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District Court 25 March 2022

R v Schifilliti

[2022] NSWDC 704

Sexual offences
TRIAL HEARING ADMISSIBILITY OF RELATIONSHIP EVIDENCE RELATIONSHIP EVIDENCE CONTEXT EVIDENCE PRE TRIAL RULING BY DIFFERENT JUDGE

Citation: R v Schifilliti [2022] NSWDC 704
Court: District Court of New South Wales
Date: 25 March 2022
Judge(s): Sutherland SC DCJ

Background

The accused was committed for trial in the District Court in December 2020, facing four counts relating to alleged non-consensual sexual touching and sexual intercourse without consent involving his then-wife. All four alleged incidents were said to have occurred on the evening of 28 March 2020, within the matrimonial home.

Pre-trial argument had originally been heard in July 2021 by Syme DCJ, before the trial itself was unable to proceed due to COVID-19 public health restrictions. Those pre-trial rulings were then revisited before Sutherland SC DCJ when the matter came before him at the point of trial.

Shortly before Sutherland SC DCJ delivered his remarks, the Crown advised that the complainant had made a further statement alleging specific additional incidents of sexual intercourse on earlier occasions, and that the Director intended to file fresh charges. That development made it impossible for the empanelled jury to continue, and the jury was discharged.

  • Whether the four counts on the indictment should be tried separately (severance), given that all alleged incidents occurred within the one evening
  • Whether evidence of the prior nature of the relationship between the accused and the complainant, including alleged past abuse, violence, and controlling behaviour, was admissible as relationship or context evidence, or was in fact impermissible tendency evidence
  • Whether a recording made by the complainant on her mobile phone the morning after the alleged assaults was admissible, given arguments that it may have contravened the Surveillance Devices Act 2007 (NSW)
  • What procedural consequences followed from the complainant's late disclosure of additional allegations, rendering the empanelled jury unable to continue

Decision

Severance: Sutherland SC DCJ endorsed the ruling of Syme DCJ refusing the application for separate trials. The alleged incidents all occurred on a single evening within a confined period of time, and there was no proper basis to separate the sexual touching counts from the sexual intercourse without consent counts. His Honour described the earlier refusal as correct.

Relationship and context evidence: Syme DCJ had admitted evidence of the nature of the relationship between the accused and the complainant, including past alleged abuse, verbal degradation, physical violence, sexual coercion, and threats. The Crown's argument, accepted by Syme DCJ and not disturbed by Sutherland SC DCJ, was that without this background context, a jury might find the complainant's reaction to the alleged assaults (remaining in the bed, putting on a sleep mask, and not leaving the home) implausible or inconsistent with genuine non-consent. The relevant legal basis was that the relationship was characterised by domination, hostility, and control, following the High Court's approach in Wilson v The Queen (1970) 123 CLR 334.

The mobile phone recording: The judgment notes that a challenge was brought on the basis of the Surveillance Devices Act 2007 (NSW), but the text of the decision provided does not contain the final ruling on this point. His Honour indicated he was prepared to continue working through remaining evidentiary refinements.

Discharge of jury: Once the Crown disclosed the complainant's further statement alleging earlier incidents and indicated its intention to file additional charges by way of ex officio indictment, it became common ground that the empanelled jury could not continue. Sutherland SC DCJ discharged the jury and stood the matter over for relisting, while granting leave to the accused to bring any costs application arising from the trial's inability to proceed.

Orders Made

  • Application for separate trials refused (endorsing the ruling of Syme DCJ)
  • Empanelled jury discharged
  • Matter stood over for relisting before the Listing Director
  • Leave granted to the accused to bring a costs application if desired
  • Further evidentiary refinements to be addressed at a convenient time

Key Takeaways

  • Relationship or context evidence depicting a pattern of domination, hostility, and control by an accused towards a complainant may be admissible where, without it, a jury might find the complainant's behaviour during or after an alleged assault difficult to understand or implausible.

  • The District Court confirmed that framing such evidence as "tendency evidence" does not automatically render it inadmissible; the characterisation and purpose for which it is tendered is determinative, and courts will examine whether the evidence serves a legitimate contextual function.

  • Where multiple charges arise from a single episode closely confined in time, a severance application faces a high bar; the fact that the alleged offending escalated across that episode did not make separate trials necessary or appropriate here.

  • A pre-trial ruling made by one District Court judge on admissibility and severance remained in place when the matter came before a different judge at trial, illustrating the ordinary operation of case management continuity across judges in the same court.

  • Late disclosure of new allegations by a complainant, sufficient to warrant additional ex officio charges, can render it impossible for an empanelled jury to continue and may give rise to a costs application by the accused arising from the aborted trial.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Surveillance Devices Act 2007 (NSW)

Cases:
- Wilson v The Queen (1970) 123 CLR 334
- HML v The Queen; SB v R; OAE v R [2008] HCA 16; 235 CLR 334
- Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
- Gipp v The Queen (1998) 194 CLR 106
- Harriman v R [1989] HCA 50; (1989) 167 CLR 590
- KJS v R [2014] NSWCCA 27
- KTR v R [2010] NSWCCA 271
- Norman v R [2012] NSWCCA 230
- Landsman v R [2014] NSWCCA 328
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- DJV v R [2008] NSWCCA 272
- R v AN [2000] NSWCCA 372; 117 A Crim R 176
- R v Belghar [2012] NSWCCA 86
- R v Yates [2002] NSWCCA 520
- R v A (No 2) [2015] NSWSC 76
- R v AN (No 2) [2015] NSWSC 308
- R v Atroushi (2001) NSWCCA 406
- Josifoski v The Queen (1997) 2 VR 68
- Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601
- Re Mickelberg (1992) 59 A Crim R 288
- R v Etherington (1982) 32 SASR 230