The Queen v JPM  NTSC 43
PARTIES: The Queen
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING
FILE NO: 21121767
FORWARDED TO COUNSEL: 15 June 2012
HEARING DATES: 30 and 31 January; 1 and 2 February 2012
JUDGMENT OF: BLOKLAND J
Criminal Law – Rulings on Evidence – Admissibility of a pretext conversation – recent complaint evidence – severance of the evidence of an admitted fact – admissibility of medical evidence
Criminal Code (NT) s 303, s 309,
HML v The Queen (2008) 235 CLR 334; R v Broyles [1991 3 S.C.R. 595; R v East (2003) 13 NTLR 91; Nieterink (1998) 76 SASR 56; Raabe (1985) 14 A Crim R 381; Stuart v The Queen  NTCCA 16; The Queen v Swaffield and Pavic (1998) 192 CLR 159, referred to
Prosecution: Mr Nathan
Accused: Mr Berkley
Prosecution: Office of the Director of Public Prosecutions
Accused: Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: BLO 1207
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
The Queen v JPM  NTSC 43
CORAM: BLOKLAND J
REASONS FOR RULINGS
(Delivered 15 June 2012)
 The accused pleaded not guilty on 30 January 2012 to six counts of having intercourse without consent and to two counts of aggravated assault. The alleged offending occurred between 12 February 2011 and 14 June 2011. The accused also pleaded guilty to one count of aggravated assault, the circumstances of aggravation were that the victim suffered harm, he was a male and she was a female, and she was unable to effectively defend herself due to the situation. All counts involve the same complainant.
 In relation to the contested charges, a number of pre-trial rulings were made. Further, prior to hearing the evidence I ruled that complaint evidence was admissible. After hearing the evidence of the complainant it appeared from certain facts that emerged the complaint evidence was not as a matter of law admissible on that basis. The matter is now set for trial commencing 25 June 2012. Following are the reasons to be read co-extensively with brief reasons given at the time.
The Evidence of the Conversation between the Complainant and the Accused (the pretext conversation)
 A phone conversation took place between the complainant and the accused on 15 July 2011. After the complainant had provided a statement, but before the accused had been charged, Detective Senior Constable Kate McMichael decided to arrange a pretext conversation between the accused and the complainant. The reason was to obtain corroborating evidence. At that stage Detective McMichael did not have corroborative evidence of the complaint in relation to the sexual assaults.
 When the accused was arrested he participated in but made no admissions in a record of conversation with Police. Detective McMichael’s understanding of the facts at that stage was that the accused was the complainant’s partner at the time of the alleged offending. She said the accused was the only suspect. It was explained to the complainant that if she agreed to participate, the conversation would be recorded and that the conversation may disclose admissions to offences. Detective McMichael said she did not “script” the complainant. The idea was to see if admissions could be obtained. Detective McMichael told the complainant to just be natural in her conversation with the accused. The technical side of the pretext conversation was left in the hands of a qualified officer to conduct such conversations.
 Arguments against admissibility of the pretext conversation were made consistent with The Queen v Swaffield and Pavic, providing a basis for excluding admissions when the Police methods used undermine the accused person’s freedom to choose to speak to Police. A broad discretion to reject such evidence was confirmed as part of Australian law.
 Similarly, the Supreme Court of Canada in Broyles v The Queen confirmed a confession should be excluded if an appellant’s right to silence has been undermined. In Broyles a friend of the accused visited him in custody, as arranged by Police. The friend was wearing a recording device and elicited information capable of being used prejudicially. The friend encouraged the accused to ignore his lawyer’s advice to remain silent. The friend explained he participated in this process as Police had requested him to do so and he believed it the right thing to do. The Court considered the friend was an agent of the Police. It was submitted I should find the accused here is in a similar situation; that State power has been used to subvert his right to choose whether or not to speak with authorities. It was submitted the complainant was an agent of the State.
 The relevant authorities were reviewed by Mildren J in R v East, with an additional argument under the Surveillance Devices Act (NT), not relevant here. I would with respect adopt the factors His Honour isolated in that decision concerning the exercise of the discretion. Similar considerations are replicated in many other decisions.
 Broadly, the considerations are whether the conversation erodes an accused’s decision to exercise their right to silence; the extent to which the person (here, the complainant) is an agent of the Police; whether the conversation is in the nature of an interrogation or whether it is merely recording a normal conversation between two persons; and whether there are other reasons (either relating to the accused’s cognitive abilities or compromised mental state) that may render it unfair to admit the conversation.
 I accept in the circumstances of this case, the complainant was an agent of the Police. Given the following factors, I would not exercise the discretion to exclude the conversation on the Swaffield and Pavic basis: the accused and the complainant had been in a relationship; there was no power imbalance favouring the complainant, (indeed there is an incident of violence admitted by the accused against the complainant); the questions could not be seen as the equivalent of an interrogation; and the answers given by the accused are clearly voluntary.
 Where I think the difficulty in admitting the conversation lies is in the ambiguities in the conversation, particularly the answers given by the accused. At one point the accused is recorded denying an allegation of rape; following is conversation about what appears to be the aggravated assault that the accused has entered a plea of guilty to, but in crucial parts of the recording, the accused’s answers are inaudible. In the context of a case of multiple counts, where some of the conversation referrable to an assault has become conflated with a conversation referrable to sexual assault, when the answers suffer from ambiguity and in parts are inaudible, it would be unfair to admit it. Its probative value in light of either denials or inaudible answers is so slight in circumstances where it could create improper prejudice, it should be excluded.
 Relying on the complainant’s statements given to Police, the statement of AG and submissions of Counsel, I had initially formed a view that given the complainant would be giving evidence of ongoing violence, and intimidation, a complaint made some five weeks after the final assault would still qualify as recent complaint.
 After hearing the complainant’s evidence, I realised I had not fully appreciated the sequence of events relevant to the question of recent complaint. The first allegation of non-consensual sexual intercourse occurring was 12 February 2011; the complaint to AG occurred approximately 5 to 6 weeks after (1 – 10 April 2011); two weeks after the first alleged offence the complainant went to Melbourne, (27/28 February 2011) for her brother’s birthday and stayed for three weeks with family members and friends. In my view the length and nature of this time away from the accused diminished the necessary quality of being made at the first reasonable opportunity to qualify as complaint evidence. I agree some significant latitude is possible, indeed logical when assessing whether a complaint is recent in the context of ongoing violence, however this significant break away from the accused interstate, in this particular case, stretches that preparedness for latitude too far. From Melbourne the complainant agrees she texted and phoned the accused in affectionate terms.
 It was also revealed the complainant had access to her case worker throughout the relevant period and had constant access to her Facebook account. The complainant had some belongings in Darwin but it is difficult to see how those belongings (campervan and clothes) would compel her to return to Darwin and the accused in light of the allegations she made. This is accepting, as I do, the need to at times take a cautious approach when violence may be part of the substratum of facts. Contrary to my first ruling, I therefore ruled the complaint evidence inadmissible.
Count 9 – Aggravated Assault – Admission of evidence of the assault - severance
 The accused has entered a plea of guilty to count 9, aggravated assault committed on 27 June 2011. The facts alleged are that the assault was committed at Berry Springs at the low-level crossing, just past the Litchfield Hotel; that the complainant was seated in a car when the accused reached in and dragged her out by the hair, pulling her to the ground; that the accused kicked her to the ribs around seven times and hit her with an open hand knocking her down when she tried to stand; and that he grabbed her by the hair and dragged her towards his car before throwing her into the creek.
 Not all facts alleged forming the basis of count 9 are accepted by the accused. The accused sought to have count 9 severed from the indictment and evidence of it excluded. It was submitted that given the plea to count 9, evidence of the assault was no longer a material issue; it was no longer relevant; its only use would be to prejudice the jury and provide propensity evidence. It was submitted the likely effect of the evidence being accepted would be that the jury would reason if the accused were guilty on count 9, he would be guilty of all other charges. That of course would be improper reasoning, however I acknowledge prejudice is a risk if not dealt with by an appropriate direction.
 In relation to severance of count 9, the Crown is relying on the facts that comprise the assault as relevant to illustrate the true nature of the relationship between the accused and the complainant so that the allegations of non-consensual sexual intercourse are seen in the context of the particular relationship. Without that evidence, it is argued the jury would be left with an artificial understanding of the relationship.
 From my understanding of the case thus far, there will be evidence (albeit contested) of assaults in close proximity to the first two counts of the alleged sexual intercourse without consent. Count 9, (although admitted by the accused in part), is to be led as further evidence of the terms of the relationship. It is after the offending alleged in count 9 that the relationship apparently finished and Police become involved. In my view this evidence may be regarded as relationship evidence demonstrating the nature of the relationship between the two. Relationship evidence may provide evidence of the victim’s state of mind, and if accepted may provide reasons why the complainant submitted to continuous alleged degradation in what would otherwise be surprising given the parties were in a relationship. Although dealing with a different form of relationship evidence, I have drawn on the discussion to this effect by Doyle CJ in Nieterink, cited in the various judgments in HML v The Queen without criticism.
 Similarly, the evidence of violence may be regarded as context evidence, making the evidence given about the specific charges more intelligible. In my view it may explain conduct that would otherwise seem surprising or unlikely such as the complainant staying in a relationship with the accused. Provided it is foreshadowed to be an issue, so as not to breach the bolster rule, it may be relevant to failure to complain or contact Police. I accept on this issue, the evidence may only be admissible in re-examination depending on the case put to the complainant, however the evidence remains admissible in chief for other reasons I have already mentioned. Further, without the evidence of ongoing violence as alleged, (including the facts comprising count 9), the jury may well form an impression the allegations arose “out of the blue”, in the context of an amicable relationship. On the Crown case, it was not.
 Although the facts comprising count 9 represent the last of a number of allegations of violence, and post-date by around 6-7 days the last alleged count of sexual intercourse without consent, they are nevertheless part of the overall evidence of the terms of the relationship. It is part of the evidence necessary to render the evidence complete and comprehensible, avoiding the jury having to decide the case in a vacuum. I agree a direction against the improper use of the evidence and an anti-substitution direction will need to be given, however in my view the evidence, along with other evidence possesses significant probative force.
 Except as otherwise provided, s 303 Criminal Code requires an indictment must charge one offence. Section 309 permits charges to be joined in the same indictment “if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or are a series of offences committed in the prosecution of a single purpose”. Joinder of all the counts on the indictment is justified under s 309 Criminal Code, notwithstanding the plea (albeit on contested facts) to count 9. As the evidence of violence is admissible in the manner I have found, I do not consider there to be an unacceptable risk of prejudice in allowing count 9 to remain on the indictment. The evidence will be permitted whether or not a plea is entered to count 9.
 Given a number of facts that allegedly underpin count 9 are still in issue, in my view the photos of injuries are admissible in the usual course. The fact that the injuries are not in dispute but the number or types of blows are, does not make the photos of the complainant’s injuries inadmissible. In Raabe the Court of Criminal Appeal (QLD) rejected the proposition that removal of an issue at trial by virtue of an admission of fact renders the proposed evidence irrelevant. The photos are clearly probative, not only of the injuries themselves but also of the mode of injury. They are not improperly prejudicial.
 On behalf of the accused objection was taken to medical evidence sought to be led about the likelihood of scarring around the anus and the potential for the anus to heal. No genital examination of the complainant was conducted. The evidence is general medical opinion on the subject. It was argued that if the accused denied the occurrence of the incidents, the medical evidence cannot render the occurrence of anal intercourse more probable. Further, it was suggested the proposed evidence invites speculation on why there is no medical evidence, which is prejudicial to the accused.
 Given the allegations are of non-consensual anal intercourse, in the context of this case, the evidence concerning the likelihood of scarring and the potential for the anus to heal are matters that fall out of the experience of the ordinary person and are amenable to an expert medical opinion. The opinion is likely to be relevant to a number of issues, depending on how the evidence unfolds. It has a capacity to explain why there is no injury that without the medical evidence the jury might expect to be present; it will assist the jury to assess the complainant’s evidence about discomfort and blood after the alleged incidents and it assists to explain why no medical examination of the anus was conducted on the complainant. Rather than inviting speculation against the accused’s interests, in my view the evidence will tend to stop speculation about injury and is useful in the context of this case. I would not exclude it.
 These reasons will be forwarded to both Counsel prior to the commencement of the trial.
 (1998) 192 CLR 159.
 R v Broyles  3 S.C.R. 595.
 (2003) 13 NTLR 91.
 I was taken to R v Belford and Bound  QCA 43. Eg R v M  QCA 486; R v Burt (2006) 1 QD R 28; The Queen v Franklin  VSC 217; R v Lieske  ACTSC 97; R v Roba (2000) 110 A Crim R 245; Dewhurst (2001) 122 A Crim R 403; Vale v The Queen  WASCA 21; Juric (2002) 12 A Crim R 403.
 28 June 2011; 4 July 2011 at para 33.
 (1998) 76 SASR 56.
 (2008) 235 CLR 334.
 HML v The Queen (2008) 235 CLR 334 at para 295; Stuart v The Queen  NTCCA 16.
 Raabe (1985) 14 A Crim R 381.