Director of Public Prosecutions v Young

[McGuire] said to Gerrard she took all her money out of the account as soon as she could after the separation.

15. For the reasons stated concerning HM-80 above, this evidence must be excluded.
16. The next representation (HM-126) is:

[McGuire] mentioned that she wasn't with [Young] anymore and that it was bad.

This representation was allegedly made to Tia Stinchcombe ("Stinchcombe") on 4 April 2024, being the day before McGuire was killed.

1. On this evening, McGuire and Stinchcombe had been reunited at their first night of netball training for the 2024 season and were very happy to see each other. This representation was allegedly made in the context where they were "all over each other like long lost friends". While acknowledging the generality of the statement, the prosecution submitted this evidence was in the context of McGuire discussing the subject matter of her relationship with Young earlier on the night that she was killed.
2. In accepting that the evidence "might not have the highest probative value", the prosecution submitted it did have relevance and was probative to the nature of the relationship and the animosity that existed at that time.
3. The evidence that "it was bad" is ambiguous. It is unclear whether McGuire was talking in this conversation about her feelings, or something more. This evidence must be seen in the context where McGuire was planning to meet with Young that night. In the absence of any further context by which this might be understood, the evidence must be excluded because it is of low probative value.
4. This conclusion does not ignore what was stated shortly after (see HM-128). The later representations were made in circumstances quite different to what was stated to Stinchcombe alone.
5. The next representation (HM-128) is:

During a highlight/lowlight session, [McGuire] said her lowlights were multiple including: "bad breakup ... I've lost everything he's taken everything from me ... I have to buy new clothes online ... it's horrible I can't even go and get my clothes ... don't go through a bad break up it's horrible".

6. The words "I've lost everything he's taken everything from me" do not meet the temporal requirement of section 65(2)(b) as, to the extent it might be said to have happened, the asserted fact occurred some weeks before (or at least in part). Further, section 65(2)(c) is not applicable as it was not accurate to say that McGuire had lost everything. She still had an interest in King Drive and had managed to retrieve money from the Commonwealth Bank. Accordingly, her representation in this regard is not highly probable to be reliable. The same observation may be made with respect to getting her clothes; she had been able to retrieve them, albeit in completely unsatisfactory circumstances.
7. In addition to relying upon section 65(2), the prosecution also relied upon section 66A in submitting that McGuire's statements that "it's horrible" and "don't go through a bad breakup, it's horrible" were contemporaneous expressions about her feelings or state of mind.
8. The evidence of McGuire's feelings at this point in time insofar as they relate to the breakup are relevant in circumstances where she was intending to meet with Young that night. Further, the 2 references to "horrible" relied upon by the prosecution fall within section 66A, being contemporaneous representations about her feelings and state of mind. However, for this evidence to be led it needs to be put in context. Although facts may be led as part of evidence under section 66A in order to explain why it is that the person made the representation that they did, care must be taken in this regard.
9. In light of the rulings made in relation to section 65(2) above, and the unreliability of what has been stated, even if the evidence be admissible under section 66A, it must be excluded. Self-evidently, such evidence is highly prejudicial and, in light of its inaccuracy, unfairly so. Equally, in circumstances where the facts are available as to what McGuire had in fact lost or retained, it is of limited probative value. Accordingly, the evidence must be excluded.
10. The final representation (HM-130) is:

[McGuire] sent a Snapchat message at 1.50am lying on a bed and looking visibly upset.

This message was received by Kyle Downs ("Downs"), a friend of McGuire's, on 5 April 2024 shortly before McGuire was killed.

1. For the reasons already stated, I do not accept the defence submissions that the unavailability of the Snapchat message means Downs' evidence is second-hand hearsay.[203]
2. The prosecution submitted that the probative value of this evidence was high despite the fact that the image was missing. Further, it was submitted no unfair prejudice arose and it ought to be before the jury for the purpose of identifying the time of the killing.
3. If Young had not made the admission that he killed McGuire, this evidence would have been highly relevant and probative. However, in circumstances where that is no longer in issue and the defence accept that McGuire was still alive at 1.50am on 5 April 2024, the evidence is of very low probative value.
4. Further, while the fact that McGuire looked visibly upset is of some relevance to whether or not Young had murderous intent when he killed her soon after, a description given by Downs of how she appeared at that point in time is likely to be highly prejudicial and could not be challenged in the absence of the photo in question. Thus, the prejudicial effect outweighs any probative value and the evidence must be excluded.

F.1.1 Evidence Act and principles

1. Section 97(1) provides:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

1. In Elomar v The Queen,[204] a useful summary of the process of reasoning concerning tendency evidence was stated:[205]

• on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
• it can therefore be concluded or inferred that the person had a tendency to act in that way;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.

• [on an occasion or occasions other than on an occasion in question in the] proceedings, a person had a particular state of mind;
• it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.

1. Importantly, the mere fact that the evidence is capable of being tendency evidence (as it could be understood in the way described above) does not necessarily make it tendency evidence. Evidence can be understood in more than one way. Accordingly, in determining the purpose (or purposes) for which the evidence is led, the court must assess whether there is a proper and legitimate purpose (or purposes) for which the evidence is being used other than tendency evidence.[206]
2. The distinction between tendency and non-tendency evidence is neatly illustrated in the following passage concerning an accused charged with terrorist offences:[207]

Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of [the accused attending a camp] was evidence of a tendency on his part to support violent Islamic Jihad ... Alternatively, did the Crown seek to prove that [the accused] in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not.

1. It is not uncommon that evidence, which is admitted for another, non-tendency purpose, may have the potential to be misused by a jury by using it to engage in propensity reasoning. However, the fact that evidence admitted for a non-tendency purpose may have the potential to be misused by a jury engaging in propensity reasoning does not preclude the evidence being admissible for the legitimate, non-tendency purpose. In appropriate cases, a direction given to the jury not to engage in impermissible reasoning is ordinarily sufficient to ensure the jury confine the use of the evidence for the purpose for which it is admitted.
2. In a case which concerned the admissibility of identification evidence, the High Court unanimously affirmed the trial judge's finding that despite the "limitations" of the evidence, the danger of unfair prejudice was minimal and could be adequately addressed by appropriate jury directions.[208] Although directions will not always be effective in removing the danger of unfair prejudice, it is to be assumed that jurors will approach their task conscientiously and will follow the trial judge's directions.[209]
3. Contextual evidence is different from tendency evidence. As explained above, tendency evidence may bear directly on the probability of the existence of a particular fact that is in issue. Contextual evidence does not seek to do this, but rather may be adduced to explain why an accused (and others) might have behaved in a particular way (which otherwise might be seen as extraordinary or inexplicable,[210] or curious and unlikely),[211] and to put other evidence in its proper factual context.[212] However, it may be that context evidence should be "adduced in a limited fashion or a confined manner so as to reduce the risk of unfair prejudice".[213] Naturally, each ruling must be determined according to the facts and circumstances of the case, including the nature and extent of the context evidence when considered in light of the evidence as a whole.
4. That said, merely establishing that the evidence might be used as context evidence may not be sufficient. If the prior conduct advanced as background or context is of criminal conduct, this may "sound a warning" as to the need for care in assessing the risk of impermissible use by the jury.[214]
5. In assessing whether tendency evidence is of significant probative value, the evidence must be taken at its highest, which assumes that the evidence is reliable and credible.[215]

1. By an amended tendency notice, the prosecution intends to adduce evidence which it contends will establish the tendency of Young to act in a particular way or to have a particular state of mind.
2. The notice states the prosecution seeks to rely upon the tendency of Young to:

(1) Act in a particular way, namely to physically abuse and/or act in anger towards McGuire, including to choke or strangle her.

(2) Have a particular state of mind, namely to intentionally physically abuse and/or to intentionally act in anger towards McGuire, including to choke or strangle her.

By this form of notice, "and/or" signifies that it is intended that the prosecution will seek to refer to each of "physical abuse" and "anger" in (1) or (2) either individually or together.

1. When the amended tendency notice was filed on 21 May 2025, the issues to which it was directed were whether : (1) the acts constituting the alleged offending occurred; and : (2) Young was the person who committed the alleged offence.
2. On 19 June 2025, being the seventh day of pre-trial argument, Young made an admission in open court for the first time. At the start of the hearing on that day, the court was told that it would be admitted by Young that a conscious, voluntary and deliberate act of Young of an unlawful and dangerous kind caused the death of McGuire. In other words, the trial will be confined to whether or not Young had the necessary intention to kill or cause really serious injury, and there would be no issue as to whether or not he killed her.
3. The amended tendency notice referred to 5 separate pieces of evidence. Naturally, the prosecution must establish the admissibility of that evidence before any tendency ruling arises. The first 3 matters raised all related to alleged events on 18 March 2024.
4. The substance of the first matter raised is:

In the morning of Monday 18 March 2024, at their mutual workplace at school, McGuire told Schefferle that Young would sometimes strangle her, and he had broken a few of her necklaces when he would strangle her. McGuire said that Young had hit her on occasions, and that she was fearful of him after the break-up.

(Emphasis added.)

1. For the reasons stated above,[216] only part of this evidence has been ruled to be admissible, with the text in italics to be excluded. Accordingly, the tendency issues will need to be considered on the basis that there will be no hearsay evidence about Young having broken a few necklaces when he strangled her.
2. The second matter is:

At about 4.13 pm, McGuire called Tiffany Sarra and said that she had broken up with Young. McGuire went on to detail how Young had been out on and off drinking all weekend. McGuire said Young had come home (after coming home and then going out) and that they had had a disagreement. McGuire told Young that she was leaving, and Young said no and grabbed her by the necklace around the neck and had snapped it off.

(Emphasis added.)

1. The first part of this evidence is to be adduced by the prosecution without objection. Further, it has been ruled that the substance of this evidence may be led except the text in italics of evidence about Young grabbing McGuire's necklace.[217]
2. The third matter is:

At some point on Monday night, McGuire and McDonald had a conversation via Snapchat. McGuire said that Young had choked, kicked, punched and thrown her to the floor.

1. This evidence has been ruled to be inadmissible or alternatively will be excluded.[218]
2. The fourth matter is:

McGuire said to Simpson that Young had been physically violent with her and McGuire told Simpson over Snapchat that Young had hit, kicked, punched and choked her previously.

1. This evidence has been ruled to be inadmissible and alternatively will be excluded.[219]
2. The final piece of evidence is summarised as follows:

Young admitted that he was frequently angry during consultations at the Ballarat East Medical Centre. He also sent messages to McGuire indicating rules, including "no swearing or taking anger out on you no being violent or yelling or arguing ...".

1. For reasons set out below, each component of this evidence has been excluded.[220]

1. In its terms, s 97(1) of the Evidence Act precludes evidence of a tendency of a person being admitted unless, amongst other things, the evidence has significant probative value. Assuming for the sake of argument that the evidence the subject of the tendency notice that remains to be adduced and ruled upon demonstrates a tendency, such tendency evidence as sought to be relied upon does not meet the threshold of having significant probative value.
2. While the infliction of any physical abuse is undoubtedly a serious matter, the High Court has unambiguously indicated that unless the violent conduct sought to be adduced involved "inflicting serious physical harm", then it is doubtful that tendency evidence could meet this threshold.[221]
3. There is no evidence of any person witnessing any injuries on McGuire's body at any point in time. Further, although there is evidence of McGuire complaining about physical abuse, there is also no evidence of her complaining about Young causing physical injuries to her, let alone serious physical injuries, other than by means of Snapchat messages. Furthermore, although earlier in time, the evidence needs to be considered in light of the statement McGuire made to police of 17 February 2023 that Young had never been physically abusive to her up to that time.
4. The evidence sought to be adduced as tendency evidence is largely concerned with events confined to the month of March 2024. Again assuming for the sake of argument that a tendency could be established by such evidence over such a limited period of time, in light of the historical evidence,[222] such evidence is not of significant probative value.
5. In light of the above, it is unnecessary to rule whether or not the evidence is capable of giving rise to a tendency. If I had been required to, I would have decided that it was not. Although it has been found that some of the evidence is relevant and of probative value such that it ought not be excluded, it is not specific enough to found any particular tendency.[223]
6. It is unnecessary to consider the further restrictions on tendency evidence set out in section 101 of the Evidence Act.

1. By a notice filed pursuant to s 19(1) of the Jury Directions Act 2015 (Vic), the prosecution identified various categories of evidence which it intends to rely on as conduct that evidences incriminating conduct by Young of having committed the offence of murder, or which negates a defence to that offence. The categories identified that require adjudication are as follows:

(1) Deleting messages from Young's mobile phone.

(2) Deleting notifications from the Eufy System.

(3) Young running from police before his arrest.

1. The use of evidence as evidence of incriminating conduct is governed by Division 1 of Part 4 of the Jury Directions Act. The terms "conduct", "incriminating conduct" and "offence charged" are defined in section 18 of the Jury Directions Act as follows:

18 Definitions > > In this Division - > > conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged; > > incriminating conduct means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

(b) which negates a defence to an offence charged;

offence charged includes any alternative offence.

1. Section 20 of the Jury Directions Act outlines the pre-conditions which must be met in order for the prosecution to rely on evidence as evidence of incriminating conduct:

20 Evidence of incriminating conduct > > (1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

Note

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

1. If the prosecution is permitted to rely on evidence as evidence of incriminating conduct, the trial judge must provide the jury with a direction on the use of the evidence pursuant to section 21 of the Jury Directions Act, which states:[224]

21 Mandatory direction on use of evidence of incriminating conduct > > (1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

...

1. Defence counsel may request that the trial judge also provide an additional direction to the jury pursuant to section 22 of the Jury Directions Act that:

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.

1. As outlined by the Court of Appeal in Director of Public Prosecutions v Lynn,[225] under section 20(1)(b) the trial judge must act as a gate-keeper and determine whether the evidence is fit for the jury's consideration as an implied admission of guilt:[226]

Under s 20(1)(b), the judge has a gate-keeper role. The central issue is the capacity of the evidence to found a process of reasoning. The judicial determination that the evidence has the relevant capacity is a necessary pre-condition to the later determination by the jury whether or not to adopt that reasoning, subject to the mandatory direction in s 21(1)(a). Section 20(1)(b) is a broad filter as to whether the evidence is fit for the jury's consideration as an implied admission of guilt. Section 21(1)(a) constrains the jury in how that consideration is performed. > > The combination of these provisions indicates that the [Jury Directions Act] contemplates that post offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b). > > ... > > Thus the s 20(1)(b) question is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged, but, rather, is another explanation one which the jury could accept or reject as reasonably possible. If so, the evidence must pass through the gateway. It is then for the jury to determine whether, on the evidence as a whole and bringing its collective life experience, wisdom and common sense, it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.

1. In Director of Public Prosecutions v McCartin (Ruling No 1),[227] Kaye JA described the court's task in determining whether the prosecution may rely on evidence as evidence of incriminating conduct as follows:[228]

[T]he test for the trial judge is not whether the jury should regard the evidence, of the conduct by the accused, as supporting the guilty inference contended for by the prosecution. Rather the question, for the judge, is whether the jury, acting rationally, could conclude that the evidence, considered in the context of the other circumstantial evidence in the trial, is capable of supporting that conclusion.

1. Put another way by the Court of Appeal in R v Ciantar:[229]

[I]f an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect.

1. Where the conduct is reasonably capable of supporting the guilty inference contended for by the prosecution or a belief in guilt of a lesser offence (such as manslaughter), the question of whether the evidence demonstrates consciousness of guilt of the offence charged must be left to the jury, "save for the unusual case ... where the conduct is equally consistent with both explanations and there is no other evidence that bears upon the issue".[230] As outlined (when also dealing with a case where the only element in issue was whether the accused had a murderous intent) by the Court of Appeal in R v Ciantar:[231]

Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed. > > But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing. > > Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent. And comparable reasoning is equally applicable in trials for other offences.

1. Should the prosecution be permitted to rely upon evidence of incriminating conduct during its closing address, that does not necessarily mean the evidence will ultimately be accepted as evidence of incriminating conduct. Pursuant to section 21(1) of the Jury Directions Act, such evidence may only be treated as evidence of incriminating conduct if the jury is satisfied that the conduct occurred and the only reasonable explanation for the conduct is that Young believed that he had committed the offence charged or an element of the offence charged.[232]

1. The prosecution relies upon evidence of Young deleting all the text messages between himself and McGuire from 27 March 2024 until the "purported suicide text" on 5 April 2024 at 3.44am. Although there is no direct evidence Young himself deleted the messages, the inference is clearly open as Young's phone was in his possession after McGuire had been killed.
2. The messages have been retrieved and their admissibility at trial is not challenged. Essentially, the defence opposes the conduct being used as incriminating conduct because of the limited compass of what remains to be left with the jury, namely, whether or not Young had a murderous intent at the relevant time. The defence submits the messages showed that McGuire attended King Drive on 4 April 2024 which is now not in issue. Further, nothing in the messages amounts to an admission to murder. In short, it was submitted the deleted messages do not assist in proving murder as opposed to unlawful killing.
3. At the time the messages were deleted, Young was also seeking to create a narrative around McGuire's death to the effect that she had committed suicide. He took a number of steps to try to conceal that she had attended at King Drive on the night of 4 April 2024. There is no dispute the messages indicate that it was agreed between Young and McGuire that McGuire would, and then did, drive to King Drive that evening.
4. Further, an exchange took place at 6.26pm on 4 April 2024. This is evidence that goes beyond simply indicating McGuire's location. In a series of messages, Young and McGuire discussed sleeping in either a separate room or together. In one of those messages, McGuire said "Assume together unless you don't want to" and Young responded "No I do want to for the last time".
5. I accept the prosecution submission that by deleting these messages, Young attempted to remove evidence of contact with McGuire in the days leading up to her death, including on the night she was killed. The deletion of the evidence may reasonably be capable of being viewed by a jury as being evidence of incriminating conduct for a number of reasons. These include distancing himself from having any dealings with McGuire on 4 or 5 April 2024, frustrating any investigation about McGuire's death and removing evidence that might have been inconsistent with the false narrative about McGuire's suicide that Young was seeking to create. The relevance of such evidence is not confined to whether Young killed McGuire but is also relevant circumstantial evidence of Young's intention at the time he killed her.
6. Accordingly, evidence of these messages may be relied upon by the prosecution as evidence of incriminating conduct.

G.1.4 Deleting notifications from the Eufy System

1. As referred to above,[233] notifications on the Eufy System installed at King Drive were deleted on 5 April 2024. The prosecution will invite the inference that Young was responsible for the deletion. Again, the inference is open as the application controlling the Eufy System was on Young's phone.
2. In relation to this category, the prosecution noted that consideration of the issue related to the use of the misconduct evidence, rather than whether it was admissible. In anticipating that the defence would challenge the admissibility of the evidence, various provisions of the Evidence Act were referred to.[234] The considerations on this particular issue are confined to the question of use.
3. The defence submitted that because of the concessions made, the deleted files did not assist in proving murder as opposed to unlawful killing. They also submitted that the time of death was no longer in dispute, though when questioned about this, a significant range was given.[235] Further, it was noted that there was no suggestion by the prosecution that there was any footage that was deleted that captured the circumstances of the killing.
4. Essentially for the same reasons that it has been decided that the prosecution may rely on evidence of Young deleting text messages, it will also be able to rely upon evidence of him deleting notifications from the Eufy System as incriminating conduct. Again for reasons already stated, the deletion of these applications is reasonably capable of being viewed by a jury as evidence of incriminating conduct.

1. At 4.45pm on 7 April 2024, Young ran from police when they attended at his parents' home at 20 Lawrence Street, Sebastopol. He did so before police announced their intention to arrest him for the murder of McGuire.
2. Young ran through the garage, into the backyard and over a fence into the neighbour's yard, and then onto the street behind his parents' property. Police were able to locate him shortly after he fled. A video of Young fleeing was taken from a drone.
3. The prosecution submitted that Young's conduct was best described as "flight". The video shows that Young saw the police arrive and then immediately ran away. It was submitted this conduct went to illustrating Young's state of mind, namely that he knew why police had arrived and had a consciousness of guilt concerning "his involvement in the murder of McGuire".
4. Further, the prosecution relied upon the fact that Young had already given a statement to police and that, if his story had been true, he would have no basis to consider that police were there to arrest him.
5. The defence relied upon a number of matters in opposing this evidence in its entirety being used as incriminating conduct.
6. Both Young and his father have had previous involvement with police. It was submitted that Young's father has demonstrated a particular dislike of police, and has been the subject of police conduct in response to his aggression back in October 2022.[236]
7. On 7 April 2024, when police attended at his home, his father again responded aggressively by rushing towards police. In response, police used capsicum spray and handcuffed the father.
8. In these circumstances, it was submitted that Young's actions were that of a panicked young man avoiding another confrontation between police and his father. Further, it was submitted that the possibility of being charged in connection with the death of McGuire was not the only potential reason for Young wishing to avoid the police at this point in time.[237] The Court was informed that Young has now also been charged with rape and that the matter is presently being prosecuted in the County Court of Victoria. Although he was not charged until September 2024, the allegations giving rise to the charge concern events in February 2024. The complainant in that case exchanged messages with Young at that time in which she stated in substance that Young had had sex with her despite the fact that she had said no.
9. In response to this final submission, the prosecution submitted competing explanations were a matter for the jury and it was within their purview to decide what inferences to draw. It was also submitted that the video demonstrated Young took flight before his father had any interaction with police.
10. With respect to Young's father's aggressive behaviour towards police on other occasions, it was submitted that it was a matter for the defence whether to introduce that or not, and that it could be dealt with by appropriate directions if it were introduced.
11. Having considered the various matters raised, and the other evidence that will be before the jury, the probative value of his evidence is outweighed by the danger of unfair prejudice to Young. Any attempt to explain Young's conduct as being other than as a result of his consciousness of guilt for McGuire's death would require the defence to introduce his family's dislike of police and bad character evidence with respect to another very serious alleged offence. Although Young was not charged with rape until September 2024, it is clear from the text messages exchanged that the complainant had squarely made an unequivocal accusation that Young had raped her by the time police arrived to arrest Young on 7 April 2024.

1. The defence objects to the following text message sent by Young to McGuire on 8 February 2024 being adduced:

Stop ducking (sic) annoying me and pestering me then cunt how many times have you been fucking told huh its (sic) gonna be to (sic) late one day and it will all be over if you don't start listening cunt.

1. It is alleged this message was sent in the context of Young and McGuire exchanging messages about their joint bank account and Young removing McGuire from that account after he learned McGuire had her own personal savings account.

1. The defence submits the word "cunt" arouses emotive reactions in people and would lead to a jury engaging in impermissible reasoning. Further, it is contended there is a danger that the evidence will be misused or attract greater weight than it deserves.
2. The prosecution submits the word "cunt" carries little prejudicial effect. Although it was acknowledged that the word might be emotive for some people, it was submitted it did not follow the use of this word would lead to a jury engaging in impermissible reasoning.

1. The use of such language would be highly unlikely to create a prejudicial effect of any materiality. Although undoubtedly it may be considered offensive in some circles and in some contexts, I do not accept that the mere fact that the word is used in this passage means the evidence ought to be excluded.
2. However, the purpose for which it is adduced, namely to establish context and relationship evidence in the months leading up to McGuire's death, may be served without the entirety of the message being in evidence. The suggestion in the message that it would be too late one day and that it will all be over has the risk of being misused by the jury in reasoning that something more sinister was intended. The prejudicial effect of this part of the message outweighs any probative value of it being adduced in addition to the first half of the message.
3. Accordingly, the prosecution may adduce evidence that this text message was sent, but only up to the word "huh".

1. The defence objects to the prosecution leading evidence of Young conducting internet searches on 19 March 2024 on "how to remove someone from eufy camera" and "how to find out if other devices are connected".

1. It is submitted the evidence is not relevant or alternatively ought to be excluded under section 137 of the Evidence Act. The defence contends these searches are reflective of the relationship ending (which is not in issue) and nothing more.
2. The prosecution relies upon this evidence as being relevant to Young's use and control of the Eufy System at King Drive, in order to establish his version of events to police on 5 April 2024 (coupled with his deletion of the logs) amounted to incriminating conduct. In short, the prosecution does not seek to rely upon this evidence to establish any connection with events giving rise to or connected with McGuire's killing, but rather submits it is probative to Young's use, control and knowledge of the Eufy System.

1. The evidence is plainly relevant to the question of Young's familiarity with the Eufy System. Further, in denying in his record of interview that he deleted any recordings from the Eufy System, Young specifically denied any real understanding of how the Eufy System operated and stated that he was never in control of it (Q 654). The level of his knowledge of how to operate it, including deleting data from it, is a significant issue in the case.
2. Although the evidence will be admitted, I accept the defence submission that there is nothing unusual in a partner, who has initiated a breakup and is moving out of a shared home, being disengaged by the remaining partner from accessing footage from closed circuit television cameras situated around that home. In light of this, and given that there is no controversy that the relationship had faltered around this time, Young's conduct in making internet searches regarding the Eufy System may be explained without any suggestion that it was connected to the events in early April 2024. It is no part of the prosecution case that any such connection existed, and this may be made clear to the jury.
3. In summary, the evidence is relevant and its probative value is high to a significant issue on the case. This far outweighs any unfair prejudice and the evidence will not be excluded. Further, appropriate steps may be taken to ensure the evidence is not misused.

1. The prosecution alleges Young posted pictures on 19 March 2024 of McGuire on Snapchat "implying his relationship was over with [McGuire] and he was going to hurt himself". The prosecution relies upon this evidence to show McGuire took the opportunity to attend at King Drive to retrieve her property at this time as another picture posted by Young showed he was elsewhere.
2. The defence had no objection to evidence being adduced that McGuire attended King Drive at this time when Young was absent. In essence, the issue is whether or not evidence of Young contemplating self-harm ought to be excluded.

1. The prosecution submitted the threat of self-harm was relevant in circumstances where the relationship had just come to an end. This was put on the basis that it was "well known and accepted, that threats of suicide or self-harm are forms of family violence" (original emphasis).[238] However, the prosecution accepted that a threat to self-harm may or may not constitute family violence. That said, the prosecution submitted this threat did amount to family violence, and that it had high probative value which outweighed any unfair prejudice. Further, it was said that the low level of prejudice could be cured by directions.

1. The court was informed that Young did in fact attempt suicide more than once. Evidence of this, or other evidence suggesting he was going to hurt himself, is of limited relevance. To the extent it might be said to be relevant to relationship evidence, there will already be a substantial body of evidence to be adduced in this regard.
2. The suggestion that the expression of an intention to self-harm is a form of family violence must be tempered somewhat by the fact that the representation was not a hollow threat but was something Young apparently intended to carry out. Indeed, for such a threat to amount to abuse of another, the judicial benchbook suggests that an intention of tormenting or intimidating a family member forms part of the behaviour.[239]
3. Although Young's intent may have given rise to emotional or psychological abuse[240] of McGuire, any probative value of such evidence taken at its highest is outweighed by the real danger of unfair prejudice. In a nutshell, this evidence has the risk of being misused by the jury in reasoning Young was willing to take extreme measures involving taking a life as a result of the breakup in the relationship. Accordingly, the evidence must be excluded.[241]

1. On 22 March 2024, Young attended the Ballarat East Medical Centre and was treated by a doctor. The prosecution seeks to adduce evidence that during this consultation Young informed the doctor that he had separated from his girlfriend, that he was frequently angry and that he had trouble sleeping. To establish this occurred, the prosecution also seeks to rely upon a medical report containing notes of the discussion.
2. The notes record that Young and McGuire separated 4 days earlier. They also record the fact they had had arguments over not doing things together. The note then reads on the next line "Anger frequent". The note does not identify whether it was Young, McGuire or both of them who were frequently being angry. In this regard, a note of a later consultation with Young on 26 March 2024 by the same doctor refers to McGuire being angry.

1. In this context, this evidence ought to be excluded as it is too vague and does not have high probative value. It plainly invites impermissible tendency reasoning to the effect that because Young was frequently angry he was the type of person who would be likely to kill his partner. Further, there must be serious doubt about the reliability of the intended means of introducing this evidence because of the ambiguity in the notes about whose anger was being referred to and in what context. It follows the evidence must be excluded.

H.1.12 Messages stating "rules" of Young's return to the relationship

1. On 25 March 2024, Young sent a series of Snapchat messages to McGuire in which he set out the basis upon which he would behave in order to get his relationship back with McGuire. The "Rules for my self (sic)" he formulated included no drinking during the week, a date night once a month and "Most importantly no swearing or taking anger out on you no being violent or yelling or arguing ...".

1. Young submits the use of the word "violent" is ambiguous and leaves the jury to speculate about the form of violence, including whether it concerned physical violence. It was common ground between the parties that "violence" can have a variety of meanings. Thus, the defence submitted that this evidence carried the risk of the messages being misused by reasoning Young was acknowledging physically violent behaviour of an unspecified kind.
2. The prosecution submitted this evidence was best dealt with under cover of the argument about the tendency notice. In any event, it was submitted evidence of Young's "rules" was relevant to understanding the violent relationship between Young and McGuire. It was submitted the evidence was admissible as an admission under section 81 of the Evidence Act.
3. As to the meaning of "violent", the prosecution submitted that the use of the word followed by "or yelling or arguing" indicated that Young was referring to physical violence. This submission was made despite the prosecution also contending in relation to other admissibility issues that "violent" conduct included controlling behaviour without any physical contact. This meaning of violent conduct was plainly not fully encapsulated by the words yelling or arguing.

1. The ambiguity in the word "violent" is problematic. In circumstances where the prosecution seeks to contend it indicates physical violence, the evidence would be likely to be highly prejudicial. Given the vagueness of the language used, this prejudicial effect would be unfair. The vagueness of the word also means that its probative value is minimal. Accordingly, insofar as the evidence incorporates this word in this context it must be excluded.

1. The prosecution seeks to adduce evidence of events on 29 March 2024. These include Young apologising to McGuire and stating that she would be better off without him. Soon after the message was sent, Young attempted suicide. An ambulance was dispatched and he was assessed later as having suicidal ideation.
2. For the reasons stated above concerning evidence relating to Young's suicidal thoughts or attempts,[242] this evidence must be excluded.

1. The prosecution seeks to adduce evidence of Young lying to McGuire as to his whereabouts on the night of 4 April 2024. This was coupled with lies about why Young's Snapchat location maps did not appear to be consistent with what he was telling McGuire.
2. The fact that Young was lying to McGuire about his location is relevant to an understanding of their relationship in the hours leading up to McGuire's death. The real issue is whether it ought to be excluded under section 137.

1. The prosecution seeks to rely on this evidence as being relevant to motive and intent, as well as providing context. It was submitted that McGuire had concerns about Young's drinking and it was reasonable to infer she may not have attended King Drive if she knew Young had been drinking. The prosecution submitted it highlighted the importance of this aspect of the evidence as it supported the prosecution's tendency submission.

1. Although relevant to the relationship and proximate to the time of McGuire's killing, the fact that Young was lying to McGuire about his exact location and what he was doing is of limited probative value to the issue of whether or not he had a murderous intent at the time that his actions caused McGuire's death. It is far from clear that it would be reasonable to infer that McGuire would not have attended King Drive if he had not told her his lies and she knew that he had been drinking. No other evidence was referred to in support of such an inference and it is clear that McGuire had often spent time with Young in the past when he was drinking.
2. In any event, to characterise Young as a liar in this context is tangential evidence of bad character and is unfairly prejudicial. Further, it must be excluded as the fact that he lied has only limited probative value and is outweighed by the danger of unfair prejudice, as it creates the risk that an impression will be created that Young was luring McGuire to attend King Drive when that does not form part of the prosecution case.

H.1.19 Young's comment about McGuire after her death

1. Late on the night of 5 April 2024, Young's cousin was at King Drive consoling Young. His cousin's account of their discussion included that she said to Young that he used to refer to McGuire as "beautiful" and "hot". She says that in response to this, Young looked her in the eye and said "well she's hot now isn't she".

1. The prosecution submits this evidence is relevant to establish a murderous intent and is part of Young's false narrative that McGuire had committed suicide.

1. Despite this evidence being relevant to the nature of the relationship, it is of little probative value in establishing murderous intent. The comment is directed to the fact that McGuire had been incinerated, regardless of the cause of her death.
2. Further, the comment could only be described as extremely callous such that it would be likely to arouse a sense of horror and invoke an instinct to punish Young such that its prejudicial effect substantially outweighs any probative value.[243] The reaction of the jury would likely be so acute that the prejudice would not be able to be overcome by judicial direction.

1. In late March 2024, Young wanted to remove a canopy that he had fitted to McGuire's car. Young repeatedly sent messages to McGuire about this. As a result, McGuire and her mother attended at King Drive at approximately 9.15 pm on 28 March 2024. Young was there with 3 friends. Although it is not clear when they arrived, at some stage Young's sister and mother were also in attendance.
2. An argument erupted in the garage at King Drive and McGuire's mother started filming Young while he was using an angle grinder to remove the canopy. This enraged Young, who then yelled very aggressively for the filming to stop.
3. McGuire's mother has given a statement about these events. Her evidence is that after this had occurred she and McGuire left at around 9.46 pm. As they did so, Young punched the car they were driving in. McGuire's mother called triple zero, which she says was because McGuire was shaking and clearly terrified.
4. The video taken in the garage runs for 1 minute and 3 seconds. McGuire is not visible in the video, though her voice can be heard to say "It's my house too". When Young becomes aware that McGuire's mother is filming, he becomes extremely aggressive in repeatedly yelling at her to "turn the fucking camera off". He is blocked by his sister, who steps side to side and prevents him from moving closer to McGuire's mother.
5. I accept this evidence is probative as it clearly demonstrates the level of aggression Young was willing to express at the time, which was substantial. However, the probative value is diminished because his aggression is directed towards McGuire's mother, rather than McGuire. Further, it is unclear precisely where McGuire is located while this outburst occurred.
6. In circumstances where Young's conduct was directed towards someone other than McGuire, the relevance to the relationship between Young and McGuire is less direct. His anger is directed principally towards the fact that he was being filmed and to the person doing the filming. Further, in light of the extremity of Young's conduct in the recording, there is a real danger of unfair prejudice to him due to the risk that the recording would leave any viewer with the impression that he is generally a violent and angry person who would be more likely to commit a murder, such that the evidence ought to be excluded.

Relationship evidence the admissibility of which is not objected to

1. On 16 February 2023, an incident occurred. McGuire told her family and friends about this incident which involved Young kicking the driver's side door of McGuire's vehicle about five times and damaging it. Shortly thereafter Young fixed the damage. She also spoke of the incident in a hand-written statement to police, that she made when she attended at Ballarat police station. Leading Senior Constable Parkinson took the hand-written statement. In that statement McGuire stated that she did not want Young charged and the damage was pretty much fixed. McGuire said to her mother that she had blocked Young's number and social media.
2. Between 10.00pm on 16 February 2023 and 5.07pm on 17 February 2023, McGuire says she received at least 37 phone calls from a no-caller ID number. McGuire answered at least one call, and heard Young talking.
3. On 17 February 2023, a second incident occurred.
4. McGuire told her family and friends about these family violence incidents. This included her mother, Debbie McGuire, her father Glenn McGuire, Hannah Leonard, Jaymie McDonald, and Abby Simpson. She also detailed it in a typed statement to police.

(1) In the morning, McGuire went to work at Delacombe Primary School and parked in the staff carpark. After work, she began driving home and saw Young drive past her on Whitelaw Avenue. Young was driving his orange Commodore Ute.

(2) Young did a U-turn into oncoming traffic and started following McGuire's vehicle with his ute. Young followed McGuire for about 15 minutes. He was driving so close that no other cars could get between their 2 vehicles. Young was honking his horn and waving his arms out the window. McGuire did a U-turn and headed back towards Delacombe on Wiltshire Lane. Young followed her, and then pulled up next to deceased by driving in the bicycle lane. Young overtook McGuire, forcing McGuire to apply her brakes to avoid a collision.

(3) McGuire locked her vehicle's doors when she saw Young got out of his vehicle. Young started banging on a passenger door and yelling at McGuire to "get out".

1. During this incident, McGuire called Debbie McGuire, who was with Glenn McGuire. McGuire told them what was happening. Glenn McGuire called Triple 000.
2. McGuire managed to drive away and drove straight to Ballarat police station to make a report against Young.
3. McGuire says she was:

(1) really scared at the time; and

(2) was worried that Young will continue to follow and harass her; and

(3) scared to be out of the house in case Young was just waiting for her.

1. In relation to this incident, McGuire told Jaymie McDonald she was upset when Young attended at the school.
2. The typed statement referred to above was taken by then Courtney Stevenson, then a constable of police. McGuire's statement contained the statement "I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury".
3. Constable Stevenson applied for an intervention order on 17 February 2023, which was granted.
4. On 18 February 2023, McGuire told Hannah Leonard that Young had called last night and said he was remorseful. She said they were figuring it out.
5. On 25 February 2023, McGuire told Kayla Males she was still communicating with Young because she wanted to keep it civil between them.
6. Sometime in February 2023, McGuire told Jaymie McDonald that she did not want to buy the house, and that she was apprehensive.

1. On 20 January 2024, McGuire called Jaymie McDonald to wish her a happy birthday. McGuire talked about her relationship with Young and did not know if she liked their relationship anymore or if it was what she wanted.
2. In January 2024, McGuire talked to Abby Simpson about issues Young had with alcohol. In the week prior to 16 March 2024, McGuire called Abby Simpson, and talked about Young's issue with alcohol.

1. McGuire says that on 15 March 2024, Young went out and got really drunk and was out all night.
2. On 17 March 2024, McGuire rang her mother and was whispering. She said "he" [Young] was in the lounge room, I'm in the bedroom". McGuire said she had packed an overnight bag with her passport and birth certificate.
3. McGuire told her family and friends about this incident, including her mother, father, Jaymie McDonald, Tayla Schefferle, Danielle McCann, Madeleine Nettleton and Tiffany Sarra.
4. On 18 March 2024, McGuire messaged Young stating that one of her parents would take her to collect personal items and her car. McGuire told her father that Young had taken the keys to her motor vehicle.
5. During the day, at school, McGuire told Tayla Schefferle she had broken up with Young, she was over him, and that there was no love or affection there anymore. McGuire parked her car in the school shed, she said because she was scared of Young, and that Young had taken the spare key.
6. On this date, McGuire told Danielle McCann she'd parked her car in some storage sheds to hide it from Young so he could not damage it like he had previously. McGuire said she did not know if she was safe and was going to speak to police, and her mum would take her. McGuire said Young was upset about the intervention order and she needed it to protect herself.
7. At 4.13pm on 18 March 2024, McGuire rang Tiffany Sarra and said she had broken up with Young. She wanted a receipt for the ute purchase. McGuire said she had had enough of Young going out and drinking and staying out all night and not coming home. McGuire could not put up with it anymore. McGuire had smoothed things over to get through the night and had taken some things, like her passport and left.
8. On 19 March 2024, in a conversation with Madeleine Nettleton, to a question if she was safe, McGuire said, "Um look I think" and then said she was getting a restraining order through solicitors.
9. On this date, McGuire attended the Commonwealth Bank and spoke with bank manager Terry Ryan. McGuire told Terry Ryan she had separated with her boyfriend. McGuire said she had removed her share of money from the joint savings account and no longer wished for automatic payments to continue.
10. On this date, McGuire told Madeleine Nettleton she had broken up with Young and asked her to witness bank documents in the following week.
11. On 20 March 2024, McGuire made contact with solicitor, Brooke Tamanika. McGuire told Abby Simpson about going to see a solicitor.
12. On this date, McGuire said to Danielle McCann Young was threatening to come to the school and was being very aggressive, and McGuire said she was staying with her parents over the Easter break.
13. On 27 March 2024, McGuire spoke to Abby Simpson and described Young's harassment via phone, and that she did not want to get back together with him.
14. On this date, McGuire attended the solicitor's office with her father for a conference. McGuire told Ms Tamanika that she was scared to attend the house because of Young's behaviour. McGuire said Young was a current beneficiary under her will and she wanted to remove him, and nominate her parents instead. The will was at her house in the safe.
15. On 28 March 2024, McGuire said to her mother that she saw Young on CCTV put her belongings outside and later move them to the shed. McGuire agreed that her mother would drive her to collect her property, arriving around 9.15pm.
16. In March 2024, McGuire told Bianca Gerrard she was glad to be split up with Young and she was going to see a solicitor about the house. McGuire said she had a solicitor who would help her work it out. McGuire said she was sorting the house out with the solicitors, and she was really happy and glad to be out of the relationship. She was done for good and excited to be a teacher and for her upcoming placement at Lal Lal Primary School.
17. In March 2024, McGuire told Jaymie McDonald that Young had taken the canopy off her vehicle. McGuire also told that Young that Young wanted to get back together and had provided a list of rules for him to abide by. The next day McGuire was crying because she said Young had broken one of the rules already.

1. On 3 April 2024, McGuire and Young were exchanging text messages about McGuire collecting property. McGuire told Caitlyn Stepnell that she was back at her mother's house.
2. On 4 April 2024, McGuire spoke to Abby Simpson via the phone and said Young was going away and she would use the time to collect her belongings. She declined any assistance.
3. McGuire said to Tia Stinchcombe was attending the Clunes hotel after netball training for a meal (sic)
4. At 9.30pm, McGuire sent Caitlyn Stepnell a Snapchat while seated in a car.

Category 1: Hearsay evidence concerning 16 to 17 February 2023

Category 1(c): taking of statements from the deceased

Category 2: Hearsay evidence concerning the deceased's relationship with the accused

Category 2(a): the accused's use of family violence

Category 3: Hearsay evidence concerning 15 to 27 March 2024

Category 3(b): the deceased attends on a solicitor

Category 4: Hearsay evidence concerning 2 April 2024

Category 5: Hearsay evidence concerning 3 April 2024

Category 6: Hearsay evidence concerning 4 April 2024

Depositions, 731: Hannah MCGUIRE (Handwritten statement dated 16 February 2023)

The deceased made a report to police about wilful damage to her vehicle by her ex-partner Lachlan YOUNG. The deceased did not want him charged to keep the peace and because the damage was almost fixed.

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Depositions, 736: Hannah MCGUIRE (statement dated 17 February 2023)

PRs regarding the accused causing damage to her vehicle: [4]-[7]

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

PRs regarding speaking with mother and seeking an intervention order from Ballarat Police Station: [7]-[8].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Blocking the accused's number and social media: [9].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Receipt of at least 37 calls from a no-caller ID number. The deceased could hear the accused's voice when she accidentally answered one call: [9]

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

PRs regarding second family violence incident (traffic): [10]-[15].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Attendance at Ballarat Police Station and making of statement: [16].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Depositions, 401: Leading Senior Constable Richard PARKINSON (statement dated 4 May 2024)

Deceased reported an argument with the accused over a house.

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

s 66A

The accused was asked to leave, and he started kicking the door the deceased's vehicle causing some damage.

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

s 66A

Depositions, 2180: Courtney STEVENSON (statement dated 10 August 2024)

The deceased attended the Ballarat police station and reported family violence against herself by her former partner, the accused: [6].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

Ruling: prosecution to lead only that "deceased attended Ballarat police station to make a report against Lachlan YOUNG".

No ruling required - admitted on basis that prosecution only lead that "deceased attended Ballarat police station to make a report against Lachlan YOUNG".

The deceased gave a formal statement which she signed: [7].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

The deceased was hesitant to pursue a civil order and also criminal charges: [10].

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

s 66A

LEDR Mk2 Summary Report (report dated 17 February 2023)

Family violence report - narrative of incident. Details the deceased's complaint to police, feelings and state of mind.

s 65(2)(a)

s 65(2)(b)

s 65(2)(c)

s 66A

Prosecution not likely to lead this document or previous representations at this stage. No ruling required.

Note: Prosecution not likely to lead this document or previous representations at this stage.

Depositions, 742: Remote application for Family Violence Safety Notice (application made on 17 February 2023)

Detailed account of the second family violence incident.

s 65(2)(b)

s 65(2)(c)

Prosecution not likely to lead this document or previous representations at this stage. No ruling required.

Note: Prosecution not likely to lead this document or previous representations at this stage.

Depositions, 195: Debbie MCGUIRE (statement dated 6 April 2024)

The deceased spoke about the first family violence incident: [8].

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value when evidence of conduct is conceded in jurat statement. Prejudicial when given by mother- distressed, partisan witness.

Also s135 argument- undue waste of time when the conduct described in HM statement is not disputed.

The deceased stayed over at her parents' house. During the second family violence incident, the deceased called her mother. Debbie McGuire called police: [9]

s 65(2)(b)

s 65(2)(c)

s 66A

Representation as drafted that HM called her mother is not objected to. However it is noted that Debbie McGuire did not call police herself.

Note: Glenn McGuire called police, not Debbie McGuire.

The deceased said that the accused hounded her to go back to their house: [10]

s 65(2)(b)

s 65(2)(c)

s 66A

Representation that "Lachlan and his family relentlessly hounded her" is not hearsay. It is a conclusion as to behaviour as to account of the behaviour.

-Alternatively exclusion argument s137 low probative value when it does not reveal actual conduct engaged in. Prejudice is high- likely to be misused, including conduct of LY's family members will be used against LY.

The deceased told her that most of the arguments were because of the accused's drinking problems, problems with alcohol and the way he treated her in general: [12]

s 65(2)(b)

s 65(2)(c)

Circumstances in which the representation(s) were made are unclear. Sweeping statement. Do not know when said or whether said one conversation or multiple, context of representation(s) etc. Unable to say whether circumstances make it unlikely to be a fabrication (2(b)) or highly reliable (2)(c)). HM is not always honest with her mother about the status of the relationship.

Alternatively is found to meet hearsay exception should be excluded under s137- low probative value when circumstances are so unclear.

The deceased said that the accused went out on 15 March 2024 and got really drunk and was out all night: [14]

s 65(2)(b)

s 65(2)(c)

The deceased rang on 17 March 2024 and was whispering. She said "he" [the accused] was in the lounge room, I'm in the bedroom: [15]

s 65(2)(b)

s 65(2)(c)

The deceased said "no no mum, please don't I have a plan". The deceased explained her plan to leave the accused the next day. She planned on spending the night with the accused: [16]

s 65(2)(b)

s 65(2)(c)

s 66A

The deceased said she had packed an overnight bag with her passport and birth certificate: [17]

s 65(2)(b)

s 65(2)(c)

The deceased messages the accused that one of her parents would take her to collect personal items and her car: [20]

s 65(2)(b)

s 65(2)(c)

s 66A

The deceased made contact with Brooke Tamanika: [24]

s 65(2)(b)

s 65(2)(c)

The deceased told her mother about what happened when she made contact to return her house keys. The deceased felt unsafe: [25]

s 65(2)(b)

s 65(2)(c)

Circumstances of the representation(s) to Debbie McGuire unclear. No information as to when representations made and in what circumstances (face to face, over phone etc). Not an incident complained about in IVO Application. IVO Application made the following day. Argument that Court could not be satisfied it is made in circumstances where unlikely to be a fabrication or highly reliable.

Alternatively exclusion argument s137- low probative value when committed to signed IVO Application the following day. Prejudice of not being able to cross-examine HM as to why not in IVO Application.

The deceased said that she saw the accused put her belongings outside and later move them to the shed on CCTV: [28]

s 65(2)(b)

s 65(2)(c)

The deceased agreed that her mother would drive her to collect her property, arriving around 9.15pm: [30]

s 65(2)(b)

s 65(2)(c)

The deceased and the accused were exchanging text messages about the deceased collecting property: [37]

s 65(2)(b)

s 65(2)(c)

The deceased was unsure if the accused had been served a copy of the intervention order: [37]

s 65(2)(b)

s 65(2)(c)

Unclear whether hearsay. It should be noted that the interim IVO applied for and granted in March 2024 was a "safe contact" IVO which did not prohibit contact.

Depositions, 207: Glenn MCGUIRE (statement dated 15 May 2024)

The deceased called and said "he's chasing me" and "he's trying to run off me off the road": [11]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value when evidence of conduct is conceded in jurat statement. Prejudicial when given by father- distressed, partisan witness.

Also s135 argument- undue waste of time when the conduct described in HM statement is not disputed.

The deceased was yelling and screaming on the phone: [12]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value when evidence of conduct is conceded in jurat statement. Prejudicial when given by father- distressed, partisan witness.

Also s135 argument- undue waste of time when the conduct described in HM statement is not disputed.

s 65(2)(b)

s 65(2)(c)

s 66A

Inconsistent with paragraph [4] of jurated statement of HM. Evidence does not meet the threshold for admission for understand (2)(b) and (2)(C).

Alternatively s137 and s135 arguments.

The deceased said it was easier to do what the accused wanted: [16]

s 65(2)(b)

s 65(2)(c)

This representation has its context in paragraph [14] which is not sought to be relied upon by the Prosecution. Hence if this paragraph were to remain it is taken out of context.

The circumstances of the representation unclear- not clear whether GM and HM had the conversation.

-Exclusionary argument s137- low probative value.

The deceased could not go anywhere alone without the accused: [18]

s 65(2)(b)

s 65(2)(c)

This representation is not hearsay, but rather the opinion of GM.

The deceased said that the accused had taken the keys to her motor vehicle: [24]

s 65(2)(b)

s 65(2)(c)

Depositions, 248: Hannah LEONARD (statement dated 6 April 2024)

The deceased was upset and related the events of the first and second known family violence incidents: [8]

s 65(2)(b)

s 65(2)(c)

s 66A

Representation as drafted is not objected to. This witness can give evidence of being told about the incidents involving damage to car and following her but it is unnecessary that she gives an imperfect recitation of what HM told her when the contents of the jurated statement is not in dispute.

The deceased said that the accused had called last night and said he was remorseful. She said they were figuring it out: [10]

s 65(2)(b)

s 65(2)(c)

Depositions, 253: Jaymie MCDONALD (statement dated 23 May 2024)

The deceased did not want to buy the house. She was very apprehensive: [6]

s 65(2)(b)

s 65(2)(c)

Representation as drafted is not objected to save for the word "very".

No ruling required. The word "very" not to be adduced.

The deceased told Jaymie McDonald about problems in her relationship with the accused: [8]

s 65(2)(b)

s 65(2)(c)

Representation as drafted is not objected to. The detail and opinions of Ms McDonald in this paragraph would be.

Note: The detail and opinions of Ms McDonald in this paragraph would be contested.

The deceased talked about when the accused kicked her car and she left: [9]

s 65(2)(b)

s 65(2)(c)

Representation as drafted is not objected to. This witness can give evidence of being told about the incidents involving damage to car and following her but it is unnecessary that she gives an imperfect recitation of what HM told her when the contents of the jurated statement is not in dispute.

The deceased was upset, and upset when the accused attended at the school: [11]

s 65(2)(b)

s 65(2)(c)

Representation as drafted is not objected to. This witness can give evidence of being told about the incidents involving damage to car and following her but it is unnecessary that she gives an imperfect recitation of what HM told her when the contents of the jurated statement is not in dispute.

The deceased related something about the accused's driving, and that she got an IVO: [12]

s 65(2)(b)

s 65(2)(c)

The representation here is too vague and does not meet the requirements under s65(2)(b) or (c). It is not consistent with the unchallenged statement of HM and the reason why she applied for an IVO.

Alternatively exclusionary argument s137- low probative value and highly prejudicial.

During Jaymie McDonald's 21st birthday, the deceased said that the accused was messaging her constantly telling her to go home and stop having fun. She was upset: [20]

s 65(2)(b)

s 65(2)(c)

s 66A

Second hand hearsay. Appears messages are never sighted.

Alternatively exclusionary argument s137- low probative value. To put the evidence in context LY would be force to introduce messages of purported infidelity.

The deceased talked about her relationship with the accused and did not know if she liked their relationship anymore or if it was what she wanted: [21]

s 65(2)(b)

s 65(2)(c)

s 66A

The deceased said that the accused was manipulating her: [21]

s 65(2)(b)

s 65(2)(c)

s 66A

This sweeping statement about manipulation is objected to.

Appears to be numerous conversations and messages between the witness and HM which leads her to this opinion/conclusion.

-Alternatively exclusionary argument s137- low probative value or s135 argument. Type of evidence prone to be misused by jury. Inability of LY to cross-examine about behaviour that led to the conclusion. Rather than saying "I felt manipulated" she is saying "he's trying to manipulate me", which brings it outside s 66A.

The deceased relayed the incident on 17/03/2024: [22]

s 65(2)(b)

s 65(2)(c)

Later that evening, via Snapchat, the deceased said that the accused had choked, kicked, punched and threw her to the floor: [23]

s 65(2)(b)

s 65(2)(c)

Second hand hearsay. Messages are no longer available.

HM is said to have written a Snapchat, Ms McDonald then reads the Snapchat and gives evidence of its contents.

Alternatively the evidence should not be admitted under s65(2)(b) or (c).

Alternatively exclusionary argument under s137. Prejudice of not being able to cross-examine HM about inconsistent accounts. Probative value minimal where representations are wide and vague.

The deceased had let the accused take the canopy off her vehicle: [29]

s 65(2)(b)

s 65(2)(c)

One day, the deceased said that the accused wanted to get back together and had provided a list of rules for him to abide by. The next day the deceased was crying because she said the accused had broken one of the rules already: [32]

s 65(2)(b)

s 65(2)(c)

Depositions, 267: Abby SIMPSON (statement dated 11 April 2024)

The deceased relayed part of the first known family violence incident: [4]

s 65(2)(b)

s 65(2)(c)

The deceased talked about issues the accused had with alcohol: [9]

s 65(2)(b)

s 65(2)(c)

The deceased called and said she was extremely upset with the accused because of how he was talking to and about her, in front of his friends: [10]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value given the inherent ambiguity about what was said. Vague, lacking in detail and temporal proximity to death.

The deceased would complain about the accused yelling at her: [13]

s 65(2)(b)

s 65(2)(c)

Due to lack of detail, unable to conclude whether exceptions are enlivened.

Alternatively, exclusionary argument s137- low probative value given the inherent ambiguity and vagueness about what was said. Witness gives inadmissible opinion evidence in this paragraph. Also low probative value where LY concedes there were issues in the relationship which caused disagreements.

Note: Prosecution no longer relies on s 65(2)(b).

In the week prior to 16 March 2024, the deceased would call and talk about the accused's issue with alcohol: [15]

s 65(2)(b)

s 65(2)(c)

The deceased called relayed the incident with the accused on 17/03/2024, including that the accused had hit her: [16]

s 65(2)(b)

s 65(2)(c)

Representations do not meet the threshold for admission under s65(2)(b) & (c) when looked at in the circumstances of previous utterances of HM.

-Alternatively exclusionary argument s137- unfair prejudice about not being about to cross-examine HM about various representations. Further s135 argument.

The deceased relayed the events from overnight, and that day, including the accused taking her car keys: [19]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value given evidence of other witnesses. No direct evidence that keys were taken.

Note: portion from "by this time" (fourth last line) onwards not sought to be led.

In a conversation that night, the deceased said she had moved in with her parents, and that the accused had transferred monies to her and his sister: [22]

s 65(2)(b)

s 65(2)(c)

The first representation re HM moving in with her parents is not objected to. LY transferring money to her and his sister is related to his suicide attempt and is highly prejudicial and ought to be excluded under s 137. The Defence make separate application for this evidence to be excluded in the trial.

Note: totality of [22] not sought to be led, only substance described in this table.

At work, the deceased said the accused had turned up in Ballarat: [25]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument s137- low probative value.

No ruling required (admitted, provided the words are "the accused was in Ballarat", rather than "turned up").

The deceased described her attendance on a solicitor: [26]

s 65(2)(b)

s 65(2)(c)

The detail contained in paragraph 26 is objected to.

The deceased described the accused being physically violent with her: [28]

s 65(2)(b)

s 65(2)(c)

Second hand hearsay. Messages are no longer available.

HM is said to have written a Snapchat, Ms Simpson then reads the Snapchat and gives evidence of its contents.

Alternatively the evidence should not be admitted under s65(2)(b) or (c).

Alternatively exclusionary argument under s137. Prejudice of not being able to cross-examine HM about inconsistent accounts.

Note: Entirety of second sentence sought to be led.

Note: Prosecution no longer relies on s 65(2)(b).

The deceased described the accused's harassment via phone, and that she did not want to get back together with him: [29]

s 65(2)(b)

s 65(2)(c)

The deceased described an incident of harassment and violence at the house: [30]

s 65(2)(b)

s 65(2)(c)

The words "harassment" and "violence" are not contained anywhere in paragraph 30.

Further the circumstances cannot be said to be unlikely to be a fabrication or highly likely to be reliable.

-Alternatively exclusionary argument s137- low probative value, unfair forensic prejudice.

Further s135 argument

Where it appears Ms Simpson is wrong as to the date of this incident.

Debbie McGuire can give direct evidence about this incident diminishing the probative value of this evidence.

The deceased called and spoke about going to collect her belongings from the house, and the accused damaging her clothes: [31]

s 65(2)(b)

s 65(2)(c)

The circumstances cannot be said to be unlikely to be a fabrication or highly likely to be reliable. No direct evidence of damage to clothes.

-Alternatively exclusionary argument s137- low probative value.

Further s135 argument

where it appears Ms Simpson's version is contradicted by Debbie McGuire who can give direct evidence about this incident diminishing the probative value of this evidence.

The deceased spoke on the phone and said the accused was going away and she would use the time to collect her belongings. She declined any assistance: [34]

s 65(2)(b)

s 65(2)(c)

Depositions, 233: Kayla MALES (statement dated 29 April 2024)

The deceased rang and told her about the second family violence incident: [11]

s 65(2)(b)

s 65(2)(c)

s 66A

Representations do not meet the threshold for admission under s65(2)(b) & (c). Exclusionary argument s137- low probative value where Ms Males appears to have conflated the two February 2023 incidents.

Alternatively s135 argument- undue waste of time when the conduct described in HM statement is not disputed, and was contemporaneous.

The deceased had told her about another incident when the accused stole her car keys and screamed and yelled at her: [11]

s 65(2)(b)

s 65(2)(c)

Representations do not meet the threshold for admission under s65(2)(b), and not enough detail to meet s65(c). Exclusionary argument s137- low probative value where Ms Males appears to be wrong about the circumstances of the February 2023 incidents.

Alternatively s135 argument- undue waste of time when the conduct described in HM statement is not disputed

After visiting the police station, the deceased stayed with Kayla Males because she was afraid the accused may turn up at her family house: [12]

s 65(2)(b)

s 65(2)(c)

s 66A

It is unclear whether HM being scared is an opinion of Ms Males based of the February 2023 events or what Ms Males was told by HM.

Alternatively s137- low probative value.

The deceased thought it was safer to go to another friend's house: [13]

s 65(2)(b)

s 65(2)(c)

s 66A

It is unclear whether HM thinking it was safer is an opinion of Ms Males based of the February 2023 events or what Ms Males was told by HM.

Alternatively s137 exclusionary argument- low probative value.

The deceased told her later about an intervention order and that the accused was charged and went to court: [14]

s 65(2)(b)

s 65(2)(c)

Relevance to a fact in issue in the case. The making of the intervention order in February 2023 is not in dispute.

Alternatively s137 exclusionary argument- danger of unfair prejudice. Appears that Ms Males is also wrong about LY being charged with being charged for any conduct concerning the intervention order in favour of HM.

The deceased said she was still communicating with the accused because she wanted to keep it civil between them: [15]

s 65(2)(b)

s 65(2)(c)

The deceased said that the accused would often drink which upset her: [21]

s 65(2)(b)

s 65(2)(c)

s 66A

s137 exclusionary argument- danger of unfair prejudice. There is other evidence in this trial about HM being upset about LY alcohol use which is not connected to highly prejudicial material contained in the balance of this paragraph. Lack of temporal detail.

Note: only the words "Lachlan would often drink which Hannah voiced upset her" sought to be led.

The deceased said that the accused would not let her visit Kayla Males interstate: [23]

s 65(2)(b)

s 65(2)(c)

s 66A

Circumstances in which the representation(s) were made are unclear. Sweeping statement. Do not know when said or whether said one conversation or multiple, context of representation(s) etc. Unable to say whether circumstances make it unlikely to be a fabrication (2(b)) or highly reliable (2)(a)). The timing of these conversations is unknown.

Alternatively is found to meet hearsay exception should be excluded under s137- low probative value when circumstances are so unclear. Defence unable to cross-examine.

Depositions, 217: Danielle MCCANN (statement dated 24 April 2024)

The deceased told her that the accused was "often very verbally abusive towards her": [4]

s 65(2)(b)

s 65(2)(c)

Principally s137 exclusionary argument - low probative value when circumstances are so unclear. Defence unable to cross-examine. Circumstances in which the representation(s) were made are unclear. Sweeping statement. Do not know when said or whether said one conversation or multiple, context of representation(s) etc. Unable to say whether circumstances make it unlikely to be a fabrication (2(b)) or highly reliable (2)(c)). The timing of these conversations is unknown.

The deceased said she'd broken up with the accused again after an altercation at home - about 3 weeks ago [end of March 2024]: [7]

s 65(2)(b)

s 65(2)(c)

s137 exclusionary argument- low probative value given non-specific details of the altercation. Danger of unfair prejudice as jury will speculate she meant physical altercation where no detail is provided.

The deceased said she had no house and car keys and no way of getting back into her house, because the accused must have taken and hidden them: [8]

s 65(2)(b)

s 65(2)(c)

HM seems to be speculating. Does not get through hearsay thresholds. Otherwise,

exclusionary argument s137- low probative value given what LY is alleged to have said and evidence of other witnesses.

The deceased said she had to get her spare key for her car to get to work and wasn't sure how she would get into her house and get her belongings: [9]

s 65(2)(b)

s 65(2)(c)

Unable to say whether circumstances make it unlikely to be a fabrication (2(b))

Exclusionary argument s137- low probative value.

Alternatively s135 argument- undue waste of time when the conduct described in HM statement is not disputed

The deceased said she'd parked her car in some storage sheds to hide it from the accused so he couldn't damage it like he had previously: [10]

s 65(2)(b)

s 65(2)(c)

The deceased responded she didn't know if she was safe and was going to speak to police, and her mum would take her: [11]

s 65(2)(b)

s 65(2)(c)

The deceased said the accused was upset about the intervention order and she needed it to protect herself: [19]

s 65(2)(b)

s 65(2)(c)

The deceased said she had withdrawn money from a joint account with the accused so she could keep making home loan payments: [20]

s 65(2)(b)

s 65(2)(c)

Irrelevance or exclusionary argument s137- low probative value. Prejudice about LY being financially irresponsible.

The deceased said the accused was upset and would become angry and aggressive: [21]

s 65(2)(b)

s 65(2)(c)

Circumstances in which the representation(s) were made are unclear. Sweeping statement. Do not know when said or whether said one conversation or multiple, context of representation(s) etc. Unable to say whether circumstances make it unlikely to be a fabrication (2(b)) or highly reliable (2)(a)). The timing of these conversations is unknown.

Alternatively is found to meet hearsay exception should be excluded under s137- low probative value when circumstances are so unclear. Defence unable to cross-examine.

Note: Prosecution no longer relies on s 65(2)(b).

The deceased said she couldn't get her belongings out of the house and the accused was threatening to throw her stuff outside: [22]

s 65(2)(b)

s 65(2)(c)

Circumstances in which the representation(s) were made are unclear. Unable to say whether circumstances make it unlikely to be a fabrication (2(b)) or highly reliable (2)(c)). The timing of these conversations is unknown.

Alternatively is found to meet hearsay exception should be excluded under s137- low probative value when circumstances are so unclear. Defence unable to cross-examine.

The deceased said the accused was threatening to come to the school and was being very aggressive: [23]

s 65(2)(b)

s 65(2)(c)

The deceased said she was staying with her parents over the Easter break: [27]-[28]

s 65(2)(b)

s 65(2)(c)

The deceased said she had gone with her mum to get her belongings. There was a red soft drink poured onto her clothes damaging them: [29]

s 65(2)(b)

s 65(2)(c)

The circumstances cannot be said to be unlikely to be a fabrication or highly likely to be reliable.

Alternatively exclusionary argument s137- low probative value.

Further s135 argument

where it appears Ms McCann's version is contradicted by Debbie McGuire who can give direct evidence about this incident diminishing the probative value of this evidence.

The deceased said there was a group of friends at the accused's house yelling and screaming at her: [30]

s 65(2)(b)

s 65(2)(c)

The conduct of other persons is irrelevant and invites unfair prejudice that the person associates with people of disrepute.

Depositions, 244: Madeleine NETTLETON (statement dated 12 April 2024)

The deceased said three or four times that she had broken up with the accused but got back together: [6]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument s137- low probative value where this evidence is inconsistent with other evidence regarding the break ups.

Note: Prosecution no longer relies on s 65(2)(b).

The deceased said she had broken up with the accused and asked her to witness bank documents: [11]

s 65(2)(b)

s 65(2)(c)

Representation as drafted is not objected to however should be made clear the next week Ms Nettleton was asked to witness bank documents.

No ruling required (admitted subject to amendment as proposed).

The deceased said she had a past restraining order but they got back together after it passed: [12]

s 65(2)(b)

s 65(2)(c)

Irrelevance. Exclusionary argument s137- low probative value where this evidence is plainly wrong .

Note: Prosecution no longer relies on s 65(2)(b).

The deceased said in a number of messages that the breakup was messy, the accused had taken her keys and she had had to break into her house to get her stuff out: [13]

s 65(2)(b)

s 65(2)(c)

Second hand hearsay (unless the messages have been retained).

Exclusionary argument s137- low probative value where the different accounts on this topic.

Further s135 argument.

To a question if she was safe, the deceased said "Um look I think" and then said she was getting a restraining order through solicitors: [14]

s 65(2)(b)

s 65(2)(c)

s 66A

Depositions, 306: Brooke TAMANIKA (statement dated 2 July 2024)[244]

The deceased attended with her father for a conference about her separation with the accused and family violence concerns: [18]

s 65(2)(b)

s 65(2)(c)

Ruling required - defence object to words "family violence".

The deceased outlined significant concerns about family violence, including instances of violence: [19]

s 65(2)(b)

s 65(2)(c)

The reference to "instances of violence" is objected to because of its generality. Ms Tamanika did not seek particulars and could not provide any during cross-examination at s198B hearing.

This inherent ambiguity means the evidence has a low probative value. It is the type of evidence prone to be misused by jury. Inability of LY to cross-examine about what was meant by "violence" elevates prejudice.

The deceased discussed an incident in 2023 when the accused had run her off the road while she was driving and an IVO was obtained: [19]

s 65(2)(b)

s 65(2)(c)

Objection is made to reference to "running her off the road" but reference can be made to the February 2023 incidents.

After the IVO finished, the deceased said that the accused became violent again: [20]

s 65(2)(b)

s 65(2)(c)

The reference to "became violent again" is objected to because of its generality.

This inherent ambiguity means the evidence has a low probative value. It is the type of evidence prone to be misused by jury. Inability of LY to cross-examine about what was meant by "became violent again" elevates prejudice.

The deceased was scared to attend the house because of the accused's erratic behaviour: [21]

s 65(2)(b)

s 65(2)(c)

Objection to any reference to erratic behaviour or drugs (which sits behind the reference to erratic behaviour).

Note: proceeding on basis that it will say "the deceased was scared to attend the house because of the accused's behaviour".

The deceased said the accused was a current beneficiary under her Will and she wanted to remove him, and nominate her parents instead. The Will was at her house in the safe: [22]

s 65(2)(b)

s 65(2)(c)

The deceased said she had two dogs registered in her name and wouldn't mind if the accused kept them because it would cause too many issues if she wanted to keep them: [24]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument s137- low probative value

Depositions, 240: Caitlyn STEPNELL (statement dated 20 May 2024)

The deceased would mention that the accused would be waiting in the car for her when she would go to Caitlyn Stepnell to get her hair done: [5]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument s137- low probative value. Temporal disconnect.

Note: Prosecution no longer relies on s 65(2)(b).

The deceased said that the accused did not like to be left alone, which resulted in her attending to get her hair and lashes done less often: [6]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument s137- low probative value. Temporal disconnect. There are other reasons why a young person who had just bought a house didn't have the disposal income to go to the hairdresser as regularly.

The deceased said the accused did not permit her to take their new puppy to her mother without the accused: [8]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument s137- low probative value. Temporal disconnect.

The deceased messaged her on Snapchat and said "I'm free of this woman basher": [11]

s 65(2)(b)

s 65(2)(c)

Second hand hearsay. Messages are no longer available.

Alternatively the evidence should not be admitted under s65(2)(b) or (c).

Alternatively the reference to "I'm free of this woman basher" is objected to because of its generality - exclusionary argument.

This inherent ambiguity means the evidence has a low probative value. It is the type of evidence prone to be misused by jury. Inability of LY to cross-examine about what was meant elevates prejudice.

The deceased said she was back at her mother's house: [11]

s 65(2)(b)

s 65(2)(c)

The deceased sent a Snapchat while seated in a car: [12]

s 65(2)(b)

s 65(2)(c)

Depositions, 225: Tiffany SARRA (statement dated 11 April 2024)

The deceased rang and said she had broken up with the accused. She wanted a receipt for the Ute purchase: [10]

s 65(2)(b)

s 65(2)(c)

The deceased said she had had enough of the accused going out and drinking and staying out all night and not coming home. The deceased couldn't put up with it anymore: [10]

s 65(2)(b)

s 65(2)(c)

The deceased said the accused had been drinking and going out [all weekend] and they'd had a disagreement. The deceased said the accused had grabbed her by a necklace around the neck and snapped it off: [10]

s 65(2)(b)

s 65(2)(c)

The evidence should not be admitted under s65(2)(b) or (c). HM has given multiple inconsistent accounts on this topic.

Alternatively exclusionary argument under s137. Low probative value because of inconsistent accounts. Prejudice of not being able to cross-examine HM about inconsistent accounts. Also, competing accounts raises s 135 argument.

Note: defence also rely on s 135.

The deceased had smoothed things over to get through the night and had taken some things, like her passport and left: [10]

s 65(2)(b)

s 65(2)(c)

The deceased wrote that it's all going through a solicitor: [12(b)] amongst other messages: [12]

s 65(2)(b)

s 65(2)(c)

The representation about the Accused going through a solicitor is not objected to. The other messages are irrelevant.

Note: substance of representation to be: ''Is it definitely over?', 'I'm good yeah'. 'So it's all going through solicitors'.

Depositions, 264: Tayla SCHEFFERLE (statement dated 6 June 2024)

The deceased said she had broken up with the accused, she was over him, and that there was no love or affection there anymore: [7]

s 65(2)(b)

s 65(2)(c)

The deceased said that the accused would sometimes strangle her, and had broken a few necklaces when he had strangled her. On occasions he had hit her: [7]

s 65(2)(b)

s 65(2)(c)

The evidence should not be admitted under s65(2)(b) or (c). There is no temporal connection for it being shortly after.

HM has given multiple inconsistent accounts on this topic.

Alternatively exclusionary argument under s137. Low probative value because of inconsistent accounts. Prejudice of not being able to cross-examine HM about inconsistent accounts.

Note: Prosecution no longer relies on s 65(2)(b).

The deceased parked her car in the school shed, she said because she was scared of the accused, and that the accused had taken the spare key: [8]

s 65(2)(b)

s 65(2)(c)

The deceased said she had been to the bank and signed something to stop the accused taking money out of their joint mortgage account: [9]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument under s137. Low probative value given the breakdown of the relationship. High degree of prejudice as bad character evidence about LY that he would waste or steal money.

Note: defence don't want suggestion of accused taking money out of account.

Depositions, 311: Terry RYAN (statement dated 2 July 2024)

The deceased said she had separated with her boyfriend: [4]

s 65(2)(b)

s 65(2)(c)

The deceased said she had removed her share of money from the joint savings account and no longer wished for automatic payments to continue: [6]

s 65(2)(b)

s 65(2)(c)

The deceased said she did not want the accused to have the ability to redraw any payments that she had paid into the account: [7]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument under s137. Low probative value and prejudicial implications.

The deceased said she wanted to continue paying the mortgage even if it meant paying more than her share (because the accused stopped paying): [8]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument under s137. Low probative value and prejudicial implications.

The deceased wanted to show that she had been responsible for particular payments: [9]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument under s137. Low probative value and prejudicial implications.

Depositions, 291: Bianca GERRARD (statement dated 5 May 2024)

The deceased said she was glad to be split up with the accused and she was going to see a solicitor about the house: [7]

s 65(2)(b)

s 65(2)(c)

The deceased said she'd moved out and the accused had thrown her stuff on the street: [8]

s 65(2)(b)

s 65(2)(c)

The evidence should not be admitted under s65(2)(b) or (c).

Alternatively exclusionary argument under s137. Low probative value given the other evidence on this issue.

The deceased said cash she'd earnt from working at her parents' pub was missing from the safe in her house: [8]

s 65(2)(b)

s 65(2)(c)

The evidence should not be admitted under s65(2)(b) or (c).

Alternatively exclusionary argument under s137. Low probative value given the breakdown of the relationship. High degree of prejudice as bad character evidence about LY inferring that he would steal money

The deceased said she had a solicitor who would help her work it out: [8]

s 65(2)(b)

s 65(2)(c)

The deceased said she took out all her money out of the account as soon as she could after the separation: [8]

s 65(2)(b)

s 65(2)(c)

Alternatively exclusionary argument under s137. Low probative value

The deceased said she was sorting the house out with the solicitors and she was really happy and glad to be out of the relationship: [10]

s 65(2)(b)

s 65(2)(c)

s 66A

She was done for good and excited to be a teacher and for her upcoming placement at Lal Lal Primary School: [10]

s 65(2)(b)

s 65(2)(c)

s 66A

Depositions, 338: Tia STINCHCOMBE (statement dated 24 April 2024)

The deceased mentioned she wasn't with the accused anymore and that it was bad: [8]

s 65(2)(b)

s 65(2)(c)

Exclusionary argument under s137. Low probative value

The generality of this statement deprives it of any probative value.

How can this be reliable/ unlikely to be fabrication etc- lying to them at that very moment about the nature of her relationship with LY when she was attending his house that night.

The deceased said she was attending the Clunes hotel after netball training for a meal: [9]

s 65(2)(b)

s 65(2)(c)

During a highlight/lowlight session, the deceased said her lowlights were multiple including: "bad breakup ... I've lost everything he's taken everything from me ... I have to buy new clothes online ... It's horrible I can't even go and get my clothes ... Don't go through a bad break up it's horrible": [11]

s 65(2)(b)

s 65(2)(c)

s 66A

Whilst we would concede the comment about going through a bad break up, the remainder of the representations are disputed.

Exclusionary argument under s137. Low probative value

The generality of this statement deprives it of any probative value.

How can this be reliable/ unlikely to be fabrication etc- lying to friends at that very moment about the nature of her relationship with LY when she was attending his house that night.

Ruling required in relation to everything except 'bad breakup'.

Depositions, 348: Kyle DOWNS (statement dated 12 April 2024)

The deceased was happy and making plans about what she was wearing to a Ken & Barbie party in Ballarat at Piano Bar: [5]

s 65(2)(b)

s 65(2)(c)

s 66A

Prosecution comment: prosecution abandon this representation.

The deceased sent a Snapchat message at 1.50am lying on a bed and looking visibly upset: [8]

s 65(2)(b)

s 65(2)(c)

s 66A

Second hand hearsay. Messages are no longer available.

HM is said to have written a Snapchat, Mr Downs then reads the Snapchat and gives evidence of its contents.

Alternatively exclusionary argument under s137. Prejudice of not being able to cross-examine about the message having never sighted it.

Hannah rang me on the night of Monday the 18th March at 4.13pm and told me that she had broken up with Lachie...

...Hannah told me that Lachie had been out on and off drinking all weekend. He'd been drinking and then coming home to sleep for a while, and then going out drinking again. Hannah said that he had just come home again late and they'd had a disagreement. Hannah told Lachie that she wanted to leave but he said no. Hannah said that Lachie had grabbed her by a necklace around the neck and had snapped it off. Hannah said after that she had smoothed things over with Lachie just so she could get through the night with him and so that she could gather some things like her passport before she left for good the next morning.

Statement of Tiffany Sarra dated 11 April 2024, [10].

Hannah told me that Lachie would sometimes strangle her and had broken a few of her necklaces when he had strangled her...

Hannah didn't go into a lot more detail about the breakup or about her having been assaulted.

Statement of Tayla Schefferle dated 6 June 2024, [7].

She was playing with her left hand and I asked if there was something wrong with her hand. She said she had punched a wall Sunday in anger and had bent her thumb nail back and it was painful. I said "Did you have a fight". She said yes we had a big fight and I punched the wall. At this time, I noticed that her necklace, that she always wore, wasn't on her neck. I asked her and she said that it got caught on his shirt or as he walked past or something during the Sunday argument. I really wanted to ask more thinking he'd assaulted her which caused it to break but I didn't because she just needed comforting at that time. The necklace was silver with an infinity sign on it and it also had attached a ring made up of lots of little hearts that Lachie had given to her.

Statement of Jaymie McDonald dated 23 May 2024, [22].

And the broken necklaces, did you ask her any further details about what had happened for these necklaces to be broken?

---He just said she used to just strangle like - it'd be really tight and yeah, to the point that they'd break.

Section 198B examination evidence - Jaymie McDonald.

You didn't ask about any of these incidents, the strangling, the necklace or the hitting, 'Well, when did they occur, Ms McGuire?' Is that true?

Section 198B examination evidence - Jaymie McDonald.

On Sunday 17 March 2024, early in the afternoon Hannah rang me. She was hysterical and so upset I could barely understand what she was saying. She said she needed help and that Lachie had hit her and she needed to get out. I immediately went to her house, Lachie wasn't home when I arrived and I didn't know where he had gone. Hannah didn't appear to have any physical injuries and didn't mention having any. Her necklace was broken and she said this was because it got caught on his hand as he walked past her.

Statement of Abby Simpson dated 11 April 2024, [16].

The entrance door of the house opened directly into the loungeroom. The loungeroom was a carpeted area containing various items of furniture including couches, a coffee table, clothes drying on a rack and a wall mounted television fitted to the south wall above a television cabinet. There were several items arranged on top of the cabinet including a pair of black 'Nike' runners placed with toes pointing in towards a mobile phone case and a silver-coloured necklace. The necklace had an 'infinity' charm attached to it and the chain was broken and had detached from one side of the charm. I collected this broken necklace.

Statement of Leading Senior Constable Leah Symonds dated 26 May 2024, Page 2.

Q 832 Lachy, since your arrest we've had specialist forensic police officers at your house conducting an examination. We found blood in your garage under a bench. We found a broken necklace in your lounge room.

A The necklace was from Sunday the 17th, the necklace and the ring on the - it's on the TV unit, the necklace and the ring next to her TNs.

A We had a argument on the Sunday and there's a ripped Santa Cruz singlet there of mine in the premises. We had an argument on Sunday and she grabbed - there was, like, push and pulling of each other and she ripped my singlet and my hand got caught around her necklace on Sunday the 17th and it ripped her necklace. And her necklace has been on that TV unit for three weeks and everybody that has been over can be seen - can be asked that the necklace has been there for three weeks.

Transcript of formal record of interview - Lachlan Young - 7 to 8 April 2024 with DSC Allen, page 93, Q&A 832 - 834

L Young: no, they found a fuckin' broken necklace

From fuckin' 12 months ago, like, one of her necklaces that was - she still had there.

L Young: And they're like, oh, yeah (inaudible) you fuckin' bashed her on Friday night - on Thursday night (inaudible) necklace. And then that's what the bloody machetes and everything got fuckin' dried blood from fuckin' me old man and shit. And a necklace from fuckin' 12 months ago. And that's all they've got out of the house. They've got nothin'. There's no weapons.

There's nothin' fuckin' missin'. No knives missin' from the knives area there's no fuckin' illicit weapons in there. There's no drugs like, there's nothin'.

Transcript of audio recording - covert operative exchange with Lachlan Young on 8 April 2024

L Young: Then they're like what about the necklace? I said, ask everyone that's been around to me house the last month about the necklace. It's been in the same spot for the last month. I was like, I'll give you the names of every cunt that's been over to the house.

L Young: And ask 'em where that necklace has been. And, like, they shut down straight away. They shit their pants. They're like, oh, we'll pause the interview and we'll continue it later.

Transcript of audio recording - covert operative exchange with Lachlan Young on 8 April 2024

C.O. Frankie: Is there fuckin' like, uh, like, recent photos of her on your phone and shit with that fuckin' necklace on?

L Young: No, like, she hadn't had that necklace on for 12 momths [sic].

C.O. Frankie: Okay. 'Cause it was broken or 'cause she just didn't wear it?

C.O. Frankie: Yeah, okay. Know what I mean - I'm just trying to think for ya -

L Young: (inaudible) stupid cunt. Like, they said (inaudible) that broken necklace. I said to the stupid cunts, I said, if she was wearing that necklace the day before.

L Young: And I done this. Do you really reckon I'd keep the fuckin' necklace there on the fuckin' table for you cunts to see when you first walk in?

Transcript of audio recording - covert operative exchange with Lachlan Young on 8 April 2024

[1] No image was taken of the Snapchat before it was automatically deleted.

[2] See pars 630-635 below.

[3] That is, sedate her by giving her flunitrazepam, a benzodiazepine commonly known by the trade name "Rohypnol".

[4] See annexure A to these reasons. For clarity, while the defence do not challenge the admissibility, the truth of the evidence is not accepted in various material respects.

[5] See pars 115-127 below.

[6] Evidence Act, s 56.

[7] Ibid, s 55.

[8] Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 258 [240] (Bathurst CJ, Hoeben CJ at CL and Simpson J); Director of Public Proescutions v Paulino [2017] VSCA 38; (2017) 54 VR 109, 125 [67] (Priest JA, with whom Ferguson and Weinberg JJA agreed).

[9] R v Jaafar Wannouch [2019] VSCA 97, [52]-[60] (Priest, Kyrou and Emerton JJA) and the cases there cited.

[10] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 653-654 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[11] R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101, 106 [17] (Dunford J, with whom Greg James J and Smart A-J relevantly agreed) and the cases there cited.

[12] R v Basham (Ruling No 1) [2021] VSC 349, [96] (Taylor J), citing Azizi v The Queen [2012] VSCA 205; (2012) 224 A Crim R 325; Ellis v The Queen [2010] VSCA 302; (2010) 30 VR 428; R v Lubik [2010] VSC 465; R v Gojanovic (No 2) [2007] VSCA 153; R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506; R v Anderson [2000] VSCA 16; (2000) 1 VR 1; R v Parsons [2000] VSCA 15; (2000) 1 VR 161; R v Iuliano [1971] VicRp 50; [1971] VR 412; Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334.

[13] R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, 576 [141] (Heydon JA, with whom Dowd J substantially agreed and Bell J agreed).

[14] [1970] HCA 17; (1970) 123 CLR 334.

[15] Ibid, 337.8 (Barwick CJ), 343.4 (Menzies J), 346.4 (Owen J).

[17] Ibid, 344.4 (Menzies J, with whom McTiernan and Walsh JJ agreed).

[18] See also Evidence Act, s 55.

[19] R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, 560-561 [95], 562 [99] (Heydon JA, with whom Dowd J substantially agreed and Bell J agreed), citing R v Frawley (1993) 69 A Crim R 208, 222.9-223.8 (Gleeson CJ, with whom Carruthers J agreed).

[20] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

[21] In accordance with the notice requirements set out in s 97(1)(a) of the Evidence Act, an amended notice of tendency evidence was filed.

[22] [2011] HCA 12; (2011) 242 CLR 610.

[23] Ibid, 623-624 [40]-[42] (French CJ, Hayne, Crennan and Kiefel JJ), noting that this case was concerned with the Evidence Act 1977 (Qld) which provided that relevant evidence of the history of a domestic relationship between the accused and the person against whom the offence was committed is admissible: s 132B(2).

[24] R v Bartle (2003) 181 FLR 1, 109 [553], 121 [603] (Smart AJ, with whom Mason P and Barr J relevantly agreed); R v McNamara [2002] NSWCCA 248; (2002) 131 A Crim R 140, 147-148 [33]-[34] (Blanch AJ, with whom Spigelman CJ and Simpson J agreed) and the cases there cited; R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536, 548 [80]-[81] (Howie J).

[25] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 623-624 [41].

[26] Haddara v The Queen (2014) 45 VR 53.

[27] [2023] VSCA 174.

[28] Ibid, [43] (Emerton P, Priest and Kennedy JJA), cited in Alhassan v The King [2024] VSCA 233, [70] (Priest, Beach and Boyce JJA); Kelly v The King [2024] VSCA 69, [27] (Priest and Beach JJA, with whom Boyce JA relevantly agreed).

[29] [2024] VSCA 233.

[30] Ibid, [71] (Priest, Beach and Boyce JJA).

[31] Haddara v The Queen [2014] VSCA 100; (2014) 43 VR 53, 58-59 [14] (Redlich and Weinberg JJA). Under the common law discretion in R v Lee [1950] HCA 25; (1950) 82 CLR 133 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ), which operated in a similar manner to section 90 of the Evidence Act, the relevant locus of unfairness was the manner in which the evidence of the admission or confession was proposed to be used rather than the manner in which the accused had been treated in connection with the admission or confession.

[33] Ibid, 59-60 [16]. Alternatively, the 3 specific discretions referred to may be described as specific instances or emanations of the general discretion to exclude evidence in order to discharge the trial judge's overriding duty.

[34] See pars 199-216.

[35] Evidence Act, Dictionary, Pt 1.

[36] Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, [115] (Leeming JA, with whom Basten and Gleeson JJA agreed).

[37] R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, 582-583 [163] (Heydon JA, with whom Dowd J substantially agreed and Bell J agreed).

[38] See Ibid, 598 [230]-[231] (Dowd J, dissenting in part) for a discussion of the differing criteria under ss 135 and 137.

[39] Director of Public Prosecutions v Wise [2016] VSCA 173, [50] (Warren CJ, Weinberg and Priest JJA).

[40] Peterson v The Queen [2014] VSCA 111, [55]-[56] (Priest and Beach JJA).

[41] Moreno v The King [2023] VSCA 98, [99], [102]-[103] (Priest AP, Niall and Kaye JJA).

[43] Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612, 618 [22] (Basten JA, with whom Barr and Hall JJ agreed).

[44] R v Kerr (Ruling No 1) [2015] VSC 64, [13] (T Forrest J).

[45] Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612, 618-619 [23] (Basten JA, with whom Barr and Hall JJ agreed).

[50] [2015] VSC 64.

[52] Evidence Act, s 139(1)(a).

[53] Ibid, s 139(5)(a).

[54] R v Lynn (Rulings 1 - 4) [2024] VSC 373, [181] (Croucher J).

[56] Ibid, [189]-[190] (Croucher J), quoting R v Fe [2013] NSWSC 1692, [100] (Adamson J). There is no suggestion that on 5 April 2024 Young was not allowed to leave if he wished to do so: see s 139(5)(c).

[57] The court was informed that evidence of the statement may be adduced without any reference to the jurat though the statement as signed appears to include some representations made after 4.32pm: see [11].

[58] See par 70 above.

[59] The interview room was secured, in that the area in which it was located was locked from the outside, but not from the inside. It was not a formal interview room in which interviews of arrested persons or suspects are ordinarily conducted (there was no interview room in the foyer area).

[60] Tomlinson told Young's father that he may also need to give a statement and they needed to be obtained independently.

[61] McGuire's remains were taken by an undertaker at 4.11pm.

[63] Details of which were passed on by Kohn to Tomlinson. Tomlinson also had a discussion with Nicholson later that day and before Young signed his statement: see pars 192-194 below.

[64] It is also probable that some information was obtained from the law enforcement assistance program (known as LEAP), though neither Kohn nor Tomlinson has a specific recollection of conducting searches on that database at the time.

[65] There was no suggestion that doing so was unlawful. The prohibitions under the Surveillance Devices Act 1999 (Vic), s 6(1) and (2) do not apply as they are concerned with private conversations to which the person using the listening device is not a party.

[66] It was also reactivated a short time after Young had returned to the meeting shortly before signing his statement.

[67] Crimes Act, s 464.

[68] Ibid, s 464A(2); R v Alexander [1994] VicRp 58; [1994] 2 VR 249, 256.7 (Crockett, Southwell and Cummins JJ).

[69] R v Kerr (Ruling No 1) [2015] VSC 64, [93] (T Forrest J).

[70] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115.4 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[72] [2024] VSC 373.

[73] [2015] VSC 64.

[75] [2007] VSC 69.

[77] (Unreported, Supreme Court of Victoria, Hampel J, 27 March 1990).

[78] [1992] VicRp 85; [1992] 2 VR 531.

[79] [1994] VicRp 58; [1994] 2 VR 249.

[80] (2013) 233 A Crim R 40.

[81] R v Lynn (Rulings 1-4) [2024] VSC 373, [102].

[85] [2015] VSC 64.

[87] McCormack v Silberman (Unreported, Supreme Court of Victoria, Ashley J, 17 December 1993), 5.

[89] See s 464A(2) and (3).

[90] See s 464C(1)(b).

[92] In relation to the last matter, Kohn said he did not think that was discussed but he accepted it might have been.

[93] This was common ground. The definition of investigating official includes a police officer: Crimes Act, s 464(2).

[94] Suspect is defined to include a person of or above the age of 18 years who is suspected of having committed an offence: ibid.

[95] See par 78 above.

[96] Crimes Act, s 459(1).

[97] See also Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1).

[99] In stating this, there is no finding being made as to the position after 4.32pm up until Young's statement was signed.

[100] [2024] VSC 373.

[101] See pars 94-96 above.

[102] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 91 [63] (Gleeson CJ and Heydon J).

[103] See par 80 above.

[104] Criminal Procedure Act 2009 (Vic), s 198B.

[105] [2016] VSCA 176; (2016) 261 A Crim R 151.

[106] Ibid, 196-197 [237] (Priest JA, dissenting).

[108] Ibid, 184 [202] (Weinberg and Beach JJA).

[109] Which accords with the requirements of s 464A(2)(a): see R v Stone (Ruling No 3) [2018] VSC 628, [9]-[13] (Taylor J) and the cases there cited.

[110] Cf Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151, 197 [239] (Priest JA, dissenting).

[111] For completeness, at 11.30am on 8 April 2024, approximately 15 minutes before the second stage of the interview commenced, Young requested that he speak to his solicitor again prior to the continuation of his interview. This was arranged and upon completion of his conferring with the solicitor, Young was escorted to the interview room and the interview continued. During the second stage, Young stated that the solicitor wanted to talk to him straight after the interview (Q90).

[112] For completeness, Allen was contacted on Sunday 7 April 2024 and was made aware of Young's statement at that time.

[113] The substance of this question was set out as part of the interview plan under the heading "Suspect Account".

[114] Allen's evidence included the fact that a statement containing lies may also be helpful to police.

[115] See pars 271-274 below.

[116] See pars 199-216 above.

[117] See par 234 above.

[118] See pars 128-133 above.

[119] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 403-404 [5] (Gleeson CJ), 465 [219] (Callinan, Heydon and Crennan JJ); R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 185-186 [35] (Brennan CJ).

[120] Al Hassan v The King [2024] VSCA 233, [71] (Priest, Beach and Boyce JJA). See par 96 above.

[122] Subject to any relevant provisions of the Evidence Act.

[123] Al Hassan v The King [2024] VSCA 233, [71].

[124] See pars 106-113 above.

[125] [2024] VSCA 233.

[128] See par 254 above.

[129] See Evidence Act, s 59(1). In accordance with the notice requirements set out in s 67(1) of the Evidence Act, a notice of hearsay evidence was filed by the prosecution on 7 March 2025.

[130] [2011] HCA 36; (2011) 244 CLR 352.

[131] [2001] HCA 50; (2001) 206 CLR 650, 669-670 [60].

[132] Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 369 - 370 [43] (French CJ, Heydon and Bell JJ).

[133] Australia, The Law Reform Commission, Evidence, Report No 26 (1985), vol 1, pp 410-411 [739]-[740].

[134] [2023] VSCA 176.

[135] Ibid, [11] (Priest, T Forrest and Kennedy JJA).

[136] See par 285 below.

[137] Glowacki v The King [2023] VSCA 176, [17]-[18].

[138] Azizi v The Queen (2012) 224 A Crim R 32 5, 336 [47] (Bongiorno JA, with whom Buchanan JA and Hollingworth AJA agreed).

[139] Moore v The King [2023] VSCA 236, [42] (Kennedy, Walker and Macaulay JJA), which decision was not disturbed on appeal in Moore v The King [2024] HCA 30; (2024) 419 ALR 169 (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

[140] [2000] FCA 1868; (2000) 119 A Crim R 490.

[141] Ibid, 502 [48] (Whitlam, Madgwick and Weinberg JJ).

[142] Ibid, 502-503 [49] (Whitlam, Madgwick and Weinberg JJ).

[144] Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454, 462 [39] (Studdert J, with whom Grove and Whealy JJ agreed).

[145] R v Tarantino [2019] NSWSC 939, [26] (Beech-Jones J), and the cases there cited; R v Maglovski (2012) 228 A Crim R 68, 71 [13] (Beech-Jones J). See also Moore v The King [2023] VSCA 236, [45] (Kennedy, Walker and Macaulay JJA) and Huici v The King [2023] VSCA 5, [54]-[67] (Niall and T Forrest JJA) and the cases there cited.

[146] [2023] VSCA 5, [61].

[147] Moore v The King [2023] VSCA 236, [51] (Kennedy, Walker and Macaulay JJA), citing Huici v The King [2023] VSCA 5, [57] (Niall and T Forrest JJA). See also Thomas v Director of Public Prosecutions [2021] VSCA 269, [25] (Beach, Niall and Walker JJA).

[148] See, for example, Moore v The King [2023] VSCA 236, [47].

[149] Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47, 68 [71] (French CJ, Bell, Gageler, Keane and Gordon JJ). Although the High Court was concerned with s 65(2)(d)(ii) of the Evidence Act, these remarks have been considered equally apt for s 65(2)(b) and (c): see Moore v The King [2023] VSCA 236, [49].

[151] Moore v The King [2023] VSCA 236, [50].

[153] R v Mankotia [1998] NSWSC 295, 10.4 (Sperling J).

[154] R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, 615 [29] (Mason P, with whom Hulme and Simpson JJ agreed), cited with approval in Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47, 67-68 [69] (French CJ, Bell, Gageler, Keane and Gordon JJ).

[155] [2000] FCA 461; (2000) 98 FCR 204.

[156] Ibid, 243 [142] (Miles, von Doussa and Weinberg JJ).

[157] Ibid, 244 [146]; Azizi v The Queen [2012] VSCA 205; (2012) 224 A Crim R 325, 337 [48]-[49] (Bongiorno JA, with whom Buchanan JA and Hollingworth AJA agreed).

[158] Clarke v The Queen [2017] VSCA 115, [80] (Redlich JA and Beale AJA); Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47, 69 [74] (French CJ, Bell, Gageler, Keane and Gordon JJ). But also see pars 292-293 above.

[159] [2023] VSCA 5.

[160] Ibid, [74] (Niall and T Forrest JJA).

[162] Karam v The Queen [2015] VSCA 50, fn 11 (Weinberg, Priest and Beach JJA), citing R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359, 441-442 [480] (Studdert J); Papakosmas v The Queen (1999) 196 CLR 297, 315 [58] (McHugh J).

[163] [2015] VSC 459, [7] (Bell J).

[164] Stephen Odgers, Uniform Evidence Law (Lawbook Co, 18th ed, 2023), 485.4 [EA.66A.60]. See also Roach v Page (No 27) [2003] NSWSC 1046, [14]-[16] (Sperling J); R v Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 193 [25] (Levine J).

[165] Stephen Odgers, Uniform Evidence Law (Lawbook Co, 18th ed, 2023), 485.8-486.1 [EA.66A.60].

[166] See pars 6-7 above.

[167] See pars 8-9 above.

[168] See Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47, 64 [57] (French, Bell, Gageler, Keane and Gordon JJ).

[169] See par 292 above.

[170] See also annexure B to the extent that if refers to other relationship evidence, the admissibility of which will not be objected to by the defence.

[171] Youkhana v The Queen [2013] NSWCCA 85.

[172] The Queen v Youkhana [2011] NSWDC 204, [6], [19] (Judge Haesler). See also Youkhana v The Queen [2013] NSWCCA 85, [38] (Bellew J, with whom Hoeben CJ at CL and Slattery J agreed).

[173] Youkhana v The Queen [2013] NSWCCA 85, [44]-[50] (Bellew J, with whom Hoeben CJ at CL and Slattery J agreed).

[177] See also par 288 above.

[178] Moore v The King [2023] VSCA 236, [42]-[46] (Kennedy. Walker and Macaulay JJA) and the cases there cited. See also pars 287-289 above.

[179] The identifier "HM-15"accords with the representation, as enumerated in annexure B.

[180] The evidence satisfied the criteria in s 65(2)(b).

[181] Referring to R v Hagi Ali (Rulings 1 - 4) [2024] VSC 655, [60] (Croucher J).

[182] [2023] VSC 149.

[183] See ibid, [50]-[52] (Hollingworth J). This case was concerned with section 65(3) of the Evidence Act, rather than section 65(2).

[184] [2000] FCA 461; (2000) 98 FCR 204, 244 [149] (Miles, von Doussa and Weinberg JJ).

[185] Dictionary, definition of "representation" includes an express or implied representation (whether oral or in writing).

[186] See further par 373 below.

[187] See annexure C to these reasons.

[188] So much was acknowledged by Young in his record of interview: see annexure C.

[189] See pars 608-610 below.