Crown v Accused

1 This ruling concerns a large number of disputed items of evidence under the hearsay provisions in the Evidence Act 2008 (Vic) ('EA').

2 The accused is charged with murder and his trial is scheduled to take place in early 2023.

3 The indictment alleges that the accused at Kensington murdered Sarah Jane Gatt ('S Gatt') sometime between 19 and 23 April 2017.

4 The facts alleged by the Crown in the Summary of Prosecution Opening ('SPO')[1] and the way the Crown puts its case are complex. The key factual allegations are as follows.

5 The deceased, S Gatt, was 39 years old at the time of her death. She suffered from longstanding mental health and substance abuse issues. She had been residing for many years in a public housing premises at 2/57 Lambeth Street, Kensington ('the Lambeth St premises').

6 The accused is a 55 year old man. He was arrested for S Gatt's murder on 15 December 2019 and has been remanded in custody since that date.

7 The accused and S Gatt had been in an intermittent relationship from about 2014, having originally met through a mutual friend, Justin Gabriele. The accused man's relationship with S Gatt was turbulent, and she had made several reports to police about his violence towards her. Those prior incidents, and representations made by S Gatt in the context of those incidents, are the subject of this ruling. I will go into more detail about those incidents below.

8 Prior to her death, S Gatt was residing at the Lambeth St premises. Between 2014-2017, the accused regularly resided with her there, the most recent period being between 3 October 2016 and 9 February 2017. Throughout his relationship with S Gatt, the accused occasionally stayed with Mr Gabriele in Brunswick, and had periods of homelessness.

9 Along with her substance abuse issues, S Gatt was known to be paranoid and delusional at times. Between 27 April 2016 and 5 May 2016, she was hospitalised at the John Cade Adult Acute Inpatient Unit at the Royal Melbourne Hospital, returning there between 15 May 2016 and 27 June 2016. She was hospitalised after presenting as hypervigilant and scared that there were people on her roof. On the second occasion it was recorded that she had been at home with the accused prior to her admission.

10 The Crown allege that the accused was jealous, possessive and controlling of S Gatt and exploited her paranoia over her safety.

11 In around July 2016, S Gatt met Leona Rei-Paku ('Leona'). At the time of S Gatt's death, Leona was 49 years old. Leona also had mental health and substance abuse issues. Leona stayed with S Gatt for about four weeks after they met. S Gatt later spent periods at Leona's Maribyrnong home. From about October 2016 until early 2017, the pair were in an intimate relationship. That relationship was also turbulent, and the Crown say that Leona was sometimes violent towards S Gatt. Police were called to the Lambeth St premises on two occasions regarding domestic disputes between them. Leona was charged with assaulting S Gatt in September 2016.

12 S Gatt's Centrelink records indicate the accused was the listed payment nominee for her benefits from 2 July 2015 to 16 July 2015, and again from 13 October 2016 onwards. From 2 March 2016 onwards, S Gatt was in receipt of a carer's allowance for caring for the accused. However, those payments were deposited directly into the accused's bank account. From 4 January 2016, the AGL account for electricity at the Lambeth St premises was listed in the accused's name.

13 During her relationship with Leona, S Gatt remained in an 'on again/off again' relationship with the accused. The Crown allege that the accused was jealous of S Gatt's relationship with Leona.

14 In the first few months of 2017, the Crown case is that the accused had been living with S Gatt. However, on 18 April 2017, he changed his address with Centrelink to Ozanam House. Leona was with S Gatt that evening. Leona and S Gatt spent the night together moving between the Lambeth St premises, Newmarket Plaza, and Leona's address in Maribyrnong. There appears to have been an incident involving S Gatt, Leona and a third person, Zack Taha, ('Taha') whom they met at Newmarket Plaza that night. S Gatt phoned the accused on Taha's phone at some point that evening.

15 Police attended the Lambeth St premises in the early hours of the morning of 19 April 2017. S Gatt told police Taha had assaulted her. S Gatt and Leona then went back to Leona's home. When S Gatt woke up later that morning, she told Leona she needed to go to an appointment with her case worker and she then left. Leona states that this was the last time she saw S Gatt alive.

16 The Crown allege that the power to the Lambeth St premises was turned off on Sunday 23 April 2017. They allege that the accused murdered S Gatt sometime between 19 April 2017, and when the power was turned off on 23 April 2017.

17 Over the next few days, the accused was in contact with Leona asking after Ms Gatt's whereabouts. At a later stage he contacted Leona again inquiring about S Gatt's whereabouts. Leona states that sometime after 19 April 2017, she may have attended the Lambeth St premises but did not locate S Gatt.[2] A member of police also attended on several occasions to follow up on the complaint about Taha, but no one answered the door at the Lambeth St premises.

18 Over the next several months, the accused had text message communications with a mobile telephone number assigned to Giuseppe Riggio.[3] The attribution for the phone number was saved in the accused's phone as 'SJ'. The Crown say the number was created as a ruse, so the accused could pretend to be in communication with S Gatt.

19 After S Gatt went missing, the accused told various people that she was in a mental hospital. He also wrote and posted a letter addressed to S Gatt[4] and drafted and kept further letters addressed to her.[5] The Crown allege that these actions were aimed at laying a false trail and deflecting suspicion away from himself after S Gatt went missing.

20 Some of this conduct that occurred after the putative period of death of S Gatt is relied on as relationship/state of mind evidence and some is relied on as incriminating conduct and is subject of another ruling[6].

21 Neighbours sighted the accused at the Lambeth St premises in September or October 2017. It seems other people may have also been inside the premises in the later months of 2017.

22 On 3 January 2018, two police officers attended[7] the Lambeth St premises wanting to speak with S Gatt. They noticed the garden was unkempt and the letterbox was overflowing. The front door fell open when they knocked, and they noticed a musty odour from inside. They entered and discovered S Gatt's corpse in the bathtub of the upstairs bathroom. The corpse was covered with a large amount of refuse and objects of various kinds as well as a blanket. S Gatt's remains were so badly decomposed that no cause of death could be discerned at autopsy.

23 The accused participated in three records of interview following S Gatt's death. The first occurred over 4-6 January 2018 (during which time he also attended the Lambeth St premises with police to show them where he saw the body). The second interview took place on 17 September 2018. The final interview, which took place on 15 December 2019 (the day of his arrest), was very brief. On that day, the accused was charged with murder and his fingerprints and DNA were taken.

24 There are a number of representations made by S Gatt before her death that the Defence argues are not admissible under the hearsay provisions in the EA.

25 The disputed representations arise from six alleged incidents. Previously the Crown relied on an additional incident, referred to as 'representation 6', but they withdrew reliance on this incident. However, the original numbering of the incidents was maintained to avoid confusion, so the disputed representations are contained in incidents 1, 2, 3, 4, 5 and 7. These separate incidents relate to occasions when S Gatt made relatively contemporaneous reports to police and/or others about family violence committed by the accused.[8] The disputed representations span from December 2014 to December 2015, and are made to 13 different people:

(a) Incident 1.1: Constable Shae Morrison (27 December 2014)

(b) Incident 1.2: Emergency Service Operator (27 December 2014)

(c) Incident 2: Senior Constable Dale Lewis (6 February 2015)

(d) Incident 3.1: Police Constable Nigel Walker (3 April 2015)

(e) Incident 3.2: Emergency Service Operator (3 April 2015)

(f) Incident 4.1: Kerren Clark, S Gatt's neighbour (8 July 2015)

(g) Incident 4.2: Leading Senior Constable Susan Franklin (8 July 2015)

(h) Incident 4.3: Emergency Service Operator (8 July 2015)

(i) Incident 5.1: Police Constable Jacqueline Bertalli (28 August 2015)

(j) Incident 5.2: Emergency Service Operator (28 August 2015)

(k) Incident 7.1: First Constable Matthew Taylor (19 December 2015)

(l) Incident 7.2: Emergency Service Operator (19 December 2015)

(m) Incident 7.3: Emergency Service Operator (19 December 2015).

26 There is no dispute between the parties that S Gatt is an unavailable witness for the purposes of s 65 the EA.[9]

27 The Defence objected to the admissibility of the hearsay representation on the basis that each representation is not sufficiently proximate to the time of S Gatt's disappearance and death, with the earliest hearsay representation occurring on 27 December 2014,[10] and the last on 15 December 2015.[11] There are two issues that arise from this objection:

(a) Whether the hearsay representations are relevant; and

(b) Whether the probative value of the representations is outweighed by the danger of unfair prejudice to the accused.

28 The Crown rely on these hearsay representations ('the disputed representations') to establish that S Gatt alleged different forms of family violence on several occasions over a period covered by the disputed representations. In written submissions the Crown stated that the representations were relied on to:

(a) show the tendency of the accused to act violently and in a controlling and possessive manner towards Ms Gatt;

(b) show the high level of intensity felt by the accused towards Ms Gatt (for example, in the context of violence towards her and, despite complaints by her about his behaviour to police, nevertheless professing his love for her);

(c) in part explain why, despite its tumultuous nature, Ms Gatt remained in her relationship with the accused over the period she did;

(d) in part explain why Ms Gatt commenced and remained in a relationship with Ms Rei-Paku [Leona] that also involved violence towards Ms Gatt; and

(e) negate possible arguments from the Defence that [Leona] alone (or predominantly) was violent towards Ms Gatt and was more likely to have murdered Ms Gatt.

29 Although this is how the Crown expressed reliance on the hearsay representations in their written submissions, their approach was further developed during oral argument, by which time the Crown had abandoned reliance on tendency evidence. Nevertheless, the Crown's reliance on the hearsay representations remained predicated on establishing the nature of the accused man's relationship with S Gatt, including his attitude and state of mind towards her and towards others whom he perceived as rivals for her attentions. The hearsay representations are alleged to demonstrate the violent, controlling, possessive and tumultuous nature of the accused's relationship with S Gatt and her fear of him. Some matters were also relied upon under s 66A of the EA, including to clarify details of S Gatt's relationship with the accused, such as the length of time they had been together and whether they were living together.

30 Broadly, the Crown submitted that these matters are relevant to establishing whether it was in fact the accused who killed S Gatt (particularly with reference to motive).

31 The Defence submitted that in circumstances where there is no evidence as to the mechanism of S Gatt's death, nor any evidence that it was a violent death, any evidence of violence in the relationship between S Gatt and the accused is not relevant.

32 Regarding ss 135 and 137, while the Defence made some general submissions on this issue,[12] it was flagged during oral argument that the degree of probative value and the danger of unfair prejudice to the accused will be impacted by my decisions on the admissibility of hearsay representations under s 65 and 66 of the EA, the letters and the evidence of incriminating conduct. Accordingly, with respect to the hearsay representations, because the Defence reserved their position on ss 135 and 137, I will not rule on applications to exclude evidence under those provisions until required.

Consideration of admissibility of the representations: relevance and ss 135/137

33 I accept that the hearsay representations, the earliest of which occurred two-and-a-half years before S Gatt's death, and the most recent approximately one-and-a-half years before S Gatt's death, are relevant for the purposes put forward by the Crown. The Crown rely on circumstantial evidence, such as the manner in which S Gatt's corpse was left in the bathtub and the blood spatter on the wall, to allege that S Gatt was violently killed. The intense, tumultuous and controlling nature of the accused man's relationship with S Gatt and his ongoing involvement with her,[13] up to and including the putative time of her death, establish the relevance of the hearsay representations.

34 In approaching admissibility under the hearsay provisions in the EA, it is necessary to consider each of the disputed representations individually and with reference to the circumstances in which it was made.[14] Where the disputed representations can be grouped together as part of a unified incident, this has been done for convenience in considering the circumstances of the representations. For example, regarding incident 4, S Gatt complained to a neighbour, to 000 and then to a police member. Because there is significant overlap in the relevant 'circumstances' as they relate to each representation, it is appropriate to consider some of the representations conjointly.

35 The Defence submitted that when assessing the circumstances in which all the representations were made, the Court should consider S Gatt's 'background and conduct' on other occasions, including her long history of drug use, her chaotic lifestyle, and her history of paranoia and of making false complaints to the police. The Defence referred to police disclosure material that contained police reports made by S Gatt between 1996 and 2017.[15] The Defence produced a table categorising the incidents into the following five groups:

1. Brief not authorised, complaint withdrawn, [S Gatt] did not make statement;

2. Likely or confirmed false report;

3. Unsolved with no evidence;

4. [Leona] matters where [Leona] was charged but claims the allegations were false; and

5. Complaints where the alleged offenders were processed.

I have had regard to this table in considering the Defence arguments and the Crown's response to those arguments.

36 The Defence submitted that S Gatt's history of false complaints provides context for the circumstances of the hearsay complaints which 'can be seen in some degree as fantastical and likely to be fabricated'. The Defence pointed to particular circumstances surrounding her complaints: for example, when making complaints, S Gatt was inconsistent about how long she had been in a relationship with the accused;[16] in other complaints, S Gatt has claimed to have been pregnant at the time,[17] and on a number of occasions has said she had been hit or kicked in the stomach while pregnant, but declined medical treatment. The Defence submitted that the fact that S Gatt 'makes regular complaints to the police, often about things that can't be resolved, often when intoxicated' should be taken into account as a circumstance going towards reliability.

37 In addition to the submission that S Gatt should be viewed as generally unreliable, the Defence submitted that her history of making complaints to police showed that this 'was not something she took necessarily all that seriously nor was she unfamiliar with it' and that, given this history, the fact that she had made a police report is not a circumstance that can be taken as indicating any degree of reliability. The Defence also highlighted those aspects in the SPO that refer to S Gatt's longstanding mental health and substance abuse issues.[18]

38 The Crown submitted that care must be taken regarding S Gatt's history of drug use, her chaotic lifestyle and incidences of paranoia and some occasions of making false reports, when ruling on the admissibility of the disputed representations under the relevant provisions of the EA. The question of the admissibility of the disputed representations is focused on the circumstances in which the specific representation is made, rather than a generalised assessment of the representor's truthfulness or reliability.

39 The Crown submitted that the Court should exercise caution in approaching the earlier police reports drawn from the disclosure material and relied on by the Defence. While the Defence claim that the material shows S Gatt to be wholly unreliable, the Crown submitted that the fact of S Gatt's poor mental health and history of drug use, and the fact that there were occasions when she did not follow through on some police complaints, does not mean her reports about the accused should be seen as lacking credibility and reliability.

40 The Crown also addressed the disclosure material relied on by the Defence which related to several specific incidents dating back to 1997. Broadly, the submissions in relation to those materials were as follows:

(a) The Crown conceded that two of the reports from 1998[19] were false reports, which were made so S Gatt could get an advance payment on her Centrelink. The Crown pointed out that these reports were made over 20 years before her death and are therefore of limited relevance.

(b) The Crown submitted that many police complaints made by S Gatt over the years are reflective of her tenuous lifestyle and vulnerability, rather than a propensity to make false complaints. For example, many of the reports relate to S Gatt's bag being stolen. The Crown submitted that given S Gatt's lifestyle, it would not be surprising that her possessions would sometimes be lost or stolen.

(c) With respect to a report made by S Gatt on 15 August 2006 and a note by police that she was 'not entirely logical or rational', the Crown submitted that there is no evidence that she was delusional, and nothing to suggest unreliability as to the substance of the complaint.

(d) With respect to an alleged assault by S Stephens on 8 July 2014, with whom S Gatt has previously been in a relationship, and a comment on the Defence table that the incident is 'similar to allegation against AB [the accused] on 7 August 2015', the Crown submitted that whether there was some similarity between the two incidents has no bearing of the reliability of S Gatt's account of the later incident involving the accused.

(e) The Crown urged caution when assessing notes made by police that appear to query the legitimacy of a complaint.

(f) Some reports were 'processed', suggesting that in some instances the events complained of probably occurred.

(g) Some notes by police indicate the report was believed to be 'genuine'.

(h) That fact that no brief was authorised in relation to some incidents does not necessarily suggest a lack of reliability.

(i) The fact that certain reports were unsolved or unresolved cannot be used to find that S Gatt is inherently unreliable.

(j) The fact that S Gatt at times elected not to file a report does not suggest general unreliability. In relation to an alleged sexual assault by S Gatt's previous partner T Tuckwell on 7 January 2010, the Crown submitted that the assertion by the Defence that this is a 'likely false allegation' was 'quite a bold assertion' to make 'simply because she didn't follow through with the allegation of rape'. The Crown submitted that this assertion by the Defence should carry no weight, particularly where there appeared to be other circumstantial evidence that may support the veracity of the complaint.

(k) The final entry on the table related to a report made by Leona on 18 April 2017, in which she makes certain allegations against Taha, including that he sexually assaulted S Gatt. In cross-examination at committal, Leona said that certain parts of this report (including the allegation of sexual assault against S Gatt) were invented by her and S Gatt for the purpose of obtaining a benefit from Centrelink. The Crown pointed out that at the relevant time, S Gatt's payments were being made into the accused's account. The Crown submitted that it was unclear how this incident undermined the representations relied upon by the Crown.

Consideration of the disclosure material and its relevance to deciding the disputed representations

41 As noted by the Crown, consideration of the disclosure material regarding past complaints by S Gatt shows that some complaints were substantiated or partially confirmed, others were unresolved, and some were regarded with scepticism by the attending police members. The fact that S Gatt did not always follow through in making a statement or pursuing medical treatment does not necessarily suggest a lack of truthfulness or unreliability. There are a multitude of reasons why a person in S Gatt's circumstances might not pursue the making of a formal statement or seek medical treatment following a police report. For example, having police attend a family violence incident often leads to the alleged offender leaving the complainant's home so that the immediate pressure of the incident diminishes.

42 The fact that some complaints remained unresolved does not necessarily suggest unreliability. Again, there are many reasons why this might be the case.

43 The fact that S Gatt made many complaints seeking police assistance is consistent with her general vulnerability and the tumultuous nature of her interpersonal relationships.

44 Assessments by police that a complaint seemed, in a general way, either genuine or false can only be accorded very limited weight. These assessments are mere opinions held by individual police officers, and are limited by what was known to them at the time and by their own attitudes to persons in the complainant's position.

45 The 1998 complaints, which appear to have been aimed at a Centrelink advance, are distinguishable from episodes of calling police to attend and intervene in respect of family violence by an intimate partner. As mentioned by the Crown, they were made almost two decades before the disputed representations.

46 Regarding the final entry on the table, being a report made by Leona and S Gatt[20] of an alleged sexual assault by Taha against S Gatt on 18 April 2017, Leona's evidence at committal was that this incident was fabricated to obtain a Centrelink benefit. Whether it is accepted that this is a false complaint largely depends on the acceptance of Leona's evidence, and I note the point made by the Crown that S Gatt's Centrelink payments were being paid into to the accused's bank account at the relevant time. I also note that there is no evidence to suggest that S Gatt made allegations against the accused (which are the subject of the disputed representations) for the purpose of a Centrelink benefit. The fact that there may be some evidence that this was a false complaint does not persuade me that the reliability or truthfulness of the disputed representations, which occurred in very different circumstances at an earlier time before this incident, are somehow undermined.

47 Taken as a whole, the material relied on by the Defence presents a mixed picture: there are some confirmed false complaints dated 20 years earlier; there are complaints that were not able to be confirmed or not followed through for various reasons; some that were partially corroborated; and some that were made out. The evidence as a whole does not indicate that S Gatt fabricated the representations about family violence by the accused between 2014 and 2015. Nor does the evidence show that those representations were unreliable. Instead, the disputed representations must be assessed by reference to the circumstances in which each representation was made.

48 The various incidents and the specific representations will be incorporated in tables that are set out below. Each representation is colour coded to assist in identifying the provision of the EA relied on. Black is used where ss 65(2)(b) and 65(2)(c) are both relied upon. Green is used where only s 65(2)(c) is relied upon. Blue is used where only s 66A is relied upon.

49 Incident 1.1 concerns the Morrison representations which are interconnected with representations 1.2, as made to the Emergency Services Operator on 27 December 2014.

50 It is convenient to deal with 1.2 first, as it was first in time.

51 Between about 2.39pm to 2.24pm on 27 December 2014 from 37 Lambeth Street, Kensington, S Gatt represented to an Emergency Services Operator what is on the recording of the phone conversation, and in particular the following representations:

a) The accused was in S Gatt's house at 2/57 Lambeth Street, Kensington.

b) The accused is an old boyfriend. He had been staying at S Gatt's place because he told her he has cancer and has nowhere to stay.

1. The accused had been giving S Gatt some rent money, but it stopped over the last fortnight. Last night he turned around and said he was not going to give her money after earlier telling her that he would.

d) The accused tried to hit S Gatt three times and hit her on the stomach.[21]

e) The accused keeps telling S Gatt that he will take care of her.

Incident 1.1: Police Constable Shae Morrison ('Morrison')

52 At about 3.30pm on 27 December 2014 at the Lambeth premises, S Gatt represented to Constable Morrison the following:

a) As at 27 December 2014 Sarah Gatt had been in a relationship with Andrew Baker for the past 4 weeks.

b) About 2.45pm on 27 December 2014 at her home at 2/57 Lambeth Street, Kensington, Sarah Gatt and the accused had a verbal altercation over money owed by the accused to S Gatt.

1. During the verbal altercation, S Gatt demanded that the accused return her house key.

e) After being punched, S Gatt left her house, went to friends at 37 Lambeth Street and called police.

f) About 3.30pm on 27 December 2014 at her home at 2/57 Lambeth Street, Kensington, Sarah Gatt refused to make a formal statement in relation to the alleged assault but requested from police a full intervention order be put in place regarding the accused.

Submissions of the parties regarding 1.2: The 000 call[22]

53 The Crown submissions pointed to the absence of evidence to suggest fabrication in the making of the 000 call, as well as the fact that S Gatt had left her home immediately when she was assaulted, called 000, and made a report that she was assaulted by a man whom she had recently started seeing. Additionally, the Crown submitted that there is nothing to suggest S Gatt had a reason to fabricate the allegation. The Crown referred to the note they say was written by the accused, in which he stated that he and S Gatt needed some time to themselves which, it was submitted, was consistent with some kind of altercation having transpired between S Gatt and the accused.

54 The Defence relied on their overarching submissions about S Gatt's general lack of credibility and reliability, as set out earlier in this ruling, and suggested that there are a number of 'dubious aspects' to the 000 call, including her quick speech, her refusal of an ambulance, her assertions that the accused carries a weapon, and the fact that she referred to her former partner putting a knife to her throat.

Consideration of 1.2: The 000 call [23]

Determination of applicability of 65(2)(b) to the disputed items in 1.2

55 With respect to representations 1.2(a) and (d), I accept the Crown's submissions that the call, which was made at 2.39pm, immediately after the alleged incident occurred, meets the first limb of the test under s 65(2)(b).[24] I also consider that the surrounding circumstances, which include S Gatt leaving her home, calling 000 and making a report of an assault in the context of a relatively new relationship are circumstances that make it unlikely that the representation is a fabrication. I am therefore satisfied that representations 1.2(a) and (d) are admissible under the hearsay exception of s 65(2)(b), having been made when or shortly after the asserted fact occurred, and in circumstances that make it unlikely that the representation is a fabrication.

56 Having found these representations admissible under s 65(2)(b), it is unnecessary to consider whether the test under 65(2)(c) is also met.

Determination of applicability of 65(2)(c) to the disputed items in 1.2 that were not already admitted under 65(2)(b)

57 Regarding representations 1.2(b), (c) and (e) on which the Crown rely subject to s 65(2)(c), these representations are assertions about the nature of S Gatt's relationship with the accused, including her understanding of how he came to be living with her and the circumstances of their living arrangements. They are matters about which S Gatt has close, personal knowledge. Furthermore, S Gatt made these representations in circumstances of necessity and urgency; she had fled her home to seek help, called 000, and was asked for information regarding the nature of her emergency, and in particular the person from whom she was escaping. I consider these representations to be admissible as they meet the test under s 65(2)(c), having been made in circumstances that make it highly likely that the representations are reliable.

Consideration of the Morrison representations: The disputed representations are first-hand hearsay

58 The Crown submitted that the Morrison representations are first-hand hearsay and that there is nothing in his evidence or his notes to suggest otherwise. Their submissions concerning the Morrison representations echoed the arguments put regarding the 000 call of the same date. They submitted that the Morrison attendance occurred on 27 December 2014, and while Morrison only wrote his formal statement on 4 August 2021 and did not make contemporaneous notes at S Gatt's home when attending the incident, he said that on his return to the police station on 27 December 2014, he completed a Family Violence Report[25] which included a Family Violence Complaint and warrant for the arrest of Andrew Baker.[26] The report included a narrative summary of the events reported to him by S Gatt, although it did not explicitly differentiate which information came directly from S Gatt as distinct from information contained in the 000 notification provided in advance of attending her home. Material that came from 000 recounting S Gatt's complaint would potentially be second-hand hearsay if not confirmed directly with her by Morrison when he attended upon her. Morrison stated on the s 198B examination that apart from the notes referred to above, he has no independent recollection of what S Gatt said to him.

59 The Defence submitted that the Morrison representations are inadmissible as second-hand hearsay.[27] They refer to Morrison's evidence during preliminary cross-examination that he has no independent recollection of S Gatt making the representation and did not take notes of what she said to him at the scene. Neither S Gatt nor Morrison made a statement on the day of the incident. Morrison recalled speaking to a woman in the alleyway but could not recall what she said; moreover, he could not now differentiate between what S Gatt said to him and what the 000 operator may have told him. The Defence submitted that the Morrison representations lack particularity and reflect his interpretation of events rather than his memory of the actual words used by S Gatt. The Defence submitted that this is analogous to what occurred in Azizi v the Queen ('Azizi'),[28] citing a passage that discusses the necessity that a representation be the 'previous representation of the unavailable witness, not an interpretation of that representation or a summary of it.'[29]

60 I consider the circumstances of this case to be quite different from Azizi. The evidence of Morrison is in no way 'confusing or confused'[30] and is based on records made soon after attending the incident involving S Gatt.

61 It is not surprising that Morrison is dependent on the report he created at the Police Station regarding what S Gatt told him. Under preliminary cross-examination, Morrison conceded that he cannot now recall the exact words used by S Gatt, nor differentiate between information received directly from S Gatt and information conveyed by the 000 call operator. However, a reasonable inference arises from the procedure that led to his authorship of the family violence documents on 27 December 2014, that the words recorded in the report record what S Gatt said to Morrison. This is supported by the fact that there are some differences between what is recorded in the 000 call and in the Morrison report. For example, there are minor differences in S Gatt's account of how long she and the accused had been in a relationship and differences in the level of detail given about the dispute over money, and the details about the assault (representation 1.1(d) states '[t]he accused punched S Gatt to her stomach', while representation 1.2(d), derived from the 000 call includes the additional words that '[t]he accused tried to hit S Gatt three times and hit her on the stomach'). Further, the Morrison account includes information about what S Gatt did after the assault, which is not present in the 000 call. Representation 1.1(f) recounts what occurred after police attended, and must have been based on what S Gatt told Morrison as it would not have been information available to the 000 call operator.

62 Based on the information contained in Morrison's statement, I consider it highly probable that, having received information about the nature of the complaint via 000, Morrison obtained direct confirmation of the central allegations of family violence from S Gatt before preparing the family violence report,[31] the Family Violence Complaint and the warrant for arrest of the accused.[32]

63 It appears unlikely that Morrison would have prepared the family violence documents without confirming the key complaint information directly with S Gatt, such as the nature of her relationship with the accused (that they were living together), the allegation of having been physically assaulted (that he hit her to the stomach), and the reason for the assault (being an argument over money).

64 As such, I am satisfied that the Morrison representations are first-hand hearsay[33] and were directly conveyed by S Gatt to Morrison before Morrison returned to the police station and completed the relevant documentation.

Secondary determination: Application of requirements of s 65(2)(b) and/or (c)

65 With respect to representations 1.1(b)-(f), the Crown submitted that the Morrison representations were made approximately 45 minutes after the asserted fact occurred, and as such were made 'shortly after'. The Crown argued that the representations were made in circumstances that make them unlikely to be a fabrication.

66 Regarding representations 1.1(a)-(f),[34] the Crown submitted that the following circumstances support their veracity:

(a) There is no evidence S Gatt was affected by drugs at time she made the report;

(b) S Gatt had left her home and called police, which she would not have done unless there was good reason; and

(c) S Gatt subsequently requested an IVO.

67 While S Gatt declined to make a statement, this should not be taken as indicating unreliability. As I have previously outlined, there are a number of explanations as to why victims of domestic violence may decline to do so.

68 In response, the Defence submitted that with respect to the circumstances in which the representations were made, the matters deriving from the disclosure material should be viewed as impacting on the veracity and reliability of the representations. In their written submissions, the Defence submitted that the representations were likely made when S Gatt was substance affected.

69 Counsel for the Crown, Mr Dickie maintained the submission that there was no evidence that Ms Gatt was substance affected and commented that while there was reference to 'substances' in the 000 call, it appeared that S Gatt was referring to the accused using substances. The point was not pressed by the Defence in their oral submissions.

Determination of applicability of 65(2)(b) to the disputed items in 1.1

70 I agree with the Crown submission that the Morrison representations 1.1(b)-(f) are representations that were made 'shortly after' the asserted fact occurred for the purposes of s 65(2)(b). Therefore, the first limb of the test is satisfied.

71 Turning to the second limb of s 65(2)(b), the following factors suggest that the representations are unlikely to be a fabrication:

(a) S Gatt left her home, called 000 and made a report that she was assaulted by a man with whom she had recently commenced a relationship;

(b) As submitted by the Crown, the report to Morrison followed directly from the report to 000; and

(c) It is evident that S Gatt was able to clearly communicate the nature of her complaint to 000 and to Morrison, and the suggestion that she was substance affected at the time was not pressed by the Defence in oral submissions.

72 There is no evidence suggestive of fabrication, and nothing about the context or circumstances points towards S Gatt having fabricated these representations.

73 I am therefore satisfied that representations 1.1(b)-(f) are admissible under the hearsay exception of s 65(2)(b). I accept that these representations were made when or shortly after the asserted fact occurred, and in circumstances that make it unlikely that the representation was a fabrication. It is not necessary to decide whether the representations in 1.1(b)-(f) are also admissible under s 65(2)(c), although it seems likely that they would also meet that test for admissibility.

Determination of applicability of s 65(2)(c) to the disputed items in 1.1 that were not already admitted under s 65(2)(b)

74 I consider that representation 1.1(a) is admissible pursuant to s 65(2)(c). In the representation, S Gatt identified that she was complaining about the accused with whom she had recently commenced a relationship. It was a matter about which she had personal knowledge, and she provided that information to a police officer in the pressurised context of describing alleged acts of family violence to police. I regard the representation as being made in circumstances that make it highly probable to be reliable. While not determinative on the question of reliability, I also note that there is simply no reason for S Gatt to have invented the factual circumstances of her new relationship with the accused in her dealings with Morrison.

Incident 2: Senior Constable Dale Lewis ('Lewis')

75 At about 2.35pm on 6 February 2015 at the Lambeth St premises, S Gatt represented to Lewis the following:

a) About 1.00pm on 6 February 2015 the accused attended the home of Sarah Gatt at 2/57 Lambeth Street, Kensington.

b) Between 1.00pm and 2.24pm on 6 February 2015 at 2/57 Lambeth Street, Kensington, there was a verbal altercation between Sarah Gatt and the accused.

c) During the verbal altercation, the accused packed up items and left.

d) Prior to leaving the house, the accused said the following to S Gatt:

iii) He would get her property tagged with a Rebels' tag.

76 The Crown submitted that the representations are first-hand hearsay, and that the words relied upon are likely to be precise quotations. It was submitted that the high degree of specificity suggests that they were the words used by S Gatt, rather than an interpretation of what was conveyed to Lewis. Further, while Lewis may not recall the exact words now, he recorded them close to the time they were conveyed to him.

77 The Crown rely on the following matters as tending to show that the Lewis representations were made in circumstances that make them unlikely to be a fabrication:

(a) There is no specific evidence pointing to fabrication;

(b) S Gatt reported these matters about a man with whom she had been in a relationship for less than three months; and

(c) S Gatt urgently attended a neighbour's house, and a 000 call was made in her presence requesting the attendance of police.

78 On the question of whether it is highly probable that the Lewis representations are reliable, the Crown submitted that S Gatt's possible substance use at the time does not undermine the reliability of the representations.[35] Also, the fact that S Gatt declined to make a formal statement should not be taken as indicating concoction or unreliability, as it is not uncommon for victims of domestic violence to decline to do so.

79 The Crown argued that while S Gatt may have spoken about earlier incidents in her dealings with police, which had led to some confusion, police were later able to identify which matters had been reported earlier. It was submitted, contrary to the Defence's submission that she was 'steadfast' on the assault (as recorded in Lewis' statement),[36] Lewis' oral evidence was that S Gatt was steadfast on the breach of Family Violence Intervention Order and the comments made by Mr Baker. I note that the Crown are not relying on any allegation relating to an assault.[37]

(a) The evidence as to the actual words spoken by S Gatt recorded by Lewis is vague and unclear, and he had no independent recollection of the words she used, so the Court cannot be satisfied that the representations relied upon were made by S Gatt. It was further submitted that the representations lacked sufficient particularity and are merely an interpretation of what occurred, rather than the actual words of the deceased.

(b) S Gatt was substance affected at the time she spoke to Lewis (to the extent that Lewis did not consider it appropriate to take a statement at the time of the initial complaint) and was hard to communicate with.

(c) In cross-examination, Lewis said that S Gatt couldn't distinguish between what happened on that occasion, and what had happened on previous occasions.

(d) That other witnesses who were present gave a different version of events, in particular that the accused wanted to leave and S Gatt was calling the accused back, and that the two had a shouting match.

(e) S Gatt was difficult to deal with, referred to incidents she had reported earlier to police and could not distinguish between the events of 6 February 2015 and earlier evidence and declined to make a statement to police.

(f) When later approached by police and asked to make a statement, S Gatt refused to make one.

Determination of applicability of 65(2)(b) to the disputed items in 2

81 I accept that the Lewis representations, which were made less than one hour after the asserted facts occurred, meet the first limb of the test under s 65(2)(b).[38] While Lewis could not produce contemporaneous notes, he gave evidence that he did take notes at the time of the incident (which were subsequently disposed of by accident) and used those notes to create the Police case summary report.[39]

82 As to whether the circumstances indicate an unlikelihood of being a fabrication, S Gatt's disclosure is of such specificity that they are unlikely to have been spontaneously invented by her. They were also made very shortly after the alleged incident, meaning there was some pressure and immediacy in the making of the representations. I do not consider that they lack particularity. I am not persuaded that the fact that S Gatt may have been substance affected means that the contemporaneous representations to Lewis were fabricated.

83 Regarding S Gatt declining to make a statement, this is not an uncommon outcome for police called to a family violence dispute as once police attend the incident the urgent need for protection may subsequently be supplanted by other motives for not proceeding with a further step.

84 Nor does Lewis's subsequent opinion about S Gatt's credibility directly impact on the veracity of her account at the time it was provided to him, and for the reasons discussed earlier in this ruling, I consider that limited weight can be afforded to the opinions of individual police members about S Gatt's credibility or reliability.

85 It was apparent from Lewis's evidence that there may have been some initial confusion in parts of what S Gatt conveyed to police, including confusion about whether some allegations related to events that occurred on 6 February 2015, or some earlier instance. Lewis gave evidence that S Gatt was 'all over the place with the story ... telling me things that probably happened to her previously.' He said that 'she was telling us, ah about incidents that had occurred previously and bringing those into the story about that day'. Lewis agreed with the proposition that he could not 'distinguish between what she was saying had just allegedly happened on that day and what she was - what she might have reported on a previously occasion.' Lewis also gave evidence that upon returning to the station, he checked the records and concluded that certain things said by S Gatt had related to previous reports. As noted by Mr Dickie, it is significant that police were able to identify which matters had been reported earlier, and which related to the incident on 6 February 2016. The confusion that arose for police on the day in question, is not suggestive of fabrication in relation to the complaint by S Gatt, that the accused had threatened her.

86 I am satisfied the Lewis representations are admissible pursuant to s 65(2)(b) and in those circumstances I need not consider s 65(2)(c).

87 The disputed representations to Walker are interconnected with the representations in a 000 call of the same date. I will therefore deal with the 000 call first as it occurred earlier in time.

88 From about 8.48pm to 8.52pm on 3 April 2015 at Kensington, S Gatt represented to an Emergency Services operator what is on the recording of the phone conversation, and in particular the following representations:

a) On 3 April 2015 the accused slapped S Gatt hard to the face.

b) On 3 April 2015 the accused kneed S Gatt to the stomach.

Incident 3.1 - Constable Nigel Walker ('Walker')

89 At about 9.00pm on 3 April 2015 at the Lambeth St premises, S Gatt represented to Walker the following:

a) As at 3 April 2015 Sarah Gatt had been in an on-and-off relationship with the accused for the past 4 months

b) The accused intermittently slept at S Gatt's home at 2/57 Lambeth Street, Kensington.

1. The accused had been sleeping there for the past week.

d) About 8.45pm on 3 April 2015, at S Gatt's home, the accused and S Gatt engaged in an argument, after which S Gatt tried to throw the accused out of her home.

e) During this process, the accused struck S Gatt to the right side of her face with his hand as he walked towards the door.

f) As he reached the door, the accused turned around and kneed S Gatt in the stomach.

90 The parties' submissions address incidents 3.1 and 3.2 together.

91 The Crown submitted that all of the representations in 3.1 and 3.2 are firsthand hearsay and are a clear and precise recounting of the representations made by S Gatt.

92 On the question of the unlikelihood of the representations being a fabrication under s 65(2)(b) or regarding their reliability under s 65(2)(c), the Crown again submitted that S Gatt's possible substance use does not undermine the likely veracity of her representations and the fact that she later declined to make a statement should not be taken as indicating lack of veracity of the original representations.

93 The fact that S Gatt phoned 000 and asked for police to urgently attend suggests that the representation was made in pressing circumstances that make it unlikely to be a fabrication. Mr Dickie elaborated on this submission, suggesting that the fact that S Gatt called police to her home when she was drug affected was conduct that might be considered against her interests, and as such was a factor which supports that the representations are unlikely to be a fabrication.

94 The Defence submitted that the representations lack sufficient particularity and are an interpretation of what occurred rather than the words of S Gatt.

95 They pointed to the following circumstances as suggesting unreliability:

(a) S Gatt said she was pregnant, but refused to go to hospital;

(b) S Gatt was erratic, drug affected[40] and engaging in 'drug seeking behaviour';

(c) S Gatt changed her statement multiple times;

(d) S Gatt refused to provide a formal statement;

(e) S Gatt had no injuries; and

(f) The neighbours spoken to by police did not report hearing the altercation.

Determination of applicability of 65(2)(b) to the disputed items in 3.1 and 3.2

96 I accept that representations 3.1(d)-(f) and 3.2 meet the first limb of the test under s 65(2)(b).[41] The 000 call was made when S Gatt attended a neighbour's house just after the alleged incident occurred and the conversation with Walker took place approximately 15 minutes after that. Walker made a contemporaneous statement. There is no dispute that the representations made by Walker, and the 000 call, are first-hand hearsay.

97 I am also satisfied that the representations at 3.1 (d), (e) and (f) and 3.2(a) and (b) meet the test under s 65(2)(b) of the EA. I agree with the Crown submission that the circumstance of immediately going to a neighbour's house to call 000 and summon police attendance despite having used drugs before doing so tends against the representations being a fabrication. It shows that S Gatt was most likely responding to the immediate pressure of her circumstances and was willing to involve police even in spite of her own drug use that day. The behaviour of S Gatt after police responded to her call suggests an unwillingness to have charges pressed or further action taken once the pressure of the incident had passed. However, this does not mean that her contemporaneous representations were likely to have been concocted. It is likely that the act of calling the police and obtaining their attendance relieved the immediate pressure and risk for her. While not determinative, I also note that there is nothing about her account of the events as recounted to 000 and to the attending police officer that appears implausible. The fact that no injuries were sighted by police does not detract from her account as the alleged assaults may not have led to obvious injuries or the injuries or may not have been apparent in the immediate aftermath of the assaults. Given my determination that these representations are admissible under s 65(2)(b), I need not determine admissibility under S65(2)(c).

Determination of applicability of 65(2)(c) to the disputed items in 3.1 and 3.2 that were not already admitted under 65(2)(b)

98 Regarding the remaining Walker representations under 3.1 (a), (b) and (c) they are more general assertions about the nature of S Gatt's relationship with the accused rather than the spontaneous report of a recent event. They involve the kind of standard information police would be expected to seek from a family violence complainant to get a proper understanding of the context of the complaint. The Crown rely on s 65(2)(c) in respect of those items. It was hard for the Defence to identify a reason why S Gatt's description of her relationship with the accused would not be reliable in circumstances where what she said was quite innocuous, did not show the accused in a poor light or herself in a good light and served no purpose other than to indicate that the Lambeth St premises was her home and the accused had been visiting and staying there in the context of their on and off relationship. Other evidence available to the Crown supports the reliability of the asserted fact as to the nature of S Gatt's relationship with the accused, although I note that determination of admissibility need not be made on the basis of the whether the representation accurately reflected the objective truth of the matter.[42]

99 The representations at 3.1(a), (b) and (c) are admissible under s 65(2)(c) in that the circumstances of them being made make it highly probable that they are reliable.

100 At about 8.50pm on 8 July 2015 at Parsons Street, Kensington, S Gatt represented to Kerren Clark ('Clark') a number of allegations concerning the accused (although Clark did not know the man S Gatt was referring to).

101 The Clark representations are intertwined with representations to an Emergency Services operator in a 000 call made immediately after attending the Clark home and further representations made to LSC Franklin who attended shortly after the 000 call. I will deal with the three items in incident 3 in the sequence in which each item occurred.

a) S Gatt had been punched in the face several times by the man.

b) The man did not let her leave the house for 3 hours.

c) She was not allowed to have a drink because the man would not let her.

d) The man had been bashing S Gatt.

e) The man had damaged the house by punching walls.

f) The man threatened S Gatt with a knife.

Incident 4.3: Emergency Service Operator representations

102 At 8.55pm on 8 July 2015 at the Clark premises in Kensington, S Gatt represented to an Emergency Services operator what is on the recording of the phone conversation, and in particular the following representations:

1. The accused had her in the house for about 1½ to 2 hours. He would not let her out. Every time she went to the front door, he got to the door with a knife.

d) The accused said, "I'll kill you tonight." She could see in his eyes that he meant it.

e) The accused punched S Gatt and slapped her. He punched her in the head twice. He kicked her a couple of times. She had a bad headache.

f) She cannot stay at her house after this because the accused already said if she goes he will make sure she cannot stay there.

g) The accused had weapons on him when she left the house. He had a knife on him. He chased her out the door with it.

h) He still has a set of her house keys because he would not let her take them.

1. It was just S Gatt and the accused and the accused's mate, but the mate just shot off. No-one else was left in the house with the accused.

j) S Gatt has even just had to get her locks changed.

k) A lot of the "blue" was about Saturday because she had some money put into his account.

Incident 4.2: Leading Senior Constable Franklin ('Franklin') representations

103 Between about 9.10pm and 10.45pm on 8 July 2015 at 60 Parsons Street, Kensington, S Gatt represented to Franklin what is in the statement adopted by S Gatt that day at 10.45pm:

a) The accused was her partner. She had been living with him on and off for the last 6 months. They started off as friends. He would sometimes stay with her, but he wanted it to go further, so they started a relationship.

b) About 2 weeks earlier, the accused convinced S Gatt to change her pension to be paid into his account.

1. That week, the accused spent all her money. There was only about $20 left in her account until her pension went in again in two weeks' time.

d) The day before, while he was in a really bad mood, the accused would not let S Gatt leave his side.

e) That day, the accused became really angry with S Gatt after she returned with a small amount of marijuana.

f) S Gatt said to the accused, "You're scaring me. I'm petrified of you." The accused said, "You'd better get used to it then." He said, "Talk to me, work it out, you're not leaving till we work it out."

g) The accused said to S Gatt, "If we don't work it out tomorrow, when they come round here they'll find a murder suicide."

h) The accused pushed S Gatt onto a futon and punched and kicked her. She did not know how many times, but he punched her three or four times to the face. At least one punch made her nose bleed. One punch was to her left eye and one to her right eye. The accused also tried to punch and kick her several other times, but she used her arms and legs to try and fend him off. His punches and kicks landed on her arms and legs, and some on her stomach area. Her left elbow was really sore. She was covering up to protect her head, so she was not sure whether it was a kick or punch, but she was in pain.

1. The accused went to the kitchen and got a knife. It was a Wiltshire serrated knife kept in a knife block, about 15-20cm long. The accused held the knife mainly in his right hand. If S Gatt tried to leave, the accused pulled out the knife and chased her.

j) While he chased her, the accused said, "You're not going anywhere. You're not leaving until we work it out."

k) S Gatt was saying to the accused, "Get out of my house. I want you out of my house." She was telling the accused she wanted him to leave but he kept saying [s]he[43] could not leave "until we work it out."

1. S Gatt was petrified of the accused. She thought he might stab her.

m) The accused could be a sadistic person. She thought he would play sadistic games with her first, but she thought he would end up stabbing her.

n) About 8.30pm-9.00pm (but she is not sure of the time), S Gatt saw a chance to escape when the accused sat down on the end of the futon. She jumped up and ran to the front door and ran away to Parsons Street, where she asked neighbours to help her as the accused was hitting her.

• She did not want the accused back in the house.

p) She was scared of the accused. She was scared the accused would really kill her because he said if he could not have her, no-one could, and he is capable of that.

104 There was no issue raised that the reports by S Gatt about what had been happening to her were not made when or shortly after the asserted fact occurred or were anything other than first hand hearsay. Regarding the likelihood of fabrication under s 65(2)(b), the Crown relied on aspects of the evidence that made fabrication unlikely including:

(a) Clark heard very agitated voices immediately before the representations were made. She heard S Gatt sounding distressed and the accused sounding very aggressive;

(b) The representations were clear and specific;

(c) Clark heard S Gatt ask the accused to leave her alone and say to the accused she could not get out;

(d) Clark saw a man chasing S Gatt, who turned away upon seeing S Gatt enter Clark's property;

(e) S Gatt was highly distressed when seen by Clark;

(f) S Gatt made the representations in the presence of her neighbour Clark, whom she did not know;

(g) S Gatt would have appreciated that by making the representations police would likely become involved; and

(h) S Gatt later made and adopted a statement setting out representations consistent with those made in the presence of Clark.

105 The Crown also pointed to evidence corroborating S Gatt's version, includes photograph's of S Gatt's injuries and damage to a wall. The Crown submitted that S Gatt's apparent intoxication was not suggestive of the representations being a fabrication and does not undermine the reliability of the representations and that there is no suggestion that she was so intoxicated that she could not communicate effectively.

106 The Crown submitted that while S Gatt was distressed, she was clear and consistent in making the representations. The circumstances, which include seeking help from a neighbour, speaking to 000, requesting assistance in the presence of the neighbour and then adopting the representations in a formal statement were submitted to make it unlikely that her representations about what had been happening to her were a fabrication.

107 The Defence pointed to some inconsistencies in the representations to Clark, 000 and to Franklin and submitted that these factors together with S Gatt's apparent intoxication should cause the Court to doubt the veracity and reliability of S Gatt's comments to Clark.

108 The Defence point to the following inconsistencies as between the three recipients of S Gatt's representations:

(a) While S Gatt said the accused punched her to the face, causing her nose to bleed, neither Clark nor Franklin say they saw blood and the photos taken shortly after the incident do not show blood on S Gatt's face. The timing of events meant that S Gatt would not have had an opportunity to clean any blood from her face.

(b) Clark gave oral evidence that she was surprised that she had not recorded seeing any injuries to S Gatt's face in her statement, recalling that she had seen bruising or marks of various colouring. It was submitted that varied colouring could indicating varies ages to the bruises, and may suggest that the bruising was caused by different incidents. Franklin did not note seeing any injuries to S Gatt.

(c) S Gatt reported in the 000 call that she was chased out of the house with a knife, but did not include this in her statement.

109 Regarding 4.2 (the Franklin representations) it was submitted that these representations are inadmissible under ss 65(b) and (c) because although representations 4.2 (e), (f), (g), (j) and (k) could be found to be hearsay representations this is not so for all of the representations in 4.2. The Defence argued as follows:

(a) 4.2 (a)-(c)[44] are narratives or generalised representations of something that happened, rather than a representation;[45]

(b) 4.2 (d) is a statement of opinion, as well as a narrative;

(c) 4.2 (h) is a series of representations mixed in with thoughts and opinions;

(d) While 4.2 (l) and (o) may be capable of evincing S Gatt's state of mind, they are not relevant for a hearsay purpose and (m) is inadmissible as propensity evidence. It is noted however that ultimately the Crown indicated that they relied on s 66A in relation to 4.2 (l) and (o) and (m), part of (n) and (p);

(e) 4.2 (n) is a 'series of representations' and is 'more a narrative'; and

(f) 4.2 (p) includes parts that are capable of evincing S Gatt's state of mind, but are not relevant for a hearsay purpose and the words 'because he said if he could not have her, no-one could' are second hand hearsay.

Consideration of representations contained in 4.1, 4.2 and 4.3 where s 65(2)(b) is relied on

110 The circumstances in which the representations were made to Clark, the 000 operator and Franklin about what had been done to S Gatt by the accused before S Gatt fled to the Clark home, support that the representations are unlikely to be a fabrication. The representations occurred immediately after the incident occurred, and S Gatt appeared highly distressed, when seeking refuge at the Clark household. She initially made the representations to Clark, her neighbour, whom she did not know, aware that in doing so police may become involved. The representations to 000 and to Franklin were made a short time after the alleged incident, and follow on from the earlier complaint. The Franklin representations were adopted in a signed statement and recounted what had just happened at her home between herself and the accused. The close proximity of the alleged incident to the making of the representations to each recipient, the heightened and stressful circumstances surrounding the police attendance, and the fact that the representations were subsequently recorded in a signed statement, all lead to the conclusion that they are unlikely to be a fabrication.

111 Therefore, regarding representations 4.1 (a) to (f); representations 4.3 (b), (c), (d - 'the accused said 'I'll kill you tonight''), (e - the first three sentences only), (g), (h), (i); and representations 4.2 (e), (f), (g), (h), (i), (j), (k) and (n - from the words 'when the accused...'), I find that they are admissible under s 65(2)(b). It is therefore unnecessary to decide whether they also meet the test under s 65(2)(c).

Consideration of representations contained in 4.1, 4.2 and 4.3 where s 65(2)(c) is relied on[46]

112 Regarding the applicability of s 65(2)(c) to 4.3 (a), (j) and (k), these representations relate to S Gatt's description of the nature of her relationship with the accused and contain firstly a description of how long she had been involved with the accused which can be expected to be a matter that the 000 caller operator would have asked about, and then some incidental details about her attempt to exclude him from her house and a dispute about money. These are matters about which she would have had personal knowledge. While not determinative, I also note that none of these matters, told to the 000 operator in crisis, appear implausible or unrelated to the other information provided to 000. The Defence did not explain why s 65(2)(c) was not applicable to the disputed items in 4.3. The circumstances of provision of this information makes it highly likely to be reliable and therefore admissible under s 65(2)(c).

113 Representations 4.2(a)-(d) include a description of her relationship with the accused (a), as well as explaining the trigger for the alleged family violence on the day in question being a dispute about her pension money. Based on the situation S Gatt was in when making a signed statement to police, where it was likely that she was asked what led to the dispute, I consider the disputed representations to be made in circumstances that make highly likely to be reliable. Regarding the Defence argument that S Gatt's comments were either statements of opinion or a narrative, firstly they are not statements of opinion and secondly, to extent that they are narrative, they are individual representations that form part of a narrative of a family violence incident concerning the accused.

Determination of applicability of 66A to the disputed items in 4.1, 4.2 and 4.3 where not already admitted under 65(2)(b) or 65(2)(c)

114 Regarding the remaining representations contained in 4.1, 4.2 and 4.3 in relation to which s 66A is relied upon I make the following findings in response the Defence arguments:

(a) Regarding 4.2 (l), (n) (only from 'About 8.30pm-9.00pm....she saw a chance to escape') and (o): the Defence appeared to concede that these items evince S Gatt's state of mind, although raised issues that (n) is just more narrative and that (l) and (o) were not relevant for a hearsay purpose. However, I consider that they are each evidence of S Gatt's state of mind and are admissible under s 66A.

(b) In relation to 4.2(m), the reference to the accused being sadistic and in relation to 4.2(p) and the reference to what she thought the accused was capable of based on what he may have said at some stage in the past ('She was scared the accused would really kill her because he said if he could not have her, no-one could, and he is capable of that') appear to be stretching the limits of s 66A and they involve a degree of generality and speculation, though I accept that the words 'she was scared of the accused' are admissible as evidence of her state of mind.

(c) Regarding 4.3 (d - the second sentence only), following stating that the accused said 'I'll kill you tonight' S Gatt stated to 000 that she 'could see in his eyes that he meant it'. S66A creates an exception where the previous representation is a contemporaneous representation about a 'person's health, feelings, sensations, intention, knowledge or state of mind'. This representation goes beyond any of these categories and involves speculation by S Gatt. I do not consider it admissible under s 66A.

(d) With respect to 4.3 (e) ('she had a bad headache') and (f), I accepted that these relate to S Gatt's contemporaneous feelings, and that s 66A applies.

115 Incident 5.1 ('Bertalli representations') is interconnected with incident 5.2 (the 000 call made on the same day). It is convenient to deal with 5.2 first which occurred earlier in time.

116 At 11.10am on 28 August 2015 at the Lambeth St premises, S Gatt represented to an Emergency Services operator what is on the recording of the phone conversation, and in particular the following representations:

a) The accused came to her door with his mate Gabriele. He just said to S Gatt "Oh, come out, come out." She did not go out.

b) The accused then threw something at her house.

d) The accused normally carries a knife, but she is not sure if he has one now

e) The accused reckons the intervention order has been dropped, but it has not.

65(2)(c) and 66A (both are relied upon for the entire sentence)

Incident 5.1: Constable Jacqueline Bertalli ('Bertalli')

117 Regarding 5.1, at about 12.40pm on 28 August 2015 at North Melbourne Police Station, S Gatt represented to Bertalli what is in the statement adopted by S Gatt that day, containing the following representations:

a) In 2014 the accused assaulted S Gatt, after which an intervention order was granted on 30 July 2015 prohibiting the accused from committing family violence against her.

b) About 11.10am on 28 August 2015 S Gatt was home with her partner, Kaya Turksen, who answered a knock at the door. At the door was the accused's mate Justin Gabriele. Mr Gabriele asked to talk to S Gatt. She said she would not. The accused appeared behind Mr Gabriele and asked the same thing, to talk to S Gatt. She also said no. The door was closed on the accused and Mr Gabriele.

1. After the door was closed on them, the accused threw a rock at S Gatt's house while yelling stuff out to her. She could not really hear what was being said. A short time later the accused ran away down the street.

d) At 11.16am the accused called S Gatt from his mobile number 0437 681 425 and left a voicemail. He said "Ok slut. Watch out. We'll come through the window cos you won't be leaving there either."

Not relied upon as in the amended hearsay notice dated 19 June 2022

e) At 11.41am (or 10 minutes later) from the same mobile number a text was sent to S Gatt stating "YOUR DEAD BOTH OFF YOU OVER LYING YOU PUT THAT IN YOUR HEAD FUCKEN SLUT HOW MUCH COCK YOU LOVE FUCKEN LYER AND YOU REAKON I STOLE OF YOU WAIT UNTIL YOUR HOUSE GOES UP IN FLAMES AND HE'S ONLY RIP U OFF WHORE AND COURT SHT BECAUSE U DIDN'T TURN UP YOUR BY YOURSELF FUCKED SJ THE SLUT."

Not relied upon as in the amended hearsay notice dated 19 June 2022

f) S Gatt worries about what the accused could do to her. She honestly thinks he would carry out his threat to kill her and burn down her house. She lives in constant fear of him and just wishes he would leave her alone. She fears he will enter her property from a back laneway. She has to leave the back light on in case she hears a noise so she can see what is there. She stays awake at night. She can hardly get any sleep at night due to her constantly worrying about the accused killing her. She can't go anywhere on her own. Mr Turksen comes with her everywhere because she feels so scared.

Submissions of the parties regarding the 000 Call

118 The Crown submitted the temporal requirement for s 65(2) (b) is met for 5.2 (a),[47] (b) and (d - 'she is not sure if he has one now') because the 000 call was made immediately after the asserted facts complained of regarding the accused man's unwelcome attendance at her home and his disruptive behaviour. Further they submitted that the act of making the 000 call tends against the representation being a fabrication in circumstances where S Gatt was relaying a complaint that the accused was still nearby and presenting a threat to her and her visitor.

119 The 000 representations at 5.2(d) and (e) are sought to be admitted pursuant to s 65(2)(c) on the basis that what was said about the accused man's recent conduct conveyed the ongoing basis for S Gatt's fear of the accused and were relevant matters for her to explain to the 000 operator. As such, it was conveyed in circumstances making it highly likely to be reliable.

120 The 000 representation 5.2(c) is sought to be admitted under s 66A because it contains a contemporaneous expression of fear and urgency regarding the need to be able to safely leave.

121 The Defence appear to rely on their general position that S Gatt's reports to police lack veracity and reliability.

Submissions of the parties regarding the Bertalli representations

122 The Crown submitted with respect to the representations in 5.1(b) and (c), relying on s 65(2)(b), that the representations were made soon after the events complained and the fact that S Gatt called the police before, and after she received the phone messages from the accused supports the proposition that the representations are unlikely to be a fabrication. The Defence relied on their general arguments impeaching S Gatt's veracity and reliability and disputed the reliability of the content of what S Gatt reported, noting that S Gatt was speculating about who sent the messages and threw the pot plant.[48]

123 Regarding 5.1(d) and (e), being the text and voice to text messages, these do not need to be ruled on as both parties agree they are admissible as direct evidence of the statements allegedly made by the accused via phone to text or text messages.

124 Regarding 5.1(f) and the Crown's reliance on s 66A, the Crown submitted that these items relate to S Gatt's contemporaneous state of mind and s 66A is applicable. The Crown submitted that s 66A is apposite because S Gatt was relaying her perceptions at the relevant time and explaining her understanding of the messages sent to her by the accused. Section 66A is relevant to a contemporaneous representation of fear of the accused.

125 The Defence in dealing with 5.1 submitted that the assertion that the accused sent the messages is based on an assumption made by S Gatt.

126 In circumstances where the messages were sent from Mr Gabriele's phone, and Mr Gabriele had been outside S Gatt's house at the time of the incident, the inference that the accused sent the text messages was said to be 'simply not open'.[49] The Defence further submitted that, in circumstances where the door had been shut immediately before the object was thrown at the house, and S Gatt would not have been able to see it being thrown, there is no evidence from which to infer that the accused threw the object. These matters were submitted to impact on the likelihood that the representations to 000 and to police were fabricated under s 65(2)(b), or unreliable under s 65(2)(c).

Determination of applicability of 65(2)(b) to the disputed items in 5.1, 5.2

127 I agree that representations 5.2(a) and (b) and 5.1(b) and (c) are admissible under s 65(2)(b). They were made at the time of or very soon after the unfolding events. The first limb of the test is met. I also consider that the representations are unlikely to be a fabrication in circumstances where S Gatt was complaining of a persisting threat at the time of her 000 call, the fact that she referred to another person being present with her who would have been capable of confirming or refuting her account and the fact that following the 000 call S Gatt acted in a consistent manner by following up with the completion of a police statement made to Bertalli later on the same day.

128 The fact that the messages were sent from Mr Gabriele's phone and an object is thrown when the door was closed may leave open that Mr Gabriele engaged in that conduct, but these factors do not suggest that S Gatt fabricated the content of her complaint to 000 and to the police. I accept the Crown's submission that the circumstances of S Gatt phoning the police following the accused man's unwelcome visit to her house, and her contact with police after she received the text to speech/ text messages which she interpreted as coming from the accused tends against the representations being a fabrication. I uphold the admissibility of these items under s 65(2)(b) and therefore need not consider s 65(2)(c).

Determination of applicability of s 65(2)(c) to the disputed items in 5.1 and 5.2 not already admitted under s 65(2)(b)

129 With respect to 5.1(a), the representation was made to a police officer in circumstances where S Gatt would have been aware that the officer could cross check her account in relation to a previous intervention order, as such I consider that the circumstances make it highly probable to be reliable and is therefore admissible under s 65(2)(c).

Determination of applicability of 66A to the disputed items in 5.1 and 5.2 that where not already admitted under ss 65(2)(b) or 65(2)(c)

130 Regarding the proposed s 66A representation at 5.2(c), I agree that that representation is admissible as a contemporaneous expression of fear and urgency regarding the need to be able to safely leave.

131 Regarding representation 5.2(d), the Crown have relied upon s 65(2)(b) and s 65(2)(c), however, I am of the view that 5.2(d) falls within the scope of 66A, being a contemporaneous representation of her knowledge and fear.

132 Regarding 5.2(e), I consider this admissible under s 66A as a contemporaneous representation of S Gatt's state of mind in relation to the status of the Family Violence Intervention Order ('FVIO').

133 Regarding 5.1(f) where s 66A is relied on by the Crown, I accept that it is apparent that S Gatt was relaying her perceptions at the relevant time. The central aspect of this passage is the reference to living in constant fear of the accused, wishing he would leave her alone and being afraid that he would kill her and is therefore admissible under s 66A, however the passage as a whole will need to be considered under s 137.

134 These incidents relate to 19 December 2015 and are interconnected. It is convenient to deal with 7.2 and 7.3 first as they occur before 7.1.

135 From about 6.16pm to 6.21pm on 19 December 2015 at Kensington, S Gatt represented to an Emergency Services operator what is on the recording of the phone conversation, and in particular the following representations:

a) About 5 minutes before calling 000 the accused struck S Gatt to her mouth as he was walking out her front door.

b) The accused won't listen to S Gatt. He has hit her. He has belted her. He has left letters in her letter box.

136 From about 6.46pm to 6.52pm on 19 December 2015 at Kensington, S Gatt represented to an Emergency Services operator what is on the recording of the phone conversation, and in particular the following representations:

a) The accused had been at her house for about 3 hours prior to him hitting her about 40 minutes ago, two minutes before she first rang 000.

1. She needs someone to be at her house in case the accused returns. She is thinking of going to a domestic violence refuge.

Incident 7.1: First Constable Matthew Taylor ('Taylor')

137 Between about 8.30pm and 9.22pm on 19 December 2015 at North Melbourne Police Station, S Gatt represented to Taylor what is in the statement adopted by S Gatt that day at 9.22pm, and in particular the following representations:

a) She has been in an on-and-off relationship with the accused for 3 years.

b) Over this time there have been a number of arguments and the accused has assaulted S Gatt. From 20 April 2015 an intervention order has been in place.

1. Between 4.30pm and 5.30pm on 19 December 2015 S Gatt returned to her home at 2/57 Lambeth Street, Kensington, and discovered the accused inside. She did not know how he got in. She had the locks for the front and rear door changed. She thinks the accused got in through the laundry.[50]

d) S Gatt spoke with the accused and asked him to leave. The accused would not leave. They had an argument. The accused said, "Fucking make slut."

e) S Gatt went out the front door to try to let her neighbour hear. She tried to open the front gate onto the footpath. The accused caught up and passed her through the gate. They continued arguing.

f) The accused turned around and slapped S Gatt with his right hand to her face. He grabbed her and tried to restrain her.

g) The accused said, "We need to talk." She said, "There is nothing to talk about, after your reactions the last time." He said, "No we are going to talk." She said, "You can never convince me that you have changed and things are going to be different."

h) The accused swung around and punched S Gatt. It was not hard enough to knock her out, but hard enough for her to feel it.

1. The accused said to S Gatt, "You're dead this time, there will be no warning you're dead this time."

j) S Gatt said to the accused, "I am going to ring the coppers this time." He said, "That would be right you dog rat!" He then left her house and walked towards Racecourse Road.

k) S Gatt gave police mailed letters to her from the accused.

138 The Crown rely on the following factors in support of the submission that the representations are unlikely to be a fabrication and that is it highly probable that they are reliable:

(a) There is no evidence to suggest fabrication;

(b) The circumstances described in the 000 call;

(c) The representations are clear and specific;

(d) The letters, including that what she conveys to police is supported by the nature of the letter she subsequently gave to police;

(e) The fact that S Gatt contacted police, that representations were subsequently made to a police officer and are in her signed statement, in which she acknowledged the consequences of making a false statement; and

(f) The is no indication S Gatt made up what is in her statement, and nothing 'fantastical' about what she says.

139 The Defence submitted there were inconsistences across different incidents in S Gatt's account of how long she had been in a relationship with the accused which is an indication of her unreliability. It was submitted that given her drug and mental health issues, no evidence given by S Gatt can be regarded as reliable, and that her evidence could not be regarded as 'anything other than fabrication'.[51] The Defence also referred to internal inconsistencies between the 000 call and S Gatt's statement, including the absence of any reference to a knife in her statement.

140 Following the preliminary argument, the Defence provided the Court with a copy of Magistrates' Court hearing transcript dated 7 January 2019 in relation to the Taylor incident.[52] The Defence made further submissions in relation to this transcript. It was submitted that the transcript contains evidence from a further police officer, Detective Leading Senior Constable Johnson, who attended S Gatt's house on the day of the Taylor incident. After S Gatt signed her statement at Parsons Street, Johnston attended the Lambeth St premises to take photos. S Gatt attended the house and was abusive and aggressive to Johnston and other unnamed police who were also present. Franklin then attended, and S Gatt returned to a state of calm. It was submitted that this was evidence of S Gatt's oscillating between being erratic and abusive and calm. It should be noted that the transcript also contains evidence from Leading Senior Constable Wagner that when he arrested the accused, the accused had a kitchen knife in his pocket (though not a serrated knife, as had been described by S Gatt).

Determination of applicability of 65(2)(b) to the disputed items in 7.1, 7.2 and 7.3

141 It is clear that representations 7.1(c - 'Between 4.30pm and 5.30pm on 19 December 2015 S Gatt returned to her home at 2/57 Lambeth Street, Kensington, and discovered the accused inside'), (d), (e), (f), (g), (h), (i) and (j); 7.2(a); and 7.3(a) were made soon after the alleged conduct complained of and meet the first limb of the test.[53] Regarding the circumstances in which the representations were made and whether those circumstances suggest that the representations were unlikely to be a fabrication, the following circumstances show that it is unlikely that the representations are a fabrication:

(a) S Gatt contacted 000 immediately after the incident occurred. She expressed fear in these calls and asked for urgent assistance. When police did not attend, she called back and again asked for assistance.

(b) S Gatt later attended the police station, and proffered letters written by the accused to emphasize the reality of her concerns.

(c) S Gatt then provided a signed and juratted statement.

(d) There is no evidence suggestive of circumstances of fabrication on the day of the alleged events.

142 I am therefore satisfied that these representations are admissible under s 65(2)(b).

Determination of applicability of 65(2)(c) to the disputed items in 4.1, 4.2 and 4.3 not already admitted under 65(2)(b)

143 Regarding 7.1(a), 7.1(b), the middle sentence of 7.1(c) ('She had the locks for the front and rear door changed'), 7.1(k), 7.2(b) and 7.3(b), where s 65(2)(c) is relied on by the Crown, these representations concern relevant background information that S Gatt conveyed to police in an effort to have her need for protection taken seriously. Minor inconsistences in her account of how long she had been in a relationship with the accused are of little moment. Notwithstanding her drug and alcohol abuse, S Gatt was able to provide a coherent account of her safety concerns and followed them through with a signed statement. This conduct is consistent with an increased level of fear and alarm from S Gatt's standpoint regarding what the accused might do in retaliation for being rejected by her. In my view, these representations satisfy the test in s 65(2)(c), having been made in circumstances that make it highly probable that they are reliable.

Determination of applicability of 66A to the disputed items in 4.1, 4.2 and 4.3 where not already admitted under 65(2)(b) or 65(2)(c)

144 Incidents 7.3(c) and 7.1(c - 'she did not know how he got in ... she thinks the accused got in through the laundry') provide contemporaneous accounts of S Gatt's state of mind at the relevant time, namely her fear of the accused. I am therefore satisfied that these representations fall within the scope of s 66A as being contemporaneous statements about S Gatt's feelings and state of mind.

145 The below table sets out a summary of my findings. The table has been colour coded as followed:

(a) Black: Admissible under s 65(2)(b).

(b) Green: Admissible under s 65(2)(c).

(c) Blue: Admissible under 66A.

(d) Red: Inadmissible.

(e) Orange: No ruling made.

a) The accused was in S Gatt's house at 2/57 Lambeth Street, Kensington.

b) The accused is an old boyfriend. He had been staying at S Gatt's place because he told her he has cancer and has nowhere to stay.

1. The accused had been giving S Gatt some rent money, but it stopped over the last fortnight. Last night he turned around and said he was not going to give her money after earlier telling her that he would.

d) The accused tried to hit S Gatt three times and hit her on the stomach.[54]

e) The accused keeps telling S Gatt that he will take care of her.

a) As at 27 December 2014 Sarah Gatt had been in a relationship with Andrew Baker for the past 4 weeks.

b) About 2.45pm on 27 December 2014 at her home at 2/57 Lambeth Street, Kensington, Sarah Gatt and the accused had a verbal altercation over money owed by the accused to S Gatt.

1. During the verbal altercation, S Gatt demanded that the accused return her house key.

e) After being punched, S Gatt left her house, went to friends at 37 Lambeth Street and called police.

f) About 3.30pm on 27 December 2014 at her home at 2/57 Lambeth Street, Kensington, Sarah Gatt refused to make a formal statement in relation to the alleged assault but requested from police a full intervention order be put in place regarding the accused.

a) About 1.00pm on 6 February 2015 the accused attended the home of Sarah Gatt at 2/57 Lambeth Street, Kensington.

b) Between 1.00pm and 2.24pm on 6 February 2015 at 2/57 Lambeth Street, Kensington, there was a verbal altercation between Sarah Gatt and the accused.

c) During the verbal altercation, the accused packed up items and left.

d) Prior to leaving the house, the accused said the following to S Gatt:

1. If the accused couldn't have her, no-one could.
2. She was a fucking slut.
3. He would get her property tagged with a Rebels' tag.
4. She was a dead fucken dog.

a) On 3 April 2015 the accused slapped S Gatt hard to the face.

b) On 3 April 2015 the accused kneed S Gatt to the stomach.

a) As at 3 April 2015 Sarah Gatt had been in an on-and-off relationship with the accused for the past 4 months

b) The accused intermittently slept at S Gatt's home at 2/57 Lambeth Street, Kensington.

1. The accused had been sleeping there for the past week.

d) About 8.45pm on 3 April 2015, at S Gatt's home, the accused and S Gatt engaged in an argument, after which S Gatt tried to throw the accused out of her home.

e) During this process, the accused struck S Gatt to the right side of her face with his hand as he walked towards the door.

f) As he reached the door, the accused turned around and kneed S Gatt in the stomach.

a) S Gatt had been punched in the face several times by the man.

b) The man did not let her leave the house for 3 hours.

c) She was not allowed to have a drink because the man would not let her.

d) The man had been bashing S Gatt.

e) The man had damaged the house by punching walls.

f) The man threatened S Gatt with a knife**.**

Incident 4.3: Emergency Service Operator representations

1. The accused had her in the house for about 1½ to 2 hours. He would not let her out. Every time she went to the front door, he got to the door with a knife.

d) The accused said, "I'll kill you tonight." She could see in his eyes that he meant it.

'The accused said, "I'll kill you tonight." Yes - s 65(2)(b)

e) The accused punched S Gatt and slapped her. He punched her in the head twice. He kicked her a couple of times. She had a bad headache.

f) She cannot stay at her house after this because the accused already said if she goes he will make sure she cannot stay there.

g) The accused had weapons on him when she left the house. He had a knife on him. He chased her out the door with it.

h) He still has a set of her house keys because he would not let her take them.

1. It was just S Gatt and the accused and the accused's mate, but the mate just shot off. No-one else was left in the house with the accused.

j) S Gatt has even just had to get her locks changed.

k) A lot of the "blue" was about Saturday because she had some money put into his account.

a) The accused was her partner. She had been living with him on and off for the last 6 months. They started off as friends. He would sometimes stay with her, but he wanted it to go further, so they started a relationship.

b) About 2 weeks earlier, the accused convinced S Gatt to change her pension to be paid into his account.

1. That week, the accused spent all her money. There was only about $20 left in her account until her pension went in again in 2 weeks' time.

d) The day before, while he was in a really bad mood, the accused would not let S Gatt leave his side.

e) That day the accused became really angry with S Gatt after she returned with a small amount of marijuana.

f) S Gatt said to the accused, "You're scaring me. I'm petrified of you." The accused said, "You'd better get used to it then." He said, "Talk to me, work it out, you're not leaving till we work it out."

g) The accused said to S Gatt, "If we don't work it out tomorrow, when they come round here they'll find a murder suicide."

h) The accused pushed S Gatt onto a futon and punched and kicked her. She did not know how many times, but he punched her 3 or 4 times to the face. At least one punch made her nose bleed. One punch was to her left eye and one to her right eye. The accused also tried to punch and kick her several other times, but she used her arms and legs to try and fend him off. His punches and kicks landed on her arms and legs, and some on her stomach area. Her left elbow was really sore. She was covering up to protect her head, so she was not sure whether it was a kick or punch, but she was in pain.

1. The accused went to the kitchen and got a knife. It was a Wiltshire serrated knife kept in a knife block, about 15-20cm long. The accused held the knife mainly in his right hand. If S Gatt tried to leave, the accused pulled out the knife and chased her.

j) While he chased her, the accused said, "You're not going anywhere. You're not leaving until we work it out."

k) S Gatt was saying to the accused, "Get out of my house. I want you out of my house." She was telling the accused she wanted him to leave but [s]he kept saying he could not leave "until we work it out."

1. S Gatt was petrified of the accused. She thought he might stab her.

m) The accused could be a sadistic person. She thought he would play sadistic games with her first, but she thought he would end up stabbing her.

n) About 8.30pm-9.00pm (but she is not sure of the time), S Gatt saw a chance to escape when the accused sat down on the end of the futon. She jumped up and ran to the front door and ran away to Parsons Street, where she asked neighbours to help her as the accused was hitting her.

• She did not want the accused back in the house.

p) She was scared of the accused. She was scared the accused would really kill her because he said if he could not have her, no-one could, and he is capable of that.

'She was scared the accused would ... capable of that.' - Not admissible

a) The accused came to her door with his mate Gabriele. He just said to S Gatt "Oh, come out, come out." She did not go out.

b) The accused then threw something at her house.

d) The accused normally carries a knife, but she is not sure if he has one now

e) The accused reckons the intervention order has been dropped, but it has not.

a) In 2014 the accused assaulted S Gatt, after which an intervention order was granted on 30 July 2015 prohibiting the accused from committing family violence against her.

b) About 11.10am on 28 August 2015 S Gatt was home with her partner, Kaya Turksen, who answered a knock at the door. At the door was the accused's mate Justin Gabriele. Mr Gabriele asked to talk to S Gatt. She said she would not. The accused appeared behind Mr Gabriele and asked the same thing, to talk to S Gatt. She also said no. The door was closed on the accused and Mr Gabriele.

1. After the door was closed on them, the accused threw a rock at S Gatt's house while yelling stuff out to her. She could not really hear what was being said. A short time later the accused ran away down the street.

d) At 11.16am the accused called S Gatt from his mobile number 0437 681 425 and left a voicemail. He said "Ok slut. Watch out. We'll come through the window cos you won't be leaving there either."

Not relied upon as in the amended hearsay notice dated 19 June 2022

e) At 11.41am (or 10 minutes later) from the same mobile number a text was sent to S Gatt stating "YOUR DEAD BOTH OFF YOU OVER LYING YOU PUT THAT IN YOUR HEAD FUCKEN SLUT HOW MUCH COCK YOU LOVE FUCKEN LYER AND YOU REAKON I STOLE OF YOU WAIT UNTIL YOUR HOUSE GOES UP IN FLAMES AND HE'S ONLY RIP U OFF WHORE AND COURT SHT BECAUSE U DIDN'T TURN UP YOUR BY YOURSELF FUCKED SJ THE SLUT."

Not relied upon as in the amended hearsay notice dated 19 June 2022

f) S Gatt worries about what the accused could do to her. She honestly thinks he would carry out his threat to kill her and burn down her house. She lives in constant fear of him and just wishes he would leave her alone. She fears he will enter her property from a back laneway. She has to leave the back light on in case she hears a noise so she can see what is there. She stays awake at night. She can hardly get any sleep at night due to her constantly worrying about the accused killing her. She can't go anywhere on her own. Mr Turksen comes with her everywhere because she feels so scared.

a) About 5 minutes before calling 000 the accused struck S Gatt to her mouth as he was walking out her front door.

b) The accused won't listen to S Gatt. He has hit her. He has belted her. He has left letters in her letter box.

a) The accused had been at her house for about 3 hours prior to him hitting her about 40 minutes ago, two minutes before she first rang 000.

1. She needs someone to be at her house in case the accused returns. She is thinking of going to a domestic violence refuge.

Incident 7.1 - First Constable Matthew Taylor ('Taylor')

a) She has been in an on-and-off relationship with the accused for 3 years.

b) Over this time there have been a number of arguments and the accused has assaulted S Gatt. From 20 April 2015 an intervention order has been in place.

1. Between 4.30pm and 5.30pm on 19 December 2015 S Gatt returned to her home at 2/57 Lambeth Street, Kensington, and discovered the accused inside. She did not know how he got in. She had the locks for the front and rear door changed. She thinks the accused got in through the laundry.

d) S Gatt spoke with the accused and asked him to leave. The accused would not leave. They had an argument. The accused said, "Fucking make slut."

e) S Gatt went out the front door to try to let her neighbour hear. She tried to open the front gate onto the footpath. The accused caught up and passed her through the gate. They continued arguing.

f) The accused turned around and slapped S Gatt with his right hand to her face. He grabbed her and tried to restrain her.

g) The accused said, "We need to talk." She said, "There is nothing to talk about, after your reactions the last time." He said, "No we are going to talk." She said, "You can never convince me that you have changed and things are going to be different."

h) The accused swung around and punched S Gatt. It was not hard enough to knock her out, but hard enough for her to feel it.

1. The accused said to S Gatt, "You're dead this time, there will be no warning you're dead this time."

j) S Gatt said to the accused, "I am going to ring the coppers this time." He said, "That would be right you dog rat!" He then left her house and walked towards Racecourse Road.

k) S Gatt gave police mailed letters to her from the accused.

[1] Amended Summary of Prosecution Opening, dated 13 December 2021. I received submissions from parties at various times during the preliminary argument, including Defence Pre-trial Submissions dated 29 April 2022 (document dated 29 April 2020); Crown Submissions, dated 6 June 2022; Defence Submissions in Reply dated 21 June 2022.

[2] Leona's evidence on her s 198B examinations shows a degree of confusion about dates and when she actually went to the house; see dispositions 5705-8.

[3] Riggio was a friend of the accused and Mr Gabriele. The accused saved this number in his phone as "SJ" for "Sarah Jane". Mr Riggio had earlier set up another mobile number, 0402 533 641 ('the 641 number') on 29 April 2017. The 641 number was provided to Mr Gabriele. The accused had contact with both numbers. The prosecution alleges the accused knew the 802 number was being used by Mr Riggio.

[4] Letter postmarked 19 September 2017 located at Lambeth Street in the letter box, deposition pages 694-702.

[5] For example, letters dated 13 and 14 June 2017 found at Mountfield street, depositions 788-791; letter dated 22 September 2017 found at Mountfield Street, deposition 772; birthday card to S Gatt dated 26 July 2017, depositions 792-5. There are also a number of undated letters and notes, as well as some letters and notes that pre-date 19 April 2017.

[6] DPP v Andrew Baker [2022] VSC 706 (Ruling No. 2).

[7] Senior Constable Jessica Gaylard and Constable Daniel Williams.

[8] The Prosecution's hearsay notice sets out 16 incidents, titled 'Representation(s)' 1-17. A number of those incidents are further divided into subcategories according to who made the representation. The individual representations are then detailed with reference to the person who made the representation. The admissions of the representations that relate to incidents 8-17 are not opposed. The prosecution filed the following hearsay notices and amended notices: First Hearsay Notice, dated 2 August 2021; Amended Hearsay Notice, dated 9 June 2022; Baker - Amended Hearsay Notice with Track Changes dated on 20 June 2022.

[9] Evidence Act 2008 (Vic) s 65(1).

[10] Approximately two and a half years before the putative period of S Gatt's death

[11] Approximately one and a half years before the putative period of S Gatt's death.

[12] Namely, those submissions were that between December 2015 and S Gatt's death, there was no evidence of violence in the relationship between S Gatt and the accused, and included references to Azizi v The Queen [2012] VSCA 205 .

[13] As demonstrated by the intermittent periods of the accused living in S Gatt's house.

[14] SIO v The Queen [2016] HCA 32; (2016) 259 CLR 47, 64 [57].

[15] Preliminary Argument Transcript (day 2), 16 June 2022, 117-139. The Defence also provided a table of the incidents - Gatt Police Reports, provided on 16 June 2022.

[16] On some accounts she has stated 'three months'; at other times, she has said 'eight years'.

[17] In circumstances where there was no medical evidence of a birth, termination, or miscarriage.

[18] Reminding the Court of the two occasions in 2016 when she was hospitalised after being at home (once where she was with the accused) and had presented as hypervigilant and fearful of people on her roof.

[19] Initially, in oral submissions, the Crown indicated that this concession was in relation to two reports from 1997 and 1998. In a document titled 'Prosecution response to Email Queries from the Court' provided to the Court on 14 November 2022, the Crown clarified that this concession was made in relation to two convictions for making false police reports. The first conviction was entered on 20 March 1998 at the Heidelberg Magistrates' Court for a report made by S Gatt to police on 21 January 1998 that she was robbed by three men at an ATM in St Kilda. She was later interviewed by police and made full admissions to making a false report and obtaining financial advantage by deception from Centrelink/DSS. The second conviction was entered on 16 July 1999 at the Melbourne Magistrates' Court. The Crown said that this may relate to the report made by S Gatt on 20 April 1998 regarding theft of a bag stolen from a toilet cubicle at Flinders Street and needing a report for Centrelink/DSS. A LEAP entry indicates police officers suspected it was a false report to receive a cash advance from Centrelink with the matter filed pending further information. Subsequently, the Crown emailed the Court to advise that the conviction on 16 July 1999 actually related to a report made by S Gatt on 12 March 1998 (LEAP records indicate that the offending occurred between 6 November 1997 and 12 March 1998) and an associated false claim from Centrelink. Those LEAP records were tendered as Exhibit P3 at the Mention on 14 November 2022.

[20] Statement of Sarah Gatt, dated 19 April 2017, Depositions 1008 (appendix AS).

[21] The amended hearsay notice provided on 2 June 2022 changes the word 'front' to 'stomach'.

[22] The Crown also submitted that 1.2(b) was relevant for a non hearsay purpose; 1.2(c) was relevant to explaining why S Gatt remained in a relationship with the accused over the period of time she did; and that 1.2(d) was relevant to explain why S Gatt commenced and remained in a relationship that involved violence.

[23] With respect to representations 1.2(b), (c) and (e), and certain things said by the accused, I consider these representations to be first hand hearsay, being S Gatt's recounting of what she heard, why she reacted as she did, her understanding of their living arrangements and her understanding of the background of the argument (rather than as evidence of the truth of those matters, for example, that the accused had cancer).

[24] The Defence have not made submissions to the contrary.

[25] Family Violence Report number 20347534.

[27] Evidence Act 2008 (Vic) s 62.

[28] [2012] VSCA 205 ('Azizi').

[30] The passage preceding the extract provided the by Defence is also relevant: 'The evidence of these conversations is confusing and confused ― possibly partly because of translation difficulties, but also because the questions put to Ms Abid appeared to be not always directed to obtaining evidence of what the deceased said ― that is to say, evidence of the representations set out in the hearsay notice. Rather, some questions sought to have the witness say what happened to the deceased at the hands of the applicant, thus, predictably, resulting in the witness interpreting her sister's words and mediating the information provided to the Court.' (This passage concerned the evidence of the deceased's sister in relation to two representations) (Azizi 13-14 [37]).

[32] Note that s 142 of the Evidence Act 2008 (Vic) states that except as otherwise provided for by another provision of the Evidence Act, where the Court is deciding a question of admissibility, whether to exercise a discretion, or any other questing arising under the Evidence Act, the Court may make findings of fact if satisfied of that fact on the balance of probabilities. When determining whether to make such a finding of fact, the Court must take into account the importance of the evidence in the proceeding and the gravity of the matters alleged in relation to the question.

[33] Not mere second-hand hearsay derived from the 000 call.

[34] In oral submissions, the Crown stated that representation 1.1(a) was not strictly hearsay, but that it was relevant as relationship evidence. Then, in the Amended Hearsay Notice dated 19 June 2022, it was indicated that representation 1.1(a) was relied upon under s 65(2)(c).

[35] It was further submitted by the Crown that the this incident showed that there was a 'level of possessiveness, even from that early stage in the relationship', particularly the words that if the accused couldn't have her no one could, and that this was part of what motivated the accused's jealousy the respect of Leona, that S Gatt had formed a relationship with a woman and the accused's feelings of sexual inadequacy. It was submitted that this is highly probative to the Crown case.

[36] In written submissions the Defence stated 'The witness [Lewis] stated that "her story changed many times", but was steadfast on an assault,' yet the Prosecution does not rely upon any allegation of assault by the accused.

[37] There is also some ambiguity over whether there was an allegation of an assault on 6 February 2016, though no such allegation is relied upon by the Crown. Paragraph 8 of Lewis' statement refers to an assault, however there is no such reference in the police case narrative. In cross-examination, it was put to Lewis that there was 'no actual allegation of a physical assault by Mr Baker from Ms Gatt to you on that day'. Lewis agreed with this proposition. In re-examination Lewis said it might have been a push or a shove, but then said he had no recollection about what assault was described.

[38] The Defence have not made submissions to the contrary.

[39] I note that the words in 2(d) said by the accused are relied on as first-hand hearsay, as evidence of the fact that the accused said those things to S Gatt, and the effects of those words on S Gatt.

[40] In his original unsigned statement dated 11 October 2015, Walker includes the words 'GATT was in an erratic and drug affected state when speaking with police. She refused to provide a statement to police and changed several aspects of her story multiple times in regards to what occurred. The Defence drew attention to the fact that these words are not included in his subsequent signed statements, dated 20 December 2022.

[41] The Defence have not made submissions to the contrary.

[42] DPP v Thomas [2021] VSCA 269, 12 [32]; DPP v Lo (Ruling No 2) [2018] VSC 148, 16 [66].

[43] The Crown's hearsay notice says 'he' but it is clear from reading the statement that it should read 'she'.

[44] In oral submissions, the Crown said that 4.2(a) was 'relied upon more for S Gatt's perception as to the relationship between them.': Preliminary Argument Transcript, 17 June 2022, 199 [16]-[27]. However, in the Crown's Amended Notice of Hearsay Evidence, 19 June 2022 the prosecution indicated they relied upon s 65(2)(c) in relation to 4.2(a). With respect to 4.2 (b) and (c), in oral submissions on 17 June 2022, the prosecution appeared to rely on s 65(2)(b), however, in the Amended Notice of Hearsay evidence, the prosecution indicated they relied upon s 65(2)(c).

[45] While the Defence took issue with representation (a)-(d) on the basis they were not sufficiently proximate to the incident under s 65(2)(b), the prosecution subsequently indicated that only s 65(2)(c) was relied on in relation to these representations.

[46] Regarding certain things said by the accused in 4.3(d); and 4.2(f), (g), (j) and (k), I consider these representations to be first hand hearsay, being S Gatt's recounting of what she heard and why she reacted as she did.

[47] Regarding the words said by the accused to S Gatt, 'He just said to S Gatt "Oh, come out, come out." She did not go out', I consider these representations to be first hand hearsay, being S Gatt's recounting of what she heard and why she reacted as she did.

[48] In oral submissions, the Defence referred to the object as 'pot plant' and a 'rock'. The SPO refers to a 'brick' being thrown at her house, see SPO dated 13 December 2021 paragraph 16(d). In her statement dated 28 October 2015, S Gatt refers to a 'rock' being thrown at the brick facade of the house.

[49] Preliminary Argument Transcript, 17 June 2022, 167 [7]-[22].

[50] Outline of Prosecution Submissions for Pre-Trial Hearing, 6 June 2022, [71] state 'S Gatt's perception of how the accused might have gotten into her house is not relied upon'. However, in the Amended Notice of Hearsay Evidence, 19 June 2022 the prosecution indicated they rely upon s 66A in relation to S Gatt's perception of how the accused might have got into her house.

[51] Preliminary Argument Transcript, 17 June 2022, 169 [1]-[7] (Counsel for the Defence, Mr Saunders).

[52] Tendered as Exhibit P2 at the mention on 14 November 2022.

[53] Regarding the words said by the accused to S Gatt in 7.1(d), (g), (i) and (j) I consider these representations to be first hand hearsay, being S Gatt's recounting of what she heard and why she reacted as she did.

[54] The amended hearsay notice provided on 2 June 2022 changes the word 'front' to 'stomach'.