Crown v Accused

1 The background to this matter is set out in the related hearsay ruling.[1]

2 Of relevance to this ruling are some key chronological events alleged by the Crown concerning the movements of the accused, the deceased ('S Gatt') and others between 2014 and the putative date of S Gatt's death (allegedly between 19 and 23 April 2017), as well as the period thereafter:

(a) The Crown say that the accused meets and commences a relationship with S Gatt in around 2014.

(b) 27 April to 5 May 2016: S Gatt is an inpatient at the John Cade Adult Acute Inpatient Unit at the Royal Melbourne Hospital for mental health reasons.

(c) 15 May to 27 June 2016: S Gatt is an inpatient at the John Cade Adult Acute Inpatient Unit at the Royal Melbourne Hospital for mental health reasons.

(d) 5 July to 4 August 2016: The accused is in custody.

(e) July 2016: S Gatt meets Leona.

(f) October 2016 to early 2017: S Gatt and Leona are in a relationship

(a connection that persisted to some degree until S Gatt's death).

(g) 23 April 2017: the power is cut off at the Lambeth St premises.

(h) 10 August 2017: The accused attends the Lambeth St premises with Justin Gabriele and Natalie Dibnah and points out the body in the bathroom. I will refer to this evidence as 'the August revelation visit'. At some time during August, but after 10 August 2017, the accused attends with Dimitrios Andrianakis and Leona. Neighbours also say they saw the accused attend the Lambeth St premises in September and October 2017.

3 The Crown rely on a number of items of evidence that are currently in dispute between the parties. The Defence complain that these items are inadmissible or partly inadmissible. I will refer to these as 'the disputed letters/notes'.

4 The disputed letters/notes include various dated and undated letters and notes allegedly written by the accused. They derive from, firstly, letters provided by S Gatt to F/C Taylor at the time of her complaint on 19 December 2015; secondly, letters/notes seized on 4 January 2018 during the execution of warrants at the Lambeth St address; and thirdly, letters/notes seized by police during the execution of warrants on 4 January 2018 at the Mountfield St premises.[2]

5 The only disputed letter not alleged to have been written by the accused is the letter addressed to the accused in Appendix M, described in the table at paragraph 8.

6 There are five categories of letters/notes allegedly written by the accused:

(a) Letters/notes provided by S Gatt to F/C Taylor on 19 December 2015;

(b) Letters/notes found at the Mountfield St premises on 4 January 2018;

(c) Letters/notes found at the Lambeth St premises on 4 January 2018 and either undated or alleged to have been written before S Gatt's putative date of death;

(d) Letters/notes found at the Lambeth St premises on 4 January 2018 and alleged to have been written after S Gatt died, but before the August revelation visit;

(e) Letters/notes found at the Lambeth St premises on 4 January 2018 and alleged to have been written after the August revelation visit.

7 The following table sets out a brief description of the disputed letters/notes. Those which are no longer in dispute, or are only partly in dispute, have been italicised.

8 Whilst the Defence in oral argument referred to these as appendices, the Crown referred to them by 'tab numbers', citing sections of a tabbed hardcopy folder provided to the Court:

Letters provided by S Gatt to First Constable Taylor on 19 December 2015

Four letters provided by S Gatt to F/C Taylor on 19 December 2015. The letters were in an envelope postmarked 14 December 2015 and were dated 4, 8, 12 and 13 December 2015.

Letters and notes found at the Mountfield St premises on 4 January 2018

Part 1: One page of floral notebook located at Mountfield St premises on 4 January 2018, dated 10 March 2016.

Part 2: Undated note located at Mountfield St premises.

Part 3: Note located at Mountfield St premises dated 22 September 2017.

Undated note written in a spiral notebook located at Mountfield St premises on 4 January 2018.

Three letters, two dated (13 and 14 June 2017) and one undated, found in an envelope at Mountfield St premises on 4 January 2018.

Birthday Card Located at Mountfield St premises on 4 January 2018, dated 26 July 2017.

Notebook note dated 24 December 2017, found at Mountfield St premises on 4 January 2018.

Letters found at the Lambeth St premises on 4 January 2018

A series of undated letters found at Lambeth St premises in a four-drawer dresser, postmarked 7 September 2016.

Four letters found at Lambeth St premises in a 4 drawer dresser, post marked 23 September 2016. Two are dated, the first on 21 August 2016 and the second on 17 September 2016. Two letters are undated. One is addressed to 'Andy' and signed 'S.J.' and the other addressed to Sarah Jane and is signed 'Andy'.

Undated letters located at Lambeth St premises in four-drawer dresser in the living room.

Small undated and unsigned handwritten note located at Lambeth St premises in the kitchen.

Large undated and unsigned hand written note located in the Lambeth St premises kitchen.

Undated letter located at Lambeth St premises in S Gatt's bedroom cupboard.

Series of documents located at Lambeth St premises in the kitchen drawer.[4]

Letters found at the Lambeth St premises on 4 January 2018 and alleged to have been written after S Gatt died, but before August 2017 (when the accused attended Lambeth Street in company with others)

Letter to accused postmarked 26 April 2017 regarding cutting off the gas and power, located on the Lambeth St premises kitchen table amongst other items. Envelope torn and open, and contains two notes.[5]

Letter to accused dated 19 June 2017 (reminder of appointment at Endocrinology clinic on 12 July 2017) located at Lambeth St premises on the table.

Letters found at the Lambeth St premises on 4 January 2018 and alleged to have been written after August 2017 (when the accused attended Lambeth Street in company with others)

Letter written in a diary on day 25 May 2013, postmarked 15 September 2017, located at Lambeth St premises in the letterbox.

9 The Crown indicated that they would not seek to rely on the documents in Appendix C, being a series of documents located in the kitchen drawer at the Lambeth St premises. In the written reply to submissions made in relation to relationship evidence,[6] the Defence indicated that they do not object to the admission of Appendix H,[7] being an entry on 16 July 2015 in a 'Student Diary', which narrates an incident involving intruders at the Lambeth St premises. The Defence concedes the admissibility of part of Appendix D,[8] which is a letter allegedly written by the accused that contains reference to the power being cut off.

10 The disputed letters/notes are relied upon by the Crown as evidence of relationship, state of mind and motive, and as being relevant to their case that the accused was the killer. Broadly, the Crown rely on the letters and notes as evidence of:

(a) The intensity of the accused's feelings for S Gatt over a lengthy period of time, between 2014 and her putative date of death in April 2017;

(b) The persistence of those feelings for S Gatt regardless of whether a relationship with him was welcomed by her at the time;

(c) The tumultuous and 'on and off' nature of the accused's relationship with S Gatt;

(d) S Gatt's fear of the accused from time to time (particularly in the Taylor letters);

(e) The accused's jealousy and anger over:

(i) S Gatt's relationship with Leona, and his attitude that she is in a 'lesbian relationship' with Leona;

(ii) His perception of S Gatt's interest in other men; and

(iii) The accused's own feelings of sexual inadequacy;

(f) The accused's alleged manipulation of S Gatt to maintain their relationship, evident in his assertions that he had cancer, assertions that he needed to keep her safe (including reference to having secured her house), references to Africans on the roof and in the trees, and reference to the accused supplying S Gatt with drugs;

(g) Incriminating conduct, particularly the letter to S Gatt postmarked after she had died, where it is alleged that the accused sent the letter as a ruse to imply he thought S Gatt was still alive;

(h) Admissions that provide detailed information about the positioning of the body in the bathtub (including ruminations about whether the body was S Gatt or not), and about the crime scene generally (including information allegedly written earlier in time than the police discovering the body); and

(i) The accused man's state of mind about S Gatt (including about her absence or death), which the Crown say form a kind of rumination or soliloquy, including:

(i) Letters/notes written by the accused to S Gatt after the August revelation visit to the Lambeth St premises; and

(ii) Letters written by the accused, in the voice of both S Gatt and the accused;

11 Regarding the admissibility of the above categories of material, the Crown rely on the following categories:

(a) Circumstantial evidence, including about the accused's state of knowledge about S Gatt and his related conduct at relevant times;

(b) Relationship evidence and the accused's state of mind, as it relates to motive for the accused to kill S Gatt;

(c) Incriminating conduct; and

(d) Admissions.

12 In response to various complaints made by the Defence, the Crown submitted that the material was not 'voluminous', and noted that there are 15 individual items[9] relied upon. It was further submitted by the Crown that the letters are easy to follow.

13 The Defence made the general submissions that the letters/notes were voluminous and scandalous. It was submitted that the letters/notes, which are handwritten and sometimes run for pages, are often rambling, make little sense, and are peppered with matters that are not relevant, are unfairly prejudicial or are scandalous in nature.

14 The Defence took various objections, which are set out in the forthcoming paragraphs, as well as a general objection under ss 135 or 137 of the EA. I note that at various points during oral argument, the Crown said that possible prejudice could be remedied by directions. I agree that appropriate directions will need to be given in relation to the letters/notes, and I have taken this into account in weighing the considerations under ss 135 and 137.

15 As can be seen in the list above, the Crown submitted the letters/notes are relevant as contextual evidence of the relationship, including the accused's intense feelings for S Gatt, his feelings of jealousy, particularly over S Gatt's relationship with Leona (as well as his jealousy arising from his perceptions of S Gatt's relationships with men) and concerns about being unable to sexually satisfy S Gatt. The Crown emphasised the intensity and persistence of those feelings over time. The Crown submitted that it would create a distorted picture if the jury were only presented with the negative aspects of S Gatt's relationship with Leona, and the negative aspects of her relationship with the accused were kept from the jury. Further, the letters/notes have a longitudinal relevance, and demonstrate an intense passion over a long period of time, showing continuation of those emotions from the time of the earlier hearsay incidents, up to and following S Gatt's death (thereby connecting the earlier conduct with the later conduct). The evidence was alleged to disclose and an escalation of those feelings around the time of S Gatt's death.

16 The Defence submitted, in relation to the majority of the letters/notes, that they do not disclose any violence (for example, threats of actual violence or reference to past violence committed by the accused against S Gatt) and were therefore not relevant for the purposes identified by the Crown. It appears that the Defence were drawing on the Crown's Tendency Notice (which the Crown indicated they had abandoned at the commencement of the preliminary argument) in asserting that the Crown relied upon the letters as evidence of a violent relationship. It became evident during the oral argument that the Crown relied on relationship evidence as evidence not simply of a violent and controlling relationship, but also as wider evidence about the accused man's attitudes, feeling and actions regarding S Gatt already set out in this ruling.[10]

Proximity: Undated letters and letters not 'sufficiently proximate' to S Gatt's death

17 The Crown submitted that, while there are a number of letters/notes that are undated, a reasonable date range could be inferred for many of them.

18 Further, with respect to those letters/notes that could not be dated at all, these documents still portray a consistent theme of the accused being obsessed with S Gatt, possessive of her, unable to let go of their relationship, and jealous of her relationships with others. Regardless of whether the letters/notes are dated or undated, the consistency of those themes throughout their relationship make them relevant and admissible.

19 The Defence submitted that where letters were not dated, they could not be used to establish the nature of the accused man's relationship or state of mind at the relevant time, proximate to her death_._ For the letters to be admitted for these purposes, it was submitted they needed to be shown to be sufficiently proximate to the alleged offending.

20 It was further submitted that letters that were not dated or delivered to the Lambeth St premises have even less probative value and that many of these were long and rambling documents.

21 The Crown argued that regardless of where the letters/notes were found, if they are found to have been authored by the accused, they will be potentially relevant for the reasons outlined above. The Crown argued that some of the letters are in the nature of soliloquising or ruminating about his feelings for S Gatt. The case o_f R v McDonald[11]_ was referred to by the Crown in this regard.

22 The Defence submitted that in relation to the letters located at the Mountfield St premises, regardless of whether those letters were dated or not, they are not relevant evidence of relationship because they were never sent or left at S Gatt's house. If they were never received by her, they could not have impacted the relationship between S Gatt and the accused.[12] The Defence arguments are discussed further below, by reference to as appendix R, S, T, U and P.

Scandalous or prejudicial material[13]

Reference to the sexual relationship between S Gatt and Mr Baker

23 In relation to references that were of a sexualised nature, the Crown submitted that:

(a) References by the accused to 'perceived sexual inadequacies' are a central part of the Crown case that the accused was motivated by jealousy of Leona and others, which was central to his anger towards S Gatt. The Crown disputed that the material was scandalous, and said it was certainly no more scandalous than the material admitted in DPP v Paulino (Ruling No 1)[14] as evidence of the relationship between the deceased and the accused (which in that case included sex tapes).

(b) With respect to the submission made by the Defence that the current case does not concern anything of a sexual nature, the Crown submitted that while the accused is not charged with a sexual offence, there is evidence that the person who murdered S Gatt humiliated her in a sexual way, evinced by the positioning of her body, and items of clothing and objects on her body.[15]

(c) The Crown repeatedly emphasised reliance on expressions by the accused of his deep feelings for S Gatt, his possessiveness over her and his jealousy of S Gatt's relationship with Leona and others. These matters are submitted to be relevant as relationship, context, state of mind and motive evidence.

24 The Defence provided a number of examples of parts of letters/notes that they say are scandalous and prejudicial, including:

(a) References to the size of the accused's penis, as well as the penises of other people, and the sex lives of the accused and S Gatt. It was submitted that there is no allegation that the offending is sexually motivated, and in those circumstances, the material is gratuitous. In particular, letters/notes that refer to the size of the accused's penis may give the impression that accused has some kind sexual fixation or jealousy, when in actual fact the reference relates to a medical condition that the accused has had for some time.[16] Accordingly, the prejudice of those parts of the letters outweighs any probative value.

(b) With respect to suggestions in the letters that other people had raped S Gatt, it was submitted that this is not relevant to the relationship between S Gatt and the accused.

(c) It was submitted that there is a lack of clarity about whether the Crown alleges that the offending is motivated by animus towards Leona or other people, and as such the Defence queried the relevance of expressions of animus towards other men.

(d) The Defence objected to aspects of the letters/notes that refer to the accused having cancer, arguing that such references should be excluded on the basis that they are not relevant to proving that the accused sought to control S Gatt. It was submitted that if the Crown asserted that the claims about his health were lies to control S Gatt, this would need to be established on the evidence, which could lead to a 'trial within a trial.' It was also submitted that there is no evidence these assertions had any effect on his relationship with S Gatt.

25 Regarding references by the accused to 'black and African men', the Crown submitted that:

(a) The Defence complaint in relation to these references is inconsistent because they do not object to evidence of reports by S Gatt to police that 'she was afraid of black men on the roof' or that she had 'previously been raped by a black man who had been on the roof' in Appendix H.

(b) To exclude the evidence of the accused discussing those matters in letters/notes would cause the jury to view S Gatt's representations in a vacuum.

(c) The references are relevant to the Crown case that the accused was manipulating S Gatt by making her feel unsafe. The fact that the accused has written notes suggesting she should be afraid of black men, and that he will protect her (and that he has undertaken steps to that end, including nailing shut a door) is 'powerful evidence' to support the suggestion that the accused was manipulating S Gatt prior to her death by feeding her fears and positioning himself as her protector.

26 The Defence objected to references to 'black and African men' in the letters/notes. It was submitted that it was too great a stretch to suggest that by writing about certain matters that related to fears held by S Gatt (whom the Defence submitted has a history of making false complaints and paranoia), the accused intended to manipulate her by stoking her paranoia.

27 With respect to offensive language used by the accused, particularly racist language about 'black and African men', the Crown's position is that this is simply the language used by the accused and that there is nothing prejudicial about it.

28 The Defence submitted that that the language used in relation to 'black and African men' was at times inflammatory and offensive, and should be excluded on the basis that its inclusion would be gratuitous and prejudicial.

Five categories of letters allegedly written by the accused

Letters provided by S Gatt to F/C Taylor on 19 December 2015

29 The Taylor letters include four letters provided by S Gatt to F/C Taylor upon making her statement on 19 December 2015 about an alleged assault committed by the accused against S Gatt ('Taylor incident'). The letters were in an envelope postmarked 14 December 2015 and were dated 4, 8, 12 and 13 December 2015.

30 The Crown submitted that the Taylor letters are evidence of:

(a) A high degree of intensity and passion felt by the accused towards S Gatt over a long period of time;

(b) The 'depth of love', passion and intensity of the accused towards S Gatt, his desire to be (and anger at not being) in a relationship with her;

(c) The way in which the accused oscillated between expressions of love, jealousy, resentment and anger;

(d) Financial or controlling behaviour;[18] and

(e) S Gatt's fear of the accused, as well as being context to the Taylor incident as a whole.

31 It was further submitted that the letters provide context to subsequent conduct of the accused. The Crown emphasised the importance of the proximity of these letters to the putative date of S Gatt's death, particularly in relation to his jealousy over S Gatt's relationship with Leona, including:

(a) Certain remarks made by the accused in his Record of Interview; and

(b) Subsequent or other letters written by the accused. The Crown made the point that the letters provided following the Taylor incident have a strong similarity to other letters/notes written by the accused.

32 The Defence submitted that these letters are not evidence of a violent relationship at the relevant time. They submitted that the letters:

(a) are not proximate to the putative time of death and are therefore not relevant as relationship evidence;

(b) are not probative of a violent relationship, as while there are references to the accused assaulting other people, the letters do not disclose a threat by the accused that he would assault S Gatt; and

(c) contain the kind of scandalous or irrelevant material such as references to rape, the accused being in jail, and matters of a sexual nature, rather than anything of a violent nature.

33 I am of the view that the letters in Appendix AC are relevant and admissible.[19] I consider that the letters:

(a) interconnect with the representations S Gatt made in relation to the Taylor incident, and that providing them to police is evidence of her concerns about the accused while she was alive;

(b) are relevant as evidence of the relationship between the accused and S Gatt. The letters span a period from December 2015 to 2017 (it should be noted there is also evidence of possessive behaviour between December 2014 and December 2015 in the hearsay representation). The letters are remarkably similar to the letters sent by the accused during 2016 and 2017 in the way in which the accused oscillates between anger, jealousy, and expressions of love, as well as in the references to sexually satisfying S Gatt and keeping her safe. This shows a continuity in the nature and intensity of the accused's feelings over a period of time. This continuity can be contrasted against Azizi v The Queen,[20] where it was stated that representations of domestic violence that occurred eight years before the deceased's death would not be admissible, in part because:

[T]here was no admissible evidence as to the relationship between that time and the period immediately prior to her death, the danger that the jury would speculate that the relationship between the deceased and the applicant had been continuously violent outweighed whatever relevance conduct many years before the death of the deceased may have had.[21]

34 There is no such danger here, where individual incidents are temporally connected.[22] There is a longitudinal relevance in the continuous, consistent and repeated expression of the intense feelings held by the accused towards S Gatt, as well as his desire to express those feelings in letters/notes to S Gatt.

35 I accept the Crown's submission that the letters provide important context, and should be provided to the jury to allow the jury to assess the evidence in its true and realistic context[23] and to avoid the risk of viewing the accused's relationship with S Gatt in a vacuum.

36 The Crown have indicated that certain parts of the letters, which may be considered prejudicial, can be redacted. I do not consider that the remaining parts of the letters contain material that is scandalous or prejudicial to the accused. The accused's sexual references are an aspect of his relationship with S Gatt, and are interwoven with his feelings of sexual inadequacy, jealousy, love, his desire to be with her, and his obsession with her. More broadly, as noted above I consider that the letters have relevance in their connection to the Taylor incident, as well as longitudinal relevance as relationship and state of mind evidence. I do not consider that the probative value of the letters is outweighed by a danger of unfair prejudice to the accused.

Letters/notes found at the Mountfield St premises on 4 January 2018

37 In their written submissions in reply to the Crown's oral arguments, the Defence submitted that:

[W]ith respect to material found at Mountfield Street prior to police finding Ms Gatt's body, the Defence concedes that such material may be capable of being evidence of the Accused's state of mind, subject to clear articulation of the particular documents and how they are relied upon.[24]

38 The parameters of this concession are somewhat unclear. Accordingly, I will deal with the issues raised by the parties in their oral submissions in full. The Defence maintained their submission that the material was inflammatory and prejudicial.

39 Throughout the preliminary argument on relationship evidence, the parties put forward arguments about incriminating conduct. This issue is dealt with in my ruling on that topic.[25]

40 Appendix R includes three letters that were located by police at the Mountfield St premises on 4 January 2018: Part 1 (dated 10 March 2016); Part 2 (undated); Part 3 (22 September 2017). The Mountfield St premises is the home of the accused's friend Justin Gabriele, where the accused sometimes lived (including for a period of time after S Gatt's putative date of death). Broadly, the Defence submitted that the letters in Appendix R contain inappropriate, scandalous, irrelevant, and prejudicial material.

Part 1: One page of floral notebook located at the Mountfield St premises on 4 January 2018, dated 10 March 2016

41 The Crown rely on this note as evidence of the accused's perception of his relationship with S Gatt, and his belief that he was her protector, which lead him to engage in controlling and possessive behaviour towards her.

42 The Defence made oral submissions that the Crown's reliance on relationship evidence purported to be in aid of proof of a violent relationship, whereas this letter does not imply violence and is therefore not relevant. They further submitted that it contains material that is scandalous and prejudicial.

Part 2: Undated note located at the Mountfield St premises

43 The Crown submitted that while this note is undated, it is from the same notebook as Parts 1 and 3, where the accused has recorded his thoughts and feelings about S Gatt. The Crown accepted that the letter could not be given a proximate date, noting that it appears at the back of the notebook, with a number of pages between the undated letter and the letter dated 22 September 2017.[27] While the note cannot be precisely dated, it follows a similar theme to other letters, being focused on his 'inability to satisfy' S Gatt and be good enough for her, that they have been arguing, and his love for her. It was submitted by the Crown that the letter is probative as evidence of the accused's intense feelings for S Gatt.

44 The Defence noted that the letter is undated and submitted that it:

(a) does not disclose a violent relationship; and

(b) includes scandalous and prejudicial material, including that the accused was suffering from cancer, how he would protect Ms Gatt from others and keep her safe from those trying to hurt her, apologising for his behaviour and referring to her getting someone new in her life while he was in gaol - 'Maybe a better lover with a better dick.' The Defence submitted that these extracts are put forward by the Crown 'without any proper analysis and without proper identification as to how they've been used.'[28]

Part 3: Note located at the Mountfield St premises dated 22 September 2017

(a) Relationship evidence: in particular, the strong and mixed feelings the accused had towards S Gatt, including anger and jealousy of S Gatt's relationship with Leona;

(b) Admissions; and

(c) Incriminating conduct.

46 During oral argument, it was raised with the Crown that there may be some uncertainty about whether all pages attributed to this note were written at the same time, and whether they in fact form part of the same entry. In response, the Crown maintained that the note was continuous and included all '9 pages'; it was submitted that, even if the note was not continuous and some parts were written at different times, it is not of any great moment exactly when it was written and if it consisted of several entries, because it is sufficiently proximate (in terms of when they were found and when the jury could infer they were created) and relevant to meet the test for admissibility. Second, it was submitted that there are aspects to the letter that suggest it was written after S Gatt was killed but before police attended and discovered the body. There are also three pages that follow the ninth page where the accused has signed and dated the letter. The Crown submitted that these pages immediately flow on from the ninth page of the letter dated 22 September 2017.[29]

47 The Defence submitted that although the Crown previously relied upon this material as tendency evidence, they have not properly articulated their reliance on it now as relationship evidence.

Part 1: One page of floral notebook located at the Mountfield St premises on 4 January 2018, dated 10 March 2016.

48 While the letter does not contain evidence of violence by the accused towards S Gatt, relationship evidence is not restricted to categories of evidence that disclose actual or threatened violence. I accept the Crown's submissions that the letters are relevant as evidence on the accused's ongoing attitude and state of mind towards or about S Gatt, including his belief that he was her protector and his possessive attitude about her. It is relevant to whether the accused had a motive to kill S Gatt, and the question of whether he did kill her.[30]

(a) I do not consider that the references to cancer give rise to any significant prejudice. Further, I do not accept the submission by the Defence that the admission of these parts would give rise to a 'trial within a trial' centred on the question of the accused's heath. Whether or not the assertions by the accused about having cancer are true, the inference is open that they are expressed to elicit some sympathy from S Gatt, in the context of his strong desire to be in a relationship with her and are linked to the accused wanting to maintain a connection to S Gatt and, at times, draw her back into the relationship.

(b) Regarding references to the accused's feelings of sexual inadequacy, I accept the submissions of the Crown that these feelings interwoven with the accused's feelings of jealousy, which are a central part of the Crown case. I also accept that there were sexualised aspects to the position of S Gatt's body in the bath.

50 I do consider that the part of the letter that reads, 'I've put a hit on her head'[31] (referring to Leona) gives rise to a risk of unfair prejudice to the accused. This part has probative value in demonstrating the depth of the accused's resentment towards Leona not long after S Gatt's death. However, it may be seen as an admission by the accused to a proposed unlawful killing of Leona, involving a risk that the jury might speculate about the accused's willingness to engage in such acts. Even with the benefit of remedial directions, where the accused has been charged with murder, there is a grave risk of unfair prejudice to the accused, which outweighs the probative value of the words.

51 I am not of the view that the remaining parts of the letters contain scandalous or prejudicial material, and I do not consider that the probative value of the letters is outweighed by a danger of unfair prejudice to the accused.

Part 2: Undated note located at the Mountfield St premises

52 As accepted by the Crown, this letter cannot be given a proximate date. There are some thematic similarities between the undated letter and the dated letters, evident in references to the accused's love for S Gatt, expressions of jealousy, and references to keeping S Gatt safe and feelings of sexual inadequacy. However, these are themes that appear across most of the letters written by the accused, and accordingly do not assist in identifying a specific date range beyond being after the commencement of their relationship in 2014 and before the letters were discovered by police in 2018.[32] Notwithstanding the inability to date the letters, I do accept that the letter has some thematic relevance.

53 In oral submissions on Appendix R, Part 2, the Defence referred to extracts that actually relate to Appendix L and submitted that the reference to the accused having cancer was scandalous and prejudicial. There are no references to cancer in this letter.

54 However, while the letter contains some thematically relevant material and some similarities to the other two letters, as discussed above, there is nothing in the contents of the letter that allows for a reasonable inference to be drawn as to the date of its creation. The fact that the letter cannot be dated lessens its probative value, and increases the danger of prejudice to the accused. In these circumstances, I am satisfied that any probative value is outweighed by the danger of unfair prejudice to the accused. The undated letter should not be admitted.

Part 3: Note located at the Mountfield St premises dated 22 September 2017

55 I accept the Crown's submission that even if the pages preceding the final page dated 22 September 2017 are not entirely continuous (though it is probable they are), the contents of the letter indicate that it was written between April 2017 to September 2017. I am also of the view that two pages following the ninth page[33] are part of the letter dated 22 September 2017. The words at the bottom of the ninth page ('And you will be happy its working again') appear to flow onto the next page ('and my dick not broken it's big like the first time we made love with you happy now???...') and are written in the same section of the diary, on either side of which are blank pages. I am not satisfied that the illustration[34] is part of the same letter, as it appears later in the diary, and there are a number of blank pages between it and the letter dated 22 September 2017.

56 The letter is relevant for the following purposes:

(a) It is evidence of the intensity of the accused's feelings for S Gatt following the August revelation visit, and includes references to his feelings of sexual inadequacy and hostility towards Leona.

(b) There is circumstantial relevance to the letter, which contains descriptions of S Gatt's body in the bath.[35] It appears that it was written during a period of time when the accused told others S Gatt was in a psychiatric hospital. This is also potentially relevant to the accused's credibility in terms of statements he made in his records of interview and to other witnesses in the trial.

(c) The letter contains admissions which show the accused's detailed knowledge about the positioning and condition of the corpse and the bathroom in which it was located. While it is true that these observations occurred after the August revelation visit, they are also observations made of S Gatt's body many months before her decomposed body was discovered by police, and are relevant as observations of the corpse and the crime scene.

57 The material in the letter is highly probative. It includes a detailed account of the crime scene months before it was discovered by police, and is evidence of the accused's state of mind following S Gatt's putative date of death, including the continuation of his intense feelings for S Gatt and hostility towards Leona. The Crown have indicated that a reference in the letter to having a 'baby girl' with S Gatt can be deleted, and I do not consider any of the remaining material to be any scandalous or prejudicial material in the letter. The letter dated 22 September 2017 (from pages 768-773 of the depositions) is admissible.

58 As already indicated, I do not consider the illustration on page 774 of the depositions to form part of the letter dated 22 September 2017. The illustration cannot be dated, and while it contains some thematically relevant material, should be excluded under s 137 on the basis that any probative value is outweighed by a danger of unfair prejudice to the accused.

Appendix S: Undated note written in a spiral notebook located at the Mountfield St premises on 4 January 2018[36]

59 In oral submissions, the Crown indicated they were unable to date the letter, but submitted that it did not matter when the letter was written and that the key point is that it demonstrates the 'level of passion between the accused and Ms Gatt'.

60 The Defence took issue with the reference to the 'Turk' raping S Gatt, being a reference to a previous relationship S Gatt was in around 2015, submitting that it is 'quite remote from the alleged offending' in this matter. The Defence submitted that the letter does not disclose any evidence of a violent or controlling relationship. As the letter was never sent to S Gatt, it has not had any intended impact of S Gatt. Accordingly, the letter is of low probative value, while containing highly prejudicial material.

61 The letter contains some relevant relationship evidence, including the accused's concerns about sexual inadequacy and an intensity of feeling. I cannot be satisfied of a particular date or date range in which the letter was written, and the Crown did not put forward submissions as to a proximate date. The letter does contain reference to the accused having been with S Gatt for ten-and-a-half years, however this is difficult to align with the assertion that their relationship commenced in 2014. As such, it is of limited assistance.

62 While the letter contains some thematically relevant relationship evidence, it is a brief note and is lacking surrounding context. Given its brevity, the inability to date it, and the lack of contextual information, I consider its probative value to be low, and outweighed by the danger of unfair prejudice to the accused.

Appendix T: Three letters, two dated (13 and 14 June 2017) and one undated, found in an envelope at the Mountfield St premises on 4 January 2018[37]

63 With respect to the undated letter, the Crown points out that the letter refers to Leona (I infer that the Crown are referring to the sentences 'I'm hoping we can be together as one without her in our lives' and 'Is it funny that chick everybody seems to die around her'), and it can therefore be inferred that the letter was written after S Gatt met Leona. It was suggested by the Crown that the reference to people dying around 'that chick' and the accused showering with S Gatt further suggests the letter was written after her death. The number ending 655 is recorded on the envelope and also at the top of the first page of the first undated letter, indicating it was written sometime after 30 August 2016.

64 Despite one letter being undated, each of the letters contains very similar content and helps to locate them as having been produced around the same period. For example, the accused says in each of the letters that he has been missing S Gatt and has lost feeling down his left side, and refers to his concerns about Leona harming S Gatt.

65 The Crown submitted that the writing of these letters was part of a pretence by the accused that S Gatt was still alive, which was maintained in the letters and in the fact of being seen by Justin Gabriel to write to S Gatt. More broadly, the Crown submitted that these letters are relied upon as ruminations going towards the accused's state of mind, similar to those admitted in McDonald.[38] The Crown submitted that the reference to S Gatt being in the shower was relevant as evidence of the accused's jealousy over S Gatt's relationship with Leona. It was pointed out that the letters are circumstantially relevant because they do not imply a belief by the accused of S Gatt being in care, despite the accused telling others at that time that S Gatt was in psychiatric care.[39]

(a) do not disclose a violent relationship;

(b) cannot be relationship evidence because they were never sent to S Gatt and could therefore not have impacted their relationship. The fact these letters were written after S Gatt's death means they are not relevant as relationship evidence; and

(c) include various ruminations by the accused being a tattooist and working in an abattoir, which are matters of low probative value.

67 With respect to the undated letter, I accept that a proximate date can be reasonably inferred for the reasons set out by the Crown. In all three letters, the accused refers to missing S Gatt, waiting to see her, and losing feeling on his left side. The reference to losing feeling on his left side is particularly important as a very specific similarity that places the undated letter in close proximity to the letters dated 13 and 14 June 2017. The letters are relevant as relationship evidence (including the accused's feelings of jealousy) and evidence of the accused's state of mind at a point in time that, on the Crown case, was after S Gatt's putative date of death. The letters show that the accused man's obsession with S Gatt had not dissipated, and that he remained angry about her relationship with Leona. The letter dated 13 June 2017 also has circumstantial relevance to the accused's state of knowledge as to S Gatt's situation at the time of their writing (for example, references to not having seen S Gatt for eight weeks).

68 I consider the letters to be probative of the matters discussed above, and that they do not contain material that gives rise to a danger of unfair prejudice to the accused.

Appendix U: Birthday Card Located at the Mountfield St premises on 4 January 2018 dated 26 July 2017.[40]

69 The Crown rely on the card, which is dated 26 July 2017, as relationship evidence and evidence of incriminating conduct. The Crown submitted that the significance of this letter is heightened when taken alongside the fact that the accused did not contact S Gatt on her actual birthday (or on his 50th birthday), but rather wrote a letter some two months after her birthday. The letter contains professions or love, expressions of anger, statements that the accused has tried to find S Gatt (where, the Crown say, there is no evidence of his attempts to locate her) and suggestions that Leona is the one who threatened S Gatt's life in some way.

70 The Defence pointed out that 26 July 2017 is not S Gatt's birthday. They submitted that the letter does not disclose any violence, and again highlight that it was never sent. Without drawing out any specific examples, the Defence submitted that the card contains prejudicial material that should not be admitted.

71 The inference is open that the document was written on or around the date on the card. The letter shows the accused maintaining strong and obsessive feelings about S Gatt, and strong animosity towards Leona. The letter also has some circumstantial relevance regarding claims by the accused that he was trying to find her at that time, which is a matter potentially going to his credit. Whilst the document was not delivered to anyone, the ruminations are not dissimilar to those discussed in McDonald[41] and are relevant as evidence of the accused's knowledge and state of mind.

72 I consider that the card contains material that is probative for the reasons discussed above, and does not contain material that gives rise to a danger of unfair prejudice to the accused.

Appendix P: Notebook note dated 24 December 2017, found at the Mountfield St premises on 4 January 2018[42]

73 The parties focused their arguments on incriminating conduct, which will be dealt with in the ruling on that topic. However, bearing in mind the overarching arguments of both parties, I consider that if this evidence is not relevant as evidence of incriminating conduct, it will be admissible as evidence of the accused's knowledge and state of mind, and is also relevant to his credibility. The note states that S Gatt contacted the accused and asked him for help, and includes reference to his feelings about S Gatt. It is significant that the note is dated 24 December 2017, months after S Gatt's putative date of death and the August revelation visit.

Letters/notes found at the Lambeth St premises on 4 January 2018 and either undated or alleged to have been written before S Gatt's putative date of death

Appendix J: a series of undated letters found at the Lambeth St premises in a four drawer dresser, in an envelope postmarked 7 September 2016[43]

74 The Crown submitted that while the individual letters are not dated, the envelope in which they were found is postmarked 7 September 2016 and the matters described in those letters are consistent with them having been written around that time. An inference can reasonably be drawn that they were written shortly before S Gatt met Leona (the Crown noted that Leona is not mentioned in the letters). The Crown pointed to the reference to a phone number ending in 655, and noted that there is evidence that the phone was not connected until 30 August 2016. The Crown submitted that the letters demonstrate the accused's continuing desire to be with S Gatt, and his frustration at not being able to be in a relationship with her.

75 The Defence submitted that the letters do not demonstrate a violent relationship, but contain irrelevant and scandalous material, including reference to the sex lives of the accused and S Gatt.

76 I accept the Crown's submissions that the letters can be dated within a reasonable timeframe, being after the connection of the 655 number on 30 August 2016 and before S Gatt's involvement with Leona. While not determinative of the date range for when the letters were written, I consider that the postmark on the envelope in which the letters were found is another factor supporting the inference that the letters were written around September 2016.

77 The letters are relevant to the longitudinal nature of the accused's obsessive desire to be with S Gatt and his frustration at not being in a relationship with her.

78 The Crown have indicated that certain parts of the letter objected to by the Defence will be redacted. I do not consider that the remaining parts of the letters contain scandalous material. While there are references to the sex lives of the accused and S Gatt, these references are made within the context of the accused expressing his desires about their relationship. The letters are probative and do not contain material that gives rise to a danger of unfair prejudice to the accused.

Appendix K: Four letters found at the Lambeth St premises in a four drawer dresser in an envelope post marked 23 September 2016. Two are dated, the first on 21 August 2016 and the second on 17 September 2016. Two letters are undated. One is addressed to 'Andy' and signed 'S.J.' The other is addressed to Sarah Jane and is signed 'Andy'.[44]

79 Regarding the undated letters, the Crown pointed to the fact that two of the letters in the bundle are dated, and that the dates are proximate to the time the letters were sent. As such, an inference can be drawn that the undated letters were written around the same time. Regarding the contents of the letters, the Crown submitted that they are evidence of the accused's desire to be with S Gatt, and contain expressions of jealousy.

80 The Defence submitted that the letter dated 21 August 2016 includes a derogatory reference to black people being in the backyard and that the accused had nailed the door shut. The Crown submitted that any prejudice that may arise by reference to S Gatt sleeping with a 'black guy' or any colourful language could be remedied by appropriate directions, and that the material was not otherwise objectionable or salacious.

81 The Defence submitted that the letters do not disclose a violent relationship, but do contain irrelevant and scandalous material about S Gatt and the accused, someone sexually assaulting S Gatt, the accused having cancer, reference to the accused 'kneecapping some unknown third parties' and offensive reference to 'black and African men'.

82 With respect to the dated letters, I accept that they are relevant to the longitudinal nature of the accused's obsessive desire to be with S Gatt and his frustration at not being in a relationship with her. They contain expressions of love, feelings of sexual inadequacy, jealousy, and a desire to keep S Gatt safe.

83 Regarding the two undated letters between 'Sarah' and 'Andy',[45] the letters are relevant as relationship evidence. It is reasonable to infer that the letter addressed 'To my dearest Andy' and signed 'your partner and wife to be S.J.' was written by the accused around the same time as the other two letters. The two undated letters were found in the envelope postmarked 23 September 2016 with the dated letters. The letter addressed to 'Andy' begins 'As I sit on my bed at 10.45pm it's the 23/5/16', and is framed as though it is written by S Gatt while she was in psychiatric care in early 2016. The inference is reasonably open that both letters were written sometime between 23 May 2016 and 23 September 2016.

84 The letter signed 'S.J.' may represent an attempted narration of a previous letter written by S Gatt or things said by S Gatt, or an imagined letter where the accused adopts S Gatt's voice. The letter is similar to the dated letters in this appendix. All of the letters in this appendix have longitudinal relevance showing the accused's obsessive desire to be with S Gatt.

85 The letters include some references to the accused being in gaol and the loss of a previous pregnancy, which are matters the Crown has indicated they will redact.[46]

86 Regarding the dated letters, I am satisfied that the parts which refer to the accused purchasing drugs, and providing drugs to S Gatt, give rise to a danger of unfair prejudice to the accused which outweighs any probative value:

(a) Letter dated 21 August 2016: '[W]ould you like to meet on Monday can we please talk Im missing seeing you could we work this stuff out I'm happy to shout you a hit I get my Loan Monday' and 'I'm buying 8 ball of shard'. This part of the letter includes a suggestion that if S Gatt meets him, the accused will supply her with drugs. The prejudice arises from the inference that the accused is trafficking drugs to S Gatt, which is a possible uncharged criminal act. In those circumstances, I consider the probative value of the words marked in bold is outweighed by the danger of unfair prejudice to the accused.

(b) Letter dated 21 August 2016: 'Before you hear from someone else I put $1000 hit on your arm who got the balls cut out for me?' This part appears to be a reference to the accused providing S Gatt with drugs, though it is somewhat vague and unclear. I am of the view that the combination of the possible prejudice that arises from the suggestion that the accused is buying S Gatt drugs alongside the vagueness of the sentence (which may give rise to speculation) means the probative value, which in my view is minimal, is outweighed by danger of unfair prejudice to the accused.

87 I also accept that the reference to the accused kneecapping people ('I'm coming out to knee cap couple people'), as an expression of violence against some unknown people, gives rise to a danger of unfair prejudice to the accused that outweighs any probative value.

88 With respect to the remainder of the letters, I do not consider that the probative value is outweighed the danger of unfair any prejudice to the accused:

(a) Regarding the general references to 'black men' on the roof, I accept the Crown's submission that because the Defence have not objected to the narration of the incident where 'black men' were on the roof in Appendix H, there can be no prejudice arising from such reference in other letters. It would be somewhat artificial to exclude such references in some letters/notes, where they would be put before the jury in other letters/notes.

(b) Regarding the derogatory or 'colourful' language used by the accused, while the expression used by the accused is largely contextually relevant to how he frames himself as S Gatt's protector, redactions should made to remove the words 'black cunts' to avoid a danger of unfair prejudice to the accused. I otherwise accept the submission that any possible prejudice arising from the accused's use of 'colourful language' can be remedied by appropriate directions.

(c) While there are references to the sex lives of the accused and S Gatt (including his feelings of sexual inadequacy and jealousy of others), these references are made within the context of the accused expressing jealousy and his desires about their relationship.

(d) For the reasons already outlined, I accept the references to cancer have some probative value and do not consider that they give rise to any danger of unfair prejudice.

89 Regarding the undated letters, I am satisfied that those letters can be dated as having been written between 23 May 2016 to 23 September 2016. They are probative of the accused's ongoing passion for S Gatt and the depth of his feelings over a long period of time. I do not consider that they contain prejudicial material, and accordingly they are admissible.

Appendix L: undated letters located at the Lambeth St premises in four drawer dresser in the living room.[47]

90 The Crown submitted that the letters reveal the accused's desire to be with S Gatt, as well as his upset at not being in a relationship with her. In relation to any prejudice said to arise through reference to drugs, it was submitted that no prejudice can arise from this when there is consistent evidence of drug use by the accused and S Gatt. While the letters are undated, the Crown submitted that their content is consistent with having been written after the accused was released from custody in 2016, but before S Gatt became involved with Leona, and that the reference to the number ending 655 suggests they were written after 30 August 2016.

91 The Defence again submitted that there is no evidence in the letters of a violent relationship, but that they contain scandalous and irrelevant material.

92 I accept the Crown's submissions that the letters can be dated within a reasonable timeframe, certainly after the connection of the 655 number on 30 August 2016 and likely before S Gatt's involvement with Leona.

93 The letters are relevant to the longitudinal nature of the accused's obsessive desire to be with S Gatt, his feelings of jealousy, his perceived role as her protector, and his frustration at not being in a relationship with her at that time.

94 The Crown have indicated that the references to the accused being in prison and the Bandidos can be redacted.

95 Regarding the parts that read: 'I'm buying a gram of shard Friday and I want us to sit down and talk and use shard';[48] 'please text me Friday shout you a couple of shots as friends and talk';[49] 'I will use shard with you'[50] and 'I get my loan next Monday could we do something together babes or do I 3.5 shard knock myself on it'.[51] While I accept that there is minimal prejudice in asserting that the accused and S Gatt used drugs (as the jury will be aware of that fact), as explained above, I consider that significant prejudice does arise from matters which could be used to infer that the accused was trafficking drugs to S Gatt (being the parts highlighted in bold above), and that any probative value of these parts is outweighed by the danger of prejudice to the accused.

96 Regarding the brief note on page 732 of the depositions, 'You said to me I've lost you for good ... Sez if you could text me today or tomorrow I'm happy to meet you somewhere and shout you shard or do you want H', it is unclear if this note forms part of the letter of the preceding pages,[52] and as such it is difficult to date. It is also very brief, and contains material that is, for the reasons discussed above, prejudicial to the accused. I consider that any probative value in this brief note is outweighed by a danger of unfair prejudice to the accused.

97 I do not consider that any prejudice arises from the remainder of the letters. While there are references to the sex lives of the accused and S Gatt, these are made within the context of the accused expressing feelings of inadequacy, jealousy, and his desires about their relationship. The probative value is not outweighed by the danger of unfair prejudice, and accordingly they should be admitted.

Appendix O: Small undated and unsigned hand written note located at the Lambeth St premises in the kitchen.[53]

98 The Crown submitted that the letter was clearly written after S Gatt commenced a relationship with Leona, and is an expression of the accused's jealousy.

99 The Defence submitted that while it was suggested the letter refers to Leona, it is undated and does not disclose any violence.

100 While I accept the letter has some thematic relevance, as evidence of the accused's jealousy, the paper on which the note has been written has been torn, and it appears that it may not be a whole or complete note. The note is brief, and little contextual information is provided. Accordingly, I consider it of limited probative value, which is outweighed the danger of unfair prejudice to the accused.

Appendix N: Large undated and unsigned hand written note located in the Lambeth St premises kitchen .[54]

101 The Crown submitted that while there are aspects to the letter that may be difficult to follow, it is clearly a love letter to S Gatt, and contains the words 'Because you've been with her, you are hers now.' It is the position of the Crown that the letter was clearly written after S Gatt entered into a relationship with Leona. It is submitted to be highly probative of the possessive nature in which the accused viewed his relationship with S Gatt, as well as the jealousy and anger the accused felt.

102 The Defence submitted the note is undated and does not disclose any violence, is a 'disjointed spiel', and is difficult to follow.

103 While the letter is undated, I accept that it was clearly written after S Gatt entered a relationship with Leona, and is proximate to the putative date of S Gatt's death. The image of the broken heart is suggestive of the accused's emotional distress at this new relationship. I also accept that the letter is probative of accused's possessiveness, jealousy and anger.

104 While the letter is somewhat fragmented in style, it is not so disjointed as to undermine the probative expressions of the accused's feelings towards S Gatt and Leona. It is probative as relationship evidence and evidence of motive. I do not consider that its probative value is outweighed by a danger of any unfair prejudice to the accused.

Appendix B: Undated letter located at the Lambeth St premises in S Gatt's bedroom Cupboard.[55]

105 While the Summary of Prosecution Opening cites Appendix B as being a letter found by police that had been mailed and opened after S Gatt is alleged to have been murdered, the letter is not dated and submissions were not made that this letter was sent after S Gatt had died. It is evident from the Crown's oral submissions that it is relied upon more broadly as relationship evidence. The Crown submitted that while the note is undated, the reference 'I have loved you for 48 years' suggests it was written two years before the accused's 50th birthday. It was submitted that the note is evidence of the accused's 'deep love' for S Gatt. The Crown submitted that the reference to 'black people' in the backyard and the statement 'I didn't put them in here' is consistent with the accused feeding S Gatt's paranoia.

106 The Defence submitted that the note is undated (and further, that there is no evidence of when it was sent, and if it was sent when it was opened), is rambling, does not disclose any violence, is disjointed, and uses offensive terms about black people.

107 Contrary to the submissions of the Crown, I am of the view that the letter reads 'I have loved you 4 [for] 8 years'. This is consistent with representations made by the accused in other letters of having been in a relationship with S Gatt for 4, 8 and sometimes 10 years. I do not accept that that the letter can be dated as being 2 years before the accused's 50th birthday. The reference to being with S Gatt for 8 years is also of little assistance, given the difficulty in aligning this with the assertion that their relationship commenced in 2014. I am of the view that the letter is somewhat rambling, and while it contains some matters that are thematically relevant as relationship evidence, given it cannot be dated with any specificity, any limited probative value is outweighed by the danger of unfair prejudice to the accused.

Letters/notes found at the Lambeth St premises on 4 January 2018 and alleged to have been written after S Gatt died, but before August 2017 (when the accused attended the Lambeth St premises in company with others)

Appendix D - Letters postmarked 26 April 2017 regarding cutting off the gas and power, located on the Lambeth St premises kitchen table amongst other items. Envelope torn and open, and contains two notes[56]

108 Appendix D includes an envelope postmarked 26 April 2017 and two notes that were found inside S Gatt's home. The envelope was torn open.[57] The significance of this was explained by the Crown in oral submissions. The letters were sent after the Crown allege the accused killed S Gatt and sometime after the power is turned off at the Lambeth St premises, with records indicating that the power was not in use after the night of Sunday 23 April 2017.

109 In oral and then again in written submissions, the Defence conceded that the note that refers to cutting off the power is admissible.[58] The Defence maintained their objection to the second letter[59] as an undated letter that does not disclose any violent or controlling relationship.

110 While the two page letter is undated, it is probable that it was written sometime after S Gatt commenced a relationship with Leona and before the postmark date of 26 April 2017. The accused also writes 'Happy Anniversary for 4th April', suggesting the letter was written at a time close to this date. This brings the letter in relatively close proximity to S Gatt's death. The letter contains expressions of love, possessiveness and jealousy (particularly in relation to Leona), and given its close proximity to S Gatt's death, is highly relevant as relationship evidence and evidence of motive. I do not consider that the probative value of the letter is outweighed by a danger of unfair prejudice to the accused.

Appendix M - Letter to the accused at the Lambeth St premises, dated 19 June 2017 (reminder of appointment at Endocrinology clinic on 12 July 2017) located on the table[60]

111 Appendix M is a letter from the Royal Melbourne Hospital dated 19 June 2017, addressed to the accused. The letter is a reminder of an appointment with the endocrinology clinic on 12 June 2017.

112 The Crown alleges that these letters were mailed and opened after S Gatt is alleged to have died. The Crown submitted that the letter was not opened by S Gatt, and was likely to have been opened by the accused. The Crown rely on this letter as one piece of evidence among others (such as evidence from neighbours who said they saw the accused attend) that the accused attended the Lambeth St premises after S Gatt's death.

113 The Defence submitted that the letter is of no relevance. All it shows is that at some point, the accused had his address listed with the hospital as the Lambeth St premises. The fact the letter was opened cannot be brought home to the accused. Even if the accused did open the letter, it does not implicate him in the murder of S Gatt. Further, if the evidence is relied upon as evidence that the accused attended the premises and opened letters, this is unremarkable given the evidence that the accused attended the premises with others in August.

114 This letter has relevance in connecting the accused to living at S Gatt's address or using her address for mail from the hospital at some stage prior to her death. To suggest that it was the accused who opened the letter is speculation, and the letter is not admissible for this purpose.

115 While the letter is not of strong probative value, there is little that is prejudicial in it, if limited to the purpose I have outlined. Accordingly, I do not consider the probative value to be outweighed by a danger of unfair prejudice.

Letters found at the Lambeth St premises on 4 January 2018 and alleged to have been written after August 2017 (when the accused attended the Lambeth St premises in company with others)

Appendix I - Letter written in a diary on day 25 May 2013, postmarked 15 September 2017, located in the letterbox at the Lambeth St premises[61]

116 Appendix I is a letter postmarked 15 September 2017, and was located in the letterbox on 4 January 2018. The letter was sent after S Gatt died, and after the accused attended the property with others in August. The Crown rely on the letter as incriminating conduct, and suggest that the accused sent the letter wanting it to be found by police. The Crown also rely on it as relationship evidence and state of mind evidence, noting that the letter includes professions of love, as well as descriptions of problems in their relationship and references to the accused's penis. The Crown submitted that these references provide powerful context for the jealousy and resentment felt by the accused, as well as hostility towards Leona.

117 It was submitted that while the letter was sent in September, the letter itself cannot be dated. Submissions were not made by the Defence about the general relevance of this letter.

118 The letter is relevant to the accused's state of mind and to the circumstantial fact of his ongoing obsession with S Gatt, even as late as the date of the postmark on the letter, as well as to issues relating to his credibility (for example, in maintaining that he thought she was still alive and in a psychiatric ward after the August revelation visit). I consider that the part of the letter that reads:

I'll tell i got in some big trouble at kemmo someone who does kemmo was hanging shit on me then he saw your picture on my phone then started saying things about you so I got up & smashed him bad so they barred from kemmo for six weeks cant do until next one now I hammered him bad[62]

may give rise to a danger of unfair prejudice, as an admission of committing an act of violence against an unknown man expressed in a graphic manner. However, the letter as a whole is highly probative, and this aspect of the letter can be redacted to avoid a danger of unfair prejudice by removing the words marked in bold. Once that redaction is made, in my view the probative value of the content of the letter is not outweighed by a danger of unfair prejudice to accused.

119 Regarding the matters that have been ruled admissible, as described in this ruling, the Court will need to consider appropriate warnings to avoid the danger of the jury misusing the material and to otherwise remove the danger of unfair prejudice.

[1] DPP v Andrew Baker (Ruling No 1) [2022] VSC 704.

[2] An address where the accused stayed at periodically.

[3] The accused does not object to the admissions of Appendix H.

[4] The Crown indicated that they would not seek to rely on the documents in Appendix C, being a series of documents located in the kitchen drawer at the Lambeth St premises.

[5] The accused concedes admissibility of part of Appendix D.

[6] Admissibility of Letters, Notes and Documents: Defence Submissions in Reply, 20 June 2020 by counsel for the Accused Mr Saunders and Ms Thomas.

[9] While there were 17 appendices initially relied upon, the actual number of letters/notes is greater.

[10] At the conclusion of the Crown's oral submissions, the Defence were invited to, and did, provide further written submissions in reply to the Crown's oral submissions: Defence Submissions in Reply dated 21 June 2022.

[11] [2013] VSCA 128 ('McDonald').

[12] The Defence argued separately that the unsent letters cannot be used as evidence of incriminating conduct, which is dealt with in my ruling on that topic: DPP v Andrew Baker (Ruling No 3) [2022] VSC 706.

[13] During preliminary argument, the Crown agreed to certain parts of the letters not going before the jury, including references to the accused raping S Gatt, references to S Gatt being pregnant and having a miscarriage or abortion, references to the accused being in custody, and references to the 'Bandidos'. The Crown subsequently provided a table of proposed redactions in the 'Prosecution Response to email queries from the Court', provided on 14 November 2022, and a folder of the letters/notes with the relevant parts crossed out in red.

[14] [2017] VSC 343 ('Paulino').

[15] The body being found in a bath with her underpants pulled down around her ankles, an electric cable around her ankles and a shampoo bottle placed on her 'genital area'.

[16] The Defence provided medical records of the accused to support this submission: see Appendix AX, AY and AZ.

[18] As examples, the Crown pointed to the letter dated 4 December 2015, and the accused's concluding comment 'thank you for fuckin' me over', as well as the letter dated 12 December 2015, where the accused states 'lie fucking bitch, I will catch you, catch you somewhere and you're going to shit yourself because I'll be there waiting for ya and what copper are you fucking this time SJ? I was going to get you a xmas and cash in it. Why should I go that far? I know you won't have any cash for xmas or New Year'. The Crown submitted that this is evidence of financial and other controlling behaviour.

[19] The admissibility of 'relationship' or 'context' evidence is governed by ss 56(1) and 55(1) of the Evidence Act 2008 ('EA'). Section 56(1) states that evidence that is relevant is admissible. Section 55(1) states that relevant evidence is evidence that could rationally affect the assessment of the probability of the existence of a fact in issue.

[20] [2012] VSCA 205 ('Azizi').

[21] Ibid [39] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[22] See R v Basham (Ruling No 1) [2021] VSC 349 [98]-[103]. At [98], Taylor J remarked:

[W]hile temporal proximity to the offence charged remains relevant, there is a difference between a relationship that was characterised by ongoing violence and one where there had been sporadic incidents or periods of violence.

Following a discussion of Azizi, Taylor J then stated at [99]:

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

1. [23] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, 352 [6] (Gleeson CJ, Crennan and Kiefel JJ agreeing), 401 [180] (Hayne J) cited in Hollingworth v The Queen [2021] VSCA 354, 36 [105]-[106].

[24] Defence Submissions in Reply dated 21 June 2022 [22].

[25] DPP v Andrew Baker (Ruling No 3) [2022] VSC 706.

[27] Initially in oral submissions, the Crown said that the undated letter was 'between' the two dated letters. The original notebook was subsequently tendered as Exhibit P1 at the mention on 14 November 2022, and the Crown confirmed that the undated letter in fact appears at the back of the notebook.

[28] It appears that the Defence incorrectly quoted Appendix L in this part, as these matters are not discussed in Appendix K. It is apparent that the 'Table of Letters' provided to the Court also quotes Appendix L in the part of the table that refers to Appendix K, which is likely the origin of the error.

[29] While in oral submissions the Crown stated that it was not the Crown's position that 'they' form part of the entry dated 22 September 2017, there is some uncertainly as to whether the Crown was in fact referring to the undated letters in making this concession.

[30] See Paulino (n 14) [37]-[38] (Bell J), quoting R v Barbour [1939] 1 DLR 65, 67 (Duff CJ): 'In a trial of murder by a husband of a wife or a similar charge, it has been held that evidence of a poor relationship between the accused and a deceased may be relevant to the probability of the existence of the fact in issue whether the accused in fact killed the deceased and also (but not only) to the issue of whether the accused had a motive to do so. While so called 'relationship evidence' has been held to be so relevant, the courts have cautioned against '[slipping] into a habit of admitting evidence which ... cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties', have drawn attention to the vagueness and generality of the expression and have often preferred to consider whether, without categorisation, particular evidence in question is relevant to the probability of the existence of a fact in issue'.

[32] Note that s 142 of the EA states that except as otherwise provided for by another provision of the EA, where the Court is deciding a question of admissibility, whether to exercise a discretion, or any other questing arising under the EA, 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.

[35] Though it should be noted that the accused does not say in that letter he believed it to be S Gatt's body.

[38] McDonald (n 11).

[39] Amended Summary of Prosecution Opening, dated 13 December 2021 [65(a)].

[41] McDonald (n 11).

[45] The letters are connected by an arrow at the bottom of the page of the letter addressed to 'Andy', and the letter addressed to 'Sarah-Jane' appears to be a continuation or reply to the letter to 'Andy'.

[46] In the folder of the letters/notes provided on 14 November 2022, where the proposed redactions have been crossed out in red, the following part was not marked in red: 'could you tell me why have you gone weird over me going back to jail over you again I'm happy to go there becoz I know I really fucked up' (Depositions 719: Letter dated 17 September 2016). Consistent with the Crown's indication that reference to the accused being in jail will not go before the jury, this part should also be redacted.

[57] Amended Summary of Prosecution Opening, dated 13 December 2021, [55], [59].