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[2014] NSWSC 495
Supreme Court of NSW
2014-04-28
Beech-Jones J
Original judgment source is linked above.
On admissibility of evidence 1This morning the accused, John Keith Bryce, was arraigned on an indictment that included one count, namely, that on or about 15 May 2012 at Waterloo in the State of New South Wales he did murder Katryn Barton. To that charge, he pleaded not guilty. However, a jury was not empanelled. Instead, I commenced hearing argument concerning the accused's objection to certain evidence sought to be led by the Crown. 2This judgment concerns the objection to two aspects of the evidence sought to be tendered by the Crown. Before dealing with those objections it is first necessary to briefly describe the Crown case.
The Crown case 3It is common ground that, as at the date of her death, the deceased and the accused had been in a relationship for approximately a year. They lived together in a flat in Pitt Street, Waterloo. On the morning of 15 May 2012, the deceased was admitted to hospital. She had sutures administered to a wound on her head. Around that time, she made a statement to the police that the wound had been caused when the accused had struck her with a toilet brush earlier that morning. She repeated that allegation to a number of other witnesses. 4The deceased was released from hospital at around 10.35am on 15 May 2012. It is not presently necessary to describe in detail her movements throughout that day, other than to note that around 5pm she returned to her apartment. According to the Crown case, about two hours later the accused also returned to the apartment. 5At 9.15pm that night, two police officers attended the apartment in order to interview the accused in relation to the alleged assault upon the deceased with a toilet brush. They entered the apartment and observed the deceased lying on a mattress in the middle of the lounge room floor. She appeared to be sleeping heavily. They interviewed the accused in another room. He denied assaulting the deceased earlier that day. 6When one of the officers returned to the lounge room, he became concerned about the deceased. An attempt to rouse her was unsuccessful. An ambulance was called. She was pronounced dead either later that night or sometime the next morning. 7A post-mortem examination revealed that, amongst other external injuries, the deceased had a bruise on the right side of the face, a bruise on the right side of the neck, a faint red mark on the left side of the neck and a number of bruises on the anterior trunk and posterior chest wall and upper extremities. An internal examination revealed bruising deep to the site of the stitches in her scalp, a bruise in the right temporalis muscle, a bruise over the left orbital ridge and some faint bruising of the left maxilla. 8It does not appear to be in dispute that the cause of death was blunt force injuries to the head. However, there appears to be a dispute, or at least a potential dispute, about the level of certainty that the deceased died as a result of blunt force injuries being administered on the evening of 15 May 2012, or whether some injury that the deceased received prior to 7.30am on 15 May 2012 contributed to her death. 9The Crown case is that the deceased died as a result of head injuries she received from the accused on the evening of 15 May 2012. The Crown contends that these injuries were inflicted by the accused with an intention to cause death or grievous bodily harm. The Crown also intends to submit that, if it is not established beyond reasonable doubt that the injuries suffered by the deceased on the evening of 15 May 2012 caused her death, the jury should nevertheless be satisfied beyond reasonable doubt that it was some prior act of the accused which caused the deceased's death, and that that act was done with the requisite intent. At this point the only act that might answer that criteria, at least arguably, is the alleged act of hitting her with a toilet brush on the morning of 15 May 2012. 10Based on the various statements given by the accused to the police, it appears that his case is, at least in part, that he denies assaulting the deceased on either of the relevant occasions. It also appears that he raises, at least as a reasonable possibility, that the deceased had a propensity to self-harm and thus may have self inflicted the harm occasioning her death. At various points the accused has also referred to the deceased being violent towards him.
Representations by the deceased 11Objection is taken on behalf of the accused to the Crown leading evidence of various statements said to have been made by the deceased on 15 May 2012 about harm occasioned to her by the accused on previous days. 12As previously noted, on 15 May 2012 the deceased gave a statement to the police alleging that the accused had assaulted her with a toilet brush earlier that morning. She repeated those statements to other witnesses. No objection is taken on behalf of the accused to the leading of that evidence. 13However, in some of those conversations the deceased also referred to other occasions when the accused assaulted her. Objection is taken to this material. It appears to concern three incidents. 14First, an ambulance officer, Ms Mitchell, recounts being told on 15 May 2012 by the deceased of an occasion on the deceased's birthday when she "copped a beating" from the accused. The deceased's birthday was 8 May 2012. Ultimately, the Crown did not press that evidence. 15Second, Constable Penman recounts that on 15 May 2012 she observed marks on the deceased's neck. She says the deceased told her that the accused tried to strangle her. Another witness, Georgia Zimonopoulos, recounts being told the same thing, as well as the deceased stating "it happened on Friday", which appears to be a reference to Friday, 11 May 2012, some four days prior to the representation being made. 16Third, Ms Mitchell also recounts the deceased stating that on the previous night, that is 14 May 2012, the deceased attended hospital because the accused had punched her in the face with his fist. Ms Mitchell recounts the deceased stating that she went to hospital in an ambulance and that the accused went with her. 17Counsel for the accused disputes the relevance of this evidence. He submitted that as the Crown case concerns at most two alleged assaults by the accused, one in the morning of 15 May 2012 and one in the evening of 15 May 2012, then the evidence of other assaults is irrelevant. 18The Crown submitted that evidence of these incidents is relevant as "relationship evidence", that is evidence which throws light upon the nature of a relationship between the parties and which will allow the jury "to put the facts giving rise to the charge into a proper context so that the jury can understand the acts of the accused relied upon by the Crown against the background of the circumstances that existed at the relevant time" (see R v Toki (No 3) [2000] NSWSC 999 at [24] per Howie J citing Wilson v R (1970) 123 CLR 334 at 339 and 344). 19I accept the Crown submission. Based on his interview with the police, it is anticipated that the accused will point to the violent conduct of the deceased as well as her propensity to inflict self harm as a possible explanation for her injuries. While it must always be borne in mind that the onus is on the Crown, it seems to me that the Crown is entitled to argue that the "proper context" of the relationship between the parties was one that included a level of mutual violence and not just one-sided violence, including self-inflicted violence on the part of the deceased. However, it should be noted that just because I accept the Crown submission on this point does not mean that there is an open pathway for it to lead to every potential allegation of violent or other disreputable conduct on the part of the accused. Amongst other matters, if the various gateways to such evidence's admissibility are overcome, there still remains the discretion in s 137 of the Evidence Act 1995 (NSW) to exclude such material. 20Having accepted that the evidence about the second and third incidents is relevant, the next question that arises is whether it is admissible. The Crown relied on s 65 of the Evidence Act and, in particular, s 65(2)(b). Section 65 relevantly provides: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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) was made under a duty to make that representation or to make representations of that kind, or (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) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. ..." 21Counsel for the accused submitted the statement about the alleged strangling incident on Friday 11 May 2012 was not made "shortly after" the alleged incident occurred. He submitted that the four day delay period for an incident of that nature was too long to enable s 65(2)(b) to be invoked. I agree. 22In Williams v R [2000] FCA 1868; 119 A Crim R 490 at [48] ("Williams"), the Full Court of the Federal Court stated: "[48] ... The rationale for the exception to the hearsay rule contained in s65(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. One condition of this is that the statements be made spontaneously during ('when') or under the proximate pressure of ('shortly after') the occurrence of the asserted fact. In Conway [Conway v R (2000) 98 FCR 204] the statement in question was made by a murder victim who said, while observed to be looking 'terrible', that she had been drugged and had been 'off her face for about three or four hours'. The comments of the Court in Conway regarding the meaning of 'shortly after' should be understood accordingly. The approach taken in Conway to s65(2)(b) as a whole is consistent with such a reading of that case." 23In Williams, a lapse of five days between the relevant event and the relevant statement was found to be too long to fall within the phrase "shortly after" (see [49]). While the phrase "shortly after" has a flexible character, it is not so flexible to extend to four days in the circumstances of this case. Accordingly, I reject the tender of so much of the evidence as recounts the statements of the deceased about an attempt to strangle her on Friday, 11 May 2012. 24Counsel for the accused also made the same submission in relation to the third incident. He also submitted that the Court could not be satisfied that it was made in circumstances that rendered it unlikely that the representation was a fabrication. Counsel for the accused tendered medical records of the admission made by the deceased on 14 May 2012. Those records indicate that the deceased was admitted to hospital some thirty hours prior to making the statement to Ms Mitchell on 15 May 2012. 25In the passage from Williams that I have just cited, the Full Court referred to the need for the statement to be made either "spontaneously during" or "under proximate pressure of" the occurrence of the asserted fact. It is difficult to see how the delay of thirty hours can meet that test. 26The Crown referred me to the following passage from Toki at [92] (per Howie J) as an example of a case where a one day lapse fell within the concept of "shortly after" in s 65(2)(b): "[92] Similarly, in my view the evidence of what the deceased said both to Mr Cartwright and the doctor about the injuries she suffered on 26 August 1997 are admissible under s65(2)(b). In many situations a representation which is made the day after the occurrence of the asserted fact will not be regarded as having been made "shortly after" the asserted fact. But, in the case of a person who has suffered serious injuries on one day and who is seeking medical treatment the next day, there is a sufficient temporal connection between the two events so that it can be said that the request for medical assistance occurred shortly after the infliction of the injuries." 27However, in considering this passage, one must bear in mind the earlier observation in Toki at [88], namely: "Whether a representation is made 'shortly after' an asserted fact occurred depends upon the nature of the fact being asserted and the circumstances in which the representation is made." 28Thus, the finding in Toki concerned a one day lapse between the occurrence of the alleged event and the seeking of medical assistance for the injuries that arose out of that very event. However, this case concerns a delay in excess of one day and a statement made at a time when the deceased was receiving treatment for an injury suffered during a later event and, in doing so, she allegedly made a statement about an injury suffered during an earlier event. 29Having regard to the rationale for s 65(2)(b) as stated in Williams, and not disavowed in Harris v R [2005] NSWCCA 432, I am not satisfied that the statements about the third event were made "shortly after" its occurrence. Accordingly, I reject the tender of so much of the evidence that recounts statements made by the deceased concerning the accused hitting her in the face prior to her admission to hospital on 14 May 2012. 30Finally, it is also necessary to refer to a statement said to have been made by the deceased, as recounted by Ms Mitchell, just prior to her recounting the alleged assault involving a toilet brush. Ms Mitchell recounts the deceased stating "this has been going on for five days". The reference to "this" in this passage appears to be a reference to instances of violence said to have been committed by the accused upon the deceased. 31The difficulty with a statement of this kind is that it is completely lacking in detail. Without more, it would not appear to be anything other than a reference to the three incidents that I recounted earlier, one of which is not pressed, and the evidence in respect of the other two I have rejected. Further, even if the various thresholds to the admissibility of this statement were overcome, and I do not think they are, the evidence would be of such a general nature that I would reject it under s 137 of the Evidence Act. 32Accordingly, the tender of that part of Ms Mitchell's evidence will also be rejected.
Photos and observations of the deceased 33A number of the witnesses who dealt with the deceased during the day of 15 May 2012 made observations of bruising to her face and neck. In addition, a police officer took photographs of that bruising as well as bruising to her hands. Counsel for the accused objects to this evidence as irrelevant and otherwise submits that it should be excluded under s 137 of the Evidence Act. 34At one level, this evidence is clearly relevant in the sense that the jury can use it to compare the physical state of the deceased in the period immediately prior to the evening of 15 May 2012 with her physical state as observed at around the time she passed away. From that comparison, they can consider what injuries she must have suffered on the evening of 15 May 2012. 35Further, the Crown also seeks to rely on this material as part of the relationship evidence that I have referred to earlier. It appears the Crown will seek to have the jury infer that the accused inflicted the injuries that are described and shown in the photograph. It seeks to do so in circumstances where there is some other evidence indicating the accused was aggressive and, to an extent, violent towards the deceased. 36In circumstances where an aspect of the competing cases is that it was either a relationship of mutual violence, according to the Crown, or only violence including self-inflicted violence perpetrated by the deceased as contended for by the accused, it would be a distortion of events to withhold from the jury evidence of strangulation marks and bruising to the deceased's face which were present on the very day that she died. When taken with other material that it is anticipated will be led, and bearing in mind that the accused and deceased were living together, the evidence of the injuries in the photographs is capable of supporting a conclusion that the accused was the person who inflicted those injuries. In turn, that conclusion, if drawn, is of relevance in assessing the competing cases and especially the accused's contention. 37Considered in that way, I consider the evidence has probative value and that probative value is such that it would not be outweighed by the danger of unfair prejudice to the accused. This is particularly so as there will be no doubt an application, which I anticipate will not be objected to by the Crown, for the jury to be warned about the dangers of tendency style reasoning. It follows that at the appropriate time the evidence of the observations and the photographs will be admitted.
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R
Bryce