Crown v Accused

EVIDENCE - Hearsay evidence - Relationship evidence - Prosecution filed three hearsay notices comprising hearsay representations by the deceased as to her relationship with the accused - Whether relationship evidence probative of the circumstantial case - Whether hearsay representations satisfy any exception to the hearsay rule - Whether relationship evidence should be excluded due to prejudicial effect - Evidence Act 2008 (Vic) ss 55(1), 56, 59, 65(2)(b), 65(2)(c), 66A, 67 and 137 - Jury Directions Act 2015 (Vic) s 26.

1 Adrian Basham is charged with the murder of his wife, Samantha Joy Fraser, on 23 July 2018. He is also charged with three counts of rape of Ms Fraser in respect of incidents alleged to have occurred in 2014 and 2016.

3 Three separate, but related pre-trial issues arise in this context.

4 The first is severance. The accused concedes that the joinder of the charges is permitted by the Criminal Procedure Act 2009 ('CPA'),[1] but argues pursuant to s 193(1) of the CPA that the Court should order that the murder charge be tried separately from the rape charges.

5 The second is the admissibility of 'relationship evidence'[2] and 'context evidence'[3] upon which the Crown seeks to rely as demonstrating a pattern of controlling and aggressive behaviour by the accused towards the deceased from which relevant, logical and reasonable inferences as to all four charges may be drawn.

6 The third is the admissibility of hearsay representations made by the deceased to a number of witnesses. The relationship and context evidence is largely comprised of such representations. Additionally, the evidence for the rape charges is, with one exception, also comprised of hearsay representations made by the deceased.

7 The hearsay representations, numbering some 214 in total, are detailed in three separate notices filed pursuant to s 67 of the Evidence Act 2008 ('Act'). Of these, 120 are no longer pressed by the Crown, 34 are conceded by the defence and 60[4] are in contention (in whole or in part). Some 22 witnesses give evidence of these representations.

8 The accused variously challenges the admissibility of the relationship and context evidence on the basis of its relevance, its inability to satisfy any exception to the hearsay rule and its prejudicial effect.

9 Before considering these issues it is convenient to summarise the Crown case.

10 Ms Fraser and the accused met in late 2005 or early 2006. They married in March 2007. They had three children, born in 2009, 2011 and 2013, and settled in Cowes, Phillip Island. Ms Fraser was a psychologist who, at the time of her death, worked part-time at the Cowes Medical Centre. The accused worked in construction as a 'fly-in, fly-out' ('FIFO') worker in Western Australia. His roster allowed him one week at home between one month away.

11 Ms Fraser and the accused separated in early 2017. The accused moved from the family home at 19 Seagrove Way, Cowes and resided variously in Paynesville, Chelsea Heights and San Remo. Family Court proceedings were initiated with respect to child custody arrangements and the division of assets.

12 On 28 April 2017 Victoria Police first applied for an intervention order in favour of Ms Fraser against the accused. From 19 May 2017, intervention orders prohibited the accused from attending or being near 19 Seagrove Way. Contact between the accused and children continued until September 2017, when Ms Fraser declined to facilitate any further access.

13 In addition to allegations of abusive and controlling behaviour, Ms Fraser also made allegations of sexual offending against her by the accused to police. She made two sworn statements on 3 July 2017. The accused was arrested and interviewed in relation to the allegations on 4 July 2017. Charges of rape, including what are now counts 1 to 3 of the indictment, were preferred against him on 24 August 2017. Those charges were listed for a contested committal hearing at the Latrobe Valley Magistrates' Court on 30 July 2018.

14 In the very early hours of 20 July 2018 the accused arrived at his sister's home in Chelsea Heights. He had just returned from some days in New Zealand. Entry gate surveillance cameras at Melbourne Airport show the face of the accused to be absent visible injuries upon his re-entry to Australia on 19 July 2018.

15 At 10.08am on 20 July 2018 CCTV footage from a camera affixed to the front of the accused's sister's house depicts a male hand covering the camera with a yellow post-it note (or something similar) and then removing it 37 seconds later. Immediately thereafter the accused was recorded preparing his motorcycle and luggage to leave the address. He did so, at 10.26am, wearing a distinctive black and white motorcycle jacket and a black and green 'Shark' motorcycle helmet.

16 The accused had left his usual mobile telephone handset at his sister's address and instead took with him the handset of Kylie Munro, a woman with whom he had begun a relationship.

17 The accused rode to Phillip Island, where he stayed at one address for two nights and then at the unoccupied house of a friend at 6 Park Road, San Remo on the night of 22 July 2018.

18 At about 11.30am on Sunday 22 July 2018, the accused rode his motorcycle to the Cowes area and rode past Ms Fraser's Seagrove Way house. That journey was captured on various CCTV footage.

19 22 July 2018 was the 38th birthday of Ms Fraser. She was inside her home with her children. Family and friends visited to celebrate with her.

20 Between about 5.30pm and 6.30pm the accused visited a friend, Cameron Brown, who lived in Park Road, San Remo. The accused had no visible injuries to his face. He ate dinner there and made an arrangement to go motorcycle riding with Mr Brown the following morning. The accused failed to keep that appointment and then did not respond to a text message from Mr Brown.

21 At about 7.20am the accused left the San Remo area and travelled by motorcycle from San Remo to Cowes. His movement is established by Optus GPRS records associated with Ms Munro's mobile telephone service and various CCTV footage which captured his distinctive motorcycle jacket and helmet. He arrived in the vicinity of Settlement Road and Seagrove Way at about 7.37am.

22 The Crown case is that he parked his motorcycle near Ms Fraser's house and waited.

23 At about 8.52am on Monday 23 July 2018 Ms Fraser left her home in Seagrove Way to drive her three children to the nearby Cowes Primary School.

24 About three minutes after she had left, the accused approached her address on foot. His movement is captured by CCTV footage. And a man the Crown say was the accused was observed by a witness entering a garden bed in the heavily vegetated front yard of the house at about 9.00am.

25 The Crown case is that the accused then waited for Ms Fraser to return.

26 After Ms Fraser had completed the school run, she attended the G'day Tiger café in the main shopping district of Cowes. She met two friends there. She was observed to be wearing a white top and black trousers. By about 11.22am she had returned home and parked her car in the garage.

27 When Ms Fraser did so, the Crown case is that she was assaulted by the accused in the garage. That assault resulted in a number of injuries, including bruising to the head and a poorly developed focal traumatic axonal injury to the brain. The accused sustained a scratch to his nose. The accused then strangled the deceased using a length of rope before hanging her using the rope looped over the track of the sectional garage door. Finally the accused manipulated the scene in an attempt to make it appear that Ms Fraser had committed suicide by hanging, including by placing a small step-ladder on its side. When he left the accused took with him Ms Fraser's white top.

28 At 11.36am a friend called the mobile telephone number of Ms Fraser. The call went unanswered. There was no further activity on Ms Fraser's telephone service after that time. Ms Fraser failed to attend an appointment in Wonthaggi at 12.00pm.

29 Staff from Cowes Primary School notified police that Ms Fraser did not collect her children at the end of the school day. Police attended 19 Seagrove Way at about 5.05pm and forced entry to the garage. Upon the discovery of Ms Fraser's body a crime scene was established and an investigation commenced.

30 Sometime after 11.00am on 23 July 2018 the accused was observed by a witness to be standing outside the garage door to 19 Seagrove Way cleaning something on top of a rubbish bin. The garage door was raised about two feet from the ground.

31 At 12.04pm CCTV footage depicts the accused running away from 19 Seagrove Way with something apparently stuffed up the front of his jacket. A witness observed a man the Crown say is the accused walking out of Seagrove Way onto Settlement Road sometime between 11.45am and 12.15pm.

32 Commencing at 12.13pm and ending at 12.33pm, various CCTV cameras captured the accused riding his motorcycle, wearing the distinctive black and white jacket, from Settlement Road, Cowes to Newhaven.

33 Between 12.20pm and 1.00pm a witness observed what he believed to be the accused's motorcycle parked on the footpath outside 6 Park Road, San Remo.

34 Subsequently the accused rode his motorcycle to Bairnsdale. At 3.48pm he sped past a marked police car in East Bairnsdale. He was intercepted by police and warned about his driving behaviour. He behaved emotionally, crying and complaining about his separation from Ms Fraser.

35 The accused visited a friend in East Bairnsdale before travelling to his father's home in Paynesville, arriving between about 5.15pm and 5.30pm. Upon his arrival, his father noticed a scratch to the right side of his nose. The accused told his father that he might have sustained the scratch while going for a walk, and that he had been for a walk on Lyrebird Track en route to Paynesville.

36 At 1.57am on 24 July 2018 police telephoned the accused's father in order to locate the accused and arrange to notify him in person of the death of Ms Fraser. The accused was reticent to meet with police. After a 52 minute call, an arrangement was made for uniformed police to attend and speak to him at his father's house. They attended at about 3.00am and spoke to both the accused and his father. The accused remained silent during the exchange.

37 On 24 July 2018 the accused spoke to his friend, Michael Lee, by telephone and said that Ms Fraser was deceased, that he had been woken by police about 2.00am or 3.00am and informed of her death. He said that he had not been near the island at the time of her death.

38 At 12.48am on 25 July 2018 the accused arrived at his sister's Chelsea Heights address with his father. The CCTV camera at the address captured footage of the accused covering the right side of his nose with a piece of paper.

39 Throughout 24 and 25 July police had a series of communications with the accused's legal representatives. Initially this was for the accused to provide a statement, but as a result of information gathered, a decision was made during the afternoon of 25 July to treat the accused as a suspect. An arrangement was made for the accused to surrender himself for interview in the company of his lawyer at 9.00am on 26 July 2018.

40 The accused duly attended, was processed and interviewed. He gave no comment to the questions asked. The accused was released without charge at about 1.30pm. During that time, he underwent a physical examination by a Forensic Medical Officer. Photographs of a two centimetre abrasion to the accused's nose and a superficial scratch of three centimetres to the inner aspect of his right forearm were taken.

41 On 28 July 2018 the accused attended two different addresses on Park Road, San Remo when police were present taking written statements from two witnesses. In the presence of police he told each of them not to cooperate with the investigation. When challenged by the informant, the accused approached him and attempted to physically menace him.

42 The accused then left Park Road before re-attending and getting access to 4 Park Road. He was observed by a witness to exit the premises by scaling the rear fence. He had an object stuffed up the front of his shirt. Upon seeing the witness the accused said to her words to the effect of 'if the cops come around, you haven't seen anything ...'.

43 Between 23 and 28 July 2018, the crime scene at 19 Seagrove Way was forensically examined, a post mortem examination of the deceased was conducted and various search warrants were executed.

44 The post mortem examination, conducted on 24 July 2018, detailed a number of anatomical findings. Blunt force trauma had been applied to the face, neck, arms and legs of the deceased, consistent with an assault. Microscopic analyses of sections taken from bruises showed no signs of healing and are consistent with the bruising being proximate to the time of death. There was evidence of a poorly developed focal traumatic axonal injury to the brain. A significant number of separate injuries consistent with an assault were documented. The cause of death was found to be 'hanging in the setting of multiple blunt force injuries'.

45 A number of exhibits were subject to forensic biological examination. As a result, there is strong to very strong support for the proposition that the accused contributed to DNA found on the rope used to hang Ms Fraser, including on the outer surface of the knot and the looped section of the rope below the knot. Further there is extremely strong support for the proposition that the accused contributed to the DNA found under the fingernails of Ms Fraser's left hand and very strong support for the same proposition with respect to the fingernails of her left hand.

46 On 2 August 2018 the accused was arrested in Bairnsdale and charged with murder.

47 Subsequently, police obtained a court order for a compulsory forensic procedure (DNA) with respect to the accused. He refused to comply with the order and force was required to obtain a swab of his saliva.

48 The Crown case with respect to the three counts of rape (counts 1 to 3) draws largely on the sworn statements made by Ms Fraser on 3 July 2017.

49 Ms Fraser told police that on an occasion in 2014 the accused had just returned home from work in Western Australia and, as was his habit, demanded sex. He asked her to go to the bedroom, but she refused because the children were home and said to the accused words to the effect that he would 'have to wait for tonight'. Ms Fraser said that at some stage during the afternoon she entered the large, walk-in pantry. The accused followed her and locked the pantry door from the inside.

50 The accused undid Ms Fraser's jeans as she was facing away from him. She said something like 'what are you doing? The kids are out there. No'. Ms Fraser told police that the accused nonetheless pulled down her underwear and put his penis into her vagina. He moved his penis in and out of her vagina for only a minute or two before he ejaculated inside her vagina. The accused then unlocked the pantry and left.

51 Ms Fraser told police that this sort of thing had been happening since 2009 and that was why she 'stood there and let it happen'. Telling the accused 'no' did not work so she just stood there and let him have his way.

52 In addition to the sworn statement of Ms Fraser, the Crown relies upon two other hearsay representations made by Ms Fraser to her friends about this incident, as well as an alleged admission by the accused.

53 As to the latter, Terence Melvin, a psychologist will give evidence of a joint counselling session with the accused and Ms Fraser on 21 April 2018 during which Ms Fraser told him that the accused had pushed her into a cupboard at the family home and forced her to have sex with him. Mr Melvin asked the accused whether that was what had happened. The accused replied 'yes'. When Mr Melvin told the accused that this amounted to sexual assault or rape, the accused tried to justify his behaviour by saying that it was Ms Fraser's fault for not being clear and communicating with him. Mr Melvin recalls that Ms Fraser then became visibly upset and said to the accused words to the effect of 'this is what you always do' before leaving the room.

54 Ms Fraser told police that on a different occasion in 2014 the accused had non-consensual sex with her at their home in Cowes whilst she was asleep and their three year old child R was in the same bed. She awoke to the accused thrusting his penis into her vagina. Ms Fraser did not want R to wake and see, hear or feel what was going on, so she pushed back into the accused to create physical distance between her and R. After the accused ejaculated, he rolled over and went to sleep. Ms Fraser then got out of bed and took R back to his own bed. Ms Fraser later told the accused not to have sex with her when the kids were in the bed or when she was asleep.

55 Ms Fraser told police that on an occasion in October 2016 when the accused had returned from Western Australia they had gone to bed together and she had fallen asleep fully clothed. She later woke up to a feeling of coldness and realised that the accused had pulled down her pants, put lubricant on his penis and then put his penis in her vagina. Ms Fraser said that she froze for a moment before pushing herself off the accused and getting out of bed. She said to him words to the effect of 'you can't do that, I was asleep, that is rape' before going and sleeping in one of the children's rooms. Ms Fraser told police that this was the last time the accused had raped her.

56 In relation to the second two charges of rape, the Crown relies upon other hearsay representations by Ms Fraser to a friend and counsellors that there were many occasions during the marriage in which she would wake to find the accused having sex with her.

57 In his defence response, the accused denies the characterisation of his relationship with Ms Fraser as being controlling and abusive. He denies the allegations of family violence.

58 With respect to the charge of murder, the accused admits he attended the Cowes area, and 19 Seagrove Way specifically, on 23 July 2018. He states that he did so at the invitation of Ms Fraser. He says that they argued and he then left the premises. He denies causing her death.

59 With respect to the charges of rape, the accused admits to having sex with Ms Fraser throughout the course of their relationship but denies ever engaging in non-consensual sex.

60 It follows that the major issues in the trial are relatively confined.

61 With respect to the charge of murder, the issue is causation: whether the accused killed Ms Fraser or whether she suicided.

62 With respect to the three counts of rape, the issue is whether the incidents of non-consensual sex occurred.

64 The defence relies upon s 193(a) and (b) of the CPA to argue that the charge of murder should be tried separately from the charges of rape. It is submitted that it is uncommon for an indictment to contain any other charges along with a charge of murder. It is argued that the accused will be prejudiced in his defence of the murder charge if the rape charges are on the same indictment.

65 The defence identifies the admissibility of the evidence of the alleged rapes in the trial for murder as a central issue in the resolution of the question. Nonetheless the application for severance is maintained even if that evidence is ruled to be admissible.

66 The historical practice of a charge of murder being preferred as a single count is noted in this context. While the traditional reluctance to allow joinder of other charges with a murder charge has been relaxed somewhat, the defence presses the need for careful scrutiny of the effect of joinder on the complexity of the conduct of the trial and judicial directions as well as to the occasioning of impermissible prejudice to the accused.

67 In this regard, the defence points particularly to the sheer number of hearsay representations and the differential (potential) admissibility of the relationship evidence as between charges 1 and 2 on the one hand and charge 3 on the other, as well as between charges 1, 2 and/or 3 and charge 4 on the other.

68 Referring to the relevant provisions of the CPA with respect to joinder of charges in a single indictment, the prosecution submit that there are two issues to consider with respect to severance. First, whether Rule 5 of Schedule 1 has been complied with in so far as the charges on the indictment are for 'related offences'. Second, whether the court should exercise its discretion under s 193 to order severance.

69 As to the first issue, the prosecution submits that there is a sufficient nexus between all four charges. Each involves violence against the deceased. It is submitted that her murder is a culmination of that violence.

70 The evidence to be led either provides context for the other charges or is directly relevant to establishing or negating proof of an element which must be proved in another charge. The relationship evidence makes it more likely that the accused committed all of the offences charged. The admissibility of the relationship evidence is so interconnected with the issue of severance that the rape charges cannot be separated from the murder charges. The prosecution submits that it is clear that there would be one trial for the three charges of rape. The evidence relevant to each charge is cross-admissible to the other two. It is further submitted that the evidence relevant to charges 1 to 3 is relevant not only to motive, but in assisting the jury decide between the competing explanations for the death of the deceased, being murder or suicide.

71 As to the second issue, it is submitted that there must be a balance between avoiding unnecessary prejudice to the accused and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses and finality of litigation. When evaluating any prejudice to the accused, the role of judicial directions must be considered. Further, the court must assess the complexity of the evidence and issues in the trial.

72 In summary it is submitted that the indictment should not be severed because:

(a) There is one complainant / deceased common to all four charges;

(b) There is a sufficient nexus between the charges;

(c) There are 18 witnesses common to the rape charges and the murder charge, who would give identical evidence twice in the event of separate trials;

(d) The rape charges are cross-admissible with the murder charge;

(e) The convenience in having one trial in terms of resources is great;

(f) The relationship between the accused and the deceased, including the rape allegations subject of charges 1 to 3 is fundamentally linked with the consideration of the fact in issue regarding charge 4;

(g) The rape charges are relevant to motive regarding charge 4; and

(h) The accused will not be unfairly or impermissibly prejudiced because virtually the same evidence would be led at separate trials.

73 The joinder of charges in a single indictment is authorised by Rule 5 of Schedule 1 of the CPA, which provides:

(1) A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused.

(2) If more than one offence is charged in a charge sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.

74 Section 3(1) of the CPA defines 'related offences' as offences that are founded on the same facts or form, or are part of a series of offences of the same or a similar character.

75 Section 193 of the CPA provides, relevantly:

(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.

(3) The court may make an order under subsection (1) ... if the court considers that -

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or

(c) for any other reason it is appropriate to do so.

76 As noted above, the defence concedes, appropriately, that the charges are properly joined.[5]

77 Rather the issue here is whether separate trials should be ordered pursuant to s 193(3)(a) and/or (c) of the CPA.

78 Previous authority held that the joinder of charges with a charge of murder should only be permitted in exceptional circumstances.[6] In 2005 Vincent J said:

Although there are examples of situations in which one or more counts of murder have been joined in a single presentment with counts relating to other offences about which evidence was to be given in the trial, to my understanding the inclusion of separate counts to encompass those offences has never been required. Indeed, the joinder of such additional counts was regarded as inappropriate and rarely permitted until relatively recently.[7]

79 This evolving position was approved by Whelan J in R v AB & Baker (Ruling No 1)[8]:

I accept that the strict approach to the separate trial of murder counts is no longer warranted. There will be circumstances where there will be no prejudice or embarrassment to the defence in another count or counts being tried with a murder count and where such a trial will be appropriate.[9]

80 The cross-admissibility of evidence is an important, but not decisive, factor in determining whether unacceptable prejudice or embarrassment results from the joinder.[10] In DPP v Iliopoulos & Ors (Ruling No 1),[11] Kaye JA observed:

A central issue, in determining whether the joinder of counts in the one indictment, would result in prejudice to an accused, is whether the evidence on each of the charges is cross-admissible in respect of the other charges. That consideration has principally informed the approach of the courts on the issue of severance, under s 193 of the [CPA], and under its predecessor, s 372 of the Crimes Act.[12]

81 After referring to both Sutton v The Queen[13] and De Jesus v The Queen[14] as well as R v Papamitrou,[15] in which Winneke P said that the 'capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion',[16] Kaye JA continued:

While the question of cross-admissibility is central to the issue of severance, nevertheless it is not decisive. If the evidence is not cross-admissible, the critical question, in each case, will be whether the admission of the evidence admissible on some of the charges joined in the indictment carries the risk of impermissible prejudice to the accused in respect of the trial of the other charges in respect of which it is not admissible.[17]

82 Given the importance of the issue of cross-admissibility to the issue of separate trials, it is necessary to consider the arguments with respect to the relationship and context evidence, as well as the hearsay evidence, before returning to the analysis of the discretionary decision under s 193 of the CPA.

Relationship evidence relevance and usage - murder charge

83 The prosecution argues that the relationship between the accused and deceased, as husband and wife, is relevant where there is a contest of facts as stark as murder or suicide. It is unclear whether the accused's admission of arguing with the deceased on 23 July 2018 extends to engaging in a physical argument. It is unknown whether the mechanism by which the deceased sustained the physical injuries to her face, neck, legs and arms is in dispute.

84 The Crown case is entirely circumstantial and the prosecution submits that the relationship is one of the relevant circumstances. It could rationally affect the assessment of both the accused's state of mind and the deceased's state of mind. The prosecution further submits that none of the evidence is impermissibly prejudicial. The prosecution does not rely on the evidence as propensity evidence.

85 The prosecution submits that the body of relationship evidence could be used by the jury as relevant to the issue of causation in the following 24 ways:

(a) The relationship was marked by sexual violence and other controlling behaviours by the accused towards Ms Fraser;

(b) Ms Fraser had made representations to her family and friends both before and after her separation from the accused that she was in fear of him;

(c) The accused was jealous of Ms Fraser and accused her of having affairs, as well as accusing various men of having affairs with her;[18]

(d) Ms Fraser made representations to others that she had received communications from the accused after their separation which indicated that he was aware of her precise movements at certain times;

(e) Family Court proceedings were on foot between Ms Fraser and the accused regarding the division of assets and child custody arrangements. The children of the marriage resided with the deceased. The accused had not had access to them since September 2017;

(f) On 23 July 2018 the accused knew that there was an intervention order in place with particular conditions that he not follow Ms Fraser or keep her under surveillance, contact or communicate with her by any means, approach or remain within 20 metres of her or go to or remain within 200 metres of 19 Seagrove Way, Cowes or the boundary thereof;

(g) On 23 July 2018 the accused knew that the intervention order permitted him to communicate with Ms Fraser only through a lawyer or mediator and only go to 19 Seagrove Way for the purpose of collecting personal property and then only in the company of a police officer or person nominated by Ms Fraser;

(h) The accused knew that the police had investigated the rape allegations made against him by Ms Fraser;

(i) The accused knew he had been summoned to appear on rape charges at the Latrobe Valley Magistrates' Court;

(j) The accused had indicated to the Latrobe Valley Magistrates' Court that he would contest the rape charges;

(k) On 23 July 2018 the accused knew that the contested committal hearing of those rape charges was imminent, being one week hence;

(l) The accused knew that the deceased would be giving evidence at the committal hearing implicating him in the commission of the rapes;

(m) The accused knew that he had made an admission on 21 April 2018 to Mr Melvin that he had raped Ms Fraser and that evidence of that admission formed part of the rape brief;

(n) Ms Fraser would not have invited the accused to attend 19 Seagrove Way on 23 July 2018;

(o) The accused would not have had an innocent purpose in attending that address on that date;

(p) The accused must have been conducting surveillance of 19 Seagrove Way on 23 July 2018 in order to determine the moment of Ms Fraser's departure and then secreted himself at or near the premises until her return;

(q) The accused must have secreted himself there as, if Ms Fraser had been aware of his presence, she would not have willingly driven her vehicle onto the premises;

(r) The accused must not have revealed his presence until after Ms Fraser alighted from her vehicle in the garage, as, if she had been aware of his presence, she would not have done so;

(s) On 23 July 2018 Ms Fraser would not have willingly engaged in any form of contact with the accused at 19 Seagrove Way;

(t) Ms Fraser would not have initiated any physical attack on the accused;

(u) Ms Fraser would not have inflicted injuries to her face, neck, arms and legs before suiciding; and

(v) In light of all of the above, Ms Fraser would not have taken her own life on 23 July 2018.

86 The prosecution argues that the relationship between the accused and deceased, as husband and wife, is relevant where the issue is consent as to sexual intercourse during the marriage. It could rationally affect the assessment of both the state of mind of both the deceased and the accused. That is, it is relevant to whether the deceased consented to the sexual penetration. It is also relevant as to whether the accused was aware that the deceased was not consenting or might not be consenting or the accused was not giving any thought as to whether the deceased was not or might not be consenting (in relation to charges 1 and 2) and to whether the accused did not reasonably believe that the deceased consented to the sexual penetration (charge 3). Further, the relationship evidence is not impermissibly prejudicial. The prosecution does not rely upon the evidence as propensity evidence.

87 The prosecution further submits that the relationship evidence will assist the jury to evaluate the hearsay representations of the deceased. The jury will not be able to assess her live evidence and this body of evidence will meet questions that would naturally arise. In particular, the evidence could be used in the following four ways:

(a) It establishes a pattern of behaviour in which the deceased was relatively unsurprised by the conduct the subject of each charge;

(b) The deceased subsequently reported the behaviour to her parents[19] and father-in-law[20] but did not report the behaviour to the police until after the accused and deceased had separated;

(c) The acts did not occur out of the blue; and

(d) The acts did not occur in a vacuum.

88 The defence submits that the admissibility of the relationship evidence requires consideration of three questions. First, whether it is relevant to a fact in issue. Second, whether the evidence satisfies any of the exceptions to the hearsay rule. Third, whether the evidence should be excluded because its prejudicial effect outweighs its probative value.[21]

89 In general terms with respect to the murder charge, the defence submits that given the competing explanations for the deceased's death, evidence which shows that the deceased was in fear of the accused at a time proximate to her death will be relevant, but particular pieces of the relationship evidence identified by the Crown must be examined closely by considering the questions identified above.

90 The defence concedes that the fact that the accused was facing outstanding rape charges in the Magistrates' Court listed for a contested committal hearing on 30 July 2018 will be relevant to the conduct of the accused's defence to the murder charge. The defence further concedes that this fact is relevant to the motive of the accused to commit murder. However, the defence submits that the details of the allegations of rape should not be led in the murder trial and do not satisfy the three identified questions.

91 With respect to the rape charges, the defence submits that if those charges were heard separately from the murder charge, the context evidence of a large number of uncharged sexual assaults over the course of the marriage would likely be relevant, subject to hearsay considerations and discretionary exclusion. However, where the murder charge and rape charges are joined on a single indictment, the defence submits that this context evidence would be impermissibly prejudicial.

92 Evidence of 'relationship' or 'context' is admissible under the Jury Directions Act 2015 ('JDA') as 'other misconduct evidence', provided it is relevant to a fact in issue. The phrase 'other misconduct evidence' is defined in s 26 of the JDA to mean, relevantly:

(c) evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or

(d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed.

93 At common law, evidence of previous wrongdoing by an accused has been held to be admissible as indirectly relevant to show that the accused's acts were for a guilty purpose, rather than an innocent purpose.[22] This can be led as 'relationship' evidence.

94 In Wilson, the wife of the accused had been killed by the discharge of a shotgun which the accused claimed was accidental. Evidence of a troubled relationship between them and the deceased's utterances to the accused on two occasions that she knew he wanted to kill her was admitted. Menzies J said:

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.[23]

95 Not all evidence of the relationship between them was admissible, but only that from which a relevant inference could logically and reasonably be drawn.[24] In that case, as here, the evidence was to 'assist the choice between the two explanations of the occurrence'.[25]

96 In The Queen v Clark[26] Heydon JA, after summarising the relevant authorities and explaining the ways in which the relationship evidence could be used, stated '[w]here a case is entirely circumstantial, it is common for relationship to be considered as one of the circumstances'.[27] Thus evidence of prior acts of violence by the accused to the deceased, prior threats of violence by the accused, statements made by the deceased of fear of the accused and evidence of arguments and hostility beyond what might be expected in a 'normal' relationship have all been admitted as relevant relationship evidence.[28]

97 So much is uncontroversial. Here the defence accepts that evidence which reveals that the deceased was in fear of the accused at a time proximate to her death is relevant, but points to an issue of temporal proximity of incidents between husband and wife and the date of death of the deceased. The defence contrasted the positions of Lubik in which incidents up to about two and a half years before the death were admitted and R v Tsingopoulos[29] in which incidents between three and a half years and six years before were not.

98 In this regard, while temporal proximity to the offence charged remains relevant, there is a difference between a relationship that was characterised by ongoing violence and one where there had been sporadic incidents or periods of violence. This distinction was borne out in the observations of Bongiorno JA in Azizi v The Queen, when considering representations of domestic violence made approximately eight years before the deceased's death:

Although parts of [the witness'] 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.[30]

99 The individual incidents which shed light on the relationship in this case are not so temporally disjointed. Rather they form a 'string' of incidents occurring over many years. The last episode in that string is not at all remote from the offending alleged in count 4 and there is no lengthy delay between the episodes that form that string. And the continuous string began prior to 2014 and stretched to 2018. In other words, all the episodes in the string are temporally connected. Consideration of the whole of the string, subject to discretionary exclusion, gives a more realistic understanding of the nature of the relationship between the accused and deceased than an arbitrary date deemed to be too remote in time.

100 Evidence of relationship or context may be relevant to some charges and not others on an indictment.[31] I will later return to this issue when considering issues of the complexity of the trial.

101 The prosecution has noted that although the JDA defines relationship evidence and context evidence as two forms of misconduct, the context evidence in this case is largely comprised by the relationship evidence. As summarised above, the prosecution has characterised the evidence and explained the manner in which its relevance is argued.[32]

102 As a general proposition, and as accepted by the parties, evidence of the relationship between the deceased and accused is relevant to both the charge of murder and the three counts of rape.

103 Whether any particular item of relationship evidence is relevant and not impermissibly prejudicial will be addressed below after considering the issue of hearsay.

104 Ms Fraser is an unavailable witness as she is deceased.[33]

105 The previous representations of an unavailable witness may be admissible as exceptions to the hearsay rule.[34]

106 The prosecution has given notice pursuant to s 67 of the Act that it seeks to lead previous representations made by the deceased, contained in 28 different documents. The total hearsay representations in contention number 60 and are considered individually below.

107 It is to be noted that the prosecution also submits that some statements of the deceased are relevant as original evidence and not relied upon as going to the truth of the asserted fact.

108 Evidence that is relevant is admissible in a proceeding.[35] Irrelevant evidence is not.[36] Section 55(1) of the Act defines relevant evidence to be evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. Evidence will not be irrelevant only because it relates to the credibility of a witness, the admissibility of other evidence or a failure to adduce evidence.[37]

109 Hearsay evidence, even if relevant, is not admissible unless it falls within an exception to the exclusionary rule stipulated in s 59(1) of the Act:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

110 In this matter the prosecution relies upon the exceptions in s 65(2)(b) and (c) as well as s 66A of the Act.

111 Relevantly, section 65 is in the following terms:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(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; ...

112 To fall within the exception in s 65(2)(b) the representation must have been made 'when or shortly after' the asserted fact occurred and 'in circumstances that it make it unlikely that the representation is a fabrication'.

113 Whilst this double limbed test requires assessment of the temporal connection between the occurrence of the asserted fact and the making of the representation,[38] the central concern of the provision is the unlikelihood of fabrication. In Williams v The Queen, the Full Court of the Federal Court observed:

[I]t would be a mistake, in determining whether a statement has been made 'shortly after', to over-emphasise such matters as whether the events in question were 'fresh' in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ('when') or under the proximate pressure ('shortly after') the occurrence of the asserted fact.[39]

114 The concept of 'fabrication' centres on deliberate concoction.[40]

115 The phrase 'in circumstances that' focusses attention upon the circumstances of the making of the representation to determine the likelihood of its credibility and reliability. But that is not the sole consideration. As Mason P observed in R v Ambrosoli:

[E]vidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.[41]

116 This extends to consideration of what the maker of the previous representation said on other occasions.[42] As the High Court has said:

The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language ...[43]

117 To fall within the s 65(2)(c) exception, the representation must have been made 'in circumstances that make it highly probable that the representation is reliable'.

118 In contradistinction to s 65(2)(b), the provision is absent a temporal requirement. And, it imposes a different and significantly lower threshold of highly probable reliability.[44] That said, the need for it to be 'highly' probable that the representation is reliable is nonetheless an onerous one.[45] Further, reliability is not limited to considerations of truthfulness.[46]

119 Section 66A of the Act is in the following terms:

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

120 The state of mind, feelings or intentions the subject of the representation must be relevant to a fact in issue and the representation must be 'contemporaneous' with that state of mind or feelings or intentions.

121 I turn now to look at each of the hearsay representations sought to be admitted by the Crown and analyse the issues raised in relation to them. Although I will address each representation individually,[47] I will use the groupings adopted by the parties in argument before the court to avoid, as far as possible, repetition of similar arguments.

122 These groupings are six-fold: sexual assault; physical abuse; intimidation, aggression and fear; controlling and abusive behaviour; fears and predictions of death; and general matters concerning the relationship. Representations no longer pressed by the prosecution or conceded as admissible by the defence are not here addressed.[48] I also adopt the numbering system which differentiates the three Notices. Representations from Hearsay Notice 1 have an ordinary numerical value. Representations from Hearsay Notice 2 have a numerical value preceded by the letters SC. Representations from Hearsay Notice 3 have a numerical value preceded by '3.'.

123 I will first address the hearsay issue with respect to each representation. Then, I will address the issues of admissibility vis-à-vis probative value and prejudicial effect under s 137 of the Act. With respect to the first three groupings, the latter is done with respect to the whole group. Thereafter, that exercise is undertaken with respect to sub-groups of representations or individual representations.

Representations comprising complaints of sexual assault - hearsay issues

Representations 3, 4, 5, 40, 41 and 42- allegations of rape in police statements

124 Representations 3, 4, and 5 were made by the deceased in her first police statement sworn at 9.00am on 3 July 2017.[49] Representations 40, 41 and 42 were made by the deceased in the second police statement sworn by her on 12.42pm on 3 July 2017.

125 Representation 3 is the deceased's statement that she woke up numerous times during her relationship with the accused to find him having sex with her after she had clearly stated 'no' before falling asleep.

126 Representation 4, being the subject of count 1, is the deceased's statement that one example of non-consenting sex was when the accused locked her in the pantry to keep their children out when she returned home from work, being something he acknowledged during a counselling session with Terence Melvin.

127 Representation 5 is the deceased's statement that on a handful of occasions between 2013 and 2016 the accused started having sex with her while she was asleep beside one of their children.

128 Representation 40, being the subject of count 1, is the deceased's statement that on an occasion in 2014 the accused had non-consensual sex with her in the pantry. The accused locked the door of the pantry from the inside and undid her jeans. She protested but the accused pulled down her underwear and put his penis in her vagina. He had sex with her for a minute or two before ejaculating inside her vagina. The accused then unlocked the pantry and left.

129 Representation 41, being the subject of count 2, is the deceased's statement that on an occasion in 2014, the accused had non-consensual sex with her whilst she was asleep and their three year old son, R, was in the same bed. The deceased woke up to the accused thrusting his penis into her vagina. She stated that she had woken up to the accused doing this and that it had started when she was asleep. The deceased stated that she pushed back into the accused to avoid R realising what was happening. The accused ejaculated then rolled over and fell asleep. The deceased got out of bed and took R back to his bed.

130 Representation 42, being the subject of count 3, is the deceased's statement that the last time the accused raped her was in September or October 2016 when the accused had non-consensual sex with her whilst she was asleep. The deceased and accused went to bed together. The deceased fell asleep fully clothed and later woke up to the feeling of coldness. She realised that the accused had pulled down her pants whilst she was asleep, poured lubricant onto his penis and then put his penis into her vagina. She froze for a moment before pushing herself off the accused and getting out of bed. She told the accused 'you can't do that. I was asleep, that is rape' then went and slept in one of their children's rooms.

131 In its written submissions, the prosecution relies upon s 65(2)(c) of the Act and points to five factors that demonstrate that the representations in the police statements were made in circumstances which make it highly probable that they are reliable. Indeed the prosecutions submits that the circumstances are such that it is unlikely that they were fabrications.

132 First, the representations were made in police statements, signed and acknowledged by the deceased to be true and correct in the belief that if she were to make a false statement she would be liable to the penalties of perjury. Second, factors that precluded a positive finding of a high probability of reliability of a representation in a police statement in R v Ambrosoli[50] are not apparent. Third, there is no evidence that the deceased was impaired at the time she made or signed her statements. Fourth, there is no evidence that the deceased later recanted the representations. Fifth, many of the representations were consistent with representations made by the deceased previously (and subsequently).

133 As to the last point, representations 3, 5 and 41 are said to be consistent with representations 112, 114, 127, SC5 and SC17. Representation 42 is said to be consistent with representations 112, 114, 127 and SC17. Representations 4 and 40 are said to be consistent with representation 49 and also with the admission the accused made to Terence Melvin on 21 April 2017 in the presence of the deceased.

134 In oral argument the Crown submitted that the circumstances in which the statements were made were not, as the defence submit, suggestive of an opportunity to lie. The circumstances considered in Sio and DPP v Madina[51] are distinguishable, as both involved questions as to the truthfulness and reliability of police statements made by an accomplice with a criminal history.

135 The Crown emphasised the many, consistent representations made by the deceased and further submitted that there were many representations made by the deceased as to the accused's 'negative behaviour and conduct' prior to separation. Representations 91, 88 and 122 are representations about controlling behaviour in 2016 and 2017. And, the negative behaviour of the accused was witnessed by others, such as Terence Melvin, who states that the accused 'dominated' the counselling sessions he had with the accused and deceased in 2017. In short, the submission was that this was not a situation in which the relationship between the accused and deceased had appeared normal prior to separation and only afterwards did the deceased make complaints about sexual assault by the accused.

136 The prosecution said that the evidence considered in its entirety shows that the deceased had been in fear of the accused for a considerable period, and the duration of the fear as well as its intensity were probative.

137 In the original written submissions, the defence submits that allegations of rape between 2012 and October 2016 are not probative of the relationship between the accused and deceased in July 2018 and are therefore irrelevant to the charge of murder.

138 The defence submits in the alternative that if relevant, then the probative value of these representations is outweighed by their prejudice to the accused on the charge of murder. The probative value is said to be low given the lapse of time. The prejudice is said to be high because jurors are likely to be sufficiently appalled by the rape allegations that there is a real risk that their judgment as to the murder charge will be clouded by feelings of antipathy towards the accused. The accused is further prejudiced by his inability to cross-examine,[52] although it is conceded that this factor carries less weight where it is alleged that the accused himself is responsible for the deceased's unavailability.

139 The ultimate position of the defence was that the fact of the allegation of the rapes and the imminent committal hearing is relevant to the charge of murder, but that the substance of those allegations is not.

140 The defence further argued that the Sio test, namely that the police statements were not made in 'circumstances that of themselves tend to negative motive and opportunity for the declarant to lie'[53] should be applied. And, if it was, none of the representations made by the deceased to police would satisfy it.

141 In this regard, the defence pointed to the fact that the police statements are not contemporaneous statements, but were made years after the conduct alleged. That affects their reliability. And, the fact that a representation is made in a sworn police statement does not, of itself, lead to the conclusion that it is highly probable that it is reliable. The defence also points to the chronology of separation and intervention order proceedings and Family Court proceedings between the accused and deceased which illustrate an ongoing acrimony, which forms part of the 'circumstances' in which the representations were made. Further, there is nothing in the police statements that is against the interests of the deceased which, if present, might bolster their reliability.

142 While the defence concedes that 'circumstances' in the Act may include consideration of other statements and representations made by the deceased which are either consistent or inconsistent with the representation in question, that is only one part of the inquiry and the focus must remain on the representation itself and not on the general question of the overall reliability of the maker of it.[54] In particular, subsequent consistent statements are not likely to add anything to the reliability of a representation. In this case neither are statements made to professionals in the context of seeking legal advice post separation.

143 In oral submissions the defence elaborated on the chronology of interactions between the accused and deceased following their separation in April 2017. Initially the deceased left the family home and resided with her parents a short distance away. During that time she contacted a lawyer and made contact with police to discuss intervention order proceedings. The initial complaint as to the sexual assault allegations was made in April 2017. Following some initial resistance, the accused moved away from the family home and children. From 19 May 2017 an interim intervention order precluded the accused from attending at the family home. The accused did not agree to the making of a final intervention order and the matter was adjourned to 20 October 2017. While the timing of the separate Family Court proceedings is not clear, they were on the cards prior to the making of the police statements on 3 July 2017.

144 It was submitted that the police statements were therefore made in circumstances which raise the issue that the deceased may have had reason to advance her own interests in both Magistrates' Court and Family Court proceedings. It was submitted that the risk of exaggeration or falsification is a matter relevant to the 'circumstances' in which the representations were made, particularly in the absence of anything else suggestive of veracity or reliability.

145 In this regard the defence submitted that if the prior representations about the controlling behaviour of the accused were admitted (although it was not conceded that they should be), they would provide some support for the reliability of the representations in question, but only in a limited way.

146 The defence elaborated the prejudice argument, submitting that the fact that the deceased was in fear of the accused, that he was facing rape charges and that those charges were listed for contested committal proceedings within a week of 23 July 2018 is relevant and admissible, but that the detail of the rape allegations should not be admissible with respect to the murder charge. While relevant to the level of fear held by the deceased, it is simply too emotively prejudicial to the accused, particularly as there is other evidence as to the level of fear that the deceased held.

147 Finally the defence argued that with respect to representations 3 and 5, the accused suffers additional prejudice from the reference to the behaviour said to have occurred on multiple occasions.

148 In Sio, the admissibility issue concerned s 65(2)(d) of the Act, whereas the prosecution relies upon s 65(2)(c) with respect to these six representations. The focus of s 65(2)(d) is upon circumstances which make it likely that a previous representation, which was against the interests of the person who made it at the time it was made, is reliable. Section 65(2)(c) is not specifically concerned with previous representations against interest, but rather with the circumstances in which a previous representation was made that make it highly probable that the representation is reliable. It is of little moment to the issue of reliability that a complainant's police statement, unlike that of an accomplice, is absent any statement against interest.

149 Nonetheless the approach mandated by the High Court in Sio directs attention to the identification of objective circumstances in which each individual representation was made and the assessment of whether it is highly probable that the representation is reliable notwithstanding the hearsay character of the evidence.

150 The objective circumstances in which each of these six representations were made are the same. The following chronology is drawn from the depositions and material under various s 188 CPA Notices.

151 The deceased and accused first separated (briefly or as a 'trial') in January 2017.

152 On 19 January 2017 the accused was referred by his general practitioner to Terence Melvin, a psychologist, with respect to resulting anxiety. His first appointment was 23 February 2017. Unexpectedly to Mr Melvin, the accused attended with the deceased. Couples counselling was agreed. Mr Melvin saw each of the accused and deceased alone before seeing them together. On 9 March 2017 the deceased told Mr Melvin that she was fearful of leaving the relationship[55] and of the accused's domination and control of her,[56] but they did not speak about sexual issues.

153 Three joint sessions with Mr Melvin then took place, the last on 5 April 2017. A further medical referral was then necessary for the therapy to continue.

154 In the meantime, on 27 January 2017 the deceased had contacted Bass Coast Health Counselling and Social Work service to request family violence counselling.[57] She spoke briefly and without detail on the telephone to Sharon Churchill, a social worker with the service. An appointment was made for face to face counselling on 9 February 2017.

155 At that appointment the deceased told Ms Churchill that there were several occasions during the marriage when she woke up to the accused having sex with her.[58] Ms Churchill discussed the availability of the Sexual Assault Counselling Service (with Nicole Stanes) with the deceased. The deceased said that she was feeling safe and supported and so elected not to make a follow up appointment. She also said that the accused's father was acting as a mediator in relation to the finances and children.[59]

156 In March 2017 during a consultation with Brigitte Linder, a Chinese medicine practitioner, the deceased used Ms Linder's phone to telephone Nicole Stanes, at the suggestion of Ms Linder after the deceased stated that she was worried that the accused was monitoring her telephone use.[60]

157 On 18 April 2017 the deceased telephoned Sharon Churchill requesting a joint appointment with Nicole Stanes, stating that she and the accused were still separated, but he refused to leave the family home.[61] The deceased also stated that she was staying with her parents and seeing the children only when she was taking them to and from school. She said that she did not believe the children were at risk of harm from the accused.[62] Ms Churchill urged the deceased to engage with further supports and again provided contacts for two legal services, Relationships Australia and SalvoCare's Family Violence Outreach Program.

158 On 16 April 2017, being Easter Sunday, the deceased moved to her parents' house.

159 On 19 April 2017, [63] while the further medical referral to Terence Melvin was pending, the deceased telephoned him. She stated that she had decided to separate and that the accused had difficulty accepting the decision. She further said that she was frightened and believed that the accused would become vindictive.[64] The deceased also first told Mr Melvin about rape in the marriage. She described a number of situations when the accused would demand sex even though she didn't want it and also described him waking her in the middle of the night and forcing her to have sex.[65]

160 The accused was due to have a solo session with Mr Melvin on 21 April 2018, but he attended with the deceased. During the consultation the deceased described an incident that took place in the family home in Phillip Island in which the accused pushed her into a cupboard and forced her to have sex with him.[66] The deceased did not give a date. Mr Melvin states that he then asked the accused if he had done that and the accused said 'yes'. Mr Melvin states that he then asked the accused if he realised that it amounted to sexual assault or rape (he is unsure of his exact words). Mr Melvin does not state what the accused's response was and his contemporaneous notes of the session do not record any response to the issue at all.[67] He says that he told the accused that his behaviour was unacceptable. The accused then sought to justify his behaviour by stating that it was the fault of the deceased for not communicating clearly. The deceased then became upset, appeared to panic and left the room after saying 'this is what you always do'.

161 On 25 April 2017 the deceased telephoned Mr Melvin to describe a recent incident in which she suspected the accused had started a fire at the rear of the family home. She stated that she was anxious and terrified of the accused.[68] Mr Melvin states that they discussed whether an intervention order was appropriate in the circumstances.

162 On 28 April 2017 the deceased contacted the San Remo Police Station by telephone and spoke with Senior Constable Andy Lone to report historical sexual assaults and also discuss obtaining an intervention order against the accused.[69] Lone then contacted Detective Senior Constable Simon Fisher at Morwell SOCIT. Later that morning Fisher told Lone that the matter would be investigated and he should contact the deceased regarding the intervention order. Lone was unable to do the latter immediately and so asked Sergeant Robyn Heal to do so. Heal had an extensive telephone conversation with the deceased during which the deceased said that the accused had committed family violence on her.[70] The deceased also said that she had made extensive notes, which she later emailed to Heal.[71] Heal then briefed Lone, who used the information as relayed to compile an application for a complaint and warrant for an intervention order.

163 The complaint includes that the deceased 'has also reported some historical assaults that are being investigated by Morwell SOCIT'. It also included allegations of aggression and domination by the accused and the deceased's fear of vindictiveness by him as well as the deceased's belief that the accused caused the fire to the rear fence of the family home.

164 The application for the intervention order was served on the accused on 5 May 2017 while he was in Western Australia. He was bailed to attend the Wonthaggi Magistrates' Court on 19 May 2017.

165 On 10 May 2017 the deceased attended an appointment with both Sharon Churchill and Nicole Stanes. She stated that she and the children were back in the family home, the accused had agreed to separation and she had sought legal advice and self-referred to the SalvoCare's Family Violence Case Management Service, where she was on the waitlist.[72] The deceased said that she had applied for an intervention order. She said that the accused had continued to harass her via text and phone calls using words such as 'you never know when someone will break into your house and do you harm'.[73] The deceased also said there were instances of her waking up to the accused having sex with her.[74] The deceased also provided a 'written narrative of events', which was placed on file.

166 On 12 May 2017 the deceased told Kristii Slatter, her case worker at SalvoCare Eastern, that she had concerns that the accused was watching her.[75] Ms Slatter made a 'safer in the home' referral for the deceased and requested a full audit of her home including spyware and technology. The deceased also provided Ms Slatter with her 'relationship document'.

167 On 19 May 2017 an interim order was made in favour of the deceased and children. The accused did not agree to the order. The matter was adjourned to 16 June 2017.

168 On 20 May 2017 the deceased telephoned Sharon Churchill to inform her that the interim order had been made.

169 On 23 May 2017 the deceased had a telephone conversation with Kristii Slatter and stated that she believed the accused had been going through the phone numbers in her phone and calling each person she had been calling before stating he had the wrong number and hanging up.[76]

170 On 15 June 2017 the deceased attended a counselling session with Sharon Churchill, who advised her to discuss any breaches of the intervention order with Leading Senior Constable Ann Barnes, a VicPol Family Violence Liaison Officer.

171 On 16 June 2017 a further interim order was made. Again the accused did not agree to the order. The next return date was 20 October 2017, but on 4 August 2017 Lone applied for a variation of the interim order to prevent the accused from going to or remaining on Phillip Island. That variation was granted. The accused did not agree to the variation. The matter was adjourned to 29 August 2017, on which date it seems (from the face of the document) that the condition preventing the accused from attending Phillip Island was rescinded. The matter was further adjourned to 20 October 2017 for a contested hearing.

172 On 28 June the deceased had a telephone conversation with Kristii Slatter in which she said that she had had sensor lights installed at her house and had had her garage door remote control re-coded.[77]

173 Court records show that a hearing (of some sort) proceeded on 20 October with respect to the intervention order, but the outcome is unclear. On 12 January 2018 a final order was made in the presence of the accused by consent and without admission of the allegations in the complaint. Court records show that the matter was again before the Magistrates' Court on 18 May 2018, but again the nature and outcome of that hearing is unclear.

174 At an unknown time, but logically before 3 July 2017 (and, based on the statement, the date of separation between the accused and deceased), the deceased told Alice Bradley that the accused had raped her and she was going to bring charges against him.[78] Ms Bradley was the practice manager at the Cowes Medical Centre where the deceased worked.

175 The police statements were sworn by the deceased on 3 July 2017. They are clearly based on the 'relationship document', with portions of it appearing word for word in them. That document, or something very similar, had already been given by the deceased to Sharon Churchill, Nicole Stanes and Kristii Slatter, who were providing counselling and support services - but not legal advice - to the deceased during the period in which she separated from the accused.

176 I am affirmatively satisfied that each of the representations in the police statements were made in circumstances that make it highly probable that they are reliable.

177 There is no basis for hypothesising that the statements are inaccurately recorded or that the deceased was unaware of their content. The representations are precise. The three acts subject of the charges are clear. The only difference between representations 4 and 40, which both pertain to count 1, is that the latter (in the second statement) details the act of penetration absent from the first. Representation 41, being count 2, is identified clearly by reference to the child R. Representation 42, being count 3, is identified clearly by reference to it being the last time a rape occurred. Representations 3 and 5 refer to 'numerous times' or a 'handful of occasions' during the marriage in which an incident like count 3 or count 2, respectively, occurred. There are no other vague assertions of 'abuse' relied upon.

178 Further, as illustrated by the brief chronology above, there is a marked consistency in representations of the deceased in the months from January 2017 prior to making the sworn statements on 3 July. All of the representations are either of count 1 or count 2, or of unspecified incidents similar to counts 2 and 3. It is to be noted that the deceased told Sharon Churchill (on 9 February 2017) that the behaviour alleged with respect to counts 2 and 3 had happened on several occasions at the time as she was still willing to pursue couples counselling with the accused and Terence Melvin. And, there is the evidence of Terence Melvin that the accused admitted the occurrence of count 1.

179 I also note that the deceased's ongoing adoption of the representations in her statements can be inferred from representation 51, conceded by the defence as admissible under s 66A of the Act. On an unknown date after 3 July 2017, the deceased told Nadine Leed, a friend, that there was a hearing on 30 July 2018 in relation to 'assault' charges against the accused and that she was strong and determined, ready to stand up in court to tell her story and have her voice heard. The contested committal with respect to the rape charges was listed on 30 July 2018.

180 The issue raised by the defence that the deceased may have made exaggerated or false representations in the 3 July 2017 statements to advance her interests in proceedings in both the Magistrates' Court and Family Court is nothing but speculative. The deceased had made the allegations of rape to police prior to Senior Constable Lone swearing the complaint and warrant for the intervention order and to social workers and counsellors well prior to that. The deceased had obtained an interim intervention order which protected her and her children. And, she had told Sharon Churchill on 9 February 2017 that she was happy with her father-in-law mediating issues to do with finances and children.[79] It was not until later, between 3 May 2017 and 20 December 2017, that the deceased told Terence Melvin that the accused was aggressive and uncooperative regarding the division of assets and child custody arrangements.[80] By then the allegations had already been made and relied on. Their substance did not later alter or expand.

181 That all parties to proceedings have an interest in their outcome and that intervention order proceedings and family law proceedings are particularly emotive may be accepted. But that does not impugn the circumstances outlined above which make it highly probable that these six representations are reliable.

Representations 49 - allegation of rape to Nadine Leed

182 Representation 49, being the subject of charge 1, was made by the deceased to Nadine Leed in late 2016 or early 2017. The deceased stated that on one occasion the accused took her into the pantry while their children were outside and forced her to have sex while one of the children, A, was calling out for her.

183 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

184 First, that the deceased and Ms Leed had been friends for about five years. They often socialised together or with mutual friends and also arranged play dates with their children. The prosecution submits that it is highly probable that the deceased told her trusted friend about being raped in the pantry. Second, the representation was made after the deceased had separated from the accused but before she had reported the incident to police. Third, the deceased was not impaired at the time of the representation. Fourth, the representation is consistent with what the deceased later told police. Fifth, there is no evidence that the deceased later recanted the representation.

185 The prosecution submits that the representation is relevant to the occurrence or otherwise of charge 1 and notes that the accused made an admission of charge 1 to Terence Melvin on 21 April 2017 while the deceased was present.

186 In oral submissions, the prosecution conceded that the timing of the representation is unclear, but it was probably made after the deceased had made her police statements. Nonetheless the prosecution maintained that the representation was reliable. When considering the evidence as a whole, the situation of acrimony between the accused and deceased does not necessarily mean that the statement was false or inaccurate. There is other evidence which illustrates the accused's poor behaviour at the time and the deceased's complaint is not 'out of the blue'.

187 The defence submits that the representation was made at a time of great acrimony between the accused and deceased and not in circumstances that comply with s 65(2)(c). The defence points to the fact that it was made after the deceased had obtained the intervention order and, further, that it is not clear that it was made prior to the police statements on 3 July 2017.

188 Ms Leed was a close friend of the deceased, with children of about the same age. The two families had holidayed together in July 2016. The representation was made in a situation of confidence between friends. There could be little advantage to the deceased in being untruthful in such a private exchange.

189 It may be accepted that the level of acrimony between the accused and deceased increased after the making of the police statements on 3 July 2017. But, even assuming the representation to have been made after that date, its content is precise and consistent with all other previous representations the deceased made about count 1, namely 4, 40 (to police) and 128 (to Terence Melvin). The deceased did not embellish or alter the accusation on its re-telling.

190 I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representation 92 - allegation of rape to Alice Bradley

191 Representation 92 was made by the deceased to Alice Bradley at an unknown time after April 2017. The deceased stated that the accused had raped her and that she was going to bring charges against him.

192 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

193 First, that the deceased and Alice Bradley had known each other for five years and had been colleagues at the Cowes Medical Centre for two and a half years. The deceased discussed her issues with the accused with Ms Bradley and it can be assumed that she was trusted by the deceased. Second, the representation was made by the deceased in the context of private sexual assault/family violence counselling which is not suggestive of concoction. Third, the deceased was not impaired at the time of the representation. Fourth, the representation is consistent with what the deceased later told police. Fifth, there is no evidence that the deceased later recanted the representation.

194 The prosecution submits that the representation is relevant to the nature of the relationship between the accused and deceased, enabling a realistic appraisal of the dealings between them in relation to all charges on the indictment. Further, it is part of the narrative. The deceased did go and report to police rapes by the accused within the marriage.

195 In oral submissions the prosecution conceded that the representation was a 'bare allegation', but that was unsurprising given that it was a complaint about sexual assault. The prosecution submitted that its probative value was not diminished significantly because of that.

196 The defence submits that the representation lacks specificity and is so vague such that it has no probative value.[81] Further, there is insufficient detail concerning the circumstances in which it was made to satisfy the preconditions in s 65(2)(c).

197 In oral submissions the defence argued that if other representations of sexual assault were admitted, then this representation may have some relevance, but it would be minimal.

198 I accept the prosecution submission that Ms Bradley was trusted by the deceased. As Ms Bradley stated, she and the deceased would 'debrief' each other about their weeks and that on many occasions the deceased discussed with her the controlling nature of the accused and said that she was frightened of him. However, the representation was not made in the context of private sexual assault / family violence counselling. Ms Bradley was the practice manager at the Cowes Medical Clinic. Ms Bradley viewed her conversations with the deceased as a staff welfare issue, and documented them accordingly. Nonetheless, that is not suggestive of unreliability.

199 Unlike the other representations concerning allegations of sexual assault pressed by the prosecution, this representation is general. The use of the plural 'charges' indicates an allegation of more than one rape, but there is no detail. However, that does not make the representation unreliable given that the deceased did then report rapes to the police.

200 I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representations 112 and 114 - allegations of rape to Nicole Stanes

201 Nicole Stanes is a social worker and sexual assault counsellor.

202 Representation 112 was made by the deceased to Nicole Stanes on 10 May 2017 that there were instances when she had woken up to the accused having sex with her.

203 Representation 114 was made by the deceased to Nicole Stanes on 5 February 2018 that the accused did not begin raping her until they were married and it was later in their marriage that he began to rape her in her sleep. The deceased stated that she named this behaviour directly to the accused as rape but he did not stop.

204 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which the representations were made that make it highly probable that they are reliable.

205 First, the representations were made by the deceased in the context of private sexual assault / family violence counselling, which is not suggestive of concoction. Second, the deceased was not impaired at the time of the representation. Third, the representation is consistent with what the deceased later told police. Fourth, there is no evidence that the deceased later recanted the representation.

206 With respect to representation 112, the prosecution points to a further two indicia of reliability. First, that Sharon Churchill, another social worker and family violence counsellor, was also present at the counselling session on 10 May 2017. It must be assumed that both Ms Stanes and Ms Churchill were trusted by the deceased. Second, the representation was made prior to the deceased making such allegations to the police.

207 The prosecution submits that both representations are relevant to charges 2 and 3, said to have occurred in 2014 and 2016 respectively.

208 In oral submissions in relation to representation 112, the prosecution argued that in the context of the volatile relationship between the accused and deceased, the post-separation steps she took, such as contacting a lawyer and seeking an intervention order, were to be expected. That means that the circumstances in which the representation was made tend to negative motive and opportunity to lie.

209 The defence submits that the circumstances in which these representations were made do not enliven s 65(2)(c) given that the deceased and accused had recently separated, the deceased had contacted police and made an application for an intervention order and had contacted a lawyer who asked her to make a record of the sexual assaults.

210 The defence submits, in the alternative, that if the representations are admitted, they should be admissible with respect to charges 2 and 3 only.

211 In oral submissions with respect to representation 112, the defence submitted that it was clear that the deceased's allegation of sexual assault to police predated this representation. It was argued that being a subsequent consistent statement reduces the representation's probative value. Further, the representation contains multiple allegations rendering its prejudicial value higher than any probative weight.

212 I am affirmatively satisfied that these two representations were made in circumstances which make it highly probable that each is reliable.

213 Each representation was made to a professional with expert knowledge in sexual assault. Neither was made with the expectation that evidence of their making would be later given in a criminal trial, either of the charges then on foot or, as now, in the event of the deceased's death. Rather, each was made in the context of a private, therapeutic relationship after complaint had been made to police. That circumstance is, in and of itself, highly suggestive of reliability.

214 While neither representation is of the specific occurrence subject of count 2 or count 3, the conduct described is of the same type. The consistency of content in the deceased's representations to police, counsellors, support workers and friends is another factor contributing to the reliability of the representations.

Representation 127 - allegation of rape to Terence Melvin

216 Representation 127 was made on 19 April 2017 by the deceased to Terence Melvin, that she had been raped by the accused during their marriage. She described a number of situations in which the accused would demand sex, even though she didn't want it. She also described the accused waking her up in the middle of the night and forcing her to have sex.[82]

217 The prosecution relies upon s 65(2)(c) of the Act and points to six indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

218 First, that the deceased spoke with Mr Melvin about the accused and her relationship with him. Mr Melvin also counselled the accused. It must be assumed that the deceased trusted Mr Melvin when she made this representation. Second, the representation was made in the context of the deceased speaking about her relationship with the accused, which is not suggestive of concoction. Third, the representation was made a few days after the deceased had separated from the accused. Fourth the representation is consistent with others, namely representations 3, 5, 41, 42, 112, 114, SC5 and SC17. Fifth, the deceased was not impaired at the time of the representation. Sixth, there is no evidence that the deceased later recanted the representation.

219 The prosecution submits that the representations are relevant to the occurrence of charges 2 and 3.

220 In oral submissions the prosecution stated that the Crown case with respect to charges 2 and 3 is not that they took place and were completed whilst the deceased was unconscious. Rather, the deceased had knowledge of the conduct because she woke during the course of the rapes. Further, it is to be expected that a psychologist as experienced as Mr Melvin would have good recall of his patients and conversations, particularly when one was found dead in suspicious circumstances and another had admitted to raping the deceased to him. That being so, his notes of the conversation in which the representation took place are not conclusive of its content. Finally, the representation must be considered against the backdrop of other representations made by the deceased well before April 2017.

221 The defence submits that the representation is not relevant to charges 2 or 3, which involve allegations of the accused raping the deceased whilst she was asleep and the deceased waking up in the course of penetration. This representation concerns intercourse, without consent, after the deceased had woken.

222 Further, it is argued that Mr Melvin's notes of the conversation on 17 April 2017 do not provide any support for the representation having been made. And, it is not known whether the deceased signed an authority authorising Mr Melvin to provide her family law solicitor with reports before or after the representation was said to have been made.

223 In oral submissions, the defence submitted that the representation is ambiguous as to whether the assault complained of is of being raped whilst asleep or having been woken and raped. That ambiguity is relevant to whether the representation is probative of charges 2 and 3, but it is also relevant to the issue of prejudice. The jury might infer that there were occasions other than charges 2 and 3 when the accused acted in a similar manner. That being so, the defence argued that the representation should be excluded pursuant to s 137 of the Act.

224 For similar reasons as canvassed above with respect to Nicole Stanes, I accept the prosecution submission that the trusting, therapeutic relationship between Mr Melvin and the deceased is part of the circumstances indicative of it being highly probable that the representation is reliable. The deceased and accused were engaged in couples counselling with him. Whatever authority the deceased may have executed allowing Mr Melvin to write a report for the family law proceedings and whenever that was done[83] does not undermine the nature of the relationship between Mr Melvin and the deceased.

225 I am of the view that the representation is consistent with others made by the deceased. While there may be a difference between the deceased waking up to an act of penetration and being woken up before penetration, this may be an issue of semantics on the part of Mr Melvin. Even if it is not, the behaviour described is certainly similar.

226 Accordingly, I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representation 128 - allegation of rape (count 1) to Terence Melvin

227 The deceased told Terence Melvin on 21 April 2017 that she had been pushed into a cupboard and forced to have sex with the accused.

228 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

229 First, the representation was made by the deceased in the context of private counselling, which is not suggestive of concoction. Second, the representation was made before the deceased made her complaint to the police. Third, the deceased was not impaired at the time of the representation. Fourth, there is no evidence that the deceased later recanted the representation.

230 The prosecution submits that the representation is relevant to the occurrence or otherwise of charge 1.

231 The defence notes that the representation was made after the deceased had decided to leave the marriage and just days before she approached the police seeking an intervention order. The defence repeated its submissions with respect to representation 127.

232 I refer to, without repeating, the findings made about the nature of the relationship between the deceased and Terence Melvin with respect to representation 127. I note the consistent content of the representations made by the deceased about the occurrence of charge 1. And, for the reasons articulated with respect to the chronology leading to the making of the police statements on 3 July 2017 above, I reject the submission that the circumstances in which the representations were made do not make it highly probable that they are reliable because there was a complicated, deliberate web of false representations of sexual assault made by the deceased about the accused to friends, professional counsellors and police.

233 I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representation 156 - allegation of rape to Donna Zander

234 Donna Zander is a mental health worker who provided counselling to the deceased.

235 Representation 156, being the subject of count 3, was made by the deceased to Donna Zander on 7 February 2018, namely that she would wake up to the accused having sex with her and 'the last time in October' she pushed herself against the wall and whispered angrily to the accused, 'you can't do that, you just raped me, you can't do that'.

236 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

237 First, it is highly probable that the deceased would share with her counsellor how her husband had behaved towards her. Second, the representation was made in the context of private family violence counselling, which is not suggestive of concoction. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation. Fifth, the representation is consistent with the previous representation made by her in her police statements.

238 The prosecution submits that the representation is relevant to the occurrence of charge 3.

239 In oral submissions the prosecution argued (having received the defence's written submissions) that there was little in the suggestion that the representation could not be viewed as being made in circumstances of it being highly probable to be reliable simply because the deceased was seeking financial assistance from the Victims of Crime Assistance Tribunal (VOCAT).

240 The defence submit that the evidence shows that the deceased was provided counselling by Ms Zander as part of a VOCAT claim. It may be inferred that the VOCAT proceeding was initiated by the deceased, or on her instructions, and that she was seeking financial assistance. Those circumstances mean that it is not highly probable that the representation was reliable.

241 In oral submissions the defence argued that the fact that the representation was made some months after the deceased's statement to police has an impact on its reliability and probative value.

242 Donna Zander is a mental health social worker in private practice. She first met the deceased on 25 July 2017 when she attended a training course run by Ms Zander entitled 'Creating the New Dream: Treating the Trauma of Domestic and Family Violence'. The deceased made some non-specific disclosures about having been in an abusive relationship and having an intervention order against the accused. At the end of the training Ms Zander offered the deceased her telephone number in the event that she wanted any counselling or assistance. Ms Zander was based some distance from Phillip Island. Nonetheless, the deceased telephoned Ms Zander in January 2018 and thereafter saw her for five sessions between 18 January[84] and 20 March 2018. During the first appointment, the deceased made the representation.

243 For reasons similar to those already expressed with respect to other treating professionals, I consider the therapeutic relationship between the deceased and Ms Zander to be suggestive of reliability, notwithstanding VOCAT proceedings. Again I note the consistency in content of the representations of sexual assault made by the deceased, which were never augmented or altered.

244 I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representation SC5 - allegation of rape to Sharon Churchill

245 Sharon Churchill provided family violence counselling to the deceased.

246 The part of representation SC5 pressed by the prosecution is that the deceased stated that on several occasions throughout the marriage she woke up to the accused having sex with her. The representation was made on 9 February 2017.

247 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

248 First, the representation was made by the deceased in the context of family violence counselling, which is not suggestive of concoction. Second, the representation was made before the deceased went to the police. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation.

249 The prosecution submits that the evidence is relevant to the occurrence or otherwise of charges 1 to 3.

250 The defence concedes that the timing of the representation makes it more likely that the s 65(2)(c) requirements are met, but submits that it should be admitted only with respect to charges 2 and 3.

251 Given the defence concession, there is no need to analyse the circumstances as they relate to reliability of the representation.

Representation SC17 - Allegation of rape to Sharon Churchill

252 Representation SC17, made by the deceased to Sharon Churchill on 10 May 2017, was that there had been times during the marriage when she had woken up to the accused having sex with her.

253 The prosecution relies upon s 65(2)(c) of the Act and points to seven indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

254 First, the nature of the trusting, therapeutic relationship between the deceased and Sharon Churchill. Second, the fact that the representation was made in the context of private sexual assault / family violence counselling, which is not suggestive of concoction. Third, the representation was made before the deceased made a complaint to police. Fourth, there is no evidence that the deceased was impaired at the time of making the representation. Fifth, the representation is consistent with other similar representations made by the deceased to professionals, namely Nicole Stanes and Terence Melvin. Sixth, the representation is consistent with what the deceased later told police. Seventh, there is no evidence that the deceased later recanted the representation.

255 The prosecution submits that the representation is relevant to the occurrence or otherwise of charges 2 and 3, being rapes alleged to have taken place while the deceased was asleep.

256 The defence adopted its submissions with respect to representations 112 and 114.

257 For the reasons articulated with respect to representations 112 and 114 (made to Nicole Stanes), I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representations comprising complaints of sexual assault - admissibility

258 It follows that the 15 representations of sexual assault in contention are exceptions to the hearsay rule.

259 Turning then to look at issues of probative value, prejudicial effect and differential count admissibility, it is instructive to look at the scope of the evidence of sexual misconduct the prosecution proposes to lead.

260 All of the evidence of sexual misconduct except the admission alleged to have been made by the accused to Terence Melvin in respect of count 1 on 21 April 2017 is from the hearsay representations of the deceased. There are 20 such representations in total (including those just analysed and those conceded) which relate to seven issues, three of which are the actual allegations subject to the three counts. Representations 4, 40, 49 and 128 are of the conduct of count 1. Representation 41 is of the conduct of count 2. Representations 42 and 156 are of the conduct of count 3.

261 These representations are admissible both as to the count each pertains to and as relationship or context evidence as to the other two counts. So much is accepted by the defence. The common thread of the conduct alleged in relation to each count bespeaks an attitude on the part of the accused that he could have sex with the deceased - immediately - whenever he wanted irrespective of the deceased's wishes or circumstances.

262 Further, I am of the view that these representations are admissible as relationship and context evidence with respect to count 4. As already noted, the defence concedes that the fact that the accused was facing a contested committal for these charges merely days after the date of the deceased's death is relevant to the murder charge. But the substance of those three charges is necessary for the jury to fully assess what level of control, domination and fear subsisted in the relationship between the accused and the deceased. That assessment is critical to the competing explanations of what occurred in the garage of the former family home on 23 July 2018 which, in turn, is dependent upon whether the jury accepts that the accused was in the garage at the invitation of the deceased or had secreted himself there to await her return. It is one thing for a jury to know that the accused faced three charges of rape, but another to know the detail of those allegations.

263 In that regard, I note that the substance is not such as to likely inflame the analytical process of the jury beyond reason. Nor do I consider the dates of the alleged rapes to be too temporally remote to be of relevance. The allegations are within three years of the accused and deceased separating and within four years of the alleged murder. They are specific and precisely identified examples of a relationship alleged to have been continually sexually abusive (considered further below). For the reasons identified above, that is different from a situation in which an example or examples of sexual violence were isolated.

264 The remaining 13 representations relate to uncharged acts of rape (which cover three closely related topics), the deceased's intention to pursue criminal charges against the accused and the discussions the deceased had with the accused, her father-in-law and her parents about the damage rape was causing to the marriage.

265 The three topics of uncharged acts are the deceased waking up to find the accused having sex with her (representations 3, 5, 112, 114, 127, SC5 and SC17); the deceased waking up to find the accused having sex with her when there was a child in the bed (representation 5); and general allegations of rape in the marriage (representations 114 and 127).

266 In my opinion, each of these representations is admissible as relationship evidence in respect of counts 1 to 3 for the reasons identified by the prosecution and summarised above. They are clearly relevant to explain the deceased's conduct and state of mind, the accused's conduct and state of mind and also to guard against a false impression that the three charged acts of rape arose 'out of the blue'.

267 Further, these seven representations - the general allegation of 'rape in the marriage' which is part of each of representations 114 and 127 aside - are so closely connected to the substance of the allegations of counts 2 and 3 that no issue of impermissible prejudice to the accused arises. In this regard I note that the uncharged occasions are not described in detail but are referred to as behaviour of a kind. Further, the representations do not quantify the occasions on which these events occurred, but use descriptors such as 'there had been instances', 'numerous times' and 'on a handful of occasions'. In my view there is no danger of the jury being swamped by this evidence in considering the charged acts of rape.

268 With respect to the part of representations 114 and 127 which are more general in nature, the phrases used are 'the accused did not begin raping her until they were married ...' and 'the deceased stated that she had been raped by the accused during their marriage; she described a number of situations when the accused would demand sex even though she didn't want it.' While there is some probative value in these representations in so far as they are relevant to the nature of the relationship between the accused and deceased, that is diminished by their lack of specificity and, in any event, outweighed by their prejudicial effect. The jury might easily draw an inference from this evidence that rape of unknown particulars and an unknown frequency had been a feature of the marriage since 2007.

269 Accordingly, I propose to exclude these portions of representations 114 and 127 as marked in the table annexed to this Ruling.

270 I am also of the view that these seven representations (as amended) are admissible as relationship evidence in proof of count 4. They are part of the evidence of the relationship, said to be characterised by sexual violence, between the deceased and accused in the three years prior to separation. Again, such evidence is relevant to the critical issue of why and how the accused came to be present in the garage on 23 July 2018. The prospect that the deceased rationally feared further sexual violence based on a recent history of the same is relevant to the likelihood of her inviting the accused to attend her home in breach of the extant intervention order. Further, no impermissible prejudice arises. The evidence is of the same kind of behaviour as the charged acts of rape. No 'new' allegation is introduced. And, given the manner of expression as to frequency of occurrence noted above, there is no danger of the jury being swamped by evidence of other sexual misconduct by the accused.

271 Three representations (51, 92 and 131) concern the deceased's stated intention to pursue the rape charges against the accused. Of these, only representation 92 is contested.

272 As noted above, that representation was made on an unknown date after separation by the accused to Alice Bradley. Also as noted above, the defence conceded that in the event other representations of sexual misconduct were admitted, then this would have some probative value. I am of the view that it does.

273 Given the exclusion of the generic portions of representations 114 and 127, I note that this representation contains the phrase 'the deceased stated that the accused had raped her'. But, in this instance, that allegation is clearly connected to the rapes subject of charges 1 to 3 given the conjunction with the next phrase 'and that she was going to bring charges against him'.

274 In my view these three representations are admissible with respect to all charges on the indictment. The determination of the deceased to pursue criminal charges is logically connected with the occurrence of the offences alleged and also with respect to the competing explanations for the deceased's death, as well as any motive on the part of the accused.

275 The final three representations (22, 23 and 24) are that the deceased spoke to the accused, her father-in-law and her parents about the damage done to the marriage by rape. In the written submissions, the defence acknowledged that the admissibility of these admissions would depend upon the cross-admissibility of the allegations of rape and murder. It follows that, given my ruling, these representations are admissible in relation to all charges.

Representations comprising complaints of physical assault - hearsay issues

Representation 9 - allegation of physical assault in police statement

276 Representation 9 was made by the deceased on 3 July 2017 in her first police statement. It concerns an allegation that in 2014 or 2015 the accused punched the deceased to the arm while they were driving in response to her asking him to slow down and turn the music down.

277 The prosecution relies upon s 65(2)(c) of the Act and points to six indicia of the circumstances in which the representation was made that make it highly probable that it was reliable. First, that the deceased attended the police station with the express intention of making a complaint to police about being raped by the accused. Second, the deceased spoke to DSC Fisher about sexual assault and family violence. It follows that she trusted DSC Fisher when she made these disclosures. Third, the representation was made in the context of a statement about sexual assault and family violence and is not suggestive of concoction. Fourth, the representation is consistent with representations made previously to Sharon Churchill (representation SC6) and Terence Melvin (representation 122[85]) in February and March 2017 respectively. Fifth, there is no evidence that the deceased was impaired at the time of making the representation. Sixth, there is no evidence that the deceased later recanted the representation.

278 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of the dealings between them in relation to all charges on the indictment.

279 In oral submissions the prosecution argued that the timing of the incident in the representation makes it relevant to charges 1 to 3 inclusive. It was submitted that it was also relevant to charge 4, given that at the time of her death there was still a relationship between her and the accused.

280 The defence submitted that the timing of this single instance of physical abuse is unsure. It is not proximate to July 2018 and irrelevant, alone or in combination, to the issue of controlling behaviour by the accused. It was further submitted that the representation is not consistent with what the deceased said to Terence Melvin (representation 122) about a single instance of physical assault which he thought involved pushing.

281 The defence submitted that the representation does not satisfy s 65(2)(c) of the Act and, further, that if relevant, its low probative value is outweighed by its prejudicial effect.

282 In oral submissions it was argued that the representation is irrelevant to all charges on the indictment.

283 The conclusions drawn above as to the circumstances of the deceased making sworn police statements on 3 July 2017 are apposite to this representation. Additionally, although on its face the deceased was unsure if the incident occurred in 2014 to 2015, the fact that she could isolate the event as the 'only time' the accused hit her is suggestive of reliability. Further, while there is some difference in the detail of the incident as recalled by Terence Melvin, the representation is consistent with representation SC6.

284 I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

285 Representation 88 was made in October 2016 by the deceased to Emily Bathgate. The deceased said that on an occasion when she had been at the school to collect her children, the accused appeared and then angrily grabbed her arm and forcefully pulled her out of the school. As he did this, the accused raised his voice and angrily demanded to know why she did not answer her phone and told her she was a bad mother. The deceased became upset and tearful.

286 The prosecution relies upon s 65(2)(c) of the Act and points to six indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

287 First, the deceased and Ms Bathgate had been friends since 2015. From 2016 they jogged together weekly. The deceased confided in her the 'difficulties' she had with her husband and his behaviour towards her. Second, it was made before the deceased and accused separated. Third, a consistent complaint was subsequently made by the deceased in her police statement (representation 14[86]). Fourth, the representation, made to a close friend, is not suggestive of concoction. Fifth, there is no evidence that the deceased later recanted the representation. Sixth, there is no suggestion that the deceased made the representation in order to advance either family law or criminal law proceedings to which she was a party.

288 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

289 In oral submissions the prosecution emphasised the closeness of the friendship between the deceased and Ms Bathgate.

290 The defence submitted that the representation was in relation to an incident that had occurred 'within the last year', which was not shortly after the alleged incident. Further, that a complaint to a 'jogging friend' cannot be said to have been made in circumstances which make it highly probable that it is reliable.

291 In oral submissions, the defence said that it adopted the submissions made with respect to representation 9.

292 Emily Bathgate had been friends with the deceased since 2015. Together they had been jogging weekly since August 2016. Ms Bathgate states '[o]ver the subsequent months during these mornings, [the deceased] relayed to me certain information about her home life that concerned me with regards to domestic abuse'.[87]

293 In my view, the friendship between the deceased and Ms Bathgate was evidently sufficiently close to allow the deceased to trust that her confidential disclosures would be honoured as such. That is a circumstance suggestive of reliability. And, although the representation was made in October 2016 about a situation that occurred 'within the last year', an incident in which the accused grabbed her arm and raised his voice in front of one of their children's teachers is something likely to be readily recalled by the deceased. To that end, the content of the representation is precise and clear. Further, the incident is consistent (but not identical) with the substance of representation 14 made in the sworn police statement of 3 July 2017.

294 Accordingly, I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representation SC6 - allegation of physical harm to Sharon Churchill

295 Representation SC6 was made by the deceased to Sharon Churchill on 9 February 2017. The deceased stated that the accused punched her in the arm while they were driving.

296 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

297 First, that the representation was made in the context of the trusting, therapeutic relationship between the deceased and Ms Churchill. Second, the representation was made before the same allegation was made to police and also before any allegation of intimidatory behaviour was made to Terence Melvin (representation 122). Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation.

298 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings relevant to all charges on the indictment.

299 The defence submits that the representation is not admissible with respect to any charge. The defence adopts its arguments made with respect to representation 9.

300 The observations as to the nature of the relationship between the deceased and Sharon Churchill made above are apposite here. Further, the reasoning of the likely, accurate recall of the only time the deceased was hit by the accused referred to above with respect to representation 9 applies to this representation.

301 Accordingly, I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

Representations comprising complaints of physical assault - admissibility

302 As is evident from the above, the scope of evidence of specific physical violence by the accused towards the deceased pressed by the prosecution is limited to two instances, with two representations of each incident, namely the punch to the arm in the car and the grabbing of the arm at the school.

303 Additionally, other representations that do or may relate to physical violence are representation 122, in which the deceased told Terence Melvin that the controlling and intimidatory behaviour of the accused included physical abuse[88] and representation 132, in which the deceased told Sergeant Robyn Heal that the accused had committed family violence on her.[89]

304 Whilst I accept, as a general statement, that evidence of physical violence is relevant to the relationship between the accused and deceased, in my view the incident of the punch to the arm in the car is too remote in time and too isolated in nature to be of probative value to any of the charges on the indictment. As is evident from the deceased's police statement, she is unclear in what year the incident took place. Undoubtedly an unexpected physical blow would contribute to the fear of the accused expressed by the deceased, but such a blow was never repeated and the fear of the deceased about the accused is primarily expressed as being as a result of sexual violence as well as behaviours of intimidation and aggression.

305 Accordingly, representations 9 and SC6 will be excluded.

306 On the other hand, the gravamen of the incident in the school is not the physical assault, but the intimidation, control and aggression displayed by the accused in swearing and yelling at the deceased (for not being immediately contactable by him) in front of a teacher and then physically removing her. It should be noted that the terms of the representation do not include the assertion that any child was actually present. The incident occurred in 2016.

307 The defence did not make any submissions as to impermissible prejudice of this representation. In my view there is none. Representation 88 will be admitted.

Representations comprising complaints of intimidation, aggression and fear - hearsay issues

308 Representation 84[90] was made at an unknown time before the accused and deceased separated. The deceased told Luke Henderson, her brother-in-law, that the accused was physically intimidating and that she was scared of him. She said that on one occasion he had backed her into a corner and made her feel trapped and intimidated. The deceased said that she was contemplating whether to end her relationship with the accused.

309 The prosecution relies upon s 66A of the Act, the representation being a contemporaneous statement about the deceased's state of mind.

310 The prosecution also relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

311 First, the disclosure was made to the deceased's brother-in-law in Melbourne when she was staying with him and her sister. It must be assumed that she trusted him. Second, the representation was made in the context of the deceased speaking about her relationship with the accused which is not suggestive of concoction. Third, the representation was made before the deceased had separated from the accused. Fourth, there is no evidence that the deceased was impaired at the time of making the representation. Fifth, there is no evidence that the deceased later recanted the representation.

312 The prosecution submitted that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

313 In oral submissions the prosecution stated that the deceased's fear is relevant because it is tied to the event of her being backed into a corner, rather than being a generic statement of fear.

314 The defence submitted that the representation did not meet s 65(2)(c) of the Act as it was unclear whether the fear expressed and the specific assertion of being backed into a corner were connected. Further, it is unclear when the event(s) were said to take place and therefore it is not established that they occurred shortly before the representation was made. And, it was unclear when the representation itself was made.

315 In oral submissions the defence argued that the evidence of the timing of this representation is so unclear as to not be probative of any of the charges on the indictment.

316 In my view the part of the representation in which the deceased stated she was scared of the accused and that she was contemplating whether to end her relationship with him is admissible pursuant to s 66A of the Act. While the exact timing of the representation is unclear, it is evidently before the accused and deceased separated and illuminating of her mindset during the period of the indictment.

317 With respect to the remainder of the representation, I note that it is incorrectly recorded in the First Hearsay Notice, which refers to 'one occasion'. Mr Henderson's statement reads, '[s]he said that he had, on occasion, backed her into a corner and made her feel trapped and intimidated.' The reference is not therefore tied to a specific occasion. It is unclear how many times it had happened or when it had happened in the course of the marriage.

318 Further, although Mr Henderson was the brother-in-law of the deceased, it is evident from his statement that his contact with the deceased after she moved to Phillip Island was at family functions and when she came to Melbourne to visit him and her sister. While obviously a family relationship, it was not one of such confidence that the deceased made the kinds of disclosures she did to other family, friends and professionals.

319 The combination of these factors leads to the conclusion that I am not satisfied that this portion of representation 84 was made in circumstances which make it highly probable that it is reliable. It will be excluded.

320 The part of the representation 'the accused was physically intimidating' suffers the same vice and will also be excluded.

321 Representation 147 was made by the deceased to Donna Zander on 15 January 2018 when she stated that she did not want to be put on social media because she was afraid of the accused knowing where she was.

322 The prosecution relies upon s 66A of the Act in that the representation is a contemporaneous statement about the deceased's state of mind.

323 As noted above, Donna Zander is a mental health worker in private practice. She provided counselling about family violence to the deceased between January and March 2018. The prosecution submitted that there is nothing ambiguous about the representation given this context.

324 The prosecution submitted that it is relevant in six ways. First, as to whether or not the deceased invited the accused to attend her residence on 23 July 2018. Second, whether or not the accused secreted himself at the house on that date. It was put that if the deceased had been aware of his presence she would not have willingly driven her vehicle onto the premises. Third, whether or not the accused revealed his presence to the deceased only after she alighted from her vehicle. Fourth, whether or not the deceased willingly engaged in any form of contact with the accused on 23 July 2018. Fifth, whether or not the deceased willingly remained at her address after she became aware of the accused's presence. Sixth, whether or not the deceased initiated physical aggression against the accused at her residence.

325 The defence submitted that the representation is unclear and apt to be misused by the jury. The defence does not have the opportunity to clarify its meaning through cross-examination. It is equally plausible that the deceased did not want her ex-husband to know that she was in counselling with a mental health social worker because of the ongoing family law dispute.

326 The defence further made the same submission as in relation to representation 156 discussed above that the deceased was provided counselling by Ms Zander as part of a VOCAT claim. It may be inferred that the VOCAT proceeding was initiated by the deceased, or on her instructions, and that she was seeking financial assistance. Those circumstances mean that it is not highly probable that the representation was reliable.

327 In oral submissions the defence argued that the representation is confusing. It is not clear whose social media is being referred to. Given that there will be other evidence of the deceased's fear of the accused, this representation adds little and is of low probative value.

328 The prosecution does not seek to rely upon s 65(2)(c) of the Act, so the issue of the representation being made in circumstances that make it highly probable that it was reliable is beside the point. Rather, the prosecution relies upon s 66A.

329 The statement of the deceased on 15 January 2018, that she was afraid of the accused knowing where she was, is a contemporaneous statement about her feelings and state of mind. The difficulty is that fear is linked to her request not to be put on social media. Why the deceased asked Ms Zander that she not be put on social media is unclear. It can hardly be thought that a mental health social worker would discuss or refer to clients outside the therapeutic context at all, let alone on a social media platform. It is possible that the representation means that the deceased was reporting that she asks other people in her life not to refer to her in any of their activity on social media, but that is not clear.

330 As a result, I am not satisfied that the representation is a contemporaneous representation about the deceased's control over or absence of social media because of her fear of the accused knowing where she was.

Representations comprising complaints of intimidation, aggression and fear - admissibility

331 It follows from the above that part of representation 84 will be admitted. The deceased's statement of fear and contemplation of separation are probative of the relationship between the deceased and accused relevant to the charges on the indictment. The remainder, as noted in the annexed schedule, will be excluded.

332 Representation 147 will be excluded. I note, for completeness that representation 146 made by the deceased to Ms Zander on multiple occasions throughout their therapeutic relationship between January and March 2018 was that she was afraid of the accused. That representation is conceded by the defence.

Representations comprising complaints of controlling and abusive behaviour

(a) to police - hearsay and admissibility issues

333 Representation 10 is that the deceased stated that from the beginning of their relationship, the accused always kept a very close track of her movements and locations at all times.

334 Representation 11 is that the deceased stated that the accused would generally insist on accompanying her everywhere and when she was with friends he was physically possessive and inappropriately sexual in his behaviour. The deceased stated that this made her feel uncomfortable.

335 Representation 12 is that the deceased stated that when she was out with friends the accused would call her regularly to discuss minor topics or ask her to leave to do an activity with him. The deceased stated that the accused would become defensive, frustrated and verbally aggressive when she tried to suggest that they could discuss such things later.

336 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

337 First, that the deceased compiled a statement for police in relation to her complaint of being raped by the accused within her marriage. Second, the representations were made within the context of her speaking about her relationship with the accused which is not suggestive of concoction. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation.

338 The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

339 The defence submitted that representation 10 is a very general statement. Its lack of specificity robs it of probative value. Further, the 'relationship history document', which was the basis of the police statement, placed this allegation as being potentially referrable to 2015 which further indicated its lack of probity. The defence also argued that representations 11 and 12 suffered the same deficit.

340 Representation 13 is that on an evening in 2015 the deceased went to a friend's birthday dinner leaving the accused at home with their children. Towards the end of the evening the group left the restaurant and found the accused waiting in his car outside the restaurant without the children to see if the deceased wanted a lift home. The accused said that he had organised for the deceased's mother to watch the children.

341 The prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

342 First, it was made in a police statement signed and acknowledged with a jurat. Second, the representation was made within the context of the deceased speaking about her relationship with the accused which is not suggestive of concoction. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation.

343 The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

344 In oral submissions the prosecution said that the fact that the incident the subject of the representation occurred in 2015 does not render it too remote.

345 The defence submitted that the representation lacked probative value.

346 The deceased stated that on a Friday afternoon in 2016 she left her child A at home asleep with the accused while she went to collect her other two children from school. She left her phone in the car and was having a conversation with a teacher when the accused approached her and swore at her for not having her phone on her. The accused grabbed her underneath her armpit and dragged her towards the car. The deceased felt scared and embarrassed.

347 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

348 First, it was made in a police statement signed and acknowledged with a jurat. Second, there is an absence of the Ambrosoli unreliability factors in the circumstances. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation. Fifth, the deceased had previously made a consistent representation to Emily Bathgate (representation 88).

349 In oral submissions the prosecution stated that this representation and representation 88 concerned the same incident. Further, the event was not too remote from 23 July 2018.

350 The defence relied upon its submissions with respect to representation 88.

351 These representations relate to the period of March and April 2017.

352 Representation 26 is that the deceased continued to observe controlling and abusive behaviours by the accused after their reconciliation, causing her to end their relationship permanently.

353 Representation 27 is that the accused aggressively berated the deceased for ruining a bike ride, causing her to feel intimidated and distressed.

354 Representation 28 is that the accused yelled at the deceased that it was her fault that the children J and R would not do as he told them because she did not discipline them properly. The deceased cried and felt despair and a sense of hopelessness.

355 Representation 29 is that the accused was reluctant for the deceased to do things without him and that he became defensive when she organised anything without involving him.

356 Representation 30 is that the accused timed her with his phone stopwatch whilst she was helping him do jobs and stopped the timer if she moved away from the activities. He yelled at her and berated her for laziness.

357 Representation 31 is that the accused told the deceased that she was a bully and controlling whenever she tried to assert her views or ideas.

358 Representation 32 is that after the deceased requested physical space from the accused, his behaviour became increasingly sexualised in public. He used open arms to pull her in for hugs, grabbed her bottom and grabbed her chin to force a kiss on her lips involving his tongue. The accused became sulky and defensive if she moved away. The deceased felt coerced, manipulated and controlled by this behaviour. She experienced despair and panic.

359 Representation 33 is that the accused yelled at the deceased for not emptying the vacuum cleaner and putting it away when she was on her way to have brunch with their child J during the school holidays.

360 Representation 34 is that the accused photographed a wall clock and timed her as she performed household jobs. The accused later showed her the stopwatch and told her she had been unproductive. The accused yelled at her for being lazy and ungrateful.

361 Representation 35 is that during a visit by the deceased's cousin Sarah and her husband Andy, the accused and deceased had a discussion with them about house break-ins and car theft. Afterwards the accused raised this with the deceased a number of times. On at least three occasions in one day the accused told the deceased 'you never know when someone will break into your house and do you harm' followed by lengthy, heavy pauses. The deceased felt that these comments were designed to make her afraid.

362 Representation 36 is that on Easter Saturday of 2017 she again broached the subject of separation with the accused. Initially the accused was angry and refused to discuss the subject. When she persisted the accused said that he refused to move out of the house and she could not make him do so.

363 Representation 37 is that on 30 April 2017 the accused took the three children to the house of the mother of the deceased, Janine Fraser, for a sleepover. Mrs Fraser suggested that the accused hand the children over at the door, but the accused pushed past into the house and refused to leave for almost an hour. When he did leave the accused was aggressive to both Mrs Fraser and the deceased and criticised them about their evening routine.

364 Representation 38 is that on 22 April 2017 the accused grabbed the deceased on the buttocks and made a comment about how aroused he was. When the deceased put some distance between them and said that it was inappropriate, the accused became defensive and stormed off.

365 Representation 39 is that the deceased was concerned that the accused was using the location app on her phone to track her whereabouts. The accused was evasive when she asked him about it. When the deceased disabled the app she received a phone call from the accused within an hour. He was angry, demanded to know where she was and berated her for disabling the location app.

366 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

367 First, they were made in a police statement signed and acknowledged with a jurat. Second, there is an absence of the Ambrosoli unreliability factors in the circumstances. Third, there is no evidence that the deceased was impaired at the time of making the representations. Fourth, there is no evidence that the deceased later recanted the representations. Fifth, the representations were consistent with representations made by the deceased previously (and subsequently).

368 The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

369 The defence concede that the representations, given their temporal proximity to 23 July 2018, have some relevance to the state of the relationship between the accused and deceased and therefore to the state of mind of the deceased at the time of her death. However, the defence repeats its submissions as to the circumstances of the making of the police statement referred to above.

370 Further, the defence submits that representations 30 and 34 are unfairly prejudicial to the accused. The conduct of the accused in timing the deceased when performing household chores is said to be abnormal and likely to raise feelings of antipathy towards the accused.

371 Representation 3.1 is that the deceased stated that at about March to April 2017 she tried to discuss with the accused her concerns that his behaviour was still very controlling.

372 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

373 First, the deceased made the representation in a sworn police statement. Second, factors that precluded a positive finding of high probability of reliability in Ambrosoli are not apparent here. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation. Fifth, the representation is consistent with others made by the deceased.

374 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused and is also part of the factual narrative.

375 The defence submits that this representation was made in the deceased's first police statement. The defence adopts the submissions it made with respect to other representations drawn from it. Further, the defence submits that the representation was not about something of which the deceased had personal knowledge. Rather, it is only about her 'concerns' regarding certain behaviour.

376 Each of these representations were made by the deceased in the first police statement sworn on 3 July 2017. The analysis of the circumstances of the making of that statement, detailed above, also apply here. Accordingly, I am affirmatively satisfied that each representation was made in circumstances which make it highly probable that they are reliable.

377 Representations 10, 11 and 12 are drawn from the same paragraph of the statement. The first, representation 10 is an umbrella statement. Representations 11 and 12 are specific examples of the behaviour asserted in representation 10. Accordingly, I am of the view that representation 10 lacks probative value. It will be excluded.

378 However, representations 11 and 12 are relevant to the nature of the relationship between the accused and deceased. Although they appear against the date 2015, each describes an ongoing pattern of behaviour relevant to the years covered by the indictment. They will be admitted with respect to all charges.

379 Representation 13 also appears in that paragraph. It does not describe an ongoing pattern, but a specific example of the behaviour, in 2015. Although I am of the view that it is of probative value, there is an impermissible prejudice arising from the accused's behaviour towards his children. Although he organised for his mother-in-law to watch them, his alleged treatment of them was, at best, offhand. The prosecution has not pressed other material which may indicate deficiencies in the accused's behaviour as a father or his children's fear of him. Representation 13 will be excluded.

380 Representation 14 is of the same allegation as made in representation 88. For the reasons articulated with respect to that representation, it is admitted with respect to count 4.

381 Of representations 26 to 39, the defence argues that 30 and 34 are prejudicial. Each describes the accused timing the deceased as she performed household chores. It is clearly bizarre behaviour, but in my view it is not impermissibly prejudicial. It well illustrates the level of control manifested by the accused in his relationship with the deceased, as asserted by her. As such, it is relevant to the circumstances of how and why the accused came to be in the garage of the family home on 23 July 2018. And, although bizarre, it is not so totally unbelievable or repugnant as to likely overcome the jury's reason.

382 However, representation 28 which involves the accused criticising the deceased through the vehicle of the children (and which also serves as a direct criticism of the children themselves), and representation 37 which concerns handover of the children, suffer the same vice as representation 13. Additionally, representation 37 refers to aggression and intimidation towards the deceased's mother. Both representations will be excluded.

383 Representations 26 to 27 inclusive, 29 to 36 inclusive, 38 and 39 will be admitted with respect to count 4.

384 I reject the defence submission in respect of representation 3.1 that the asserted fact is beyond the knowledge of the deceased. The representation was made at the time of brief reconciliation between the deceased and accused in March to April 2017. It was made directly to the accused. It is probative of the state of the relationship between them both at that time and earlier.

(b) to civilians - hearsay and admissibility issues

386 Representation 54 is that the deceased told Alice Munro on a number of occasions sometime prior to the separation between the deceased and accused about the accused's controlling behaviours and that she was scared[91] of him.

387 The prosecution relies upon s 65(2)(c) of the Act and points to eight indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

388 First, the friendship between the deceased and Alice Munro was of five years' duration. The deceased discussed her relationship with the accused and it must be assumed that she trusted Ms Munro. Second, the representation was made in the context of a private disclosure to a friend which is not suggestive of concoction. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation. Fifth, the representation is consistent with what the deceased later told the police. Sixth, the representation is consistent with other representations made to Lija Matthews (representation 58) and Terence Melvin (representation 122) about controlling behaviours by the accused. Seventh, the representation is consistent with other representations made to Zena Benbow (representations 95 and 96), Brigitte Linder (representation 101), Kristii Slatter (representations 140 and 142, the latter no longer pressed by the prosecution), Sharon Churchill (representation SC4) and LSC Ann Barnes (representation 167) about the accused monitoring her phone. Eighth, the representation is consistent with the representation to Luke Henderson (representation 84) that the deceased felt intimidated by the accused.

389 The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

390 The defence does not object to the representation. The defence submits that it is admissible pursuant to s 66A of the Act, but is not admissible as to the truth that the accused engaged in controlling behaviours.

391 Alice Munro and the deceased had formed a friendship after meeting at the gym and through having children of about the same age. They had been friends for about five years at the time of the deceased's death. From Ms Munro's statement, it is clear that the deceased began confiding in her about the state of her relationship with the accused in about 2015 or 2016 after they, with others, went away for a yoga weekend.

392 The representation is that by the time of separation, and implicitly, between 2015/2016 and early 2017, the deceased had told Ms Munro 'on a number of occasions' that she was frightened of the accused and about how controlling he was. The former is a statement of the deceased's feelings. The latter is a general assertion of behaviour. The specific examples of that controlling behaviour, which were representations 55 and 56, follow that general statement, but are no longer pressed by the prosecution.

393 In my view the part of the representation in which the deceased said she was frightened of the accused is admissible as a contemporaneous statement pursuant to s 66A of the Act. The remainder, although made in circumstances suggestive of reliability, is too general to be of probative value.

394 The representation, as amended, will be admitted pursuant to s 66A of the Act.

395 Representation 58 was made in about mid-April 2017 by the deceased to Lija Matthews. The deceased stated that she ended the marriage because she was sick of abuse and described several different events in which she said she felt controlled and manipulated.

397 The prosecution also relies upon s 65(2)(c) of the Act and points to six indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

398 First, the close friendship between the deceased and Ms Matthews, which consisted of daily contact and mutual confidence. Second, the representation was made by the deceased in the context of speaking about her relationship with the accused, which is not suggestive of concoction. Third, the representation was made a month after the deceased separated from the accused. Fourth, there is no evidence that the deceased was impaired at the time of making the representation. Fifth, there is no evidence that the deceased later recanted the representation. Sixth, the representation is consistent with other representations made by the deceased to Alice Munro (representation 54) and Terence Melvin (representations 122 and 123) regarding controlling behaviour by the accused.

399 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

400 The defence submitted that the complaint of 'abuse' and of feeling controlled and manipulated is too generic to be of probative value.

401 Lija Matthews and the deceased had been friends since 2015, having met through having children of the same age attending the same early learning centre.

402 I accept the submission of the defence that the representation is too generic to be of probative value. The term 'abuse' could mean any number of matters and, although the representation states that Ms Matthews was told of 'several different events' of abuse, they are not detailed or dated. Nor does the statement go on to detail those events. The representation will be excluded.

403 The part of representation 85 pressed by the prosecution was by the deceased to Emily Bathgate at an unknown time. The deceased stated that she needed to answer the accused's repeated calls to avoid upsetting him.

404 The prosecution relies upon s 65(2)(c) of the Act and points to seven indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

405 First, the nature of the friendship between the deceased and Emily Bathgate, which had subsisted since 2015. Second, the representation was made before the deceased had separated from the accused and also before she had made a complaint to police. Third, the representation, concerning her husband's behaviour made to a close friend, is not suggestive of concoction. Fourth, there is no evidence that the deceased was impaired at the time of making the representation. Fifth, the deceased later made a consistent complaint in her sworn police statements (representations 12 and 13) and also to Donna Zander (representation 153). Sixth, there is no evidence that the deceased later recanted the representation. Seventh, there is no suggestion that the representation was made by the deceased in order to advance family law or criminal proceedings in which she was concerned.

406 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

407 The defence submits that the representation could have been made at any time between 2015 and 2018 and, further, it contains a conclusionary statement. As such, the representation lacks probative value.

408 The circumstances of the friendship between the deceased and Ms Bathgate analysed above apply to this representation. I am affirmatively satisfied that the representation was made in circumstances which make it highly probable it is reliable.

409 The part of the representation that is a conclusion is not pressed by the prosecution. As to the date of the representation, as previously noted, the deceased and Ms Bathgate jogged together on Thursday mornings from about August 2016. The representation immediately follows Ms Bathgate's statement that on most Thursday mornings when they were jogging the accused would telephone the deceased and that if the call was not answered, repeated calls would be made. It is clear that it is in that context that the representation was made. Accordingly, it will be admitted.

410 Representation 122 was made on 9 March 2017. The deceased stated that the accused exhibited controlling and intimidatory behaviour, including physical abuse. The deceased expressed her fear about leaving him.

411 The prosecution relies upon s 66A of the Act, noting the statement to be a contemporaneous statement about the deceased's state of mind.

412 The prosecution also relies upon s 65(2)(c) of the Act and points to six indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

413 First, the nature of the trusting, therapeutic relationship between the deceased and Terence Melvin. Second, the representation was made by the deceased as she discussed her relationship with the accused, which is not suggestive of concoction. Third, the representation was made a month before the deceased separated from the accused. Forth, the representation is consistent with others made by the deceased to Alice Munro (representation 54) and Lija Matthews (representation 58) concerning controlling behaviour by the accused. Fifth, the representation is consistent with that made by the deceased to Luke Henderson (representation 84) concerning her feeling of intimidation. Sixth, the representation is consistent with others made to Sharon Churchill (representations SC6 and SC7) that the accused punched her to the arm and subjected her to physical intimidation.

414 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

415 The defence does not object to admission of the part of the representation that the deceased was fearful about leaving the relationship pursuant to s 66A of the Act.

416 The defence objects to the remainder of the representation on the basis that it is inadmissible pursuant to s 66A and, further, it is too general and insufficiently probative to be admissible pursuant to s 65(2)(c).

417 The representation that the deceased was afraid to leave the accused is admissible pursuant to s 66A of the Act.

418 The remainder of the representation is generic and not time specific. It should be noted that the representation is drawn from Mr Melvin's first statement dated 20 December 2017. The clear inference is that it was prepared with respect to the rape charges then on foot. Its focus appears to be the admission by the accused to the conduct subject of count 1. His second statement dated 14 September 2018 refers to the same 9 March 2017 counselling session, but in more detail.

419 The part of the representation referring to controlling and intimidatory behaviour, including physical abuse will be excluded.

420 Representation 123 was made by the deceased on 9 March 2017. The deceased told Terence Melvin that the accused had been controlling her, checking up on her, exerting financial control and physically intimidating her.

421 The prosecution relies upon s 65(2)(c) of the Act and points to seven indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

422 First, the nature of the trusting, therapeutic relationship between the deceased and Terence Melvin. Second, the representation was made by the deceased as she discussed her relationship with the accused, which is not suggestive of concoction. Third, the representation was made a month before the deceased separated from the accused. Fourth, the representation is consistent with others made by the deceased to Alice Munro (representation 54) and Lija Matthews (representation 58) concerning controlling behaviour by the accused. Fifth, the representation is consistent with those made by the deceased to Zena Benbow (representations 95 and 96), Brigitte Linder (representation 101), Kristii Slatter (representations 140 and 142), Sharon Churchill (representation SC4) and LSC Ann Barnes (representation 167) in relation to the accused monitoring or interfering with her phone. Sixth, the representation is consistent with that made by the deceased to Luke Henderson (representation 84) concerning her feeling of intimidation. Seventh, there is no evidence that the deceased was impaired at the time of making the representation. Eighth, there is no evidence that the deceased later recanted the representation.

423 The prosecution submits that the representation is relevant to the nature of the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

424 The defence submits that the representation is too general to be of probative value.

425 For the reasons given with respect to previous generic representations, this representation will be excluded.

426 Representation 143 was made on 28 June 2017 to Kristii Slatter, a caseworker at SalvoCare Eastern. The deceased stated that she had had sensor lights installed at her house and had had her garage door remote control re-coded.

427 Representation 144 was made on 29 August 2017. The deceased told Kristii Slatter that she had been hearing noises outside her house at night and thought she might have seen her husband outside at night. She requested the installation of security cameras.

428 The prosecution relies upon s 65(2)(c) of the Act with respect to representation 143 and points to six indicia of the circumstances in which this representations were made that make it highly probable that it was reliable.

429 First, the role Kristii Slatter had as case manager for the deceased, concerned with inter alia the deceased's safety after she had obtained an intervention order against the accused. Second, the representation was made in the context of the deceased speaking about her relationship with the accused, which is not suggestive of concoction. Third, the representation was made a month after the deceased had separated from the accused. Fourth, the representation is consistent with the deceased's attendance at Waterfront Computers in mid-2017 and also with a representation made to Zena Benbow (representation 95). Fifth, there is no evidence that the deceased was impaired at the time of making the representation. Sixth, there is no evidence that the deceased later recanted the representation.

430 The prosecution submits that the representation is relevant to the state of the relationship between the deceased and accused. The garage door remote is also relevant to the issue of the accused's access to the garage on 23 July 2018 and the events of that morning.

431 The prosecution relies upon s 66A of the Act with respect to representation 144, noting it to be a contemporaneous statement about the deceased's state of mind. The prosecution also submit that the representation is consistent with the deceased's previous representation to Christina Aitken (representation 66), that she believed the accused was surveilling her.

432 As such, the representation is relevant to the nature of the relationship between the accused and deceased, enabling a realistic appraisal of their mutual dealings.

433 The defence concedes both representations to be admissible pursuant to s 66A of the Act, but submits that representation 143 is not admissible pursuant to s 65(2)(c).

434 The fact asserted in representation 143 is clearly probative of how and why the accused came to be in the garage of 19 Seagrove Way on 23 July 2018. For the reasons articulated by the prosecution, the representation is admissible pursuant to s 65(2)(c) of the Act.

435 Representation 144 will be admitted pursuant to s 66A of the Act.

436 The portion of the representation pressed by the prosecution was made by the deceased to Sharon Churchill on 9 February 2017. The deceased stated that the accused monitored her phone calls and online activity.

437 The prosecution relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

438 First, the nature of the trusting, therapeutic relationship between the deceased and Sharon Churchill. Second, the representation was made before the deceased complained to police. Third, the representation is consistent with both prior and subsequent representations made by the deceased to others regarding the accused monitoring her devices (Zena Benbow) and acting in a controlling manner (Alice Munro and Terence Melvin). Fourth, there is no evidence that the deceased was impaired at the time of making the representation. Fifth, there is no evidence that the deceased later recanted the representation.

439 The prosecution submits that the representation is relevant to the nature of the relationship between the accused and deceased.

440 The defence submits that the deceased's 'belief' as to the accused's conduct is inadmissible.

441 The nature of the relationship between the deceased and Ms Churchill is analysed above. Those observations apply to this representation. Accordingly, I am affirmatively satisfied that the representation was made in circumstances which make it highly probable that it is reliable.

442 I am of the view that the representation is of an asserted fact. That is, the accused monitored the deceased's phone calls and online activity. The evidence of Kristii Slatter, the SalvoCare worker, that there was spyware on the deceased's devices and the deceased's own actions in seeking assistance to remove such capability is consistent with it being an assertion of fact rather than belief. Accordingly, the representation will be admitted.

Representations comprising the deceased's fears and predictions that she may end up dead - hearsay and admissibility issues

443 Representation 63 was made in 2018 when the deceased told Christina Aitken that the accused had told her that he would destroy her and that she believed he would if given the chance.

444 The prosecution relies upon s 66A of the Act, noting the statement to be a contemporaneous statement about the deceased's state of mind.

445 The prosecution also relies upon s 65(2)(c) of the Act and points to five indicia of the circumstances in which this representation was made that make it highly probable that it was reliable.

446 First, the close friendship between the deceased and Christina Aitken and the high probability that the deceased would share with her trusted friend what the accused had told her, particularly as the accused and deceased had separated and were not on cordial terms. Second, the representation was in the context of a period in which the deceased confided in Aitken about the relationship and is not suggestive of concoction. Third, there is no evidence that the deceased was impaired at the time of making the representation. Fourth, there is no evidence that the deceased later recanted the representation. Fifth, the representation was made temporally proximate to 23 July 2018.

447 The prosecution submitted that the representation is relevant to the issue of causation and motive with respect to charge 4. In particular it is submitted to be relevant in five ways. First, whether or not the accused secreted himself at the house on that date. It was put that if the deceased had been aware of his presence she would not have willingly driven her vehicle onto the premises. Second, whether or not the accused revealed his presence to the deceased only after she alighted from her vehicle. Third, whether or not the deceased willingly engaged in any form of contact with the accused on 23 July 2018. Fourth, whether or not the deceased willingly remained at her address after she became aware of the accused's presence. Fifth, whether or not the deceased initiated physical aggression against the accused at her residence.

448 The prosecution further submits that the representation is also relevant to the occurrence or otherwise of charges 1, 2 and 3.

449 The defence submit that while the representation may have been made in 2018, it is not clear that it referred to something said by the accused in 2018. It is therefore irrelevant. Further, if the basis for the deceased's belief is irrelevant, then the deceased's state of mind drawn from it must also be irrelevant.

450 The part of the representation as to the deceased's belief is admissible pursuant to s 66A of the Act.

451 Ms Aitken worked as a social worker at Bass Coast Health. She knew the deceased and became close friends with her when the fence at the rear of 19 Seagrove Way burnt down. From other evidence that is dated to 23 April 2017. Despite the relative brevity of their friendship, I accept that it was one of confidence and trust, as exhibited by the fact that the deceased chose to disclose matters about her relationship with the accused. The fact that the deceased did not do so until 2018, after a period, indicates it to have been a considered decision.

452 Accordingly, I am affirmatively satisfied that the representation as to what the deceased said was made in circumstances that make it highly probable that it was reliable.

453 I accept the defence submission that while the representation was made in 2018, it is not clear that the accused had made the threat in 2018. However, for the reasons advanced by the prosecution, I accept that this does not rob the representation of probative value. The relationship between the accused and deceased had been acrimonious for some years. Further, there is no impermissible prejudice in the evidence.

455 Representation 74 was made in November 2015 when the deceased told Rebecca McFarlane that she was frightened of the accused and she felt that things were going to get much worse. The deceased said that she was petrified of the accused and what the separation might mean in her life and the lives of her children.[92]

456 The prosecution relies upon s 66A of the Act, noting the representation to be a contemporaneous statement about the deceased's state of mind.

457 The prosecution submitted that the statement is relevant to the occurrence or otherwise of (at least) charge 3.

458 The defence submitted that the representation is too remote from the date of the deceased's death. Further, given that the deceased and accused had separated for over a year prior to the date of death, representations made in the context of an ongoing relationship are of less probative value.

459 In oral submissions, the defence conceded that the representation may have relevance to charge 3.

460 Representation 74 is admissible pursuant to s 66A of the Act in respect of all charges. It is proximate to count 3, having occurred in the year after the allegations subject of counts 1 and 2, but is relevant to the level of fear the deceased experienced in the years immediately prior to her death. That is directly relevant to how and why the accused came to be in the garage of 19 Seagrove Way on 23 July.

461 However the reference to the lives of the children, for reasons previously articulated, is in my view impermissibly prejudicial. That portion of the representation will be excluded.

462 Representation 83 was made at a time before the accused and deceased separated. The deceased told Peta Le Roy that she was very frightened of the accused.[93]

463 The prosecution relies upon s 66A of the Act, noting the representation to be a contemporaneous statement about the deceased's state of mind.

464 The prosecution submits that the representation is relevant to (at least) charge 3.

465 The defence submits that the time of the representation is unclear and lacks sufficient temporal proximity to the charges to be relevant.

466 Peta Le Roy knew the deceased from about 2015 when J began attending after school art classes at Ms Le Roy's studio. Ms Le Roy had previously worked as a psychologist and she and the deceased struck up a bond.

467 Both before and after the deceased and accused separated the deceased confided in Ms Le Roy, who in turn encouraged her to open up. From Ms Le Roy's statement it is clear that all the statements made by the deceased to her were at a time when the deceased was contemplating leaving the relationship and then after doing so. The representation is an expression of current rather than past fear. Therefore it is temporally proximate and relevant to count 4.

469 Representation 125 was made to Terence Melvin on 9 March 2017. The deceased stated that she was fearful of leaving the accused.

470 Representation 126 was made to Terence Melvin on 19 April 2017. The deceased stated that she was fearful of leaving the accused but had decided to do so despite believing he was likely to become vindictive.

471 The prosecution relies upon ss 65(2)(c) and 66A of the Act with respect to representation 125. It is to be noted that the representation is a duplicate of representation 122 and the same indicia of the circumstances that make it highly probable that the representation is reliable are noted.

472 The prosecution relies upon s 66A of the Act with respect to representation 126.

473 The prosecution submits that both representations are relevant to the nature of the relationship between the accused and deceased.

474 The defence concedes that both representations are admissible pursuant to s 66A of the Act, but objects to the admissibility of representation 125 pursuant to s 65(2)(c) on the same bases as advanced with respect to representation 122.

475 Representation 125 is a duplicate of representation 122. It refers to the same statement made by the deceased on 9 March 2017, but is drawn from Mr Melvin's second statement. For the reasons articulated above, I admit the representation pursuant to s 66A of the Act (in the expectation that it will be led in evidence only once).

476 Representation 126 is also admissible as a contemporaneous statement under s 66A, including the portion as to the deceased's belief that the accused was likely to become vindictive.

477 Representation SC 35 was made by the deceased to Sharon Churchill on 20 July 2018. The deceased stated that she had increased safety concerns for herself and felt unprotected. She stated she felt unsafe in the long term, particularly following court.[94]

478 The prosecution relies upon s 66A of the Act, noting the representation to be a contemporaneous statement about the deceased's state of mind.

479 The prosecution also relies upon s 65(2)(c) of the Act and points to three indicia of the circumstances in which the representation was made that make it highly probable that it was reliable.

480 First, the nature of the trusting, therapeutic relationship between the deceased and Sharon Churchill. Second, there is no evidence that the deceased was impaired at the time of making the representation. Third, there is no evidence that the deceased later recanted the representation.

481 The prosecution submits that the representation is relevant to the nature of the relationship between the accused and deceased, enabling a realistic appraisal of their mutual dealings. The prosecution submits further that the evidence is relevant to whether the deceased invited the accused to attend at her residence on 23 July 2018, whether he secreted himself there until she had returned, whether the deceased would have alighted from the car if she had known of his presence, whether she willingly engaged in any form of contact with him on that day and whether she initiated any physical aggression against the accused at that time.

482 The defence submits that the representation is not about a fact of which the deceased had personal knowledge. Rather, it concerns feelings and state of mind. For that reason, s 65(2)(c) is not engaged, but the defence concedes that the parts of the representation now pressed may be admissible pursuant to s 66A.

483 The amendments proposed by the prosecution with respect to the first two sentences of this representation change its meaning. The deceased's safety concerns to herself were expressed to be as a result of access to the children rather than to her. And her feeling of being unprotected was linked to police rather than to the accused. Accordingly, those portions will be excluded.

484 However, the sentence that the deceased felt unsafe in the long term, particularly following court stands alone. It is an expression of her contemporaneous state of mind and is clearly relevant to the issues arising with respect to count 4. That portion of the representation will be admitted pursuant to s 66A of the Act.

Representations comprising general matters concerning the relationship

Representations 21, 22, 23, 24, 25, 3.2 - police statement

485 These representations were all made in the deceased's police statement dated 3 July 2017.

486 Representation 21 is that in 2015 and 2016 the deceased made several attempts to end her relationship with the accused and to discuss separation.

487 Representation 22 is that in November 2016 the deceased spoke to the accused about the damage rape was doing to their marriage.

488 Representation 23 is that in January 2017 the deceased spoke to the accused and James Basham about the separation, including discussion of domination, aggression, controlling behaviours and rape.

489 Representation 24 is that in January 2017 the deceased discussed issues of rape within her marriage with Janine Fraser, Trevor Fraser and James Basham.

490 Representation 25 is that although she had said that it might not be appropriate, she reconciled briefly with the accused at his request around the time of their tenth wedding anniversary.

491 Representation 3.2 is that in about March to April 2017 the deceased tried to discuss with the accused that in the event that they separated whether she and the children could remain in the house. The accused responded that if he couldn't be in the house she didn't deserve it and it was only fair that she suffered too.

492 The prosecution relies upon ss 65(2)(b) and 65(2)(c) of the Act with respect to all five representations. The prosecution also relies upon s 66A with respect to representations 22 and 24.

493 In respect of representations 21, 23 and 25, the prosecution relies on four indicia of the circumstances in which the representations were made that make it both unlikely that the representations are a fabrication, satisfying s 65(2)(b) of the Act, and which make it highly probable that the representations are reliable, satisfying s 65(2)(c) of the Act.

494 First, that the deceased made this representation in her police statement, which she signed and acknowledged as being true and correct. Second, that the Ambrosoli factors that may preclude a positive finding of high probability are not apparent. Third, that there is no indication that the deceased was impaired at the time she made or signed the statements. And fourth, that there is no evidence that the deceased later recanted these representations.

495 The prosecution further submits that the representations are relevant to the nature of the relationship between the deceased and the accused.

496 In respect of representations 22 and 24, the prosecution relies on five indicia of the circumstances in which the representations were made that make it both unlikely that the representations are a fabrication, satisfying s 65(2)(b) of the Act, and which make it highly probable that the representations are reliable, satisfying s 65(2)(c) of the Act.

497 The first four indicia relied upon are identified at paragraph 494 above. Fifth, the prosecution relies on the evidence of the deceased's parents, which is consistent with these two representations.

498 The prosecution additionally rely on s 66A of the Act, in that the representations are contemporaneous statements about the deceased's statement of mind, namely that rape was damaging/an issue in her marriage with the accused.

499 The prosecution also say these representations are relevant to the nature of the relationship between the deceased and accused, and are relevant as to the occurrence or otherwise of charges 1 - 3.

500 In respect of representation 3.2, the prosecution relies upon s 65(2)(c) of the Act and points to four indicia of the circumstances in which these representations were made that make it highly probable that they are reliable.

501 First, that the representation was made in a sworn police statement. Second, that the Ambrosoli factors are not present. Third, that there is no evidence that the deceased was impaired at the time she made the representation. Fourth, there is no evidence that the deceased later recanted the representation.

502 The prosecution submits that the representations are relevant to the nature of the relationship between the accused and deceased, enabling a realistic appraisal of their mutual dealings relevant to all counts on the indictment. The representations are also part of the factual narrative.

503 The defence concedes the admissibility of representations 21 to 25 inclusive, but notes that with respect to representations 22 and 24, their admissibility depends in part on the cross-admissibility of the charges on the indictment.

504 With respect to representation 3.2 the defence relies upon its submissions with respect to the circumstances in which the first police statement of 3 July 2017 was made by the deceased.

505 As I have found the charges on the indictment to be cross admissible, representations 21 to 25 inclusive will be admitted.

506 For the reasons previously articulated with respect to the sworn police statements of the deceased, I am satisfied that representation 3.2 was made in circumstances that make it highly probable that the representation is reliable.

507 In my view evidence of the accused's belief or statement that the deceased should suffer in the event of separation is probative of count 4. The representation will be admitted.

508 Representation 70 occurred in November 2015. The deceased told Rebecca McFarlane that she was planning to separate from the accused.

509 The prosecution relies upon s 66A of the Act, the representation being a contemporaneous statement about the deceased's state of mind.

510 The prosecution submitted that these representations are relevant to the relationship between the deceased and accused, enabling a realistic appraisal of their mutual dealings.

511 The defence concedes that this representation is admissible in relation to charge 3 but, due to temporal remoteness, is not admissible with respect to charge 4.

512 In my view the representation is admissible pursuant to s 66A in respect of all charges. The history of the separation and reconciliation and ultimate separation between the deceased and the accused is relevant to the issues in the rape charges as well as the murder charge. The representation will be admitted with respect to all charges.

513 The defence application for separate trials is refused.

514 The accused is not prejudiced by the joinder of the counts. For the reasons articulated above, the evidence with respect to all counts is cross-admissible.

515 Further, the joint trial of all counts does not otherwise preclude a fair trial for the accused. In this respect I note the following.

516 The indictment comprises only four counts in total. That will not overwhelm an attentive jury.[95] The allegations in the four counts are clear and distinct. At the same time, their inter-relatedness is obvious. That connection extends beyond the common victim. The Crown case is that the imminent hearing of the committal with respect to the rape charges provided (part of the) motive for the murder. The jury may well reason, if it accepts the prosecution argument as to motive, that the allegations of rape are more likely to be truthful and accurate.

517 The differing elements as between charges 1 and 2 on the one hand, and charge 3 on the other would not, if those three counts were heard alone be sufficient reason to sever them. It is to be remembered that the issue with respect to all counts is whether the incidents of non-consensual sex occurred at all. The accused denies ever engaging in non-consensual sex. It is not to be expected that there will be differential arguments as between an element which requires the prosecution to prove that the accused was aware that the deceased was not consenting or might not be consenting in respect of counts 1 and 2 and an element which requires the prosecution to prove that the accused did not reasonably believe that the deceased consented to the sexual penetration with respect to count 3. This is particularly so given the evidence relating to count 1 is that the deceased had said that the accused would 'have to wait' for sex, but penetrated her nonetheless and the evidence relating to both counts 2 and 3 is that the deceased was asleep at the time when the penetration commenced.

518 That being so, there is no logical reason why the different elements of counts 1 and 2 on the one hand and count 3 on the other are any more complex because the jury will also be required to consider the elements of murder. Nor that the jury will find the elements of murder difficult to understand because of these differences in the rape counts.

519 Further, the use of the evidence of the sexual misconduct other than the charged acts is clear and confined, comprising just 13 representations. (I recall that the entirety of the evidence of sexual misconduct other than the alleged admission to Terence Melvin, both charged and uncharged totals 20 representations to be given by eight witnesses.)

520 It can be used by the jury in considering the charged acts of rape in the manner already identified. It can also be used, along with the evidence of the charged rapes, as part of the evidence of the relationship between the accused and deceased at the time of the deceased's death. That evidence is clearly relevant to the motive alleged by the prosecution. It is also relevant to the longevity and intensity of the fear of the accused by the deceased. Therefore it is highly relevant to the factual issue of how and why the accused came to be in the garage of 19 Seagrove Way on 23 July 2018. And, it is a sub group of the general relationship evidence. Its detail is not of such a kind as to overwhelm the reason of the jury. The uncharged aspects of it are not detailed, other than to describe behaviour of a kind similar to the charged aspects.

521 The relationship evidence of non-sexual misconduct is also clear and confined, comprising 63 representations to be given by 18 witnesses.[96] The overwhelming majority of that evidence relates to the period immediately before the accused and deceased separated and thereafter to the date of her death. Its topics are readily identifiable. First, the deceased's attempts to separate and the accused's reaction.[97] Second, allegations of controlling behaviour by the accused, such as monitoring the movements[98] and electronics[99] of the deceased, belittling of or being aggressive to the deceased[100] and superintending domestic chores,[101] and the deceased's reaction to that behaviour.[102] Third, threats made by the accused to the deceased.[103] Fourth, expressions of fear of the accused by the deceased.[104] Fifth, statements by the deceased to her new partner.[105]

522 That the evidence may be so readily categorised and framed for the jury indicates that it will not add undue complexity to the trial. It follows that the number of representations is not an indicator that the trial will be unwieldy or swamped by such evidence. Further, the distinction between the statements of the deceased's feelings and state of mind and the representation of asserted fact is evident on the face of the representations.

523 In considering the architecture of the trial as a whole, any 'global' prejudice to the accused and the ability of the jury to understand differential admissibility of the relationship evidence, the evidence of other non-sexual misconduct will, but for seven exceptions, be admissible in relation to count 4 only. That is because most of that evidence relates to the relationship between the accused and deceased specifically around the time of separation and thereafter. The seven exceptions are as follows. Representations 11 and 12, both of which describe ongoing controlling behaviours of the accused and were dated by the deceased to be relevant to 2014/2015. Representation 21, which concerns the attempts made by the deceased to discuss and end her relationship with the accused in 2015 and 2016. Representation 54, which concerns earlier expressions of fear of the accused by the deceased. Representation 70, which is a statement that the deceased was planning to separate from the accused in November 2015. Representation 74, which is a 2015 expression of fear by the deceased, both of the accused and of the future in the event of separation. Representation 132, which was a statement that the accused had committed family violence on the deceased.

524 The behaviour of monitoring the movement of the deceased, not allowing her to enjoy time with others uninterrupted, behaving in a possessive and sexually inappropriate manner when they were in company together as well as expressions of fear from 2015 onwards can clearly be used by the jury with respect to the issues in the rape charges as well as with respect to the murder charge. That the deceased wished to end her marriage in 2015 and 2016 is clearly relevant to the alleged occurrence of rape in 2014 to 2016 as well as to the events surrounding the eventual separation in 2017, as is the assertion of family violence throughout the marriage.

525 Thus, in my view, the architecture of the trial will not be unduly complex. The jury will well be able to understand the differential admission and the use they may make of the relationship evidence. That evidence of controlling behaviour and fear contemporaneous with the rape allegations may be used in respect of them, but such evidence relating to the later period of separation may not is a concept a reasonable jury will readily grasp. And, the task of the trial judge in directing the jury and otherwise ensuring a fair trial of the accused will be manageable.

526 Finally, I note the obvious convenience to the administration of justice if the charges are heard together, given the commonality of witnesses and evidence. Of course, this factor alone would be insufficient to maintain the joinder of charges if there was otherwise prejudice to the accused.

528 The evidence of each of the charged counts is cross-admissible. The sub-category of sexual misconduct of the relationship evidence is admissible in relation to all counts. The remainder of the relationship evidence is admissible with respect to count 4 only but for representations 11, 12, 21, 52, 70, 74 and 132 which are admissible in relation to all counts.

529 Annexed to this Ruling are three annexures (mirroring the three hearsay notices) detailing the representations, or parts thereof, admissible in the trial and the counts in respect of which they are so admitted.

The deceased stated that she woke up numerous times during her relationship with the accused to find him having sex with her after she had clearly stated 'no' before falling asleep.

s 65(2)(c)

The deceased stated that one example of non-consenting sex with the accused was when he locked her in the pantry to keep their children out when he returned home from work and that he later admitted this in a counselling session with psychologist Terence Melvin.

s 65(2)(c)

The deceased stated that on a handful of occasions between 2013 and 2016 the accused started having sex with her while she was asleep beside one of their children.

s 65(2)(c)

The deceased stated that the accused punched her very hard in the right arm when they were driving from Melbourne to Cowes after his sister's birthday. This was in response to her asking him to slow down and turning the music down.

s 65(2)(c)

The deceased stated that from the beginning of their relationship the accused always kept a very close track of her movements and locations at all times.

s 65(2)(c)

The deceased stated that the accused would generally insist on accompanying her everywhere and when she was with friends he was physically possessive and inappropriately sexual in his behaviour. This made her feel uncomfortable.

s 65(2)(c)

The deceased stated that when she was out with friends the accused would call her regularly to discuss minor topics like the next week's grocery list, the possibility of changing insurers or whether she could leave what she was doing to come and do an activity with him. The accused would get very defensive, frustrated and verbally aggressive when she tried to suggest that they could discuss this later.

s 65(2)(c)

The deceased stated that one evening in 2015 she went out to dinner for a friend's birthday and left the accused with their children. Towards the end of the evening the group left the restaurant and found the accused waiting out the front of the restaurant in his car, without the children, waiting to see if the deceased 'wanted a lift home'. The accused said that he had organised for the deceased's mother, Janine Fraser, to watch the children.

s 65(2)(c)

The deceased stated that one Friday afternoon in 2016 she left her daughter A at home asleep with the accused when she went to pick up their other children R and J from school. She left her phone in the car and was having a conversation with a teacher when the accused approached her, swearing at her for not having her phone on her. He grabbed her underneath her armpit and dragged her towards the car. The deceased was scared and embarrassed.

s 65(2)(c)

The deceased stated that she made several attempts to end her relationship with the accused and made several attempts to discuss the separation in 2015 / 2016.

s 65(2)(b)

s 65(2)(c)

The deceased stated that in November 2016 she spoke to the accused about the damage rape was doing to their marriage.

s 65(2)(b)

s 65(2)(c)

The deceased stated that in January 2017 she spoke to the accused and James Basham about the separation including discussing domination, aggression, controlling behaviours and rape.

s 65(2)(b)

s 65(2)(c)

The deceased stated that in January 2017 she discussed the issues of rape within her marriage with Janine Fraser, Trevor Fraser and James Basham.

s 65(2)(b)

s 65(2)(c)

The deceased stated that although she had suggested that it might not be appropriate, she had reconciled with the accused briefly at his request around the time of their 10th wedding anniversary.

s 65(2)(b)

s 65(2)(c)

The deceased stated that she continued to observe controlling and abusive behaviours by the accused after their reconciliation causing her to end the relationship permanently around Easter 2017.

s 65(2)(c)

The deceased stated that the accused aggressively berated her for ruining a bike ride causing her to feel intimidated and distressed.

s 65(2)(c)

The deceased stated that the accused yelled at her that it was her fault that the children J and R would not do what he told them because she did not discipline them properly. The deceased cried and felt despair and a sense of hopelessness.

s 65(2)(c)

The deceased stated that the accused was reluctant for her to do things without him and became defensive when she organised anything without involving him.

s 65(2)(c)

The deceased stated that the accused timed her with his phone stopwatch whilst she was helping him do jobs, stopped the timer if she moved away from these activities and yelled at her and berated her for laziness.

s 65(2)(c)

The deceased stated that when she tried to assert her views or ideas, the accused responded by telling her that she was a bully and was controlling.

s 65(2)(c)

The deceased stated that after she requested physical space the accused's behaviour became increasingly sexualised in public. He used big open arms to pull her in for hugs, grabbed her bottom and grabbed her chin to force a kiss on her lips involving his tongue. The accused became defensive and sulky if she moved away.

The deceased felt coerced, manipulated and controlled by this behaviour, and in despair and panic.

s 65(2)(c)

The deceased stated that the accused yelled at her for not emptying the vacuum cleaner and putting it away when she was on her way to have brunch with their daughter J in the term 1 school holidays of 2017.

s 65(2)(c)

The deceased stated that in March / April 2017 the accused photographed a wall clock and timed her as she performed household jobs. He later showed her the stopwatch, told her she had been unproductive and yelled at her for being lazy and ungrateful.

s 65(2)(c)

The deceased stated that in April 2017 while her cousin Sarah and her husband Andy were visiting they had a discussion with her and the accused about house break-ins and car thefts.

Afterwards the accused raised this conversation with the deceased a number of times.

On at least three occasions on one day the accused said to the deceased 'you never know when someone will break into your house and do you harm' followed by lengthy, heavy pauses.

The deceased felt like these comments were designed to make her afraid.

s 65(2)(c)

The deceased stated that on Easter Saturday of 2017 she again broached the subject of separation with the accused. The accused was initially angry and refused to discuss it, but when she persisted he refused to move out of the house and said that she could not make him.

s 65(2)(c)

The deceased stated that on 20 April 2017 the accused took their children to the house of her mother Janine Fraser for a sleepover. Janine Fraser suggested that the accused hand them over at the door but the accused pushed past, came into the house and refused to leave for almost an hour. When he did so he was aggressive and intimidating to Janine Fraser and the deceased and criticised them about the evening routine.

s 65(2)(c)

The deceased stated that on 22 April 2017 the accused grabbed her on the buttocks, wobbled her buttocks and made a comment about how aroused he was. When she put some distance between them and commented that this was inappropriate he became defensive and stormed off.

s 65(2)(c)

The deceased stated that she was concerned that the accused was using the location app on her phone to track her whereabouts. When she asked him about this he was evasive. When she disabled the location app, she received a call from the accused within about an hour in which he was angry, demanded to know where she was and berated her for disabling the location app.

s 65(2)(c)

The deceased stated that on an occasion in 2014 the accused had non-consensual sex with her in the pantry. The accused locked the door of the pantry from the inside and undid her jeans. She protested but the accused pulled down her underwear and put his penis into her vagina. He had sex with her for a minute or two before ejaculating inside her vagina. The accused then unlocked the pantry and left.

s 65(2)(c)

The deceased stated that on an occasion in 2014, the accused had non-consensual sex with her whilst she was asleep and their three year old child R was in the same bed. The deceased woke up to the accused thrusting his penis into her vagina. She said that she had woken up to the accused doing this and that it had started when she was asleep. The deceased stated that she pushed back into the accused to avoid R realising what was happening. The accused ejaculated, then rolled over and fell asleep. The deceased got out of bed and took R back to his bed.

s 65(2)(c)

The deceased stated that the last time the accused raped her was in September or October 2016 when the accused had non-consensual sex with her whilst she was asleep. The deceased and accused went to bed together. The deceased fell asleep fully clothed and later woke up to the feeling of coldness. She realised that the accused had pulled down her pants whilst she was asleep, poured lubricant onto his penis and then put his penis into her vagina. She froze for a moment before pushing herself off the accused and getting out of bed. She told the accused 'you can't do that, I was sleep, that is rape' then went and slept in one of their children's rooms.

s 65(2)(c)

The deceased stated that on one occasion the accused took her into the pantry while their children were outside and forced her to have sex while A was calling out for her.

s 65(2)(c)

The deceased discussed an upcoming court hearing on 30 July 2018 and stated that she was strong, determined and ready to stand up in court, tell her story and have her voice heard.

Prior to her separation with the accused the deceased stated on a number of occasions about the accused's controlling behaviours and that she was scared of him the accused.

s 65(2)(c)

s 65(2)(c).

The deceased stated that she ended her marriage with the accused because she was sick of abuse. She described several different events in relation to that abuse and said she felt controlled and manipulated.

s 65(2)(c)

s 65(2)(c).

The deceased stated that the accused told her that he would destroy her and she believed he would if given the chance.

s 65(2)(c)

The deceased stated that she believed that the accused was conducting some form of surveillance on her.

The deceased stated that she was planning to separate from the accused.

The deceased stated that she was frightened of the accused and she felt that things were going to get much worse. She said that one day she would be found dead. The deceased said that she was petrified of Adrian the accused and what the separation might mean in her life and the lives of the children.

The deceased stated that she was very frightened of the accused and said 'if you ever find me dead, you'll know that he will have done it'.

The deceased stated that the accused was physically intimidating and that she was scared of him. She said that on one occasion he had backed her into a corner and made her feel trapped and intimidated. The deceased said that she was contemplating whether to end her relationship with the accused.

s 65(2)(c)

The deceased stated that the accused needed to know where she was when she was not with him and that she needed to answer the accused's repeated calls to avoid upsetting him.

s 65(2)(c)

The deceased stated that on an occasion when she had been at the school to collect her children, the accused appeared, angrily grabbed her arm and forcefully pulled her out of the school. As he did this, the accused angrily raised his voice demanding why she did not answer her phone and saying that she was a bad mother. The deceased said that she was extremely upset and in tears.

s 65(2)(c)

The deceased stated that she was in fear of the accused.

The deceased stated that the accused was very controlling and that she was frightened of the accused.

The deceased stated that the accused had raped her and that she was going to bring charges against him.

s 65(2)(c)

The deceased was upset, bawling and shaking and stated that she had been locked out of her email accounts and that her mobile phone access had been removed. She said that she had just split from her partner and that he had taken control of her phone and email accounts.

s 65(2)(c)

The deceased asked Benbow to investigate whether there were any apps on her devices which might give away her location to a third party. She said that she suspected her partner was able to track the devices as he had called her and asked whether she had enjoyed being at a certain place, which there was no way he could have known.

s 65(2)(c)

The deceased stated that she was having 'husband/wife problems' and that she was withdrawing from everything and feeling insecure. She said that the accused was aggressive and that she was on the verge of a panic attack, not eating well and having problems with breathing (tightness in the chest).

The deceased phoned Nicole Stanes of Bass Coast Health for assistance from Brigitte Linder's telephone as she said she was worried that the accused was monitoring her telephone use.

s 65(2)(c)

The deceased stated that there had been instances when she had woken up to the accused having sex with her.

s 65(2)(c)

The deceased stated that the accused did not begin raping her until they were married and that it was later in their marriage that he began to rape her in her sleep. The deceased said that she named this behaviour directly to the accused as rape but he did not stop.

s 65(2)(c)

The deceased stated that the accused exhibited controlling and intimidatory behaviour in their relationship, including physical abuse, and expressed her fear about leaving him the accused.

s 65(2)(c)

Conceded, if limited to fear about leaving the relationship.

The deceased stated that the accused had been controlling her, checking up on her, exerting financial control and physically intimidating her.

s 65(2)(c)

The deceased stated that she was fearful about leaving the accused.

s 65(2)(c)

Conceded vis-à-vis s 66A but not s 65(2)(c).

The deceased expressed anxiety about leaving the accused and said she was fearful. She said that she had decided to separate and that the accused had difficulty accepting the decision. She said that she was frightened and believed that the accused was likely to become vindictive.

Conceded, except as to belief that accused was likely to become vindictive.

The deceased stated that she had been raped by the accused during their marriage. She described a number of situations when the accused would demand sex even though she didn't want it. She described having picked the accused up from the airport on multiple occasions and him having forced her to have sex in the car on the way home against her wishes. She also described the accused waking her up in the middle of the night and forcing her to have sex.

s 65(2)(c)

The deceased stated that she had been sexually assaulted by the accused. She described an incident during the relationship that took place at the family home in Phillip Island and said that the accused had pushed her into a cupboard and forced her to have sex with him.

s 65(2)(c)

The deceased stated that she was anxious, fearful and terrified of the accused and said he had made threats in the past.

The deceased stated that the accused was being aggressive and uncooperative during their separation, especially regarding the division of assets and child custody arrangements. She said that the accused had once told her 'if I can't have you, no one will'.

The deceased stated that she wanted to report historical sexual assaults and to discuss getting an intervention order against the accused.

s 65(2)(c)

The deceased stated that the accused had committed family violence on her.

The deceased stated that she had concerns that the accused was watching her.

s 65(2)(c)

The deceased stated that she believed that the accused had been going through the phone numbers in her phone and calling each person she had been calling, stating he 'had the wrong number' and hanging up.

s 65(2)(c)

The deceased stated that she had had sensor lights installed at her house and had had her garage door remote control re-coded.

s 65(2)(c)

The deceased stated that she had been hearing noises outside her house at night and thought that she may have seen her husband outside at night. She requested that security cameras be installed in her home.

The deceased stated that she was fearful of the accused.

s 65(2)(c)

The deceased stated that she did not want to be put on social media as she was afraid of the accused knowing where she was.

The deceased stated that 'the only flight or fight reaction I can remember was with J and the last time in October pushing myself against the wall and whispering angrily 'you can't do that, you just raped me, you can't do that' and I remember at night I would wake up and he was having sex with me.

s 65(2)(c)

The deceased stated that the accused had 'hacked' her phone and set up a camera in the dining room of her home.

The deceased stated that she was fearful of the accused, his escalating behaviour, his mental health and what he was capable of.

The deceased stated that she wanted family violence counselling regarding the accused and was assessing her options regarding separation. The deceased stated that she had requested separation from the accused but he had refused.

s 65(2)(c)

The deceased stated that she was seeking support, information and resources in relation to separation and abuse by the accused who had agreed to live elsewhere for a trial period on his next stint home from FIFO work.

s 65(2)(c)

The deceased stated that the accused monitored her phone calls and online activity and controlled financial matters.

s 65(2)(c)

The deceased stated there were instances of sexual coercion throughout her marriage to the accused including an incident three days following the birth of their first child and on several occasions waking up to the accused having sex with her.

s 65(2)(c)

Conceded vis-à-vis charges 2 and 3, but not otherwise.

The deceased stated there was an incident of physical harm when the accused punched her arm while driving.

s 65(2)(c)

The deceased stated that she was feeling safe and that the accused's father was acting as mediator in relation to finances and their children and that he had stored the accused's guns in a safe unknown to the accused.

s 65(2)(c)

The deceased stated that she and the accused remained separated but that he was refusing to leave the family home. The deceased requested a joint appointment with Sharon Churchill and Nicole Stanes.

s 65(2)(b)

s 65(2)(c)

The deceased stated that she was staying with her parents and seeing the children only when she was taking them to and from school. The deceased stated that she did not believe the children were at risk of harm from the accused.

s 65(2)(b)

s 65(2)(c)

The deceased stated that she and her children were back in the family home, the accused had agreed to separation, she had sought legal advice and self-referred to SalvoCare's Family Violence Case Management Service and was on the waitlist.

s 65(2)(c)

The deceased stated that the accused had continued to harass her via text and phone calls including words / phrases threats such as 'you never know when someone will break into your house and do you harm'.

s 65(2)(c)

The deceased stated that there had been instances when she had woken up to the accused having sex with her.

s 65(2)(c)

The deceased stated that the accused was attempting to undermine arrangements for access to their children by trying to change same by email.

s 65(2)(c)

The deceased, in an email, requested details of local security system installers.

s 65(2)(c)

The deceased stated that the accused had applied for an IVO against her, citing physical, financial and sexual abuse and that he had also applied for an IVO against her mother.

s 65(2)(c)

The deceased stated that she felt safe for the first time in months as her parents had moved in with her for support and protection.

The deceased stated that she had increased safety concerns for her children if the accused was able to have access. She said she felt unprotected and judged by police. She said she felt unsafe in the long term, particularly following court. She said that the accused had warned her about lack of protection.

s 65(2)(c)

The deceased stated that she felt more vigilant about her safety as the accused had been sighted on Phillip Island.

s 65(2)(c)

The deceased stated that her parents were in the United States and returning the following week. She said she was looking forward to a birthday celebration with her sister on Sunday 22 July 2018 and that Nicole Stanes would be supporting her at the committal hearing the following week.

The deceased stated that around March-April 2017 she tried to discuss with the accused that she was concerned that his behaviour was still very controlling.

s 65(2)(c)

The deceased stated that around March-April 2017 she tried to discuss with the accused that in the event they separated whether she and the children could remain in the house, the accused responded that if he couldn't be in the house she didn't deserve it and it was only fair if she suffered too.

s 65(2)(c)

The deceased stated that her birthday the previous year was horrible and that she had considered taking her own life because she was sick of the situation with the accused as he was taking everything away from her.

The deceased responded to a text message 'how will you remember this birthday in years to come?' with 'the beginning of a wonderful new stage of my life xo'

The deceased stated that she had an appointment at Bass Coast Health for a job interview at 12.00pm.

[1] CPA, Rule 5 of Schedule 1 and definition of 'related offences' in s 3(1).

[2] Jury Directions Act 2015 ('JDA'), s 26(c).

[3] JDA, s 26(d).

[4] This includes representations 122 and 125 which are, as explained below, duplicate representations. Ultimately these will be figured as a single representation.

[5] See De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1, 15 (Dawson J) (with respect to s 585 of the Criminal Code (WA)); R v Reid [1999] VSCA 98; [1999] 2 VR 605 (with respect to Rule 2 Schedule 6 of the Crimes Act 1958, the forerunner to Rule 5 Schedule 1 of the CPA which was in substantially the same terms, namely 'charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character.')

[6] R v Pollitt [1991] VicRp 22; [1991] 1 VR 299, 302 (Beach J) ('Pollitt').

[7] R v Debs and Roberts [2005] VSCA 66, [249].

[8] [2008] VSC 106.

[10] R v CHS [2006] VSCA 19; (2006) 159 A Crim R 560.

[11] [2016] VSC 32 ('Iliopoulos').

[13] [1984] HCA 5; (1984) 152 CLR 528 ('Sutton').

[14] [1986] HCA 65; (1986) 61 ALJR 1 ('De Jesus').

[15] [2004] VSCA 12; (2004) 7 VR 375.

[16] Ibid, [27]. His Honour cited Sutton, 542 (Brennan J); De Jesus, 5-6 (Mason and Deane JJ), 7 (Brennan J); GBF v The Queen [2010] VSCA 135, [54] (Nettle and Harper JJA, Hansen AJA).

[18] The prosecution no longer presses this aspect of its case.

[19] Representations 43 - 45 are no longer pressed by the prosecution.

[21] Evidence Act, s 137.

[22] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 ('Wilson').

[26] [2001] NSWCCA 494 ('Clark').

[28] Wilson; Clark; R v Lubik [2010] VSC 465 ('Lubik'); R v Iuliano [1971] VicRp 50; [1971] VR 412; The Queen v Anderson [2000] VSCA 16; (2000) 1 VR 1; The Queen v Parsons [2000] VSCA 15; (2000) 1 VR 161; R v Gojanovic (No 2) [2007] VSCA 153; Ellis v The Queen [2010] VSCA 302; (2010) 30 VR 428; and Azizi v The Queen [2012] VSCA 205; (2012) 224 A Crim R 325.

[29] [1964] VicRp 86; [1964] VR 676.

[30] Azizi v The Queen [2012] VSCA 205, [39]; [2012] VSCA 205; (2012) 224 A Crim R 325 ('Azizi') (emphasis added) (Buchanan JA and Hollingworth AJA agreeing).

[31] R v McNamara [2002] NSWCCA 248; (2002) 131 A Crim R 140.

[32] HML & Ors v R [2008] HCA 16; (2008) 235 CLR 334 ('HML') per Hayne J; Gipp v R (1998) 194 CLR 106; Tully v R (2006) 230 CLR 234.

[33] Evidence Act, clause 4(1)(a), Part 2, Dictionary.

[34] Evidence Act, ss 65 and 66A.

[35] Evidence Act, s 56(1).

[36] Evidence Act, s 56(2).

[37] Evidence Act, s 55(2).

[39] Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, [48].

[40] Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 ('Conway'), [47].

[41] R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, [29] ('Ambrosoli') (Mason P, with whom Hulme and Simpson JJ agreed).

[43] Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963 ('Sio'), [70]-[71] (citations omitted).

[46] Munro v The Queen [2014] ACTCA 11, [7].

[48] These are noted in the annexures to this Ruling. The matters conceded by the defence remain relevant to the issue of the architecture of the trial when issues of 'global' prejudice and manageability are addressed.

[49] This is the typewritten date of Detective Senior Constable Simon Fisher's signature on the jurat. The signature of Ms Fraser is accompanied by a handwritten date of '03/06/2017'.

[50] [2002] NSWCCA 386; (2002) 55 NSWLR 603, [39]. There the deponent of a witness statement said under cross-examination at committal that the statement had been typed out 'a little incorrect', he 'presumed' the police officer would type out the statement the way he had said, he had 'pretty much' never read it before signing it, part of the statement dealing with a material point was not accurate, the statement contained a number of matters that were probably inaccurate and a considerable number of things that were wrong.

[51] [2019] VSCA 73.

[52] DPP v Curran; Curran v The Queen [2012] VSCA 224, [54]-[55].

[54] Sio, [61]; Madina, [49],[70].

[55] Representations 122 and 125, conceded by the defence under s 66A of the Act (but not otherwise).

[56] Representation 123, contested by the defence.

[57] Representation SC1, conceded by the defence under s 65(2)(c).

[58] Representation SC 5, conceded by the defence vis-à-vis charges 2 and 3 (but not otherwise).

[59] Representation SC8, conceded by the defence.

[60] Representation 101, conceded by the defence.

[61] Representation SC10, conceded by the defence.

[62] Representation SC11, conceded by the defence.

[63] The statement of Melvin incorrectly records this date as 19 April 2018.

[64] Representation 126, conceded by the defence under s 66A of the Act (except for the belief as to vindictiveness).

[65] Representation 127, contested by the defence.

[66] Representation 128, contested by the defence.

[67] Committal transcript, depositions, 1804-1806.

[68] Representation 129, conceded by the defence under s 66A of the Act.

[69] Representation 131, conceded by the defence.

[70] This is representation 132 and is conceded by the defence.

[71] This 'relationship document' appears in several versions, some obviously post-dating 28 April 2017. The first nine pages (depositions 799 to 807 inclusive) appears to be the first version emailed to Heal. The prosecution no longer press any representations contained in the various versions of this document.

[72] Representation SC12, conceded by the defence.

[73] Representation SC14, conceded by the defence.

[74] Representations 112 and SC17, contested by the defence.

[75] Representation 135, conceded by the defence.

[76] Representation 140, conceded by the defence.

[77] Representation 143, conceded by the defence pursuant to s 66A of the Act, but not otherwise.

[78] Representation 92, contested by the defence.

[79] She also told her friend Nadine Leed, at an unknown time after the separation, that her father and her father-in-law were engaging with one another to try and arrange a settlement without lawyers. Depositions, 1233.

[81] Azizi, [55], [61] and [66].

[82] The prosecution relies on only a portion of the representation detailed in Hearsay Notice 1.

[83] A report was provided on 27 June 2017.

[84] Ms Zander's first statement notes the first appointment to have been on the 18th, but in the second statement the first appointment is recorded as being on the 15th.

[85] This part of the representation 122 is not pressed by the prosecution.

[86] Representation 14 was categorized by the parties as relating to controlling and abusive behaviour. As such, it is considered below.

[88] That portion of the representation is contested and considered below.

[90] The incorrect reference is given to this representation in the First Hearsay Notice. It appears at page 1227 of the depositions.

[91] The word used in the statement is frightened rather than scared.

[92] The prosecution does not seek to lead the part of the representation where the deceased said that one day she would be found dead.

[93] The prosecution does not seek to lead the part of the representation where the deceased said 'if you ever find me dead, you'll know that he will have done it.'

[94] The prosecution does not press the parts of the representation in which the deceased stated she had safety concerns for the children if the accused had access to them, that she felt judged by police and that the accused had warned her about her lack of protection.

[95] R v Smart [1983] VicRp 22; [1983] 1 VR 265 at 283, 289; R v Reid [1999] VSCA 98, [115-116], [167-169] (per Winneke P, Buchanan and Chernov JJA); R v Walker [2004] VSC 411, [16] (per Teague J, citing R v Renzella (unreported, 7 August 1997, Victorian Court of Appeal)).

[96] Four of whom also give evidence of sexual misconduct.

[97] Representations 21, 25, 26, 36, 70, 84, 99, 122 (and duplicate thereof 125), 126, 130, 132, SC1, SC2, SC8, SC10, SC11, SC12, SC14, 3.1, and 3.2.

[98] Representations 11, 12, 14, 29, 66 and 135.

[99] Representations 39, 95, 96, 101, 140, 167 and SC4.

[100] Representations 27, 31, 32, 38, SC36.

[102] Representations 143, 144 and SC25.

[104] Representations 54, 63, 74, 83, 90, 91, 129, 146, 169, SC31, SC35, SC36 and SC38.

[105] Representations 3.1, 3.4 and 3.5.