DPP v Paulino

Supreme Court of Victoria|2017-06-16|Before: BELL J

CRIMINAL LAW - evidence - husband charged with murder of wife - prosecution case wholly circumstantial - evidence of family dispute leading to separation, deceased's fear of accused, accused's threats to kill or harm deceased or parents or sons made to her, accused's threats to kill or harm deceased or parents or sons made to others, state of marriage pre-separation, granting of intervention order against accused and accused's distribution of pornographic video allegedly depicting deceased - whether admissible - whether 'relationship evidence' - whether relevant to motive of accused to commit and actual fact of crime - whether probative value outweighed by danger of unfair prejudice to accused - representations by deceased (an unavailable witness) to family and friends about conduct and threats of accused - whether admissible as original evidence or as exception to hearsay rule - whether contemporaneous representations about feelings and state of mind of deceased - whether made when or shortly after asserted facts occurred and in circumstances making fabrication unlikely - whether made in circumstances making reliability highly probable - Evidence Act 2008 (Vic) , (1), (1), (2)(a) and (b), , and .

1 Fernando Manuel Paulino is charged on indictment with murdering his wife, Teresa Paulino, on 15 July 2013 in Victoria.[1] He has been arraigned and has pleaded not guilty. The deceased was found dead due to multiple stab wounds in the garage of her residence at Reservoir. She was badly estranged from her husband. There is no issue that the deceased was murdered. The sole issue in the trial is whether the accused was the murderer.

2 As summarised in the prosecution opening, the case against the accused is wholly circumstantial. There were no eyewitnesses to the killing. There is no confession. Besides disputed DNA evidence, there is nothing directly linking the accused with the circumstances of the crime. The prosecution case is that the accused felt hatred and enmity towards the deceased, that he had the opportunity to kill her and that he did so.

3 The general facts and circumstances alleged by the prosecution are that the accused and the deceased were married in 1987. They had two children, Daniel (born 1990) and Luke (born 1992). It was not a harmonious marriage. The couple separated in 2010 after a family dispute at a holiday house in Rye. The accused remained living in the matrimonial home in Taylors Lakes with the two sons and the deceased went to live in Reservoir. The deceased commenced a relationship with Dario Ferella in 2011. In that year, the accused alleged that the deceased had allowed herself to be depicted in a pornographic video and distributed it to her and to family and friends. It is alleged that in 2012 he made many harassing telephone calls to her. In that year, an intervention order was made against him. Further, the deceased instituted a property settlement proceeding in the Family Court of Australia in about March 2012. There were hearings in that proceeding in June and December, 2012. It is alleged that the accused stalked the deceased in late 2012 and in 2013. It is alleged that he made many threats to kill or harm the deceased or her parents and sons and that the deceased was in fear of him. The deceased was killed in the garage of her home in Reservoir on 15 July 2013.

4 As part of that circumstantial case against the accused, the prosecution wishes to lead evidence in relation to a large number of matters concerning the relationship between the accused and the deceased. Much of this evidence is or arguably is hearsay evidence of words spoken by the deceased to family and friends before she was killed. This and other evidence is listed in a hearsay notice given by the prosecution under s 67 of the Evidence Act 2008 (Vic) ('the prosecution hearsay notice'). Some 62 items of evidence are specified in the notice and three others were added during the hearing. The prosecution contends that this evidence (much of which, in its submission, is not actually hearsay evidence) should be admitted under s 66A or s 65(2)(b) or (c) of the Evidence Act.

5 The prosecution has made clear that no evidence is to be led of various acts of violence of the accused towards the deceased. There is to be no tendency evidence as such (and no tendency notice has been filed). The evidence in question is directed towards establishing that the relationship between the accused and the deceased was one, on his part, of enmity and hatred towards her, which provides a powerful motive for him to commit the crime.

6 The defence has made clear that it accepts that it will be relevant for the jury to receive some evidence of the poor relationship between the accused and the deceased. Therefore it will not object to evidence about the background of the marriage (that it was not harmonious), that there were arguments before the separation, the fact of the family dispute at Rye, the subsequent separation between the accused and the deceased, the proceeding in the Family Court of Australia in relation to the dissolution and property of the marriage and other such matters. The defence does not object to evidence of the statements made by the accused to others about the impact of the conduct of the deceased upon the family and the marriage.

7 However, the defence objects to most of the relationship evidence that the prosecution wishes to lead and to most of the hearsay evidence specified in the notice. The grounds of objection overlap considerably but may briefly be summarised as follows:

much of the relationship evidence is not relevant to the probability of the existence of any fact in issue;
much of the evidence in the hearsay notice fails to meet the tests specified in s 66A and s 65(2)(b) and (c);
if relevant, the evidence should be excluded under s 137 (and s 135) of the Evidence Act because it is highly prejudicial and would prevent the accused from having a fair trial.

8 In summary, the defence contends that the relationship evidence, as proposed to be led by the prosecution, is so extensive that it will swamp the jury in the sense that the evidence is likely to receive such prominence in the trial that the jury will be unable to consider the evidence in its proper perspective, despite judicial direction. In summary, the prosecution contends that it has reasonably cut down the relationship evidence proposed to be led, that what remains is directly relevant, probative and not unfairly prejudicial and that, with judicial direction, there will be nothing unfairly prejudicial about the evidence. It can be seen that the dispute between the prosecution and the defence is over where the line should properly be drawn.

9 The relationship evidence to which the defence objects was helpfully specified in a submission in writing ('the defence objection submission'). The hearsay evidence that the prosecution wants to lead was helpfully specified in the prosecution hearsay notice. Before addressing these documents and the submissions of the parties, I will identify the legal principles.

Admissibility and exclusion of evidence under the Evidence Act

10 Section 55 of the Evidence Act provides:

Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to -

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

11 As s 56(1) and (2) provide, evidence that is relevant is admissible in a proceeding and evidence that is not relevant is not admissible. I will consider below the application of these provisions in the context of relationship evidence

12 Hearsay is dealt with in pt 3.2 of the Evidence Act. According to its provisions, hearsay evidence, even if relevant, is not admissible unless it comes within one of the several exceptions. The general exclusionary rule is stated in s 59(1) as follows:

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

Under s 59(2), for the purposes of pt 3.2 such a fact is referred to as an 'asserted fact'.

13 This rule will not apply to some of the evidence in question in the present proceeding because it is of statements of the deceased (for example, statements going to the state of her relationship with the accused) that are relevant as original evidence and not as to the truth of what the statements assert.[2] It will apply to some of the evidence (for example, statements of the deceased that the accused threatened to kill her) because it is relied upon not as original evidence but as hearsay evidence of the truth of what the deceased said.[3]

14 Of the exceptions, s 66A and s 65(2)(b) and (c) are relevant (it is convenient to examine them out of order).

15 Section 66A provides:

Exception - contemporaneous statements about a person's health etc.

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

Section 66A must be read with the requirement that, under s 55(1), the representation of the state of mind concerned must be relevant to the probability of the existence of a fact in issue.[4] It can be seen that the representation must be 'contemporaneous' with that state of mind. In the present case, many of the statements of the deceased will amount to contemporaneous representations of the deceased's feelings, intentions and state of mind as regards her relationship with the accused.[5]

16 Section 65 specifies exceptions applying in criminal proceedings where the maker of the representation 'is not available to give evidence about an asserted fact' (sub-s (1)). As she is dead, the deceased is not available to give evidence (cl 4(1)(a) of the Dictionary in the Evidence Act).

17 Section 65(2) relevantly provides:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -

(a) ...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) ...

18 As to the exception in s 65(2)(b), it only applies where the representation was made 'when or shortly after' the asserted fact occurred and 'in circumstances that make it unlikely that the representation is a fabrication'. As in the case of s 65(2)(c) (see below), the party seeking to lead evidence in reliance upon the exception in s 65(2)(b) has the onus of establishing satisfaction of this condition. In this case that is the prosecution.

19 It can be seen that the first condition in s 65(2)(b) is satisfied where the representation was made 'when' or 'shortly after' the asserted fact occurred. The requirement that the representation be made 'when' the asserted fact occurred involves the 'notion of strict contemporaneity' while the alternative requirement that the representation be made 'shorty after' that occurrence involves something less.[6] Of that latter expression, Sperling J in R v Mankotia[7] held:

The phrase 'shortly after' is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.[8]

In Conway Miles, von Doussa and Weinberg JJ likewise emphasised that the purpose of the 'shortly after' requirement in s 65(2)(b) was to allow evidence to be admitted where a narrative of asserted facts occurrs when 'the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting the narrative.'[9] While not disagreeing with this approach, Whitlam, Madgwick and Weinberg JJ in Williams[10] stated that this rationale should not be over-emphasised because the provision was primarily concerned with the unlikelihood of fabrication:

The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication.[11]

Applying this reasoning, their Honours held the trial judge had incorrectly admitted a statement made by an unavailable witness five days after the events in question.[12]

20 Satisfaction of the requirement that the representation be made when or shortly after the asserted fact occurred must be established as a fact. Accordingly, there must be some evidence that the representation was so made for, '[a]bsent that evidence, s 65(2)(b) cannot be applied.'[13]

21 It can be seen that the second condition in s 65(2)(b) is satisfied where the representation was made 'in circumstances that make it unlikely that the representation is a fabrication'. This test is directed towards the unlikelihood of deliberate concoction not the unlikelihood of honest mistake.[14]

22 Unlike s 65(2)(b), a temporal element is not included in relation to the exception in s 65(2)(c). It applies where the representation was made 'in circumstances that make it highly probable that the representation is reliable'. However, the longer ago that the representation was made, the harder it may be to establish the high probability that it is reliable. As already noted, the party seeking to lead the evidence in reliance upon the exception in s 65(2)(c), in this case the prosecution, bears the onus of establishing that probability.[15]

23 Section 65(2)(b) requires that the representation be made in circumstances 'that make it unlikely that the representation is a fabrication'. By contrast, s 65(2)(c) requires that the representation was made in circumstances 'that make it highly probable that the representation is reliable'. Sections 65(2)(b) and 65(2)(c) are therefore 'enlived by different matters'.[16] The matter in s 65(2)(b) is the unlikelihood of fabrication while the matter in s 65(2)(c) is the high probability of reliability. The test in the former creates a 'significantly lower ... threshold of admissibility' than the latter.[17]

24 As was held in Conway, because the exception in s 65(2)(c) has 'the potential to operate unfairly against an accused person', the requirement that it be 'highly probable' that the representation is 'reliable' is considered to be 'an onerous one' and the reliability of the representation must be not just probable but highly probable. [18] Moreover, as satisfaction of the condition must be established as a fact, there must be evidence of the circumstances that make it so highly probable.[19]

25 There is reference in s 65(2)(b) and (c) respectively to circumstances 'that make it unlikely that the representation is a fabrication' and 'that make it highly probable that the representation is reliable'. After consideration of a narrow view and a wider view as to what those circumstances may be, the authorities have favoured the wider view.

26 The narrow view was adopted in Mankotia. In that case the issue arose where the prosecution sought to lead evidence of representations made by the deceased to the effect that the accused had threatened to kill the deceased. Sperling J held:

I would construe 'circumstances' to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c).[20]

This approach was followed in Polkinghorne.[21] As can be seen, it would require a focus upon the circumstances of the representation in the factual setting at the time in which it was made.

27 A wider view was adopted in the series of cases beginning with Conway v The Queen.[22] Miles, von Doussa and Weinberg JJ there held that the trial judge had wrongly admitted evidence of the deceased's statements under s 65(2)(c). In reaching that conclusion, their Honours took into account that the deceased had given different accounts of the events in question to different people on different occasions. The trial judge had not taken that evidence into account. Explicitly rejecting the narrow view adopted by Sperling J in Mankotia, their Honours held:

We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable.[23]

28 Conway was followed by in Williams.[24] In that case, the trial judge had admitted hearsay evidence of admissions made by the accused. The unavailable witness had given evidence of the admissions in an interview with the police. Applying s 65(2)(c) narrowly, the trial judge focussed upon the reliability of the representations, not the circumstances in which the representations were made. Those circumstances were that the witness was interviewed by the police after having been cautioned that he was suspected of having aided and abetted the accused and that a weapon had been found in his backyard.

29 Whitlam, Madgwick and Weinberg JJ held that this was the wrong approach to adopt. Their Honours pointed out that the test of unlikelihood and high probability in s 65(2)(b) and (c) respectively was focussed upon the circumstances in which the representation was made.[25] Following Conway, the trial judge should have considered 'available relevant evidence as to all the circumstances in which the statement was made'[26] and should not have excluded consideration of the circumstances in which the witness had been interviewed by the police.[27]

30 These authorities were discussed in detail by Mason P (Hulme and Simpson JJ agreeing) in R v Ambrosoli.[28] The question on appeal was whether the trial judge had erred in admitting evidence of a statement and a transcript of committal evidence of an unavailable witness. It was held that a combination of circumstances should have led the trial judge to a different view.[29] While emphasising that the difference between the various views 'should not be exaggerated',[30] Mason P held that the approach adopted in Conway and Williams was to be preferred. Accordingly, when applying s 65(2)(b) and (c), it was wrong to exclude

reference to events outside the time and place of the making of the previous representation itself from the range of 'circumstances' capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.[31]

prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).[32]

31 Ambrosoli was followed by the Court of Appeal of this Court in Azizi v The Queen.[33] Bongiorno JA (Buchanan JA and Hollingworth AJA agreeing) considered that the issues arising from the different approaches adopted in Mankotia as compared with Conway and Williams had been 'resolved'[34] by the analysis of Mason P in Ambrosoli. As regards the circumstances to be considered under s 65(2)(b) or (c), I therefore take the wider approach identified in Conway, Williams and Ambrosoli to be applicable.

32 Those are the principles that I will apply when I come to determine the application of the prosecution to admit the hearsay evidence.

33 In relation to excluding admissible evidence, the defence relied principally upon s 137,[35] which provides:

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

It can be seen that the mandatory requirement to refuse to admit prosecution evidence only applies if its probative value is outweighed by the danger of unfair prejudice to the accused.

34 According to the definition in the Dictionary in the Evidence Act, 'probative value' means:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

35 In the light of the recent decision of the High Court in IMM v The Queen,[36] Warren CJ, Weinberg and Priest JJA in Wise described the operation of s 137 in the following terms: [37]

there is no element of discretion accompanying the judicial exercise contemplated in s 137. Section 137 'is expressed in terms of an evaluative judgment mandating exclusion'.[38] Thus, in a criminal proceeding, a trial judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.

The Dictionary to the Evidence Act defines 'probative value' to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Any assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[39] And although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[40] s 137 - which simply requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused - does not spell out the requisite probative value. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[41]

36 Following IMM, it is clear that considerations of reliability and credibility do not come into the assessment of the probative value of evidence under s 137.[42] As specified in the Dictionary (see above), the probative value of evidence turns on the extent to which it can rationally affect the assessment of the probability of a fact in issue.

37 The admissibility of evidence is determined by reference to whether it can rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55(1) of the Evidence Act). In a trial of murder by a husband of a wife or a similar charge, it has been held that evidence of a poor relationship between the accused and a deceased may be relevant to the probability of the existence of the fact in issue whether the accused in fact killed the deceased[43] and also (but not only) to the issue of whether the accused had a motive to do so.[44]

38 While so called 'relationship evidence' has been held to be so relevant, the courts have cautioned against '[slipping] into a habit of admitting evidence which ... cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties',[45] have drawn attention to the vagueness and generality of the expression[46] and have often preferred to consider whether, without categorisation, particular evidence in question is relevant to the probability of the existence of a fact in issue.[47]

39 Relying upon the admissibility of relationship evidence as a general proposition, the volume of such evidence that the prosecution seeks to lead in the present case is considerable. When I come later to rule upon the particular objections, I will refer to the evidence concerned in more detail. For the purposes of identifying the applicable principles, the evidence may sufficiently be described as follows:

the state of the marriage prior to the separation that occurred in 2010, especially that the accused was a jealous and controlling husband;
the family dispute that occurred in 2010 at the family holiday house in Rye after which the deceased did not live with the accused again;
occasions on which the deceased told family and friends variously that:
- she feared the accused;
- the accused had threatened to kill her or her parents or sons;
- if she was harmed or was dead, the accused would be the perpetrator;
occasions on which the accused had made threats to kill the deceased when speaking with family members;
distribution by the accused among family and friends and to the deceased of a pornographic video allegedly depicting the deceased.

40 As can be seen, as relationship evidence, the prosecution seeks to lead evidence of threats made by and the conduct of the accused towards the deceased. For the reasons given below, provided these threats and the conduct were sufficiently proximate in time to the killing of the deceased in 2013, it is my view that the evidence is admissible in relation to the issue of motive and whether the accused in fact killed the deceased.

41 In addition to that evidence, the prosecution seeks to lead evidence as regards the state of the marriage going back years before 2013, as well as evidence of the state of mind of the deceased as regards the accused. It is my view that much of this evidence is not relevant to those or any other facts in issue.

42 The evidence which I think is most clearly relevant and admissible is evidence demonstrating the feelings of hatred and enmity that the accused had for the deceased. The potential relevance of this kind of evidence was explained in R v Ball[48] by Lord Atkinson:

Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought', inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.[49]

This statement is consistent with previous decisions on the subject[50] and has been oft-cited since.[51]

43 The admissibility of this kind of evidence is supported by a number of authorities which the defence in the present case has sought unsuccessfully to distinguish. In particular, it was held in Wilson v The Queen[52] that statements made by the deceased to the accused in the presence of a witness were admissible. The statements were 'I only know you want to kill me for my money' and 'I know you want to kill me, why don't you get it over with'. The deceased died by the discharge of a gun in the company of the accused and the issue was whether the killing was an accident or a murder. The High Court held that the evidence had been correctly admitted both as to whether the accused had a motive to kill the deceased and whether he actually did.[53] Of the relevance of such evidence, Menzies J said:

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.[54]

44 Because of what Menzies J here said and what Barwick CJ similarly said in his judgment[55] about the importance of the statements being made in a quarrel between the couple, the defence in the present case submitted that Wilson was no precedent for the present case where no quarrel occurred. Courts have struggled to understand the significance given to this aspect of the evidence in the judgments in Wilson. Perhaps the best explanation is that the evidence was of statements made by the deceased in the presence of the accused and, while not relevant in relation to the correctness of the belief she asserted, were relevant to the 'bitter relationship' between the two.[56] Discussion of the significance of the quarrel may therefore be a response to the particular facts of the case. Whatever the explanation, read as a whole, the judgments in Wilson do not support the contention that relationship evidence consisting of statements made by the parties are only admissible when made in the course of a quarrel and the principles explicated in that decision have not been so understood.

45 Prominent examples of the application of these principles include R v Hissey,[57] R v Serratore,[58] R v Anderson[59] and Clark.[60]

46 In Hissey, evidence was admitted against an accused charged with murdering his wife to prove that, on previous occasions, he had used violence and made threats towards the deceased. Following Wilson, Bray CJ, Hogarth and Mitchell JJ held that the evidence was correctly admitted, not as evidence of bad character or of a tendency towards violence on the part of the accused, but to show the bad relationship between the couple, which went 'not only to prove the intent of the accused, but also the fact of the crime'.[61] As in the present case, one of the threats was to kill the deceased that the accused made to a third person.[62]

47 In Serratore, evidence was admitted against an accused charged with murdering his girlfriend of statements and actions of the accused towards the deceased during their relationship. Following Wilson and Hissey, Dunford J (Greg James J and Smart A-J agreeing) held that the evidence had been properly admitted:

Here the evidence, if accepted by the jury, tended to show that the

relationship between the parties was an extremely obsessive, jealous and

dominating one on the part of the appellant, peppered with incidents of physical violence, not showing a tendency to violence in the sense of a tendency to kill (it was not tendered or admitted on that basis), but as showing the degree of domination and obsessiveness which the appellant brought to the relationship. It was not what might be described as an ordinary boyfriend/girlfriend relationship with its occasional ups and downs and odd verbal disagreements. In addition the evidence, if accepted, disclosed that the deceased had previously tried to end the relationship, that the appellant had made it difficult but she had finally resolved to do so and the return of mementos was to mark this event.[63]

48 In Anderson, evidence was admitted against an accused charged with murdering his girlfriend of his assaults, threats and abuse towards her and also that she had obtained an intervention order against him.[64] Following Wilson, Winneke P (Phillips and Chernov JJA agreeing) dismissed the appeal against conviction, holding that evidence of the pre-existing relationship between the accused and the deceased was admissible because it had a bearing upon a fact in issue, namely the state of mind of the deceased which may be admitted to prove motive.[65]

49 Finally, in Clark the issue was whether the trial judge had correctly admitted evidence against the accused on a charge of murdering the deceased that she did not like him and was very scared of him, that if she disappeared the matter should be reported to the police, that the accused would kill her and that he was giving her a hard time.[66] In the particular circumstances of the case, which were that the accused had allegedly driven the deceased to a certain place and killed her, Heydon JA (Dowd and Bell JJ agreeing) held that the evidence was admissible because it could rationally affect the probability of the existence of a fact in issue, namely whether 'the car journey ... ended in the killing of the deceased by the [accused]'.[67]

50 While these and other authorities establish a foundation for the potential admissibility of relationship evidence in cases like the present, this can only occur where, as I have emphasised, the particular evidence in question relates to the probability of the existence of a fact in issue (s 55(1) of the Evidence Act). In that connection, it has been recognised that evidence of statements, actions or events that are too remote in time from the date of the crime cannot be so relevant and must therefore be excluded as inadmissible.[68] Alternatively, their probative value may be so reduced by the passage of time that it might be outweighed by the danger of unfair prejudice to the accused (s 137 of the Evidence Act).

51 For the reasons I give in more detail below, it is my view that, from the date of the family dispute at the beach house in Rye in 2010, evidence of the poor state of the marriage between the accused and the deceased, the proceeding in the Family Court, the intervention order, the abuse of the deceased by the accused, the pornographic video and the accused's threats to kill the deceased (or her mother and father and sons), whether made by the accused to the deceased or to others, are admissible against the accused. This evidence could rationally affect (directly or indirectly) the probability of the existence of a fact in issue, namely whether the accused had a motive to kill the deceased and did in fact do so in 2013, as explained in the authorities to which I have referred. I would not exclude this evidence under s 137 (or 135). I would, however, not admit most (not all) of the evidence regarding the relationship between the accused and the deceased before 2010 as it is too remote in time from the date of the crime and is not so relevant.

52 In addition to evidence of the kind that I think is admissible, the prosecution seeks to lead a significant body of evidence in relation to the deceased's fear of the accused and in particular her fear that he would kill her. The objections of the defence to this body of evidence require further consideration.

53 As submitted by the prosecution, there have been cases in which evidence has been admitted of the subjective fear of a deceased person of the person accused of the murder. For example, in R v Matthews[69] the accused was charged with the murder and rape of his wife in her home. He admitted consensual sexual intercourse but denied the killing. The trial judge admitted (hearsay) evidence of statements by the deceased of witnesses that she was in fear of the accused and did not wish to see him. Jacobs ACJ, Bollen and Mullighan JJ dismissed the appeal, holding that the evidence was relevant to negativing consent, whether the deceased would have admitted the accused into her home and, following Wilson, the relationship between the two.[70]

54 Likewise, in Clark the evidence included that the deceased was very scared of the accused and her prediction that he would kill her (see above). In dismissing the appeal, Heydon JA (Dowd and Bell JJ agreeing) held that the evidence was admissible because it was 'explicitly linked' with the accused by the deceased and the 'direct evidence of an assigned basis for the fear' was relevant to whether the accused had killed her.[71]

55 On the other hand, in Frawley the trial judge admitted evidence from the daughter of the deceased including that her mother had told her that she feared the accused and that her brains could be 'splashed against the wall'.[72] Upholding the appeal, Gleeson CJ (Sheller JA and Carruthers J agreeing) said of that kind of evidence:

The fact that the deceased feared the appellant does not tend to prove that he killed her, or that he acted towards her with a certain intent. What would tend to prove that would be evidence that the fear was well-founded on the basis of past happenings, but that is the very matter which the document cannot be used to prove.[73]

For that reason, evidence of the conversations was held to be inadmissible. The Chief Justice repeated the need to identify with some precision the issues to which evidence of relationship was directed.[74]

56 Likewise, in R v Hillier[75] the prosecution sought to lead evidence that the deceased was in fear of the accused (her husband) and that she was making arrangements to flee to a safe place.[76] Following Frawley, Gray J held that 'expressions of fear by the deceased in respect of an accused does not prove either the act or intent although the acts which engender that fear might'.[77]

57 Each of these judgments has addressed whether the evidence of the deceased's fear of the accused was relevant to the probability of the existence of a fact in issue, usually whether the accused had a motive for killing, and actually did kill, the deceased. As can be seen from the different answers given to the question, it is not helpful simply to place such evidence in the category of 'relationship evidence'. It is necessary to consider the circumstances of the particular case and identify how, in those circumstances, the evidence of fear might be relevant in the necessary sense. For the reasons given below, I have concluded that, in the circumstances of the present case, evidence of the deceased's fear of the accused is not admissible (or is to be excluded) as a specific subject but is admissible (and not to be excluded) when it forms a natural part of other evidence that is admissible.

58 I turn now to consider in more details the defence objections to the prosecution relationship evidence.

Defence objections to prosecution relationship evidence

59 Applying the principles I have just discussed, I will determine the objections in the defence objections submission under the following categories:

(1) incident at beach house in Rye;

(2) deceased's fear of accused;

(3) accused's threats to kill or harm deceased (or mother and father) made to her;

(4) accused's threats to kill or harm deceased (or her sons) made to others;

(5) state of marriage pre-separation;

(6) intervention order; and

(7) pornographic video (and pictures).

(1) Incident at beach house in Rye

60 This incident is generally described in the prosecution opening as follows:

The trigger for the eventual separation was an incident which took place in January 2010 at a family get together in Rye. On this occasion, the accused initiated an angry exchange with the deceased and members of her family at her parent's beach house. During the incident, the accused screamed at the deceased and others and tipped up a table. His son Daniel stepped towards the accused and pushed him away, telling him to 'fuck off'.

The prosecution intends to lead evidence from a number of family members who were present.

61 I accept the defence submissions in relation to this evidence. The relevance of the incident is that it marks the time and the occasion of the separation. The actual words and conduct of the accused at the time are not relevant to the issues in the trial, especially because the event occurred three years before the deceased was killed, or are weakly relevant in a way that is outweighed by the danger of unfair prejudice. Evidence of the separation that occurred at this event should be led in a more neutral way.

62 I specifically exclude evidence of a threat to kill the deceased that the accused allegedly made on this occasion. It is not proximate enough to the killing of the deceased and the context was the family dispute that gave rise to the separation. It is either not relevant or its probative value is outweighed by the danger of unfair prejudice and therefore it should be excluded under s 137 (or s 135).

63 Accordingly, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is not admissible or is excluded:

64 The prosecution intends to lead evidence that the deceased was fearful of the accused, as follows:

Evidence will indicate that in the years and months leading up to her death, the deceased told numerous friends and family that she was frighted of the accused, and in particular, that she feared he would kill her.

I include in this category evidence that the deceased feared that the accused would harm her parents or her sons. The defence objects to this evidence upon the ground that it is irrelevant and alternatively submits that it should be excluded.

65 Certain evidence is clearly relevant to the probability of the existence of facts in issue (motive and the actual killing) because it sheds light on how the accused felt about the deceased. In this category I would include:

(1) evidence of the accused threatening the deceased, including threatening to kill her or her parents or sons, as revealed by evidence of the deceased's statements (if admissible) to others or evidence of the accused's statements to others;

(2) evidence of the accused's conduct towards the deceased, such as the evidence in relation to the pornographic video, the accused abusing the deceased or being abusive about her and the evidence of him stalking and harassing her or making unwelcome contact with her;

(3) evidence of the accused's reaction to the proceedings in the Family Court of Australia in terms of his relationship with the deceased; and

(4) evidence of the accused's feelings of hatred towards the deceased, as revealed by his statements and conduct to and towards her (if admissible) and others.

The focus of this kind of evidence is not upon the state of mind of the deceased in relation to the accused, but the state of mind of the accused in relation to the deceased. Because it is relevant to the probability of the existence of a fact in issue, it is admissible (subject to exclusion) (see further below).

66 By contrast, the focus of the evidence under present objection is upon the state of mind of the deceased as a specific subject (and not in a context that is itself relevant, such as the hearings in the Family Court). Evidence of the subjective fear of the deceased could only be relevant, if relevant at all, to the relationship between the deceased and the accused as it bears upon the issue of whether he had a motive for killing her and did in fact do so. But that issue turns upon the state of mind of the accused, not the deceased.

67 Evidence that the deceased subjectively feared the accused may be relevant in a general way to establish the negative fact that the relationship between the two was not loving and companionate as the relationship between married people normally would be (see above). Moreover, it would be artificial to exclude all of the evidence of this kind in the trial, particularly as it forms a natural part of other evidence that is relevant to the probability of the existence of a fact in issue. I would expect evidence that the deceased feared the accused to be given in the context of evidence that he threatened to kill or harm her or her parents or sons, that he was stalking or making unwelcome contact with her (in the post-separation period), that he was abusive towards or about her and in relation to the hearings in the Family Court. Subject to judicial direction against possible misuse, I think that evidence of the deceased's fear of the accused is admissible in such contexts and should not be excluded.

68 However, in the present case I think there must be some limitations upon the admission of evidence of the deceased's subjective fear. That is either because evidence of that fear as a stand-alone subject is not relevant to the probability of the existence of any fact in issue or because the definite danger of the large volume of this evidence being unfairly prejudicial to the accused (see s 137 (and 135)) can effectively be managed by confining this evidence to it natural connection with other admissible evidence. I will apply that principle in discriminating between the admissible and inadmissible evidence of the deceased's fear of the accused.

69 I will now consider specifically the proposed evidence of the prosecution of what the deceased thought the accused would or might do to her. In this category I would include the several statements by the deceased to friends and family, sometimes in quite graphic terms, that the accused would kill her (or her parents or sons), that if something happened to her it would be because of the accused and that, if she were to be killed, the police should be told that the accused was the perpetrator.

70 In the circumstances of the present case, I think that such evidence is relevant to the probability the subjective fear of the deceased, which is not a fact in issue in the trial, and not at all or only weakly or generally relevant to the probility of whether the accused had a motive for killing (and did kill) the deceased, which is the main issue in the trial. Such evidence really goes to the deceased's subjective state of mind when it is the objective circumstances giving rise to this state of mind (eg the accused's statements to and conduct towards the deceased) that is relevant to and probative of the main matter in issue.

71 Likewise, statements by the deceased (if otherwise admissible) about what she feared the accused would do to her or her parents or sons, such as those I have mentioned, have at best a general and weak probative value yet are highly and unfairly prejudicial to the accused. As the defence submitted, the statements have a self-fulfilling quality that may induce impermissible reasoning on the part of the jury. The prejudice is unfair because the jury may find it difficult not to be moved by the fears expressed by the deceased when she was alive. The jury may find it difficult not to reason that the deceased might have had cause for the fears and that the fears turned out to be justified. The jury may find it difficult not to reason that the deceased was in the best position to know who her killer would be. Even a stern judicial direction might not address such tendencies. In the end, I think these dangers of unfair prejudice clearly outweigh any probative value of this evidence. In reaching this conclusion, I take into account the large amount of evidence in this category that the prosecution intends to lead.

72 Accordingly, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is not admissible or is excluded:

1887 (where twice appearing, except in relation to the divorce proceeding), 1890

1989 (where four times appearing),[78] 1991, 528.13,[79] 629.9, 632.29

Item 41 on the prosecution hearsay notice, 2028, 2029, 701.8

Items 49, 50 and 51 on the prosecution hearsay notice, 2046 (Teresa was so terrified of Fernando) 2047, 2049, 740.18, 743.23, 743.16

73 However, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is admissible and not excluded (under ss 135 or 137):

(3) Accused's threats to kill or harm deceased (or her parents or sons) made to deceased

74 The prosecution intends to lead evidence of threats to kill or harm the deceased or her parents or sons that were allegedly made by the accused to the deceased. All of the threats were made in the post-separation period. As the evidence consists of statements of the deceased made to others before she died, it is the subject of the prosecution hearsay notice. The issues raised by that hearsay notice will be considered separately.

75 The defence objects to this evidence being admitted upon the ground that the evidence is not relevant and alternatively seeks its exclusion. I reject these submissions.

76 As to relevance, the alleged threats to kill or harm the deceased and her parents and sons all relate to the accused's relationship with and extremely negative feelings towards the deceased. That the accused would make such threats is highly relevant to the probability of the existence of a fact in issue, being whether the accused had a motive for killing and did kill the deceased. The focus of this evidence is not upon the subjective fear of the deceased but upon what the threats reveal about the extremely negative feelings of the accused towards the deceased.

77 As to exclusion, the prosecution intends to lead evidence of this kind from a number of witnesses in whom the deceased confided in the post-separation period. It is expected that these witnesses will depose that the deceased told them that, in various ways (some of them graphic), the accused threatened to kill or harm her or her parents or sons. On some occasions, the context was the proceeding in the Family Court. The number of witnesses will amount to several and the number of threats will amount to many.

78 The defence submitted that evidence of this kind should be excluded because it is evidence of criminal conduct, because (in some cases) the statements were made too long before the deceased was killed (which I reject) and because the jury might misuse the evidence. It was stressed that, if admitted, several witnesses would be likely to give such evidence, which would magnify the risk of unfair prejudice. The defence highlighted the danger of this evidence giving rise to propensity reasoning.

79 Putting aside the question of hearsay, I would not exclude the evidence under s 137 (or s 135) of the Evidence Act. Evidence of threats made by the accused towards the deceased or her parents or sons in the post-separation period are highly relevant and probative of whether he had a motive to kill her and actually did so. The danger that the jury might use the criminal nature of such threats as a foundation for propensity reasoning can properly be managed through judicial direction. The proposed witnesses are several and the number of threats will apparently be many. But all of the witness are to give relevant and admissible evidence of threats and there is nothing oppressive about the course that the prosecution proposes to take. The evidence will be the subject of appropriate judicial direction. When viewed in its totality and as to be covered by that direction, there is nothing unfairly prejudicial about the evidence, contrary to the submissions of the defence.

80 Accordingly, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is admissible and not excluded:[82]

Item 47 on the prosecution hearsay notice, 2046 (threats), 2047 (heavy breathing)

(4) Accused's threats to kill deceased (or her parents or sons) made to others

81 The prosecution wishes to lead evidence of threats to kill that were made by the accused towards the deceased in conversations with family and friends. All of the threats were made after the separation in 2010, some only months before the killing. There is also evidence of threats made by the accused to kill or harm the deceased's parents or sons made to others.

82 I accept the prosecution submissions that this evidence is highly relevant to the probability of the existence of a fact in issue, namely whether the accused had a motive to commit the crime (and whether he did so), essentially because of what it reveals about his extremely negative feelings about the deceased. The prosecution does not intend to rely upon the criminality of the threats and accepts that the jury will be sternly instructed not to adopt propensity reasoning. As with other evidence in this category, the jury will be instructed to consider the evidence only in the context of motive and the actual killing.

83 I do not accept the defence submission that the probative value of this evidence is outweighed by the danger of unfair prejudice. On the prosecution side, the evidence is of the statements of the accused and is highly probative of his attitude towards the deceased, which goes directly to whether he had a motive to kill her and actually did so. On the defence side, it is highly prejudicial, but not unfairly so if the jury is properly instructed as indicated. The jury can be expected to follow the instructions that will be given. Therefore this evidence should not be excluded under s 137 (or 135).

84 Accordingly, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is admissible and not excluded:[83]

879 (where twice appearing), 898, 902, 903, 77.8[84]

946, 947, 964 (where first appearing), 105.1, 105.5, 106.11

(5) State of marriage and relationship pre-separation

85 The evidence in this category is described in the prosecution opening as follows:

The marriage between the accused and the deceased was not a happy one, being marked by frequent conflict and seemingly aggressive, jealous and controlling behaviour by the accused towards the deceased. The sons of the accused witnessed intimidating behaviour by the accused towards the deceased, some violence by him constituted by pushing and shoving, and steps taken by the deceased to remove herself from threatening situations, including by running into neighbours' properties. For some years during the marriage, the deceased slept in a room with her son Luke rather than in a room with the accused.

86 The defence submits that the jury should know only that, in the pre-separation period. the marriage was (not always but on the whole) unhappy but objects to evidence that goes into the detail as proposed by the prosecution. I generally accept this submission.

87 I would admit evidence that, after an unhappy marriage, the couple had separated. In this admissible category I would include evidence that for some years the deceased slept in her son's bedroom. Such evidence is relevant to issues in the trial, especially the relationship between the accused and the deceased as this bears upon motive and the actual killing at the time of that killing. Some evidence in relation to the unhappy marriage is relevant by way of background to the post-separation relationship evidence.

88 But evidence such as the alleged aggressive behaviour of the accused towards the deceased during the marriage (pre-separation), the fact that the deceased would run into neighbouring properties in order to get away from him and other detailed evidence about the historical relationship falls into a different category. Most of the proposed evidence relates to specific events in the course of the relationship, not the nature of the relationship itself. These events, which occurred many years or even decades before the deceased was killed, are not of themselves relevant to the issues in the trial. The marriage is not on trial in the proceeding. To the extent that some of the evidence may be weakly relevant, it is outweighed by the danger of unfair prejudice to the accused (see s 137).

89 Accordingly, the evidence of the following witnesses on the following pages of depositions or committal transcript as described in the defence objection submission is not admissible or excluded:[85]

879 (where third appearing), 880, 888, 892, 893 (where twice appearing), 894, 886, 897, 898 (where second appearing), 42.1, 43.6, 43.8, 44.8, 47.21, 50.1, 82.8

2051 (top of page 47), 2054 (not pressed by prosecution), 2056, 2057, 755.31, 758.1

90 It is a fact that the police obtained an intervention order on behalf of the accused following the separation. This occurred after the accused sent her the pornographic video and the deceased accepted the advice of her solicitor to contact the police.

91 In my view, evidence of the fact of the intervention order is relevant to the relationship between the accused and the deceased as it bears upon whether he had a motive to kill her and actually did so. It was a feature of the relationship between the two in the period running up to the death of the deceased. The fact of the order is inextricably bound up with the evidence about the pornographic video, which is also admissible (see below).

92 I do accept the danger of unfair prejudice to the accused which is raised by admitting this evidence. The risk arises because the jury might impermissibly reason that the intervention order was granted because the accused was a person who would mistreat his wife and would breach an intervention order by making contact with her (as suggested by other evidence). However, this danger does not outweigh the probative value of the evidence where the jury is to be properly instructed, as it will be, as to how the evidence may properly be used. The danger should also be minimised by limiting this evidence to the bare essentials. The evidence is not to be excluded under s 137 (or 135).

93 Accordingly, the evidence of the following witnesses on the following pages of the depositions or committal transcript as described in the defence objection submission is admissible and not excluded:

94 As set out in the prosecution opening, the prosecution intends to lead the following evidence:

Sometime in 2011, the accused downloaded a brief pornographic movie from a website called 'Youporn' and stored it on his computer and his iPhone. The footage showed an unidentified female seemingly giving oral sex to an unidentified male. The accused either had the belief that the female was the deceased, or at least pretended he had that belief. He then contacted a number of male friends or associates accusing them of being involved in the video with the deceased. He spoke with his sons and insisted they watch the video, which he claimed involved their mother. He tried to convince them of that assertion. He claimed that his wife had cheated on him during their marriage.

I have viewed the video (and associated pictures), which the jury would probably be shown. It is very graphic and members of the jury may be confronted by it. As can be seen from the summary, it is not just evidence of the video (and the pictures) that is in question but evidence of what the accused did with these items.

95 The defence submits that the video evidence is not relevant. The events in relation to the pornographic video occurred in 2011, which is about two years before the deceased was killed. This is too remote from the issues in the trial. If relevant, the evidence should be excluded because the danger of unfair prejudice greatly outweighs its probative value.

96 I accept the submissions of the prosecution in relation to this evidence. In various respects, this evidence is strongly probative of the extremely negative attitude of the accused towards the deceased, whoever is the woman depicted in the video. The events in relation to the pornographic video occurred in 2011 in the post-separation context. The events have a natural connection with other relevant events of which there will be evidence in that context. So viewed, the evidence in relation to the pornographic video is not so remote from the killing in 2013 as to be irrelevant and inadmissible.

97 Because the contents of the video are confronting and the actions of the accused towards his sons and others in relation to the video might be judged harshly by the jury, there is a danger of unfair prejudice against the accused. The danger is that the jury might adopt propensity or like reasoning or speculate about the bad character of the accused. They might reason that a person who would act in the way that the accused did in relation to the video was likely to have killed the deceased. Having considered the submissions of the defence and prosecution in this connection, I have concluded that this danger can properly be managed by judicial direction. The evidence is not to be excluded under s 137 (or 135).

98 Accordingly, the evidence of the following witnesses as described in the following pages of the defence objection submission is admissible and not excluded:

99 I turn now to the determination of the application of the prosecution for the admission hearsay evidence.

Prosecution application to admit hearsay evidence of unavailable witness

100 In consequence of the ruling in relation to the defence objection submission, the representations described in the following items in the prosecution hearsay notice are not admissible or are to be excluded:

1, 2, 3, 5, 8, 10, 11, 12 (second sentence), 13, 14 (last two sentences), 19, 21, 24, 25 (first sentence), 26, 32, 33, 34, 35, 37, 39, 40, 41, 43, 45, 48, 49 (last sentence), 50, 51, 52, 54, 55 (not pressed by prosecution), 60, 61, 63-65 (not pressed by prosecution).

101 Taking into account the ruling in relation to the defence objection submission, the defence did not maintain any objections with respect to the following items in the prosecution hearsay notice:[86]

9, 12 (first sentence), 14 (first three sentences), 16, 17, 20, 22, 23, 25 (last sentence), 27, 28, 29, 30, 36, 38, 42, 44, 46, 49 (except last part of last sentence), 53, 56, 57, 59 and 62.

102 Taking into account the ruling in relation to the defence objection submission and, having regard to that ruling, the objections not maintained by the defence, it is necessary to rule only on the following items in the prosecution hearsay notice:

103 I will now determine the application in respect of those items.

104 This is evidence of the friend of the deceased, Carmel Cotroneo, of being told by the deceased that she went to court in relation to the matrimonial property and the accused would yell out at her and call her a 'slut'. The prosecution wishes to lead this evidence as truth of its contents and relies upon s 65(2)(b) and (c).

105 The evidence cannot be admitted under s 65(2)(b) because the evidence does not permit a finding to be made that the representation of the deceased to the witness was made when or shortly after the accused insulted her.

106 The evidence is to be admitted under s 65(2)(c) because I am satisfied on the evidence that the representation of the deceased was made in circumstances that make it highly probable that it was reliable. Those circumstances were that the deceased was relating to her trusted friend what had happened in a hearing at the court. The statement of the deceased is consistent with other evidence on the subject. The alleged insult yelled out was particularly hurtful and it is highly probable that a wife receiving such an insult from her husband would share with a friend what had occurred. I infer from the evidence that the conversation occurred at about the time of the proceeding in the court although not necessarily when or shortly after the insult was uttered. There is no reason to doubt the reliability of the representation.

107 This is evidence of the deceased telling Ms Cotroneo that the accused had threatened her that she would not get a penny of her money, that he would put her six feet under before she ever got anything and that he had threatened to kill her many times. The prosecution rely upon the representations as evidence of the truth of their contents and rely upon s 65(2)(b) and (c).

108 This evidence cannot be admitted under s 65(2)(b) because the evidence does not support a finding that the representation was made when or shortly after the accused made the alleged statements and threats to the deceased. The contents of the deceased's representation to her friend suggests that she was telling her about statements and threats of the accused made at different times.

109 The evidence is to be admitted under s 65(2)(c) because I am satisfied on the evidence that the representations were made in circumstances that make it highly probable that they were reliable. Again, the deceased was speaking to a trusted friend about what her husband was saying to her. A woman receiving statements and threats of this kind from her husband would highly probably tell a friend. As the representations of the deceased are consistent with other evidence, there is no reason to think that the deceased has exaggerated the situation or made false allegations. There is no reason to doubt the reliability of the representations.

110 This is evidence that the deceased told her friend Maryanne Micalizzi that the accused would always threaten to come around and kill her and her mum and dad. The prosecution wish to lead this evidence as evidence of the truth of its contents and rely upon s 65(2)(c).

111 I am satisfied on the evidence that these representations were made in circumstances that make it highly probable that they are reliable. Therefore s 65(2)(c) applies. The evidence is that the deceased grew up with Ms Micalizzi. They had known each other since they were very young. The witness maintained close contact with the deceased in their adulthood. The representations were made in the post-separation period. When Ms Micalizzi visited the deceased at her home, she would make the representations. I infer that the representations were made about the time that the accused made the alleged threats - that is, the deceased was speaking of the contemporary and not an historical period. The relationship between the deceased and Ms Micalizzi was close and it is highly probable that the deceased would confide in her in the way that she did. The contents of the representations are consistent with other evidence and there is no reason to doubt their reliability.

112 This is evidence that the deceased told her very close friend, Vivian Baullo, that the deceased had gone to a mediation and the accused had called her names like 'whore' and she was fearful of the divorce situation. The prosecution seeks to lead evidence of the fear of the deceased as original evidence under s 66A and the evidence of the insults as evidence of the truth of the statements of the accused under s 66(2)(b) and (c).

113 The evidence that the deceased was fearful about the divorce situation is evidence of her fear in a relevant context, namely the proceeding in the Family Court. It is therefore relevant and admissible under ss 55(1) and 56(1) as regards her relationship with the accused (see above). The evidence consists of contemporaneous representations of the deceased about her feelings and state of mind and is therefore admissible under s 66A.

114 The evidence as to the representations that the accused had called the deceased names like 'whore' is not sufficient to enable a finding to be made that the representations were made when or shortly after the accused so insulted the deceased. Therefore s 66(2)(b) does not apply. On the evidence I am satisfied that the representations were made in circumstances that make it highly probable that they were reliable. Therefore s 66(2)(c) applies. The conversations between the deceased and Ms Baullo allegedly occurred about four weeks before the deceased was killed. The representation that, at a mediation, the accused called her insulting names is consistent with other evidence. It is highly probable that a wife would tell her trusted friend that her husband had called her names like 'whore'. There is no reason to doubt the reliability of the statements.

115 This is evidence that the deceased told David Brady that at court the accused had said to her that:

If you think you're going to get your hands on anything I worked hard for, I'll see you dead first.

The prosecution relies upon this evidence as truth of its contents and relies upon s 65(2)(b) and (c).

116 Mr Brady was a close friend and working colleague of the deceased. He describes their relationship as that of brother and sister. His evidence is that about a week or two prior to her death, the deceased had gone to court regarding a property settlement with the accused. He was meant to go with her but had other commitments. The deceased called him directly after court had finished to tell him the outcome, as he knew the settlement was in its final stages. The deceased told him that the accused walked past her while at court and had said to her the words above. While the witness says the conversation occurred a little before the death of the deceased it seems likely that the conversation occurred in about December 2012 when a relevant hearing occurred. But his evidence that the conversation occurred 'directly after' the hearing is not challenged.

117 The evidence does not establish that the representation of the deceased was made 'when' the accused threatened her. Therefore the first part of s 65(2)(b) does not apply. But the telephone call of the deceased to the witness was made 'directly after court' and this is 'shortly after' the accused had threatened her. Therefore the second part of s 65(2)(b) applies.

118 I am also satisfied that the representations were made in circumstances that the representations were highly probable to be reliable. Therefore s 65(2)(c) applies. The deceased spoke with her friend directly after the alleged threat of the accused. The context of the court proceeding is consistent with other evidence on the subject. It is highly probable that the deceased would share the making of the threat with her friend who had had an involvement in the proceeding by way of supporting her. There is no reason to doubt the reliability of her representation.

119 This is evidence of the friend of the deceased, David Vaccaro, that he was told by the deceased that, once she had moved to her mother's house, the accused would telephone her saying things like 'I'm going to get you, I'm going to kill you' and that she was scared. The prosecution relies upon s 66A in relation to the representation of fear and s 65(2)(c) in relation to the threat. The evidence that the deceased was scared was evidence of her fear in a relevant context, namely the alleged threat of the accused to kill her. It is therefore relevant and admissible under ss 55(1) and 56(1) as regards her relationship with the accused (see above). The evidence consists of contemporaneous representations of the deceased about her feelings and state of mind which are admissible under s 66A.

120 On the evidence I am satisfied that the representation was made in circumstances that make it highly probable that the representations were reliable. The representations were of statements by and conduct of the accused in the post-separation period. From the context, I would infer that the deceased was speaking of contemporary and not historical circumstances. It is highly probable that the deceased would confide in her friend that the accused was making the alleged telephone calls and threats. Her representations are consistent with other evidence on the subject and there is no reason to think that the representations were not reliable.

121 This is evidence of Lauren Vaccaro that, at about the time of a hearing in the Family Court (probably December 2012), the accused became really aggressive and threatening towards the deceased and told her that if she went through with the case then she would get nothing. The prosecution wish to lead evidence of the representations as truth of their contents and rely upon s 65(2)(b) and (c).

122 This evidence is not to be admitted under s 65(2)(b) because the evidence does not establish whether the representations were made when or shortly after the accused engaged in the aggressive and threatening conduct and made the alleged statements to the deceased. Again the contents of the deceased's representation to her friend suggests that she was telling her about the conduct and statements as at different times.

123 On the evidence I am satisfied that the representations were made in circumstances that make it highly probable that they were highly reliable. The evidence is therefore admissible under s 65(2)(c). Ms Vaccaro was well-known to the deceased. She was the ex-partner of her son Daniel and would visit the house often at the relevant time. There is evidence of close contact between her and the deceased. The conversations in which the representations were made were reasonably proximate in time to the conduct and statements of the accused that the deceased described. I think it is highly probable that the deceased would reliably describe the conduct and statements to a person whom she trusted and who was visiting the house regularly at about this time. The representations are consistent with other evidence on the subject and there is no reason to think that they were unreliable.

124 The objections that are made in the defence objection submission and the applications that are made in the prosecution hearsay notice are determined accordingly.

[1] These are my reasons for decision for the ruling I made on 14 October 2016. On 15 June 2017, the jury delivered a verdict of guilty.

[2] Karam v The Queen [2015] VSCA 50 (31 March 2015) [58] (Weinberg, Priest and Beach JJA); Azizi v The Queen [2012] VSCA 205 (30 August 2012) [43] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing) ('Azizi'); Wilson v The Queen ([1970] HCA 17; 1970) 123 CLR 334, 344 (Menzies J) ('Wilson'); Frawley (1993) 69 A Crim R 208, 219 (Gleeson CJ, Sheller JA and Carruthers J agreeing).

[3] Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, 237-8 [109], (Miles, von Doussa and Weinberg JJ) ('Conway').

[4] Ibid; R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359, 441-2 [480] (Studdert J).

[5] As in R v Bond (Ruling No 4) [2011] VSC 536 (24 October 2011) [17]-[21] (T Forrest J) and Azizi [2012] VSCA 205 (30 August 2012) [57] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[6] Conway [2000] FCA 461; (2000) 98 FCR 204, 239 [123], 241 [133] (Miles, von Doussa and Weinberg JJ); Azizi [2012] VSCA 205 (30 August 2012) [47] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[7] [1998] NSWSC 295 (27 July 1998) ('Mankotia').

[8] Ibid 5-6 (Sperling J); cited with approval in R v Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 195 [39] (Levine J) ('Polkinghorne') and Conway [2000] FCA 461; (2000) 98 FCR 204, 241 [134]-[135] (Miles, von Doussa and Weinberg JJ).

[9] Conway [2000] FCA 461; (2000) 98 FCR 204, 241 [133] (Miles, von Doussa and Weinberg JJ).

[12] Ibid 502-3 [49]. In R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, 612-3 [54] (Mason P, Hulme and Simpson JJ) ('Ambrosoli') it was held that time lapses of 5 years (a statement by the unavailable witness) and 11 months (committal evidence of that witness) were well outside the span of representations made when or shortly after the asserted facts occurred. In Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454, 462 [37] (Studdert J, Grove and Whealey JJ concurring) it was held that a lapse of one day (a police statement by the deceased the day after he had been assaulted) was made shortly after the asserted facts occurred.

[13] Azizi [2012] VSCA 205 (30 August 2012) [47] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing). In R v Bond (Ruling No 4) [2011] VSC 536 (24 October 2011) [10] (T Forrest J) it was held that s 65(2)(b) was not satisfied because the evidence did not permit a finding as to whether the relervant representation had been made shortly after the asserted facts occurred.

[14] Mankotia [1998] NSWSC 295 (27 July 1998) 5-6 (Sperling J); Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 195-6 [39]-[45] (Levine J); Conway [2000] FCA 461; (2000) 98 FCR 204, 241-2 [138] (Miles, von Doussa and Weinberg JJ); Williams [2000] FCA 1868; (2000) 119 A Crim R 490, 502 [47] (Whitlam, Madgwick and Weinberg JJ)

[15] Azizi [2012] VSCA 205 (30 August 2012) [51] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[17] Conway [2000] FCA 461; (2000) 98 FCR 204, 243 [142] (Miles, von Doussa and Weinberg JJ).

[18] Conway [2000] FCA 461; (2000) 98 FCR 204, 239 [146] (Miles, von Doussa and Weinberg JJ). (Miles, von Doussa and Weinberg JJ), cited with approval in Azizi [2012] VSCA 205 (30 August 2012) [48]-[49] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[19] Azizi [2012] VSCA 205 (30 August 2012) [49] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[20] [1998] NSWSC 295 (27 July 1998) 5-6 (Sperling J).

At a glance

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Before

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Judgment (236 paragraphs)

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Cases Cited (11)