Azizi v The Queen [2012] VSCA 205

2 On 3 February 2010, the applicant was found guilty of the murder of his wife after a two-and-a-half-week trial in the Supreme Court. On 8 April 2010, he was convicted and sentenced to 22 years' imprisonment with a non-parole period of 17 years and six months. He now seeks leave to appeal his conviction on the grounds of wrongful admission of evidence, erroneous directions to the jury and the failure by the trial judge to leave an alternative verdict of defensive homicide for the jury's consideration. A separate application by the applicant for leave to appeal his sentence has been abandoned.

3 The applicant and the deceased, Marzieh Rahimi, were Afghans. They were cousins. They married in Afghanistan in 1993 when the applicant was aged 29 and the deceased 19. They had five surviving children, the youngest having been born approximately three months before the deceased's death. They lived in Afghanistan for nearly four years after their marriage and then fled Afghanistan and became refugees in Iran. They were accepted for immigration to Australia as refugees and arrived in June 2005.

4 On the afternoon of 20 November 2007, the applicant strangled the deceased with her scarf. He telephoned 000 and told the operator that he had killed his wife. When police arrived, the applicant answered the door. He confirmed he had called police and said 'you can handcuff me now'. Police asked 'did you kill your wife?' and the applicant repeated 'you can handcuff me'.

5 The strangulation injury that caused the deceased's death resulted in petechial haemorrhages in the inner eye. A forensic pathologist gave evidence that such

haemorrhages take at least 15 to 30 seconds to form, or possibly longer if a person is struggling. The deceased's voice box was broken, with fractures to the hyoid bone and thyroid cartilage. There was haemorrhaging within the four layers of strap muscle under the ligature mark, which demonstrated that at least moderate force had been applied. The deceased also sustained blunt trauma injuries to her forehead and lip and had bruising on her right breast, lower back, left shoulder, forearm and elbow and left middle finger and abrasions on her left wrist. Some of these injuries were described by the forensic pathologist as being 'consistent with defence-type injuries, ... the kind of injuries that might be produced in the setting of someone struggling to protect themselves'.

6 The applicant admitted that he punched the deceased once or twice. A medical practitioner who examined him on 20 November 2007 found redness on his right knuckle, three fingermark-type abrasions on his right arm and a circular mark on his upper thigh which was consistent with his having been bitten and which, he said, was caused by the deceased biting him through his jeans.

7 Several neighbours had heard yelling and arguments coming from the applicant and deceased's house during the time that they had lived there. One neighbour heard an argument in the house at about lunchtime on 20 November 2007.

8 Catherine Mackinnon, a co-ordinator at the Enhanced Maternal and Child Health Service, a facility of Casey municipality, had met the deceased a number of times at the family home. Monis Khaliqy had been present as an interpreter. They had discussed the deceased's life and relationship with the applicant. The deceased told them that the applicant criticised her parenting and restricted her ability to leave the house and interact with other people. On 1 November 2007, about three weeks before her death, the deceased telephoned Ms Mackinnon and told her that on the previous night the applicant had hit her on the back and threatened to kill her and that she had telephoned police but they had not come. She told Ms Mackinnon that the applicant had beaten her on previous occasions and that this had gone on since their wedding night. The deceased asked Ms Mackinnon to contact the police on her behalf. Ms Mackinnon referred the deceased to Magitha Suresh, a family violence case worker at a local domestic violence assistance organisation called 'WAYSS'. Ms Mackinnon met the deceased again on 7 November 2007. The deceased told her that an incident had taken place in which she had locked herself and her two youngest children in her bedroom for three days. The last occasion on which Ms Mackinnon saw the deceased was on 14 November 2007. On that occasion, the deceased said she had told the applicant that if he did not change she would report him to the authorities. He had been upset about this.

9 Magitha Suresh met the deceased once, on 2 November 2007. The deceased told her she was unhappy with the applicant and that he was being bad to her. She said that there had been an 'incident' the previous day and that she had called police but they had not come. She did not tell Ms Suresh what the incident was. The deceased was interested in obtaining information about intervention orders and Family Court procedure and wanted to know whether she would be able to take the children with her to live in a refuge. The deceased cancelled subsequent appointments with Ms Suresh. Ms Suresh also conducted her conversation with the deceased on 2 November 2007 through an unidentified interpreter.

10 Monis Khaliqy, a Dari interpreter who had interpreted for the deceased at a number of appointments since 2005, was called to give evidence of what the deceased said at various times, including during some of her meetings with Catherine Mackinnon.

11 The deceased's sister, Shookria Abid, said that she spoke to the deceased on the telephone about twice a month during the period in which the deceased and the applicant lived in Iran. She said that during this period the deceased told her about an incident in which the applicant had beaten her. The incident had occurred shortly after the applicant and deceased's wedding. One month before her death, the deceased told Ms Abid that her life was very bad and that all the things that were happening to her when she was in Iran were happening again. She said that on two occasions the applicant had thrown her out of the house in the morning and she had not returned until night time. She said that the applicant had been beating her and that a social worker was coming to the house for a visit but the applicant was not happy about this. Ms Abid gave evidence that she told the deceased to give the applicant another chance but the deceased said that she had given him enough chances and would not give him another.

12 Approximately a week before the deceased died, the applicant telephoned Ms Abid and they had a lengthy conversation. The applicant told Ms Abid that the deceased had become too Australian and had changed and wanted to divorce him. Ms Abid also spoke to the deceased. She told her not to divorce the applicant and to give him another chance. The deceased replied 'No, I don't think that he will change. I don't want to give another chance'. Three days prior to the deceased's death, the deceased called Ms Abid and advised that she had a new telephone number. The deceased said 'I'm very worried and something might happen from Azizi to me. I'm very worried'. After the deceased's death, Ms Abid had a number of conversations with the applicant in which he told her that the deceased's death had been an accident.

13 The Crown case was that the applicant struck the deceased forcefully on one or more occasions on the day she died and thereafter strangled her with her scarf. He strangled her for a considerable period of time and did so with the intention of killing her or causing her really serious injury. She inflicted some injuries upon him whilst fighting for her life.

14 The Crown contended that the applicant's claim that the altercation was initiated by the deceased pushing him over and then biting him was a lie. This version of events was, the Crown said, inconsistent with the evidence. The Crown relied upon expert evidence that blood found on the applicant's jeans belonged to the deceased. This demonstrated, the Crown argued, that the deceased had been struck, and had been bleeding from her lip, before she bit the applicant on the thigh. The Crown also relied upon the defensive wounds suffered by the deceased.

15 The Crown contended at trial that the applicant had a tendency to inflict physical violence on or to act in an abusive manner towards the deceased during their marital relationship. It relied upon the evidence of the witnesses Mackinnon, Suresh, Khaliqy and Abid to prove this tendency.

16 The defence case was that the applicant did not intend to kill or cause really serious injury to the deceased. He had acted in self-defence and the deceased's death was accidental. He gave evidence that on the day of her death the deceased had thrown one of their children on the floor and that when he went to pick the child up she pushed him to the ground. She then got on top of him and bit his thigh, causing a 'burning pain'. He retaliated, punching her 'once or twice', and grabbing the scarf she was wearing in an effort to pull her away as he was experiencing pain from the bite. He pulled both ends of the scarf until she stopped biting him. He did not apply much pressure on the scarf and did not pull on it for very long.

17 The applicant gave evidence that his and the deceased's relationship had been peaceful prior to the birth of their fourth child. After this, the deceased had become homesick and upset. After the birth of their fifth child, she had changed and had become verbally and physically abusive towards the children. Approximately one and a half months before her death, the deceased had told him that she wanted to divorce him. The applicant and the deceased had spoken to the deceased's sister in America about this and it had ceased to be an issue. The applicant and the deceased had verbally argued on 1 November 2007 but he had not hit her. He said she appeared to have post-natal depression and had become more aggressive towards him after having a contraceptive device implanted shortly before her death. The applicant said he had been grateful that the deceased was receiving support from maternal health services.

18 The applicant said he had never been physically violent to, or otherwise abused, the deceased. He denied the allegations of violence and other abuse that the deceased had made to the witnesses Mackinnon, Suresh, Khaliqy and Abid. His counsel argued that their evidence was hearsay and not supported by independent sources and that the allegations themselves were vague and impossible to assess. The couple's 13-year-old daughter gave evidence that she had never seen the applicant physically or verbally abuse the deceased and had never seen the deceased with any cuts or bruises. She had seen the applicant and deceased arguing sometimes and had seen the deceased being violent towards some of the children.

19 The applicant's trial commenced on 18 January 2010 and was, accordingly, to be conducted within the then new evidentiary regime created by the Evidence Act 2008 ('the Act'). As the Crown sought to rely upon statements made by the deceased to the four witnesses referred to in [7] to [10] above, it served notices pursuant to two sections of the Act on the applicant - a notice pursuant to s 67(1) concerning hearsay evidence ('the hearsay notice') and a notice pursuant to s 97(1)(a) concerning tendency evidence ('the tendency notice').

20 The Crown's hearsay notice advised the applicant that it intended to lead evidence of 'representations' made by the deceased to various people as evidence of the truth of those representations. The witnesses were listed as: Shookria Abid, the deceased's elder sister, to depose to six representations said to have been made by the deceased to her over about the ten years leading up to the deceased's death in which the deceased said that she had been assaulted and generally abused by the applicant; Monis Khaliqy, a Dari interpreter, who, it was said, heard representations made by the deceased to similar effect between 13 September 2007 and 7 November 2007; Magitha Suresh, a family violence worker, who would depose to a representation made by the deceased on 2 November 2007 to similar effect; and Catherine Mackinnon, a social worker, who would prove similar representations made by the deceased between 1 November 2007 and 14 November 2007.

21 The tendency notice advised the applicant that the Crown intended to use a number of the facts that it proposed to prove by admissible hearsay, as referred to in its hearsay notice, to demonstrate that he had a tendency to act in a particular way towards his wife ― namely, to inflict physical violence on her or act in an abusive manner towards her during their marital relationship. This tendency was said to be relevant to the applicant's state of mind at the time he killed his wife. A tendency to inflict physical violence on her or abuse her in the course of their marriage could be used by the jury, the Crown contended, as evidence in support of the Crown's contention that when the applicant killed her he did so with the requisite intent to constitute the crime of murder.

22 At trial, defence counsel sought to have the hearsay referred to in the hearsay notice excluded. He relied generally on the fact that none of it was corroborated and submitted that, in any event, its probative value was outweighed by its unfairly prejudicial effect. In putting this argument, counsel appears to have conflated the question of the technical admissibility of the hearsay as such with the question of its relevance and hence the admissibility of it to prove facts which might be relevant to the mental element for murder. There was little analysis of the hearsay sought to be adduced, nor was there any separate consideration of its relevance as proof of a tendency in the applicant or the relevance of that tendency to the proof of intent or any of the other elements of the charge of murder.

23 The trial judge rejected defence counsel's argument ex tempore. Her Honour gave no reasons for reaching this conclusion and expressed it as being 'provisional'. She drew no distinctions between any of the representations alleged. She considered that all the material should be admitted and that it was 'certainly admissible as relationship evidence'. Subsequently, her Honour said that the evidence was admissible as tendency evidence, again, without reasons. The blanket admission of the hearsay recounted by Monis Khaliqy and Catherine Mackinnon was preceded by a short voir dire in respect of their evidence but that process did not elicit any more than they ultimately said in the course of their subsequent evidence before the jury. Nor did it explore any of the matters relevant to establishing the conditions precedent to admissibility of the hearsay relied upon by the Crown in this case ― the matters referred to in ss 65(2)(b) and (c) of the Act. Neither Ms Suresh nor Ms Abid's evidence was the subject of a voir dire.

24 In a written ruling published on 10 August 2011, the trial judge described the contents of the tendency notice and concluded that the evidence contained in the 16 pieces of evidence to which the notice referred 'was evidence of the relationship between the deceased and the accused and clearly admissible to provide the context in which these otherwise isolated acts, on Tuesday 20 November 2007, occurred'.[1] Her Honour also decided that the evidence was capable of demonstrating a tendency in the applicant to act in a particular way over a lengthy period of time which could be seen as 'powerful and strong evidence capable of refuting the version of events given by the accused as to how the deceased met her death'.[2] In reaching her conclusion as to tendency, her Honour did not acknowledge that the only evidence that the applicant had physically abused the deceased was hearsay. She did not say why she considered that hearsay admissible despite the hearsay rule, nor did she make the determination required by s 97(1)(b) of the Act as to whether the tendency evidence, either alone or with other evidence, was of 'significant probative value'. Her Honour concluded her ruling by holding that the probative value of the evidence substantially outweighed its prejudicial effect and that the evidence was therefore admissible. She referred to R v Joiner,[3] a case concerned with the probative value and prejudicial effect of tendency evidence and its admissibility under s 101(2) of the Evidence Act 1995 (NSW), a provision identical to s 101(2) of the Act.

25 In accordance with the trial judge's oral ruling, the Crown called each of the persons referred to in the hearsay notice to depose to what the deceased had told them. The Crown called other witnesses and closed its case. It did not call any interpreter other than Monis Khaliqy to depose to having properly interpreted representations made by the deceased to the witnesses Suresh and Mackinnon.

26 The applicant now seeks leave to appeal his conviction for murder on the following grounds:

1. The learned trial judge erred in admitting evidence of the deceased's statements to Catherine Mackinnon, Magitha Suresh, Shookria Abid and Monis Khaliqy about previous physical, psychological and emotional abuse by the applicant as it was (i) not relevant; (ii) hearsay; and/or (iii) should have been excluded pursuant to s 135 or s 137 of the Evidence Act 2008 because of its limited probative value and significant prejudicial effect.
2. The learned trial judge erred in directing the jury that the evidence of what witnesses had been told by the deceased could be used as evidence of the applicant's tendency physically to assault the deceased.
3. The learned trial judge erred in failing to leave the alternative verdict of defensive homicide to the jury.
4. The learned trial judge erred in her directions on the applicant's evidence on the question of proof of the intention required for murder; and in particular, she erred in directing in a manner which tended to cast on the applicant a burden of proving an absence of intention.

27 For reasons which appear at [84] to [96], I would grant the applicant leave to add an additional ground, Ground 5, in the terms set out at [96].

28 The first of these grounds challenges the admissibility of the evidence of the four Crown witnesses who were the subject of both the hearsay notice and the tendency notice. The applicant argued that that evidence was irrelevant, inadmissible hearsay and, in any event, should have been excluded by the trial judge pursuant to ss 135 or 137 of the Act. The second ground asserts that the trial judge ought not to have permitted the hearsay related by these witnesses to be used to establish the tendency in the applicant that the Crown sought to prove. It is convenient to deal with these grounds together.

29 The Crown, in its response to the applicant's written case, conceded that leave to appeal should be granted in respect of Ground 1 insofar as it related to the hearsay admitted by the trial judge. It was reasonably arguable, conceded the Crown, that some of the representations relied upon were not admissible as exceptions to the hearsay rule but it did not specify to which representations its concessions applied. The Crown also conceded that leave to appeal should be granted in respect of Ground 2 because it was reasonably arguable that some of the representations relied upon to prove a relevant tendency in the applicant did not have significant probative value as required by s 97(1)(b) of the Act or should have been otherwise excluded. The Crown also conceded that the determination of Ground 2 was inextricably bound up with the hearsay issue.

30 Apart from making the concessions referred to, the Crown's original response to the applicant's case as to hearsay did not advance any argument as to why any of the impugned hearsay should have been admitted under the statutory exceptions relied upon. However, by a supplementary outline of submissions, it stated that it relied 'predominantly' on s 65(2)(c) of the Act as the ground upon which the hearsay rule should not be applied to the evidence of the representations referred to in the hearsay notice. The Crown's argument was based largely on alleged consistency between those representations and the deceased's conduct and attitude as related to the witnesses to whom the representations were allegedly made. The outline also contained, in tabular form, references to the alleged representations and the circumstances relied upon by the Crown as going to the reliability of those representations.

31 Unfortunately, the usefulness of the Crown's supplementary outline was considerably diminished by the fact that it seemed to be concerned, not with the 15 numbered representations described in the hearsay notice but with 12 differently described representations. Only some of these are able to be aligned to the Crown case as presented in the hearsay notice and upon which the applicant's trial was conducted.

32 The hearsay notice is the statutorily required foundation for the admission of hearsay to prove facts asserted by it. It must contain the matters required by the Evidence Regulations 2009. Relevantly, it must state 'the substance of evidence of a previous representation'[4] ― that is to say, it must set out the representation relied upon as asserting facts which the party giving the notice seeks to have admitted as proof of those facts. In most cases, the representation will be what a person said, so that the hearsay notice will contain at least the substance of what the person said so that the Court and the party's opponent can determine what asserted facts the hearsay is being sought to be adduced to prove. A hearsay notice is no empty formality. Its existence and form are necessary conditions precedent, subject to judicial dispensation, to the non-application of the hearsay rule.[5]

33 In the Crown's hearsay notice in this case, it notified the applicant that it intended to rely upon 15 specific representations, the substance of which it set out under a heading 'Representations' in 15 discrete statements. It must be assumed that it was each of these representations to which the trial judge's blanket ruling of admissibility applied and upon which the Crown wished to rely to prove that the applicant did certain specific things. As will be seen, a number of those representations were never proved and others contained no asserted facts relevant to the actions of the applicant which would have assisted the Crown case.

34 The applicant's trial having now been conducted, to determine Ground 1 it is necessary to examine the evidence which was produced in relation to each of these representations to determine whether it was able to be proved by that evidence and whether the trial judge was correct in permitting it to be used for the hearsay purpose contended for by the Crown.

35 Ms Abid's evidence was concerned with the first six representations set out in the hearsay notice.

1. Deceased made complaint of being beaten by accused within seven days after the marriage.

2. Deceased made complaint that the accused was hitting her regularly.

36 This witness, the deceased's sister, lives in the United States of America. She gave evidence in person but through an interpreter. She said that she and her husband went to the United States from Pakistan in 1997 and she thought that the deceased and her family had gone to Iran in 'maybe 1999'. Some time after that, whilst the deceased was still in Iran and Ms Abid was in America they had a telephone conversation. Ms Abid was questioned about this conversation with the deceased and another conversation she had with the applicant. She could not remember whether the conversation with the applicant occurred before or after she spoke to the deceased.

37 The evidence of these conversations is confusing and confused ― possibly partly because of translation difficulties, but also because the questions put to Ms Abid appeared to be not always directed to obtaining evidence of what the deceased said ― that is to say, evidence of the representations set out in the hearsay notice. Rather, some questions sought to have the witness say what happened to the deceased at the hands of the applicant, thus, predictably, resulting in the witness interpreting her sister's words and mediating the information provided to the Court. This form of adducing hearsay is not sanctioned by the relevant provisions of the Act upon which the Crown relied. Those provisions require evidence of the relevant 'representation'; that is, of words the witness heard, or, at the very least, evidence of the substance of those words. It was what the deceased said which constituted the representation upon which the Act might operate; not the witness' interpretation of what the deceased might have meant. Having regard to the long-recognised risks of hearsay as a mode of proof, it is important that the representation deposed to for the purposes of s 65 of the Act be the 'previous representation' of the unavailable witness, not an interpretation of that representation or a summary of it.

38 The first of these representations was said to have been made prior to 1997 in Afghanistan and the second in about 1999 in Iran. But Ms Abid's evidence did not support them. There are references in her evidence to domestic violence said to have been perpetrated by the applicant on the deceased; but those references are vague, nonspecific and undated. The context would appear to place the conversations in which they were mentioned many years ― probably about eight years ― before the deceased's death, thereby depriving them of relevance.[6]

39 Although parts of Ms Abid's evidence might have been able to be used as being indicative of the relationship between the applicant and the deceased had they related to a time proximate to the deceased's death, in the circumstances, their admissibility on any basis was not established. Further, in view of the fact that those representations were said to have been made so much earlier than the deceased's death and that there was no admissible evidence as to the relationship between that time and the period immediately prior to her death, the danger that the jury would speculate that the relationship between the deceased and the applicant had been continuously violent outweighed whatever relevance conduct many years before the death of the deceased may have had, thus requiring the exclusion of this evidence pursuant to s 137 or, possibly, s 135 of the Act.

40 The third representation for which the Crown relied upon the evidence of this witness was in these terms:

3. Deceased made complaint that the accused was hitting her.

This representation was said to have been made in Australia on 20 October 2007, about a month before the deceased died.

41 Ms Abid's evidence in relation to this representation was that she telephoned her sister (presumably from the United States) who said:

my life is not very good, going very good at all, it's very bad and all the things that happening back to me back in Iran they all is happening again.

I was thrown out of the house, two times I was thrown out in the morning and come back home at night-time.

Azizi beating me and a social worker come into our house for a visit and Azizi is not happy about these visits.

No, I've given enough time chances. I won't give him another chance.

42 As with all the other representations listed in the hearsay notice, these representations by the deceased to her sister were admitted by the trial judge as evidence of the relationship between the applicant and the deceased and as admissible hearsay to prove that the applicant had a tendency to act in a certain way towards the deceased at a time proximate to her death. Evidence of the state of the relationship between the applicant and the deceased is relevant, at least, to the issue of the applicant's intent when he killed the deceased and to his defence of self-defence.

43 If the jury accepted that the words attributed to the deceased were in fact spoken by her, that fact permits an inference to be drawn as to her state of mind with respect to the relationship between her and the applicant at the time the words were spoken; i.e., about a month before her death. The fact that the deceased made the allegations would provide direct evidence of the relationship between her and the applicant at a relevant time. It is not evidence of the facts asserted by the representation when tendered for that purpose.[7]

44 But the trial judge admitted evidence of those representations as proof that the applicant did the things attributed to him by the deceased. Her Honour thus exempted those representations from the operation of the hearsay rule. In the hearsay notice and in its argument both before the trial judge and, to some extent, in this Court, the Crown relied upon ss 65(2)(b) and 65(2)(c) of the Act to render the hearsay rule inapplicable to Ms Abid's evidence of the deceased's representations. Those provisions, which apply in a criminal proceeding if the person who made the relevant representation is not available to give evidence, are in the following terms:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -

...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable;

45 In his pre-trial submission, the prosecutor argued that all of the representations upon which the Crown relied which were listed in the hearsay notice fell into either s 65(2)(b) or s 65(2)(c). He did so on the basis that, at that time, the only material before the Court as to those representations of which Ms Abid could speak consisted of written proofs of her evidence. She had not been examined at the applicant's committal hearing and no voir dire had been conducted before the trial judge.

46 Leaving aside Representations 1 and 2, which can be disregarded for the reasons already given, it is difficult to see how s 65(2)(b) could apply to Representation 3. The evidence surrounding it has no relevant context. There is no evidence of 'the circumstances' in which it was made, other than that the telephone call was made by the witness, not the deceased. The deceased appears to have been describing a situation rather than an event. There does not appear to be any spontaneity in the statements attributed to her and there is no indication as to when the events she is said to have described occurred.

47 In Conway v The Queen,[8] the Full Court of the Federal Court (Miles, von Doussa and Weinberg JJ) considered s 65(2)(b) in the following terms:

Section 65(2)(b) of the Act appears to have had its origins in one form of what is known at common law as res gestae - see Cross On Evidence, pars [37050] to [37080]. The res gestae doctrine permitted an exception to the hearsay rule where the words spoken were so closely related to the matter being proved as to be inseparable from it. The doctrine was restrictively interpreted by the courts, almost to the point of bringing the principles which lay behind it into disrepute.

To illustrate the point, it is worth considering the classic case of R v Bedingfield (1879) 14 Cox CC 341. There it was held that the prosecution could not lead evidence of what was said by a woman who emerged from a room with her throat cut because there was not sufficient contemporaneity between the incident in question, which had occurred seconds earlier, and what she said about it. Presumably the evidence would have been admissible had she described her throat being cut as that was occurring.

Whether or not Bedingfield was correctly decided (and there is a strong body of opinion to suggest that it was not) it gives some flavour of the strictness with which the res gestae doctrine was, and to some extent still is, applied at common law. See Ratten v The Queen; Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267 at 273.

The word 'when' in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression 'shortly after' is, however, a significant departure from traditional doctrine.[9]

In order to enliven s 65(2)(b), there must be evidence before the Court to enable a judgment to be made as to the temporal connection between the occurrence of the asserted fact and the making of the representation. With respect to Representation 3, there is no evidence as to when the asserted facts occurred relative to the representation being made so that the question of whether there were circumstances that made it unlikely that the representation was a fabrication does not need to be considered. Section 65(2)(b) cannot be applied to this representation so as to render the hearsay rule inapplicable to it without some evidence as to whether the representation was made at the time of or shortly after the events described occurred. Absent that evidence, s 65(2)(b) cannot be applied.

48 Section 65(2)(c) is enlivened by different matters. With respect to this provision, the Full Federal Court in Conway said:

The requirement in s 65(2)(c) of the Act that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating 'reliability' alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.[10]

49 As the Full Federal Court said, in order to consider the application of s 65(2)(c), there must be evidence of the circumstances which make it not just probable but highly probable that the representation is reliable.

50 Although it was held in R v Mankotia[11] in the New South Wales Supreme Court that 'the circumstances' which are relevant for the purposes of ss 65(2)(b) and (c) are confined to the circumstances in which the representation was made, the Full Federal Court in Conway[12] and again in Williams v The Queen[13] took a slightly more expansive view of the circumstances which the Court could take into account in determining the reliability of a representation for the purposes of s 65(2). In R v Ambrosoli,[14] in the New South Wales Court of Criminal Appeal, Mason P (with whom Hulme and Simpson JJ agreed) resolved the issue thus:

It would therefore appear that R v Mankotia, Conway and R v Williams are at one in:

• focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and

• excluding evidence tending only to prove the asserted fact.

In my view this is a correct approach to s 65(2). To the extent that R v Dean and R v Lock decide otherwise they should not be followed.

The point of disagreement between R v Mankotia on the one hand and Conway/R v Williams on the other is the legitimacy of resort to inconsistent or consistent statements of the maker of the previous representation or other circumstances (whenever occurring) directly touching the credibility of the maker of the representation at the time of making the representation (cf the victim in R v Bedingfield). Sperling J (at 10) indicated obiter that he would disregard these matters (see his reference to excluding from consideration 'other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect'. On this I prefer the view of the Federal Court, a fortiori because it is presumptively binding having regard to the principle in Australian Securities Commission v Marlborough Gold Mines Ltd. I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).

Accordingly, I would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of 'circumstances' capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.[15]

51 The onus of proving the high probability of the reliability of a representation for the purposes of s 65(2)(c) rests on the party seeking to invoke the section. Here, there is little information as to the circumstances in which Representation 3 was made, other than that Ms Abid initiated the phone call. No evidence was led of any earlier conversations leading up to the relevant one although Ms Abid had earlier said that she had had twice-monthly contact with the deceased, at least during a period somewhat earlier when the deceased was in Iran. There was no evidence concerning the long intervening period of about seven years. Absent any further information as to the circumstances in which the relevant representation was made, there was no basis for concluding that Representation 3 met the criterion in s 65(2)(c). The Crown, in its supplementary outline (to which reference has already been made), appears to have referred only to allegedly consistent statements made by the deceased otherwise the subject of the hearsay notice as evidence going to the question of reliability, although this is not entirely clear. In any event, such statements, in accordance with Ambrosoli, would be relevant only 'to the extent that they touch the reliability of the circumstances of the making of [the relevant] representation'.[16] Representation 3 ought not to have been admitted as evidence of the truth of the facts asserted by it.

1. Deceased made representation that when everything was in place she would tell accused that if he did not agree to treat her properly she would ask for a divorce.

Although this representation appears, in a slightly different form, as a particular of the conduct alleged against the applicant in support of the Crown's contention that he had a particular tendency, Ms Abid does not appear to have given any evidence supporting it. Had she done so, it might have been admissible as evidence going to the deceased's state of mind from which an inference as to her relationship with the applicant might have been able to be drawn, but there is nothing in the alleged representation which would assist the Crown in proof of its tendency case against the applicant. In any event, as there was no evidence of it given by the witness, it may, for present purposes, be ignored.

53 This representation was expressed in the following terms:

1. Deceased made representations - that she was going to divorce the accused; that she had given the accused many chances before; that he was not okay; that if anything happened to her then her sister Shookria would be responsible; that she had been beaten so many times before by the accused; that she was under pressure resulting in her taking medication.

This representation was said to have been made a week before the deceased's death, on 13 November 2007 at about 2.00am.

54 The evidence as to this representation is, like the evidence already referred to, less than entirely coherent. Ms Abid said that at about 2.00am on a day about a week before the deceased died she received a phone call in America. It was from the applicant. He asked her to speak to her sister saying 'she wants to divorce me'. The conversation lasted for two or two and a half hours during which time Ms Abid also talked to the deceased.

55 Ms Abid's evidence as to Representation 5 appears to be largely concerned with the deceased's response to the applicant's alleged conduct rather than with detailing what the deceased said that conduct was itself. As such, her evidence might, again, be relevant to the relationship between the parties. Insofar as the representation reported by Ms Abid refers to the applicant beating the deceased, it is nonspecific and too vague for either ss 65(2)(b) or (2)(c) to operate. The situation with respect to this evidence is no better than was that concerned with Representation 3.

1. Deceased made representation that she did not trust the accused and that she was worried that he would do something to her.

This representation is alleged to have been made to the deceased's sister three days before her death ― on 17 November 2007.

57 Ms Abid's evidence in relation to it contained a purported quote of the deceased in the following terms:

I'm very worried and something might happen from Azizi to me. I'm very worried.

I want you to have this number. I call you back.

I don't have much time to talk to you right now.

This evidence does not contain any representation as to what the applicant did. In the first two sentences, the deceased is describing her own feelings. Such evidence is admissible, if relevant, by virtue of s 66A of the Act.[17] Again, although it may speak eloquently of the relationship between the deceased and the applicant, it does not provide a foundation for the proof of any tendency in him as the Crown contended. Its admissibility is not governed by the hearsay rule. The relevance, and hence the admissibility, of the last three sentences referred to above is not entirely clear but nothing in this representation advances the Crown case as to the applicant's alleged tendency to violence.

58 Evidence of the next five representations was given by Monis Khaliqy, a Dari interpreter. They were all alleged to have been made by the deceased in the period between 13 September 2007 and 7 November 2007.

59 This representation, which was alleged to have been made at about 11.00am on 13 September 2007 to Ms Khaliqy, was in the following terms:

1. Deceased made complaint that her husband mentally, verbally and physically abused her.

60 Ms Khaliqy gave evidence that on 13 September 2007 she was at the Maternal Health Care Service in Coral Street, Hampton Park when the deceased came, with two small babies, to see 'Cathy'.[18] In the course of the deceased's conversation with Cathy she said:

that she had a very tough life and her husband actually sort of abusing her verbally and physically and emotionally...

Ms Khaliqy said that the deceased had said that she had had the same life in Afghanistan, Iran and Australia.

61 The deceased's representation, as reported by Ms Khaliqy, was not related to any specific event occurring at any particular time, nor did it contain any detail as to the nature of the abuse to which the deceased was referring. For the reasons advanced with respect to the representations made to Ms Abid by the deceased, this evidence might have been relevant and admissible on the issue of the relationship between the applicant and the deceased although its vagueness and lack of specificity may have made its probative value slight. However, it should not have been admitted as evidence that the applicant engaged in the conduct attributed to him by the deceased. Applying the same tests already referred to and discussed with respect to the representations made to Ms Abid, none of the conditions precedent to the operation of either s 65(2)(b) or s 65(2)(c) of the Act were met so as to make the hearsay rule inapplicable to the evidence of these representations.

1. Deceased made representations ― that the accused abused her mentally, verbally and physically; that she hated him; that he [sic] was scared of him; that she was very lonely.

This representation was said to have been made by the deceased to Ms Khaliqy on 26 September 2007 at about 1.00pm at the deceased's home in Hampton Park. She said that she was again translating for Catherine Mackinnon who made notes. She said:

I remember she was actually speaking about her life and how she was stressed badly, she was very stressed with the five kids and she said actually she missed her family a lot because it was such a while time, years that she hasn't got a chance to visit her family. Yeah, I remember these things.

63 The witness did not give any evidence of having heard Representation 8. This representation can, accordingly, also be disregarded.

1. Deceased made representation repeating what she had said on earlier visits.

This representation was said to have been made on 23 October 2007 at about 10.00am, again, at the family home in Hampton Park. Again, Ms Khaliqy was acting as an interpreter.

65 The statement described as Representation 9 is not a 'representation' within the meaning of the Act. The attempt to incorporate by reference some earlier representations identified only by reference to what the deceased is alleged to have said on 'earlier visits' is not only not authorised by the Act, the hearsay notice does not convey what the representation was, much less any evidence of the circumstances in which it was made so as to enable the exercise required by ss 65(2)(b) and (c) of the Act to be sensibly undertaken.

66 Even if some intelligible representation could be construed out of this statement, for the reasons already expressed in relation to the earlier representations allegedly made to this witness, it does not meet the conditions for admission as evidence of the truth of the facts asserted. It is far too general, vague and non-specific to constitute evidence of relevant conduct by the applicant. There was no evidence of contemporaneity or near contemporaneity between whatever event(s) were being described and the making of the representation, nor was there any evidence of the circumstances in which the representation was made so as to comply with s 65(2)(c). It should not have been admitted as proof of any action by the applicant.

67 This representation was expressed in the following terms:

1. Deceased made representations ― that any time she went to get her bank card the accused would swear at her and punch her; that the

accused was punching her and verbally abusing her; that she wanted to get out of the relationship.

This representation was said to have been made on 7 November 2007 at about 11.00am at the family home in Hampton Park.

68 Ms Khaliqy gave evidence of having visited the family home on 7 November with Catherine Mackinnon. Nothing the witness said in her evidence could be said to have established Representation 10. She said that the deceased said:

that her husband actually getting a bit change and now he's responding to what Marzieh is saying, he's trying to give him (sic) a bit of time to stay in bed and have a rest.

69 Representation 10 was not verified by the evidence of Ms Khaliqy and can be disregarded.

1. Deceased made representations ― that the accused told her that if she divorced or separated from him or told anyone what was going on in the house, he would kill her because he could not carry the shame; that the accused was scared that she was involving the professional services and that she might separate from him.

This representation was said to have been made on 13 September 2007 at about 11.00am at the family home in Hampton Park.

71 Ms Khaliqy gave no evidence whatsoever concerning this representation.

72 Magitha Suresh, a family violence case worker with an organisation called 'WAYSS', gave evidence of a visit to the deceased's home on 2 November 2007. She said that she picked up the deceased and drove her to the WAYSS office in Pakenham ― a drive of about 15 minutes. Representation 12 was said to have been made at that office and was in the following terms:

1. Deceased made complaint ― of mental, physical and emotional abuse she had suffered from the accused; that the day after she got married he became abusive.

Ms Suresh said that at Pakenham she used a telephone interpreting service to talk to the deceased. The interpreter was never identified. She described the procedure by which she spoke to the deceased thus:

We have a central number that we call and then we choose the language. I put the phone in the middle and I put it on speaker phone and then so I sit here and Marzieh was sitting there with the children, so we wait for the interpreter to come. So I speak to the interpreter and then the interpreter speaks to Marzieh and then once again Marzieh speaks to the interpreter and she speaks back to me, so like a three-way conversation.

She gave nonspecific and conclusionary evidence of the deceased telling her about 'all the abuse'. She said that the deceased 'talked about that she was assaulted the previous day'. She said:

I understood it was a long-term abuse and from what she was saying it sounded like it has been going on throughout.

73 Again, some of the witness' evidence might have been relevant and admissible as to the relationship between the deceased and the applicant if it had been properly elicited, had not been conclusionary in nature and had consisted of evidence of a representation and not what the witness thought the deceased meant. But even if that had been achieved, there was nothing in her evidence which would have permitted the admission of it as to the truth of the allegations made by the deceased. Neither s 65(2)(b) nor s 65(2)(c) could apply to this representation.

74 The evidence is not admissible hearsay, even without taking into account any further difficulty which may have been created in the case of Ms Suresh's evidence by the fact that the Crown did not call the interpreter, a situation to which reference will be made below.

75 The last three representations were the subject of evidence by Catherine Mackinnon, who was the co-ordinator of the Enhanced Maternal and Child Health Service for the City of Casey. The representations were said to have been made on 1, 7 and 14 November 2007.

1. Deceased made representations ― that accused had been shouting and threatening to harm her previous night and into morning; that she had called the police twice at 1 am.; that the accused had previously beaten her until she bled from the mouth; that accused had hit her on the back this time; that the accused had verbally abused her and threatened to kill her; asked Mackinnon to call the police to give accused a warning; that accused told her that she did not have any rights.

77 Ms Mackinnon gave evidence as to this representation which occurred in a telephone call by the deceased to her on 1 November 2007. The circumstances of that call were, as the witness related it, that the deceased sounded quite distressed. Ms Mackinnon obtained the assistance of an unidentified telephone interpreter. Through the interpreter, the deceased told Ms Mackinnon of an event which had occurred the previous night. Ms Mackinnon said:

I could hear her speaking to the interpreter very rushed and, um, emotional, and she was saying that the previous night there'd been - there'd been some issues between herself and her husband and that her husband had been violent, physically violent, um, and he had hit her on the back when she was trying to get away from him. She also talked about that there were threats and at one stage threats that he would kill her...

It must be inferred that in giving this evidence the witness was recounting what the interpreter said, not what the deceased said; otherwise there would have been no need for the interpreter.

78 The circumstances in which the deceased made the representation reported by Ms Mackinnon were that she was speaking to Ms Mackinnon as a social worker; as someone who might be able to help her. The event the deceased described was said by her to have occurred the night before. Ms Mackinnon also said the deceased repeated herself, 'going over and over what happened' in the course of their telephone conversation. It may also be a relevant circumstance that she told Ms Mackinnon that she had unsuccessfully sought police assistance in the early hours of that morning. That the deceased telephoned police on 1 November 2007 was verified by other evidence adduced at the trial.

79 The deceased's statements to Ms Mackinnon were made shortly after the asserted events were said to have occurred and in circumstances, as described above, which made it unlikely that they were a fabrication. In this instance, the deceased was not recounting, broadly and generally, an historical situation with respect to her husband's treatment of her, using terms which were vague, non-specific, unclear, undated or uncertain. Rather, she described what she said were very recent events with some specificity (e.g. 'hit her on the back'; 'threats that he would kill her') to someone she believed could help her. Further, Ms Mackinnon was able to provide some evidence of the circumstances in which the representation was made. These matters distinguish this representation in significant ways from the representations said to have been made to the witnesses Khaliqy and Suresh. Were it not for the matters referred to in [84] to [96] hereunder, this representation would have met the criteria prescribed for admissible hearsay by s 65(2)(b) of the Act and, accordingly, have been admissible as evidence of what the applicant did.

80 On 7 November 2007 at about 11.00am in the family home at Hampton Park, the deceased is said to have made, through the interpreter Monis Khaliqy, Representation 14 in the following terms:

1. Deceased made complaint ― that the accused had abused her for past 14 years; that she would not continue to take it 'without a word'.

81 Although Ms Mackinnon gave evidence of a meeting with the deceased at her home on the date referred to, she did not give any evidence of a representation in the same terms as or even similar to that asserted in Representation 14. Nor, for that matter, did Ms Khaliqy who was also called as a witness. Representation 14 was not proved to have been made.

82 Ms Mackinnon visited the deceased at her home again on 14 November 2007 when, on the Crown case, Representation 15 was said to have been made in the following terms:

1. Deceased made presentation [sic] ― that she told accused she would leave him if he did not change his ways and show more respect.

83 Ms Mackinnon said that on this occasion the deceased had told her that 'there had been some changes in the relationship'. She described the deceased's attitude as being that 'she was filled with hope'. She gave no evidence supporting Representation 15 as having been made although, having regard to its form, it is difficult to see how any statement to the effect of Representation 15 could have been probative of anything other than the deceased's state of mind, relevant only to the relationship between her and the applicant. It would have said nothing as to the tendency the Crown sought to attribute to the applicant in the tendency notice.

84 As I was completing this judgment, I recalled the High Court decision in Gaio v The Queen,[19] which is authority for the proposition that for evidence of a conversation with another person through an interpreter where neither speaks the other's language to be admissible there must be evidence from the interpreter that he or she was able to and did interpret the conversation accurately. Neither this case, nor the principle it stands for, were relied upon or even mentioned on the hearing of this appeal or in the Court below. As, in the case of the evidence both of Ms Mackinnon and Ms Suresh, a telephone interpreting service had been used to interpret conversations with the deceased and the relevant interpreter had not been called by the Crown, the Court decided to draw the parties' attention to Gaio's case and a decision of this Court, Director of Public Prosecutions (Vic) v BB,[20] which followed Gaio, and to give them the opportunity to address the questions raised by those cases with written submissions. Both parties accepted the Court's invitation and provided timely and helpful submissions.

85 The applicant seized the moment and, by his written submission, sought leave to add a ground of appeal invoking the principle in Gaio as rendering certain of the representations relied upon by the Crown inadmissible. The proposed ground was based on the failure of the Crown to call an unidentified telephone interpreter in respect of Representations 12 and 13 (allegedly heard by Ms Suresh and Ms Mackinnon) and its failure to have Monis Khaliqy, who was called as a witness, verify her translations to Ms Mackinnon of Representations 14 and 15.

86 The Crown opposed the applicant's application to add the Gaio ground, arguing that it should be inferred that in the Court below the parties agreed to accept as accurate the translation of the interpreters who did not give evidence. Although its submission did not acknowledge that Representations 14 and 15 could have been affected because Ms Khaliqy was not asked to verify her translation of them to Ms Mackinnon, it should be assumed that the Crown would contend that the same submission should be applied to those representations.

87 The Crown pointed out that in pre-trial argument defence counsel had raised the question of how Ms Mackinnon had communicated with the deceased and that subsequently the Crown had made her available to him outside court. This, submitted the Crown, was enough to permit the inference to be drawn that he accepted Ms Mackinnon's evidence as accurate without any need to call the relevant interpreter(s).

88 The Crown relied upon R v LRG,[21] a decision of this Court where evidence of two VATE tapes was adduced at trial, without objection, where the truth of the contents of the VATE tapes had not been verified as required by s 37B(3)(c)(i) of the Evidence Act 1958 as a condition of admissibility. In dismissing an appeal on the ground that failure to comply with the statute rendered the VATE tapes inadmissible, Callaway JA (Vincent and Ashley JJA agreeing) said:

I am clearly of the opinion that that ground, although made out, did not cause the trial to miscarry.

The position was no different, in principle, from any other case where hearsay evidence is admitted without objection at a trial. The VATE tapes, having been introduced into evidence by a police witness, were hearsay if the statutory conditions were not satisfied. Where hearsay is admitted without objection, there is rarely, if ever, a 'wrong decision of a question of law' within the meaning of the opening words of s 568(1). There is, if anything, a miscarriage of justice. It is a very exceptional case where an objection to hearsay can be taken for the first time in the Court of Appeal. That need not be because of the doctrine of waiver. It is because the reception of hearsay, to which no objection is taken, is an ordinary incident of a trial regularly conducted. Indeed, it would be difficult to conduct most trials without the reception of some technically inadmissible evidence.[22]

The Crown also pointed out that in Gaio itself, Fullagar J had observed:

There may be cases in which it is proper to infer that the parties have agreed to accept the translations of the interpreter as prima facie correct, and it may be that in such cases it is sufficient for either of them to give evidence of the conversation without calling the interpreter.[23]

The Crown submitted that there was a sound basis in this case for the drawing of such an inference.

89 The applicant's submissions advanced four reasons why the failure of the Crown to comply with the principle in Gaio's case had led to a miscarriage of justice. First, he pointed to the critical nature of the translation with respect to Representations 12 and 13, referring to the inherent difficulties of using a telephone interpreter service where the person whose words are being interpreted cannot be seen by the interpreter.

90 Secondly, in this case, formal admissions were made by the applicant at trial and tendered as exhibits. There was no formal admission of the accuracy of the interpretation of the representations.

91 Thirdly, it should be inferred that, although defence counsel at trial was curious to understand how Ms Mackinnon had obtained her information from the deceased, he was not alive to the Gaio point nor did he agree to accept as accurate the translations of interpreters who did not give evidence. Defence counsel having objected to the admission of the representations on a number of grounds, including that the evidence was hearsay, it was unlikely that he would have failed to take the point if he had been aware of it. Counsel for the applicant before this Court frankly conceded that they had not adverted to the point until the Court drew their attention to it.

92 Fourthly, the submission sought to distinguish R v LRG from this case. It argued that the error in that case was a technical error which did not go to 'the heart of the evidence'. In contrast, here, the accuracy of the interpretation of the deceased's words was crucial to the proper conduct of the trial.

93 Having regard to the conclusion I have already reached with respect to Representations 12, 14 and 15, the determination of this point directly concerns only Representation 13 - the only representation which can be said to have been properly identified and proved (subject to this point) in circumstances where it could go before the jury as admissible hearsay. There is no evidence of Representations 12, 14 and 15 which would permit them to be so used or even, as the evidence stood at the end of the trial, as evidence going to the deceased's state of mind.

94 There is nothing before this Court to suggest that counsel at trial made a conscious forensic decision not to raise the Gaio point. Such a decision would have made no forensic sense and would have been completely inconsistent with the defence position - that evidence of the representations generally should have been excluded; a position largely vindicated by this judgment.

95 The only basis upon which the applicant could succeed on his proposed ground is if the failure to apply Gaio at his trial has resulted in a miscarriage of justice. I am satisfied that there is a significant possibility that it has. Proof by the Crown of the representations relied upon was crucial to this part of its case. The accuracy of the translation of what the deceased said to Ms Mackinnon was crucial. Failure to prove that the translation was accurate was not merely a failure to comply with a formal statutory requirement as in R v LRG. An accurate translation was fundamental to the jury's acceptance that the relevant representation was made. Experience shows that the giving of evidence in a courtroom, even with interpreters, is never without its difficulties. In this case, the interpreter was unknown and unseen. His or her capacity to interpret from Dari to English was untested and untestable in the absence of his or her being called as a witness. The obligation to call him or her to verify the translation relied upon was essential.

96 I would grant the applicant leave to add a further ground of appeal. Because Representations 12, 14 and 15 were never proved in accordance with their terms, the ground need relate only to Representation 13. As I would grant the applicant a new trial on Grounds 1 and 2 in any event, compliance with the principle in Gaio will be required of the Crown in respect of any evidence which it produces on a retrial which depends upon the interpretation of representations made outside court from a language other than English into English. The appropriate ground should be expressed as follows:

1. A substantial miscarriage of justice resulted from the failure of the prosecution to prove that Representation 13 was made by the deceased, because no evidence was led by the Crown that the interpreter who purportedly translated the deceased's words into English did so properly and accurately.

97 Even if the previous representations of the deceased upon which the Crown sought to rely had been properly proved and were able to be admitted in proof of the assertions they contained, that would not have made them, ipso facto, admissible. It would still have been necessary, for them to be admitted, that they were not disqualified by the application of s 135 or s 137 of the Act. Further, inasmuch as they were sought to be tendered to prove the tendency in the applicant upon which the Crown sought to rely, they would not only have had to have significant probative value so as to comply with s 97(1)(b) of the Act but their probative value as tendency evidence would also have to have substantially outweighed any prejudicial effect they may have had on the applicant so as to satisfy s 101(2).

98 Having regard to the conclusions reached as to the 15 representations relied upon, it is not necessary to consider these matters further in the context of this appeal. However, if on a new trial they become relevant to evidence sought to be relied upon by the Crown, the trial judge will need to be cognisant of the prejudice inherent in evidence of the kind the subject of these grounds of appeal as well as its probative value in advancing the Crown case. There is no point addressing these issues at this time. They will be determinable only after the scope of the Crown case on a new trial is fully disclosed and any preliminary hearing (including any relevant voir dire) is conducted. Then proper consideration will need to be given to the complex issues inherent in the admission of hearsay and its use to prove a relevant tendency and the relationship between use of the evidence as going to other matters, such as relationship or context, and its use to prove a particular tendency. Other sections of the Act may also need to be considered.

99 In his final address to the jury, the prosecutor referred to the matters said to have been established by the hearsay admitted by the trial judge as evidence of the facts asserted. He invited the jury to use this material for the purpose of establishing a tendency in the applicant to be violent towards the deceased, particularly in times of conflict.

100 In her directions to the jury, the trial judge explained hearsay. She said that, in this case, the hearsay elicited from Ms Mackinnon and the other witnesses who attested to what the deceased had told them about the applicant's conduct, if accepted by them, 'may show that Soltan Azizi had a tendency to behave in a particular way'. This, her Honour said, 'may help you to decide whether the prosecution has proven its case beyond a reasonable doubt in relation to the issue of his intent and the issue of selfdefence'. Thus, not only was the impugned evidence itself before the jury but it formed a significant part of the Crown case and was prominent in the trial judge's directions.

101 For the reasons given, none of the representations relied upon by the Crown in its hearsay notice ought to have been admitted as proof of facts asserted by them. Insofar as Representation 13 is concerned, the evidence of it was not admissible because it was given by a witness who deposed to what the deceased said to her in Dari interpreted by an interpreter who did not verify his or her capacity to interpret from Dari to English and attest that he or she did so in this case.

102 Ground 1 in the applicant's Notice of Appeal is made out and, as a consequence, so is Ground 2. There was no admissible evidence upon which the jury could have found the tendency in the applicant contended for by the Crown. The applicant should have leave to appeal on Grounds 1, 2 and the new Ground 5 and that appeal should be upheld and a new trial ordered.

103 This ground asserts that the trial judge erred in failing to leave defensive homicide as an alternative verdict for the jury's consideration.

104 Having regard to the applicant's success on Grounds 1, 2 and 5 and the consequence of that success being a new trial, it is inutile to engage in an analysis of the evidence and argument at trial and the applicable law to determine this ground. A new trial will, of necessity, be conducted on a different evidentiary basis. A new trial will also be conducted in circumstances where the law as to self-defence in the context of murder is as expounded by this Court in Babic v The Queen[24] so that common law self-defence will not be of any relevance.[25] The determination of what defences are open on the evidence and, in particular, whether defensive homicide should be left to the jury will thus proceed on a different evidentiary and legal basis. These matters should be left to be determined by the judge conducting the new trial in the circumstances then prevailing.

105 This ground contends that a passage in the trial judge's charge to the jury concerning the applicant's evidence tended to reverse the onus of proof. The impugned passage was:

The accused man in this case has also given evidence so you listen to that evidence and you take that into account in whatever way you wish. You examine his evidence as you do all witnesses and you accept what you believe to be truthful, reliable and accurate and you reject what you don't believe to be truthful, reliable and accurate, just like you treat all other witnesses. But he has given evidence about what he intended at the time so that's something you take into account as well.

106 Counsel for the applicant argued that this passage 'relieved the prosecution of proving its case beyond reasonable doubt'.[26] He referred to Murray v The Queen[27] and Liberato v The Queen.[28]

107 In response, the Crown pointed out that no exception was taken to this passage in the judge's charge and that her Honour had, on many occasions during the charge, emphasised the onus of proof and the fact that it remained on the Crown at all times. A reading of the charge as a whole confirms the correctness of this submission. There is nothing in this ground.

108 For the reasons given, the applicant should be given leave to add a ground of appeal as set out at [96] above, leave to appeal should be granted and the appeal should be treated as having been instituted and heard instanter and allowed. The

conviction sustained by the applicant below and the sentence passed thereon should be set aside and there should be an order for a new trial.

[1] R v Azizi (No 2) [2010] VSC 658, [25].

[3] [2002] NSWCCA 354; (2002) 133 A Crim R 90.

[4] Evidence Regulations 2009 r 5(1)(a).

[5] Evidence Act 2008 s 67.

[6] R v Tsingopoulos [1964] VicRp 86; [1964] VR 676; Shaw v The Queen (1952) 85 CLR 365, 377 (Dixon, McTiernan, Webb and Kitto JJ).

[7] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 344 (Menzies J); Ratten v The Queen [1972] AC 378; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283; Frawley v The Queen (1993) 69 A Crim R 208, 218-20 (Gleeson CJ).

[8] [2000] FCA 461; (2000) 98 FCR 204 ('Conway').

[11] [1998] NSWSC 295.

[12] [2000] FCA 461; (2000) 98 FCR 204, 244.

[13] [2000] FCA 1868; (2000) 119 A Crim R 490, 503 (Whitlam, Madgwick and Weinberg JJ).

[14] [2002] NSWCCA 386; (2002) 55 NSWLR 603 ('Ambrosoli').

[17] Section 66A exempts previous representations contemporaneously describing feelings from the hearsay rule.

[18] This was a reference to Catherine Mackinnon, another Crown witness.

[19] [1960] HCA 70; (1960) 104 CLR 419 ('Gaio').

[20] [2010] 29 VR 110.

[21] (2006) 16 VR 89.

[23] [1960] HCA 70; (1960) 104 CLR 419, 428.

[24] (2010) 28 VR 297.

[25] The trial judge left only common law self-defence for the jury's determination, holding that there was no evidence upon which self-defence as defined in s 9AC of the Crimes Act 1958 could apply.

[26] See Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193, 201-2 [23] (Gaudron J).

[28] [1985] HCA 66; (1985) 159 CLR 507.