be addressed by evidence refuting it on behalf of the accused (which as indicated would raise the possibility of undue waste of time). However, if the evidence was not refuted, it would seem to be too late to effectively exclude the evidence on the grounds of unfair prejudice.

Conclusions

28. Accordingly, I find that detailed evidence about the dispute about the grandmother’s estate and the associated family disputes is inadmissible.
29. However, evidence in general but neutral terms to the effect that at the time of the alleged assault there was a continuing dispute between the complainant and the accused about the grandmother’s estate and other matters concerning family property is admissible.

Threats to or assault on grandfather

30. I have already found that evidence of the threat to, or assault of the complainant’s grandfather is irrelevant to the offence charged; however, if relevant, that evidence is of low probative value while raising a serious risk of unfair prejudice to the accused, and should accordingly be excluded under s 137 of the Evidence Act.

Threats to complainant

31. The evidence of the threats made to the complainant in the days or weeks before the assault charged is relevant to the relationship between the accused and the complainant, and specifically relevant to the nature of that relationship, rather than its origins. To that extent, and given that it involves a somewhat similar interaction between the accused and the complainant, it may be relevant to assessing the strength of the prosecution case on assault if a defence of self-defence or perhaps accident is raised.
32. At the same time, given the nature of this incident, the evidence is no more prejudicial than would be the evidence of the assault charged, except to the extent that it is evidence of another such incident. As a threat not implemented, it may be less prejudicial than the evidence of the assault charged. If there is any risk that this evidence would be used as tendency evidence by the jury, a direction may be necessary.

If the evidence is admitted, what directions must be given to the jury?

33. The only part of the evidence in question about which a direction to the jury might be necessary is the evidence about prior threats made by the accused to the complainant. It is neither necessary nor possible to draft such a direction until the evidence concerned has been given.

R v Hinton

34. Counsel for the DPP cited R v Hinton [2000] ACTSC 31; (2000) 155 FLR 139 in support of his argument that evidence of the relationship between the accused and the complainant or victim could be admissible even when that evidence revealed criminal or other inappropriate behaviour. That case concerned an indictment containing 12 counts, all relating to sale or supply, or possession for the purpose of sale or supply, of various illicit drugs. An application was made to sever the indictment so as to require seven separate trials, and in dealing with that application Spender J considered whether the evidence on each count was admissible in relation to other counts. He quoted from the remarks of Barwick CJ and Menzies J in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 and those of McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590. Barwick CJ said at 338:

... ‘the conduct of the accused’ of which the relationship of the parties may be explanatory will not necessarily be limited to the act charged, as in this case, the act of shooting, but will extend, in my opinion to any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged.

35. Menzies J at 344 said:

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.

36. In Harriman v The Queen McHugh J said at 630:

Evidence relating to the accused and the alleged [complainant] (‘the relationship cases’), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In the ‘relationship cases’, evidence of previous acts is admissible not to show general criminal disposition but to show the nature of the relationship between the parties.

37. My finding that general evidence of the relationship between the accused and the complainant, and particular evidence of threats made by the accused to the complainant before the alleged assault, are relevant and should be admitted in the trial seems to be supported by the cases cited by Spender J and quoted from above.
38. However in R v Hinton, a notice of intention to lead tendency evidence had been served under s 100 of the Evidence Act, and Spender J found that for each count relating to possession or supply of drugs, evidence relevant to other such counts was tendency evidence with probative value. He found that the evidence was cogent as to the relationship between the accused and the person supplied with drugs where there were multiple counts relating to sale or supply to that person, but also more generally in that evidence on each count was confirmatory or explanatory in relation to other counts.
39. There is no relevant question of tendency evidence in this case. Even if some of the complainant’s proposed evidence about the accused cogently suggested that he had been guilty of fraud or some other dishonesty offence in relation to the grandmother’s estate, that evidence as such is entirely irrelevant to whether the accused was likely to have assaulted the complainant. Accordingly, I do not consider that R v Hinton or the cases there cited require or permit the admission, in a case like this, of evidence detailing the origins of the relationship between the complainant and the accused.

Orders

40. For the reasons set out above, I made the following orders:
(a) That evidence would be admitted about:
(i) the existence, at the time of the alleged assault, of a continuing dispute between the complainant and the accused about the grandmother’s estate and other matters concerning family property; and
(ii) the threat alleged to have been made by the accused to the complainant in the few weeks before the assault currently charged.
(b) That evidence would not be admitted about:
(i) the details of the dispute over the grandmother’s estate and other matters concerning family property; or
(ii) the alleged threat to or assault of the grandfather more than a year before the assault currently charged.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 25 September 2009

Counsel for the applicant: Ms T Warwick
Solicitor for the applicant S & T Lawyers
Counsel for the respondent: Mr J Kellaway
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 1 April 2009
Date of judgment: 25 September 2009