DPP v Lyons & Lyons

2 On 30 November 2016, Arthur pleaded guilty to the charge of murder of Samantha Jane Kelly, and he gave an undertaking to give evidence against the two accused persons.

3 The prosecution intends to call a number of witnesses to prove that the accuseds had a particular motive to commit the offences with which they are charged, namely, so that Christine Lyons could assume the role of mother to Samantha Kelly's four young children. Each of the accuseds has objected to the admissibility of that evidence on the basis that the evidence is irrelevant, and, insofar as it is relevant, it should be excluded pursuant to s 135 or s 137 of the Evidence Act, or pursuant to the common law discretion to exclude such evidence on the basis of unfairness.

4 In a ruling dated 21 November 2017, Riordan J held that the evidence, sought to be adduced by the prosecution, is relevant. His Honour deferred ruling on the application to exclude the evidence, pursuant to s 135 or s 137 of the Evidence Act, and the common law discretion, pending further submissions concerning that aspect of the objection.[1]

5 Due to the unavailability of Riordan J to hear the trial in the proceeding, I have been appointed the trial judge. For that purpose, I have heard further argument concerning the application by each accused to exclude the evidence that was the subject of his Honour's ruling. In addition, an application had been made, on behalf of the accused Ronald Lyons, in order that the charges against him be heard separately to the charges against the co-accused, Christine Lyons. However, that application was subsequently not persisted with.

6 I shall deal, first, with the application by each accused to exclude the evidence that was the subject of the ruling by Riordan J. In that ruling, his Honour set out, in some detail, the background circumstances of the case, and summarised the prosecution case. For the purpose of this ruling, it is only necessary for me to outline those matters in relatively brief detail.

7 At the time of the offences, and for some months preceding them, Christine Lyons, Ronald Lyons and Arthur were living together, with Ronald Lyons' three children from a previous relationship, at 47 Wesley Street, Kangaroo Flat. Christine Lyons was in an intimate relationship with both men. Although she was not legally married to either of them, she had participated in a commitment ceremony with Arthur. Christine Lyons had the same surname as Ronald Lyons, as she had been previously married to the cousin of Ronald Lyons.

8 Samantha Kelly was a 39 year old woman with four young children, between the ages of 6 years and 11 months. She had an intellectual disability, and as an adult she received support from various social services.

9 Until mid-2015, Samantha Kelly was living in Ballarat. In June 2015, she visited Bendigo at the invitation of one Shiralee Lyons, who was a cousin of Ronald Lyons, and who was then staying with the accused and Arthur. After that visit, Samantha Kelly decided to move permanently to Bendigo. In July 2015, she and her children moved to 47 Wesley Street, where they were living with both accuseds and Arthur. At the time of the offences, the children were living in the house, together with the two accused persons and Arthur, while Samantha Kelly was residing in a bungalow at the back of the house.

10 The prosecution alleges that, in late 2015, the two accused and Arthur came to an agreement, arrangement or understanding to murder Kelly. It is alleged that the motive for the murder was to enable Christine Lyons to assume the role of mother to Samantha's children. Christine Lyons was unable to bear children herself, and for some time she had been anxious to be able to have children she could treat as her own. The prosecution alleges that both Ronald Lyons and Arthur were motivated to help Christine Lyons to achieve her wish, because they were each devoted to her, and were influenced by her desperate desire to have children of her own.

11 The evidence relied on by the prosecution, in respect of that motive, was the subject of the ruling by Riordan J, to which I shall return. In essence, it consisted of attempts by Christine Lyons to persuade a 15 year old girl, CT, and subsequently, a friend and neighbour, Rebecca Stow, to bear a child for her by way of a surrogacy arrangement. In addition, the prosecution seeks to rely on evidence that Christine Lyons and Arthur falsely claimed guardianship of another teenage girl CC, who was living in their premises from time to time. I shall return to that evidence in more detail shortly.

12 About one week before Christmas 2015, Shiralee Lyons attended the premises at 47 Wesley Street. In the presence of Arthur, Christine Lyons spoke to her and asked her 'to make Sam disappear'. Christine told her that she wanted Samantha Kelly to be 'drugged', so that she could get Samantha to sign an affidavit so that Christine could have her children. Christine told Shiralee Lyons that she wanted the children, because she could not have children herself. In the course of the conversation, Christine Lyons and Arthur both said to her that she should take Samantha Kelly for a drive and for Samantha not to return. Christine Lyons then said words to the effect 'I want you to do Sam in, so that she no longer exists'.

13 In the meantime, Christine Lyons had exchanged text messages with Mark Glare, who was the former partner of Samantha Kelly. In those text messages, they discussed persuading Samantha Kelly to 'sign' the youngest child (Annabella, who was then 11 months old) over to her. In one text Christine Lyons said 'It's her [Samantha Kelly] that needs to go on a permanent holiday'.

14 Subsequently, Shiralee Lyons had another conversation with the two accuseds, in which they suggested methods by which Shiralee Lyons might kill and dispose of Samantha Kelly. In that conversation, Christine Lyons suggested that Samantha Kelly be drugged sufficiently to enable her to be put in a car, taken for a drive, and put down a mineshaft. Ronald Lyons suggested that Shiralee Lyons inject a needle, full of air, into Samantha Kelly's veins, in order to give her a heart attack.

15 From mid-December 2015, Samantha Kelly had a number of communications with other persons, including her brother, her cousin, a friend, and a social worker, in which she expressed her concerns that the people, with whom she was living, were trying to take over her children, and were trying to work out how they were going to kill her. On 15 January 2016, Samantha Kelly spoke to her social worker, Kris Carboon, stating that she should not have left Ballarat, and that she wanted to have a house of her own.

16 On 20 January 2016, Christine Lyons attended her general practitioner, Dr Ahmed, complaining of insomnia. She asked for a prescription for Oxycontin, which is a powerful opioid painkiller, for back pain, but she was, instead, prescribed Temazepam for her sleeplessness. At 7:00 pm on the same evening, Christine Lyons and Arthur attended Chemist Warehouse in Kangaroo Flat to fill the prescription for Temazepam.

17 On the same evening, the tablets were put into a drink and given to Samantha Kelly. Both accuseds went out to the bungalow twice to see if Samantha was sleeping and still alive, and they observed that she was still breathing.

18 On the next day, at 8:30 am, Christine Lyons gave Arthur between 6 and 9 tablets to give to Samantha Kelly. She had obtained the tablets from Ronald Lyons' bedroom. Christine Lyons said that Samantha had to have the drugs 'to get well' and Ronald Lyons agreed with that. Samantha Kelly took the drugs willingly from Arthur, and each accused took turns taking more tablets out to Samantha. That process continued over a few days, during which (according to Arthur) each accused spoke about killing Samantha on a number of occasions.

19 Ultimately, at about 2:00 am on 23 January 2016, Arthur attended the bungalow, where he murdered Samantha Kelly with a hammer.

20 Arthur has given conflicting versions as to the circumstances in which, and reason why, he attended the bungalow and murdered Samantha Kelly.

21 In his interview with the police, in his statement to the police, and at the committal proceeding, he said that although the accused and he had been talking about killing Samantha Kelly, in fact he attended the bungalow, in order to fetch a DVD that was there, so that he could watch it. When he entered the bungalow, he had an argument with Samantha about the children, whereupon she attacked him with a hammer. As Samantha was then in a drugged state, he easily disarmed her, and struck her about the head on a number of occasions with the hammer, killing her.

22 On his plea, Arthur gave a different version when he was called to give evidence. He said that he had had flashbacks and nightmares since the incident, and that his memory had developed. He said that on the particular night, the accuseds came out of their bedroom and told him that Samantha had to be killed. Thereupon, Ronald Lyons took Arthur into the bathroom where there was a tool box, pulled out a hammer, and told Arthur 'this is what you're going to use'. They then went back into the house, and Christine Lyons told Arthur to 'go for it'. Arthur sat down and consumed four cans of Jack Daniels whiskey, and then attended the bungalow with the intention of carrying out the instructions he had been given to kill Samantha there. He said that he went out to the bungalow 'and got the hammer and killed Samantha'.

23 According to Arthur, he then returned to the house, and told Christine Lyons that Samantha was dead. Christine then sent Ronald out to check, and he returned confirming that Samantha was dead. Two days later, on 25 January, Ronald Lyons purchased two shovels from the Bunnings store at Kangaroo Flat. He helped Arthur to take Samantha's body from the unit and load it into the back of the car. Arthur then drove to a point on the Bendigo/Maryborough Road at Shelbourne, where he buried Samantha's body in a dry creek bed.

24 In support of its case, the prosecution will rely on three categories of post-offence conduct, which are outlined in some detail in the ruling of Riordan J. In short, they comprise the following:

(a) In conversations between Christine Lyons and a number of other persons between 23 January and mid to late February, Christine Lyons accounted for the absence of Samantha by stating that she had walked out on her children in the middle of the night of 23 January, and had not been seen since.

(b) Immediately following Samantha's death, Christine Lyons purported to change the names of Samantha's two younger children, Indi (who was then 4 years of age) and Annabella (who was then 11 months old) to Neisha Jade Lyons and Shaneeka Daphne Irene Lyons, respectively. During that time, she told a number of persons of the name changes, including a social worker, and a child protection worker. She also completed a kindergarten enrolment form for Indi using the name Neisha Jade Lyons.

(c) Between 27 January and 5 February 2016, four withdrawals were made, using automatic teller machines, from Samantha's Bendigo Bank account. On the first occasion (3:45 pm 27 January), the two accuseds and Arthur were present, and on the other occasions, the withdrawals were effected by Arthur alone.

25 The evidence, that is the subject of objection by the accused, concerns the following:

(a) Evidence that the accuseds, and particularly Christine Lyons, had discussions with a 15 year old girl, CT, who was under the care of the Department of Health and Human Services ('DHHS'), and who was asked by the accuseds to have a child for Christine, with Ronald impregnating her by intercourse or artificial insemination.

(b) Evidence that, one or two weeks after Christmas 2015, Christine Lyons asked Rebecca Stow, a friend and neighbour, if she and her partner could have a baby for her, Ronald Lyons and Arthur.

(c) Evidence that Christine Lyons and Arthur falsely claimed guardianship of another teenage girl, CC (who was then 17 years of age) and that, to that end, they had signed a false statutory declaration to that effect. The apparent purpose of the statutory declaration was to advise the Office of Housing that a child had moved in to live with them.

26 In his ruling, Riordan J held that each of those items of evidence are relevant to the issues in the trial. His Honour concluded that the evidence was capable of rationally affecting the jury's assessment of the probabilities that Christine Lyons had a strong motive to have Samantha Kelly killed, as she was desperate to have children which she could treat as her own.[2] His Honour further considered that that motive is a relevant fact in issue, because it bears on the probability of each accused being implicated in an agreement, arrangement or understanding to kill Samantha Kelly.[3] Accordingly, his Honour concluded that each of the disputed pieces of evidence are relevant within s 55 of the Evidence Act 2008.

27 The question, which I must determine, is whether, for the purposes of s 137 of the Evidence Act, the probative value of that evidence is outweighed by the danger of unfair prejudice to the defendant, or alternatively whether, pursuant to s 135 of the Evidence Act, the probative value of the evidence is substantially outweighed by the danger that it might unduly distract the jury and thus cause or result in undue waste of time.

28 In order to decide that question, it is necessary to set out, in a little detail, the evidence that the prosecution intends to adduce in order to establish each of the three matters, pertaining to motive, to which I have referred.

29 The evidence, relating to the proposed surrogacy arrangement with CT, involves six witnesses, including CT herself.

30 In her statement to the police dated 29 February 2016, CT described how she came to know of the accuseds and Arthur through a mutual friend. She said that she used to stay at their premises on some nights and it became a 'party house'. She said that it became a home to her. CT said that Christine Lyons said that she cared about her. In addition, CT 'went everywhere with Ron' and started calling him 'Dad'. She said that she continued to stay at the Wesley Street address until an 'AVO' (Apprehended Violence Order) was taken out prohibiting her from doing so. However, after that, she still continued to have contact with the accuseds and Arthur. At the conclusion of her statement, she said that a police lady asked her if she would talk about trying to have a baby for 'Chrissie'. In the statement, she said 'I don't want to talk about it, it never happened is all I'm gonna say about that. In April 2015 I had my contraceptive rod taken out because it was making me sick'.

31 Subsequently, CT was interviewed by police on 14 September 2016. The interview was recorded. In it, she described the circumstances in which she came to know the accuseds and Arthur, and spend time with them. She said that there was talk about her having a baby. She was told that she was going to be given $1000. She was told that Christine Lyons could not have her own children and she was asked if she could help Christine out. In the interview, CT said that Christine had asked her one day 'Would you consider having a kid for us', to which CT responded 'Yeah I'd consider that'. CT said that therefore she removed her contraceptive rod. She said that the plan was that Ronald Lyons' sperm would be used. When asked 'Do you think Ron and Peter knew about that conversation?' she responded 'Peter did' but she was not sure if Ronald Lyons did.

32 The other evidence, relating to the surrogacy arrangement with CT, consisted of hearsay evidence to be given by three social workers, evidence of CT's medical practitioner, and evidence to be given by Katelyn Hatton, who, at the time, was an 18 year old student.

33 Ms Hatton had known CT for about two years and Christine Lyons for a few months. On one occasion, CT told her that the two accuseds wanted her to have a baby for them, and in exchange they would give her $1000 and pay for emergency expenses. A couple of days later, Ms Hatton saw CT and Christine Lyons together in the carpark at Lansell Plaza, Bendigo. She overheard CT tell Christine Lyons not to mention her having a baby for them while in the presence of Katelyn Hatton.

34 Phalen Taylor was employed by Anglicare Victoria as a case manager. In November 2014, she started working with CT. In early 2015, she became aware that CT was associating with the accuseds and Arthur. That activity was of concern, because CT was then only 14 years of age. In the course of a number of conversations with CT over a course of time, CT, on one occasion, told Ms Taylor that Christine Lyons had said that she could not have a baby of her own because she had cancer, and CT responded that she was too young herself to have a baby, but she would have a baby for Christine Lyons. In her statement, Ms Taylor also said that she had conversations with CT in which Ms Taylor asked her about being artificially inseminated by the accuseds and Arthur, but CT responded that that was not true.

35 Joanne Ferguson was employed in a case contracting team at DHHS Bendigo. In that capacity, she became concerned that CC, who was the subject of a child protection order, was living with the accuseds and Arthur. She became also aware that CT was a good friend of CC, and that CT was also spending time at the property. On 31 March, Ms Ferguson learnt, through Katelyn Hatton, that Christine Lyons was paying CT $1000 to have a baby for her, and that CT had stolen a pregnancy kit at a supermarket in Bendigo to ascertain whether she was already pregnant.

36 Kirsten Aldersea was a youth support worker employed by Vista, which was a residential out of home service for children who are at risk. In that capacity, Ms Aldersea commenced working with CT when she entered the Vista care scheme. Ms Aldersea noted that CT had been staying away from her residential unit, and she was staying, instead, with the accuseds and Arthur.

37 On one occasion, on 3 April 2015, Ms Aldersea took CT to the Torquay beach for an outing. While they were driving to Torquay, CT told her that she was going to be a surrogate mother for Christine Lyons when she turned 18, and that she wanted to do that for Christine Lyons, because Christine could not have children of her own. CT said that Ronald Lyons would donate the sperm, that she would breastfeed the baby until it was old enough to have formula, and then Christine Lyons would be known as the mother of the child. On the return trip from Torquay beach, CT told Ms Aldersea that she thought she was already pregnant, and that she was not waiting until she was 18 years of age to have the baby. CT said to Ms Aldersea that three to four weeks previously Ronald Lyons had 'jizzed' into a cup, which she had inserted in her vagina to get pregnant. She said that she had done a home pregnancy test that was positive and that she would do another test and then go to the doctor. CT told Ms Aldersea that Christine Lyons had offered to pay CT $6000 to be her surrogate mother, but that CT had talked Christine Lyons 'down to $1000'.

38 At that time, CT was a patient of the Tri Star Medical Group in Eaglehawk. Dr Hamani Abeyratne was her regular doctor at the clinic. He was aware that she had a contraceptive implant in her arm. In the records of the clinic, it is noted that the implant had been removed, before 7 April 2015, by another doctor who was not a member of the clinic. On that date, Dr Abeyratne performed a pregnancy test on CT which was negative. In his statement, Dr Abeyratne said that CT never mentioned anything to him about being impregnated.

39 Finally, in his recorded interview with the police, Ronald Lyons stated that he knew that Christine Lyons had asked CT to have a child for her, and that he would probably be the father of that child, because Christine did not want Arthur to be the father of it.

40 Rebecca Stow was the principal witness concerning the proposal that she be a surrogate mother for a child to be born for Christine Lyons. Rebecca Stow was a single parent, with three children under the age of 6 years. She lived in the same street as the accuseds and Arthur. Rebecca Stow used to take her eldest daughter to school by bus. On one occasion, in August 2015, she was visited by Christine Lyons, who offered to drive her daughter to school for her. Ms Stow accepted that offer, but would accompany her daughter in the car.

41 About one or two weeks later, Ronald Lyons drove Rebecca Stow and Christine Lyons to the supermarket. While they were in the vehicle, Christine told Rebecca Stow that she had cancer and could not have children. She said she had asked about ten people to have a baby for her, but none of them had done it. She said that one person was going to do it, but that person pulled out at the last minute. Christine Lyons then asked Ms Stow, 'Could you and your partner have a baby for me, Peter and Ron?' Christine Lyons said that the child would have two fathers, Arthur and Ronald Lyons, and that she (Christine Lyons) would be the mother. Rebecca Stow declined to accept that proposal. However, subsequently, just before Christmas 2015, when Rebecca Stow was at the home of the accuseds, Christine Lyons renewed the proposal, stating 'Because we have known you for a little bit longer would you consider having a baby for us now? Me and Peter are desperate to have a child of our own and Ronald would be involved and be a dad too'.

42 The evidence of Rebecca Stow, in that respect, is supported by the evidence of Pauline Pettersen, who was the next door neighbour of the accuseds and Arthur. In 2015, Ms Pettersen had a conversation with Christine Lyons, in which Christine Lyons told her she could not have children, and that she had asked someone to have a child for her. A few weeks later, Christine Lyons told Ms Petterson that a neighbour, Rebecca Stow, and her partner were going to have a baby for her and pass it off to her when it was born.

43 I also note that, in his interview with the police, Ronald Lyons stated that he was aware that Christine Lyons had asked 'Bec' to have a baby for her.

44 The third aspect of the motive evidence concerns the claim by the accuseds to be the guardian of a teenage girl, CC. At the time of the events with which this case is concerned, CC was a 17 year old girl. She was under the legal guardianship of DHHS. Joanne Ferguson, who was a member of the case contracting team of DHHS, became aware that the accuseds had claimed to be the legal guardians of CC until the age of 21 years, and that they had provided a statutory declaration stating that CC was then living with them and they were her guardians. On making inquiries, Ms Ferguson determined that the accuseds were not the legal guardians of CC, but that DHHS was. Previously, CC had been in a permanent care arrangement with her two siblings in Frankston, but her placement had broken down, so that she had been placed with her other sister in Woodend. Ms Aldersea, who, as I have stated, was the key support worker of CT, also became aware that CC and CT were living at the home of the accuseds and Arthur in Wesley Street. Ms Taylor, of Anglicare also made the same observation. On 20 March 2015, in the course of an inspection of the premises, she observed that CC had been living at the house sleeping on a couch in the lounge room.

45 In determining whether the evidence as to motive, outlined above, should be excluded under s 137 of the Evidence Act 2008, I am required to consider whether the probative value of that evidence is outweighed by the danger of unfair prejudice to either or both accused persons.

46 The principles, to be applied in determining the probative value of the evidence, for the purposes of s 137, were settled in the recent decision of the High Court in IMM v The Queen.[4] In that case, it was concluded that the trial judge must assess the probative value of the evidence, that is the subject of objection, on the basis that the jury will accept that evidence as both credible and reliable. That is, in assessing the evidence, the judge must consider the potential weight of the evidence 'taken at its highest'.[5]

47 In IMM, the High Court recognised that, in determining the probative value of the evidence in that way, it is, nevertheless, necessary to take into account the circumstances connected with that evidence, as those circumstances may indicate that the probative value of the evidence, at its highest level, is not particularly substantial.[6] Thus, for example, in R v Debresay (Ruling No 1),[7] in conducting that assessment, it was relevant to take into account that the evidence in question comprised nine VARE interviews by the police with a 4 year old child, in circumstances where those interviews had taken place 11 years before the trial.[8]

48 As mentioned, the prosecution seeks to adduce the evidence, to which I have referred, in order to prove that each accused, and Arthur, had a particular motive to plan to kill, and to kill, Samantha Kelly, namely, so that Christine Lyons could assume the role of mother to Samantha Kelly's children. The prosecution will contend that Ronald Lyons and Arthur were each motivated to fulfil that wish on behalf of Christine Lyons out of devotion and loyalty to her. It is submitted, on behalf of the prosecution, that the evidence, that was the subject of the ruling of Riordan J, is of particular relevance, because it would demonstrate that Christine Lyons had a compelling desire to be able to raise children who she could treat as her own, and that she was prepared to employ quite unusual ends in order to fulfil that desire.

49 It is, of course, basic that motive is not an element of either offence charged against the accused. Thus the evidence will not, directly, prove any of the elements of the offences charged. However, each offence is alleged by the prosecution to have been pre-planned and premeditated by the accuseds. It is an extraordinary matter to determine to kill a fellow human being, and to carry through with that determination. Putting aside irrational considerations which do not apply in this case, it could be expected that a jury would require proof of a compelling reason or motive on behalf of the accuseds to conceive of such a plan, let alone to attempt to carry it into effect, and, ultimately, to execute it, as the prosecution alleges. In that way, proof of motive by the prosecution will be a particularly important, if not central, consideration in the trial.

50 That proposition, of course, does not, of itself, mean that each piece of the evidence, that was considered by Riordan J, may be of particular probative value in the proceeding. In order to assess the probative value of that evidence, in accordance with the principle stated in IMM, it will be necessary to analyse each aspect of evidence sought to be adduced on behalf of the prosecution, and, in doing so, to weigh it against any potential prejudice accruing to the accuseds if that evidence were admitted in the trial.

51 It is well established that evidence is not unfairly prejudicial, for the purposes of s 137 of the Evidence Act, merely because it makes it more probable that the accused will be convicted. Rather, the prejudice, contemplated by that provision, is unfair prejudice to the accused. Ordinarily, such prejudice occurs where there is a risk that the evidence in question might be misused by the jury in a manner which may not be sufficiently offset by appropriate directions by the trial judge.

52 In Festa v The Queen,[9] McHugh J stated:

... It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task.[10]

53 In addition, unfair prejudice to an accused may be occasioned where the admission of the evidence in question might result in an unfair procedural disadvantage to a party, such as the inability of the party to cross-examine the witness who is the source of that evidence at all, or to do so without thereby involving further and additional prejudice to that party.[11]

54 It is convenient to consider the admissibility, first, of the evidence of Rebecca Stow, secondly, the evidence relating to CC, and, thirdly, the evidence relating to CT.

55 There are two aspects of the evidence of Rebecca Stow to which objection has been taken. First, counsel for each accused has objected to the admissibility of the evidence that Christine Lyons, twice, asked her to bear a child for her, and for Ronald Lyons and Peter Arthur. Secondly, objection is taken to the evidence of Rebecca Stow that, in the course of those requests, Christine Lyons told her that she had asked about ten people to have a baby for her, but none of them had agreed to do so.

56 The objection to both pieces of evidence was based on the proposition that surrogate parenting is an issue on which people hold strong and emotional beliefs, so that there is a risk that the evidence might arouse feelings by the jury that are adverse to the two accuseds. In the course of oral argument, counsel, ultimately, accepted that if the evidence of the proposed surrogacy arrangements with CT were not admitted, then their clients could 'live with' the evidence of Rebecca Stow concerning the proposal that was made to her. However, counsel further submitted that the evidence of Rebecca Stow, that Christine Lyons told her that ten other women had been approached to participate in a surrogacy arrangement, would involve prejudice to the accuseds, because it would create the impression that they had been engaging in a surrogacy shopping of quite substantial proportions.

57 In my view, the evidence of Rebecca Stow, as to both aspects that are objected to, is potentially of high probative value. The proposal, by Christine Lyons to Rebecca Stow, was made less than two months before the offences that are the subject of the charges. Although Christine Lyons and Rebecca Stow were neighbours, who were apparently on friendly terms with each other, they were by no means close friends. The fact that Christine Lyons was prepared to make such a proposal to Ms Stow, a short time before the occurrence of the offences, is probative of the strength of the desire of Christine Lyons at that time to have an infant of her own, and of the extent to which Christine Lyons was then prepared to go in order to satisfy that desire. Further, the fact that, by then, she had already approached ten other people to participate in a surrogacy arrangement on her behalf, demonstrates that the approach to Rebecca Stow was not a sudden or precipitate impulse by her, but, rather, was part of an ongoing program by her to fulfil her need to have an infant who she could raise as her own child.

58 I accept that the issue of surrogacy is a matter about which different, and perhaps strong, views might be held, so that it is a matter which might engender an emotional reaction in the minds of a jury. However, juries are regularly instructed that they must disregard any feelings of disapproval that they might have towards a particular accused arising out of evidence that might reflect adversely on the particular accused. It is the long experience of the law that juries are consistently conscientious in adhering to such directions, and in setting aside emotional reactions that particular evidence in a trial might otherwise arouse in them.

59 Further, the nature of the proposal, that was made to Rebecca Stow was not one which would otherwise arouse feelings of opprobrium. Rebecca Stow was an adult person. She was not in a position of dependency on the accuseds. Rather, she very much related to them on equal terms. There is nothing in her statement that indicates that either accused attempted, in any manner, to importune or pressure her to participate in the proposed surrogacy arrangement.

60 For those reasons, I consider that the evidence relating to the proposed surrogacy arrangements with Rebecca Stow, and her evidence that Christine Lyons told her that she had raised that proposal with ten other persons, is potentially of quite high probative value in the trial. I am satisfied that any prejudice, that might otherwise arise from the evidence, can be sufficiently offset by an appropriate direction to the jury. I am therefore not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. On the contrary, in my view, the probative value of the evidence significantly outweighs any danger of such unfair prejudice in the trial.

61 The evidence, that was proposed to be adduced in relation to CC, was clarified, and narrowed, by Ms Dalziel, who appears with Mr B Ihle on behalf of the prosecution. Ms Dalziel stated that the prosecution does not intend to adduce evidence, or contend, that the statutory declaration, signed by the accuseds in relation to the guardianship of CC, was in any way fraudulent or false. Rather, it will be put that the declaration was misconceived. Further, and associated with that, the evidence that the prosecution intends to adduce, in relation to the circumstances in which both CC and CT were living in the premises at 47 Wesley Street, will be quite limited. In particular, it will be restricted to evidence that the persons, who were responsible for the care of CC and CT, considered that the accommodation that was provided at that premises was unsatisfactory for the two girls, because there were insufficient bedrooms or sleeping quarters available for each of them, so that it was not an appropriate place for children. That is, the evidence relating to the unsatisfactory nature of the premises, as accommodation for CC and CT, will be confined to matters relating to its size and set up.

62 Based on that concession by the prosecution, counsel for each accused did not object to the evidence that the prosecution seeks to adduce concerning CC, namely, evidence that the two accuseds had signed the statutory declaration claiming guardianship of CC, and evidence that both CC and CT resided at the premises at 47 Wesley Street, which was not regarded as an appropriate source of accommodation for them for the reasons that I have just outlined.

63 The position taken by the parties on this aspect of the evidence is sensible and sound. In accordance with the ruling by Riordan J, the evidence relating to the statutory declaration, and the evidence that CC and CT often resided at the Wesley Street premises, is of relevance in the trial. It demonstrates that the accuseds, and in particular Christine Lyons, had a strong desire to assume the role of parent to other children, who were not their own offspring, in a quasi-family setting. That evidence does not have the high probative value of the proposed surrogacy arrangement with Rebecca Stow. However, it is relevant to the establishment of the motive that is relied on by the prosecution. In light of the limited and confined nature of the evidence that is now proposed to be adduced in that respect, I do not consider that it would result in any adverse prejudice to the accuseds. Accordingly, the evidence is admissible.

64 The question of the admissibility of the evidence, relating to the proposal that CT be surrogate parent to a baby on behalf of the accuseds, is more complex.

65 On behalf of the accuseds, it was contended that the evidence would not be of significant probative value. First, the evidence given by CT, in the VARE interview, concerning the surrogacy arrangement, was inconsistent with her denial, in her statement, that any such arrangement was discussed or made between herself and the accuseds. Secondly, it was pointed out that the arrangement is alleged to have been proposed in early 2015, almost twelve months before the circumstances that are the subject of the charges.

66 On the other hand, counsel for the accuseds submitted that the evidence would have a significant prejudicial effect in the context of the trial. At the time, CT was 14 years of age, she was under the care and supervision of DHHS, and she was particularly vulnerable. Accordingly, it was submitted, the evidence as to the proposed surrogacy arrangement with CT would arouse strong emotions adverse to the accuseds, and would provoke a jury to seek to punish them in respect of it. Further, it was submitted that the jury would be left to speculate as to how it was proposed that CT would become pregnant, and as to whether that process would involve her engaging in unlawful sexual intercourse with Ronald Lyons. The prejudicial nature of that evidence would be further compounded by the evidence in the trial as to the unorthodox domestic arrangements that existed between the three adults, and other persons residing at the premises. Finally it was submitted that the evidence, relating to the surrogacy proposal in respect of CT, would involve the prosecution calling a number of witnesses. That evidence, it was submitted, would distract the jury from the central issues in the trial, and would involve the conduct of a trial within the trial as to whether the accuseds did propose or make the surrogacy arrangements with CT that are alleged by the prosecution.

67 On the other hand, it was submitted on behalf of the prosecution that the evidence, as to the proposed surrogacy arrangements with CT, would be of high probative value. In particular, that evidence would demonstrate the extreme lengths to which the accuseds were prepared to go in order to enable Christine Lyons to have a baby who she could regard as her own, and would thereby demonstrate the strength and intensity of the desire by Christine Lyons to have such a child for herself. It was submitted that the matters relied on by way of prejudice, on behalf of the accuseds, are not unfair prejudice, because they are integral to the evidence to be adduced on this aspect of the case.

68 In making those submissions, Ms Dalziel noted that the more prejudicial aspects of the proposed evidence could be excised. In particular, she submitted that it would not be necessary to adduce any evidence that suggested that the proposal had in any way been put into effect. In addition, the evidence to be called from Ms Ferguson, Ms Taylor and Ms Aldersea could be restricted, so as to ensure that it could be given in relatively short compass.

69 Finally, Ms Dalziel submitted that any prejudicial effect of the evidence could be sufficiently allayed by an appropriate direction to the jury not to engage in impermissible propensity reasoning arising out of the evidence. It was submitted that a firm direction, as to the reason why the evidence was admitted, and a direction as to how it should not be misused, would be sufficient to ensure that the jury did not engage in any reasoning that was unfair to the accuseds.

70 Contrary to the submissions made on behalf of the accuseds, I consider that the evidence, as to the proposed surrogacy arrangement with CT, is of potentially high probative value. The fact that the contents of CT's VARE interview are inconsistent with the disavowal by her, in her witness statement, of the existence of any surrogacy arrangements with the accused, is not relevant for the purposes of assessing the probative value of the evidence pursuant to s 137 of the Evidence Act. That inconsistency concerns the credibility and reliability of the evidence, but does not demonstrate that it is inherently of limited probative value.

71 On the contrary, the probative value of the evidence derives from the fact that it does not simply demonstrate that the two accuseds were prepared to enter into a surrogacy arrangement in order to provide Christine Lyons with an infant to raise for herself. In addition, and significantly, it demonstrates that the accuseds were prepared to enter into such an arrangement involving a 14 year old girl who was in the care of the Department of Health and Human Services. The evidence thus demonstrates the intensity of the desire of Christine Lyons to have an infant, who she could raise as her own, and the steps that both accuseds were prepared to take in order to satisfy that desire on behalf of Christine Lyons. In that way, the evidence establishes a strong motive on behalf of Christine Lyons, and indeed both accuseds, to use whatever means may be available to provide Christine Lyons with an infant child or infant children of her own. As already discussed, the existence of that motive is of significant importance to the proof of the prosecution case.

72 On the other hand, for closely associated reasons, the proposed evidence has substantial prejudicial potential. It would be inevitable that a jury would be rightly perturbed, if not repelled, by the concept of two adults inveigling a 14 year old vulnerable adolescent girl to become pregnant and to bear a child for them to satisfy their own selfish purposes. Those feelings would be exacerbated by the knowledge that, at the time, CT was in care, that she was then living in the home of the accuseds, that they had gained her friendship, and indeed that they had assumed a position of trust and care in relation to her. The evidence would thereby provoke strong feelings of abhorrence and disapproval by the jury towards the accuseds. It could readily lead a jury to conclude that the accuseds, by stooping so low as to try to inveigle a vulnerable 14 year old adolescent to bear them a child, were the kind of people who could equally resort to killing another vulnerable woman in order to gain access to her children. In other words, there is a grave risk that if the evidence were adduced, it would readily lead a jury to engage in impermissible propensity reasoning that would be highly prejudicial to the case of the accuseds.

73 Ordinarily, the courts are able to give appropriate directions in order to prevent the misuse by a jury of evidence by engaging in impermissible propensity reasoning. That kind of evidence is regularly given to juries, particularly in cases involving sexual offences against minors. However, in this case, the position is somewhat different. The problem, in devising an appropriate direction, derives from the close association, logically, between the permissible purpose for which the evidence is sought to be adduced (to prove a strong motive on behalf of the accuseds to kill Samantha Kelly) and the impermissible propensity reasoning which would unfairly prejudice the trial of the proceeding. The permissible and impermissible uses, to which the evidence could be put, are closely allied. Accordingly, it would be most difficult to craft an appropriate direction, to which a jury would be able to adhere, identifying the permissible purpose for which the evidence might be admitted, and, at the same time, making clear the impermissible purpose for which it may not be used.

74 As I have stated, the high probative value of the evidence resides in the fact that the accuseds were prepared to go to such lengths, as to induce a 14 year old girl to become pregnant and bear a child for them, in order that Christine Lyons might have an infant of her own. On the other hand, the impermissible use of the evidence lies in the potential of the jury reasoning that the accuseds were the sort of people who resort to the extraordinary step of enticing a vulnerable 14 year old girl to bear a child for their purpose, and therefore they were the type of people who would be prepared to murder an innocent woman in order to enable Christine Lyons to raise her four young children as her own.

75 In the end, I do not consider that an appropriate direction can be properly given to the jury, which would sufficiently and clearly delineate the difference between the permissible and impermissible uses to which the evidence might be used, and which would thereby ensure that the jury did not engage in the latter form of reasoning which, of itself, would result in significant unfair prejudice to both accused persons.

76 In addition, there is an added potential prejudice attaching to the evidence that is proposed to be adduced in relation to this issue. As I have noted, the prosecution has undertaken not to adduce any evidence that the proposal, that CT become a surrogate mother, was put into effect in any way. Nevertheless, it is inevitable that the jury would speculate as to whether the accuseds had taken any steps to implement the plan. Further, and in any event, the jury would speculate as to how it was proposed by the accuseds that CT would become pregnant. It would be common knowledge that no respectable medical institution or medical practitioner would provide a properly supervised artificial insemination procedure to CT. Thus, the jury would contemplate that the parties had in mind that CT become pregnant by means of illegal sexual intercourse with Ronald Lyons, or that she be artificially inseminated in an unhygienic and unsanitary manner.

77 In addition, as a matter of forensic practicality, I would anticipate that, if the evidence as to the proposed surrogacy arrangements were introduced, it might be difficult to quarantine evidence that steps had already been taken to put the proposed arrangement into effect. Although the evidence of CT is inconsistent on that matter, nevertheless she did tell Ms Aldersea on 3 April 2015 that a particular procedure had been undertaken to make her pregnant. That evidence itself is supported by the evidence of Dr Abeyratne that he conducted a pregnancy test on CT on 7 April. In light of those facts, there is a realistic risk that cross-examination in relation to the proposed arrangement might, in some way, provoke or lead to the introduction of evidence that the arrangement had not only been agreed, but that some steps had been taken to implement it.

78 Further, as already indicated, the prosecution intends to lead, in relation to this aspect of the case, hearsay evidence from Ms Aldersea, Ms Ferguson and Ms Taylor, pursuant to s 66 of the Evidence Act. At this stage, counsel for the accuseds have not objected to the introduction of that evidence as not complying with s 66. If the evidence were admitted, even in a confined form, it would, I expect, have the tendency to distract the jury from the central issues in the case, and to give undue prominence to the circumstance that, at the time of the proposed arrangement, CT was a 14 year old vulnerable girl under the care of the department.

79 For all of those reasons, while I accept that the evidence of the proposed surrogacy arrangement with CT is potentially of substantial probative value, I consider that it is outweighed, to a material degree, by the potential prejudicial effect of it if it were admitted at the trial of the accused persons. Accordingly, I rule that the evidence is not admissible pursuant to s 137 of the Evidence Act.

80 For the foregoing reasons I have reached the following conclusions:

(1) The following evidence of Rebecca Stow is admissible:

(a) The evidence that on two occasions Christine Lyons asked Rebecca Stow if she and her partner could have a baby for her, Ronald Lyons and Peter Arthur.

(b) The evidence of Rebecca Stow that, in the course of one of those conversations, Christine Lyons told her that she had asked about ten people to have a baby for her but none of them had done it.

(2) The evidence, that the two accuseds signed the statutory declaration dated 19 February 2015 stating that they were the guardians of CC, is admissible.

(3) The evidence, that the accuseds or one of them proposed that CT have a child for Christine Lyons, is inadmissible.

81 In addition, as discussed with counsel during submissions, I note that it is accepted that the prosecution be entitled to lead evidence that both CC and CT were living from time to time at the premises at 42 Wesley Street, Kangaroo Flat and that the relevant representative of the Department of Health and Human Services (or a relevant agency) considered that the accommodation thus provided to CT and CC was unsuitable for them, because the premises were too small, and there were insufficient bedrooms or sleeping quarters available for them at the premises. Further, subject to and conditional on issues raised by defence counsel in cross-examination, no evidence will be led by the prosecution that the premises were in any way unsanitary, or that there was any inappropriate or immoral conduct by any of the accuseds in relation to CT or CC.

[1] R v Lyons & Lyons [No 2] [2017] VSC 702R ('Ruling').

[4] (2016) 257 CLR 300 ('IMM').

[6] IMM (2016) 257 CLR 300, 314-15 [50].

[7] [2016] VSC 487.

[8] Ibid 37-38 [44]; cf Debresay v The Queen [2017] VSCA 263, 44-45 [118]-[119].

[9] (2001) 208 CLR 593.

[10] Ibid 609 [51]; see also R v BD (1997) 94 A Crim R 131, 139 (Hunt CJ at CL); Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91]-[92] (McHugh J).

[11] Papakosmas v The Queen, 325 [93] and following (McHugh J); R v Anh Tuan Le [2002] NSWCCA 193; (2002) 130 A Crim R 256, 289 [96] (Sheller JA); R v Suteski [2002] NSWCCA 509; (2002) 137 A Crim R 371, 390 [126]-[127] (Wood CJ at CL).