Page (a pseudonym) v R

BEAZLEY P: I agree with Fullerton J.

HIDDEN J: I agree with Fullerton J.

FULLERTON J: On 28 May 2013 the applicant commenced proceedings pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 seeking leave to appeal against the refusal by Conlon DCJ to order the severance of five counts, variously of assault and assault occasioning actual bodily harm to [name redacted] ("the assault charges"), from an indictment where she is charged with being an accessory after the fact to the manslaughter of [name redacted] ("the accessory count"). The assault charges were laid ex officio and were included on the indictment by leave granted by the trial judge on 27 May 2013.

Counts 1 and 3 allege common assaults variously committed by the applicant between dates ranging from February 2005 to October 2008 (Count 1) and January 2008 to October 2008 (Count 3), in each case involving the applicant striking the deceased to the face and head with her hand. Counts 2, 4 and 5 allege three counts of assault occasioning actual bodily harm and range between similar dates to those alleged in Counts 1 and 3. The harm inflicted included burns to the deceased's hands when the applicant forcibly placed them on the hot plates on a kitchen stove, lacerations to her face when the applicant forced the deceased's head through a glass door and injuries to her forehead when she was struck with a metal pole from a vacuum cleaner.

The accessory count alleges that between 12 October 2008 and 3 March 2011 the applicant, knowing that [name redacted] had "feloniously slayed" [name redacted], assisted her to avoid apprehension. [name redacted] is the applicant's mother. She has pleaded guilty to the manslaughter of the deceased in this Court. The conduct of the applicant relied upon by the Crown as constituting the assistance afforded her mother includes arranging for the deceased's body to be removed from the applicant's home and buried in the backyard of her mother's home and fabricating an account of the deceased having taken up residence in Melbourne which she claimed was confirmed by telephone contact with the deceased from time to time between October 2008 and March 2011.

[name redacted], the applicant's son, is also charged with being an accessory after the fact to the manslaughter of [name redacted]. The trials of the applicant and her son are being heard jointly. His Honour ordered the severance of a single count of assault charged against [name redacted] for reasons that had no bearing on the disposition of the current application.

His Honour gave reasons refusing the application for severance of the assault counts on 28 May 2013 and, so it would appear, directed that the trial commence the following day. On 29 May 2013 the jury were empanelled. The trial has proceeded uninterrupted since that date.

The appeal was heard on an expedited basis on 5 June 2013. The trial was in progress at the hearing of the appeal. After hearing argument the following orders were made: 1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the order of the trial judge made on 28 May 2013 refusing the applicant's application to sever Counts 1-5 from that of Count 7. 4. Order that Count 7 on the indictment be tried separately from Counts 1-5 on the indictment. 5. Direct the Registrar forthwith to convey these orders to the Registrar or relevant officer at the District Court in [name of town redacted]. 6. Reserve reasons for these orders. 7. The Court's published reasons in this matter be suppressed until further order.

The deceased was born on 7 June 1990 and commenced living with the applicant and her children at [name of suburb redacted] in 2005, aged 15, after her relationship with her mother deteriorated. She remained living with the applicant until her death around 12 October 2008. [name redacted] and [name redacted] are the applicant's daughters. They have younger sisters and brothers. The applicant's son (and co-accused) also lived with the applicant. [name redacted] lived permanently with the applicant until 2011 and has been estranged from her since that time. [name redacted] lived with the applicant from time to time, either alone or with her girlfriends. The applicant's daughters are both to be called by the Crown at the applicant's trial. Friends of [name redacted] who visited the applicant's home are also to be called by the Crown. Although [name redacted] lived in a neighbouring suburb she was frequently at the applicant's home.

It is the Crown case that whilst residing with the applicant the deceased was subjected to systematic physical and mental abuse at the hands of the applicant and [name redacted]. The Crown alleges that the assault charges are not isolated incidents but representative of the abuse the deceased suffered at the hands of both the applicant and the applicant's mother over a number of years before her death in October 2008. The applicant's daughters witnessed the abuse as did other visitors to the applicant's home.

On 12 October 2008 the applicant attended a festival in [name of suburb redacted] with her daughter [name redacted]. Before [name redacted] left [name of suburb redacted] to go to the festival, the deceased showed her a significant soft tissue injury to the right side of her head. [name redacted] told her mother. The applicant then spoke to [name redacted] and told her not to harm the deceased whilst she was away. The deceased was also seen to be in an injured but conscious state by other witnesses on the afternoon of 12 October 2008.

Whilst in [name of suburb redacted] the applicant was contacted by [name redacted] on [name redacted]'s mobile phone and told that the deceased was lapsing in and out of consciousness after [name redacted] had hit her with a hammer. The applicant then spoke to [name redacted]. She told him to place the deceased under the shower and not to let her fall asleep and then to put the deceased in the caravan and not allow the younger children to see what he was doing. [name redacted] reported that the deceased was barely breathing.

On her return to [name of suburb redacted] the applicant spoke with [name redacted] and [name redacted]. By this time, the deceased was dead and her body was in the caravan. [name redacted] and her siblings (except [name redacted]) spent the night at the home of one of the applicant's friends at the applicant's direction.

The applicant retained [name of company redacted] to dig a hole at the residence of [name redacted] in [name of suburb redacted], purportedly to bury a family dog which was to be buried at that location to prevent the children learning of its death. The Crown intends to call evidence that the family dog died some years earlier. [name redacted] was told by the applicant that the dog's body was in a bag. He was paid $80. The applicant drove [name redacted] and [name redacted] to her mother's home at [name of suburb redacted] where a hole was dug. On completion the applicant arrived to inspect the size of the hole. An empty "wheelie" rubbish bin was placed in the hole to confirm its capacity. The excavated dirt was left next to the hole.

In February 2011 the deceased's body was found by police in a buried wheelie bin at [name redacted]'s home. Peri-mortem fractures to both shoulder blades and the left maxilla were noted on autopsy which, in the view of the pathologist, were consistent with having been inflicted by both the head and claw of a hammer. Following publicity surrounding the discovery of the deceased's body, [name redacted] made a statement to police.

The day after the deceased's death the applicant told [name redacted] and her siblings that the deceased had run away. Over the ensuing years, the applicant told anyone who queried her about the whereabouts of the deceased (including the deceased's mother) that she had moved interstate with her boyfriend and that she would occasionally telephone. The applicant gave a similar account when interviewed by police in February 2011. She also claimed that she had a good relationship with the deceased and that they "got along well together".

It was common ground that the jurisdiction under s 5F of the Criminal Appeal Act was properly invoked on the application (see Dao v R [2011] NSWCCA 63, 81 NSWLR 81). Accordingly, the question for the Court was whether the discretionary decision of the trial judge to refuse severance was infected with error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499.

The applicant submitted that permitting the Crown to join the assault charges and the accessory charge on the one indictment was an error of principle, in that it was based upon an acceptance of the Crown's characterisation of the evidence it proposed to lead in proof of the assault charges as relationship or context evidence relevant to proof of the accessory charge when, on a proper analysis, the evidence did not qualify for admission on that basis. The applicant submitted that evidence of the assaults by the applicant is not relevant to proof of a fact in issue on the accessory count (an offence that is proved by reference to her conduct in concealing the death of the deceased with the intention of avoiding her mother's apprehension), and that the only use that could be made of the evidence was for an impermissible tendency or propensity purpose, namely that she had a proven animus towards the deceased and for that reason was both unlikely to notify the authorities upon learning of the demise of the deceased and more likely to have disposed of her body in the way she did.

The Crown submitted that the evidence of the assaults by the applicant contradicts the applicant's claim that the relationship between her and the deceased was "good" and that, in truth, the relationship was physically violent and personally exploitative and that the Crown should be permitted to prove that fact so as to permit the jury to assess the applicant's conduct (and her state of mind) in disposing of the deceased's body in a proper context and not, as the Crown submitted, "in a vacuum". The Crown submitted that without the evidence of the assaults, the jury would not be able to make a rational assessment of the conduct of the applicant relied upon by the Crown as pivotal to proof of the accessory count. The Crown submitted that in the absence of the jury knowing the way the applicant had mistreated the deceased over many years (of which the five assault counts were an example), they would be entitled to view her alleged conduct in concealing the death as inexplicable or a fanciful account given by an estranged daughter.

The Crown also submitted that the evidence of the assaults exposes the applicant's claim to police that her relationship with the deceased was "good" to be a lie and that it ought be permitted to lead the evidence of her sustained and systematic assaults of the deceased in the Crown case as credibility evidence. I note that on the appeal the Crown conceded that should the applicant agree to the ERISP being edited to exclude the assertion that the relationship was good and that she and the deceased "got along well together", then the use of the evidence of the assaults for credibility purposes could not be sustained. I apprehend that the applicant's counsel on the appeal appreciated the forensic significance of that concession. Self evidently, were the applicant to make that claim (or a similar claim) in her case the Crown would have a legitimate basis for leading evidence in reply.

The applicant also submitted that even were it open to characterise the evidence of the assaults as context or relationship evidence, the probative value of that evidence was far outweighed by the risk of unfair prejudice to the applicant in the jury's consideration of the accessory count, and the trial judge's discretion miscarried when determining that he could frame directions to the jury as to the limited use that could be made of the evidence in their consideration of whether the Crown had proved guilt on the accessory charge which would adequately ensure against that risk.

I am satisfied that his Honour was in error in his characterisation of the evidence going to proof of the assault charges as also capable of being used as relationship or context evidence in proof of the accessory charge. In R v Norman [2012] NSWCCA 230, the Crown sought to lead evidence of physical and verbal abuse prior to the index offences of sexual assault to prove the nature of the relationship between the accused and the complainant. Macfarlan JA (with whom Price and McCallum JJ agreed) rejected that as a sufficient basis for the admission of uncharged acts of violence, observing at [33] that evidence of that kind is not relevant merely because it reveals aspects of a relationship (between the accused and the complainant), it is essential that there is a fact in issue which the evidence may explain or resolve by placing the alleged events in their true context.

A succession of cases in this Court following and applying Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 have emphasised that it is the potentially prejudicial character of the evidence of the uncharged acts of violence or sexual misconduct in a trial where specific sexual offending is charged which obligates the Crown to identify the precise basis upon which the evidence is said to be relevant before it is admitted as relationship or context evidence.

Similarly, in this case the Crown was obliged to identify the basis upon which the evidence of the applicant's assaultive mistreatment of the deceased is relevant to proof of the accessory count. Here, of course, the evidence is not limited to uncharged acts or a generalised account of the applicant's violent mistreatment of the deceased. It is the very evidence the Crown intends to call to prove the commission of multiple offences included on the indictment. In my view, in those circumstances, the burden on the Crown to both satisfy the test of relevance and to advance a persuasive submission that the fairness of the trial will not be put at risk by having a joint trial of all counts is a particularly onerous one.

While there is some force in the Crown's submission that the evidence of the applicant's past assaultive mistreatment of the deceased explains her conduct on the day of the deceased's death, and for some years thereafter, inherent in that submission is the identification of the precise issue to which proof of her conduct is directed. The accessory charge itself makes it clear that the conduct alleged against the applicant is directed to preventing her mother's culpability being revealed. It follows, necessarily, that the evidence under challenge must be relevant to proof of that fact or some other issue raised by the charge. Even were it open to the jury to consider that the applicant's motives in concealing the deceased's body might be mixed, in the sense that in addition to preventing her mother's apprehension she was also concerned to avoid being implicated in the death of the deceased having left her with her mother in circumstances where she knew of her mother's habitual violent mistreatment of the deceased, this would not entitle the Crown to lead evidence of the applicant's mistreatment of the deceased since she is only charged with accessory to her mother's culpable homicide.

In the result, as I see it, the only relevance of the evidence of the assaults by the applicant is for an impermissible propensity purpose and, a fortiori, Counts 1 to 5 should be severed from the indictment.

The Crown conceded on the appeal that the evidence going to proof of the assault charges was highly prejudicial. Even if, contrary to my view, the evidence is relevant, its probative value is so far outweighed by the danger of unfair prejudice as to warrant its exclusion (and, a fortiori, the severance of the counts). In circumstances where the jury would also be urged by the Crown to find the assaults proved beyond reasonable doubt for the purposes of returning verdicts on Counts 1 to 5, I am unable to conceive of any direction that would ensure the jury would only use their consideration of that body of evidence in some restricted way when determining whether the Crown had proved beyond reasonable doubt that the applicant concealed the death of the deceased to avoid her mother's apprehension by arranging for the deceased's body to be buried in a rubbish bin on the pretext that it was a grave for a dog.