JOHNSON J: The Accused, Cathrina Ann Cahill, is to stand trial on a charge that she murdered David Walsh in February 2017.
Yesterday, I gave judgment with respect to evidentiary issues involving tendency and relationship evidence concerning a wide body of material: R v Cahill (No. 2) [2018] NSWSC 1531. I made rulings of a general type but indicated at [120] to [122] that there were particular areas of the tendered material about which I would seek further submissions. In particular, these areas relate to the Crown's intention to adduce evidence of things said by Mr Walsh, now deceased, to other persons with respect to events concerning the Accused.
The first piece of evidence which falls into this category is material in the statement of Joe Doran (Exhibit A, Tab 14). In the statement made on 12 March 2018, Mr Doran refers to communications that he had with Mr Walsh by telephone after 7 January 2017 where a number of issues were discussed. Mr Doran states:
"He also told me about the time she hit him when he was asleep, he said that 'She's that mad, we had a fight and she hit me with something when I was fast asleep and split me and gave me a load of stitches. That's how mad she is'."
The Crown submits that this relates to the event on 12 November 2015 which is referred to in R v Cahill (No. 2) (at [59]). The Crown seeks to tender this as evidence of the truth of the fact of what Mr Walsh said to Mr Doran at some point in January or February 2017. Mr Trevallion, counsel for the Accused, objects to this evidence being received at all or submits that if it is to be admitted, it ought not be admitted as evidence of truth of the fact.
Evidence in this category requires consideration to be given to s.65 Evidence Act 1995. There is no doubt that Mr Walsh is "unavailable" within the statutory meaning as he is deceased. The Crown seeks to rely upon the representation made by Mr Walsh to Mr Doran in this conversation and in particular that part which says:
"We had a fight and she hit me with something when I was fast asleep and split me and gave me a load of stitches."
The High Court of Australia has made clear in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 that where an issue arises under s.65, the particular representation relied upon by the Crown must be identified with precision and the requirements of s.65 are to be considered separately, and not in a compendious way.
The Crown submits that this representation falls within s.65(2)(c) in that it was made in circumstances that make it highly probable that the representation is reliable.
It is necessary to consider all the elements in s.65(2) for the purpose of this ruling. Mr Trevallion submits that the representation was not made shortly after the asserted fact occurred and in circumstances that made it unlikely that the representation is a fabrication (s.65(2)(b)).
Mr Doran informed the police in the Republic of Ireland of this information in a statement made on 12 March 2018. The statement does not include a direct assertion that this conversation related to the particular event on 12 November 2015, but the Crown submits it may be inferred that that is so.
The conversation is itself taking place 14 months or so after the events in 12 November 2015. In my view, the passage of time and the lack of precision as to the incident to which this comment relates affects the question as to whether or not it ought be admitted as evidence of truth of the fact.
I am prepared to allow this conversation as something which Mr Walsh said to Mr Doran in early 2017, but I do propose to limit the use that can be made of this evidence under s.136 Evidence Act 1995.
This evidence will be admitted at the trial, but the jury will be directed that it cannot be used as evidence of the truth of the facts of the matters asserted in the representation made by Mr Walsh to Mr Doran.
[Submissions were made on the next objection]
I have heard further submissions with respect to another aspect of Mr Doran's statement where he refers to what he thinks took place around October or November 2016 concerning a picture on Facebook. Mr Doran said in his statement that he was going to look to see if that message was still in existence. There is no indication at this point as to what has happened in that respect.
In circumstances where there is a prospect of there being direct evidence of this picture, I will not allow the evidence of Mr Doran's memory and summary of what was depicted to be admitted. The issue can be revisited once there is a clear response from Mr Doran as to whether his efforts to locate this have borne fruit or not. I do not propose to allow this evidence at this point.
[Submissions were made on the next objection]
The Crown seeks to tender evidence arising from the statement of Martin Doyle made to Irish police on 13 March 2018 (Exhibit A, Tab 22). Mr Doyle states that he was a friend of Mr Walsh. He explains the background to their friendship and the fact that he himself was in Australia, working in a period after 2014.
Mr Doyle states that, in around Christmas 2016, he moved to Coogee and, on New Year's Day 2017, he and Mr Walsh and some others were drinking together at a hotel in Bondi Junction. They stayed there until closing time and then went home. He says that soon after he arrived home, he got a telephone call from Mr Walsh who asked him to call over to see him. Mr Doyle says he caught a taxi to visit Mr Walsh. When he arrived there, Mr Walsh was sitting in a room. He appeared distraught and he told Mr Doyle the Accused had attacked him with a screwdriver - he said that he had been in the bedroom and she had come in and attacked him with the screwdriver.
Mr Walsh had an injury to his right shoulder which he showed to Mr Doyle. Mr Doyle described a wound about one centimetre long. Mr Walsh also showed him a Phillips head screwdriver which he said the Accused had used to attack him. The Accused was not present at the time, having left the house.
The Crown seeks to tender the representations made by Mr Walsh to Mr Doyle in that conversation as evidence of the truth of the fact. Objection is taken to the tender of that evidence completely. It is submitted in the alternative that, if it was to be allowed, it ought not be evidence of the truth of the fact.
I have considered the provisions in s.65 Evidence Act 1995. Clearly Mr Walsh is unavailable. The defence submissions have focussed on the question of the alcohol intake by both men so that it is argued that there is unreliability surrounding this event.
Counsel for the Accused submits as well that there is no other person who was to give evidence of such an event having occurred, and that there was no report of it made to the police.
The account of Mr Doyle involves what seems to be a reasonably clear memory of being called to Mr Walsh's house on this evening, where Mr Walsh recounted to him what had allegedly just occurred. Mr Walsh's words were accompanied by his showing Mr Doyle what was said to be a wound resulting from the attack. Clearly, the incident about which Mr Walsh spoke to Mr Doyle had occurred very recently before then.
There may be cross-examination of Mr Doyle which could bear upon the weight to be given to this evidence if there is an issue concerning his intake of alcohol which may bear on that aspect.
However, having considered the various components in s.65, and in particular having regard to the very short time span between the alleged event and the time when Mr Walsh complained about it to Mr Doyle, I do propose to admit this evidence as evidence of the truth of the facts. It will, of course, be a matter for the jury to make such use of this evidence as may be made in light of the totality of the evidence on the subject.
Accordingly, this evidence is admitted as evidence of the truth of the fact by reference to the representation by Mr Walsh to Mr Doyle that there had been an attack upon him by the Accused that evening.
[Submissions were made on the next objection]
There is a further part of the statement of Mr Doran which has given rise to objection. At page 3 of his statement, Mr Doran states:
"He told me about one time when he was out drinking and he said he couldn't go home because she messaged him to say she was going to kill him, so he stayed out all weekend."
That statement is not fixed in time. There is no indication as to when it was said. The message is not sought to be tendered. There are difficulties with this tender under various subparagraphs of s.65(2) Evidence Act 1995.
In particular, the absence of any time when this is said to have occurred significantly reduces the evidentiary use of this material and gives rise to a capacity to mislead so that difficulties arise as well under s.135(b) Evidence Act 1995.
I do not propose to allow the Crown to adduce this evidence.
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Decision last updated: 22 February 2019